In Part 75, Judge Mader considers how the self-description of a judicial candidate on a ballot impacts their likelihood of winning election to the bench. The Judge also discusses a troubling plea in a bar brawl case.
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An upcoming judicial race dominated today’s legal newspaper. Controversies erupt every election cycle as to what words a candidate for judge may use to describe himself/herself on the ballot. A judicial candidate may use three words to describe their “principal occupation.”
Candidates used to describe themselves plainly as “Criminal Prosecutor” or “Criminal Defense Attorney” or “Administrative Law Judge.” Los Angeles County is huge, and most voters have no idea for whom to vote for judge. The sex of the candidate, the sound of the candidate’s name, and their three-word descriptor often are all most voters consider when making a split-second decision in the voting booth.
When I ran for judge, I was the only female in a three-person race. In 2000, I called myself a “Criminal Prosecutor,” which was accurate as I was working as a deputy district attorney. One of my opponents called himself a “Court commissioner/Professor.” The other male candidate was a “Superior Court Referee.” I won the election in the primary with more than 50% of the vote. Voters likely had no idea what a “Commissioner” or a “Referee” did for a living. My opponents were more qualified than I was to become judges. Each had already sat for years in courtrooms hearing criminal and civil cases as “subordinate judicial officers.” The law does not allow subordinate judicial officers to use the word “Judge” in their three- word description on the ballot. It doesn’t seem fair.
The artifice used to win judicial contests is disillusioning and fierce arguments every election cycle have revolved around how far a prosecutor can go in describing his occupation. This year’s ballot is crammed with labels such as “Child Molestation Prosecutor,” “Gang Homicide Prosecutor,” and “Violent Crime Prosecutor.” Today’s newspaper article describes a “Gang Violence Prosecutor” challenging an immigration attorney. The immigration attorney wanted a stronger descriptor to overcome the visceral and positive response of voters to “Gang Violence Prosecutor.” She wanted to describe herself as a “Domestic Violence Attorney” on the ballot because many of her immigration clients are victims of domestic violence. The court ruled that “Domestic Violence Attorney” would be misleading to voters. That court decision, in my opinion, dooms her chances.
A foreign-sounding name will not do well against an “All-American” name in a judicial election. Sadly, one sitting judge was challenged because her name had so many consonants that it was not clear whether she was a man or a woman. The challenger, a woman with a simple Irish name, knocked out the sitting judge even though the challenger had not worked as an attorney for many years and had re-activated her law license just before the election.
Another well-known incident involved a sitting judge challenged by an outsider. Instead of calling herself a “Superior Court Judge” on the ballot, she chose the word “Incumbent.” That was a fatal mistake. The public voted out the “Incumbent,” likely not understanding that the word “Incumbent” meant she was already a judge.
Judicial candidates in Los Angeles commonly use their middle names on the ballot, especially if the name is Latino. It doesn’t matter that the person never uses the middle name in everyday life. Sometimes a candidate who is Caucasian and married to a Latino will even adopt a spouse’s surname as a middle name.
Using an androgynous name such as “Pat” instead of “Patrick” is also common. Voters, if unsure whether a candidate is a male or female, will often vote for the female. Judges also have been warned, if challenged, to describe themselves as “Judge, Superior Court” and not “Superior Court Judge.” Anecdotally, voters’ attention spans are short and it’s better for them to see the word “Judge” first. Voters like to vote for persons with the word “Judge” in their title.
Many capable potential judges who are criminal defense attorneys will never be appointed by a governor and also cannot win a judicial election. One criminal defense attorney, trying to avoid the stigma, called himself a “Gang Homicide Attorney.” While it correctly described his caseload, a court disallowed it. The court ruled it was misleading because members of the public would think he was a “prosecutor” when he was not. The bench is loaded with prosecutors now who used exotic job descriptions to win their elections. In the last election, there were fourteen open slots to run for judge.
