Team Crime Story,
We are having some technical difficulties with the site this weekend, so rather than recap last week’s developments at Crime Story, we have decided to offer you a special opportunity.
If you read these newsletters, you know that Judge Katherine Mader (Ret.) has granted Crime Story permission to excerpt the entirety of her book Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America over the coming months. Judge 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. Best selling author Michael Connelly called Inside the Robe, “a perfect book: engrossing and telling at the same time.”
And so here is today’s treat for our newsletter readers. Below, we present the entirety of the six installments of Inside the Robe that we have already published at CrimeStory.com. If you want to read more of Judge Mader’s book, you can find a link to the Amazon page — where you can buy the book — at the bottom of this extended excerpt. We will also continue to excerpt Inside the Robe next week and then again at the beginning of next year.
Thanks again for checking in and we will be back next weekend with our regular recap of the week’s work.
Kary Antholis
Editor/Publisher
Crime Story Media, LLC
INSIDE
THE
ROBE
A JUDGE’S CANDID TALE OF CRIMINAL JUSTICE IN AMERICA
JUDGE KATHERINE MADER (Ret.)
Author’s NoteTwenty years ago, when I first became a judge, I looked for any book that would help me do my job. Not a book about the nuts and bolts of the law, or a stodgy autobiography describing famous cases a judge presided over, but the human aspects of judging. What does it feel like to transition from attorney to judge?How do I get used to my friends treating me differently? Is judging just about finding the correct law or are there personal or political aspects that come into play? What if I mistakenly release someone who drives drunk again and kills someone? How can a judge avoid getting into trouble? I couldn’t find any book that answered these questions.
I have always been a fan of insider stories such as Anthony Bourdain’s expos. of the restaurant industry in Kitchen Confidential. My favorite explores the potential cognitive errors of doctors in How Doctors Think by Dr. Jerome Groopman. The tell-all genre goes far back, to the notable Ball Four in 1970 by Jim Bouton, a true “inside baseball” reveal, laying bare that sport. I am a very curious person and peering behind closed doors has always fed my nosy nature.
Avidly searching for a judging book that met my criteria, but never finding it, I decided to write one myself. This is no academic treatise; my intention is to help the general reader pierce the veil of mystery that hangs over the judging profession. To illustrate this murky subject, I’ve described one year on the bench, using anecdotes from my courtroom as well as my life. Yes, judges follow the law as best we can, but as people we are subject to the same frailties, mental errors, and close-mindedness as everyone else.
I hope that you, my reader, come away from this book with a better understanding of our criminal justice system and the judging profession, which is now under attack from so many sides. It’s an imperfect system, but one, I believe, worthy of admiration. Whether you are interested in true crime, crime novels, or are a student of the law, my book was designed for your reading pleasure, and hopefully, illumination.
Katherine Mader, Los Angeles
Fairness is what justice really is.
—Potter Stewart
Preface
1973 “But it’s not fair to lock up my client!” My twenty-something, high-pitched whine bounced off the wood paneling and acoustic ceiling of the Sacramento, California, courtroom. I stood aghast before a judge in my Laura Ashley paisley dress, with T-strap pumps covering my new nylons.
The grouchy, gray-haired floating head on the bench peered disdainfully at me. His pursing thin, mean lips growled, “Young lady, you might have a bar card, but you’ll learn soon that saying ‘It’s not fair’ makes you sound childish and unprofessional. If you want to make an argument to me, do not ever again use the word ‘fair.’”
I left his courtroom shaking, not even considering the impact the judge’s chastisement might have had upon my client, one of my first as a public defender. I don’t remember what my client looked like. I just remember feeling silly and young and ashamed of not learning in law school that the word “fair” was verboten in a courtroom Argument.
Forty-five years later, a black robe adorns my own floating head as I sit on the bench of my felony trial courtroom in downtown Los Angeles. I have conscientiously substituted reasonable and equitable and just for the forbidden word “fair” throughout my career since 1973. I’ve even perched on the bench with my frozen brain thinking, “I just paused mid-sentence because I couldn’t think of a substitute word for ‘fair.’”
