"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, May 28, 2016

Nebraska Federal Judge Richard Kopf and New York criminal defense attorney Scott Greenfield bash the Nevada public defender handcuffed for making an argument for her client

I wrote two blogs so far about the handcuffing of a Nevada public defender #ZohraBakhtary that happened this past Monday, May 23, 2016, here and here.

I mentioned that Ms. Bakhtary received no defense from her boss.

Ms. Bakhtary's boss:

(1) did not complain about judge Conrad Hafen's behavior to disciplinary authorities; 
(2) did not direct filing a motion to vacate Ms. Bakhtary's client's conviction because the judge acted as a prosecutor in the case and shut down - and handcuffed - the defense attorney for trying to put on record the necessary arguments for her client;
(3) did not direct filing of a motion to recuse Judge Hafen from all proceedings where Ms. Bakhtary appears, to protect her and her clients from further abuse and further "lessons" taught by the enraged judge.

Ms. Bakhtary's boss only had a closed-doors conference with the judge and emerged out of it "positive" about the future.

There was no apology to Ms. Bakhtary, and the judge continued to bad-mouth her to the media claiming that he has had problems with her in the previous 6 months (without any transcripts of citations to support those claims) - the claims that attorneys who constantly appear in front of judge Hafen denied, claiming that, on the contrary, Judge Hafen was very "complimentary" about Ms. Bakhtary before this incident and never complained about her.

The Clark County Public Defenders Union of Las Vegas, Nevada put in a defense of Zohra Bakhtary in an undated "letter to the editor" - but not in a complaint against the judge (see court surveillance video, without an audio, here, see the letter of CPDU here).

The letter says that what Judge Hafen did was "wrong".  Not that it was egregious judicial misconduct that should earn the judge discipline and get him off the bench.

The public defenders' union does mention in the letter that "handcuffing an attorney who is merely doing her job to teach her a lesson is simply improper and has never been done in the history of Nevada".

So, Judge Hafen made history - history of judicial misconduct that Nevada judicial authorities are not addressing as yet.

The public defenders' letter also points out that Judge Hafen conveniently switched off audio and video capabilities to prevent creating the actual record of what occurred.

Believe it or not, there are strong supporters of what Judge Hafen did to Zohra Bakhtary and to her client who was left without an attorney at sentencing, and who was sentenced because the judge was pissed with the client's attorney trying to do her job.

Here is one of such blogs supporting Judge Hafen and condemning attorney Zohra Bakhtary.

I just want "heroes" to be known to the public, and especially so because at least one of those condemning Zohra Bakhtary is a criminal defense attorney.

The line in the blog of "Ellie Mystal" is simply - Zohra Bakhtary was told by a judge to shut up and she didn't.  She should blame herself, the judge was right, because the judge said he had problems with Zohra Bakhtary before (no transcripts provided) - and one doesn't question what a judge says.

Blogger Elie Mystal of a prominent legal blog "Above the Law" does not quote the full transcript of proceedings where Zohra Bakhtary was taken into custody and handcuffed.  Here is the full transcript (even though it is highly doubtful the transcript is complete, Judge Hafen switched off audio on purpose, after all, so that transcripts made by court employees dependent for their job security on Judge Hafen could conveniently cook transcripts for him).  Blogger "Elie Mystal" of "Above the Law" just quotes bits and pieces - but thinks that Judge Hafen is right anyway.

Of course, Judge Hafen has a murky history of filing fabricated investigations against political opponents of his boss, a District Attorney, and of humiliating male attorneys he did not like, too - by "teaching them a lesson" for not coming into his presence with a tie.

The lesson being a punishment of their clients by having to pay higher legal fee and, possibly, losing a job because they had to either wait in court until the end of the docket or come on another day - all because their lawyer did not come in court in a tie, as the judge wanted him to.

Of course, the alternative was to accept from the judge a "clip-on" "funky" tie and be publicly humiliated - in order to be able to defend a client in a criminal case:

"When Las Vegas Township Judge Conrad Hafen became a judge in 2011 and noticed some attorneys weren’t wearing ties, he went to a thrift store and picked up a few funky ties from the 1960s and ‘70s along with two children’s clip-on ties. He then gave attorneys who showed up without ties a choice: wear one from his thrift store collection, or have their case heard last or even moved to a different day."

It was readily apparent 3 years ago, when the "funky clip-on tie policy" was introduced by Judge Hafen that Judge Conrad Hafen did not have the right temperament to preside over any cases, and especially over criminal cases, where observation of defendant's constitutional rights and not the attire of defense counsel, should be the the main concern of the court.

