In Part 88, Judge Mader considers how to balance chastising an attorney for insufficient preparation while maintaining efficient courtroom operation. She also describes the ‘absurd’ result of legalizing marijuana but retaining severe penalties for marijuana-related crimes.

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

November 14

Preparing jury instructions for the murder/vehicular manslaughter trial that was concluding Monday morning consumed part of my three-day weekend. The jury instructions were voluminous. At least sixty pages. The jurors need to analyze the state of mind of the defendant as well as the different types of murder and manslaughter. Just reading the instructions took fifty minutes this morning.

Of the deliberating jurors, only three have previously served on a jury. None are academics. Many have not been in school for decades, yet these instructions require a scholarly analysis. On this jury are several cashiers, one medical assistant, one young student, two retired teachers, a tour director, and a front desk hotel receptionist. There is one juror who is an analyst for an insurance company. Perhaps she will become the foreperson.

I wonder whether the jurors will understand the nuances of the law. Instead of the legal issues, I think they’ll ask themselves, “How terrible was the defendant’s conduct? How sympathetic is the victim? How much do we want to punish the defendant?” “Murder” if they think he’s really awful; “vehicular manslaughter” if they think he’s not that bad. The defense didn’t present anything sympathetic about the defendant that would cause a jury to convict him of anything less than murder.

Both attorneys gave their closing arguments at the end of the day. The defense attorney meandered around and offered the jurors multiple theories upon which to gift her client leniency. “The road was curved—the defendant made a driving error and was trying to correct it when he crossed the middle divider and had the accident.” There was no proof that the road was curved. “There was no evidence how much alcohol my client actually drank.” Of course, there couldn’t be an accurate reading of his alcohol level. He ran away, hid, and couldn’t be found for three hours. The prosecutor’s argument was clear, crisp, and concise. But that doesn’t mean that the prosecutor will get her murder conviction.

November 15

The public defenders assigned to my court are nice people, but new at their jobs, and slow. It’s difficult for new defense attorneys to close a deal. Clients are often mentally ill, hostile, or just cons. Some defendants wring all they can from their public defenders, then ask to represent themselves, thinking they can buy themselves a better deal. They are sometimes shocked when I say, “Of course you can represent yourself. But I won’t be giving you more time. We’re still going to trial.”

This morning two defendants each tried to negotiate new and better deals for themselves. The prosecutor had offered something reasonable, but they wanted to slow down the process. Each asked to represent himself, as often happens. After one defendant is observed filling out the forms in the jail lockup to represent himself, another nearby defendant will decide to represent himself, too. 

While our vehicular murder jury is deliberating, an attempted murder trial arrived in my court. Many judges are gone next week for Thanksgiving. I will be here. This new trial already has logistical problems. The prosecutor needs to leave in a few days to take a cruise with his wife. The oppositional defendant needed to be extracted from his jail cell to get him to court today and the defense attorney says the defendant will have to be forced to come to court every day. I am not going to tell the prosecutor to put his vacation on hold because of this trial. Life is more important than trying one more mentally ill defendant. In court today the defendant said, “I’m going to testify because I did not stab anyone six times.” The defense attorney needs an expert witness because he insists, “The defendant suffers from delusions.” 

The jury came back in the Watson vehicular murder case and convicted the defendant of murder. Likely he will spend the rest of his life in prison. The defendant showed no reaction. Such a waste of an innocent life. The prosecutor was depressed because she needed to call the victim’s widower as well as the victim’s father in Iran. Even though there was a guilty verdict, no one is happy.

November 16

This morning I had to decide whether to continue the attempted murder trial sent to my court yesterday. Seems like a simple decision, but it’s not. When a trial is sent to us from the Department 100 Central Assignment Court, we are supposed to start it. Jurors are in such short supply that wasting jurors is like watching gallons of water spurting from a burst pipe during a drought. Continuing a trial creates tension between trial judges and the supervising criminal judge.

I wonder whether the supervising judge keeps all of us straight. Does he know that I almost never continue a trial? Or is he thinking, “Can you believe it? I think Judge Mader is trying to manipulate herself out of a trial since it’s almost Thanksgiving. She’s granting a continuance to someone who never asked for one in my court.”

