Lessons From A Dispassionate Judge: Focus On What Matters

There is often a level of nuance that flies over (or under, as the case may be) the heads of people who see something that, to the uninitiated, unduly simplistic or overly passionate, seems to be a good thing. Indeed, that’s how many reacted to the conduct of Las Vegas public defender Zohra Bakhtary, who was applauded by many for her passion and zealousness. She got no props here.

As a general rule, lawyers, particularly young lawyers and public defenders, are to be applauded for being bold enough to stand up to a judge on behalf of their client.  This is particularly true when they put themselves at risk in doing so.  But like the simplistic “don’t be a jerk,” be bold and interrupt the judge is only one tool in the lawyer’s tool box. Knowing when and how to use the tools of the profession is what being a lawyer requires.

The problem arises when knee-jerk reactions to displays of “passion” are applauded, as if being a passionate public defender is good enough. This is not merely a dangerously foolish notion, but one that puts the lawyer’s feelings above the client’s interests.

Sorry, all you deeply passionate folks, but feelz isn’t a substitute for good lawyering. And no, the fact that the judge reacted poorly as well doesn’t make what happened better. Sure, logical fallacies elude you, but still, what happens afterward never justifies what came before. That’s just not how logic works. More importantly, and in direct conflict with what so many young lawyers mistakenly believe, the lawyer and judge are not equals in the courtroom. The judge runs the joint and makes the calls. That’s how it works. If you don’t like that, do transactional work.

What was of greatest concern was that all the sobby voices that decried Justice of the Peace Conrad Hafen’s decision to cuff Bakhtary, a bizarre choice in handling this situation, did so at the expense of the defendant, Bakhtary’s client, who got smacked with six months. After Bakhtary’s display of poor judgment, bad tactics and hubris, the defendant was left to fend for himself before this judge.

Regardless of what you think of Bakhtary’s conduct, or Hafen’s response, another level of analysis comes into play following Bakhtary’s being cuffed and the defendant standing there alone.  You see, his 6th Amendment right to counsel was in no way dependent on his PD knowing when to interrupt the judge and when to await the right moment to strike. His right to counsel wasn’t dependent on Hafen’s decision to cuff his lawyer rather than give her a stern lecture about courtroom decorum.

The defendant has a right to counsel regardless of what the PD or the judge does.

And the Vegas public defenders office recognized that the defendant was denied his right to counsel, and went back to court to act upon it. This, I might add, is how one is tactically effective.

Deputy Public Defenders Nancy Lemcke and Jessica Murphy argued that Hafen deprived Fernandez of his Sixth Amendment right to an attorney at a crucial moment.

This is a legal argument. This is a sound argument. This is the means by which a good lawyer attacks an outcome that shouldn’t have happened. And it received the response from the court it deserved.

District Judge Rob Bare released Daniel Fernandez after reviewing Justice of the Peace Conrad Hafen’s handling of the case. Bare noted that Hafen directly addressed the defendant on May 23 while Deputy Public Defender Zohra Bakhtary was handcuffed and silenced.

“A lot of meaningful things were covered that, respectfully, a lawyer could potentially weigh in on,” Bare said. “But even if the lawyer chose not to weigh in, it troubles me that a judge would speak directly to a now-unrepresented client in this regard.”

Judge Bare’s focus was where it should be, on the defendant before the court and the deprivation of his right to counsel. And this is not a matter of preferring the outcome more than what was done by Hafen, but that there was a collateral consequence of Hafen’s having Bakhtary cuffed that he ignored: a defendant was left standing before the court unrepresented, and the judge addressed an unrepresented defendant.  Judge Bare got it.

“It’s an odd case, I’ll give you that,” Bare said, “probably one I’ll never forget, and maybe one you guys will never forget, either. But the fact of it is, at the end of the day, whether you like it or you don’t like it, people who come into a criminal courtroom deserve to be represented, and in this situation, we have an unrepresented defendant being spoken to in meaningful aspects of the case, specifically the sentence, directly by the judge.”