Why did I follow the Sacramento judge’s condescending instructions so strictly and for so long? After all, the word “fair” is not an obscenity. Isn’t our entire criminal justice system based upon treating all people fairly? The phrase “fundamental fairness” is one of the highest legal standards in the land. “Fair play” is a phrase epitomizing integrity. Perhaps the word fair reminds legal professionals of toddlers screaming, “It’s not fair,” while performing a tantrum in the middle of a crowded Walmart. Or it is the last refuge of true believers who think that self-righteously claiming something is unfair will magically spring a client from custody? Was the judge years ago assuming that I was a true believer?
Near my home is a small, city-owned cemetery. In this cemetery is a large upright granite marker. It bears a photograph of my Aunt Lea, a tall, beautiful woman in the prime of life, her searing dark eyes, so much like my own, riveting the viewer. In her arms is a naked baby. Along with the picture are the engraved names of Lea, her husband Josef, their three children, and a simple statement of fact: “Murdered in the Holocaust.”
The plot beneath the marker contains no remains, for Aunt Lea, Uncle Josef, and their sons Fritz, Martin, and Simon were probably murdered in Belzec, along with more than 450,000 innocent babies, children, and adults whose only crime was that they were Jews.
Some afternoons, I rest on a nearby granite bench, the sun shimmering and ocean breezes washing over me, gaze at the memorial, and wonder what the lives of my aunt, uncle, and cousins might have been had they survived. What would they think about being memorialized half a world away from their Eastern Europe home by a niece and family whose existence they never contemplated?
In my wood-paneled judicial chambers, a small, framed black-and white portrait of Aunt Lea rests atop a bookcase. The mystery of what happened to my relatives, and the fact that the Nazis eradicated an entire branch of my family, hovers over me. Like many children affected by the Holocaust, I feel a weight of responsibility to live an accomplished life. I need to somehow make up for those five unrealized lives and celebrate their existence at the same time. For many years, I fretted that beyond one photograph, nothing physical existed to prove that Lea’s family had ever walked the earth. That’s why I bought a plot and erected a marker.
The injustice of it all troubles me. I can’t pinpoint how or when my life became propelled by the pursuit of justice, but it must have coincided with my teenage discovery of the fate of my relatives. Aunt Lea was my father’s sister. I wish I would have been mature enough to pry information from him about what happened to her and her family, but I never did. He likely never would have told me because talking about the Holocaust gave him nightmares. For that same reason, I was never allowed to wear black boots, as they reminded my father of the Nazis and tormented his sleep. In memory of Aunt Lea and her family, I have tried to recognize and call out unfairness. Sometimes I have fixed things; other times I failed.
The details of my personal history and personality shouldn’t make a difference to my performance as a judge, right? Justice is purported to be blind. That’s why Lady Justice wears a blindfold. While blind justice is the ideal, I don’t believe it’s the reality. Judges are not created on 3-D printers. We are each creatures of our family backgrounds, schooling, life experiences, and cultural as well as political preferences. “Following the law” can produce wildly different results from judge to judge. Our job requires us to separate our political and personal selves from each decision.
I perform this vital task more successfully on some days than others.
The judging profession remains a mystery to most of the public. It’s a messy, imperfect system but, I believe, worthy of admiration. There is a strong sense of honor and integrity among most of the players. A reverence for the rule of law and fair dealing permeates the process. In my experience, jurors are wise and often selfless with their time. They usually get it right. However, judges, integral to the process, present an enigma to the outside world. Who are the people inside those robes? How did they become judges? Did they have to know someone? Do judges have to be brilliant? Compassionate? Fair?
Come with me behind the scenes of my courthouse for a calendar year. You will see the liveliness, camaraderie, as well as the daily frustrations among my staff, prosecutors, and defense attorneys, the highs and lows of jury trials, and my friendships and relationships with fellow judges.
Fortunately, I have never faced an attorney who whined, “It’s not fair.” Would I respond as dismissively as the judge I faced forty-five years ago? I hope not, but I’m not sure. I rarely hear the word “fair” spoken by attorneys. Perhaps their law school curriculum was more thorough than mine.
The architecture of the central criminal court in downtown Los Angeles, built in 1972 in Soviet cement-block style, is―to be charitable―forgettable. My courthouse is known for water leakage, asbestos problems, overused, slow, malfunctioning and crowded elevators, and the potential to collapse during a very strong earthquake. Yet many Los Angeles County judges jockey for a courtroom in the building, believing it to be the epicenter of the criminal justice universe in Los Angeles. I was one of them. I wanted to be in the center of the action, to demonstrate my abilities, and to work among some of the best judges and advocates in the county. It took me twelve years to land a felony courtroom downtown.
