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 28.
This trial requires the jury to decide whether the shooting was gang related. When is a crime committed to benefit a gang? This is a controversial subject. In a recent trial, a defendant entered a pharmacy and tried to leave with several expensive face creams. When the store manager tried to stop him, the defendant lifted up his shirt, showing the tattoo of his gang on his stomach. The defendant also said, “Hoovers,” the name of a gang. Charges were filed against the defendant that included not just theft, but the added allegation for the benefit of a criminal street gang which could add up to ten years to the sentence.
The defendant demanded a trial and challenged the notion that he was stealing this face cream to benefit his gang. Does it benefit a gang when a member steals face cream? A police gang expert might argue, “All robberies in which a defendant mentions his gang instill fear in the neighborhood where the crime occurs.” But it is also logical that the gang member stole the face cream only to benefit a lady friend. Displaying his gang tattoo may have been done to intimidate the manager into letting the defendant leave the store. The theft could have been to benefit the gang as well as to gift his lady friend. Fortunately, the case settled, and the jury didn’t have to wrestle with the issue.
My trial is bogging down. I can see jurors getting antsy. Most attorneys do not realize when jurors are tuning out. Attorneys can get so involved in the minutiae of their cases that they lose the big picture. I often give the attorneys a newspaper article written by a former juror who was a practicing attorney when he sat on jury duty. The attorney/juror wrote that being brief and concise is a critical skill. Needless repetition often serves no purpose but to frustrate jurors, who are then less receptive to evidence and argument. He gives this example of what frequently happens during a trial. A witness who had already testified that he didn’t take photographs was asked the following questions: “Did you take any of the Photographs?”
“Looking at these photographs. Now, you didn’t take any of them, right?”
“Looking at this particular photo. You didn’t take this photograph?”
And, finally, after again being told that someone else took the photos, “So it wasn’t you that took the photos?”
The first question and answer were all that was needed. The continuing examination suggested that the questioner did not believe that the jurors were smart enough to catch the simple point. The attorney/juror also explained that watching attorneys flip through exhibits looking for what they want is irritating. This happens all the time during trials. In addition, police officers get on the witness stand without having reviewed their reports ahead of time. They constantly ask if they can refresh their memory by referring to their reports, which takes valuable time. When I see that happening, I call for a break and I speak to the prosecutor: “Please tell your police officer witness to take this time to get familiar with his report so that all of our time is not wasted.”
Even when court is not in session, or the opposing counsel is doing the questioning, the jurors are always watching and critiquing. Also, jurors do not like attorneys rolling their eyes, sighing, or sending a message of annoyance. According to the attorney/juror, it reminds jurors of petulant kids.
The defense called their alibi witness. Before this witness testified, I felt the defense had a chance to win the case. The alibi witness was the sister of one of the defendants, and the girlfriend of the other. She said, “I live in the same house where the cops pulled out my boyfriend and my brother. I was with them the whole afternoon and night. They didn’t leave the house that night. I didn’t even hear any shots.” She also claimed, “My brother was shot last week. He was in bed and couldn’t move.”
During cross-examination the witness was questioned about her four dishonesty-related convictions. One was for giving false information to a governmental agency. No wonder the defense attorney at the beginning of the trial was unsure whether he was going to call the alibi witness to testify.
The sister then testified, “I have no idea whether my brother, the defendant, is in a gang.” The prosecutor asked the defendant to roll up his sleeves to show his giant gang tattoos to the jury. The witness said, “I’ve never seen my brother’s tattoos. He always wears long-sleeved shirts.” Then the prosecutor asked the witness’s brother to turn around and show the jury his gang tattoos on the back of his neck. The sister witness then said, “I never saw those tattoos either because my brother always wore sweaters.”
Next, we heard from one defendant’s mother through a Spanish language interpreter. She was a sweet, gray-haired woman with a pale, lined face. She also lived in the house where the defendants reportedly ran. The mom said, “I didn’t hear any gunshots. My son was shot in the back four days ago. He can’t move. He was in a lot of pain. I saw him asleep about one hour before he was pulled outside.” The mother will be on the witness stand again tomorrow.
Defense witnesses, claiming one defendant was so injured that he couldn’t possibly have gotten out of bed to commit a robbery and shooting, took up most of the day. To lay jurors, it might seem that anyone shot in the back four days earlier would have trouble moving. However, sheriff’s deputies at the scene testified, “This defendant may have been shot, but he didn’t have trouble moving. We always ask them when they are booked into the jail whether they have any physical problems. He said, ‘No.’ If he said he was injured, we would have sent him to the jail doctor.”
The alibi that the “injured” defendant presented played right into the hand of the prosecution’s gang expert. The expert said, “If a defendant had been shot by a rival gang four days earlier, he and his fellow gang members had a motive to retaliate. This shooting would show the power of the gang to control the neighborhood. It also increases the respect of the shooter and his gang.”
I feel sad about defendants who have given up on their lives and joined a gang. So often they lack family structure and have had little adult guidance. Instead of being born “bad,” they are often needy for emotional connection. Banding together with other kids in the neighborhood who have grown up just like them provides a substitute family bond. They receive the respect they crave and feelings of power from their fellow gang members.
Some kids may not realize in the beginning that they are expected to “put in work” (commit crimes) for their gang. A young gang member will commit his first crime with a gun supplied by the gang. Then he is protected by his new army of gangbanger friends and is in too deep to quit. Most young gang members drop out of school, sell narcotics for their gang, and don’t have a regular job. Then the arrests start, custody in the local jail or prison follows, and an entire life is thrown away.
I’ve been preparing a package of jury instructions to give to the jurors when they begin deliberating. Jury instructions are critical in a jury trial because they instruct jurors how they should treat the evidence. If the instructions are wrong, the jury could be misled, and that might lead to an erroneous conviction.
Each judge has a list of hundreds of jury instructions from which to pick and choose the ones that apply to a case. A criminal case will end up with forty to fifty tailored jury instructions. The jurors’ task is to apply the facts they heard in court to the law I give them in the instructions.
I hate preparing jury instructions. Jury instructions are all about detailed law, not facts. I am so much better at facts. The law can get complicated, especially in gang cases. Giving the wrong jury instruction is the most common reason for a higher court to reverse a conviction.
I have been doing this job for sixteen years. While I’ve had minor issues reversed due to sentencing errors, the one case that was reversed completely was because I gave the wrong jury instruction.