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 38.
My zeal for criminal law has remained constant. Throughout law school, I continued to seek opportunities to get entangled in criminal cases, from working with prisoners in Vacaville State Prison, to helping with criminal appeals, and interning in the Yolo County District Attorney’s Office. When I passed the bar in 1973, there was nothing I wanted to do other than become a public defender in Sacramento. It was the anti-Vietnam War era, and while I was a new attorney and by that measure a member of the Establishment, I planned to spend my career fighting “The Man.”
As I wrote earlier, my aspirations clashed with the lack of opportunities for women who wanted to practice criminal law in 1970s Sacramento. Only by volunteering to work without pay for several months did I land a job. The senior public defenders, decent and kind middle-aged men, were not so much hostile to women attorneys as believing that we should be protected from sordid and rough clients. This paternalistic attitude was common then. After several months of volunteering I was hired, and the job was everything I wanted. I conducted several successful petty theft jury trials in which three separate clients in a row were found not guilty. A blond, brash, swashbuckling prosecutor named Kirk vowed he would bring me down. We opposed each other in one last petty theft jury trial before a kindly, middle-aged judge who, upon reflection, probably had a crush on me. After the jury reported it was hung 11-1, the judge ordered the jury back the next day to continue deliberating. My instinct, not highly developed, was that there must be only one person holding out for “Not guilty” and the other eleven jurors were ready to convict. I wanted a mistrial to be declared, the jury sent home, and another chance to win at a retrial. But the judge made the jury return.
The next day all twelve jurors found my client “Not guilty.” The holdout juror was voting for guilt and must have been persuaded in the morning to change his mind. Shortly after the trial, while chatting with the judge who loved giving me pointers, he admitted, “I went back to the jury room last night, saw the ballots, and knew the jury was about to find your client ‘Not guilty.’ I decided to make the jury keep deliberating.” What the judge did was, of course, unethical, but that didn’t bother me then. It did teach me that the character of all judges was not the same. This judge had the ability to throw a case to my side and did it. Until that experience, my view of the judiciary was more exalted. Today, I wouldn’t dare peek at secret ballots in the jury room when the jury wasn’t around. I even feel guilty if I hear the sounds of a jury laughing through the walls.
Meeting an ethically bent judge is unusual. To the contrary, I believe most judges in California rigidly maintain high ethical standards. Unlike judges I’ve read about in other states, we rarely have problems with corruption, bribery, and “fixing” cases.
One of my formative experiences as a defense attorney was representing an alleged Mexican Mafia hit man, accused of a series of execution-type slayings throughout California. These occurred in the late 1970s after I established a small private practice in Sacramento. During these proceedings, my colleagues and I achieved a criminal defense attorney’s dream. Two young, ambitious, and honest police officers agreed to testify that fellow officers in their own department fabricated testimony in a pre-trial hearing. I had no qualms calling each of these forthright officers to the witness stand. Their testimony resulted in the judge throwing out the most damning evidence against my client, a gun used in several murders. I won’t ever forget, though, what happened when those courageous officers returned to their small-town department.
“Kathy, I know I did the right thing by testifying, but my career is over. My police chief called me a traitor in front of the other officers. My personal car was keyed in the secured police parking lot. The chief transferred me from lieutenant supervisor to a windowless storage room where I’ve been assigned to re-write the Department manual. The same thing happened to my partner, who had been a captain in the department.”
I hold myself responsible for putting these officers on the witness stand. The criminal case was aided immensely by these officers’ sacrifice, and representing my client vigorously was my duty as a defense attorney. But the carnage it created was tough to stomach. The lying officers and the Chief of Police went on to productive and satisfying careers. The good guys lost. This episode still weighs on me today. Subconsciously I’m sure it played a role as I later prosecuted police corruption as a prosecutor and oversaw the disciplinary practices of the police department while LAPD inspector general. A decade later I looked up the officers. The young, promising former lieutenant was working security for a retailer, saddened whenever he saw a police car drive by because he wanted to be driving it. Nevertheless, he was comfortable that he would testify honestly again because it was the right thing to do. The captain who supported the lieutenant’s testimony had moved out of state and was seriously ill.
The fate of the honest police officials contributes to who I am today. There is no law to follow when I make a judgment whether a police officer is testifying honestly or shading the truth. Am I influenced by this experience that occurred thirty years ago?
Cora, my assigned court prosecutor, is so stubborn it makes cases difficult to settle. I see her every morning, and it’s always a battle. A defendant came before the court charged with felony unlawful driving of a vehicle without the owner’s consent, also known as “joyriding.” If the car unlawfully driven by the defendant was worth more than $950, the crime is a felony that can result in a state prison sentence. If it is worth less than $950, the crime is only a misdemeanor.
The vehicle in question was a 1990 Honda Accord with 300,000 miles on the odometer. Before a case goes to jury trial, a preliminary hearing is held before a different judge. It’s a mini trial that tests whether there’s enough evidence to send a case to me for trial. The owner of the car did not testify at the preliminary hearing. Instead, a police officer was allowed to testify what the owner told him the car was worth.
The police officer said, “The car owner told me the vehicle was worth around $1000.” There were no follow-up questions in the transcript. I asked the prosecutor, “Is this really a case that your office wants to go to a jury trial?” Of course, Cora said “Yes. We want another felony conviction on his record.”
I asked Cora, “How much do you think the Honda was worth?” She said, “Old Hondas are worth several thousand dollars and could be collectors’ items.” I wanted more information. “What is the Blue Book value?” “I don’t know.” I searched on my electronic devices for the value of the car. Kelley Blue Book starts in 1992. I compared those numbers to values from other car sites. “Excellent condition” was used to get the highest number. I was unable to get a higher value than $550, which would make the case a misdemeanor. Nothing persuaded my prosecutor. Even when confronted with the prices on reputable websites, she maintained, “This car was worth several thousand dollars. I know cars.” Everyone in the courtroom looked at her incredulously. I suggested, “Why don’t you speak with others in your office about going to trial in this case?”
“I’ll think about it.”
The vagaries of the system are well illustrated here. If the car owner had told the arresting officer his car was worth $750, this case would have begun as a misdemeanor. The defendant would not have remained in jail. As of today, he has been in custody for ninety days. With extra credits for good behavior, he already has credit for a 180- day sentence. If the case was filed in a different courthouse or ended up in another courtroom with a different prosecutor, the case would have settled for a misdemeanor.
The case also illustrates problems when police officers testify instead of victims at a preliminary hearing. Any type of crime is allowed to go to a preliminary hearing with only police officer witnesses. The police officers testify to what they were told by the witnesses, usually at the scene of the crime. Victims may have questionable credibility. If they don’t testify at a preliminary hearing, they can’t be cross-examined by the defense, one of the best ways to evaluate someone’s credibility and demeanor.
A serious sex or assault case can keep a defendant in custody for many months waiting for a jury trial. If a police officer testifies at the preliminary hearing instead of the victim, the case will be bound over for trial. A newly assigned prosecutor may interview the victim the day before the jury trial and realize that the case is much weaker than what the arrest reports represent. An advantageous plea bargain is offered, or the case dismissed entirely. As to the person who has been sitting in custody for months awaiting trial? Too bad.