In Part 65, Judge Mader discusses her evolving views of police officers and explores what constitutes ‘the perfect trial.’ She also revisits the topic of race in jury selection.
Police officers usually testify in all criminal cases, and many judges have careers during which they worked closely or antagonistically with the police. My experience with police officers has been admiring as well as disappointing. As a young girl, I wanted to join the FBI. I’ve always loved investigation. Graduating from law school in 1972, at the height of anti-establishment fervor, led me to become a deputy public defender in Sacramento. My job was to defend the “oppressed” from “the Man.” At that point in my life, I had never met a police officer. I didn’t see shades of gray. Anyone in a uniform, whether military or police, was suspect. I can see today how immaturely I formed my strong opinions. So much of life is collecting experiences to form a coherent personal philosophy. That wasn’t possible for me in my twenties.
As I met police officers whom I held in high regard, my attitudes began to shift. I described earlier (March 23) how I defended a Mexican Mafia case in which two honest police officers lost their careers after testifying truthfully about a falsified traffic stop. Their testimony was in direct conflict with the testimony of others in their department. As I had subpoenaed them to testify to help the defense, to this day, I feel responsible for the harassment they suffered at the hands of their fellow officers.
Then, while spending two years defending Angelo Buono, the “Hillside Strangler,” I met a series of top-notch detectives from different police agencies. While their personalities were different from mine, in that several liked guns and fast cars and ostentatious brass belt buckles with “187” (California Penal Code for “murder”) in the center, I was impressed with their ingenuity in constructing the prosecution’s case. I returned to my childhood dream of wanting to investigate crime. It was time to become a prosecutor.
Easier said than done. After thirteen years as a hardcore criminal defense attorney who had represented the “Hillside Stranger,” some in the Los Angeles District Attorney’s Office’s top echelons didn’t trust me. Perhaps they thought I’d try to throw cases to the defense? It didn’t help that I had written a book titled Fallen Angels: Chronicles of Los Angeles Crime and Mystery. Reviewing a century of Los Angeles crime, the book told stories of crimes that impacted the city. Some prosecutors spread the word: “She only wants to join the DA’s office to write an exposé of its inner workings.” Once again, I needed to volunteer to demonstrate my sincerity and competence. After several months, police detectives with whom I worked descended on the DA leadership and said, “We don’t understand why you haven’t hired Kathy. She’s way more experienced than your usual hire. We’ve worked with her and trust her.” I got hired, but at the lowest rung of the ladder, even after thirteen years of criminal defense experience.
I began to work on a daily basis with law enforcement. For the first time in my life, I saw police officers as people. I used them as my witnesses, and, as I evaluated their testimony, I could see that some were smarter, some were lazier, some more aggressive, some warmer or colder—just like all people. During this period, I worked in partnership with professional, highly creative detectives to put together murder prosecutions.
While many of the detectives are still my friends, I also had a negative experience. A veteran LAPD detective once appeared in my prosecutor’s office. “I need to close the door. Look, if you ask me to testify against the man whom we have in custody for the murder at the ATM, I will refuse. I don’t think the guy in jail did it. I have a new young partner, and this is his first homicide investigation. He has written a jumble of reports and convinced our supervisors that he has the right guy in custody. I don’t agree.” I did my own investigation that supported the veteran officer, the head deputy of my office supported me completely, and the murder suspect was released.
This created a problem for the new young detective who put the case together. He convinced his supervisors that I should be investigated along with his partner for gutting the case. Two hostile detectives came to my office and interviewed me aggressively, as though I was a suspect. Nothing came of the investigation, but I witnessed how intimidating law enforcement officers could be, as they blamed me for dismissing their murder prosecution. After my conversation with them, I felt demeaned, and worried about my culpability for something I knew that I had done correctly. If they could get to me, a knowledgeable professional, how did they behave toward others less able to fight back?
