In Part 87, Judge Mader explains the strategies lawyers use when selecting a jury. The Judge also discusses the endorsement process for judicial candidates and the importance of ethical standards when vetting prospective judges.
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Selecting a jury has similarities to playing chess for the lawyers. Our defense attorney in the trial has been check-mated. I have not seen this before in forty plus years of jury trials. Here’s what happened: Each side can excuse twenty prospective jurors without giving a reason. It’s a delicate dance. Usually one or both sides will pass a few times when they know the other side will never accept the jury with a certain person on it. The purpose of the exercise is to have some challenges left in the bank. It’s critical to count how many challenges each lawyer has remaining. If you’re the defense attorney, for example, and you count incorrectly, you may use up all twenty. At the end, the opposing side will be able to excuse one or more of your favorite jurors. You will be out of challenges, and a juror unfavorable to your side can be seated. You can’t do anything about it if you are out of challenges.
The trick is to end up with a few more opportunities to excuse people than the other side. In our case, the prosecutor accepted the panel six times. The defense never accepted the panel, and just kept kicking more and more jurors off. If one side uses up all twenty challenges, and the other side has passed six times, the side with the six remaining challenges will be able to kick off jurors at will. It is a horror for an attorney to run out of challenges when the other side still has challenges left, equivalent to the nightmare of dreaming you have to take a final exam in a class in which you think you were never enrolled.
After the defense attorney used her nineteenth challenge, I was concerned that she hadn’t counted correctly. Off the record, I said to her in a soft voice, “Are you counting?” I shouldn’t have helped her. If I had a hostile prosecutor on the other side, she might have been angry at me for alerting the defense attorney that she was walking off a cliff. She should know how to count. Yet the defense attorney just didn’t get it. She used her twentieth challenge. I brought both attorneys to the sidebar without the court reporter because I wanted her to understand that she was out of challenges. She looked surprised, and said, “I thought I was just on nineteen!”
I reminded her that I had just asked, “Are you counting?” She looked at me dully. The prosecutor was more gracious than I would have been. She used only two of her remaining six challenges to keep anti-defense jurors on the jury panel. The defense attorney could do nothing about it. One of the jurors then selected for the permanent panel had a family member killed by a drunk driver. Ironically, my clerk later told me, “The public defender asked me at the end of yesterday how many challenges she had used and I told her, ‘Twelve.’ All she had to do today was count correctly to eight.”
The defendant comes off as an ogre, scowling at everyone. According to a police officer who testified today, “While at the police station, the defendant refused to answer questions about his name, birthdate, or other identifying information. He seemed angry at the police and sat on a bench rolling his eyes and ignoring us as we tried to talk to him.”
In contrast, the victim’s husband was extremely sympathetic as he explained, “This other SUV came right at us. It was accelerating on the wrong side of the road until it rammed my passenger side. I tried to give my wife CPR, but it wasn’t working.” Scary to think that highly intoxicated drivers are on the road in the middle of the afternoon, and one’s life can be so quickly upended.
On November 2, I described how I got judicial endorsements from politicians and law professors for my judicial race. Obtaining endorsements from news publications as well as the local county bar association is also important. It is rumored that a Los Angeles Times endorsement can boost a candidate’s votes by two to five percent. I wanted that endorsement. I also wanted to be rated as “Well- qualified” or “Highly qualified” by the County Bar Association. The ratings link with each other. It would be unlikely for the Los Angeles Times to endorse a judicial candidate who has been rated “Not qualified” or “Qualified” (meaning average) by the County Bar.
The County Bar arranged interviews of judicial candidates by several sub-groups. My sub-group sat around a long wooden conference table in the offices of the County Bar in downtown Los Angeles, and I sat at its head. At this point, I had been a prosecutor for sixteen years, a defense attorney for about thirteen years, and the LAPD Inspector General. I had conducted dozens of jury trials as well as argued both for and against the death penalty. I got along well with my colleagues and opponents. I believed I should be rated “Well- qualified” at a minimum.
