Sunday, August 28, 2016

Judge Handcuffs Attorney

Early in my service as a judge, I once lamented to another judge about how vociferous some attorneys can be. After venting a little while about how redundant and repetitive a particular argument had been (we are all redundant sometimes), the other judge asked "why do you let them drone on and on?" She then advised "you have to just cut them off, they will talk all day if you let them."

That did not sit well with me. I have had a judge or two interrupt me or cut me off over my years of practice. I never appreciated it. Whether they saw merit or value in what I was saying, I always did. Some people find my analogies and explanations long-winded. I get that. And in the spirit of that criticism, let's get to the point. There is a judge in Nevada that showed his patience (or lack) recently. 

The Review Journal reported this summer that a judge became so frustrated with a Public Defender in his courtroom that he had her handcuffed and placed with other criminal defendants awaiting their turns. Justice of the Peace Conrad Hafen (pictured below) "said he wanted to teach the lawyer about courtroom etiquette." Does locking our hands together, and sitting us in time out, teach us something?

This judge opined “you need to have order in a courtroom,” and "there needs to be proper decorum with attorneys.” And, this scion of judicial temperament decided that he needed to make an impression on this attorney.

Interestingly, most interactions between judges and attorneys are "on the record," so there is usually no dispute about what was said. Though some judges insist on holding "off-the-record discussions putting themselves and the parties at risk. When the record is written (by a court reporter or stenographer present at the time) it is still easy to know "what" was said, but there can be disputes about "how" things were said. It is this distinction that I understand is driving a trend toward video depositions. Some attorneys contend that the "how" of statements is as important as the "what" in some contexts. 

But in Nevada, a three-year public defender (PD) Zhora Bakhtary (pictured below) was arguing to keep a client out of jail. This is what PDs do, and from those I have known over the years they are pretty good at it. During her discourse, the judge interrupted and "told her to 'be quiet.'” As a general rule, it is impolite to interrupt someone who is speaking. But, it does happen. Perhaps it is OK to interrupt if you are a judge? 

As the PD continued to speak, the judge said her name. She continued still, and he asked “do you want to be found in contempt?” That is what we call in this business "a question," though perhaps rhetorical. The PD began to respond (a traditional way in some cultures to react when asked a question). The judge interrupted her response and said “now. Not another word.” 

But the PD did not stop. Reading the story reminded me a bit of the Honorable Chamberlain Haller and Vincent LaGuardia Gambini in My Cousin Vinny.  Remember this exchange (italics direct quotes):

Judge Chamberlain Haller:

The next words out of your mouth better be guilty or not guilty. I don't want to hear commentary, argument, or opinion. If I hear anything other than guilty or not guilty, you'll be in contempt. I don't even want to hear you clear your throat. Now how do your clients plead?

Vinny Gambini:
I think I get the point.

Judge Chamberlain Haller:
No, I don't think you do.

The movie is funny; the judge is obsequious, the lawyer is clueless. But in Nevada, the Judge asks a question. The PD mistakenly interprets that as a cue for a response, and speaks "Judge, you’re,” and is cut off by the judge speaking to the courtroom marshal: “Travis, right now. I’m tired of it. Right now.” The attorney is handcuffed and seated in the jury box, "alongside inmates wearing jail clothing." The judge then "finished hearing the case at hand," and the defendant apparently was unrepresented at that stage. There are some who might argue that this scion of judicial temperament denied this defendant of a little known right in America, the right to counsel. Others might argue that he had counsel, she was just locked up at the time. 

The finder of fact and decider of law (this justice of the peace) that day decided that this defendant should not be represented. Suprisingly, the (now pro se) defendant did not win that day. Judge Hafen sentenced him to six months in jail. Having accomplished his apparent goal of sentencing an effectively unrepresented defendant, the judge then ordered his Marshall to uncuff the attorney, saying “I think she’s learned a lesson.” That is likely true from any perspective, but perhaps there would be debate as to what that lesson was?

The judge later agreed to an interview with the press. He defended his actions and described his frustration with this PD's courtroom decorum. He complained that she has "continue(d) to talk over me or interrupt me after she's already made her argument." He lamented that “once an argument is made, then you have to allow the judge to respond." This "respond" idea is strangely similar somehow to the tradition in some cultures, described above, where someone responds when a question is asked. 

Apparently, Judge Hafen's action was somewhat rare. Clark County Public Defender Phil Kohn "said that in 12 years running his office none of his lawyers has been handcuffed in a courtroom." Well, there is a first time for everything, I guess. He also noted that no judge has ever complained to his office regarding Ms. Bakhtary's decorum or otherwise. Mr. Kohn stated that he does not foresee continuing issues or problems between the judge and PD. Mr. Kohn said that he considers the situation "behind us.” He did however question why the audio and visual recording equipment in the courtroom was not in use. He lamented that he would have like to hear the statements, “not just what words were spoken, but how they were spoken.”