After working with other positive and competent detectives, I joined a unit of the prosecutor’s office that investigated and prosecuted police officers and public officials. That was followed by a three-year stint as the LAPD’s first inspector general. I no longer can say that I had meager contact with the police; I was surrounded by them day and night. Again, I saw the best and worst of law enforcement. It was an eye-opener to review every internal complaint against an officer, especially for crimes such as domestic violence, sexual violence, theft, and insurance fraud.
It takes a special type of person to enter law enforcement. You have to be willing to engage physically with a suspect, disarm someone, run into a burning building, and beat down the door of a residence, not knowing who is inside and whether they’re armed. Becoming a police officer requires physical strength, too. Where are such candidates found? Former military, children of law enforcement, men and women who are unafraid and tough. In my experience, police officers are different. If one is looking for people who are tough and brave, there will always be some in the mix who take it too far. Without strong leadership from the top, officers may band together and exhibit gang-like aggressive behavior.
Police officer personality differences, similar to judges, usually result in each officer finding a comfortable assignment. The ones who like excitement and don’t mind physical engagement might spend an entire career patrolling the streets. Similar types could end up spending their careers as motor cops, chasing cars and giving tickets from their motorcycles. It’s not a rule, but I’ve seen the most educated and cerebral officers become detectives, wear coats and ties, and do most of their work behind desks. Patrol officers who don’t mind mixing it up with a suspect serve the search warrants written by the detectives.
Paddling in the ocean on my surfboard, waiting for the perfect wave, feels similar to waiting for the perfect trial. Meanwhile, I may take smaller waves and enjoy surfing them also. A perfect trial is one with facts that I haven’t heard before, unusual enough to transport me from the world of serial shootings and gangs and squabbling lawyers. Last year, my perfect case was a murder trial with excellent attorneys, involving a severed head discovered by a dog-walker hiking in Griffith Park, and a series of clues resulting in the conviction of the defendant.
Today’s almost perfect wave is not a murder, but a byproduct of one, as the defendant is charged with being an “accessory after the fact” to a murder. The defendant, an apartment manager with no criminal record, is a rotund young male with a short, conventional haircut and a cotton shirt that doesn’t cover his midsection. Every time he stands up to greet the jurors next to his attorney, he frantically tries to tuck in the shirt.
The apartment house he managed housed members of a criminal street gang. One day, a murder occurred in an apartment house corridor and was captured on the apartment’s video camera. The prosecutor said, “This defendant assisted the suspects. First, he didn’t let the police get the video from his office. Then he destroyed the video and the police couldn’t use it in their murder prosecution.”
According to the defense, “The defendant was threatened by the gang member suspects. He was told that if he didn’t destroy the videotape he would be killed.” Under limited circumstances, a defendant can claim the defense of “coercion.” The defendant says, “I admit doing the crime, but I felt I would be killed unless I committed the crime.” If believed by a jury, coercion can be a complete defense.
Today, the attorneys and I struggled with prospective jurors claiming they don’t understand English well enough to be jurors. This is always delicate. I never want to embarrass anyone, but many jurors, including non-English speakers, are vying to get out of jury service. One of the charges against my judge friend who had a hearing before the CJP was that he was unreasonably harsh to a woman who claimed she spoke only Spanish. I feel nervous that the CJP is looking over my shoulder as I talk to the jurors about their English- speaking abilities.
One man I am not excusing is a smog-check technician who has worked for sixteen years with an English-speaking clientele. His native language is Armenian, and he is pretending not to understand our questions. However, phrases he uses such as “on the other hand” make me think he speaks more English than he is admitting. I anticipate that one of the attorneys will remove him. Attorneys will often excuse jurors who don’t want to be in court because they will be distracted and might not consider all the evidence.
At the conclusion of the day, I told the attorneys, “You may not have been aware of it, but each of you has excused only distinct racial minorities.” The defendant is Latino, and his attorney excused almost exclusively Caucasians and Asians, to load the jury with Latinos. The prosecution, trying to avoid having the jury too heavily weighted toward sympathetic Latinos, excused exclusively male and female Latinos. The prosecutor and defense attorney expressed total surprise that they made such choices.