Los Angeles County has thirty-eight courthouses spread throughout its 4,084 square miles. While I tried to convince myself that I had more freedom and serenity in a satellite court fifteen miles from downtown, I always hankered to move here. It felt like home, after my having practiced downtown as a defense attorney and a prosecutor. I wanted to work in the building with the ugly edifice and broken-down amenities.
DTLA (Downtown Los Angeles) is in the midst of gentrification, and while the urine smell of homeless encampments still dots the sidewalks, I spend my lunch hours walking to food trucks, farmers’ markets, bookstores, and bodegas. The plaza behind my building is regularly filled with political and labor demonstrations as well as lunchtime soccer matches. Unlike being a judge in a quiet branch court tucked onto cheap land adjoining freeways, I am surrounded by an expanse of entertaining chaos.
Perks are a staple of a judge’s life. They came as a surprise to me. My parking is directly below my chambers, and an assigned parking space behind security gates waits for me every morning. A wood-paneled elevator whisks me from the parking lot to my eleventh-floor chambers.
Before I became a judge, I didn’t know there were wood-paneled elevators in the building. At first, I felt embarrassed with my posh surroundings, as though I didn’t belong in them. Some judges come from prestigious law firms with plush offices. Government lawyers like me never enjoyed these types of amenities. However, after sixteen years, spacious wood-paneled elevators and a private parking space would be difficult to give up.
My chambers contain a large wooden institutional desk, beige tweed sofa with matching armchairs, and a round conference table with seating for five. Some judges lug their ornate, engraved desks from their former law offices to their chambers, but I had nothing to bring.
My heart quickens as the Los Angeles skyline comes into view each morning. I love working here. There’s something about downtown that can’t be replicated. Our judges’ camaraderie fosters the same communal spirit as media correspondents in a war zone.
Many of the most notorious crimes in Los Angeles were tried in the sixty downtown courtrooms, including the cases of O.J. Simpson and the “Grim Sleeper.” Daily, the courtrooms are filled with trials for gang shootings, robberies, and serious sexual assaults. All judges and staff know that anything can and has happened: a bomb threat, an inmate slashing an attorney with a hidden razor blade, a defendant feigning a heart attack in the middle of a trial, and fights between rival gangs in the courtroom or hallways.
When I transferred here three years ago, many judges were busy trying back-to-back narcotics sales cases, part of a major effort to clean up drug trafficking downtown. I was warned many times that trying such drug cases would become tedious: “Be careful what you wish for.” My colleagues in the branch court each had their personal reasons for staying put. In contrast, I wished to come downtown. I have no regrets.
January
January 4
Wearing a jail-issued yellow shirt, a plump female defendant entered my courtroom, escorted by the bailiff. “Yellow shirts” are inmates classified by jail authorities as having mental health issues. This defendant appeared to understand the proceedings and engaged in dialogue with her appointed defense attorney. On my bench lay one of the manila court files created by court staff for each criminal case.
The defendant was charged with murdering her three-year-old daughter. Rather than being mentally ill, the defendant was developmentally disabled, meaning that she functioned at a low intellectual level. Mentally ill means that someone has a psychiatric illness that may be improved with medication and/or therapy. Developmentally disabled conditions are different and usually correlate with a low IQ, often since birth. Persons can be developmentally disabled to different degrees, with some living in institutions and others living independently and supporting themselves. Developmentally disabled persons are vulnerable to making mistakes that can land themselves and others in trouble. Thus, the need for extra guidance and support.
This developmentally disabled defendant was married and, at the time of her crime, lived in government housing with her husband, also developmentally disabled, their ten-year-old son and three-year old daughter, Emily. A county social worker checked in with them every day to protect the children as well as the parents from harm. But neither the social worker nor any other caregiver was around during the evening hours when the murder occurred.
According to the report prepared by the probation department, Emily refused to go to sleep. The defendant, Emily’s mother, became increasingly frustrated. Finally, she forcefully pushed Emily’s head into her pillow. Emily flailed her arms and legs, fighting for breath, until she went limp. When the defendant realized that she had suffocated her daughter, she worried that people would be angry with her. She tucked Emily into bed as though she were still alive and went to sleep. In the morning, Emily’s father discovered Emily’s body, and the defendant admitted what she had done. She had no prior criminal record.
