In Part 56, Judge Mader offers an anecdote about judges undergoing sensitivity training and reflects on policing tactics that may challenge the pursuit of justice.
Political correctness is an aspect of every judge’s demeanor. Not only are we at the mercy of the CJP, but our own local leadership system keeps an eye on us. This was demonstrated at a recent yearly mandatory seminar for all criminal judges. The seminar is designed to bring all criminal judges up to date on the latest cases and subjects.
At the end of the day-long seminar, learning about dry subjects such as sentencing laws and evidence, we all needed a lighter topic. The last topic of the day covered persons representing themselves in criminal proceedings. Many persons should never represent themselves as they exhibit bizarre behavior and are likely mentally ill. Complicated rules require judges to allow self-representation if a defendant is competent and does not disrupt or delay the proceedings. These cases are challenging. With constant motions and objections, defendants representing themselves can get judges, me included, so frazzled that we make silly mistakes.
The last presentation of the day was a skit written and acted by judges. One judge played the role of a mentally ill defendant representing herself. Two robed judges sat solemnly on the stage, one presenting the Good way for a judge to treat the defendant, the other the Bad way. A female African American judge, wearing the shapeless yellow shirt and blue drawstring pants of a mentally ill defendant, played her role too well. Her hair loose and wild, with a comb stuck into her Afro, she wandered throughout the audience screaming, “You are all dump trucks! No one can represent me better than me! I know what I am doing. You’re all tools of the racist system!” The Good judge and the Bad judge tried to control her, but she didn’t respond to either of them.
Complaints from judges in the audience about the skit reached the supervising judges, and the author of the skit was called before them. The words on the written script weren’t the problem; the issue was that the performance was too realistic. One judge said, “I’m horrified that African Americans were insulted in front of all the other judges.” Another said, “How dare the judges caricature the mentally ill so maliciously,” and others said the skit created the incorrect impression that all the mentally ill defendants were African American. I thought the skit was creative and well-performed. It was no more insulting than a Saturday Night Live sketch parody.
Something had to be done. A three-hour sensitivity course was forced upon every judge in the criminal courts. All of us, in shifts, shut down our courtrooms for an entire afternoon because a dozen judges out of several hundred were offended. If there truly were racist judges or others who routinely mocked the mentally ill, the new required course likely amplified their attitudes. The judges who didn’t need sensitivity training wasted our afternoons.
My morning calendar today included a sale-of-narcotics case that makes me wonder whether our criminal justice system has gone mad.
The defendant, in his fifties, having lived on the streets forever, received a request from a familiar-looking face, a former skid row resident. The defendant did not know his former buddy was secretly working undercover with the police to reduce his own narcotics sentence. The informant tried to buy cocaine from the defendant while being watched by plainclothes officers from afar. A rock of cocaine sells for between five and twenty dollars. The defendant emerged from his tent, ambled through skid row, and tried to assist his friend James.
“Do you have a rock for James?” he asked another homeless man, sitting on the sidewalk. “No, but I think Cody might be holding,” he was told. The defendant went searching with his friend for Cody and found him. “Hey Cody, you have a spare rock?” Cody replied, “No man, I’m out, but maybe Sylvia will help you.” Sylvia was found, and she produced a rock for the defendant. James gave Sylvia ten dollars in marked police currency. Sylvia was arrested for simple possession of cocaine, a misdemeanor. The defendant, however, was arrested for felony sale of cocaine for assisting in the sale. The prosecutor wants the low term in state prison, three years.
There have been approximately eight court appearances so far in the defendant’s case, including an hour-long preliminary hearing. The case is going to be set for trial because the defense attorney will not accept a state prison sentence for his client who assisted in selling one rock of cocaine. If the case goes to trial, investigators for the prosecutor’s office need to find witnesses. A jury trial would take three to four days and tie up a courtroom. And for what? A “drug trafficker,” the defendant, was taken off the streets for a few months. Hours of time were taken for officers to write the arrest report, attorneys to review the case, and a judge to call the case multiple times in the courtroom. Has justice been served?
When I am not engaged in trial, a parade of police officers come to my court with search warrants for me to sign. The warrants are often directed to cell phone companies. Police agencies used to be allowed to browse through an arrestee’s cell phones without a warrant. They quickly could find a suspect’s contacts and recent calls. The United States Supreme Court now requires a formal search warrant before anyone’s cell phone can be accessed. Nowadays a person’s entire life may be deciphered and invaded just by examining their computer-like phone. Investigations can become bogged down due to this warrant requirement, but privacy concerns are real.
While privacy is also a concern because so many businesses have interior and exterior video cameras, investigations can move much more quickly. One search warrant this morning involved a murder with uncooperative gang witnesses. The police recovered videos of a unique white van from several business locations around the murder site. Videos didn’t capture the exact moment of the murder, but they identified the type of van used and its license plate. Cumbersome searches for the involved car were eliminated.
Two brothers arrived in court this morning because their five-year probation for insurance fraud was expiring. The amount stolen was $20,000. Even though both brothers reliably made payments for sixty months, only $10,000 had been paid back. Because their probation was expiring, I needed to order the remaining money owed be taken from their future wages. At first, everything went smoothly.
At the end of the proceeding, one of the lawyers asked, “Would it be possible for you to give permission for my client to travel to Mexico for the last three days of probation to celebrate his wedding anniversary on a cruise?” Probationers cannot leave the state without permission during the period of probation. Cora, my assigned prosecutor, went nuts and exclaimed, “I am shocked that this defendant has the funds to go to Mexico. Any extra money he has should be used to pay back the victimized insurance company.”
A logical argument, but my prosecutor was picking a fight without knowing all the facts. The probation department’s report stated each defendant had performed well for five years on probation, hadn’t violated the law, and paid restitution. According to one defendant, “The three-day cruise was a gift from my mother-in-law. I did not have any money to pay for it.” I let him go. His paycheck will be docked for years to pay the unpaid debt. Since the debt was not paid in full, the defendant did not successfully complete probation. Without a successful completion, a felony conviction can never be reduced to a misdemeanor.