The defense of Marco Topete, accused of the 2008 shooting of Yolo County Sheriff’s Deputy Tony Diaz, suffered another blow when the motion to disqualify Judge Paul Richardson was denied Friday by Judge Terrence R. Van Oss.
Judge Terrence R. Van Oss, a San Joaquin County Judge, was assigned the case last month when Marco Topete, who is representing himself pro per, alleged that a meeting between Judge Richardson with other parties of the case outside of his presence was improper.
The defendant in this case contended that Judge Richardson, himself a former Deputy DA in Yolo County, was subject to disqualification “because a reasonable person might have a doubt about the judge’s impartiality if he knew all the facts.”
Judge Oss dismissed the complaints, stemming from June 2008 when Department 9 was locked by Sheriff’s Deputies, as “untimely.” Writes Judge Oss, “Not only did he know about that incident in 2008, it had nothing to do with Judge Richardson since he did not preside at that hearing. Moreover, defendant previously filed the same challenge to all the judges of the court on June 27, 2008, and then withdrew it on August 8, 2008, so he was well aware of these grounds for the motion two years ago.”
Judge Oss continued, dismissing the claim about the September 7 conference, arguing that “defendant’s argument is based on the very fact that he was not present at the conference, so he does not know who was there.”
He writes, “He has failed to provide a declaration from anyone who was there, so this court adopts the facts contained in Judge Richardson’s declaration as accurate.”
This seems almost like a Catch-22 scenario. Mr. Topete is arguing that he was ignorant of what occurred during the meeting because he was improperly excluded. And the Judge is arguing that he must adopt the facts in Judge Richardson’s declaration as accurate because Mr. Topete could not provide a declaration from anyone who met in secret outside of his presence.
Is this some sort of kangaroo court?
The Judge then cast judgment on the defendant again, “Since defendant had foolishly chosen to represent himself, Judge Richardson was trying to reduce the risk of an unfair trial by seeking an attorney who would be willing to act as advisory counsel to defendant.”
Judge Oss continues, “Far from suggesting the court might not be impartial, these circumstances would prove to anyone aware of them that the court was making an effort to assure the fairness and impartiality of defendant’s trial by giving him more than he was entitled to.”
The problem is that we do not know that account is accurate, we only have the word of people who met outside the presence of the defendant or his court-appointed advisory counsel.
Moreover, Judge Oss’ unnecessary shots at the defendant call into question Judge Oss’ own impartiality. His remarks could be construed as prejudicial, and as evidence of Judge Oss’ own prejudice and perhaps contempt for Mr. Topete.
He ironically concludes, “There is nothing in defendant’s motion that suggests the court might not act with complete impartiality in his case. Therefore, the challenge is rejected.”
No matter what Mr. Topete may have done or be accused of doing, he is entitled to a fair trial. The actions in Yolo County demonstrate that Mr. Topete cannot get a fair trial here. The sad fact is that not one Judge has stood up and declared that very basic fact to be true.
The truth of the matter is that, if and when Mr. Topete is convicted of this crime, he will be able to make a pretty strong appellate case that he did not receive a fair trial.
The next hearing on October 15 figures to be of interest, as we might finally determine what happens with the advisory counsel and when and whether the case will finally go forward to trial.
—David M. Greenwald reporting
dmg: “This seems almost like a Catch-22 scenario. Mr. Topete is arguing that he was ignorant of what occurred during the meeting because he was improperly excluded. And the Judge is arguing that he must adopt the facts in Judge Richardson’s declaration as accurate because Mr. Topete could not provide a declaration from anyone who met in secret outside of his presence. Is this some sort of kangaroo court?”
The problem here is Topete is bringing the motion, so has the burden of proof – which he did not meet. He produced absolutely no proof of a meeting in which he was improperly excluded. If Topete had a lawyer instead of trying to represent himself, a lawyer would have known this. Topete is suspicious of everything, but cannot prove any of his suspicions. So his suspicions thus far amount to nothing but a lot of hot air.
dmg: “The problem is that we do not know that account is accurate, we only have the word of people who met outside the presence of the defendant or his court-appointed advisory counsel.”
