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