Thirteen out of fourteen candidates were career prosecutors using hyped-up job descriptions. They all won.
Since I wrote this chapter, a new law requires candidates for judge to only use official descriptions of their jobs, such as deputy district attorney, criminal defense attorney, and court commissioner. In the last election, again, prosecutors describing themselves as “Deputy District Attorney” won the majority of the judicial races.
On August 30, I described a brawl outside a trendy club, after which four defendants were charged with causing major injuries to five different victims. The injuries varied from being knocked unconscious to a concussion after being kicked in the head while a victim was lying on the ground. One of the victims was a car valet, another a paparazzo waiting to take a photo of a celebrity leaving the club, and others were bystanders who jumped into the fray to help the persons who were attacked.
One bystander was a young, blonde female who jumped between two fighting males and screamed, “Why are you hitting the man on the ground? He can’t resist! Get away from him.” Instead of stopping their assault, the males knocked the female intervenor to the ground and began kicking her.
Each defendant hired “cream of the crop” celebrity criminal defense attorneys. After I read the transcript of two days of testimony at the preliminary hearing, I was horrified at the callousness and violence displayed by each of these defendants. I thought they would receive sentences of at least one year in jail, and perhaps even state prison, despite their lack of criminal record. Several weeks ago, the prosecutor did offer each defendant one year in jail. The offer was rejected by the defense.
I told all the attorneys, “This case is going out to trial today unless it settles.” The attorneys responded, “We intend to speak with supervisors in the District Attorney’s Office.” When I arrived at work this morning, I was told by one of the attorneys, “The case is going to settle.” I wasn’t surprised. Four defendants with preening attorneys could extend a trial for weeks. Regardless how much the attorneys were paid for pre-trial maneuvering, taking the case to jury trial would cost the clients additional money.
What did surprise me was how low the District Attorney’s Office was willing to go to settle the case. The offer decreased to forty-five days in a private jail that could be served on weekends. Private jails are operated by small cities surrounding Los Angeles County. By housing inmates who are afraid of county jails or who need special protective housing, the small police departments earn around $100 per night for their coffers. These small departments also allow their prisoners to do chores such as washing patrol cars and gardening during the day. Unlike the county jail, prisoners are only confined to their jail cells at night. Some private jails even allow prisoners to go to work during the day and just sleep at the jail at night.
“Justice” felt bought to me. This disposition would never have been offered to a poor and frightened defendant who couldn’t afford the rates at the private jail. I wonder what happened between the defense attorneys and the prosecutor’s office in fashioning this disposition. Los Angeles County is huge, but the criminal defense community is small. Criminal defense attorneys with a lot of money often contribute to political campaigns of the elected District Attorney. They’ve spent decades working alongside and against persons who are now supervisors in the District Attorney’s Office.
When the plea was announced, I asked the prosecutor in court, “Why is your office accepting such a deal?” The prosecutor responded, “My supervisor believed the defendants don’t have records, they’ve pled guilty to a serious felony that would remain on their records, and they would be on felony probation for five years. My supervisor believed this offer was reasonable.” The phrase “my supervisor believed” is sometimes a clue that the prosecutor in court does not agree with his supervisor’s decision.
I don’t want to dodge my own responsibility. I have the authority to reject the plea bargain. That is rarely done by a judge. I didn’t believe the disposition was unconscionable, and there were facts I didn’t know. The defense private investigators may have uncovered information that made the prosecutor’s chance of convictions unlikely. I wasn’t privy to that information. In addition, two of the defendants were identical twins, and there may have been problems with witness identification.
The lawyers apparently told their clients that they would have the entire five years of probation to do their jail time, a smart move. That was not going to happen. I told them they needed to start doing their private jail weekends right away. Perhaps, they thought, I would be retired if they waited to do the time, and they could ask a different judge for the jail term to be modified or even deleted. They could ask for community service or freeway clean-up due to medical issues, work issues, or other sad stories. That’s what fancy lawyers try to do for their clients.