Katherine Mader spent two decades as a judge in Los Angeles Criminal Court, before retiring early in 2020. Before that she was the LAPD’s first Inspector General, prosecuted two murder-for-hire trials and served as a defense attorney who convinced a jury to spare the life of the Hillside Strangler. In August of this year, Judge Mader published Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America, which best selling author Michael Connelly called: “a perfect book: engrossing and telling at the same time.” The Judge has granted Crime Story permission to excerpt the entirety of her book over the coming months. You can find previous installments of Inside the Robe here. This is Part 5.
Getting to the courthouse early allows me to pedal the recumbent bike in our basement gym before the day begins. After jostling my blood, I always feel invigorated. The commute also is when yesterday’s events flash through my mind.
Should I have sentenced a robber, drug-addicted but a Navyveteran, to the lesser amount of three years in prison instead of five? After all, he threatened the owner of a liquor store with a box cutter from his work at a warehouse, not a knife or gun. Why do some people leave the military more disciplined and law-abiding, and others fall apart? No one mentioned before the sentencing that the blackbearded man with the sad eyes had seen combat. Perhaps he had suffered bouts of PTSD or was living on the streets. That could have made a difference.
Was the police search in a different case legal? Should I have asked the police officer more questions or let the young female defense attorney with the quavering voice keep making a mess of her halting cross-examination? Would I have been accused of bias if I asked too many questions that poked holes in the officer’s testimony? That would have fed my ego but accomplished nothing.
The officer, as well as the defense attorney, would have resented me butting in. And what about my argument with rigid and brittle Cora yesterday over whether a man accused of making a criminal threat should have been put into a drug program or locked up? I can get into only so many arguments with her before I feel lousy all morning. Similar to raising children, I need to let small issues go and focus only on her most annoying or dangerous behavior. I don’t need to smack down every impropriety an attorney commits in court— only the ones that are necessary to preserve my authority or maintain decorum.
I still felt good about my decision yesterday to sentence a mild-mannered, soft-spoken man with an angry face to a drug program. He was on felony probation for making a criminal threat to kill the doctor who was treating him for a psychiatric meltdown in a hospital emergency room.
I reviewed the facts of the crime in the defendant’s court file. He arrived at the hospital by ambulance. Agitated, yelling, and screaming profanities, he made the original threat as several nurses and doctors pushed on his flailing arms and legs, trying to restrain him with cloth straps. Calling 911 himself, the defendant recognized that he couldn’t
control his agitation from his panic attack. “When I get crazy like that, I don’t even know what I’m saying,” the defendant told me in court. His original sentence for making the threat was one year in jail followed by three years of felony probation. After jail, he returned, homeless, to the streets, with no medication, and no improved insight into his addiction.
I like to hear from the defendant’s mouth why he didn’t follow the rules of probation. After permission from his attorney, this defendant said, “Your Honor, I know I did wrong when I missed my court date. I was addicted to Ativan for anxiety. My doctor told me he wasn’t going to prescribe it anymore, and I went nuts with panic attacks. I went to the hospital to get help. I’m sorry for threatening the doctor. When I was released from jail, I had no meds. I started using again.”
Years ago, I, too, was prescribed Ativan for insomnia. I have had problems sleeping since I was a teenager. Sounds can be muffled with earplugs and white noise, but nothing stops my brain from racing when I lie down to sleep. My days speed by so quickly that my brain doesn’t have time to process everything. When I go to bed at night, the entire day’s conversations and cases replay in my head.
My doctor prescribed Ativan for my insomnia, the same drug that the defendant used. It did stop my racing thoughts at night. It also left me with a daily hangover and made me feel lifeless and dull, so I, too, resolved to get off it. That was when I learned from my doctor that even if I stopped taking Ativan gradually, I would experience months of sweats, anxiety, and stomach problems. As my brain withdrew from the Ativan, I was able to work, but ran to and from the bathroom, and constantly forced myself to think more clearly and not become distracted. If the defendant had stopped Ativan all at once, he would have had the same symptoms, but far more severe. Having this in common with the defendant, I felt sympathetic.
I didn’t tell anyone in the courtroom of my special insight into the defendant’s predicament. Judges who are too close to some situations must disqualify themselves. For example, if a friend or close neighbor were charged with even a minor crime such as driving under the influence of alcohol, they could not appear before me. Even if I thought I could be fair, I might unconsciously favor them. It would also not look right to someone on the outside who knew of our relationship.
Yet, I have never heard of a judge disclosing that he or she takes the same medication as a defendant or witness. I can imagine a case where everyone in the courtroom, from the judge to the defendant to the attorneys, uses anti-anxiety medication. Judicial disqualification rules are mostly designed to guard against favoritism, not personality characteristics or race or religion. If I were a black judge stopped unfairly by the police in my youth, I might identify with defendants claiming, “I was only stopped because I was ‘driving while black.’” Judges take classes to identify our own biases—they may or may not affect our decision making.
When Cora first spoke about the case, she argued indignantly, “This defendant failed on probation. He should be sent to prison. We can’t have someone constantly using drugs and then threatening doctors in the emergency room.” My stomach always tightens when a prosecutor demands harsh punishment before hearing a full statement of the facts.
Thank goodness, after Cora heard the defendant tell of his panic attacks and learned that he was released from jail without medication, she adjusted her position and offered him a residential drug program. Too often, prosecutors express strong opinions without considering the human element. A prosecutor might say, “I’m offering twenty years in prison. Take it or leave it. It’s on the table today. Tomorrow the offer will be twenty-five years.”
Many attorneys, especially prosecutors, have never glimpsed the inside of a jail or prison. How can these offers be negotiated without attorneys experiencing the crowded, noisy, and smelly incubators for disease where prisoners reside? Deciding whether someone should be locked up or given a drug program is a critical tightrope that I walk every day.
Politicians often voice strong views that judges must “follow the law.” What law should I follow to decide whether someone should receive jail time or probation for drug offenses? No law book will give me the answer. My common sense is a product of my upbringing, incidents in my life, and my belief or lack of it in rehabilitation.
Law professor Edward Latessa calls this decision process for judges “watermelon thumping.” “While some might be adept at choosing a ripe watermelon simply by thumping on it, others may succeed only some of the time. Some judges who have been doing it for a long time are good watermelon thumpers. New people to the bench are not good watermelon thumpers.” It’s scary to think that some judges believe they can make the right decision between jail and probation by the equivalent of thumping a watermelon.
Just this morning I read of two conservative presidential candidates discussing their children’s addiction issues. Before drug addiction hit their families, they expressed the view that drug addicts should face harsh sentences. Now they think drug addiction should be treated as a disease.