In Part 77, Judge Mader details the process behind criminal sex prosecutions, focusing on the complex scenario where both parties are intoxicated.

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


September 16

During jury selection, prospective jurors gave their personal views about physical threats. A potential juror who is a firefighter said, “I’m threatened all the time on the job. I think every threat should be taken seriously. I don’t always have time to report them, though.” Another potential juror said, “A sheriff’s deputy working in the jail cannot possibly be the victim of a verbal threat. That’s what he signed up to do.”

Potential jurors describe having been the victim of road rage with guns brandished by angry motorists. Other persons described being frightened by drivers simulating a gun using hand gestures. Surprising to me, many people have had others threaten to kill them or members of their family. Sometimes the threats are taken seriously, sometimes not. 


I spoke sharply to two people in my court this morning. It felt strange but satisfying. The intoxicated financial analyst who passed out in the fast lane of the freeway, and whom I wrote about on February 8, was back in court for his final sentence. After the incident that landed him in my court, he racked up three additional convictions for misdemeanor driving under the influence. I sent him for a ninety-day diagnostic study and prison was recommended.

The attorney kept arguing for probation and a rehab facility and wouldn’t accept my responses that a “program” was not sufficient. Finally, I said, “If you won’t be quiet, I will get off the bench. I am tired of you telling me how to run my courtroom. It is disrespectful and insulting. This is my court and stop trying to pressure me.”

The attorney stopped his posturing, which may have all been for the benefit of the defendant’s family in court. The defendant also had brought someone from a rehab facility to convince me to release his client today into the facility. The rehab director in the audience stood up, walked forward without an invitation, and, on the record, gave his name and his facility. He told me, “I have had many conversations with the defendant. He is very remorseful and has dried out in custody. He needs to get to the facility immediately for the best result.”

He must have been motivated to speak so boldly by receiving a fee from the defendant to confront the court. I responded: “I can’t believe that you are here to tell me the appropriate sentence for this defendant. That’s my job. Your job is rehabilitation. Don’t tell me how to do my job and I won’t tell you how to do yours. The defendant will remain in custody and will not be released today.”

These were testy conversations. No one who heard me today would accuse me of being too nice.

September 19

The troubles of Judge Persky in the Stanford rape case cause me to reflect on the politics of sex crime prosecutions. From beginning to end, criminal sex prosecutions involve conflicting interests. Strong feelings are always present. In one type of case, these conflicts play out over and over.

If the victim and the perpetrator were intoxicated, with uncertain memories of what happened, and “date rape” is alleged, a decision whether to prosecute is difficult. After the claimed crime, the victim contacts the police and is immediately whisked to a rape treatment center, an innovative facility containing social workers, doctors, prosecutors, and psychological counseling in one location.

Having one center handle all aspects of an initial criminal sex proceeding benefits victims and law enforcement but can create problems for prosecutors. A prosecutor must believe there is enough evidence to prove a case “beyond a reasonable doubt” before beginning a prosecution. Beyond winning, a prosecutor must consider the interests of justice for all parties, including the suspect. Many reported cases involve persons who were friends, attended parties together, and even dated. Both parties may have agreed to spend the night together with no sex, but things got complicated, especially when alcohol was added to the mix, often lots of alcohol.

According to my friend, a sex crimes prosecutor, “The victims, social workers, and police officers often expect an immediate arrest of a suspect and criminal prosecution. The prosecutors may insist upon more investigation.” If there is no evidence beyond the word of a victim, the victim is sometimes asked to make “a pretext phone call” to the suspect under the direction of the police. The victim calls the unsuspecting suspect and asks variations of, “I want to understand, Josh, what happened last night. I feel like something sexual happened between us. Is that true?”

A suspect may vehemently deny doing anything wrong. But sometimes the suspect will say, “I am so sorry. I can’t remember anything. But if you say something happened, perhaps it did. I hope that what happened won’t ruin our friendship. Is there anything I can do to make it up to you?” The suspect does not realize that he is being recorded by the police. Juries are not crazy about pretext phone calls when the suspect sounds sympathetic, confused, or concerned.

The prosecutor then evaluates the victim’s statement, along with the transcript of the call, and tries to learn more about the involved parties. Often, it’s discovered that the suspect has no criminal record and is a student. Conviction of a sex crime will result in sex registration for life. According to a prosecutor, “I want to make the right decision about criminal prosecution. At the same time, I don’t want to ruin a suspect’s life with a rape or sex offense arrest that can’t be proved. Sometimes we get pressure from the professional employees at the rape treatment center. They’ve developed warm relationships with particular victims and don’t investigate critically what’s being told to them.”

The prosecutor is in an awkward position. The initial responders, including the victim, want an immediate arrest. The detectives assigned the case are under pressure from their supervisors to finish the investigation. Cases brought to the sex crimes center result in either prosecutions or rejections. Statistics are used to measure the effectiveness of the police unit. Cases resulting in criminal prosecutions support its effectiveness; rejections do not.

A second interview of the claimed victim with the prosecutor usually takes place at the local courthouse. A new or green prosecutor may be eager to proceed with the case. Prosecutors need to conduct jury trials to get promoted. An older, more seasoned sex crimes prosecutor must evaluate the case to see if a criminal case can be proven. If the experienced prosecutor rejects the case, believing it can’t be proven, the rape treatment center employees can get angry at the detectives. The detectives then get angry at the prosecutors.

A detective might even complain to a supervisor that a prosecutor didn’t file a provable sex case. Supervising detectives have been known to contact supervisors in the District Attorney’s Office and allege that a prosecutor has a pattern of rejecting sex cases. The prosecutor who rejects a case is at the mercy of his or her supervisor. They will either be supported by the supervisor, or the prosecutor may be counseled, or even transferred out of the elite sex crimes unit, affecting promotions or future career options.

The District Attorney of the county is an elected official who needs the support of the police and sheriff’s departments to be re- elected. The victims’ rights community is also politically active. Managers in the District Attorney’s Office are in their positions because they have earned the favor of the elected District Attorney and are good at understanding what their boss, the District Attorney, wants.

The complications don’t end once a case gets filed. Defense attorneys usually make impassioned arguments that the case is one of consent between adults. The defense attorney will claim, “Sandra is now saying she didn’t consent because she is embarrassed in front of everyone about the fuss she has made. She realizes that she will undergo a tough cross-examination about the amount of alcohol she drank, and her testimony may send someone who is a friend or a friend of her friends to prison. He will have to register as a sex offender for the rest of his life.” Victims sometimes back off at some point during the prosecution, and a decision has to be made whether the case should continue to be prosecuted.

Pending trial, there are sometimes offers made for the defendant to plead to a lesser charge such as a misdemeanor sexual battery. However, the prosecutor often insists on sex registration. The requirement of sex registration for life is something that most twenty- something defendants will not accept. They would rather go to trial.

Then the judge enters the political picture. As seen in the Brock Turner case, a judge may put their own job in jeopardy in a high publicity case if their sentencing decision is not publicly approved. A victims’ rights advocate can create a political campaign to recall the judge. I understand that pressure. It could happen on any day to any one of us.

If a case involves a violent sex crime, especially rape by a stranger, no one in the criminal justice arena has ethical issues. Cases in which there is a prior relationship between the victim and the suspect, and both were intoxicated, though, are especially problematic. Another difficult case to prosecute is one in which sexual contact begins with consent, and the victim says “Stop” at some point. Jurors rarely convict in such situations. The prosecutor’s ethical obligation is to charge someone with a crime only if they believe they can prove the case beyond a reasonable doubt. One can only hope that justice will win out.