In Part 46 of Inside the Robe, Judge Mader continues her story of a love-triangle attempted murder trial, and explains the political implications of her objecting to the Court giving its official sanction to a religious denomination ceremony for judges.
What should I say when I sentence the gun dealer? I keep trying out speeches as I drive to work. I want to call it as I see it: a political prosecution to please the community for a “crime” that should have been handled as a rule violation. But what is the upside? Is it my job to scold an elected public official for using a valid law to assist the community? Do I want to make an enemy forever by having my comments reported in the press? Am I just being a coward?
Some cases are easy to speak about at sentencing, especially if I think my remarks might help a victim or give a defendant something to reflect upon in state prison. Here, I’m concerned about my remarks as well as choosing the appropriate sentence.
Continuing education classes teach judges to identify our biases to ensure they are not influencing our decision-making. The gun dealer is an Orthodox Jew as were all his audience supporters. I am a secular Jew but attached to the culture and history of Judaism. The advice to
identify my biases is valuable. I hope I am not biased in favor of the Jewish defendant because of his religion.
The defendant’s ex-girlfriend, or “baby mama” has been on the witness stand for most of the day. Now she claims she can’t remember the defendant yelling, “Die, motherfucker, die,” or “Die, die, die.” She reported these exclamations to the police on the night of the attack.
When a witness takes back earlier statements made to the police during their court testimony, they are called a recanting witness. It happens often in cases of personal relationships. An “ex” may figure that if a defendant is convicted, she will never receive child support. This “ex” wants the defendant convicted of something less serious than attempted murder. Attempted murder carries a life sentence. If the defendant’s actions were “in the heat of passion,” he could receive a lesser sentence.
This love triangle trial is worthy of a telenovela, but it’s putting us to sleep. The attorneys are doing workmanlike jobs but speak softly and without inflection. I’m trying not to yawn. Many judges, including me, drink a beverage with caffeine at lunch for this very reason.
The defendant did not testify, which may not have been wise. In order to show “heat of passion,” a defendant should explain to the jury why he wasn’t thinking clearly enough to premeditate the killing of his rival.
Who knows how this will end? The law requires that to reduce attempted murder to a lesser charge because of “heat of passion,” the jury needs to find that a reasonable person in the defendant’s position would have done the same thing. That’s a hard sell.
Lunching today with two friends, we discussed “Red Mass,” a Catholic yearly religious service in which the Church blesses judges and politicians. The celebration is coming up again. It has a long history with me. Fifteen years ago, when I first joined the court, my friends and I objected to the perception that it was a court sanctioned activity.
An email invitation to all judges to attend the service arrived on our court computers. Researching the Red Mass and its origins, I learned that the service was originally designed by the Church to try to influence decision-makers: judges and politicians. Their goal was to elevate Church doctrine as superior to secular, constitutional law. The service is not non-denominational, but conducted only by Catholic leadership. Judges and politicians who attend are given red robes to parade down the center aisle of the Church and be blessed. The e-mailed invitation also included a reception that would be held after the service, catered by Border Grill, an upscale local Tex-Mex restaurant.
Pedophile priest cases were pending before our civil courts when I first heard about the Red Mass in the early 2000s. Judges are bombarded with ethical instructions not to accept gifts or do anything to appear that we are taking sides in a dispute before the court. It was hard for me to believe that judges were going to break bread with Church leaders after the Red Mass service. The Archdiocese was a defendant in lawsuits before these same judges.
The influence of the Church is strong among the judicial community. Many of the judges are associated with a local Catholic law school, Loyola, that sponsors a society named after St. Thomas More. That group organizes the Red Mass. Almost all presiding judges of the Los Angeles Superior Court have been Catholic, and many have been members of the St. Thomas More Society.
As a Jew, my antenna is always sensitive to mixing Church and State. I asked my friends, “Am I out of line to feel offended?” One friend, the son of a Methodist minister, hatched a plan with me. I would send a “reply all” message over the computer to all of the judges of the court (over 400) questioning the propriety of judges attending such a service, particularly the reception. My friend agreed to send a court-wide email within seconds of my own, stating that he agreed with me. I wasn’t bothered by any judge going to a religious service of their choice; I was more concerned about the optics of judges feasting on Church-provided gourmet Mexican food at the reception.
We sent our emails, and the war began. I received many private messages from other judges offended by the Red Mass ceremony but afraid to say anything. Most of the judges who wrote me were Jewish. However, I also received several hostile messages, one from a female judge known to be hot-tempered and Catholic. She was blistering in her accusations. “Judges held a holiday party at the Skirball Cultural Center (a Jewish museum and conference center) so I should not complain about Red Mass.” Yes, the judges rented the Skirball banquet room for a holiday dinner, but no judges were blessed at the non-denominational event, and the judges paid to rent the space.
The controversy found its way to the local legal newspaper, The Daily Journal. Enough judges avoided the ceremony to make it a bust. One hundred judges were expected; around twenty showed up. The guest cardinal, who gave the main lecture, railed against abortion and gay marriage. I was approached later by several judges who attended and said, “I was embarrassed to be there. I wish I hadn’t gone.” The Red Mass ceremony still occurs, but the invitations arrive in the regular mail and not on judges’ email. This is not a religious issue, but an ethical one.
I was a new judge when I took on this controversy. Sticking my nose into perceived injustice, as I’ve had a pattern of doing, was probably unwise. Behind the scenes, among judges in leadership positions, I was likely labeled a troublemaker. One judge told me recently, “You should know that the Red Mass was one reason you didn’t get to transfer downtown for so long.”