In Part 67, Judge Mader navigates her colleagues’ sensitivities while editing a magazine for judges. Mader also explores the fine line judges must walk when talking to defendants about plea offers.
You can find links to all installments of Inside the Robe here.
My jury convicted the apartment manager in two hours. I was shocked, as was my staff. The one person listening to the trial who felt the verdict would be guilty was my sweet female bailiff. Her impression: “The defendant became friends with gang members to get their protection to have an easier time in his job. He erased the video to keep the peace at the apartment house, keep his job, and stay on good terms with the gangsters.” While he may have also been scared, my bailiff believed that it was secondary to his friendship with the gang members. All twelve jurors agreed with her.
Law-abiding jurors may have thought the defendant’s actions destroyed the murder case. I hope that’s not what the jurors thought. The jurors never learned that the two murder suspects were in custody, and both confessed. Whether the murder was solved or not had nothing to do with whether the defendant was guilty of destroying evidence.
The next issue of the statewide judge’s magazine that I edit, The Bench, has a controversy over its upcoming cover. Another female judge and I interviewed senior female judges about their careers, whether they experienced discrimination at their jobs, and what enticed them to go to law school. We titled the article “‘Skirting’ Discrimination.” When we all were young lawyers in the 1970s to 1980s, most judges didn’t allow women attorneys to wear even conservative pantsuits. We all had to wear dresses and skirts. Thus, the title, “Skirting.”
I was told that “‘Skirting’ Discrimination” was a title to which others might take offense. I didn’t understand at first. Then I realized that if one removed a quotation mark around “Skirting,” “‘Skirting’ Discrimination” might mean we were describing ways for someone to get around discrimination. Only someone not familiar with grammatical rules would come to that conclusion. I was also told that the word “skirts” was a derogatory term referring to women. Isn’t the word “suits” used to describe men? I don’t consider “suits” derogatory.
The title has now been changed to “Skirting Gender Discrimination.” I want to respect the sensitivities of my colleagues, but ultra-sensitivity bothers me. At a recent Judicial Orientation class, new judges were told not to use the words “flip charts” as they may upset Filipinos. That is not a joke. During the early feminist era of the 1970s, I never hesitated to call out an even slightly sexist remark. I never let anything go. Sexist banter, at least in my workplace, is next to zero today. That made criticism of the cover story more startling.
After the apartment manager’s conviction last week, I asked the defendant how much time he had already spent in custody. He replied, “About thirty days.” No, the computer showed he had spent only twenty days in custody. That makes me wonder. Most people know precisely how many days they’ve spent in custody. For this defendant, it was a once in a lifetime experience. Why did he exaggerate? This reminds me of his trial defense. Yes, he was probably scared. But twelve jurors quickly agreed he was lying. When people exaggerate, there may not be immediate consequences. But when you are charged with a crime, and every aspect of your personality and actions are inspected in minute detail, an exaggeration can cost you.
Another trial arrived this morning, estimated at ten to twelve days. The defendant is charged with being an aider and abettor to a bank robbery. Two masked men grabbed a customer as a hostage as she entered the bank. The robbers then entered the bank with guns. The defendant in my court is not charged with being inside the bank. He was allegedly driving a getaway car, waiting for the robbers at a different location. One of the most damning pieces of evidence against the defendant is that he was recorded in a phone call from jail saying, “I wasn’t even there. I wasn’t good for that robbery. All I did was provide a getaway car.”
Not good. In addition, the day after the robbery, the defendant spent $5,000 cash on a new car. $24,000 cash had been taken by the robbers. I explained the law of aiding and abetting to the defendant, who kept insisting on his trial. If a jury found that he assisted or encouraged the participants of the robbery, knowing of the purpose, he was guilty of robbery even if he wasn’t present. Due to one customer held as a hostage and moved from outside the bank to the inside by one of the robbers, this defendant could also be found guilty of the kidnapping for robbery. That would subject him to life in prison.
The prosecution has made an offer of ten years in state prison to be served at 85 percent. That’s eight and a half years in custody. The defendant is thirty-seven and would be released when he is forty-six, a sure thing. The defendant is willing to take eight years but not ten. The swaggering defendant wants some control over his life and is going to risk a lifetime of freedom over two years in custody. His attorney, as well as other defense attorneys and judges, have been trying to get him to see the wisdom of accepting the ten years, but he obstinately refuses.
I talked about the situation with my fellow judges at lunch today. One told me that he still thinks about a defendant whom he sentenced to twenty-five to life on a Third Strike for a robbery ten years ago. He tried vehemently to get the defendant to accept the prosecution’s offer of ten years, but the defendant said no. He will most likely never be released. But as the judge said, “I did my best to outline the choices. The defendant made his own decision. I can sleep at night.”
As I earlier described, judges walk a tightrope when we talk to defendants about whether they should accept an offer. If we argue too strongly, a defendant may later claim they were coerced by a judge who wouldn’t accept no for an answer. Pointing out the fallacies in the defendant’s logic, though, is fair game.
Driving to work this morning I heard my name on the radio. I was listening to the podcast Reasonable Doubt with guest Christopher Darden, the prosecutor in the O.J. Simpson trial, Mark Geragos, the defense attorney in the Scott Peterson trial, and comedian Adam Corolla. They were discussing the volatile subject of prosecuting police officers for on-duty shootings in Los Angeles. One of the attorneys mentioned that when Kathy Mader was a prosecutor, she prosecuted an LAPD officer for killing a tow-truck driver. I described portions of the two trials (the trial and re-trial) on January 15 of this diary.
At that time, I was in a unit in the District Attorney’s Office that prosecuted police officers and public officials. Difficult issues arise when prosecuting police officers. It’s strange—with all of the police shootings in the news, I forgot about my intimate experience involving the prosecution of a Caucasian police officer for killing an African-American tow-truck driver. This incident took up two years of my life. It doesn’t register often in my memory bank, perhaps because I felt unsatisfied with the result.The news today fully covers the difficulty of convicting police officers for shootings that happen on duty. Jurors want to support police officers. The defense always argues that it’s not fair to judge police officers using hindsight for decisions that were made in a split- second during the height of excitement and danger. We are asking a lot of police officers. We are also trusting them with serving and protecting the public with proper training.