In Part 53 of Inside the Robe, Judge Mader expresses concern about the influence of the so-called “CSI” effect and the demand for DNA evidence by jurors. She reflects on the intent behind three strikes sentencing, and she answers the classic question, “What do judges wear under their robes?”
Jurors watch too much CSI, a dramatic television series highlighting forensics. Even in simple jury trials, they want unnecessary and exotic hair and fiber tests, DNA, and fingerprint evidence. In the trial just concluded, two police officers testified they saw a gun butt sticking out of the defendant’s pants. The defendant ran into his house where a gun that fit into the defendant’s holster was found. Despite the damning facts, the jury hung in favor of “Not guilty.” This jury wanted DNA. Many jurors do not understand that it costs hundreds and sometimes thousands of dollars to do DNA testing.
Responding to the defense argument that DNA evidence wasn’t presented, the prosecutor explained, “In a driving under the influence case, if officers see the defendant driving a weaving car, and then smell alcohol, and the defendant fails sobriety tests, they are not going to test the steering wheel for DNA or fingerprints to confirm the defendant’s prints were on the wheel. The defense had the same opportunity to test the gun for prints and DNA. Why didn’t he, if he was sure that the tests wouldn’t implicate his client?”
The prosecutor should have challenged and excluded the foreperson of this jury. During jury selection, she said, “My nephew was wrongly convicted of murder when he was acting in self-defense. I watched my nephew’s entire trial and was furious with the prosecutor.” When I asked her, “Would your negative experience in that situation cause you to dislike the prosecutor in this case?” With a big smile, she said, “Of course not. That was completely different.” When a biased juror becomes the foreperson, an entire group of jurors can become tainted. I’m sure this case will be retried. While the retrial is pending, the defendant remains free.
I feel like a lovesick teenager sitting by the phone waiting for it to ring. Every time the front door of my courtroom opens, I look to see if a jury trial is arriving. No trials have arrived. No disqualifications were filed, either.
The headline of our legal newspaper, The Daily Journal, proclaimed today, “Most CJP findings against LA Judge rejected.” Hurray! A three-judge panel took three days of live testimony to decide whether my colleague spoke rudely to a juror, as I described on March 7. The full CJP doesn’t have to accept the findings of the three-judge panel. It would be highly unusual, though, for the full CJP to seek to overturn the findings of the three masters. The next hearing will take place in August.
As this is a quiet day, here is a question I’m often asked: What do judges wear beneath their robes? I always thought judges were formally dressed every day, especially that men wore suits and female judges also dressed formally, with nylons and pumps. I soon learned otherwise.
Robes can be very warm. They may be made from polyester, the hottest, to fine wool, the coolest and the most expensive. Judges’ robes and church choir robes are similar and can be purchased online. Or they can be bought at specialty shops and fitted by a tailor. My robe looks like a tent and makes me feel bulky and shapeless. Likely, traditional shapeless robes for male and female judges are intended to de-emphasize the person inside the robe.
When I first joined the bench, my judge friend said, “You should buy sweater sets because you can stay warm on your way to court, and then wear just a shell under the robe.” Many women become judges in middle age and suffer from hot flashes, and that suggestion made sense. I was also told that I should get my lips tattooed because “Have you ever seen a judge apply lipstick on the bench?”
Snaps versus zippers versus Velcro. Since we’re taking our robes on and off all day, judges want to transition quickly. I vote for snaps, as do most of my fellow judges. Another issue is cuffs. Cuffs that close and prevent air circulation are the worst. Most judges prefer loose cuffs open at the wrist.
Just as many newscasters look professional from the waist up because that’s what’s seen on camera, some judges dress similarly. I’ve known several judges who always wear jeans and sneakers. Some male judges never wear a suit or sports coat to work and keep just one in their chambers. Never is a suit coat worn under the robe.
Audience members do not see me below the waist and never see my shoes. On hot summer days I will wear a sleeveless top, loose cotton pants, and sandals. It’s easy to walk to lunch unrecognized, even by attorneys who appear before me. If they do recognize me, they say, “Wow, Your Honor, I had no idea that you were so short.” I am of average height for a woman of my generation, but because our bench is elevated, there is an assumption that we all are larger than life, like justice itself.
Another slow day. Many judges in my building are also free, except a judge on my floor who was sent a twenty-count child molestation case. We all commiserated. “It’s going to take you days to find enough jurors for the length of the trial and the subject matter.” While jurors always try to wiggle out of serving on a gang case, finding jurors to serve on a child molestation jury when the victim is under the age of ten is even harder. Shockingly, many people have their own experiences with molestation, often within their family. They give their information privately, at the sidebar, and that also prolongs jury selection.
A notice from the Court of Appeal affirmed that a trial I conducted as well as a Three Strikes life sentence that I imposed had no errors. While I am glad that my work was approved, I don’t feel pleasure at the life sentence. The defendant will not be considered for release until he comes before the parole board in twenty-five years. As he is now in his fifties, that’s likely never.
This defendant committed several robberies when he was in his twenties, went to prison, was released, and did exceedingly well for a decade. He established his own business as a “dog whisperer,” and I received many letters attesting to his unusual ability to adjust wayward dogs’ behavior. His mother died, he returned to using drugs, and then he resumed his earlier criminal lifestyle.
If these new robberies were simple, I could have justified giving him a fixed term in prison. They were not. In one robbery, he constructed a fake bomb, then herded a group of employees of a big box store into a back room where the safe was kept. He threatened, “If you don’t open the safe, I’ll set off the bomb.” The victims described their terror at the trial. Around the same date, the defendant also robbed a pizza restaurant with a gun.
The Three Strikes law requires a judge to consider a defendant’s prospects for rehabilitation as well as the seriousness of the crimes as part of deciding whether a life sentence is appropriate. This defendant remained clear of criminal activity for a decade. When a stressor occurred, though, his mother’s death, he reverted to his old ways, even in middle age. How could I feel comfortable that if he were released, even in his seventies, and stressed again, he wouldn’t start committing robberies? Cases can be reversed if higher courts decide a defendant was a poster boy for a Three Strikes life sentence, but the judge arbitrarily didn’t impose it. I wasn’t sure whether this defendant would commit more robberies, even in old age. I was legally required to give the defendant twenty-five to life. It didn’t make me feel good.
I just returned from picnicking on the courthouse lawn with two judges I know from the DA’s office. Friends who have my back feel comforting. We laugh at the pretentiousness of a few of our fellow judges clawing up perceived rungs of a judicial ladder. One of them stopped by our table on his way from one administrative meeting to another. What does he want? Perhaps an appointment to the appellate court? Or to become the presiding judge of the entire Los Angeles County court system, the largest court in the world? We all know these folks. They’re the ones who say a perfunctory hello but never express curiosity about our lives. Their eyes are straying to those they consider more important.
Some people honestly enjoy the administrative challenge of keeping a dozen gavels floating in the air. Kudos to them. It’s never been my thing, but I don’t begrudge the judges who genuinely want to help the court and are not engaged in narcissistic quests for validation.