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Handcuffing a criminal defense lawyer in the courtroom must be a last recourse

Fairfax DWI/criminal defense attorney on the need for sufficient judicial demeanor and restraint

May 30, 2016 Handcuffing a criminal defense lawyer in the courtroom must be a last recourse

Judges’ jobs are not easy. They face a seemingly never-ending flow of cases to handle. They know that the longer it takes to resolve case A, other cases will be waiting all the longer in the pipeline to be handled. Their ability to have qualified staff is limited by governmental regulations, and budgetary limits not faced in the private sector. Judges who invest the necessary time into each case receive no extra financial rewards for doing so beyond their existing pay and benefits package. Judges experience dissatisfaction by a slew of litigants and their lawyers.

I am cognizant about judges’ tough jobs, while also knowing that judges need to know about the above realities of their jobs before accepting the job as a judge. Some judges take the job with a paycut, truly wanting to serve. Others take the job with a pay increase, seeing the job as a stepping stone to an increased steady paycheck without the need to hustle for clients nor to serve any boss other than to be assigned cases by the chief judge. The rest of the judges have their own reasons for becoming judges.

As I have said before, respect is a two-way street with judges and everyone else, and kindness in judges and all others is powerful, not weak.

Sadly, Las Vegas Justice of the peace Conrad Hafen overstepped his bounds in two ways on May 23, 2016. (See article and hearing transcript.) First, he ordered the handcuffing of public defender lawyer Zohra Bakhtary for interrupting him after he interrupted her during a hearing to reconsider a bench warrant that followed her client’s alleged failure to appear in court two months earlier. Second, Hafen sentenced Bakhtary’s client to a hefty time in jail without letting Bakhtary finish her argument for her client, while Bakhtary was still in handcuffs, seated away from her client.

At first blush, one might wonder why Bakhtary did not simply let the judge speak without interruption and then finish her argument. That would have kept her out of handcuffs and might have kept the judge focused on her argument. However, the news shows that Bakhtary has appeared before Hafen many times. Perhaps — or perhaps not — she knew that he has a penchant for ruling without letting the parties finish their arguments, and was interrupting the judge to try to assure that he would not rule without hearing her argument. The transcript of the proceedings does not give enough context to what motivated Bakhtary to keep talking after Hafen told her to let him speak first.

The transcript of the proceeding does show Hafen considering the possibility of trailing the hearing for Bakhtary’s client to obtain a formal report of his community service work. That would seem to have possibly diffused the situation, unless Bakhtary was concerned that the judge would have locked up her client pending the next hearing date, seeing that he had an arrest warrant against him for not appearing at his prior court proceeding. Additionally, Hafen’s six-month sentence against Bakhtary’s client apparently took into account her client’s pending new theft case. Certainly, justice called for Bakthary’s client to have been formally charged with a probation violation charge for the new arrest, and to have been afforded a later date to answer on that matter, but that still raised the specter of her client’s being held in jail pending such a later hearing.

I have experienced judges starting to rule before I have finished argument or present evidence. In those instances, I have diplomatically and tactfully let the judge know that I had not finished presenting evidence or argument. The judge ordinarily has responded that s/he thought I was finished, and ordinarily has permitted me to continue with evidence and argument. This approach lends itself to judges enabling me to advocate for my client, because I am at once engaging in non-confrontation — or else diplomatically urging a judge to follow the governing rules for the proceeding when the judge is not doing so — while asserting my clients’ rights to a full and fair proceeding. The judge is then not preoccupied with preserving order, showing who is in control of the courtroom, nor saving face, but is instead focused on judging.

Hafen certainly needs to learn about the two way street of respect. He handcuffed Bakhtary for interrupting his own interrupting of her. Yes, some people have more of a penchant for interrupting than do others, and sometimes judges need to interrupt lawyers to get proceedings refocused, not to have proceedings drag on, and even to ask questions of the advocate or his opponent to give the parties an opportunity to clarify their arguments in ways that are meaningful to the judge’s ultimate ruling. However, Hafen should not have compounded his interruption of Bakhtary by next ordering her handcuffed.

Additionally, Hafen presumably wants to be called in the courtroom “Your Honor” or “Judge Hafen” or whatever honorific Las Vegas justices of the peace prefer, but Hafen repeatedly called Bakhtary by her first name. Granted, he apparently calls some or all lawyers by their first name, because he also called the prosecuting attorney by his first name, but I do not want a judge calling me by my first name in the courtroom absent the judge’s treating me otherwise with full respect.

Finally, during this hearing, Judge Hafen pontificated about Bakhtary’s client after the prosecutor told the judge the date on the community service document that Bakhtary had handed the prosecutor and after the prosecutor told the judge that Bakhtary’s client had been arrested (meaning still presumed innocent) for a new theft charge, after already having been convicted of theft by Hafen. If Hafen was going to pontificate, he should at least have waited first for Bakhtary fully to respond to what the prosecutor had said.

The reality of trial work is that judges will interrupt, will not always afford full or equal-time argument on an objection or other point of argument, and, in Virginia, sometimes will sentence in misdemeanor trials without hearing sentencing argument. With that, I find it important for me to get my strongest statements and arguments made first, which might tend to open the judge’s ears to further evidence and argument, or else will at least get my best arguments expressed in the first place. I will not critique nor judge Bakhtary’s approach and argument focus with Hafen, not only because the transcript and article on the matter do not present enough context for such an evaluation, but also because that goes beyond the focus of today’s blog entry.

Of course, maybe the voters will teach Hafen a lesson by simply electing one of his opponents in the upcoming election that he faces.

Hafen may have been frustrated to say the least that Bakhtary’s client had missed his prior court date. Of course, missed court dates come with the territory of judging, and judges should not lose their cool over missed court dates nor much else. The right judicial temperament is needed for judges.

In the meantime, Bakhtary’s client now has been sentenced to six months in jail. Perhaps her client will fare better with any appeal or sentence or proceeding reconsideration motion. Perhaps not.

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