In Part 78, Judge Mader explains the difficulties in trying a charge of criminal threat, where the central issue is a defendant’s intent. She also explores the notion of judicial impartiality arguing that judges must recognize their own personal biases so that those biases don’t compromise the integrity of their decision-making.

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


September 20

How delightful to hear closing arguments in the “criminal threat” trial by young female attorneys with a gift for their professions. Who knows why some new prosecutors and public defenders are hired? It could be for reasons other than their abilities. It’s difficult for an office to know whether a new hire will be comfortable before a jury, or reasonable in evaluating cases. In the beginning, new attorneys regularly over-sell. New prosecutors think they will gain a “tough on crime” reputation in the office by being hard-nosed. Their positions can be unreasonable. New defense attorneys are often referred to as “true believers” because most of their clients are innocent in their eyes. Many have a difficult time controlling the clients and are unnecessarily aggressive and impolite to opposing prosecutors and judges.

I had my own temperament problems when I began as a young public defender and my competitive spirit was at times out of control. I appeared frequently before a judge who also was not known for a balanced temperament. One day he called me to the bench and said, “You know, Miss Mader, you will always get further with sugar than with salt.”

I was twenty-five years old and didn’t know what he meant. It took me about ten more years as an advocate to understand that I would get better results for my clients if I was pleasant to the other side and also to the court. Commonly during that period, court personnel treated criminal defense attorneys poorly, but always accommodated prosecutors. I don’t notice that discrepancy anymore. Only one remnant remains. When a case is sent out for trial from a master calendar court, such as our Department 100, only the prosecutor is trusted to deliver the court file to the trial court. Not once have I seen a court file given to a defense attorney to deliver and it always bothers me. 


The “threat” claimed in the trial by the female sheriff’s deputy was that the defendant, 200 pounds and over six feet tall, said, “You will get yours. I’ve got eighty-five to life, nothing to lose with two murders and a threat.” He repeated “You will get yours” numerous times. 

The prosecutor argued, “The defendant intended his remarks to be taken as a threat because he thought it would make it less likely he would be hassled by female deputies.” The female deputy testified she felt extremely afraid and altered her routine for several weeks after the incident. She never again placed herself in a situation in which she would have contact with the defendant.

The defense attorney made a classic argument urging compassion: “Just consider the situation. My client is not a human being to jail deputies. He’s just an orange suit (a high-risk offender). He’s a number. He has been stripped of his humanity in the jail. He doesn’t even have the money for a hairbrush. And this deputy, just because he had connected four toothbrushes together to make a hairbrush, confiscated his brush and disrespected my client by putting it on the dirty ground. My client kept saying that he just wanted an apology. Then he kept going up the chain of command the same way we would complain to management if our cable company overcharged us. He wasn’t trying to kill or hurt anyone. He wanted attention, and he was just blowing off steam. This happens all the time at the jail.”

Another judge told me, “My jury just found a defendant not guilty of making a criminal threat in her courtroom when the words uttered were ‘There will be blood.’ The jury must have decided that that phrase was not specific enough to constitute a threat to kill or inflict great bodily injury.” We often hear cases involving mentally ill defendants who under their breath mutter threats to kill people. The law requires that when the threat is made, it is intended by the suspect to be understood by the listener as a true threat. The charge of criminal threat has many hazy areas.

September 21

A doctor friend told me last night, “I don’t want to know too much about what goes on behind the scenes in judging. I like the notion that there’s an all-knowing figure in a black robe who encompasses wisdom and knowledge beyond that of ordinary mortals. I don’t want to become disillusioned.” How odd that a doctor, viewed by some patients as God-like, wants to maintain the illusion that a judge’s persona is different from all others.

The concept that judges are people, however, is one that is gaining more and more visibility as potential court appointees are vigorously and politically vetted. Most judges I know roll their eyes when they listen to Supreme Court nominees dodging questions on hot issues when they testify before Congress. It is expected that nominees will say that they have no personal views on abortion, same-sex marriage, civil rights laws, etc. Really?

I remember when Justice Sonia Sotomayor was heavily criticized during her confirmation hearings for stating sometime earlier that judges are influenced by their backgrounds and experiences. She commented: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

This remark was made in the context of a diversity lecture for law students in Berkeley in 2001. When Justice Sotomayor was being considered for the United States Supreme Court, conservatives accused her of being a judicial activist. President Obama stated that judges should have empathy, and conservative bloggers wrote that the use of the word “empathy” was code for injecting liberal ideology into the law.

A judge without empathy would be a pathetic judge. I predict that, whenever there’s a televised hearing about a court opening, politicians will again promulgate the hypocritical notion that a judge is an empty vessel and just makes decisions by “following the law.” This is not just my insight. Professor Louis E. Newman’s article titled “Beneath the Robe: The Role of Personal Values in Judicial Ethics” emphasizes that while judges remain anonymous to those who conduct business before the court, no one is even permitted to ask, “What is the character of the person wearing the robe and the ways in which that individual’s personal qualities will affect the performance of his or her duties?” The professor also quotes from author Donald Dale Jackson who stated in Judges (1974, Atheneum, New York), “Ultimately it is the personal, moral character of an individual which determines the sort of judge he or she becomes.”

Judges are expected to always make informed, deliberate, conscientious decisions. They must recognize their biases and set them aside as best they can, just as physicians and therapists must do. The robe, although it hides the judge from view and is a powerful symbol of impartiality, is only partially successful because every judge is distinct. We all are a product of our backgrounds and experiences, just as Justice Sotomayor noted. 


After about five hours of deliberation, the jury has returned with a guilty verdict. The jurors took their responsibilities seriously, consistent with all juries I have seen.