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 24.
Before the trial resumed, I questioned the juror again. “Have you had a chance to think about whether you’re comfortable sitting as a juror in this trial?”
“Yes, I am still nervous and afraid. I don’t think I’d be fair to the defense.” We had to replace him with one of the three alternates.
The prosecution called a gang expert to the witness stand. Most gang experts for the prosecution are police officers assigned to monitor a specific gang. They get to know who is in the gang they’re monitoring and what parts of the city the gang controls. Gang members on the street often talk to police and share gang gossip, such as identifying their enemy gangs. The defense also hires gang experts. They can be former police officers, but often they are former gang members who now work for gang-prevention agencies. They also can be strong expert witnesses.
The defendant told the police in our trial that he used to belong to a criminal street gang called “Local 13.” He still posts photos on Instagram with fellow gang members, all flashing hand signs and carrying guns. According to the prosecution’s gang expert, “This attack benefits the gang. The guys who committed the crime will gain status for their ‘work.’ ‘Local 13’ will be feared on the block where the crime was committed.”
The prosecution’s gang expert testified: “‘Local 13’ is a gang that identifies with the Mexican Mafia. That’s why they use the number 13, because ‘M’ is the thirteenth letter of the alphabet. ‘Respect’ is critically important to gangs. They want everyone to know that they control the neighborhood. If they can intimidate and frighten residents, they can commit gang crimes without anyone calling the police. Gang members often tattoo their gang name on their bodies and spray paint their gang name on buildings. ‘Local 13’ members wear baseball caps from the St. Louis Cardinals and have a distinctive hand sign that members ‘flash’ at rival gang members.”
This type of evidence is helpful to jurors, who are not familiar with gangs, to understand why a crime was committed. The downside is that jurors get scared. They are exposed to subjects that frighten them, such as gangs that murder, rob, and sell narcotics. Jurors look at the defendant and imagine the defendant’s gang tattoos under his shirt. They become frightened of the defendant and of retaliation by his friends. Jurors may be more likely to vote guilty in a gang-related case.
Higher courts have decided that jurors may put too much weight on what prosecution gang experts say. Experts’ wide-ranging opinions have been limited. For example, a gang expert used to be able to say that if a gun was found in a car with four gang members, all of the car’s occupants would know the gun was in the car because that is gang culture. They can’t say that anymore.
Some gang members grow up, move away, and don’t associate with their gang anymore. Still, being removed from the police gang database is difficult. Police often assume that if one sibling is a gang member, other siblings who “hang out” with the gang are also gang associates. Even being seen with a gang member, a friend from elementary school, can land someone in the gang database as an “associate.”
The defense in our case has called an eyewitness identification expert. Jurors know that mistaken eyewitness testimony can result in a wrongful conviction. Courts have said that eyewitness experts, usually psychologists, are allowed to explain identification issues to juries, and are often hired for the indigent defendant by the court. They receive $1,500 to $2,000 per case. This particular expert testifies several times each month for the defense.
He is credible but smarmy, always stylishly dressed, with slick, perfectly combed hair and sideburns. To me, his testimony seems scripted and rehearsed, even his little asides and jokes. I hate the way he turns to the jurors with practiced earnestness.
“Many factors affect human memory. We are not cameras. We tend to fill in gaps in our memory with inferences or guesses and that can result in error.” As he spoke, I reflected how silly it was to allow an eyewitness expert in our case. Several pieces of evidence confirm the victims’ identifications. For example, the suspect was described as having a unique tattoo on his chin. The victims said the suspect stated, “I’m ‘Nasty’ from ‘Local 13.’” Coincidentally, the police found there did exist a “Nasty” from “Local 13.” Nasty had a tattoo on his chin. Each eyewitness separately picked the photo of Nasty from a six-photo spread. The six rectangular two-by-three-inch photos, in two rows with three suspects in each row, contained similar looking suspects. The police used a black marker to draw a tattoo on each of the six suspects’ chins so that they would all have a similar “tattoo.” This expert offers nothing of value. He is wasting our whole afternoon.
The morning began with a beautifully written motion by a private attorney requesting an early end to his client’s felony drunk driving probation. Counsel’s speech was quick and pressurized. His client had three prior drunk driving convictions. The defendant was also convicted of child endangerment because his seven-year-old son was in his car during the latest offense. Adding to the motion’s significance, the defendant, a former financial advisor in a well tailored suit, lost his license to work because he was on felony probation. The nervous defendant’s face was red and sweaty in our 65-degree courtroom.
According to his attorney, “The judge who took my client’s plea said he could end his probation early if he completed all of the alcohol rehabilitation classes, parenting classes, and community service. The defendant did finish everything early. We even have many letters, including one from his ex-wife, commenting that my client was taking his addiction and recovery seriously.”
The attorney’s motion stated that the defendant checked into a residential rehab alcohol facility several times in December, only two months before today’s hearing. That was odd. According to the attorney, those visits were because his client was “concerned about remaining sober.” I’ve never seen a defendant voluntarily go to a rehab facility when he was already completely sober. I asked for a letter from the rehab facility.
Sure enough, a letter arrived from the rehab center stating that the defendant tested positive for alcohol use just before he checked in. The prosecutor then produced the defendant’s original arrest report. The defendant was so drunk that he stopped his car in the fast lane along the center divider of a freeway and passed out. His young son called 911 from the car. The defendant’s blood alcohol was .35. The legal limit is .08. The defendant’s was more than four times the legal limit.
The defense attorney had to admit that his client had a relapse just before coming to court. Regardless, the attorney argued strongly that the defendant was dealing with his alcohol addiction and should be allowed to finish his rehab without having probation hanging over him. I felt annoyed at the attorney. He should have cut his losses when he learned that his client lied to him about entering rehab in December.
Ending probation early for drunk driving defendants or giving them light sentences is frightening to many judges, including me. Nobody wants to be the judge on the front page of the newspaper who gave leniency to a drunk driver who ends up killing someone. It was hard to listen to the defense attorney arguing for his client even after discovering the defendant was still drinking. Perhaps he needed to prove to the client that he was earning his fee. I did not end the client’s probation early.
The rest of the day was devoted to the trial. We listened to the defendant testify. “Yes,” he said, “I am ‘Nasty’ from ‘Local 13.’ But I haven’t been active for years. Yes, I still have gang tattoos. I can’t afford to get them taken off. Yes, I live in the gang’s territory, but lots of people do. I didn’t hit these guys over the head. They must have been coached by the police to pick me from the photos. The cops hate me because they think I’m a[n active] gang member.” He went on: “It shouldn’t matter to anyone that I have five felony convictions. I’ve always pled guilty before. Now I want my jury trial because I am not guilty. I’ve never asked for a jury trial before.”