The atmosphere in the conference room felt inhospitable and the seated attorneys were unsmiling. I had expected a friendly interview, not a hostile one. A “leader” of the group of assembled attorneys emerged after we finished preliminary discussions about my résumé.
He was middle-aged, tall and contentious, a criminal defense attorney whom I didn’t know. “I want to talk about the woman you prosecuted who received the death penalty,” he began. This woman, a registered nurse, hired an orderly from the hospital where she worked to have her roommate killed for insurance money. They had purchased a home together and bought $100,000 mortgage insurance on each other’s lives. The attorney’s questions to me were specific. “What did you think about the strength of the evidence? What did you think about her defense attorneys? Did they know what they were doing?”
The questions made me uneasy. I had prepared answers to questions about my qualifications. Why was I being asked about a murder conviction still on appeal? It didn’t occur to me that anything unusual was happening. Until I got my evaluation from the committee. They rated me “Qualified” and nothing more. That’s the rating I would expect of a newer attorney or someone with disciplinary or temperament problems. I already knew, because of being shown questionnaires sent to dozens of colleagues and judges, that those weren’t my issues.
What happened? My mind raced. I knew the attorney asking me the questions was unfriendly, but I had no idea why. Why was he asking questions about a specific trial? I looked up the address of his law office. Bingo! He shared an address with a female criminal defense attorney who was trying to win freedom from death row for the same woman I convicted in the murder-for-hire case. The appeal was being prepared at the exact same time that I was being questioned before the County Bar committee. The appellate attorney, my questioner’s colleague, must have asked him, “When you interview Mader, try to find out whether she thought the trial lawyers were ineffective. If Mader criticizes the defense attorneys, I might be able to use it in the appeal.”
I was shocked. I assumed that all members of the county bar judicial selection committee would be beyond ethical. I hoped the members would be impartial. I was unsure what to do with this information. Part of me felt like slinking away. I thought when I resigned as LAPD inspector general, I was done with underhanded attacks. Two years had passed, and I wasn’t ready for another battle. My friends and family urged me to fight. They asked, “Are you going to let this schmuck win?”
After appealing the committee’s ruling, I had to appear before the full judicial elections committee of approximately sixty attorneys: prosecutors, defense attorneys, private and public, as well as civil lawyers. While I awaited my scheduled appearance, I prepared notebooks for each for the members with letters of recommendation from former bosses and writing samples. I also wrote a speech. I did not accuse the attorney on the sub-committee of committing misconduct because I did not want to dive into the trap of being too confrontational.
Later that night, sub-rosa, a committee member called and told me that the full committee increased my rating to “Well-qualified.” During that conversation, I told the member of my experience with the committee representative shilling for his officemate. Surprised, he remarked, “You know, it all makes sense to me. When we put together the sub-committees, this attorney asked to be assigned to investigate you. We didn’t know why, but never suspected he had ulterior motives.”
I since learned that the attorney who questioned me was kicked off the judicial evaluation committee. I remain skeptical about the objectivity of the rating system of the County Bar. It is too easy to gain enough power to make or break someone’s budding judicial career. Vetting of the participants for personal motives was lacking. I felt troubled by the experience but glad that I made the effort to appeal.
I am convinced my successful appeal enabled me to receive the endorsement of the Los Angeles Times. The Times could have endorsed any one of the three of us. My opponents each had sat in a courtroom for years in subordinate judicial jobs, and I had never been a judge.
What tipped the scale in my favor with The Times, I believe, was my performance as LAPD inspector general. I had tried hard to make sure that the office had teeth. I fought all efforts to dilute the power of the office. The Times endorsement of me stated, “In the intensely political job (as LAPD inspector general) Mader didn’t worry about taking popular positions. That independent quality would be an asset in a judge, as would be her dual prosecutor-defender experience.” The endorsement led to a win in the primary. That’s how my judicial career began.