In Part 50 of Inside the Robe, Judge Mader weighs the role and meaning of probation in the criminal legal process and details a case that hinges on a defendant’s broken stereo.
Every felony case file in my court contains a report from the probation office. Their summary of the facts of the crime is usually lifted from the arrest reports. A defendant’s criminal history is attached to the report. With the information captured on the report, I try to figure out the appropriate sentence. Cuts to Probation Department staffing have gutted the department. It must be troubling for a professionally trained probation officer not to have time to conduct thorough investigations.
Monitoring each defendant once a month for up to five years is also the job of probation officers. For many placed on probation for non-violent offenses, they might not see a live probation officer for the entire period of probation. Instead, the defendant checks in at a kiosk once a month by placing a thumbprint into a machine.
This month a defendant whose probation for grand theft was expiring after three years was before me. He still owed several thousand dollars in fees assessed by the probation department for years of supervision, but had paid back all of the money he stole. Over thirty times the defendant paid incremental fees to the probation department totaling $1,800. He reported only to a kiosk and never to a live probation officer. I tell defendants that if they show a consistent effort for three years and pay what they can afford, I will consider the debt to probation paid. I told the defendant, “You have shown good faith over a lengthy period of time. I am waiving further fees.”
Isn’t $1,800 in thirty installments a sufficient effort to allow someone to finish probation without having a debt hanging over his head for life? Perhaps having a debt is not awful and I am being too forgiving? When I have a disagreement with the prosecutor on this subject, I question my judgment. The lingering lesson that committing a crime has lifelong consequences could be important to prevent someone from re-offending. Wiping a slate clean and wishing a defendant well after successfully completing probation makes more sense to me as an incentive to live a responsible life.
A sleep expert testified for most of the day in the trial. I am more and more irritated by the sleep-driving defense in this case. The sleep doctor testified, “The fact that the defendant was doing donuts in an intersection shows evidence of confusion, because why would anyone do that?” Upon questioning, the doctor said that she has never personally seen a case of sleep-driving. The doctor’s Eastern European accent indicated that perhaps she was unfamiliar with males in souped-up sports cars showing off by spinning their car in an intersection.
After he ran from the police and was captured, the defendant apologized profusely and told the police, “I panicked when the police caught me doing donuts. I was trying to get away.” According to the police, the defendant was not confused at all during their conversation. The sleep doctor never considered those facts.
Some days start off with a bang. Sitting in front of me at the counsel table in jail blues was a bulky, effeminate male with a short blonde Afro. He had been driving a large truck when stopped by the police. According to the officer, “I pulled the defendant over because his truck was blaring loud music and the truck stopped over the limit line, two separate traffic violations.” After a search, several containers of cocaine were found in the truck. The defendant was arrested for possession for sale of cocaine. The defendant has four prior felony convictions for selling drugs, but he was challenging the legality of the search.
The defendant testified. “I was not blaring loud music when I was pulled over. I didn’t need to stop at the limit line because I had a green light.” He showed us a receipt and business card. “The morning of the day I was stopped, I went to a car stereo repair shop. I made an appointment the next day to have my stereo repaired.” What was written on the appointment slip? “The stereo is broken and can’t play music.”
The owner of the stereo store, a middle-aged man with a heavy Russian accent was the next defense witness. He confirmed what the defendant said. “I made an appointment to fix this man’s stereo because it didn’t work.” This was the same day he got arrested. The prosecutor could not shake him. The defendant also testified, “I repaired my stereo about five days after I got out of jail. Here’s the receipt for the repair and the business card from where I had it fixed.” The receipt echoed that the repair was to his stereo’s volume because it did not play.
Could the officer hear loud music playing from the defendant’s truck on the day and time in question? The defendant could have been playing loud music from a portable radio on the car seat and not his car’s stereo system. The defendant could be making up the story and getting a witness from the stereo repair shop to lie for him. The police officer could have heard a blaring stereo but attributed it to the wrong vehicle.
Whispering to the arresting officer sitting next to her, the fuming prosecutor, Cora, as well as the police officer stared at me with hostility. Most defendants are not able to present independent evidence, such as the stereo repair owner, to support their position. Why wasn’t Cora thinking, “Looks like I might have a problem. Maybe my officer is mistaken. Perhaps I should re-evaluate what’s true here.” With Cora, that doesn’t happen. She just digs in deeper.
Cora’s rancor can poison the courtroom atmosphere. Waiting attorneys in the audience, as well as clients, recoil uncomfortably. I could have made a ruling on the spot. Both sides needed to argue their positions, and my jury trial was about to start. If I listened to the arguments on the motion, with my DA’s anger boiling over, I worried about becoming embroiled and saying something I would later regret. I continued the arguments as well as my decision.
Closing arguments in the jury trial consumed the rest of the day. The defense attorney spoke for ninety minutes about how his client was obviously sleep-driving. The prosecutor argued, “The defense of sleep-driving is an insult to the jurors and a joke.”