In Part 45 of Inside the Robe, Judge Mader continues the story of a victim who is being jailed at prosecutor’s request because the deputy DA fears his disappearance and/or self-harm. She discusses the case of a serial drunk driver who has exhausted all possible treatment avenues and now faces arrest and incarceration. And the Judge explores cautionary tales of significant ethical misconduct by judges.
The attorney representing the locked-up victim/material witness returned to court this morning. The victim’s aunt, who spoke with the attorney, will not accept responsibility for the victim. This is a bad situation. If only the victim hadn’t threatened suicide. If only the victim wasn’t homeless. The victim was also claiming memory problems from being stabbed in the head. One more argument to keep the victim locked up.
The annual report of the Commission on Judicial Performance (CJP) has arrived in the mail. Containing vivid descriptions of judicial misconduct, it warns about behaviors to avoid. Some judicial misbehavior in the past has been serious. A judge lied in his judicial application not only about his academic and professional background but made bizarre assertions that he worked as a CIA spy who delivered munitions to mercenaries in Thailand. His defense was that he suffered from “Pseudo-logical Fantastica,” a term for pathologically lying, the result of a traumatic childhood in war-torn Indonesia. During a formal hearing, he was confronted with his lies.
“I just don’t know why I did it.” When told that if he would admit his fabrications were just a foolish attempt to impress, he would be punished with less than removal from the bench, he would not. He lost his robe. His attorney said, “Judges are human beings. They have the same foibles.”
One more instance involved a judge who interceded in friends’ cases and fixed traffic tickets. He was a decorated Vietnam War veteran but made adamant, defiant assertions that his actions were not unethical, even though he had dismissed citations for people to whom he owed money. Declaring he “took exception to the issue of deception,” he tried to trivialize his misconduct. “I know what I did was wrong, but I did a lot of good things on the bench.”
An attorney who represents judges in trouble has said, “Accused judges go through hell. Their self-esteem depends on the view of who they are; they’re mortified.” Many will admit they did something wrong and want to get it over as quickly as possible.” Others cannot conceive of life without being a judge.
Receiving a gift from an attorney, making rude and demeaning comments to parents and social workers in dependency proceedings, questioning a criminal defendant without his lawyer present, and improperly injecting religion into a sentencing proceeding are examples of lesser misconduct that resulted in private discipline. I am always aware the CJP is watching me, and any intemperate remark or other action can trigger a disciplinary hearing.
It’s almost impossible for a judge to schedule a doctor’s appointment during the work week. Our court day ends when most doctors are done for the day. When the bailiff unlocks the courtroom doors at 8:30 a.m., we have dozens of attorneys and defendants waiting, so scheduling a doctor’s appointment before work is even harder. Most judges use court holidays to schedule appointments. The only other way is to recess a jury trial early and send everyone home.
I decided to chance it today and schedule an annual physical at 8:00 a.m. at my doctor’s office, about one hour’s drive from the courthouse. The doctor was late. I was stressed in the claustrophobic examining room and almost left before the doctor arrived. When I finally got to the courtroom at 9:30 a.m., the room was full of people staring at me.
On February 8, I described the case of a financial advisor who was a serial drunk driver. He was trying mightily to end his probation early. He claimed that he was in two live-in rehabilitation programs during the past year only to prevent relapse. I didn’t believe him. He desperately wanted to resume his professional life and regain visiting rights with his young child. I asked for a detailed letter from his last live-in rehab. The letter revealed that the defendant’s most recent stay in the hospital one month earlier was not preventative; he was drinking again.
Thank goodness I didn’t end his probation early. I learned later the same financial advisor was arrested twice only last month for driving under the influence of alcohol. The defendant was released on bail on each of those arrests, as though they were first-time DUIs. Each case slipped through the cracks. Due to his record of convictions, he should have been charged with a felony. This was human error on the part of the police and the prosecutor’s office. His prior record was never checked. Mistakes like this can get someone killed.
The defendant’s lawyer was in court this morning but without his client. Smartly, the defendant had checked into another rehab facility, an expensive one, and the facility didn’t allow patients to leave for the first thirty days. One more ploy to avoid jail time for violating his probation. The defendant’s DUI arrest was in mid-March, several weeks ago, but he didn’t check into the rehab facility until two days ago. The defendant knew he would likely be returned to custody this morning, Monday. I do not like being gamed. I felt my face getting hot and my heart speeding up. I took a deep breath.
I read over my cases before I left work on Friday afternoon and knew this defendant was supposed to be in court this morning. Aware of my doctor’s appointment, I told my clerk, “Please do not call this case before I get back from the doctor’s office.” When I arrived, my clerk said, “Thank goodness you’re here. The defendant’s attorney kept trying to hurry the case along. Every ten minutes he asked to call the case and continue it for thirty days without you being here.” I issued a bench warrant for the defendant. This would normally mean he would be picked up by law enforcement or someone from his bail company, but I held it until Friday. The warrant would be issued only if the defendant didn’t show up on Friday.
Expensive live-in rehab centers are not going to work for this defendant. Treatment has not worked. Maybe hitting bottom will work. He needs to spend some time inside a nasty jail and realize that he is no better or worse than other alcohol abusers. The dehumanizing treatment, filthy cells, warring inmates, and jarring noises need to scare this guy. Understanding that alcoholism can be an illness, this defendant’s illness, unlike other illnesses, can kill someone.
We were often warned in Judicial College when we begin our careers to imagine a newspaper headline blaring our decisions. Releasing a serial drunk driver who drives again and kills a stranger can be a career-breaker, not to mention the sorrow of everyone involved, including the judge. Consulting a colleague to confirm the wisdom of an intended sentence for a drunk driver is wise.
As the incarcerated victim in my jury trial finally testified about being stabbed by his girlfriend’s rejected ex-boyfriend as he lay in bed with her, he froze in place, resembling a marble statue. His eyes stared straight ahead, unblinking, and he stopped responding to questions. What was happening? The deputy sheriff in my court asked, “Do you want us to call the paramedics?”
“That’s not my decision. He is a material witness in your custody.” The Sheriff’s Department is responsible for the welfare of witnesses they are housing, not me. Paramedics arrived ten minutes later. All the while, the victim sat on the witness stand in a catatonic state. My job was to take care of the jurors. “Ladies and gentlemen, we have a medical emergency. Please wait outside the courtroom until we call you back.” The paramedics said the victim’s vital signs were normal and most likely he had a panic attack while reliving his stabbing. About ten minutes after the paramedics arrived, the victim returned to normal and said, “This happens a lot. I don’t have the money to see a doctor. I just freeze in place and can’t move for ten to fifteen minutes. I can hear but can’t say anything. After a while everything comes back.”
We continued listening to the victim until the end of the day. I wanted the attorneys to speed up their questioning, so the victim/witness could be released this afternoon. A judge can’t rush lawyers too obviously. A convicted defendant will complain that he didn’t get a fair trial because the judge was impatient. Both attorneys understood the game plan without me saying anything.
The victim was a compelling witness. He described awakening from sleep with the defendant repeatedly plunging a knife into his body yelling, “Die, die, die!”