Part 57, Judge Mader explores how empathy can be a useful tool in the courtroom. She also reflects on the often thankless role of the criminal defense attorney.

May 26

A double murder trial arrived in my court this morning. Good lawyers with an eight-day estimate. The defendant, a fellow gang member assisting the shooter, is alleged to have approached a car with two persons sleeping inside in the early morning hours. The shooter supposedly had a beef with the driver of the parked car a week earlier and shot him in retaliation. A sixteen-year-old female, sleeping in the car’s passenger seat, was also killed, allegedly because she was a witness.

Today we will try to find jurors. The prospective jurors will be nervous when they hear this is a “special circumstance” double murder. I tell the jurors, “This is not a death penalty case.” Many jurors don’t want anything to do with a death penalty case. Here, if the jury finds that “special circumstances” are true (in this case the “special circumstance” is that more than one person was killed), the likely sentence would be life without the possibility of parole.

Another incident this morning with Cora. Five years earlier, a female defendant was sentenced to do 200 hours of community labor and placed on three years of felony probation for receiving stolen property. She immediately left California and moved to Ohio, her birthplace, never checking in with her probation officer. Contacting a California attorney, he urged her, “Come back to court in California and get the arrest warrant recalled. You can explain your situation.” This she did. I allowed her to remain out of custody while the probation department prepared a report. I also allowed the defendant to return to Ohio.

The attorney told a compelling story supported by written evidence. “When the defendant was placed on probation in Los Angeles, she was a severe heroin and meth addict and hung out with addict friends. Her parents came to California, took her home to Ohio, and placed her in a detox facility. She became one of the shining stars of the rehabilitation community in Ohio. She completed 200 hours of community service, joined the rehabilitation facility as a counselor, has her own caseload, and just graduated from the University of Cincinnati with a four-year degree.”

Cora was nonetheless incensed. “This woman deserted the State of California and her obligations under probation.” I kept trying to focus Cora on the future. “What are you recommending? Should I force her to return here, give up her job in Ohio, and jail her for abandoning probation?”

Sometimes people accomplish extraordinary things even though they have technically violated probation. There needs to be some exceptions made. I extended the probation for two years, but I did not think the former defendant needed a probation officer. If the defendant is arrested during the next two years, she could still be sentenced to three years in state prison for the original crime of receiving stolen property.

Perhaps this was too lenient, and Cora was right. I was annoyed that Cora gave the defendant zero credit for the dramatic changes she made in her life. Cora wanted only more punishment. Every time I asked her what she was recommending as punishment, she returned to recite the violations of probation and did not answer the question. It is stressful to be in a courtroom where I do not respect the person I must work with every day. Cora has been my calendar deputy for two years. I could sure use a break.

May 27

Today I sentenced a thirty-five-year-old man to fifty years to life in state prison for premeditated murder. The facts of his case are horrendous, and most likely he will die in prison. He was brought to court wrapped in a suicide blanket as secure as a baby’s swaddle.

Some people cannot live in the outside world. This defendant, according to his attorney, was damaged early in life when his mother, choosing between the defendant and his sister, decided to keep his sister. The defendant was shipped to a violent uncle who abused the defendant throughout his childhood.

By the time the defendant became an adult, he had already committed several crimes, and, when I saw him, he had been just been released from an eleven-year stint in state prison for a violent crime. Hitting the streets, he found a girlfriend who kept him organized by buying food, paying rent, and cleaning the apartment. Then the girlfriend left the relationship, and the bottom fell out. The defendant, who was bipolar, stopped taking medication. His living situation deteriorated. He had no food, no toilet paper, the apartment was full of vermin, and the defendant began hearing voices coming from the mirrors.

By chance one night, he met a young homeless woman and invited her to sleep at his apartment. She spent the night, and in the morning the defendant violently raped her. After the rape, he strangled the victim and put her body in a trash can. He told someone the next day, “I’ve done something terrible,” and directed them to the trash can with the victim’s body curled inside.

