In Part 58, Judge Mader discusses the use of confidential informants in gang-related investigations and offers an anecdote exploring how a judge might respond if an attorney appears to be inadequately representing a defendant.
On the witness stand, the investigating officer described the police use of confidential informants to solve murders. This case involves one of several techniques the police used in my recent murder trials. “I may be contacted by a former gang member who wants to work with me. That can be for many reasons. They may be in jail on a new charge and want to reduce their punishment. More often, they’re tired of their old lifestyle, have a family, and can pick up $300 to $500 each time they help us. Since an informant knows criminal and gang culture from his old life, he can easily gain a suspect’s trust.” When a new arrestee is put in a jail cell, the informant is already there. It is perfectly legal. The informant bonds with the arrestee by claiming, “Man, that sucks that you’re here for murder. I’m in here for murder too.” These conversations are always video recorded. The jury sees the video and hears the defendant speaking to someone he believes is a trusted confidant. It hears the defendant speaking naturally, often using street slang, talking about his crime. When defendants are arrested for murder, they are understandably frightened. They may assume a macho attitude, but it cannot feel normal for any human to be in this predicament. The defendant’s mind is racing. By the time the arrestee is placed in the jail cell, he is floundering. He will talk to anyone, especially someone he thinks is sympathetic.
Surprisingly, suspects often confess their role in a murder to someone they have known only for a few minutes. They assume that someone all tatted up who talks like a homie, regardless of gang affiliation, can be trusted. Gang members provide the strongest and sometimes only evidence by confessing to fake homies. That is what happened in this trial. The informant, who has worked for the police eighteen times, was settled into a jail cell when the newly arrested defendant was planted inside. The defendant then described the murder to his cellmate. The prosecutor will later argue, “You know that the defendant committed the murder because he told the cellmate informant details that only the murderer would know. And you can hear on the tape that no one put any words into his mouth.”
The day disappeared in a flash as we put the murder trial to bed. All that’s left tomorrow are closing arguments. A trial to determine the rest of a man’s life: life in prison without the possibility of parole, or something less, even possible freedom. And the trial lasted only five days, with two spent selecting the jury. What a joy it was to work with two professional attorneys who zeroed in on the important facts and ignored the rest. I felt, as I proceeded, a feeling of mastery over the trial as well as the complicated jury instructions. As I get older, I feel this more and more.
A younger judge today described an attorney arriving late to a four defendant case. When she finally arrived, several of the other attorneys quietly approached the judge and said that the late attorney was either high or intoxicated. No one knew what to do about it. A client has the right to hire an attorney of their choosing as long as the attorney is properly licensed and qualified. I see defendants spending thousands of dollars on unqualified and incompetent attorneys all the time and can do nothing about it. If an attorney is using drugs or alcohol, the problem becomes more difficult. We all want to make sure that the client is getting appropriate representation, but most judges are reluctant to do anything that interferes with the lawyer-client relationship. Once the judge heard there might be something wrong, he was required to make inquiries. He asked the attorney, her client, and the court reporter to come to his chambers.
The judge said, “I’ve heard from others that you seem to have been either drinking or taking drugs.” The judge didn’t smell alcohol but thought maybe he was too far from her.
The attorney denied any issue. “I am sorry I was late,” she said. “I’ve been up all night, drinking wine with my client, and I may have had a problem with Ambien, my sleeping pill.” The client was incredulous. “What are you talking about? We weren’t together drinking all night!” The judge asked the client, “What do you want to do?”
“I want to keep my attorney.” The attorney was hired privately, and a judge can’t easily remove an attorney without more evidence, especially since the client still wanted her. The judge continued the case until after lunch and came to consult with the rest of us in the lunchroom.
Our suggestion: go back into chambers with the court reporter. Suggest to the client that she consult with another attorney, even at the court’s expense if she wants. The client should return in a few days after considering her options. That keeps a judge from getting too enmeshed in the client’s decision whether or not to remove the attorney. If the client says she’s not interested in consulting with anyone else, the court reporter’s record will protect the judge.
The jury in my murder trial heard closing arguments this morning from two excellent attorneys. Neither discussed the law of murder. Each focused solely on the facts. The prosecution’s position was, “The defendant confessed to the murder when he spoke with the confidential informant at the jail. Jurors know the confession is true because the defendant knew many details of the five-year-old murder that only someone who was there would know.”
The defense attorney argued that the police must have fed all of the facts of the murders to the informant before they put him in the cell with the defendant. When the jurors started to deliberate, they asked immediately for a computer and the DVD to watch and listen to the defendant speaking with the informant.
I allow jurors to ask questions during the trial. This procedure is voluntary among judges. Some don’t allow it. I like it because it keeps the jurors engaged in the proceedings. Also, I have conducted trials during which an attorney has forgotten to ask a basic question. Sometimes it takes a smart juror to ask a forgotten but logical question.
One psychotherapist juror in this trial asks too many questions. Usually, prosecutors excuse therapists because they may be too compassionate and eager to help the underdog. This therapist is so busy conducting her analysis that she may be missing the facts. The evidence was strong, although circumstantial, that both victims were sleeping when they were shot. It was 1:00 a.m. Each of the car seats was completely reclined. The victims were lying on their backs on the seats. Each victim had taken their shoes off and placed them next to their feet.
The therapist, nonetheless, wrote the following question: “Is there any evidence that the two victims were having sexual intercourse in the car?” When the witness was excused for the day, we all noticed that the therapist juror acted sulky that her question was not asked.
The jury deliberated for two hours this morning and then returned with guilty verdicts on both counts of murder. I will sentence the defendant to life in prison without the possibility of parole. As the verdicts were read, the defendant sat with the same smirk on his face that he had displayed throughout the trial.
This morning, a deputy public defender, whom I respect, asked me to release her client, who had stopped reporting to probation, and was in jail. She vouched for him: “Your Honor, this is not the normal client. He needs to get out of jail today to go back to his job. He is also a student at a local junior college.”
I respect this attorney because she doesn’t often argue strongly. When she does, I listen.
The client stood beside her as I reflected on his background: numerous felonies and misdemeanors over a decade with little time out-of-custody in between. It’s unusual but not impossible for someone to clean up so diligently that he’s working as well as going to school. I asked the attorney if I could speak to her client, and she agreed.
“How long have you been working?” I asked.
“What are you paid?”
A long silence, then: “Around $500.”
“Is that a week or a month?” Long silence again.
“I think, a week.”
“How much then do you make a month?”
“If you made $500 a week, you’d make $2,000 a month.”
“Well, I guess I do.”
“Do you get paid by a paycheck or in cash?”
“Did you pay taxes in the last two years?”
We moved on to his school. I asked a question that should have been easy to answer: “What was the last class you took?” One reason I asked this question was that I knew, from interviewing jurors, that most colleges were in recess for the summer. It was unlikely he had to return to go to school. “Well, I took the last semester off. But that doesn’t mean I’m not still enrolled in school.”
I did not release him from custody. I told him, “You’ve done a good job conning your attorney.” At the beginning of our conversation, he was charming. I understood why his attorney thought he was different from her usual clients. Even sophisticated defense attorneys and judges can be fooled by well-practiced criminals. We want to believe that someone has cleaned up their act. We also need to be on our guard.