What was my role as the judge? This case arrived as part of my morning calendar call. During the time slot between 8:30 and 10:30 a.m., I process around a dozen cases, each pending jury trial. The charges can range from robbery to child molestation to murder. The cases are mostly in the pre-trial phase, with separate attorneys waiting in line to ask for continuances or having their clients plead guilty for an arranged settlement.
My courtroom is wood-paneled, with seating for a twelve-person jury on my left. The courtroom has been unaltered for decades, with grease spots on the wooden walls marking the places where jurors’ heads rest as they lean back listening to trials. A wooden railing with a small swinging gate several feet above the gray institutional carpet separates the audience’s church-like pews from a fifteen-foot wooden attorney table. Clad in a deputy county sheriff’s uniform, Julie, my short and compact, brown-haired bailiff, monitors the small jail cell behind the courtroom to my right, and brings out defendants in custody when it’s time to hear their cases.
In his role of controlling the flow of witnesses and attorneys in and out of the courtroom, Michael, my long-standing clerk, sits behind a desk to my right, makes sure both sides are ready to speak to me on each case, confirms with the bailiff that a defendant in custody is ready to come out, and chases down missing attorneys, usually by furiously texting their cell phones. To see me, all of the parties must gaze upward. As Lady Justice, I sit several feet higher than the rest of the courtroom, hoping with my elevated status to gain respect and impress all who enter with my wisdom and intellect.
Around 95 percent of cases in Los Angeles County end up settling before trial, usually by plea bargain. I will be shepherding Emily’s case until it is resolved, which could take a year or more. A murder case can appear on my calendar more than twenty times before it is resolved or tried.
After handling the morning’s cases, the rest of the day is reserved for hearing jury trials.
When I described Emily’s plight to a fellow judge who does not work in the criminal arena, she blanched. “That is the exact reason I left criminal. I can’t handle hearing cases like Emily’s. I don’t see how you do it. I would have nightmares for weeks if my caseload contained similar cases to Emily’s.”
Judges have varied sensitivities and eventually we usually land assignments in courts fitting our personalities. I don’t have a problem compartmentalizing this murder case from the rest of my life. After forty-three years of criminal law, there are still factual scenarios that keep me up at night, but this case is not one of them. I worry more whether I made a correct legal ruling or how to get attorneys to stop fighting with each other, or with me.
As I’ve become more experienced, I react less personally to cases before me. There’s a term for judges becoming too personally involved in a case: “embroilment.” I may never learn much more about Emily’s situation than what I’ve already described. The social welfare system will make all the decisions about the other child in the home and what should happen to the family. I am never notified. While Emily’s death is an emotional tragedy, judges play only a small part in its unveiling. When and if it is ready for a jury trial, I may not be assigned to try Emily’s case. That’s fine with me. I don’t relish hearing more details about the death of a child. I don’t want to see the pictures, either.
I also hate watching blood and gore on a television screen, except a screen in my courtroom flashing photographs relating to a trial. I close my eyes during violent scenes at the movies. Yet, as one of the defense attorneys in the “Hillside Strangler” trial in the early 1980s, I grew accustomed to analyzing intricacies of strangulation marks on the necks of female murder victims. Last year, I conducted a murder trial in which a decomposed head and other body parts were scattered in a local park and photos of them were displayed on a giant screen in my court during the jury trial. The defendant’s computer search history even included “How to butcher a human carcass for human consumption.” I manage such horrific evidence impassively, but please don’t ask me to watch Game of Thrones.
These distinctions don’t make sense. A psychologist friend suggested, “When you watch suspenseful movies or TV shows, you have no control over the action. The music and tension make you feel anxious and apprehensive. In your courtroom, you control it all. You decide when to display the gore. You’ve already seen it at your own pace. You decide how long a severed head stays on the screen. That makes it more palatable.” Perhaps, but I think it has more to do with an ability to compartmentalize.
