In Part 93, Judge Mader explains a tactic she uses both to discipline herself to follow the law and to discourage prosecutors from over-charging. She also reflects on a plea deal she approved that she has come to feel is unfair to the victims in the case.
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A new case in my court involved the defendant, a forty-seven-year-old man with no prior criminal record, sitting on the steps of a Motel 6 next to a second man he claimed not to know. A plainclothes narcotics officer, also known as a UC (undercover), asked the second man on the steps to sell him meth.
Second man: “I’ll sell you some meth for sixty dollars.”
UC: “That’s way too much. I’ll give you forty dollars and three packs of cigarettes.”
According to the UC, the seller then looked at the defendant, the man charged in my court. My defendant bobbed his head up and down, signaling “Yes.” The sale was completed. According to the UC, the baggie of narcotics was on the steps between the two men. All of the conversation was with the second individual. The officers arrested both men for selling meth, but the defendant before me got nothing from the sale. Nor were there any narcotics on his person. Yet he was arrested for participating in the sale because he nodded his head.
The defense attorney filed a motion to dismiss the charges. “How can you accept, Your Honor, the ridiculous notion that my client’s nod of the head is enough to show that he was part of the narcotics sale?” Yet the law is clear. The prosecution’s theory was that the client in front of me was an “aider and abettor.” While he didn’t directly participate in the sale, through his actions, he purportedly aided, encouraged, and helped his confederate make the sale happen.
Some judges view their role as getting the junk out of the system. This case is junk. No jury will ever convict the defendant. I want to dismiss this charge. But I can’t do it without being accused of failing to follow the law. It will be obvious that dismissing this case is contrary to law. I can’t do it.
What I could do was propose a solution to save the defendant’s clean record, and also uphold the law. I proposed changing the felony sale to a misdemeanor, a lower level crime, of “lingering in a location where narcotics are sold.” That matched the facts. Fortunately, the prosecutor assigned to my court agreed. After one year, I will dismiss the charge, and the defendant’s record will remain clean. The defendant will also complete thirty hours of community service.
I thanked Cora afterward for going along with the disposition and we discussed that each felt the other had “mellowed.” I acknowledged that we had seemed to be in a downward spiral of anger for most of the year. She said, “What makes me most angry is feeling that you don’t listen to me. That’s why I keep repeating things over and over.” Perhaps she is right. I do cut her off a lot. I often feel that what she is saying is unreasonable. I didn’t consider how that was making her feel.
I have noticed that if I treat her kindly, and ask for her opinion before I express mine, she will be surprisingly pliant. While she denies that her philosophy of punishment has changed, I disagree. She seems more compassionate to mentally ill and drug-addled defendants. Perhaps both of us, Cora as well as I, have grown more tolerant this year.
My first case today made me furious at myself as well as the prosecutors. I wrote on August 30 about four defendants with expensive attorneys who convinced the DA’s office to offer them forty-five days in custody when they deserved state prison. The defendants were in a fight outside a nightclub that involved numerous victims. Two victims received major injuries, one a skull fracture, and another lost a portion of his intestines.
This morning one of the victims gave a “victim impact statement” to the court and addressed the defendants directly. The young woman was a Good Samaritan who intervened to stop the defendants from continuing to beat and kick a stranger who was already on the ground. She stepped between the fighting parties and was knocked to the ground herself. There she was stomped upon by the defendants, resulting in a skull fracture and lingering headaches from a concussion. She has been unable to work for the previous eighteen months. Her brother, who tried to aid her at the fight, lost part of his intestine, and now has bone cancer. As she looked at the stone-faced defendants she said, “I’ve lost my health insurance and have been unable to afford to go to the specialists that have been recommended for me. I no longer have the money to talk to a therapist. All I want to do some days is stay under the covers and not face the world. I can’t understand how you could have no sense of compassion for fellow members of society. How could you have beaten and kicked a group of strangers, and not seemed to care at all? If only one of you ever just came up to me and expressed concern or regret during your court appearances, I wouldn’t think every day about whether I want to go on living.”
As I listened to her, my anger rose. As the victim sat in court waiting to speak, she had to further suffer hearing the defendants’ attorneys asking me to give permission to their clients to go to Aspen, Colorado, for the Christmas holidays. Defendants need the permission of the judge to leave the state while they are on probation. While the victim is still in pain, these rich guys were going skiing. I didn’t have a good justification for denying these trips, as the defendants had complied with probation terms and were doing their jail time on schedule.
I don’t understand this plea. From the outside it looks like everything people rail against—rich defendants hiring connected lawyers to get a deal for their clients that no ordinary person would get. I am also mad at myself. I could have rejected the plea bargain, but then either side could have disqualified me and gone before a different judge who would likely have accepted the plea. The DA’s office claimed that they would have difficulty proving the case because two of the defendants were identical twins and it would be hard to distinguish which one of them committed the violent acts. Also, each of the victims was pursuing civil suits against the defendants and it could be argued they are biased because they want a monetary settlement. The DA’s office caved. I caved too. Shame on all of us.
It is easy to be fooled by inmates who have spent years practicing their art. On April 14, I wrote about a suicidal inmate, wrapped in a blanket, who requested to represent himself. He was surprisingly well-spoken, calm, and informed about his rights. The next day when he was due to return to court and pick up the arrest reports, the defendant was written up by the jailers as a “refusal” in that he said, “Get away from my door and leave me alone.” A couple days later, with another court appearance scheduled, I was again told he refused to come to court. This time a different deputy wrote, “Inmate is hostile and threatened to fight staff. Said he was not coming to court.” I issued an extraction order, commanding the jail to use force to remove the defendant from his cell and bring him to court today.
Today the defendant, still wrapped in a blanket, was brought into my courtroom. When I said I was considering revoking his privilege to represent himself because he refused to come to court, he looked at me incredulously. “Of course I wanted to come to court, Your Honor. I never refused. I kept telling the deputies that it was my court date and they ignored me. I wanted to come to finally get my reports.”
The defendant was cool and collected. Until I told him he was going to have to wait until January 6 to return. He started getting a little agitated, but nothing abnormal. My bailiff escorted him out of the courtroom normally, and when he returned, I asked how the defendant behaved in the back.
“Oh, he became extremely hostile. He wanted me to remove his handcuffs to fight me. I tried to calm him down by offering him a second lunch, but he kept calling me a ‘bitch’ and saying he was going to get me. When I got him to his cell he refused to walk inside. I had to get a sergeant to come help, and finally, he talked the defendant back into his cell.”
The situation began to make sense. The bailiffs were not making efforts to get the defendant out of his cell. True. The defendant was belligerent and aggressive just as the jail deputies described. Also, true. His modus operandi, repeated in the courthouse, was to threaten to fight staff. When he returns in January, I will have three reports, all consistent, of his delaying the proceedings, enough to take away his privilege to represent himself. If I only judged his behavior when he appeared before me, I would never have known.