In Part 54 of Inside the Robe, Judge Mader describes how a judge might weigh the circumstances of a crime which may carry a mandatory sentence under three strike provisions. She also explores how mentorship for new judges can help build confidence and develop their understanding of their responsibilities under the law.
Yesterday, I described sentencing the “dog whisperer” to twenty-five years to life for his third strike. A few months ago, I also sentenced someone to life imprisonment for a Third Strike offense. These sentences are rare, and they stick out. The earlier defendant was convicted after a jury trial in my court. He committed two robberies. In one, the defendant and a girlfriend went to an expensive jewelry store pretending to be interested in an engagement ring. A few days later, the defendant returned on his own. The elderly female sole proprietor buzzed him into the store, and he filled her eyes with pepper spray. As she writhed with pain on the floor, he systematically broke her glass jewelry cases and disappeared with multiple items of jewelry, which were never recovered. A few days earlier, he robbed a single female in a parking structure with a fake gun. He was convicted of two earlier violent felonies with only a brief crime-free interval between his release from prison and the current crimes. Given the viciousness of these new attacks, how could I justify not giving this man a life sentence?
At his sentencing hearing, the defendant’s uncle testified that he was retired law enforcement. The uncle was gracious to appear in court for his nephew, but lost me when he claimed, “My nephew would never hurt anyone.” I told the uncle, “Thank you for coming to court. Your relative sprayed a woman in the face with pepper spray to rob her of jewelry. I consider that to be ‘hurting someone.’” For weeks, his attorney teased that the defendant would return the stolen jewelry, worth over $100,000, in exchange for a lighter sentence. The jewelry was never recovered. Not one piece.
The defendant’s uncle thought that he knew his nephew, but we do not always know everything about those we think we know. In the 1990s, when I prosecuted a registered nurse for arranging to have her roommate killed so she could claim $100,000 in mortgage insurance they had purchased on each other’s lives, the evidence against the nurse was compelling. Her lovely and educated friends would not believe that she could have done such a thing. As the evidence piled up and the phone records between the nurse and the killers became more damning, her friends began realizing that they never really knew their friend.
The case ended with strong evidence that the nurse hired the same killers a few years earlier to stab another nurse because the defendant coveted his lucrative evening private-duty nursing job. As one of the friends told me later, “It’s been so difficult to accept that our friend was not the loving and compassionate person we thought she was. This has affected each of us every day. Personally, I have trouble making new friends, because I don’t know who to trust. What didn’t I see in my friend’s character that would have warned me?” Sometimes, when dealing with a sociopath, there is nothing to see.
This morning, I jailed the defendant I wrote about on April 18 and April 22 who arrived in court directly from his alcohol rehabilitation center. This is the defendant who was convicted of two additional DUIs after a felony DUI with his child in the car. While the defendant appeared sober, soft-spoken, and desperate to stay out of custody, this was a risk I could not assume. The defendant claimed in each of his recent arrests that he was merely on prescription medication and that’s why he drove erratically. However, at my request, the prosecutor had obtained the arrest reports. In each incident, the defendant had an open container of alcohol in the vehicle, once a bottle of vodka, then a bottle of red wine. He even got into an accident as he maneuvered through a Jack in the Box kiosk.
County jail will be difficult for the defendant. He is afraid. My bailiff, a sweet young woman, as well as an older male bailiff with a prior career as a high school history teacher, sought to reassure him. The jailers at the county jail won’t be as nice. Ever-present violence between inmates as well as allegations of violence against prisoners by jail deputies is often reported. This defendant has multiple medical problems including renal failure. Locking someone up, for me, is the last resort. As in the documentary Scared Straight, this defendant, whose alcoholism wrecked his financial advisor career, needed to hit bottom to rise again. No warning from me will ever be as powerful as the lure of the bottle.
One more slow day punctuated by a long sushi lunch on patio tables in front of a nearby Japanese grocery store. My dining companion was a new judge who began in February and was just learning the ropes. I have absorbed many practical tips in the last fifteen years and have been asked informally to fill in the newbies.
