In Part 64, Judge Mader considers neutrality in two contexts: Her own need to remain neutral as a jurist and so-called race neutral reasons for dismissing potential jurors.

July 1

Reflecting on yesterday’s verdict, I realize that it didn’t matter to me which side won. This leads me to a larger issue. Does a judge care who wins? Or, more pointedly, can a judge ensure one side wins?

Often one advocate is pleasant, and the other attorney rude and obnoxious. If that happens during a short matter, it’s easy for me to stay calm and neutral; if I am stuck with an unpleasant attorney for weeks, the impolite attorney may have an advantage. I’m naturally drawn toward the nicer advocate, but I don’t want to punish the client for the sins of the attorney. That may cause me to over-correct in favor of the nasty guy. I know from experience that defendants are at the mercy of their attorney’s personality.

I don’t care who wins. I do feel naturally sympathetic by turns to a victim of a violent crime or a mentally ill defendant or a defendant whose attorney is doing a poor job of representation, but I don’t think it affects my rulings. I have the strongest negative visceral reaction to defendants who take advantage of vulnerable victims. Whether the victim is an older person bashed on the head in a robbery, an immigrant whose hard-earned savings are stolen in a scam, or a child molested by a trusted uncle, those are the crimes I hate the most. I must watch myself to make sure I don’t over-react sympathetically to the victims.

When former defense attorneys or prosecutors become judges, I have seen each lean more strongly against the side of their former occupation as to not appear biased. Like the balance beam on a doctors’ scale, over the years, rulings even out and the balance bar hovers in the center.

Ruling whether evidence should be excluded because the police obtained it unlawfully can present problems. During some hearings, I could easily justify ruling in either direction, and my decision would not be reversed. Can I say that in every similar situation every judge, including me, would not wonder: “Let’s see, I’ve ruled in favor of the prosecution three times in the last month on these types of cases. Perhaps I should give one to the defense.” Or, “It’s no big deal if I grant this motion throwing out the evidence because we’re only talking about a small amount of cocaine. But if the same motion involved suppressing an assault weapon—”

I’d like to think no judge would be influenced how to rule by counting how many times they’ve ruled for either side or the nature of the object to be excluded.

When I was practicing criminal defense, I didn’t want to be assigned to a courtroom with two prosecutors (the actual prosecutor and the judge). A prosecution-leaning judge would step in to ask questions a prosecutor missed or find legal cases a prosecutor overlooked to support his rulings. That used to happen often.

A judge might also guide a trial to a preferred conclusion by allowing or disallowing evidence, or by non-verbal gestures such as eye-rolling or inflections designed to be seen or heard by the jury. Judges have wide latitude whether evidence is allowed before a jury. If a judge gives reasons on the record for rulings, the rulings will usually not be reversed. Whether a juror should be excused, an eyewitness expert allowed, or whether the defense can argue that a third party committed the crime—these can be close issues that are left to the presumed good sense of judges. When we had predominately Republican appointees on the Court of Appeal, judges who favored prosecutors were rarely reversed.

I’ve always had a deadpan expression on the bench. This would surprise my childhood friends who knew me in elementary school as “The Giggler.” I knew that facial expressions were my weakness and finally learned to control myself. It’s easy to communicate displeasure with an attorney or evidence during a trial by facial expressions or gestures of impatience such as tapping my finger. I have heard some judges do such things. It would be difficult for a higher court to find there was judicial misconduct without a videotape. A judge can scream, “Please be quiet!” to counsel at the top of his lungs, but the written record looks merely as if the judge is politely admonishing the attorney to let someone else have a turn talking. 

Yes, it’s possible for a judge to care too much. It’s possible for a judge to guide a jury trial to the result desired by the judge. I hope this happens rarely. 

July 5

Police misconduct issues are in the news and an underlying focus in my court. I need to pay close attention to ensure that when a side excuses a juror it is for a race-neutral reason. There are many reasons attorneys can legally give to excuse a juror, but a juror’s race, sex, or ethnicity are not legitimate ones.

Prosecutors often have to defend their excusal of minority jurors. Many defendants in Los Angeles are African American or Latino. Defense attorneys try to keep as many jurors of the same race as their client on the jury, believing they will be more naturally sympathetic. This may or may not be true. Each side can excuse as many as twenty jurors in serious cases without giving a reason. Defense attorneys often ask judges to not allow the prosecution’s excusal of minority jurors.

I always tell jurors, “We are trying to select a completely impartial jury.” In reality, I am the only one who wants an impartial jury. Both attorneys are looking for jurors who will be sympathetic to their side. Judges must be constantly looking out for either side excusing jurors for prohibited reasons.

It is natural for jurors to feel more sympathetic toward someone who looks like them. Also, certain stereotypes are officially denied, but they persist. Young African-American females can be more sympathetic toward African-American male defendants. Older Latinos are generally more conservative than younger Latinos. Older Asians, as a rule, are good jurors for the prosecution, and defense attorneys look high and low for reasons to excuse them. Of course, no one ever acknowledges that they are excusing someone because of race; they verbalize other reasons.

Sadly, many minority jurors have been hassled by the police. They have more experience with gang members in the family. They may have known gang members growing up, even though they’re now distanced from them. Minority jurors may have been arrested for minor crimes such as drinking in public. They may know someone in prison or jail and have visited them. Common reasons expressed by prosecutors to excuse minorities are:

“Your honor, I am not excusing this juror because he is African- American. I am excusing him because he was hassled by LAPD when he was in high school. I have many LAPD witnesses. I can’t take a chance that he harbors bad feelings toward the police.” Or—

“Your honor, this is a gang case. The juror has a brother who was a member of a gang. He may feel sympathetic to the defendant and not view being in a gang as serious.”

Many neutral excuses have been approved through the years to excuse minorities, and judges can’t do much about it. For instance, “The juror didn’t make eye contact with me. I think he doesn’t like me. I don’t know why, but I would be uncomfortable with a juror who won’t look at me.” Or—

“The juror has beads in her hair, a short skirt, and granny glasses. I think the juror looks too ‘counterculture’ for me. I have found that ‘counterculture’ jurors are bad for the prosecution.”

These above examples are real. They are also race-neutral. A juror of any race can have been hassled, have a relative who was a gang member, not make eye contact, or look counterculture. It is difficult for a judge to prevent an attorney from using these excuses (sometimes known as pretexts) to excuse jurors.

Judges are required to keep detailed track of the race of jurors being excused by both sides and not allow an excuse if it appears an attorney is not using the same excuse for all potential jurors, regardless of race. For example, a judge might say, “Mr. Prosecutor, I have noticed that you excused two African-American jurors because you said that both of them were too young to have the life experience required for this case. Yet you have kept one young Caucasian and one young Asian female on the jury who do not appear to have much life experience either. I don’t believe you are using the ‘life experience’ criterion in good faith. I am not allowing your challenge to the most recent young African-American juror.” Judges’ decisions in the area of jury selection are a minefield, and are sometimes reversed by appellate courts, and I am always on edge during the process. 

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