In Part 81, Judge Mader reflects on the care a judge must take when composing instructions to a jury. She also navigates a delicate situation with a disrespectful prosecutor.

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


October 3

A murder trial was assigned to me. The defendant, a young, portly, light-skinned Latino with darting eyes, had a minor fender bender with a parked car outside the victim’s home. The random victim, a nice-looking, middle-aged Latino, came out of his house with a cell phone, presumably calling the police. The defendant, claiming he thought the victim’s cell phone was a gun, fired his own gun at the victim and killed him. In one moment, a single father of three young children was wiped off the face of the earth.

The defense plans to call an expert in PTSD (post-traumatic stress disorder). The defendant apparently was shot at a few years ago. He claims he overreacted when he killed the stranger because he thought the stranger with his cell phone was holding a gun. The defense’s expert, a doctor specializing in PTSD, will opine that PTSD could have affected the defendant’s thinking process.

October 4

As I began questioning the jurors, I thought how tedious the process becomes and how easy it is to tune out. Every job has its boring moments, and many judges quit criminal law because they can’t stand talking to jurors.

As we have heard, it can also get us into trouble. A judge in another trial was explaining to her jurors that they must identify their biases and set them aside. She explained in a general way that she has her own bias against plumbers. She has had trouble hiring plumbers and doesn’t trust them. She told the jurors: “If I hear that someone’s coming in, and I hear he’s a plumber, I’m thinking, ‘God, he’s not going to be telling the truth.’ Obviously, I already prejudged that person, and I wouldn’t be able to be fair.”

Immediately after she told that story to the jurors, the defense attorney addressed the court at sidebar and asked for a mistrial. A mistrial means that the jury would be discharged, and the trial would start over. The alibi witness for the defense was, of all occupations, a plumber. The defense attorney was concerned that the jurors wouldn’t believe her client’s alibi because of the judge’s comments about plumbers.

The judge offered to tell the jurors, “Do not consider my comments about plumbers to affect your decision in the trial. This is a completely different set of facts.” However, the defense attorney wasn’t satisfied. “I don’t want Your Honor to bring up the subject of plumbers again before the jury because I don’t want to highlight the issue.” The judge denied a mistrial, and the trial resulted in a conviction. The jurors did not believe the alibi plumber witness. The prosecutor, in his closing argument, said, “You should not believe the alibi witness because he’s a lying plumber.”

In overturning the conviction, the Court of Appeal said that the judge had abused her discretion in denying the mistrial. The appellate court opinion stated: “No admonition or instruction could have cured the prejudice that resulted from the trial court’s statement that it believed a plumber would lie in court when the defendant’s alibi witness was a plumber who the prosecution argued came to court to lie for his friend.” 


We ended the day without a jury. Many potential jurors claimed they didn’t speak enough English to understand the trial. This usually happens with Spanish and Chinese speakers. Our immigrant communities are huge, and many people spend their entire lives speaking only their native tongue. Whether at the grocery store, at work, or at home, it’s possible to have a fulfilling life without ever learning English—and without ever sitting on a jury.

October 5

The defense attorney keeps asking prospective jurors: “Would you consider mental health and/or drug use in evaluating the guilt of the defendant?” In addition to possible PTSD, the defendant was apparently high on methamphetamines. Jurors don’t understand that having mental health and drug problems doesn’t mean that a defendant has a “get out of jail free card.” But it could mean that the defendant is guilty of a different type of murder. For example, mental health or intoxication issues may prevent a defendant from being able to premeditate, a requirement for one theory of first-degree murder.

Potential jurors without legal training keep saying, “A murder is a murder.” Many jurors express the view, “I might be able to consider mental illness in evaluating whether someone’s guilty of murder, but I could never consider drug use.” Jurors keep repeating, “Drug use is a choice. It is voluntary. It shouldn’t make any difference whether someone is guilty.” If one potential juror says she can’t be fair and follow the law about drug use, other jurors copy the exact words of the excused juror, also hoping to be excused.

There is a lot of fast education that happens during jury service. Jurors need to absorb foreign concepts over a week or less. Many have no education beyond high school. They work in jobs that don’t require analytical thinking. They may not have taken civics in school. I would be lost, too, if I were sent to an aerospace company, given a short introduction, and told I needed to assemble airplane parts.

October 6

This morning, a defense attorney asked to approach the bench to have an informal discussion about settling a burglary case. He wanted to talk to me about his client pleading open to the court and having me release the defendant into a two-year residential program. Cora refused to approach the bench. I told her, “If you refuse to approach the bench after I order you to come here, you will be refusing a lawful order of the court.” She turned her back to me and returned to the counsel table.

The defense attorney and I were surprised at the prosecutor’s behavior. I asked the defense attorney, “Do you still want to approach the bench? If you do, I will order the prosecutor to come, too, or do you want to just tell me what you wanted to say from behind the counsel table?” The defense attorney chose to avoid the confrontation and asked me to review the file for an open plea before the next court appearance.

For me, it was a close call. Open warfare with Cora is not a preferred way to run the court. This is a subject I teach other judges and I know the law cold. I gave her a clear warning on the record. If she again refuses an order to approach the bench to discuss a case, I will find her in contempt, and I will fine her. Her office will go nuts, the courthouse gossip will go into overdrive, and I’ll wonder what it is about me that makes her behave poorly. I hope things don’t deteriorate further. All I want is a harmonious courtroom.

October 7

When I entered my courtroom this morning, Cora was waiting for me. “Your Honor, I want to thank you for referring me the case to read about the court’s right to control whether parties approach the bench. I want to apologize for not knowing the law in this area.” I told her that I appreciated her apology. I knew it was hard for her. Attorneys always get more interested in researching the law and are more conciliatory toward judges when they think they might be cited for contempt.

A sanction over $1,000 by a judge must be self-reported to the State Bar. The California State Bar controls the licensing of attorneys. Similar to the Commission on Judicial Performance (CJP) for judges, the State Bar can have a major impact on an attorney’s career. If an attorney is disciplined, it will restrict an attorney’s ability for promotion or to be hired elsewhere. An attorney needs to acknowledge a mistake and apologize when contempt or monetary sanctions are threatened. Judges are also required to consider an attorney’s apology before imposing discipline. That makes sense to me because attorneys (and judges) can say or do ill-advised things in the heat of the moment. 


The defendant in our jury trial testified, “I was shot in 2010 and bought a gun afterwards. I got paranoid. I always look over my shoulder. I didn’t know the guy who was coming at me. The guy reached in his pocket. I thought I was going to be shot so I shot the guy first.” The defendant had a revolver and pulled the trigger five separate times.

Drugged-up people with loaded weapons could be anywhere on the streets. I used to feel safer when I encountered transients in my neighborhood. Lately, however, I have seen many incidents of erratic and violent behavior toward strangers by mentally ill defendants, and I have become more cautious. I have not reached the state of paranoia of some of my fellow judges, but I understand it.