In Part 68, Judge Mader explains the challenges of proving ‘aiding and abetting’ cases, and then reflects on the impact a sincere, empathetic prosecutor can have on the criminal legal process.

You can find links to all installments of Inside the Robe here.


July 20

As I entered my courtroom this morning, the defense attorney from the jury trial was also entering with another man, an experienced attorney from her office. They went into the jail lockup to again speak with the defendant about settling the case. It was never clear to me why the defendant was adamant about only pleading to eight years and not to ten. He explained to the attorneys, “I want to be out for my kid’s eighteenth birthday. Unless I get eight years I won’t be there.”

We finally got a jury selected right before lunch. Just as we were about to begin the trial this afternoon, the defense attorney said, “My client will take the ten years.” What happened? The colleague whom the defense attorney brought with her to lockup to speak with the defendant was a father, similar to the defendant, unlike the female defense attorney, who had never been a parent. The colleague explained to the defendant, “I’ve represented a lot of people with children and there are many things a parent can do to help their child growing up, even if they were behind bars. There can be frequent phone and email contact and even visiting. The defendant could take classes, get degrees, and prepare to be a better role model when he is released.”

That discussion must have worked. The defendant then entered the plea. His attorney said afterward, “It’s clear to me the defendant had a decent chance of losing. His co-defendant, who entered the bank with the mask and committed the kidnapping, received thirty- three years to life in state prison. In that respect, ten years doesn’t seem excessive.”

It is always a crapshoot how a jury will analyze the case. Here, the jurors would have to apply the law of “aiding and abetting” and that sometimes gives jurors problems. The prosecutor gave the following example during jury selection: “Let’s say I am with my friend Sarah. Sarah is all about ‘peace and love.’ Both of us see a beautiful white wall that has been recently painted. Sarah wants us to paint graffiti about peace and love on the wall. I tell Sarah that I need to go to work but I am so enthusiastic that I give her two cans of spray paint to use on the wall, and then I go to work. Sarah paints the wall, gets caught, and I get arrested for helping Sarah. I am shocked that I am considered liable because I wasn’t even there when the wall was painted.”

The prosecutor then explained to the jury, “The law of ‘aiding and abetting’ would allow me to be prosecuted because, knowing of Sarah’s illegal intent, I encouraged and assisted Sarah in committing the crime by providing the paint.” Many prospective jurors were reluctant to follow that law. They didn’t think the provider of the paint should be convicted of the same crime as Sarah. Aiding and abetting cases are always difficult for prosecutors.

The prosecutor threw in another fact. “What if the homeowner came outside, angrily told Sarah he would call the police, and Sarah threw the paint canister at the homeowner and hit him. Should the prosecutor who left for work be found guilty of hitting the homeowner with the spray can?” Most jurors said no. However, the law of aiding and abetting says that the aider and abettor can be found guilty not only for the contemplated criminal act (painting the graffiti), but all foreseeable acts that are a natural consequence of painting the graffiti. Is it natural and probable that a homeowner who saw the damage would become angry, confront Sarah, and that Sarah might throw the can?

The prosecutor was obviously analogizing her case to the graffiti facts. The defendant before the court was never present at the scene of the robbery. However, one of his confederates kidnapped a bank customer and dragged her back inside the bank before the robbery. Should the defendant waiting one-half mile away in a getaway car be held responsible for a possibly impulsive move by his co-defendant to kidnap the customer? The jurors might have had a giant tussle in the jury room over the kidnapping charge against the defendant on trial.

But that case is over. On to the next. That’s what I like about this job.

July 21

A prosecutor can easily make or break a defendant’s future. Yesterday’s jury trial involving the bank robber driving the getaway car had a female prosecutor, female defense attorney, and myself. Everyone got along well, and we all tried to find a just solution for the defendant. That does not often happen. The parties get stuck in positions and won’t bend. Once a defendant chooses to reject a plea deal—ten years in our case—the prosecutor often says the deal is “off the table” and the trial begins. It is assumed that the defendant understands the risks of rejecting the deal.

Yesterday, all parties including me had a warm and practical relationship with each other. When the defendant, through his attorney, said, “I will plead right now for eight years but not to ten,” the prosecutor told the defendant that she could not go back to her boss with the eight-year offer. Her boss is the head deputy with whom I’ve butted heads many times. The prosecutor said what I would have said: “If I go back to my boss and ask for eight years, my boss will re-evaluate the case and the offer will go up. You don’t want me to go back to my boss.”

The defendant accepted the prosecutor’s representation, which the defense attorney and I echoed. Another fork in the road occurred when the defendant, after a jury was selected, said he was ready to accept the ten-year offer. Many prosecutors, and judges too, after spending two and one-half days selecting a jury, would tell the defendant that the offer was no longer open. This prosecutor said he could still have it. She didn’t ever ask her boss. She told me later she knew I was going on vacation and she didn’t want to be rushed. I wonder whether she might also have had some weaknesses in her evidence. Many judges also wouldn’t go along with a deal at such a late stage. But I was going on vacation in a few days and didn’t want to be distracted by a trial.

The outcome of any jury trial is unpredictable. The defendant could have been convicted of kidnapping as an aider and abettor and be sentenced to life in prison. He could have been found not guilty of anything if the jury was not persuaded that he was an aider and abettor. Or, he could have been dragged through a trial he didn’t want just because he rejected an earlier offer, and an uncooperative prosecutor refused to re-offer the earlier ten-year deal.

The same thing happened this morning. It is seven days before I go on vacation. A seven-day trial was sent to my court. This was also a potential life case because it was a third strike. However, the defendant was in his early seventies, and his earlier strikes had occurred in the 1960s. The defendant represented himself, a nightmare for most judges. This defendant was accused of getting into a shouting match with a man who parked his car in an unauthorized spot at the defendant’s apartment house. The victim, whom the defendant allegedly attacked with a knife, told the defendant he received the manager’s permission to park where he did. That did not stop the defendant from making a small nick with a knife in the victim’s upper cheek.

The prosecutor was a lovely young guy from a different floor. We had an earlier jury trial together in which a defendant was caught making phone calls from the jail in Pig Latin. The investigating officer was familiar with this type of Pig Latin from his childhood and translated for the jury. The prosecutor and I reminisced about the case and then he asked to speak privately with the defendant. Without an attorney as a go-between, a prosecutor always needs to speak directly to someone representing himself.

After a lengthy conversation, the prosecutor returned to his head deputy, one of the good guys, to make sure that he could re-authorize the four-year state prison offer. It was approved, and the plea bargain was reached. After the prosecutor took the plea, he again approached the defendant, shook his hand, and wished him well. Often all a defendant wants, in the dehumanizing atmosphere of the county jail, is to be treated respectfully by someone.The defendant here had a lengthy life, but no one to attend the trial and no one to provide civilian clothes for him to wear. Warm words and patience go a long way. I have a visiting court reporter, and she remarked upon how patient I’ve been. I wonder how other judges behave toward defendants who are having trouble making up their minds what to do. Why wouldn’t I be patient? I’ve just spent close to three days selecting a jury in another case that settled. The last thing I want to do today is to begin selecting one more jury.