Mich. Appeals Court Tosses Out Flint Lawyer's Contempt Conviction Over Unlucky Words at Lunch

Michigan case law summary by Attorney Richard Clem: Contempt.

People of the State of Michigan v. Anthony Lubkin. MI contempt

Michigan lawyer Anthony Lubkin's problems began when he went out to lunch on April 12, 2012, at a busy restaurant near the Genesee County court building in Flint, Michigan. He was eating lunch there with companions, one of whom was a client. While he was eating, an employee of the Court System, Brian MacMillan, was escorting a jury in a murder case into the same restaurant for lunch. Lubkin had no connection with the murder case. There was no evidence that the Lubkin even knew that it was a criminal jury, although the judge later speculated that the lawyer might have figured this out, based upon the number of jurors entering the restaurant.

As the first jurors began to sit down for lunch, MacMillan heard a male voice somewhere in the busy restaurant say the word "guilty". He quickly turned around and saw Lubkin. MacMillan later testified that "nobody else could have said it." He told Lubkin, "please sir, do not talk to the jury."

Lubkin then responded, "what, I can't say the word guilty? What if I say the word innocent?" Lubkin then returned to his lunch conversation, and a nervous MacMillan could continue to hear words such as "guilty" "not guilty" and "innocent" coming from Lubkin's table.

After an undoubtedly stressful lunch for the judicial assistant, he returned to work and reported what he had heard to Judge Archie Hayman, who was presiding over the murder trial.

Judge Hayman was not amused, and convened a criminal contempt hearing, at which he found Lubkin guilty of criminal contempt. Judge Hayman concluded that Lubkin had willfully interfered with the jury in disregard of the authority of the court. Despite Lubkin's utter lack of connection to the criminal case, Judge Hayman concluded that Lubkin had acted willfully because Lubkin is a "smart aleck." Judge Hayman sentenced Lubkin to 30 days in jail and fined him $250. According to news reports, Lubkin served five days of this sentence before being released on bond after filing an appeal.

Dissatisfied with his treatment by the local judiciary, the lawyer did appeal his conviction to the Michigan Court of Appeals. The Court of Appeals agreed that the conviction had to be tossed out. First of all, the Court of Appeals found that there was a paucity of evidence that Lubkin was even the one who said the word guilty in the first place. MacMillan didn't see him, even though he claimed that "nobody else could have said it." Lubkin was looking in the direction of the jury, but he was also looking in the direction of a television showing CNN, and one of Lubkin's companions testified that he frequently watched the TV during lunch. This companion, one of Lubkin's clients, also testified that they were talking about a personal legal matter, and that at one point he had said, "she's guilty, absolutely," in relation to that matter.

The Court of Appeals also found that even if the word "guilty" was spoken, there was no finding of willfulness. Lubkin had no connection with the murder case, and he had no reason to interfere. The judge's conclusion that Lubkin was a "smart aleck" had no support in the evidence. He was a long-standing attorney, and the Court of Appeals noted that there was absolutely no evidence that he would want to influence a jury just to amuse himself.

Finally, the Court of Appeals pointed out that there were serious First Amendment implications of the case. People have the right to talk in public places. But the Court didn't need to address those issues because it had already concluded that Lubkin was not guilty of contempt.

For these reasons, the appeals court reversed the conviction and vacated the sentence and fine.

No. 310359 (Mich. Ct. App. Feb. 6, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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