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 26.
Another jury trial. A twenty-something couple with their baby strapped into a car seat were lost in East Los Angeles around 9:00 p.m. Two gang members fired into their aging green Toyota after trying to rob them. Fortunately, no one was hit.
According to the defense attorneys, “Our clients don’t want offers. They want a trial.” The defendants, with shaved heads, and gang tattoos on their necks visible above their collared shirts, appear to be hard-core gangsters.
Eyewitness identification will again be key. According to the victims, the shooters ran into a nearby house right after the shooting. The defendants were arrested in that house and claimed that they knew nothing about the shooting.
The defense plans to call an alibi witness. An alibi witness will state, “The person on trial could not be guilty. He was with me, somewhere else, when it happened.” The law is clear: Defense attorneys must tell the prosecutor the name and statements of the alibi witnesses thirty days before trial. That gives the prosecution time to check out who is coming forward with the alibi. What, if any, is their criminal record? What is their relationship to the defendant? What are the details of the alibi?
I said: “We are starting the trial and you’re just now disclosing your alibi witness?” The defense attorney responds, “We didn’t know we were going to have this witness until my client told me a couple of days ago.”
The prosecutor, a young man with a high, squeaky voice at the top of its range, ranted. “The defense always does the same thing, Your honor. It’s outrageous! They tell us about a witness at the last minute, hoping we don’t have time to do research about the witness. They should be punished. They should be prevented from calling the witness.”
An experienced defense attorney knew the right response: “Your Honor, the Penal Code says we have to turn over the names and statements of alibi witnesses we ‘intend’ to call. We haven’t even decided we’re going to call this witness.” I always inwardly fume at his point. The Penal Code is imprecise. It needs to be reworded. “Intend” to call allows the defense to skirt the thirty-day rule without precisely violating the law. I need to tell the prosecution they’re not going to win this argument. “I know it’s frustrating to you. But the defense did not clearly violate the Penal Code. I am ordering the defense, though, to provide you with the name, date of birth, and statement of the alibi witness by the end of court today.”
This morning began with the sad news that we lost a colleague last night. A fellow judge was walking across the street when he was hit by a car and killed. The driver was not held. Our colleague was a young judge, recently appointed, had attended rigorous schools, and, by all accounts, was brilliant. I’m not sure what happened. But if the driver was not held, it means that he remained at the scene, was not under the influence, and, at least initially, not judged to be negligent. Nobody has said anything about whether the judge was jaywalking.
My own jury trial is on hold because the courthouse is out of jurors. As before, jurors are inventive with excuses not to serve. This even happens with jurors who do not have a financial hardship. A woman who works in a high administrative position for the County of Los Angeles said, “My father was murdered by a stranger. I would hold it against these two defendants. I would even vote to convict them if they weren’t guilty.” In her next breath she said, “I hate police officers, and would not believe anything a police officer said.” It’s possible that this juror honestly holds these contrary positions, but unlikely. The juror used to work as a clerk for federal judges. Presumably, she has heard numerous excuses and used the best to fashion her own.
A woman doctor refused to leave the courtroom until she was heard by me. “I was told that I only had to come to court for one day.”
“Ma’am, there is no way that we can conduct jury trials in one day. You must have mis-heard. You have to come to court only for one day to see if you are picked for a jury panel. If you’re not picked in one day you can go home. You have been picked. You must stay with us until you are excused.”
The trial continues. One of our attorneys was ten minutes late. I always tell attorneys and jurors, “I am extremely punctual. We can’t start until everyone is here. Don’t hold people up.” I have also found that complimenting jurors when they are all here on time works well. It’s especially galling to have all the jurors crammed into the hallway while we wait for a late lawyer. In this trial, we have two defense lawyers, one for each defendant. They are both late. When the first lawyer, a sloppily dressed but warm-mannered young man, arrived, I warned him: “The next time I will have to fine you $100 for every five minutes you are late.” Usually that’s scary enough that an attorney won’t be late again. I am allowed to fine lawyers up to $1500. In fifteen years, I only imposed a fine once. Judges do a lot of bluffing. In our training sessions, we discuss how fining attorneys or holding them in contempt is the last thing we want to do to control the courtroom.
The second defense attorney called the court at 10:30 a.m. and said he was “just entering the building.” He arrived in court ten minutes later. Attorneys often claim they are “just entering the building” because they know we can’t check if it’s true. We continued with jury questioning. This time it was the attorneys’ turn. The defense attorney asked, “If two people testify oppositely as to a fact, and one person is a gang member and the other is a police officer, would you automatically believe the police officer?” I hate this question. The attorney will want me to kick a juror off the panel if they say they prefer a police officer’s testimony to that of a gang member. In a vacuum, who wouldn’t? There are so many intangible factors a juror must evaluate before they decide to believe or disbelieve anyone. I rarely excuse anyone due to how they answer this question.
Instead, I talk to the prospective jurors about treating all witnesses the same, and evaluating their credibility using the same set of criteria. “It could be that a police officer is not lying, but mistaken about what they saw, right?” Or, “No one gets added points or points taken away because of what they do for a living. Could you follow the law and evaluate the witnesses using your own common sense?”
We have only a couple of minutes to interview each juror. It’s like speed dating. Sometimes I imagine myself as an amateur radio psychologist who has to discern from tone of voice, hesitation, or choice of words what someone is thinking. Drilling down using as few questions as possible to discover jurors’ hidden truths is challenging. I definitely have voyeur in me, sprinkled with a lot of nosiness. When I was a child, we had a “party line” in which several families shared one phone connection. One of my favorite hobbies was to quietly lift up the receiver and listen to others’ conversations.
Michael, my clerk, got a phone call from a juror we excused yesterday. He reported a statement made by one of our remaining jurors. The excused juror wanted us to know, “When one of the permanent jurors was asked about his brother who was in a gang, that juror said, ‘He had to do what he had to do.’ That phrase is a gang expression.” Was he calling to tell us we have a gang member on the jury? I told all the attorneys of the phone call, everyone shrugged and laughed, and we moved on.