In part 17 of Inside the Robe, Judge Mader offers a searing anecdote of how a prosecutor may use his or her power to disqualify a presiding judge as a tool of vindictiveness, aggression and intimidation.


January 26

Today I learned that an attorney from a neighboring courthouse disqualified me from hearing her jury trial. Ouch. I guessed she asked Rob, the DA supervisor on my floor, about me, and he said, “Don’t go there.” As a young prosecutor, she obeyed. I didn’t especially want to preside over the trial because it was an everyday sale of drugs and sounded boring. But I felt irked at being disqualified by someone who didn’t know me.

Other judges claim that being disqualified just washes over them. “Just have at it,” they claim is their honest attitude. If it’s true, I am an anomaly. I hate being disqualified. It’s like being told by someone, “I don’t like you. I don’t trust that you will treat my side fairly.”

When one side disqualifies me, I rocket back to 1959, and not being invited to Marcia Zeigler’s sixth-grade graduation party. Later I was told I wasn’t invited because I didn’t flirt enough with the boys. The other girls said I was too good friends with the boys to kiss them while playing “spin the bottle.” That experience influences me today to invite everyone who might feel left out to parties at my house.

A document to disqualify a judge is signed by an attorney under penalty of perjury. The attorney swears under oath that he or she would not be able to get a fair trial by the judge. No problem if an attorney sincerely believes this. But if the disqualification is done by an attorney who has no personal experience with me, the phrase “under penalty of perjury” becomes meaningless.

This young prosecutor will return to her branch court and say, “I was sent to a ‘Judge Mader,’ but Rob told me to disqualify her.” The new prosecutor’s colleagues will then pre-judge me. Those prosecutors will transfer downtown and have questions in their minds about whether they should appear in my court. I’m using myself as an example, but the same holds true for other judges as well.

Budding prosecutors are at the mercy of their supervisors. There is a lot of rivalry for promotions. Supervisors write the evaluations that either boost or kill a career. Prosecutors have said to me, “Finally, I’m high enough in the office to ignore Rob. I make up my own mind about judges. I don’t care what a supervisor says anymore.”

The reader may be asking, “What have I done to earn the ill will of the District Attorney supervisor for my floor?” Perhaps it was rightfully earned. You be the judge.

Prosecutors wanted state prison for a young man with a minor record. The young defendant with straight, stringy hair and a pale, thin face that made me think of a meth addict, entered a stranger’s house along with his girlfriend, grabbed car keys hanging from a hook in the kitchen, jumped into the stranger’s Toyota, and drove away. I noticed the defendant’s shabbily dressed and glum-faced mother in the audience and received permission from the defendant’s attorney to ask her some questions.

“Does your son have mental health issues or a drug habit?” “Actually, yes. I put him in a live-in drug place last year. I don’t know what to do with him anymore. I’m so worried. Nothing works.”

The defendant had already served time in jail for one year. The prosecutor wanted two years in state prison. After prison, what would happen? Whether rehabilitation happens in prison is a crapshoot, depending upon the type of prison, programs available, and whether a defendant is confined to his cell. After prison, the defendant would likely return to his mother’s house and his drug habit.

I offered something different. If the defendant agreed, I would hold six years of prison over his head. The defendant would spend a little more time in jail, then go to a drug rehabilitation facility where he would live for one year and get counseling. If he returned to drugs, I would send him to state prison for six years.

The defense attorney asked, “Can I please have time to explain this possible sentence to my client over the lunch hour? It’s a lot for him to understand.” Defense attorneys hate it when clients jump at having state prison time hanging over them with the hope of getting out of jail sooner. It’s too easy for young, impulsive defendants to break the rules and end up with the six years in state prison.

Cora, the prosecutor assigned to my court, came back from the lunch hour accompanied by Rob, her supervisor, most likely for moral support. He sat scowling at me. The defense attorney said, “My client is ready to accept your offer, Your Honor. Let’s take the plea.” At this point Cora jumped from her seat, holding high a disqualification paper, and rushed to my clerk so the paper could be date-stamped. “We are disqualifying Judge Mader and requesting to go to another court.”

Having my regular prosecutor disqualify me on a case was unusual. Once the disqualification document is filed, I’m not allowed to have anything more to do with that case. In forty-two years of practicing criminal law, I have never seen another instance of a disqualification filed between the time a judge makes an offer, and its acceptance or rejection by a defense attorney. I transferred the case to another court.

The next day, Cora whined: “This wasn’t my idea, Your Honor. It was my supervisor’s. I would never have done such a thing.” I felt a bit sorry for her, while disliking her at the same time. Rob may have told her to disqualify me. Supervisors sit in their offices and don’t have to face the same judge they disqualified day after day in court.

The defense attorney, understandably, was incensed, as his client was ready to accept my offer. Through our computer system, I followed the case. It ultimately was settled for the same terms I offered. As the new judge accepted the sentence, I heard that Rob, the supervising prosecutor, had watched from the audience, trying to

intimidate the judge. This is fairly common. Supervisors of prosecutors and defense attorneys often accompany their deputies, especially younger ones, into courtrooms, and try to stare down judges on close issues.

When I was a newer judge, it happened to me. I felt nervous. The police officer would testify, “The motorist ran the red light right in front of me.” Then the motorist would claim, “I wasn’t even at that intersection. I have a witness here to testify that this officer was several blocks away from where he claims he saw me. He came out of an alley and there was no red light in sight.”

Both parties could not have been telling the truth. If both sides were believable, the prosecution did not prove the case beyond a reasonable doubt, and I should find the defendant “Not guilty.” But to the right of the bench sat a bank of fifteen police officers staring at me, waiting to testify in their own traffic cases. Was I going to find that a police officer just like them was not telling the truth?

It’s possible to diplomatically find a motorist “not guilty” and not say anyone is lying. I just need to say that the case wasn’t proven beyond a reasonable doubt. Both sides are credible. It’s tricky. Especially while being stared at.

After this episode with “Rob” ended and the case was over, Cora suggested that I meet with Rob and try to iron out our differences. The meeting was a disaster. Rob, an older, wanna-be wrangler with a large metal belt buckle covering his broad paunch, and well-worn brown cowboy boots peeking from under the pants legs of his formal gray suit, began by chastising me.

“I don’t appreciate you asking the defendant’s mother questions and bringing out the defendant’s drug history. You are acting like an advocate.”

I gave it back to him. “Perhaps if your prosecutor or the defense attorney had done their job, I would have learned about the defendant’s drug problem. If I am going to sentence someone, I need to know everything relevant about them.”

He came right back at me: “If I hear that you are going to keep offering suspended prison sentences to young defendants who my office determines should go to prison, I will instruct my deputies to disqualify you from all of our cases.”

“That sounds like a threat.”

He mumbled a bit and I went on: “Please leave my chambers. I don’t want to be threatened by you.” He stomped out.

Any entity has overseers of high rank who are out of step with current attitudes but are difficult to dislodge from their perches. This old buzzard was assigned to watch over and “train” the dozen younger prosecutors on my floor, which unfortunately is not considered an impactful supervisory position. Lots of people were waiting for him to retire, including me.

I don’t believe Rob’s position came from a guiding philosophical principle. He was all about bluster and control. At the time, I would not have guessed that Rob’s attitude was connected to my being female, but a year later he was arrested for domestic violence toward his wife. Although the criminal case was not pursued, he was thankfully transferred to another assignment.