A man who received a six-month jail term while his lawyer was handcuffed in court was released on his own recognizance Wednesday pending an appeal of his sentence.
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.”
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.
Prosecutors have said Bakhtary was interrupting Hafen after he already had made his decision to send Fernandez to jail.
Chief Deputy District Attorney Nell Christensen told Bare “nothing substantive happened” while Bakhtary was in handcuffs.
“There was nothing else that would happen where a lawyer would have a role in changing what the judge was going to do,” the prosecutor said.
Before being restrained, Bakhtary tried to argue that Fernandez, 29, should not be jailed, but Hafen told her to “be quiet.”
After Bakhtary proceeded to interject, Hafen ordered a court marshal to place her in handcuffs.
Bare said the proceedings should have stopped at that point.
Instead, Hafen turned to the defendant. Bare read transcripts from the hearing, emphasizing the 18 times that Hafen used the words “you,” “your” or “you’re” as he addressed Fernandez directly.
“After I told you you had to stay out of trouble, you picked up another petit larceny charge,” Hafen told Fernandez while Bakhtary was handcuffed, according to the transcripts. “So you’re out in the community on a suspended jail sentence in this case, and you’re committing more crime.”
Bare suggested Bakhtary would have been sent to jail if she had tried to speak again during the sentencing.
“God only knows what could have been if Ms. Bakhtary wanted to (speak up),” Bare said. “But my guess is she would have left the room she was in and headed somewhere else.”
Hafen ordered Bakhtary released from the handcuffs after about three minutes, then declared that she had “learned a lesson.”
The Las Vegas justice of the peace, who could not be reached for comment for this story, lost his bid for re-election in Tuesday’s primary election against longtime defense lawyer Amy Chelini.
Bare, who did not rule on Fernandez’s appeal, said Hafen may have had “every reason in the world” to send the defendant to jail.
Fernandez had admitted stealing 15 pieces of clothing from the Macy’s department store at Fashion Show mall in October. In March, he was cited in another larceny case, and prosecutors said that was a violation of his release.
Bare is expected to hear arguments next month on the appeal of Fernandez’s sentence.
The judge prohibited Fernandez, who did not attend Wednesday’s hearing, from entering any retail stores while awaiting the results of his appeal.
Hafen wrote in court documents that Bakhtary displayed “disorderly, contemptuous or insolent behavior” and that he had “asked defense counsel on numerous times/occasions to not interrupt” him while he was issuing his decision.
Bakhtary has said that she was not trying to argue with the judge and “did not act unprofessionally.”
“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 urepresented defendant being spoken to in meaningful aspects of the case, specifically the sentence, directly by the judge.”
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