The supporter of Judge Hafen "Above The Law" blogger "Elie Mystal" pointed out, in endorsing Judge Hafen's order to handcuff a public defender for making constitutional arguments in support of keeping her client out of jail, that the judge said he had problems with her before.

The judge just said it - and it was enough, no transcripts are required confirming Zohra Bakhtary alleged prior "misbehavior".

The judge just said his behavior is necessary to "teach a public defender a lesson" - and that, Elie Mystal claims, is enough grounds to have her handcuffed.

I saved Elie Mystal's shameful blog post in case the author decides to pull it and claim he never said it.

The author, "Elie Mystal", even twitted his condemnation of Zohra Bakhtary, and that's how I found another supporter of Judge Hafen's handcuffing "teaching techniques" -  New York criminal defense attorney Scott Greenfield, "blawger" at "Simple Justice" and managing editor of "Fault Lines".

I guess, clients of lawyer Scott Greenfield should not expect a vigorous defense from him if the judge shuts him down in the courtroom.

Of course, Mr. Greenfield is a male and, probably, never experienced gender-based shouts of male judges who think that a female attorney comes to the courtroom as a target practice for abuse and humiliation by male judges.

And, of course, you can get some insight about Mr. Greenfield's general disrespect to public defenders - or anyone giving poor people free legal advice - from his own statement on his own law blog "Simple Justice":

All he had to say is that nothing in the blog is legal advice.  Period.  Why did he have to go further and bash people for seeking or giving free legal advice?

You can say from these statements that Mr. Greenfield is the champion of the poor - those people who are mainly targeted by the criminal justice system.

A good criminal defense attorney, no doubt.  

Mr. Greenfield's clients will not have to worry about Mr. Greenfield being handcuffed in the courtroom - he will, apparently, never raise a word against a judge committing misconduct in the courtroom.

Mr. Greenfield actually dared to call Zohra Bakhtary's attempts to get a word in edgewise for her client while former prosecutor Judge Conrad Hafen ran roughshod right over her and acted as a prosecutor in the case a "pissing match" with the judge and ineffective representation of client.

Here is what criminal defense attorney Scott Greenfield wrote about the handcuffing episode of a criminal defense attorney for the indigent.

That, essentially, Ms. Bakhtary, a young attorney, ran away with her passion for the client, and failed to provide an effective defense for her client.  And, attorneys who do that have no place in the courtroom.  And, even if Judge Hafen was a jerk, Ms. Bakhtary had to invent ways of handling a judge-jerk to provide an effective defense for her client.

From one male jerk Scott Greenfield about another male jerk judge Conrad Hafen - sounds right.

Of course, Scott Greenfield, in calling Zohra Bakhtary essentially incompetent, failed to mention that her own boss calls her intelligent, effective and well prepared, and that Zohra Bakhtary is actually a Soros Criminal Justice Fellow - an honor bestowed only on very capable lawyers.

Nor did Scott Greenfield refer to a full transcript - same as Elie Mystal, he relies on bits and pieces.

Yet, the only "practical advice" that can be discerned from the piece is:

1) if you see a judge who is a jerk and biased against you and your client, "deal with it" to provide "effective assistance of counsel" - yet, where you have a control freak jerk judge like Hafen, there is no way of "dealing with it" short of disqualification of the judge from the cases, or from the bench.

If a criminal defense attorney is shut down and prevented from making the record for his client, so that the client will not be able to use it on appeal, the only thing that an attorney can do to protect her client's rights is - (1) move to recuse a judge which attorneys very rarely do and which Zohra Bakhtary did not do, and it is very possible that she was under orders from her boss not to make motions to recuse; and/or (2) try to make the record for her client anyway, which is what Zohra Bakhtary tried to do.

Nothing like blaming the victim.

Calling a female criminal defense attorney ineffective and incompetent because she "caused" her own abuse and "caused" illegal sentence without counsel of her client - is the ultimate disqualification for a criminal defense attorney, in my opinion.

Of course, we never know, maybe brown-nosing jerk-judges is attorney Scott Greenfield's tactic of winning cases.  Efficiency over passion, you know.

In comments, more "wisdoms" on effective representation of counsel were revealed.

Such as this:  since Zohra Bakhtary was not an "older" "statesmen lawyer", she should have understood it an acted accordingly, even though the same behavior from an "older attorney" who "earned respect" would not have been treated as contempt of court.

