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 25.
Today was consumed by closing arguments. The prosecution argues first. Then the defense argues. Then the prosecutor argues a second time. The reason the prosecution is allowed to argue twice is because the prosecutor has the burden of proving a defendant guilty. Prosecutors are not allowed to save their best arguments for their second opportunity to argue, when they have the last word. That’s a difficult rule for a judge to enforce. When I was a prosecutor, I confess to holding back juicy points for maximum effect during my second argument.
The prosecutor did a meticulous job putting the evidence into context. While some might describe attorneys’ arguments to jurors as “dumbed down,” it’s not because jurors are stupid. So many words and procedures used in the criminal justice system are a mystery to outsiders. The majority of jurors don’t understand phrases such as “presumption of innocence.” I’m always concerned that some jurors don’t know that a prosecutor and a deputy district attorney are different words for the exact same job and that a criminal defense attorney plays an opposing role to that of a prosecutor. This doesn’t have anything to do with a juror’s education or intelligence. Jurors’ exposure to the criminal justice system is only through television shows and movies.
A judge down the hall is conducting a trial involving real estate fraud. He expressed concern to me this morning. “Many people on my jury have never heard of an escrow account. They’ve never owned a home. I can barely understand the case myself. It involves fraudulent escrow transfers between bank accounts. How can my jury understand this?”
As earlier predicted, the defense attorney in my jury trial, with curly. shoulder-length dark hair in the style of a Sixties hippie and self righteous disdain for the police, attacked the police’s credibility instead of the evidence against his client during his closing argument. “This is a continuing pattern of the police harassing my client because they think he’s a gang member. You’ve all read in the news about how police behave. This is a frame-up.”
I prosecuted police officers when I was a deputy district attorney and oversaw the LAPD disciplinary system as LAPD Inspector General. I know police misconduct when I see it. I didn’t see it here. My stomach tightened as I listened to the police officers cavalierly being trashed. I don’t have a problem calling out police misconduct. I do have a problem with creating misconduct to capitalize on the sexy topic in the news.
Time to wait for a verdict. I love this unpredictable part of a trial.
Our jury has verdicts: “guilty” of assaulting the two separate victims with a metal pipe; and “guilty” of causing great bodily injury to each victim and doing so for the benefit of his gang. The defendant is facing around twenty-three years in custody, to be served at 85 percent. It was a fair verdict.
I was still on the bench, about to set a date for sentencing. The defense attorney jumped out of his seat and quickly ran up to the jurors as they were leaving the courtroom. He had a sheaf of papers in his hand and handed one to each juror. Unlike pedestrians refusing a flyer shoved in their face by a sidewalk hustler, the jurors couldn’t politely refuse. Perhaps they thought this was the normal way a trial ended.
“What are you doing?” The attorney didn’t answer me quickly.
Finally, he acknowledged, “I’m handing out a questionnaire.”
“Give one to me to review.”
The questionnaire passed out by the defense attorney, imprinted with the seal of the head Public Defender for the County of Los Angeles, asked a series of sixteen questions, fishing for possible juror misconduct during deliberations. I never saw this done before. A sample of questions: Were there revelations by any juror about ‘evidence’ not admitted in the case?” “Were racist comments made against the defendant or defense witnesses?” “Were there any medications, drugs, or alcohol used by any juror that might have impacted deliberations?” “If you would answer YES to any of these questions, please contact me.”
After every guilty verdict, the defense wants to investigate whether something improper happened during jury deliberations. If it can prove misconduct took place, it might uncover a path to a new trial. I always tell jurors as part of my “Thank you and goodbye”: “You don’t need to speak to anyone if you don’t want to about this case. Or, if you want, you can speak with anyone. Contact the court if you feel harassed or intimidated by anyone.” An attorney who blocks jurors as they leave the courtroom feels pushy and coercive to me, especially when court is still in session. I had my bailiff confiscate the questionnaires.
This morning, I sentenced an eighteen-year-old man to eleven years in prison for voluntary manslaughter. He had been part of a gang attack on a rival gang member, and played a minor, though important, role as backup. This defendant had been waiting for his trial for two years in juvenile hall. Two employees of juvenile hall came to court to speak on the defendant’s behalf. One person came from a ministry; the other was the defendant’s writing teacher in an honors writing workshop.
According to the defendant’s writing teacher: “This young man is the most extraordinary ward I’ve seen in years. It is the first time I have ever come to court to speak on one of my wards’ behalf. He took every course, including college courses for credit. He learned about his motivations and the origins of his anger by taking classes and writing about his feelings. All of us at juvenile hall want to do everything we can to help him avoid serving his eleven-year sentence.”
The defendant also wrote the court, expressing his remorse, concern for the victim’s family, his commitment to leave his gang, and his desire to spend the rest of his life counseling young men to stay away from gangs and crime. I had to explain the facts of life to the witnesses and family members in court.
“Once a deal is struck between the prosecution and defense, it is unlikely to be undone by a judge later. The law needs finality. It would be confusing and time-consuming if defendants could plead guilty, then change their minds and ask for a jury trial. Yesterday the prosecutor with the defense attorney spoke with the prosecutor’s supervisor and he would not budge. The defendant got the deal he made, and the prosecutor also benefited because she does not have to go through a trial.”
I made the recommendation requested by the defendant to be housed in state prison at Ironwood because of their excellent writing program. Unfortunately, prison authorities don’t pay much attention to judges’ recommendations for prison housing.