In Part 51 of Inside the Robe, Judge Mader describes the complexities of ICE deportation proceedings after a felony conviction and how the jury selection process can sometimes tell the court as much about its officers as it does prospective jurors.
After three hours of deliberation, the jury convicted the “sleepdriver” of evading the police as well as hit-and-run with property damage. Should I put him in custody until the date for sentencing? Prosecutors usually ask that defendants be remanded into custody after they are convicted. A defendant may be more likely to flee after a conviction, especially if they think they could be going to jail. Also, twelve people have decided that this defendant, behind the wheel of a car, is a risk to the public.
The defendant had made all of his court appearances. I didn’t put him in custody. I ordered that he not drive a vehicle between today and the day of his sentencing in two weeks. The main issue for me was figuring out an appropriate sentence. From the prosecutor, I asked for the defendant’s arrest reports from Bakersfield, California, where the defendant was on felony probation for possession for sale of Ecstasy. Was the defendant a major drug seller? If he was, I would consider prison. One year in the county jail is another possibility.
Yesterday I described Cora’s anger when a hearing went badly for her. Today was her day for revenge. One month ago, an older man filed a motion to withdraw a guilty plea he entered in 1991 for felony possession of marijuana for sale. ICE (Immigrations and Customs Enforcement) was seeking to deport him, despite his lack of criminal activity for the past twenty-five years. This is not unusual. Often persons who committed crimes years ago, with clean records since that time, are scooped up by ICE and placed in a detention facility. The fortunate ones hire an attorney to try to stop the deportation.
One of the only ways to stop the deportation in my court is to argue, “I would never have pled guilty years ago if I knew I could later be expelled from the country. My attorney never told me this could happen. I have a business, family, children in college, and I always pay my taxes.” Nowadays defendants entering pleas are all told, “Do you understand that entering the plea of guilty in this case will result in deportation, denial of citizenship, and denial of re-entry into the United States?” This advice was not given years ago to defendants pleading guilty.
One defendant’s luck may be another defendant’s nightmare. Some judges have prosecutors assigned to their court who never oppose defendants’ motions to withdraw pleas many years later, especially if the defendant has led a law-abiding life. As the reader may guess, Cora is not one of those prosecutors. She fights to the death every one of these motions. When a plea is withdrawn, the defendant still faces a new trial on the original charges. My prosecutor will look under every rock to find the marijuana from twenty-five years ago to prosecute the defendant again. In marijuana cases, it has usually been destroyed.
I began this hearing several weeks ago and continued it until today for the attorneys to gather more old documents.
Before I could call the matter, my judicial assistant said, “Cora just filed a motion to disqualify you from hearing this case.” My prosecutor may be worried that I would allow the defendant to withdraw his plea—in her thinking, a contributing member of society should not get credit for twenty-five years of a blame-free life after a marijuana conviction. But Cora made a mistake. A disqualification must be filed at the beginning of the hearing. My hearing began a month ago. This was a continuation of the same hearing. I did not accept the disqualification, continued to hear the case, and granted the defendant’s motion to withdraw his plea. Cora’s motion to disqualify me was not filed in time. Checkmate.
What a lousy way to deal with critical issues affecting a family’s future. Arbitrariness reigns, from the ICE decision to detain this particular defendant, to the assignment of prosecutors to a courtroom, to the judge hearing the case. At each step, a family can either be protected or torn apart. Whenever I think about retiring, I remember my power to make important decisions as well as exercise compassion in my small corner of the world.
A family feud erupted in my courtroom this morning. A male, midthirties, in and out of non-violent trouble, was jailed for a new offense. The incident arose from a dispute with the defendant’s father at a donut shop the father frequented.
The father claims he was waiting in line for his morning donut when his son appeared. The father asked, “Have you gotten a job yet?” This infuriated the son because his father always asked him the same question. The son responded, “Get the fuck out of my face.” The father pushed his son. Hard. Twice. The son reacted by punching his father in the face, breaking his glasses, and cutting his face. Father and son accused each other of being the initial aggressor.
Divorced from his son’s mother since the son was six years old, the defendant’s father testified that he truly loved his son. After a period of separation after the divorce, the son reunited with his father, who by then had a new family. Later, the relationship broke down. The son began living on the streets and acting erratically.
I didn’t have to resolve the fight because the father’s new wife, the defendant’s step-mother, had recorded a creepy cell phone message her stepson sent her after the incident. The message on the recording: “You’re next.” That was enough for me to find the son in violation of his probation. I issued an order that the son stay away from his father and new family and that he serve one year in jail. I also suspended three years of state prison over the son’s head.
A new jury trial has arrived. This time it’s a defendant charged with being a felon in possession of a firearm and ammunition. A felony conviction prevents a defendant from owning a firearm or ammunition for life. This defendant, a biker type in his thirties with a stringy beard, is facing a maximum of four years in state prison. The public defender rejected an offer of two years, claiming his client has a good defense. I hope so. Defendants who have been out of custody for six months on bail, like this man, don’t ever want to plead guilty if it results in one more day in jail.
Selecting another jury will occupy the afternoon. One of the prosecutors is the son of a well-known local politician. Many politicians, prosecutors, judges, and defense attorneys have offspring who are lawyers in criminal justice agencies. The great majority are well-qualified for their jobs and work even harder than others in the office to prove they got their jobs through merit. Government lawyer jobs nowadays are few and far between.
My age was on display while selecting the jury. When asked to describe his occupation, a prospective juror said he ran an “entertainment agency.” My look of puzzlement resulted in a lengthier explanation: “I manage a stable of male and female strippers for parties in and out of state, ‘like Magic Mike.’”
I asked him to clarify: “Magic Mike?” My court reporter was laughing. As my court reporter rarely cracks a smile, I asked the group of thirty-five jurors, “Am I totally out of it? How many of you are familiar with ‘Magic Mike’?” Almost the entire room raised their hands.
I have since learned that Magic Mike refers to a movie with Channing Tatum and is about a nineteen-year-old male stripper. When I came home, I asked my husband, who just turned sixty-nine, if he had heard of “Magic Mike.” He asked if I was referring to a strange guy who lives in our neighborhood.