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 18.
Not long after our first incident, Rob and I had another encounter. The defendant, a dissipated sixty-seven-year-old man, painfully thin and limping, arrived in court with his hired attorney. The attorney was of a similar age to his client, sporting a faded blue blazer frayed at the collar. The defendant was charged with growing marijuana in his home as well as grand theft of electricity. Having a marijuana “grow” in one’s home requires lots of electricity. Fluorescent lights need to be kept on, resulting in huge electrical bills. Marijuana growers will slow down the electric meter to avoid alerting power companies to a spike in electrical usage.
According to the defendant’s attorney, “I have all the medical documents for my client, Your Honor. My client has had two separate surgeries for penile cancer. It came back. My client’s stepson convinced him to grow the marijuana to reduce his pain. He wanted to delay another surgery.” He went on, “My client had no idea that his stepson jiggered the electrical box. He was horrified. He repaid the full $3,000 to the utility company right away.” This is important for a court to know. Paying back the victim utility company right away can help someone reduce their punishment.
Most important, the attorney said, “My client is sixty-six years old and has a zero-arrest record. He also has had a green card since he was three. A conviction could cause my client to be deported back to Mexico. He’s spent his whole life here, has a family, job, and has contributed to the community through his church and coaching.” The District Attorney’s Office agreed that the defendant would not have to go to jail.
Cora wanted the defendant to plead guilty to the marijuana charge, and she would dismiss the grand theft. The defense attorney wanted the opposite. Oddly, the immigration consequences are far worse for cultivation of marijuana than for grand theft. The prosecutor wouldn’t budge.
The defense attorney tried to get me to intervene. “I don’t understand. My client has led a law-abiding life for sixty-six years. He said he was guilty from the beginning. He paid back the money for the electricity right away. He is seriously ill. Why are they insisting on a charge that could result in my client having to leave the only country he has known?”
I sided strongly with the defense. Perhaps it was my closeness in age or my compassion for his medical condition or knowing that the marijuana laws were in flux. “Why don’t you try to speak with the prosecutor’s supervisor,” I suggested. The defense attorney returned a few days later with a sad expression. “I tried to talk to Rob, but he was hostile. He even questioned why I had come to see him.” Rob didn’t think it was his job to discuss settlements with defense attorneys, was often angry at them for disturbing him in his office, and sometimes even made the offer worse after a lawyer’s visit.
“Unfortunately, I can’t help you. The only thing I can suggest is that you go over the head of the supervisor and speak with a higher supervisor or go to trial.” I’m not sure many judges would have suggested going over Rob’s head. It seemed logical to me at the time, similar to going up the chain to get a just result from an airline. Again, the attorney followed my advice, got nowhere with the higher supervisor, and returned, dejected, to my court. The only thing left was for him to take the case to trial.
A few days later, a young prosecutor assigned to try the case came by our courtroom. His face was flushed, and he was livid. In a loud voice he said, “I did not become a prosecutor to try these types of cases. I am going to try to get out of this trial.” This prosecutor had the appearance and age of someone with his own marijuana history. Ironically, in 1973 my husband, Norman, on the verge of being hired as a prosecutor in Sacramento, California, had his job offer rescinded after he announced that he would not prosecute marijuana cases.
I asked, “Do you have authority to settle the case?” “I wish I could,” he replied. “This case file has bold red notes on the inside cover, ‘Do not under any circumstances change the offer in this case.’” The prosecutor assigned to try the case went on vacation, and the case was handed off to a different prosecutor. The new one, also hamstrung, stood firm. I called the parties to the bench, including the prosecutor who is assigned to my court. The bench is a wooden railing a few steps down from where I sit, where the attorneys and I can speak eyeball to eyeball but out of the presence of audience members.
“Listen, I don’t want any personal animosity between me and your office on this case to affect how this defendant is treated. I’m asking one more time to re-evaluate what you are offering. Is it because this is what the case is worth, or you want to get back at me for suggesting that the attorney go over your and your supervisor’s head?” The conversation was fruitless, and the defendant ended up pleading guilty to the felony of cultivation of marijuana. I don’t know whether he faced immigration consequences.
I wonder whether the defendant would have been better off taking the case to jury trial. It’s become close to impossible to seat a jury on marijuana cases. Jurors say, “This is a totally victimless crime” or “I thought marijuana was legal” or “Why are you making me spend a week off work for this trivial case?” When it becomes obvious that a jury won’t be found, the prosecution has been known to give up.
I also wondered whether it would have been better for the destitute defendant to ditch his private attorney and go to trial with a public defender. If a private attorney knows that he or she won’t be paid for a week-long trial, the attorney may encourage a defendant to take the deal. Public defenders don’t have a financial incentive to avoid a trial. And they’re often more competent than the hired gun.
Months later, Rob was still on the warpath against me. According to Cora, Rob thinks that I became an “advocate” again when I suggested that the private attorney go above his head. Yes, I was an advocate. A defendant should get bonus points for leading a lawabiding life, especially someone severely ill. It’s bad enough to have to worry about dying. He needed to also worry about being deported. Yet, I will probably think more whether I should go to bat for the next defendant given a raw deal. And that makes me feel ashamed.