In Part 52 of Inside the Robe, Judge Mader offers insight into challenges that sentencing reform efforts face and explains how attorney behavior can work both for and against efforts to ‘win’ in the courtroom.
The news is full of stories of sentencing reform, even about collaboration between Republicans and Democrats in Congress to get it done. When I began practicing criminal law in the early 1970s, every agency, from the prisons to local prosecutors and jails, was promoting rehabilitation as well as punishment. In the 1990s, the tough-on-crime movement ostracized anyone who was not on board by labeling them “soft” on crime. Tough on crime hasn’t worked well. Prison populations are exploding, and the United States has more persons locked up in proportion to its population than any other country in the world. We’re back to exploring the rehabilitation model.
Years earlier, some judges used to brag about how many years in prison they imposed. Death verdicts were figurative notches on some judges’ belts. Sixteen years of Republican governors appointed mostly prosecutors to the bench who pushed the punishment model. It was impossible for a criminal defense attorney to get a judgeship from a law-and-order governor. Attitudes have shifted. Former public defenders are being appointed as judges, and prosecutors find it’s more difficult to get appointed to the bench. It’s now prosecutors who run for vacant judicial seats in elections and fight with other prosecutors for the slot. The public still votes overwhelmingly for prosecutors on the ballot.
While I believe in rehabilitation, that does not mean that I think everyone can be rehabilitated. I prosecuted two separate women in cold-blooded, murder-for-hire cases. Each of them, purely out of greed, hired a killer to kill someone close to them. One had her husband killed, the other a roommate. In each case the motive was money—an insurance payout. I argued that each jury should impose the death penalty, and the juries agreed. Both of these women are on California’s death row. While my views about the death penalty have changed since that time, particularly after learning of persons exonerated through DNA after lengthy prison stays, I have no regrets about the part I played in each woman’s prosecution. They were heartless, and no amount of rehabilitation would grow a conscience in either woman.
While the rehabilitation model is having a resurgence, it doesn’t always filter down to trial prosecutors. Recently, I had a trial after which the prosecutor stomped out of my courtroom, incensed that I gave the defendant only twenty-two years in custody, to be served at 80 percent. He wanted me to impose closer to thirty years.
The facts: One afternoon, a young man in his early twenties, high on methamphetamine, went in and out of small cottages on the same large property, sometimes through a window, sometimes through unlocked doors. If he encountered a person inside, he stared at them, left, and tried to enter another cottage. The occupants of the cottages were poor, and there were few items of value. One bottle of perfume taken from a cottage was found outside a window, and when the defendant was arrested, he had an iPad with a broken screen that he had taken from another cottage. The movements of the defendant were bizarre and illogical, and he was universally described as “out of it.”
Each time the defendant entered a separate cottage, he was technically committing a first-degree residential burglary. The drug addled defendant was convicted of committing five residential burglaries and, with his prior record of mostly drug offenses, was facing from thirty to thirty-five years in prison. The prosecutor was urging a sentence close to the maximum. I couldn’t see it. There is no excuse for violating someone’s privacy in their homes, but someone loaded on drugs is different than a calculated burglar with a sophisticated scheme to take valuables. The defendant was in his early twenties and will remain in prison until his late thirties. How much time is enough?
Prosecutors and judges have become nonchalant about locking people up for twenty to thirty years for a robbery or burglary when there is no demonstrable evidence that such sentences are more effective than ten years for the same crime. We have all become desensitized; it’s disheartening. I’ve gone along, believing that I could do more good than harm, inserting some balance and compassion into the process. But it doesn’t make me feel good about myself.
We seated our jury quickly this morning. What a pleasure to work with two professional and cordial attorneys who know what they’re doing and don’t waste time. This will be a simple trial. The defendant is alleged by a police officer to have had the butt of a gun poking from his T-shirt. Ignoring the police officer’s order to stop, he ran into a residence. The police followed, and saw the defendant disappear upstairs into darkness. When he returned a few minutes later, with his hands up, he repeated over and over, “I don’t have anything! Just a knife! I don’t have anything!”
After the officers got a search warrant, they discovered a loaded semi-automatic pistol with two magazines concealed beneath a pile of clothes at the top of the stairway, exactly where the defendant ran. When detained, the defendant wore an empty holster. He also carried a small pocket knife. Defense cross-examination hinted that the defense will claim that the police planted the gun found at the top of the stairway.
Watching an attorney do something original to prove a point at trial always gets my attention. While each police officer testified, “Even though it was dark, I saw the butt of a gun in the defendant’s waistband,” the defense will likely argue that it was too dark to see. “The police either planted the gun or were rousting the defendant and luckily found the gun.”
One officer testified, “We could see the defendant clearly because we ‘lit him up’ with a flashlight.” The prosecutor asked me to turn off the lights in the courtroom. Ordinarily, I’m leery to turn off lights if a defendant is in custody. But this defendant was out of custody. The prosecutor stood the same approximate distance from the police officer as the defendant stood in the street. The prosecutor asked the police officer, “Please shine your flashlight on my waist to show the jurors the strength of the lighting.” The strong light-beam coming from the flashlight made it easy to see the defendant’s waistband.
Attorneys rarely do courtroom demonstrations. Yet, visualization can work better than using words. People learn in different ways. There will always be people on juries who tune out talking heads, whether the prosecution or the defense. It’s hard to tune out the flashlight demonstration.
The defense attorney also claimed that the holster did not fit into someone’s pants. In his rebuttal argument, the prosecutor immediately took the holster and the gun and demonstrated how well to a residence. The police followed and saw the defendant both fit into his pants. I kept thinking about the O.J. Simpson case and the glove demonstration. A truism in criminal law holds that one should never ask a question of a witness to which the attorney doesn’t know the answer.
During my morning calendar, I granted the defense motion in the case where the officer stopped the defendant’s truck for “loud music.” The prosecution did not convince me that “there was a reasonable suspicion” (the legal standard) that the defendant was playing loud music. I ruled that everything flowing from the stop could not be used as evidence, including several rocks of cocaine. As usual, my prosecutor was upset.
I have not found a way to get along with Cora. I like to think that I’m easy to get along with, but perhaps that’s not true. Perhaps I’m as pig-headed as she is. I don’t like prosecutors who take things personally and get angry when things don’t go their way. Prosecutors are used to winning defense motions that challenge the legality of searches. Former prosecutors on the bench created welcoming atmospheres in the courts but the tide has changed. Today, prosecutors have to get used to a different world where they don’t always win.