I do sometimes react emotionally to a case. Recently, I sentenced a reckless drunk driving defendant to life in prison for crossing over the center line, causing a head-on collision that killed a young woman. According to her devastated husband of one month: “Five minutes before the crash my wife received a call from a producer congratulating her upon getting her first feature film job as a costume designer. That was her life’s dream, and minutes later she was dead.” As I listened to the mourning husband describe calling his wife’s parents to inform them of their daughter’s violent and senseless death, I felt a lump in my throat. My heart went out to this family suffering pain and sadness that will endure over their lifetimes.
I’ve wrestled with my own experience of victim impact. For years I have worked alongside crime victims and their families, both as a defense attorney and as a prosecutor. One day, in response to my usual question of jurors, “Has your family ever been affected by violent crime,” a juror said, “I don’t know if this applies, but I have
relatives killed by the Nazis.” While my close relatives were also murdered, I never considered myself linked with the families of crime victims. When I see victim advocates helping relatives of murder victims in court, I still feel that we have nothing in common. My situation feels long ago and from another era.
I know that I would not enjoy presiding in dependency court, making daily decisions about whether to remove abused children from their homes or not. Judges who do that work are stronger and braver than I am. A judge in my assignment hears mysteries that unfold over days or months with only an occasional disturbing photo. Judges in dependency court hear about physically and mentally abused children all day long. That assignment would bother me at night. Those decisions seem more freighted than what degree of murder and what type of punishment fit the smothering of one’s child.
Professionals get acclimatized to extremely violent or sad circumstances if they perform the same acts over and over. Pediatric oncologists at Children’s Hospital visit and console the parents of a dozen dying children every day. Compared to that, presiding over a murder trial seems uncomplicated.
As the year begins, I am both nervous and excited. I am excited because I never know what types of trials will arrive in my court. Will they be murder, fraud, robbery, or something else? I also don’t know which attorneys will arrive along with the trial. Each trial will have a different set of lawyers. Will they get along with each other or will I have to constantly intervene to keep things calm? Will one of them hate judges and constantly bait me? Will one or both attorneys be unnecessarily wordy and put the jury to sleep? Will the defendant be pleasant or hostile, engaged or passive?
I am a little nervous because last year I had problems with Cora, the prosecutor assigned to my court. A prosecutor is also known as a deputy district attorney. These attorneys are employed by the Los Angeles County District Attorney’s Office and their job is to prove that someone has committed a crime and also to seek justice. Deputy public defenders are attorneys employed by the Los Angeles County Public Defender’s Office, and their role is to represent defendants who do not have enough money to hire their own lawyer. Each courtroom has an assigned prosecutor and defense attorney. Ideally, they work together to decide which cases will settle and which will go to trial. I see the attorneys assigned to my court every morning. A different set of attorneys will come to my court for jury trials that begin at 10:30 a.m.
When my assigned attorneys don’t work together smoothly, that tension also affects me. Cora is in her sixties, with long, dyed-black hair, plunging V-neck sweaters, and a scratchy yet assertive voice. She never stops arguing. Cora will object to me giving an unemployed defendant more time to pay thousands of dollars of fines, saying: “It doesn’t matter that he is the only breadwinner in his family and supporting three small children and a wife. He needs to demonstrate he is financially responsible. You need to set a hearing on his finances.” Or, “How can you accept the defendant’s excuse that he didn’t come to court because he was in the hospital? I agree that he doesn’t look well, and that he came to court in a wheelchair. But you are letting this defendant manipulate you.” Cora has been with me for over a year, and there is no end in sight.
I don’t mean to single out only a prosecutor for being difficult. My assigned defense attorneys range from industrious, imaginative, and capable advocates to lazy and hostile zealots. I have had “true believers,” usually young defense attorneys, one step removed from peace earrings and love beads, who vouch for the truthfulness of all their clients, stating such things as: “I believe Jenny when she says she knew nothing about her boyfriend’s gang membership. She may have a gang tattoo from her boyfriend’s gang on her collarbone but it’s only because she loves her boyfriend so much. Just because the ‘government’ claims she’s a gang associate doesn’t make it so. Why are you so quick to believe the ‘government’?” The word “government” is usually said in a loud tone of voice and with a sneer. I have also had defense attorneys who avoid trials at all costs, preferring to settle cases, even if the settlement is not good for their clients. In the trade, we call them “dump trucks.”
January 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.
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-foot long 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 jobas 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.
Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America
Copyright © 2020 Katherine Mader
Reprinted by permission.
You can acquire the entirety of Judge Mader’s Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America here.
