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 27.

February 19

Most people think judges don’t get into trouble, but they do. An article in this morning’s legal newspaper reported that a judge in a different county received a “public censure,” a severe form of judicial discipline, for having an improper conversation with a prosecutor. The conversation happened after a jury had found the defendant guilty but before he was sentenced. A judge must never hold an ex parte conversation, in which the judge speaks to one side in a criminal case without the other side being present.

Even worse is that the judge reportedly told the prosecutor, “This conversation never happened.” In his defense, the judge claimed that he was a new judge who hadn’t been to judicial orientation classes yet. The Commission on Judicial Performance (CJP) did not find that excuse credible as the judge’s statement: “The conversation never happened” showed he knew what he was doing was wrong.

When I began judging I often wanted to speak with the attorneys during the trial. I probably violated ethical rules a few times. It is so tempting while sitting on the bench, and only one side’s attorney is in the courtroom, to comment on how a trial is going, such as, “That last witness was such a joke.” I avoid temptation by leaving the courtroom as soon as a proceeding is over.

Early in my judging career, several times I asked attorneys to come into my chambers to speak with me after a trial and sentencing. (The disciplined judge spoke with the prosecutor before the trial was over, and sentencing had not yet occurred.) I thought an attorney might appreciate advocacy tips from someone who had spent decades on both sides of the system. I learned quickly that speaking with attorneys at my request was a bad idea. Attorneys will always enter a judge’s chambers if a judge asks, but many are defensive and even hostile to suggestions. I have stopped the practice completely. Once, after a trial, a less experienced male judge was alone in his chambers with an unstable female private attorney. The judge in the chambers next door heard hysterical crying coming from the attorney through the door. She called the male judge next door on his desk phone. “Are you nuts? Open your door immediately! Don’t you realize what sort of accusations she could make against you?” Judges make foolish decisions, just like everyone else.

The newspaper contained more information about the judge who was killed while crossing the street. There were code words in the article that made me again wonder whether my colleague had been jaywalking. The article stated that the judge was near the intersection instead of at the intersection. There was no mention of the judge crossing at a crosswalk or at a green light.

The trial has resumed. The male defense attorney as well as the victim on the witness stand are hostilely interrupting each other. I see this often. Two males, one a witness, the other an attorney, behave like fighting peacocks and neither will back down. I have to tell the parties, “The court reporter can’t accurately take down two conversations at once. You can’t keep speaking over each other. Take a breath. Slow down.” I can tell by their annoyed expressions that the jury is exasperated. I am exasperated. My court reporter is the most exasperated of us all.

The male victim is steadfast in his identification of the two defendants as the persons shooting at his car. However, during the shooting the victim was speeding away and watching the shooters only through his rearview mirror. The victim assumed the two shooters were the same people who approached his car window with guns a few moments earlier. The shooters were too far away for the victim to see their faces when the shots were fired.

Next, the prosecution called the victim’s wife, a passenger in the car. She suffers from epilepsy, has had brain surgery, and claims gaps with her memory as well as having had a seizure this morning. She sits on the stand with a victim advocate from the district attorney’s office. The law allows disabled persons, as well as children, to have a companion, even a service dog, with them on the witness stand to make them feel more comfortable.

The wife identified both defendants as the robbers who approached their car. Her memory about the incident seems clear. However, whenever she has a problem with her memory she says,

“It’s my epilepsy, that’s why I can’t tell you.” At one point, she collapsed in tears. We needed to break the trial. I have encouraged our female attorney to do the questioning before her male counterpart because of his temper. I don’t have a right to tell the attorneys the order they should cross-examine, but I think they agree with me that the woman lawyer would conduct a gentler cross-examination. The victim is sure of her identifications of the men.

 “I kept looking back to check on my daughter in the car seat,” she said.

“Every time I looked back I saw the shooters’ faces.”

Several eyewitness identification issues affect this trial. One, the victims saw the shooters only for a short period, several seconds at most, and the shooters were wearing dark hoodies. Hoodies at night can cover and shade a suspect’s face and especially their hair. Two, the victims each identified the shooters when the police brought them out of a house where the victims said they ran. No six-pack of photos of similar-looking suspects was prepared, a much safer way to ensure the accuracy of identifications. In our case, the shooters were shown to the victims one at a time. If a victim sees someone brought out alone, they may assume the police have the correct person in custody. They may fixate on the person’s face. When the victims see that same person later in court, they may become more and more convinced they’ve selected the correct person, even if they’re wrong. Here, while each victim made identifications at the scene, they also said the shooters were wearing different clothes than when they first saw them.

Last, the victims have talked to each other constantly about the shooting in the year since the incident. Their descriptions of the shooting use identical words. Their memories, even unintentionally, sound merged.

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