The burden is on Topete, not on the court system, to prove Richardson’s account is inaccurate. Otherwise, Richardson’s account stands.
dmg: “Moreover, Judge Oss’ unnecessary shots at the defendant call into question Judge Oss’ own impartiality. His remarks could be construed as prejudicial, and as evidence of Judge Oss’ own prejudice and perhaps contempt for Mr. Topete.”
The “shots” WERE NECESSARY, to try and convince Topete that if he continues to represent himself, he will continue to make repeated mistakes that will prejudice his own case. Would you feel better about Judge Oss if he had NOT advised Topete to get himself an attorney he is entitled to? Topete is a hard-headed defendant, who thinks he can “game the system” with his antics, but he is finding out the hard way that the legal system is very complicated, highly structured, and there is no room for error on the part of a defendant.
dmg: “The truth of the matter is that, if and when Mr. Topete is convicted of this crime, he will be able to make a pretty strong appellate case that he did not receive a fair trial.”
On what basis? Now that I have learned:
“Judge Oss dismissed the complaints, stemming from June 2008 when Department 9 was locked by Sheriff’s Deputies, as “untimely.” Writes Judge Oss, “Not only did he know about that incident in 2008, it had nothing to do with Judge Richardson since he did not preside at that hearing. Moreover, defendant previously filed the same challenge to all the judges of the court on June 27, 2008, and then withdrew it on August 8, 2008, so he was well aware of these grounds for the motion two years ago.””,
it sounds like Topete does not have the lockout issue as something he can even argue on appeal.
Topete is his own worst enemy, it appears as if the court system is doing everything it can to keep him from acting the fool, but Topete is determined he knows better. In this country, a defendant has the right to be a fool if he so chooses, but then such a defendant has to take the consequences of being a fool too…
“This seems almost like a Catch-22 scenario. Mr. Topete is arguing that he was ignorant of what occurred during the meeting because he was improperly excluded. And the Judge is arguing that he must adopt the facts in Judge Richardson’s declaration as accurate because Mr. Topete could not provide a declaration from anyone who met in secret outside of his presence.”
“The burden is on Topete, not on the court system, to prove Richardson’s account is inaccurate. Otherwise, Richardson’s account stands.”
So it seems the Judge can say anything he wants happened at the meeting wether or not it is true.
There should be a record of any meeting between a judge and attorneys during a trial.
Themis: “So it seems the Judge can say anything he wants happened at the meeting wether or not it is true.
There should be a record of any meeting between a judge and attorneys during a trial.”
Let’s turn your comment on its head: “So it seems a defendant can say anything he wants happened at the meeting whether or not it is true.” Since Topete brought the charge, the burden was on him to prove there was an impropriety. (Some witness who saw who went into the meeting for instance.) Otherwise a defendant could make any number of unfounded accusations, remove every judge in every courthouse, and never come to trial.
[quote]“The truth of the matter is that, if and when Mr. Topete is convicted of this crime, he will be able to make a pretty strong appellate case that he did not receive a fair trial.”[/quote] Hasn’t Mr. Topete signed an agreement not to appeal if convicted?
One would hope he takes seriously the encouragement from Judge Oss and gets someone qualified to represent him. Claiming that the DA (and others were weren’t there) attended this meeting–then offering no support or proof–is just one more verification that he shouldn’t be trying to defend himself in a death penalty case. Wouldn’t you want someone to get his attention?
What about the independent investigation into the sheriff’s “mistake lockout” at the arraignment? Has that been completed and resolved?
I agree anyone representing themselves is cutting their legs off at the knee. Mr. Topete is also extremely limited in the fact that he is in jail and cannot conduct any investigations. He also doesn’t have complete access to the files or all discovery as an attorney would.
This incident with Judge Richardson is a prime example of how he cannot conduct an investigation and present independent witnesses. Add into that equation that every meeting or phone call he has is recorded since he has no attorney. David has written in a past article that the DA’s office concedes it is listening to all his conversations. I don’t know any particulars about his case but everyone has the right to the presumption of innocence. However, given the situation of a pro per representation I don’t see how anyone could win or have a fair trial. Elaine your point is well taken that our system of justice allows for that, but it certainly is stupid on his part.