The judge explained that he prefers transcripts from an "official court reporter." He says he has never used the cameras or recorders provided for him in the courtroom. Is there a reason that a judge prefers no record of the "how" and instead only a written record of the "what?"

As a side note, I encourage every judge everywhere to utilize audio and/or video recording. I have repeatedly listened to recordings that clarified events in a hearing. One that has stuck with me for years occurred soon after I was appointed Deputy Chief. A party complained about a JCC, saying that she "railroaded" the party, would not let the party speak, and would not allow questions. The hearing recording instead memorialized a courteous and kind JCC, a lengthy statement by the party, and no less than 4 times the judge said "do you have any questions you want to ask me?" For good judges, recordings are a positive tool to memorialize what occurs and what does not. Recordings document the "how" and the "what."

After the initial article, the Journal ran a follow-up story the next day. PD Bakhtary said that she was “not trying to argue with the court,” but was "just trying to calm the situation down." She says that she "was never allowed to speak. I was never given the opportunity to respond to his question." While the judge had decided she had made her point, and that she had said enough, she contends she never had the opportunity to speak. Worse, he asked questions, to which she could not respond. She apparently misinterpreted his question as inviting response or reaction. She apparently misunderstood the process and thought her client's position should be stated before he went to jail for six months.

In a written response for comment, Ms. Bakhtary said that “every individual who goes through our criminal justice system has a constitutional right to effective assistance of counsel." Well, all except the one that got six months while his attorney was handcuffed in the jury box. She added that "it is a frightening day when a lawyer is locked up for fighting on behalf of her clients and their rights." She explained that her motivation that day was that she "simply wanted the Court to listen to my argument and consider it before remanding my client for a 180 day jail sentence." Now that seems a bit novel, perhaps even radical from some perspectives. She is suggesting that we could listen, and then decide. Who knows, it might actually work.

The Journal notes that Nevada's judicial code states: “a judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”

And in a nutshell, Judge Hafen failed. Whether he was right or wrong in his interpretation of Ms. Bakhtary's decorum, he failed. That is not an indictment or a conviction, but it is a fact. The simple truth is that we all fail occasionally, and draping yourself in a black robe does not inoculate you from that simple truth. Judges are no more perfect than anyone else. 

I recall a bad day once. I asked a question of an attorney and he responded with what he wanted to talk about instead of answering what I asked. I tried again, and again. I became frustrated with the unresponsive answers and I eventually raised my voice. I regretted it immediately. I was embarrassed by the volume of my voice. I finished the hearing, and before concluding the record I apologized to both attorneys for raising my voice. I was wrong that day. I acted inappropriately. I appreciated the attorney's professionalism in accepting my apology, but it bothered me thereafter nonetheless. I failed, and there is no other way to interpret it.  

I try to remember the diagnosis of Black Robe Disease. It is a dangerous disease. There is no known inoculation or vaccination. Fortunately, there is a cure. Once a judge is infected, there is every probability that the disease will grow and spread. Bad judges become worse judges. There is not a lawyer in the world who has not met one. But with a simple amputation, removal of the robe itself, the disease can be stopped. While it is not a solution with federal judges, another subject entirely, it is a solution elsewhere.

Maybe a particular judge is just having a bad day. Maybe there is some reason that there is a reaction or overreaction on that day. The best advice, just like the experts recommend for dealing with kids: "Press your lips together and count to 10… or better yet, to 20." I have had occasions in which I decided the best choice was to just adjourn proceedings and leave the hearing room. Regardless of who is having a tough moment or a bad day, attorney, judge, or witness, a pause like that is very often helpful and soothing. But how a judge deals with a failure is the telling fact. When we fail, we acknowledge, we apologize, and we grow. 

I do not have contempt powers. But from what I understand academically of the contempt process, Judge Hafen did not follow accepted procdure to appropriately use contempt powers that day. He overreacted. He denied due process. He prejudiced a criminal defendant. After reflecting on his poor behavior, he doubled-down in the press and defended his overreaction, his deprivation of a defendant's rights, and his poor behavior. He did not recognize his failure. He did not accept it. He did not own it. Whatever its outcome, the State of Nevada should look into the situation and decide if State reaction to his failure, and failure to accept responsibility, is appropriate under the Code of Judicial Conduct.

The State of Nevada owes that to this criminal defendant. It owes it to the Public Defender and Assistant Public Defender. It owes it to this judge. And it owes it to the State of Nevada, whose reputation is now blemished by the behavior and this judge's inability or unwillingness to either comprehend or own his actions. 

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