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Inside the Robe: A Judge's Candid Tale of Criminal Justice in America – Part 59
Judge Katherine Mader (Ret.)
In Part 59, Judge Mader offers insight into the impact of public opinion on sentencing decisions and offers the details in a particularly brutal murder case as an example of some of the senseless violence that comes before her court.
One more sentencing date this morning for the "Ferrari doing donuts" defendant. His evolving defense, from "sleepwalking" to "sleep-driving" was not believable. The jury had obvious problems with his credibility as it convicted him immediately. When someone puts on a defense that I think is phony, it colors whether I believe him in the future.
On the last sentencing date, the defendant claimed he couldn't go to jail because he was taking care of his three-year-old twins due to his wife just having had an operation for bowel obstruction. I granted him a continuance. Today the defendant, through his attorney, presented a doctor's note that he was needed for childcare for the next two months. The note was impossible to verify. The doctor's office was in Bakersfield, and privacy issues would not allow the doctor, by phone, to even verify that the defendant's wife was a patient.
I can't leave two babies without childcare. I also don't want to be a chump. Embarrassingly, one judge suffered publicity and a disciplinary investigation in a similar situation. A defense attorney's wife called the courtroom from the hospital. She was experiencing a miscarriage. The attorney wanted to leave the court during closing arguments and wasn't allowed to do so. I tried to find a middle ground. I gave the defendant two weeks to get his affairs in order, find help for his children's mother, and return for sentencing. The defendant is trying everything he can to avoid custody time.
I'm leaving for vacation soon and don't have time for another trial. I was assigned a two-hour preliminary hearing this afternoon. In a preliminary hearing, the prosecutor presents a bare bones case for a judge to decide whether there's enough evidence for a case to go to trial. This crime occurred in 1998, and the defendant had been extradited from Korea. The facts were complicated, with several Korean nationals in Los Angeles accused of kidnapping a fellow Korean, driving him around the city, and beating him unless he turned over $36,000 to satisfy a debt.
I was completely lost during the hearing due to numerous similar sounding Korean names. I've learned never to delay interrupting the proceedings for clarification. When I slow things down and approach everything in small bits chronologically, I can find my way. The case was strong enough to send to a trial court.
Ethnic communities have unique ways of handling their criminal elements. Some crimes are seen more often in specific communities. Many debt collection crimes involve Koreans. Cash transactions outside of the traditional banking system are common in the Korean community. Even local convenience stores display signs in the window offering banking services.
Cries of outrage in the morning news about a judge in Northern California who sentenced a Stanford University student to six months in jail after he was convicted of three counts of sexual assault. The attack occurred after an evening of drinking by the victim and the defendant. Social media is overflowing with copies of a heart-wrenching and lengthy letter from the victim. The defendant, Brock Allen Turner, a winning swimmer at Stanford, was not helped by his father expressing publicly that his son should not be punished too harshly for "twenty minutes of action."
Hostility has been directed toward Judge Aaron Persky. As a judge hearing similar cases, I find the uproar disturbing. It is difficult to understand the facts of a trial without having been there and hearing the witnesses. It is also difficult to know the appropriate sentence for a defendant without understanding the defendant's background. A recall committee has already formed, and the judge's opponents are growing by the minute. The public has trouble understanding the concept of an "independent judiciary." Judges should not have to worry about losing their job if they make an unpopular decision. The last thing the public should want is a judge sticking a wet index finger into the air to see which way the wind is blowing before deciding a case. Legal pundits, including law professors, defense attorneys, and prosecutors, have opined confidently to the media that the sentence was too lenient. It feels like mob mentality.
If I were not a judge, I might be an irate public citizen pulled into the fray. That's the easy position. All judges know in advance that a sentence in a widely publicized case might be criticized. This judge, from what I read, had an earlier career as the head of the sex crimes unit of the District Attorney's office in which he urged lengthy sentences. Yet he stuck his neck out in this case. What was in it for him except criticism? A judge doesn't get a pay increase or a bonus for making unpopular rulings.
I admire the District Attorney of the county where the crime took place. He refused to join the bandwagon calling for the judge's removal and said he was pleased with the performance of the judge in most cases. As an elected official, he understands he will not always agree with the decisions of judges. But that doesn't mean that he wants to throw out a judge because of one ruling he dislikes. The safest way for a judge to avoid a public outcry if he wants to give probation in a case that normally calls for state prison is to refer a defendant to the California Department of Corrections and Rehabilitation for a ninety-day screening. There, a psychologist and corrections official evaluate whether or not a defendant belongs in prison. If the Department recommends probation, the judge has cover for the decision. That wasn't done here.
Several decades ago, in Los Angeles, a Korean shopkeeper fatally shot an African-American teenager whom she wrongfully believed was shoplifting. The judge in that case sentenced the shopkeeper to probation. She never recovered from the public outcry. Among judges, this story is used for training, suggesting that a ninety-day diagnostic study is a useful technique to soften the impact of an unusually light sentence.
Much of today was spent in another preliminary hearing alleging murder in the course of a burglary, also a potential death penalty case. The courtroom was filled with dozens of relatives of the elderly female victim. The defendant, a young man, had run errands for the victim, who had often been kind to him. Returning from the beach one day on the bus, the defendant thought it would be more convenient if he had a car to drive. Returning in the middle of the night to the victim's home, he let himself in, then stabbed her to death as she slept.
With a stolen vehicle report in the system, a few days later the defendant was stopped driving the victim's black Cadillac. After receiving his Miranda rights, the defendant confessed to the murder. One more innocent victim whose life ended for no reason other than greed. There appears to be no defense. When there isn't much to say, defense attorneys like to emphasize, "My client was cooperative with the police from the beginning." That may be true, but it carries no weight under these facts.
Brock Turner
California Department of Corrections and Rehabilitation
Judge Aaron Persky
sleep driving
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