Public Interest

When Filing An Ethics Complaint Against A Judge Is The Right Call

No, you can't handcuff a lawyer for doing her job.

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conrad hafenBack on May 25, ATL Redline ran a piece by Elie Mystal called “When Handcuffing A Lawyer In Your Courtroom Is The Right Call.” It discussed a situation in Las Vegas where a judge, Conrad Hafen, ordered a marshal to handcuff public defender Zohra Bakhtary for attempting to make an argument when he’d told her to “be quiet.” The post’s title takes a stronger position than the post itself, which after reviewing the then-available evidence concludes this way (ellipsis and question mark in original): “But… maybe this judge made the right call?”

At this point much more ink and many more pixels have been spilled on the situation, and I think it’s safe to say that no, the judge didn’t make the right call. Indeed, now the group Nevada Attorneys for Criminal Justice has filed an ethics complaint against the judge — and that, on the other hand, is the right call.

Let’s backtrack for a moment. What exactly happened in Judge Hafen’s courtroom? Attorney Bakhtary was there representing a client who’d pled to misdemeanor petit larceny back in October 2015, received a six-month suspended sentence contingent on his fulfilment of certain conditions, and then failed to show up for a May 2016 hearing that had been set for the judge to check up on whether he’d actually fulfilled those conditions. Naturally, Judge Hafen issued a bench warrant when Bakhtary’s client failed to show. And within a few weeks, the client was picked up and brought to court.

Also naturally enough, Judge Hafen was inclined to send Bakhtary’s client to jail. (Judges tend not to look kindly on parties who come in on bench warrants.) And — again, naturally enough — Bakhtary wanted to argue that things weren’t as bad as they looked. Her client, she started to say, had fulfilled most but not all the conditions of his suspended sentence. But when she got to the part about a new petit larceny charge her client had picked up in the interim, the judge cut her off. Here’s a chunk of the transcript picking up in the middle of a riff by Judge Hafen (transcript courtesy of the Wall Street Journal):

THE COURT: …I’m going to take a few minutes and we’re going to explain everything because I’m going to debunk this theory of yours. Okay, Zohra? Just so everybody knows, this defendant was charged with a felony and a gross misdemeanor. Okay?

MS. BAKHTARY: Judge, I would ask the Court not to —

THE COURT: Zohra, be quiet.

MS. BAKHTARY: Judge, you’re asking —

THE COURT: Zohra —

MS. BAKHTARY: You’re making —

THE COURT: Do you want to be found in contempt?

MS. BAKHTARY: Judge, you’re asking —

THE COURT: Zohra, be quiet. Now. Not another word.

MS. BAKHTARY: Judge, you’re —

THE COURT: Travis, right now. I’m tired of it. Right now.

(Whereupon, Ms. Bakhtary was taken into custody.)

I’ve been in Attorney Bakhtary’s situation before (the pre-handcuff position, that is), representing a client who’s come in off a bench warrant under circumstances that suggest leniency as a reasonable outcome. In fact, in one case I even had an agreement with the state that a client coming in off a bench warrant should be released (the situation was contempt for non-payment of child support; the client had a new job lined up). But in my case, as in Attorney Bakhtary’s, the judge simply did not want to hear it. The judge continued to hold my client — against my request and the state’s — who then missed work and lost his job. This was an objectively bad outcome, and I pushed hard to avoid it, to no avail. Granted I don’t think I interrupted or spoke over the judge. But who knows? Maybe in Judge Hafen’s courtroom I would have been handcuffed and held in contempt for my advocacy.

And, needless to say, that’s a problem. Judges hearing routine matters like petit larceny and non-payment of child support get jaded. And they don’t want to hear advocacy from public defenders and legal aid attorneys — after all, the clients blur together and the lawyers have an ethical obligation to argue for good outcomes from bad facts all the time. But our system has public defenders and legal aid lawyers and judges for a reason. The lawyers’ role is to advocate for their clients, and the judges’ role is to listen and treat each party that comes before them as an individual — not petit larceny case number one thousand three hundred twenty two.

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That’s the point Bakhtary made in a written statement to the Las Vegas Review-Journal — “I simply wanted the Court to listen to my argument and consider it before remanding my client.” And it’s the point the Clark County Defenders Union made in a public letter about the incident, again according to the Las Vegas Review-Journal: “Judge Hafen improperly handcuffed one of our public defenders simply for doing her job. His actions were unreasonable and unprecedented. Judge Hafen was wrong.” And it’s the point the Nevada Attorneys for Criminal Justice made in their ethics complaint against Judge Hafen. The Huffington Post quotes the group’s complaint:

The judge, “by punishing a Public Defender for simply doing what is required of her, demonstrates a callous disregard for the defense function, the dignity of defense counsel and the integrity of the criminal justice system,” the complaint reads. “Appropriate sanctions are required.”

The case has drawn attention from beyond Nevada, too. The Guardian has a particularly interesting piece putting the incident into a broader context, suggesting that Judge Hafen’s decision to have Attorney Bakhtary handcuffed is reminiscent of “other occasions when women of color were silenced through demeaning court actions, such as Liyah Brown, a black defense attorney in Washington DC who was searched and detained in 2007 for vociferously defending her client, a homeless man.” The Guardian piece also ties the incident to general attitudes about public defenders, quoting Ernie Lewis, executive director of the National Association of Public Defenders: “For us public defenders, it symbolizes the way many of us have been treated historically as not real lawyers, as not real professionals… All too often judges equate public defenders with our clients, and I think the more we learn to be client centered… the more some judges are pushing back against us.”

In any event, it remains to be seen whether the Nevada Commission on Judicial Discipline takes action against Judge Hafen — not to mention whether he retains his seat on the bench after this fall’s election. But again, I think it’s now safe to say that no, handcuffing Attorney Bakhtary was not the right call — and yes, filing an ethics complaint against Judge Hafenwas.

Earlier: When Handcuffing A Lawyer In Your Courtroom Is The Right Call

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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