In Part 48 of Inside the Robe, Judge Mader offers anecdotes demonstrating how inconsistent sentencing policies within a prosecutor’s office can lead to unfair disparities in plea bargain offers, and she offers self-criticism of when she does not control her instincts to argue with disrespectful attorneys.

April 25

Just as teachers live for the day a successful former student comes back to visit, success stories can highlight my day. A letter arrived this morning from a man I sentenced to state prison about ten years ago for killing his mother. The defendant was an accountant, whom all witnesses attested loved his mother dearly. He also was an alcoholic who killed his mother with blunt force in an alcohol-fueled stupor. The prosecutor’s office recognized the unusual circumstances of his crime and allowed him to plead guilty to voluntary manslaughter. I sentenced him to five years in state prison. A sentence to the highest term of eleven years was an alternative that would have also been reasonable, but I took a chance.

The letter from the former defendant thanked me and told of his involvement in the alcohol rehabilitation community. He wrote, “I don’t come near alcohol anymore. I realize its destructive nature. I also miss my mother every day.”

A new and different type of trial arrived in my court. A thirtysomething defendant is charged with doing donuts in his Ferrari in a mid-city intersection at 3:00 a.m. Doing donuts means driving a car in tight circles over and over, creating skid marks resembling donuts. The defendant then led the police on a chase before crashing into a cement planter and running away. This is his second trial. The first one hung eleven to one in favor of conviction. The defense claims the defendant suffers from “sleepwalking,” a form of sleep apnea. Presumably, that includes sleep-driving and sleep-running from the police.

The case could not be settled because the defendant wants no jail time. The prosecution is offering two years in state prison. According to the defendant, “This is all because I am a Hispanic male driving an expensive car.” I told the trial prosecutor, “We had an almost identical case in my court this morning. A Latina took the police on a chase with her child in her car. She was charged with felony evading arrest and child abuse, too. In her case, the DA’s office is offering three years of probation, one year of parenting classes, and sixty days of community labor. No jail. Shouldn’t the female’s case be more serious than the man before me because she had a child in the car, and almost hit a pedestrian during her flight?”

Why are the two cases being treated differently? Beats me. The trial prosecutor told me, “I thought all felony evading defendants were offered state prison.” Wrong. This happens a lot. How are judges supposed to respect wildly different offers by the prosecution on similar facts?

The defense attorney is asking prospective jurors, “Do you or anyone close to you have sleep problems?” “Do you take medication for sleep issues?” The questions sound invasive to me, but there has been no objection. He’s also asking, “Have any of you ever had too much to drink, driven home, and woken up in the morning without knowing how you got home?” Several jurors said that has happened to them. This question does not appear relevant to a man who was “Sleep-driving.”

April 26

The defendant’s sleep issues dominated the day. I couldn’t resist interrupting the defense attorney because his arguments, outside the presence of the jury, had such obvious holes. The defense attorney argued back, and I shouldn’t have let it happen. The attorney was disrespectful, yet I have a problem with letting rude attorneys get under my skin and arguing with them. I need to make sure I don’t let it happen again tomorrow. Private attorneys sometimes put on a show for their client to prove they’ve earned their money. Bullying the judge was this attorney’s modus operandi.

April 27

Today I will try to act more like a judge. No arguing with the trial attorney. At least, that’s what I resolve as the day begins. As one judge friend says when attorneys argue with him, “I am the judge. You may argue ‘at’ me, not ‘with’ me.” It’s been a hard lesson for me to learn. Falling back on “I have an argumentative personality” is a weak excuse for a behavior I need to change. When others defend bad behavior by explaining that they have a bad temper or they’re just “moody,” I find it off-putting. Years back, I read that “Moodiness is a form of self-indulgence.” Yesterday was a relapse that I regret.

Calm returned to the courtroom today. The defendant is continually yawning. I wonder if anyone else will notice or bring it up. Yawning could be a manifestation of his sleep symptoms or the defendant could just be tired. It’s hard to imagine someone yawning from boredom during his own felony trial with all eyes upon him.

The arbitrariness of our plea-bargaining system continues on display. The prosecutor in my trial said, “My office policy is that all defendants convicted of evading the police in their cars go to state prison.” She was wrong. Cora regularly offers probation in such cases. When the trial prosecutor asked her office, she was told, “If a defendant goes to trial on the Fifteenth Floor, the policy is ‘state prison only.’” That policy is set by the head prosecutor on the Fifteenth Floor. If the case originates on the Eleventh Floor, where my courtroom is located, he might receive something less than prison. How can people have confidence in our criminal justice system if a prosecuting agency does not have consistent sentencing policies between different floors of the same courthouse?

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