In Part 55, Judge Mader explains the complexities of electoral politics within the judiciary and the implications for defendants, attorneys, and judges.
The “sleep-driving” defendant who crashed his Ferrari evading the police returned this morning for sentencing. The prosecutor finally produced the arrest report from Bakersfield where the defendant was on felony probation. The defendant had been apprehended in a Mercedes which was suspected of having been used in several robberies. He had a gun, as well as meth, cocaine, and ecstasy in amounts for sale. This was different, once more, from his attorney’s description of the Bakersfield case as simple “Ecstasy for sale.” The defendant claimed that his wife in Bakersfield just had intestinal surgery and he was needed to care for his three-year-old twins. While I was dubious, the prosecutor agreed with me that we shouldn’t sentence the defendant today if his two children would be left with an infirm mother who couldn’t care for them. The sentencing was put over for two weeks.
The Los Angeles Times this morning headlined, “Woman in skid row baton case gets help. Instead of 25 years, court grants housing, treatment, probation.” This case arose when a Cameroonian immigrant was shot by the Los Angeles police on March 1, 2015. In the background of a witness’s video, the defendant, Trishawn Carey, a thirty-five-year-old African American female, was seen grabbing a dropped police baton from the ground and raising it into the air. At the time, prosecutors said that her actions constituted “assault with a deadly weapon on an officer.” Since the defendant had two earlier violent convictions, the new case subjected her to twenty-five years to life in prison under California’s Three Strikes law.
The elected District Attorney publicly announced, “The filing prosecutors might never have filed the strike allegation if they’d had all of Carey’s medical information at the time charges were filed.” She then explained, “I think they would have taken a closer look. Once the office understood the scope of Carey’s mental illness, they began negotiating with the defense.” I heard a political explanation, not one grounded in reality.
At the time of filing, deputy DAs never have the mental health records of a defendant. Gathering those records takes months. The first prosecutors only have police accounts of a defendant’s erratic and often violent behavior and a strong suspicion that a defendant is mentally ill. Mentally ill defendants, dressed in yellow shirts, appear in front of me every day, many with serious charges pending. Mentally ill defendants are charged under the Three Strikes law; they may be offered long sentences to settle their cases because mental health history is not yet available. Sometimes, months into the case, a compassionate prosecutor agrees to reduce the offered sentence. Never are mentally ill defendants initially offered a rehabilitation program or a reduction in charge from a felony to a misdemeanor, especially if the charge was “assault with a deadly weapon on a police officer.” Why was this case special?
First, this case had considerable publicity. Many assaults on police officers are handled in the shadows. Jackie Lacey, the elected District Attorney, acknowledged in the article that her office “has not made concrete changes in how prosecutors handle the mentally ill,” although it was high on her priority list. Prosecutors are not given mental health training and are fearful of deviating from their bosses’ evaluation as to what a case is worth. Their immediate bosses never see the straggly, disheveled, ill—and potentially violent—defendants who can barely speak coherently to their lawyers. The elected District Attorney here must face the media and justify the harshness of her office’s initial treatment of the mentally ill defendant.
Second, and sadly, public officials often act only in response to negative publicity or lawsuits. Many defendants appearing before me are mentally ill. I wish all of their charges could be evaluated compassionately, with a view toward treatment as well as protecting society. Our elected DA has the correct idea—but it needs to trickle down to her employees in the trenches.
I have been sent a jury trial. The prosecutor is one with whom I’ve tried cases before, and we get along well. He told me about the head prosecutor on his own floor (different from my own disagreeable head prosecutor) who was recently transferred after a judge complained of his hostile remarks.
“The new head deputy is a total pleasure to work with,” said my new trial prosecutor. He gave me the example of how a defense attorney would approach his former head deputy and say, “I know you’re offering ten years in prison to my client. I wanted to present you some letters from people in his church and community in hopes for a lighter sentence. What about nine years instead?” The former head prosecutor would say, “Now that you’ve come to me, I’ve had a chance to review the file. Since you’re offering nine years and I’m rejecting it, our original offer is off the table. We’re now offering fifteen years.”
It drove subordinate trial prosecutors crazy. But, of course, they couldn’t complain about him because he wrote their evaluations. Bosses have the power to ruin prosecutors’ careers.
My new trial involves a mentally ill female defendant who allegedly threatened a stranger with a knife in a Jack-in-the-Box restaurant. She has five previous felony convictions and was offered two years in state prison, a light sentence. She rejected it, even knowing, as I explained to her, that her record, if she were convicted, would justify a much longer sentence. Her maximum is ten years. No one wants to try this case, including her attorney, but we are going to spend the next three days in a trial that, because of her severe mental illness, should never take place.
Hallelujah! The trial defendant used the jail phone to call her fiance last night. He urged her to accept the two-year deal. This was all about her fiance’s approval. My court is free again and awaiting its next trial.
Distinctions between elected and appointed judges were today’s topic in the judges’ lunchroom. The vast majority of judges are appointed by a governor. Informally, judges even label each other with the names of the governors who appointed them. Someone might say, “Oh, of course, he loves long sentences. He’s a ‘Wilson’ appointment.” Or, “She’s a leftover from Deukmejian days.” Governors Wilson and Deukmejian were Republicans known for appointing prosecutors to the bench.
Through technical rules, some judicial slots can be filled by election and don’t have to go through the governor. Some appointed judges think they are more qualified than elected judges. They insist the vetting process is more thorough if done by a governor and state and local bar committees. No question the vetting process is more thorough. But a governor’s appointment may be susceptible to different questions such as whom the appointee knows (Who is their “rabbi”?) and how much money was contributed to a governor’s campaign. Fancy law firms are known to have gotten rid of problem associates or partners by arranging their appointment to the bench. Appointees may not want to make controversial decisions that would embarrass the appointing governor.
Elected judges can be as wacky as some appointed ones. The argument supporting elected judges is that they don’t owe anyone anything, which results in more independence. Elected judges are chosen by “the People,” don’t have to be as compliant with the “System,” and can be more outspoken. People do slip through the election process who are not qualified to be judges. Voters don’t research whom they’re voting for. They may just like the candidate’s name or sex or profession. That is the price we pay for letting some judicial seats be chosen through the electoral process.
I am proud to be an elected judge. Fealty toward a politician is not my nature. I am defensive, though, about my qualifications, and for years felt a need to justify my election, especially after I was first elected. Soon after my election, I often lunched with a group of appointed judges. One of them, a supervisor, was a voracious gossip. After she reported a stupid decision a judge made in her courthouse, she’d say, “What do you expect? Elected, of course.” Those insensitive clods didn’t realize they were talking in front of an elected judge. If they knew that I was elected, they forgot or didn’t care. I didn’t forget.
Another judge at lunch told of her roommate in Judicial College, the two-week session all new judges must attend. “My roommate was weird. She asked me to stop traffic while she used parchment to make brass rubbings of engraved historical manhole covers on Berkeley’s streets.” After everyone uproariously laughed, she continued, “By the way, she was obviously elected.”
One week later, I saw the judge who made the remarks in the judges’ parking lot. She came running toward me, then stopped, and apologetically said, “I’m so sorry, Kathy, for telling the story about the elected judge in front of you. I forgot you were an elected judge.” I appreciated her apology but wondered what or who reminded her that I was elected. After several years, especially if a new judge can do the job, no one remembers or cares whether the judge was elected or appointed. Yet it remains in the back of my mind. Whenever I see an article describing a judge being disciplined, I immediately look to see whether he or she was elected or appointed. If the judge was appointed, I breathe a sigh of relief.