So, a public defender must earn a "seniority right" to make constitutional arguments on behalf of a client?

Good grief.

And, there is a comment indicating that it is ineffective to try to put in arguments for the record when the judge keeps shutting you down because it will still be reflected as "inaudible" in the transcript.

It may be so, but why did Judge Hafen turn off the audio and video recording - and shut down the defense counsel?  Wouldn't the vidoe and audio recording help the stenographer prepare a true transcripts of what was said.

And wouldn't the appellate court then be able to determine, without a transcript, just from observing the video and hearing the audio what really happened?

Wasn't filibustering the appeal and preventing Ms. Bakhtary from making the record on appeal part of Judge Hafen's efforts?

And, there was a comment that what happened was a matter of ego for Judge Hafen because Attorney Zohra Bakhtary made that argument not in chambers, but in an open hearing.

But, sentencing IS an open hearing, and Ms. Bakhtary's client was entitled to his attorney making a record on his behalf.

Moreover, Ms. Bakhtary did not yell, did not use profanities and did not even criticize the judge - she just wanted to put in arguments on behalf of her client.  And was handcuffed for the effort.

There was a comment that pointed out that, in the absence of an audio recording, it is impossible to verify whether the attorney was really talking over a judge or coincidentally talked at the same time as the judge was trying to interrupt her - and was simply finishing her sentence.  The transcript would naturally be more beneficial to a judge who employs the stenographer, that's why the audio (that Judge Hafen shut off) would have been the a better source to assess what occurred.

And, when a commentator points out that judges and attorneys are not equal, so the attorney must shut up when a judge tells him so, this is what the commentator "Alex Stalker", who says he is a public defender but is obviously afraid to reveal his real name, says:

And that's the jist of it.

The judge asked a question, the attorney is answering it, and the judge cuts her off in answering not the way the judge liked.

The judge is calling a female attorney by her first name, while she is calling him "judge" and not "Conrad", by HIS first name.

The exchange reeks of disrespect of a judge of the attorney - under such circumstances the judge should have stepped down.

And this is a prominent federal judge from Nebraska chiming in - in support of Judge Conrad Hafen:

Here is Judge Kopf, the author of not one, not two, but THREE reasons of why he would execute an innocent, here is my blog about it in English and here is in Russian.

Here are some of Judge Kopf's other outstanding statements:

1)  "grow the f**k up"! - to advocates of people victimized by denying equal rights to marry (that was a month before the U.S. Supreme Court ruled that gay marriage is a constitutional right), see my commenting blog about it here;

2) on the judge's long memory about certain attorneys and inevitable retaliation, see Judge Kopfs' blog here and my commenting blog about it here;

3) do not go against the judge's opinion, or else you will be a "stupid, ignorant son of bitch, dumb bastard" - see the "cranky judge" Kopf's blog here and my comment here:

"4. If you send me a brief knowing that you will lose, but you are hoping to “educate” me, you are, in the words of the greatest of all legal minds, Gene Wilder, one “stupid, ignorant son of bitch, dumb bastard.”" 

Judge Kopf asserts his right as a judge to be cranky, disrespectful, humiliating attorneys - to be a petty tyrant in the courtroom.

4) Judge Kopf, a sitting federal judge, white male, is also a racist and obviously dislikes not only black people, but poor black people - he recently ascribed to the American Constitution Society a motto:  "We love poor black people almost as much as we love puppies and kitties", see my blog about it here.

From that perspective, Judge Kopf's comment about Zohra Bakhtary is totally understandable - it totally fits his beliefs, which, of course are not fitting a judge, but Judge Kopf remains on the bench no matter what he says - dealing with death penalty cases, remember? - of predominantly poor black males, who he would send to be executed even if he knows they are innocent.

Once again, this is the comment of Judge Richard Kopf, of the U.S. District Court of the District of Nebraska, about handcuffing of public defender Zohra Bakhtary by Nevada state judge Conrad Hafen:

Judge Kopf accuses public defender Zohra Bakhtary of self-aggrandizing.

Judge Kopf hints that Public Defender Zohra Bakhtary, in trying to make a record for her client was badly prepared and incompetent: 

  • "a hapless young lawyer" who allegedly 
  • did not prepare to answer the judge's question "with some degree of thought instead of mumbling inanities about justice and irrelevant crap like that".
Great to hear from a judge's mouth that constitutional arguments about liberty for poor criminal defendants are, for a federal judge dealing with death penalty cases, "inanities about justice and irrelevant crap like that".

