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.

January 5 – Part 2

This morning’s calendar also included a sixty-six-year-old man with a lengthy history of violent assaults and other serious crimes. Having spent decades in prison, he appeared much older, and now faced forty-six years to life for stabbing an acquaintance. The victim spent ten days in the hospital. The defendant had already had one jury trial, but it resulted in a hung jury, meaning all twelve jurors did not agree to a verdict. After a hung jury, the prosecution can choose to re-try the same case.

I had a private conversation with both attorneys. According to the experienced and exasperated defense attorney’s evaluation, “Only one juror held out for not guilty. Eleven other jurors voted guilty. My client claims he stabbed the victim in self-defense, but he stabbed him in the back. That’s hard to sell as self-defense. I’m desperate to get my client to take the prosecution’s offer of ten years but he won’t do it. I know he’ll be convicted if he goes to trial again.”

The trial prosecutor, a warm, humane older man, said, “Look, I can’t go any lower than ten years. He’s sixty-six years old. This offer will let him out someday. If he loses at trial, he will get much more time. Maybe even life in prison.”

This prosecutor was formerly the mayor of a small city as well as a former police officer. He is a skilled communicator with a knack for talking to defendants. With the defendant’s attorney’s consent, the prosecutor walked over to the defendant’s side of the fifteen-footlong counsel table and squatted down. He put his hand on the defendant’s shoulder and whispered to him.

It’s hard to overstate the importance of compassion, concern, even human touching, to someone who has been locked up most of their life. This defendant may not have been touched in a kind way by a human being for decades.

Ultimately the defendant agreed to take the plea, to everyone’s relief. “I was just holding out to see if the offer would go down,” he said. “I’m ready now.” The prosecutor again knelt beside the defendant after the plea and reassured him that he had done the right thing. He handed the defendant his business card. I’ve seen the same prosecutor commiserate with weeping family members after their relative was sent to prison.

If only there were more prosecutors like him. He has been in the DA’s office for more than twenty-five years and isn’t afraid to show his human side. No one can criticize him for being too compassionate or not fitting the role of a prosecutor. He was at the top step of his pay grade and not worried about impressing supervisors to get a promotion.

If a sixty-six-year-old man wants to risk spending the rest of his life in prison by facing a trial in which he will likely be found guilty, he should be able to make that decision. But what if a defendant is not educated, is suspicious of the system, or doesn’t recognize what is in his best interest?

Judges walk a fine line. Though it’s important that a defendant does what’s best for himself, it’s also important for a judge to avoid pushing a defendant to accept a plea bargain that he doesn’t want. Many defendants later regret that they pleaded guilty and try to withdraw their plea. Defendants may accuse a judge of being too forceful in encouraging them to accept a plea bargain.

Why should I put myself on the line to persuade a stubborn, ill-informed man what to do? I won’t be doing the time. With everyone agreeing that this was the best way for the defendant to resolve his case, I, too, stepped into the fray. Judges are supposed to be neutral. Yet we are also supposed to see that justice is done in our courtroom.

My career as a prosecutor almost derailed before it began for acting as an advocate for a legal secretary connected to my husband. My new boss, a career prosecutor, rescued me from a disciplinary proceeding. One evening, my husband Norman, an attorney, excitedly recounted how his client’s secretary, with no criminal record, was driving onto prison property to visit her incarcerated son. A required search of her trunk uncovered an illegal assault rifle. She claimed she had no idea it was there, but she was arrested, nonetheless. Springing into action, I called the bail officer, a sheriff’s official assigned to take calls from law enforcement officials after hours. “Hello, I’m Katherine Mader, a prosecutor. Someone I know is in custody and should be released without bail. She has a good job as a legal secretary and is an honest woman who was visiting her wayward son in prison.”

What naive and impulsive behavior! I didn’t even know the woman whom I vouched for. The bail officer made a complaint against me. He was right. If my boss hadn’t recognized that my defense instincts kicked in and I was instinctively trying to help, my prosecutorial career would have been over just as it started.

Defendants sometimes need an extra push and some explanation to understand the potentially disastrous results of their poor decision-making skills. A judge’s push to “take the deal” can carry more weight than any attorney’s urging. That’s why judges are ethically not allowed to say to defendants: “You’re going to lose at trial.” Or, “You should really take this deal, or you’ll be sorry later.” Or, “This deal is fantastic.”

Those words, coming from an authority figure, have been found by higher courts to be coercive because they overcome the free will of the defendants. Defendants may later be allowed to withdraw their guilty pleas and start the process over. I am always deliberate in the words I choose in explaining the advantages of a plea bargain to a defendant. Everything is taken down by a court reporter and can be dissected later for evidence of coercion.

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