All new judges notice how deferential everyone becomes toward them. It makes them uncomfortable; it bothered me too. Part of our staff’s training is to provide judges with everything they ask for. Some judges never realize that staffs gossip about exceedingly needy judges. Other judges get so used to having staff help them that they begin asking subordinates to put stamps on personal mail or tabulate RSVP’s for private parties the judge is hosting. It’s only when the judge gets into trouble for a more serious matter and staff gets interviewed that all the smaller improprieties come out.
I emphasized to the new judge that she should just get used to having the word “Judge” affixed to her name, and to use it when she calls other court personnel on the phone. It’s confusing to the staff of other courts if I call and say, “Hi, this is Katherine Mader, from Department 117. I’m looking for Judge Smith.” While I may feel it’s less pretentious to refer to myself this way, the person on the other side of the phone conversation doesn’t realize I’m a judge. They may even speak harshly to me. It’s humorous to hear the change in their tone when they realize they’re talking to a judge rather than an ordinary schlepper (literally, Yiddish for one who fetches and carries things, but really meaning an awkward and stupid person).
New judges are often worried about what to do when they are asked if they want to switch assignments. Some assignments are more desirable than others. There used to be a supervising judge of family law who trolled new judges, found the most promising ones, then called to invite them to join her in family law.
“It’s flattering to get the call,” I told my lunchtime judge, “but if you say yes, you will be stuck for years.” It is hard to find good judges for family law. Many of the litigants represent themselves and are uninformed and emotionally distraught. Family law is one of the most difficult and challenging assignments, as people in front of you are engaged in the highest stakes event of their lives. The judge has to make horribly difficult decisions about child custody, decisions with lifetimes of consequences. Judges are promised they have to stick with a new assignment for only three years. They are told that the family bar is congenial, and, instead of traffic tickets, family law judges, even brand-new ones, will be hearing trials without juries and making important decisions right away.
New judges get conflicted. They’ve been told to say “yes” to everything to avoid creating the impression they are not team players. I explained to the new judge, however, that there is, “Of course I’ll finish the traffic court trials that my fellow judge never got around to doing.” But that’s different from saying yes to an assignment they don’t want, especially if they want to stay doing criminal law, and the new assignment will derail that wish.
A judge who wants to stay in criminal law should rarely say yes to an unwanted new assignment or transfer unless a shorter commute or preferable work-life balance is offered. In an outlying area, a new judge will more quickly advance to more difficult trials. However, some distant courthouses have deep-rooted cultural traditions that may conflict with those of the new judge. Attorneys and judges at the new assignment may have been working together for years. Some career public defenders and prosecutors haze new judges and try to test their limits. There is a much smaller pool from which to find new friends.
Once a judge transfers to an outlying court, it is almost impossible to return to the same court where the judge started. To keep a supervising judge happy, the new judge must tell a nice story to explain why they want to remain in the current assignment in criminal court, especially if that’s where their heart is. One nice way to explain is, “I really appreciate the offer. I love doing what I’m doing. I don’t think my personality would be a good fit for ______. But I want you to know that the fact that you offered me this assignment is meaningful to me.”
Judges can adopt a stuffy formality addressing each other and take themselves very seriously. It can be hard to know what a fellow judge is thinking. When I began, I was taken aback by the formality of many colleagues. I found fellow judges guarded compared to defense attorneys and prosecutors who worked with me. It’s important to have a few good friends to give new judges a reality check.
New judges can benefit with mentors. This is especially critical if an important ruling is pending and the new judge is unsure about it. Our court does not have a formal mentoring program. Individual judges have protested that they don’t need a mentor because they are “Independent Elected Constitutional Officers” who use their own judgment. Some brand-new judges bridle at even gentle suggestions. I have watched new judges flounder and make bone-headed decisions because they won’t ask for help. Then there are judges who have trouble making any decision at all. Not an easy problem to fix.