Judge Kopf also hints that a person with authority (a professor, a judge) is always right and the person criticizing the authority is "a jerk plus an asshole. Yep. That's the ticket!" - Judge Kopf's words, not mine.

All those words - for simply making a constitutional argument on behalf of poor criminal defendants.

From a federal judge whose job is to protect federal constitutional rights of people.


By the way, Judge Kopf himself has ordered practices in criminal jury cases which are completely unconstitutional, while they exist since 2009 (for 7 years so far), and defense attorneys obviously were afraid to challenge them:

Judge Kopf limits time in presenting opening and closing arguments to the jury, prohibits the attorney from moving around the courtroom during the attorney's speech, which may help the attorney get the jury out of boredom and get their attention.

Moreover, Judge Kopf authorizes his court clerk to cut off the opening or closing statement which is longer than the set time limits - while in a serious criminal case recitation of the evidence alone may take longer than the set arbitrary time limits.

All of those time-limits are introduced in 2009, and Judge Kopf admitted in his blog that he is being treated for several years for cancer.

To accommodate judge's health problems, a rule is introduced cutting short attorney speech to the jury, so that the judge would spend less time in the courtroom?

Judge Kopf also prohibits objections on record during criminal jury trials:

Judge Kopf only allows objections to be done at "bench conferences" which he can decide whether to grant or not.

The most common objection during the trial is to hearsay.  It is a due process problem and a 6th Amendment confrontation problem to convict a person of a crime based on statement of a person who did not testify in court, that's what hearsay is about.

Yet, Judge Kopf does not allow "speaking objections" during jury trials - obviously, also in death-penalty cases.  The State of Nebraska abolished death penalty, but Judge Kopf is sitting in federal court in Nebraska, and the feds did not eliminate death penalty for federal crimes.

Judge Kopf's criminal jury practices do not have an exclusion for death penalty cases.

Federal judges like Judge Kopf do not have authority for legislating, policy-making, and that's exactly what he does with his "criminal jury practices" - while the Chief Judge of the court obviously approves, and the defense bar is afraid for their licenses, and for retaliation against their clients, to raise their voices against such practices.

By the way, preventing the jury and the public from observing objections being made can be also a tactic of the old and ailing Judge Kopf, to prevent the public from seeing that the judge cannot adequately and promptly react to objections.

Judge Kopf's "bench conferences" are also recorded on demand only - while all meaningful portions of criminal proceedings, and objections are certainly a meaningful portion - must be done on record.

Objections in a criminal trial are usually made within a split-second time, and are deemed waived if not made just as the offending evidence (hearsay, violating the best evidence rule etc.) is being introduced.  Asking for a court conference after the fact is not an adequate remedy here.

So, Judge Richard Kopf who eliminated objections in his courtroom as a matter of policy and considers constitutional arguments as "inanities" and "crap", supports Judge Conrad Hafen's "teaching court decorum" tactics.

Handcuffing a beautiful female public defender for a constitutional argument.  An inanity, of course.

I would like to end on a positive note though.

The cavemen's bashing the victim in this case, and accusing public defender Zohra Bakhtary of doing a poor job for her client for actually trying to do her job for her client and being handcuffed for it by caveman judge - is in the minority.

The majority, including the press, is supporting Zohra Bakhtary.

I encourage my readers to read the entirety of the "Dear Conrad" open letter of the National Defenders' Association to Judge Hafen that lacks any deference to the caveman judge which the press, Zohra Bakhtary's boss and even the letter-to-the-editor of the Clark County Defenders' Union displayed.

It calls judge Conrad Hafen out as a rude bully and tyrant.

One point on which I disagree with the letter though is the ending.

What needs to be done is not "stretching out our necks" to be cut, like Cicero did, but remaining alive and demanding to take cavemen judges off the bench.

Like Judge Conrad Hafen.

Like Judge Richard Kopf.

I will continue to monitor this case and report whether Judge Conrad Hafen is going to be disciplined in any way.

Stay tuned.


  1. Dear Admin,
    This post is fully informative. I am pleased to tell about this blog that it is very nice and interesting.
    Arkansas Court Reporter

  2. Then I think you would be very interested in the Judicial Misconduct case filed against Judge Kopf in the 8th Circuit, Case # 17-9548. Conspiracy to hide substantive exculpatory evidence from jury, expert witness and defendant.