Judge To Rule On Shackling Of Attorney Lawyer Was Cuffed For Advice

A district judge is considering whether a magistrate legally handcuffed and detained an assistant public defender for advising his client to refuse an alcohol breath test during a probation violation hearing.

Sixth District Judge Peter McDermott said he will issue a written opinion in several weeks deciding the dispute between Bannock County Magistrate Ted Israel and Public Defender Randy Schulthies.

Schulthies claims Israel went too far last May when he had assistant Public Defender Brett Allison handcuffed and held in a courtroom for two hours because Israel disagreed with Allison’s advice to his client.

“I’ve never seen anything like this before,” Schulthies said. “I’ve seen an attorney held in contempt for being late or for violating a court order, but never for giving advice to a client.”

He does not want his attorneys to second-guess themselves for fear they might be arrested for diligently representing a client.

Israel is not commenting while McDermott reviews the matter.

At issue was Allison’s advice to Stanley Valerio that he refuse to be tested for alcohol consumption if Israel requested it during the hearing on violation of Valerio’s probation for misdemeanor theft.

Israel, in fact, asked Valerio to take a breath test after Valerio repeatedly said he had not been drinking. Allison immediately advised the magistrate that he had told Valerio to refuse on grounds that alcohol use was not covered in his probation.

“It is not a condition of his probation that he be tested or that he not consume alcohol, nor is it illegal to show up in Court if there is any alcohol in his system,” Allison told Israel. “I don’t believe the Court has jurisdiction to order such a test today.”

Israel countered that state law gave him the power to increase bail pending determination of the probation violation if he determined the defendant was a threat and Valerio could be a danger to society if under the influence of alcohol.

“Frankly,I would consider it contempt of court of both the attorney and the defendant to refuse a test when the court requested one, and I would probably incarcerate both people until such time as the defendant took a test,” Israel said.

Valerio finally agreed to be tested and tested positive for alcohol. The next day Israel revoked his probation and ordered him jailed for 10 days.