In Part 91, Judge Mader discusses the case of a repeat offender seeking a lesser sentence because of health concerns, while reflecting on an earlier case to muse on unexpected romantic pairings that she sees in court proceedings.

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

December 8

The trial that arrived in my court this morning felt like it would never settle. The defendant, a career criminal, was charged with one count of robbery using a taser gun. He had a horrible record: two prior robberies, one felony assault on a police officer, and a charge of manslaughter for which he was sentenced to twenty-five years in prison. He is fifty years old, and if convicted again, appears to be a poster boy for a Third Strike life sentence.

The prosecutor had not made an offer to the defendant, and the defendant only offered to plead for ten years, way too light given his prior record. The defense attorney, though, made a powerful argument that the defendant should be given less than life.

“I have hospital records here that show that the defendant had rheumatic fever as a child that weakened his heart. He’s had two heart valve replacement surgeries, the second one twenty years ago. They are only supposed to work for ten years; he is overdue for replacement. Beyond these issues, the defendant had a major heart attack while in custody six months ago. He continues to get blood clots, despite taking blood-thinning medication, and his last battle with the clots was two days ago, when clots near his lungs were removed. My client will never survive twenty more years in prison, with notoriously bad medical care, so why are we going to spend seven to ten days on a jury trial?”

This case came from my floor, with the head deputy who detests me. The easiest political solution would be to proceed with the trial and sentence the defendant to life in prison. But was that the best way to handle the case? Should I offer the defendant that if he pleads open to me to the robbery, and admits all his prior convictions, I will give him something less than life?

I could live with offering the defendant twenty-four years in state prison, to be served at 85 percent. If he was still alive, the defendant would be in his late sixties when released. After reviewing his medical records, I satisfied myself that his problems were real. The defense attorney was annoyed and said, “I am an officer of the court. You should have no reason to disbelieve me about my client’s condition.”

“If I’m going to undercut the prosecutor, who wants a life term, I need to make sure I have a solid basis,” I replied. “I don’t want to learn later that the defendant is exaggerating his medical problems.”

The defense attorney said, “I don’t think my client will ever accept twenty-four years.” He had a long conversation with the defendant’s wife, sitting in the audience, who worked as a nurse. She had also brought medical records. How is it that someone with a conventional life and profession decides to hook up permanently with a career criminal who has spent most of his adult life in prison? The defense attorney went into the hall to have a heart-to-heart with her, and she returned with tears streaming down her face. That made me think she recommended her husband accept the twenty-four years. The defense attorney went into the lockup to discuss the offer with his client.

Emerging soon thereafter, the attorney said, “My client is ready to plead for twenty-four years, understanding that he most likely will never get out.” He probably thought that having a wife visit him, and a shot at being released, even years away, was a better bet than risking a sentence of life in prison after a trial. There was no clear defense to the charge.

Why did I stick my neck into this situation when I could just try the case and not risk another battle with the Eleventh Floor Head Prosecutor? The assigned trial prosecutor was undisturbed by the sentence, although he placed his objections on the record. That means he made a short speech, so he could claim to his boss he didn’t go along with the plea. Prosecutors do this all the time. We call it a wink-wink. When prosecutors strongly object to a plea, their demeanor is completely different, their faces turn red, and one can almost see steam coming from their ears. 

Yesterday’s robber with the “gassing” habit left a present in his holding cell. My bailiff showed me a foot-long, jail-made knife found in the cell after he was taken downstairs. The defendant used brute strength to pull a piece of metal corner molding off the wall and shape ten small sharp daggers that stuck out from each side of the body of the shank. That could have seriously hurt someone. A new case cannot be charged against him because the jailers hadn’t searched the cell before he was put into it yesterday morning. There’s always the possibility that the shank was left by another inmate.

December 9

An unusual partnership between a rapist and a librarian in an earlier trial came to mind with yesterday’s pairing of the career criminal and the nurse. The tall, well-spoken rapist with curly brown hair had been in custody for twenty years and was due to be released. Shortly before his release, he learned that the state of California was going to try to keep him in prison indefinitely as a sexually violent predator. He was entitled to a jury trial on that issue, and that trial came to my court.

When the jurors learned that they were to judge whether the defendant was a sexually violent predator, they glared at the mild-mannered man in his mid-forties, with horn-rimmed glasses, as though they wanted to kill him. We used written jury questionnaires which tend to make jurors more honest. Several people wrote, “When I looked at the defendant he looked like a pervert.” Having seen dozens of men convicted of sexual molestation and rape, I don’t believe there is a “look”; many sexual predators look unassuming and normal. That’s how they get away with their crimes.

Ultimately, we seated what we thought was a non-biased jury and began hearing from psychiatric witnesses. The defendant was an only child from an upper-middle-class family and attended Catholic schools. He became addicted to cocaine when he was a teenager and began raping young homeless women he met on the streets of downtown Santa Monica. After being sent to prison in his twenties, he detoxed from cocaine, never had a disciplinary infraction, and ended up running the prison athletic department.

The prosecution presented doctors who testified the defendant was someone who would likely re-offend. The defendant’s parents, who stood by him for decades, hired doctors who said the opposite. Sitting next to the defendant’s parents for the entire trial was his new librarian wife, who met him through a magazine ad the defendant placed. The defendant’s plain, conservative-looking wife appeared chosen from central casting to play upon jurors’ compassion.

It’s unusual for defendants to have adequate funds to hire their own doctor expert witnesses. I learned from the doctors, “Rapists have low rates of re-offense, while child molesters have the opposite.” One doctor spoke of elderly child molesters still posting pictures of pre-pubescent children on the walls of their cells. In contrast, according to the doctors, “Rape is a crime of violence, similar to murder, and they both have low rates of recidivism.”

The defendant prepared his testimony well and was articulate. He testified, “I am so sorry for what I did. I am never going to use drugs again. I am planning a life with my new wife and have a detailed plan for therapy.” The jury, which began the trial giving the defendant dagger looks, called him by his first name in the end, voted to release him, and stopped to offer congratulations as they left the courtroom.

I ran into a juror afterward at a deli. He asked me how “Bill” was doing and asked me to convey his best wishes. I wonder sometimes whether Bill conned us all. His road on the outside was bumpy. His first plan, to live with his parents in their condo, was thwarted when neighbors complained that having a registered sex offender on the premises reduced their condominiums’ value. The probation officer, after contacting a victim from decades earlier to explain that Bill was released, exercised a law that, upon a victim’s request, the sex offender who violated her must live at least fifty miles away when released.

Bill ended up living alone in a sleazy boarding house in the desert and taking endless bus rides to therapy appointments fifty miles away in Los Angeles. On one occasion Bill was returned to prison for a parole violation. According to the parole officer who did a surprise early morning inspection, cocaine paraphernalia was found in Bill’s room. According to Bill, however, “I felt sorry for a couple that had nowhere to sleep. I let them sleep in my room. The stuff wasn’t mine.” The state could not prove it was his, and Bill was released again.

The librarian wife was dumped soon after the trial. According to Bill’s attorney, who did a masterful job, Bill completed his parole and moved out of state. His supportive parents died. When they had testified on behalf of their only son, they bragged about how well he had done in prison. They should have had a bumper sticker proclaiming, “My son is the #1 prisoner at Atascadero State Prison.” Jurors who enter the courtroom with hateful attitudes toward a criminal type can have their attitudes molded through strong advocacy and courtroom props. It didn’t hurt that every day in court Bill wore a cuddly “Mr. Rogers” sweater.

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