The defense attorney never subpoenaed the doctor she needed to present her self-defense theory that her mentally ill and drug-addled client stabbed the victim due to delusions. A subpoena is a legal command for a witness to come to court. After furious texting, she learned her expert doctor was out of town and couldn’t testify. Unsuccessfully, she spent the morning trying to find another doctor. I called the newly appointed supervising judge, explained the situation, and learned he was highly resistant to giving the unprepared defense attorney a continuance. After all, he explained, “My high school baseball coach always told me ‘Your negligence is not my emergency.’”

Understandably, this new supervising judge wanted to show a firm resolve to not grant continuances once cases left his court. At the end of the conversation, he said that he would leave the decision up to me.

Let’s assume I told the defense attorney, “Nope, you can’t have a continuance. You must start the trial without the expert you need.” Let’s further assume that her client was convicted of attempted murder without an expert witness. The defendant on appeal will argue, “My attorney was not effective, because she didn’t subpoena a necessary witness. The judge was wrong in not granting a continuance. If my attorney had been more diligent, and the judge more reasonable I wouldn’t have been convicted of attempted murder.” That’s a strong argument for reversal.

Forty jurors were told to come to my courtroom yesterday afternoon. I swore them in as jurors to avoid burning them and ordered them back this morning. I granted the continuance in the morning. The jurors showed up at 10:30 a.m. and were excused, to the sound of cheering.

November 17

I keep thinking about yesterday’s decision. Should I have denied the continuance and taught the defense attorney a lesson about proper preparation? This wasn’t about the defense attorney. This is about the defendant and whether he would be convicted without an adequate defense. This defense attorney is usually conscientious and well-prepared. She screwed up and I’m sure she will learn from it.

Chastising defense attorneys in front of others in the courtroom is sometimes necessary. But always I need to consider how a higher court will look at my rulings and behavior on the bench. What was the real harm of continuing the case? Court convenience? Wasting jurors? How can those concerns be compared to the defendant’s right to a fair trial?

Was this all about my philosophy of discipline? Sometimes being publicly embarrassed is enough to change behavior. There are judges who have instructed their bailiffs, “Confiscate immediately cell phones from anyone in the audience whose phone rings during a court session. Even jurors’ phones. You can return the phone at the end of the day.” I hate that approach. I have instructed Julie, my bailiff, to warn the cell user before taking the phone away. I have found that most people whose cell phone rings in court are embarrassed enough to make sure it doesn’t happen again. 

A prosecutor in the new “High Tech Crimes” unit of the DA’s office stopped by and I asked him what type of cases he was seeing. The prosecutor said, “The latest thing happening is when a social relationship starts online between a young person and a stranger. I just got a call last night from a distraught parent. The parents knew nothing about the online relationship of their son. The seventeen- year-old son was ‘in love’ with ‘Emily,’ a beautiful blonde he met online. She sent him her nude picture. In return, he sent a video of himself masturbating. Then the boy got an email stating that if he did not send $1,000 immediately, his video would be sent to all of his Facebook friends. The parents and the boy were frantic. The email came from Morocco.”

November 18

Marijuana use is now legal in California. The law went into effect immediately. Other laws, remaining on the books, create severe penalties for other marijuana crimes. This morning’s marijuana case was absurd.

Before me, in custody, was a homeless, disheveled, fortyish male charged with felony “Transportation of Marijuana.” While riding his bicycle, he was stopped by the police for not having a light at night. Ultimately, a large amount of alleged marijuana was found in a bulging plastic bag attached to his bike. The defendant’s record consisted of a dozen misdemeanors, but no felony convictions and the defendant had been kept in custody for four months.

The defense attorney explained, “My client wasn’t transporting marijuana for sale in the normal sense. The legal marijuana dispensaries throw out parts of marijuana plants that they’re not going to sell. Transients hang out behind the dispensaries and claim them. They can get a small amount of marijuana from material attached to the discarded stems, and then they share it. That’s what this defendant was doing. I had an expert analyze what was in my client’s possession. There was some useable marijuana, but most of it was worthless.”

The defendant was being prosecuted for the felony of transporting the marijuana because he was on his bicycle and he didn’t want to plead guilty to his first felony. The prosecutor said, “I’m willing to let the defendant go to a live-in drug program (the defendant also had a meth habit), but he has to plead guilty to the felony.” The defendant ultimately took the felony deal.

I returned to my chambers thinking, “Am I doing justice? I am getting a criminal case off my calendar. This defendant will most likely fail on probation. I can’t imagine him visiting his probation officer once a month for three years. When he fails at probation he will be violated, and each time he will be spending more and more time in custody. And for a bunch of marijuana stems. I do not feel good about this.”

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