At the police station, the defendant said: “I am going to confess the crime to you. But first, I want to make sure that my statement about what happened to me is part of the record. I have helped the police in my life. I used to volunteer at the church. I became bipolar and schizophrenic and cannot control my behavior. When I was in prison for eleven years, I was given medication and I was functioning fine. But when I was released from prison, I was not given medication to take with me. I wasn’t given instructions how to get medication. I completely fell apart. I should not be on the streets because I cannot control my behavior without medication. I am sorry for what I did.”

For every criminal case, there is a back story. Criminals often have childhoods marred with abuse or broken homes. Trying to dull their surroundings by using drugs, alcohol, and joining gangs is common. Mental illness can also be involved. Alcohol, drugs, and gangs are all choices. Mental illness and abusive childhoods are not choices. Yet, the results are disastrous for everyone.

The defense attorney representing the murder defendant, who pled guilty, later explained to me that he spoke with his own wife before he left for court this morning. The attorney’s wife said, “I don’t see why you care about your client at all. As far as I’m concerned, he should be locked up forever and the key thrown away.”

Often those not involved in the criminal justice system with strong opinions don’t recognize that their own family members or friends they’ve known growing up can commit criminal acts. Some believe they’ve never met a criminal in their life. There is little empathy or interest in understanding a rapist or murderer. Their sentiments are logical, but, for me, it has been enriching to learn the life stories of our fellow human beings and understand how someone can go off the rails.

Ironically, the defense attorney for the murderer also told me that the defendant’s family also was furious with him, the lawyer. They railed, “This murder is only worth around twelve years.” This is a family that discarded the defendant when he was young and recently re-entered his life. The defense attorney talked the District Attorney’s Office out of the death penalty for his client, and even out of a sentence of life without the possibility of parole in exchange for a plea for fifty years to life. The attorney asked his client’s family, “Have you seen the crime scene photos? They’re gruesome. I have them with me. I’d like you to look at them.” They demurred. “We are not interested in looking at them,” they said.

That figures. Criticize the attorney. The attorney was already distraught because all of the psychiatrists he consulted said that his client was “borderline” and that an insanity defense would not work. The family added to the attorney’s glum state by calling him a “dump truck.” That’s the life of a criminal defense attorney. You work your heart out, and the defendant and his family despise you.

May 31

Attorneys who become embroiled in their cases and lose perspective are the despair of every judge’s day. Rational advocates become so immersed in case details that they will say almost anything to gain an advantage. One judge today told of a witness who was flown into Los Angeles to testify for the prosecution in a death penalty murder trial. The witness was from Germany, had never been to the United States, and testified through a German interpreter.

Bickering between attorneys infected the lengthy trial. Tempers flared. First, the Jewish defense attorney claimed that the German government does not allow its citizens to testify in death penalty cases because Germany has no death penalty. He wanted the judge to throw out all testimony from the German witness, a nonsensical argument at best.

Then the prosecutor upped the ante. “I’m also Jewish, and my relatives were killed by the Nazis. Yet I have no issue with this witness testifying.” The witness appeared bewildered at the unforeseen discussion. The judge stopped the bickering with a stern “Move on” to both sides.

Our trial proceeded with the prosecution’s first witness, the alleged shooter’s girlfriend, taking back an earlier statement she made incriminating the defendant.

A strict code of honor governs gang members, even from rival gangs. Retaliation is handled by taking matters into the gangs’ own hands. Gangs want nothing to do with the police. But often in the hectic moments after a crime happens, gang discipline shatters. Fueled by their own adrenaline, family or even gang members blurt out the truth to the police. They may even identify a shooter. After the witness statements are distributed, the author of the truthful statement may be labeled a snitch by their gang. They may even be threatened. By the time they come into court they often claim that they don’t remember anything. Or they deny making the statements, as just happened in my trial.

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