In Part 82, Judge Mader assesses the circumstances of potential juror misconduct in a murder trial, and then discusses the contemporary social dynamics of prosecuting sex trafficking cases.
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A defendant on my morning calendar has a corporate look and black-rimmed glasses. A college graduate from a family of attorneys, he makes his living breaking into vending machines on the upper floors of posh hotels. Carrying an expensive leather briefcase for stashing his loot, he faces four years in prison. He is already on felony probation for doing the same thing.
An impressive post-traumatic stress disorder (PTSD) doctor testified in the jury trial today. He addressed the question, “Why would the defendant, seemingly without motive, kill a man reaching for his cell phone?” The defense doctor, who interviewed the defendant and administered psychological tests, testified, “The defendant displayed classic PTSD symptoms from having been shot at several years before.”
The PTSD doctor said, “People with PTSD suffer from three major problems: Problem number one is ‘re-experience.’ They experience the trauma of the original event over and over. Problem number two is avoidance. PTSD survivors often do everything possible to avoid thinking about what happened to them. Substance abuse, in this case meth usage, is consistent with avoidance. The third characteristic is ‘hyper-vigilance.’ Someone who has had a traumatic incident will overreact and distort reality. That,” according to the doctor, “would cause the defendant to impulsively reach for his gun and kill someone whom he thought was going to attack him.”
During cross-examination it was brought out that the defense doctor never listened to the hour-long interview of the defendant the day after the shooting, interviewed the defendant’s relatives, or learned whether the defendant had a psychiatric history. The defendant never reported to the doctor that a voice told him to kill, as he told us in court. The doctor also admitted, “It is problematic figuring out if someone is faking PTSD.”
As the jurors filed into court this morning, a juror approached my clerk and told him that a woman in the audience, who came to court every day with an older male juror, asked her, “What do you think about the trial?” The juror immediately said she could not speak to the woman. When this happens, I have to make a further inquiry. If the woman in the audience approached one juror, did she approach others?
I hate investigating potential juror misconduct because it takes time away from the trial and creates potential for me making a legal mistake. Jurors, above all, want trials to be over quickly, and a prolonged investigation into possible misconduct aggravates uninvolved jurors.
The first thing I did was question individually the older male juror who came to court every day with the woman who had approached the juror. He had recently retired after thirty-eight years as a mail carrier. “What is going on, sir? Who is the woman who comes with you to court every day? Is she your wife? A caretaker?”
“Your Honor, you won’t believe what’s happening. This woman is my partner. I’m married to her. Every morning when I leave for court, she insists she’s coming along. I keep telling her to stay home and not come with me, but she just gets in the car.”
“But, sir, how long has she been married to you?”
“That’s just the thing. I’ve only been married since April. Six months ago. For the past three months I’ve been trying to get rid of her.”
“Does she want to talk to you about the case?”
“Are you kidding? That’s all she wants to talk about, twenty-four hours a day. She wants to talk about everything, all the witnesses, the attorneys, she just won’t stop. I keep telling her to be quiet, that I can’t talk about the case, but nothing stops her. You should also know that she is illegal.”
I told him to stop talking about his wife’s immigration status because it wasn’t relevant, but everything suddenly became clear to me. This woman found a friendly, sweet older man with a government pension. She got him to marry her so she could stay in the United States and live well. He was trapped, didn’t know how to extricate himself, and was unable to control her.
Luckily, I had lovely, professional attorneys on both sides. They all agreed with my decision to excuse the juror from jury service and let him leave with his wife. I know he was disappointed to miss the remainder of the trial. I predict some wild arguments driving home.
The jurors convicted the defendant of second-degree murder. With their special finding that he discharged a gun causing death, the defendant will receive forty years to life in state prison. Most likely he will serve at least thirty years before he’s paroled. He will be in his fifties.
Another trial arrived, this time from the sex crimes division. Again, I am fortunate to have congenial and competent attorneys, both women. The new politics of “sex crimes” is on full display. The case involves a classic situation—a pimp abusing a prostitute in his stable. Pimps used to be charged with “pandering.” Pimps are now charged with “human trafficking.”
Every DA’s office wants to show the public that they are going after these cases. The public thinks human trafficking involves stuffing illegal immigrants in a van and smuggling them across the border or forcing a housemaid from Saudi Arabia to work seven days a week after taking her passport. Those kinds of cases are rare.
The human trafficking case reached a settlement last Friday while I was at an all-day judges’ seminar. The defendant will agree to seventeen years in state prison. The sixty jurors were delighted to go home. According to the prosecutor, human trafficking is the crime of the day and there is political pressure from advocacy groups as well as grant money to classify classic pimping and pandering this way. The victim in my case was twenty-seven and already a prostitute. The case did not involve abuse of a minor. New human trafficking laws have created savvy prostitutes. When arrested, prostitutes claim they are victims needing protection. As a reward for helping prosecutors convict pimps for human trafficking, prostitutes escape prosecution.
If one member of a court’s team is out of sync, its rhythm and efficiency are thrown off. One of my assigned public defenders is extremely disorganized and inefficient. He rarely visits his clients in jail before court appearances. When his client is brought out of custody, he takes time to give the client information they should have already discussed. The other attorneys and the entire court get backed up.
I want to scream every time I ask him, “What date do you want to return?” Each time, he has to open his calendar, scan it for open dates, and muse out loud what date would be better or worse. Sometimes I interrupt and say, “How about in two weeks, October 29?” He will always say that the date is no good for him. I’ve given up. The poor guy is pedaling as fast as he can. If I’m too harsh with him about selecting dates ahead of time, he will start lagging in a different area.
A judge in another county received a reprimand by the CJP for improperly using the authority of his office. While driving on the freeway, he noticed a probable drunk driver. He called the California Highway Patrol (CHP) to report the sighting and identified himself as a judge. The argument for discipline was that the errant judge was using his judicial title for his own benefit because he wanted the DUI driver caught so his own drive would be safer. Yet he was also performing a public service for everyone on the road. By telling the CHP he was a judge, he may have gotten the CHP to respond faster. The judge received the lowest form of discipline, a written reprimand. Does all questionable conduct by a judge in everyday life have to be pursued by the CJP as discipline?