Judge Bare released the defendant on his own recognizance pending appeal. It’s premature to think this is the end of the road for the defendant’s problems, as he remains subject to a six month sentence for violation of his probation, and could well lose and have to do the time. Of course, it’s questionable whether anyone will know the outcome of the appeal, since this story didn’t make it on the radar because of the defendant, but because Hafen cuffed Bakhtary.

In the interim, the defendant will be free, which means that he will have the opportunity to appeal the sentence because he won’t have completed the sentence before an appeal is decided.  That’s how it should be.

And yet, some will read into this scenario that it somehow vindicates Bakhtary’s passionate and zealous representation of this defendant.  There could be no worse takeaway. Just because the defendant was lucky enough to be released pending appeal this time doesn’t mean the next poor decision by a lawyer who lets feelings overcome tactics will wind up fine.

As to the more experienced lawyers who can’t discern the difference between zealous effective representation, and passionate self-indulgent representation, consider Judge Bare’s decision to release the defendant on bail pending appeal. He focused on the legal issues and arrived at the correct decision.  He didn’t cry sad tears for the feelings of the lawyer. He applied the Constitution for the benefit of the defendant. You might want to try that as well.

8 thoughts on “Lessons From A Dispassionate Judge: Focus On What Matters

  1. Eduardo

    How does a lawyer represent a client when a judge prohibits her from speaking? It seems like a valid defense tactic to goad the judge into committing error. The defendant lives to fight another day. If Bakhtary would have remained silent the defendant would likely still received 6 months but with no remedy.

    1. SHG Post author

      That’s a shallow grasp of what happened. This idea of “gaming” the judge has been tried and failed miserably many times. This time, it worked only the extent of getting him bail pending appeal. Bakhtary could have sought bail pending appeal, whether from Hafen or the appellate court, regardless of this game. But he still faces the sentence if he loses on appeal.

      Had you read the original post on Bakhtary, you might grasp that this wasn’t a matter of remaining silent, but not pissing off the judge by interrupting him and instead awaiting the tactically best moment to make her final pitch. Don’t be so simplistic.

      1. John Barleycorn

        Omega District Court Disco.

        Come on esteemed one no pic means no polyester.

        I know you refuse to give up on the wide collars. But these lecture without “proff”….

        Yet another known kaleidoscope.

        Some, in your living room probably spend the time you write “grading”.

        Sail twords the adjunct tack. All you need to IS?

        You waiting for a solid decade to find ROOM to define the vacuum?

        It’s sooooooooooo. HARD.

        Chicken!

        Princton for interim? I will buy some suits for you if you let Sgt. Schultz
        and the Connecticut exile look for consensus on the cuff links and you post up now and then about how polyester is gonna bring the watch back.

        It’s all legitimate….no reason to get worked up or anything just yet.

          1. John Barleycorn

            What DO ‘you” see?

            Patience is “disco” best get busy lifting the “officers” of of Law

            Best get ready.

            I doubt it will fun….

            Go ahead….

            I think it matters.

            1. SHG Post author

              Since there were so few comments here, I saw no problem letting you blow off a little steam. The only thing I have to add is that I’m not a big fan of cufflinks. French cuffs just seem too fussy to me.

    2. Sgt. Schultz

      “How does a lawyer represent a client when a judge prohibits her from speaking?”

      Kid, if you’re a lawyer, quit immediately and beg the manager at Dairy Barn to give you your old job back. You have no future if that’s what you understood happened in that courtroom. Nobody this stupid is allowed to stand next to a client.

      1. SHG Post author

        Now you’re just blatantly stealing from me. That’s just cheap.

        It occurs to me that part of the problem is that young lawyers don’t have a real grasp of the relative roles of judge and lawyer in the courtroom, and that what he’s seeing is entitlement, that the lawyer is entitled to speak notwithstanding that the judge is telling her to stop interrupting him. Where we see interruption, he sees a judge blocking her entitlement to run the courtroom the way she wants.

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