Judge Richardson Denies Six Month Continuance, but Pushes Back Trial At Least Until January 2011 –
Specifically, he failed to provide a timeline of how much time he would need, he failed to identify specific investigations that were needed and the time it would take to complete these investigations, and failed to identify expert witnesses that would be retained and the work they would need to perform in preparation for the trial.
Mr. Gable informed the court that he is the midst of a Federal Court Trial that he expects will last 45 days, going three days a week, which would take him into late January.
The people argued vigorously against any future delays. Garrett Hamilton, the supervising Deputy DA, told the court, “It is my understanding that pro pers in Sacramento County… are entitled to two hours a week in the law library.”
He continued, “[Mr. Topete] has to understand that’s one of the downsides of representing himself. I’m sure he’s finding that out.”
Mr. Hamilton also objected to any asserted “right to confidential counsel,” arguing, “He didn’t like the fact that his office, for lack of a better term, his jail, was subject to surveillance. That’s also something that’s just a reality of his living conditions and the situation that he’s in. That cannot possibly be a basis to continue because he wants to confidentially prepare. Sacramento, I’m sure, has rules, especially for people who are in custody for killing police officers or deputy sheriffs.”
Garrett Hamilton had objections to any further delays based on the appointment of Mr. Gable as advisory counsel and his federal trial schedule. “Here’s the thing, we’re talking about giving him two lawyers for advisory counsel,” he argued, “The reality is for a trial date, it doesn’t matter what Mr. Gable is doing for the next six weeks because Mr. Purtell, who is yet another advisory counsel, can work with Mr. Topete to get ready for a trial, especially if Mr. Gable is going to agree to let him use his computer, his fax machines, and his secretary that Mr. Purtell was so adamantly complaining about.”
Mr. Topete then met with his advisory lawyers. Following a lengthy recess, he agreed to take on Mr. Gable and Mr. Purtell as advisory counsel, under the condition that his trial be postponed until March.
Judge Richardson said that there would be no bargaining by the court and certainly not over the issue of advisory counsel. He said he would set an appropriate date and he cannot guarantee that March would be an appropriate date. He said he was not precluding it, however, he did not want to be in a position where the court was bargaining over a trial date.
Mr. Topete told Judge Richardson that he was not trying to bargain, but he was concerned about Mr. Gable’s trial schedule. He also expressed concern about Mr. Purtell’s stated position regarding the need for resources, stating, “If Mr. Gable is not going to be available, given his trial schedule, then he’s not going to be available for either Mr. Purtell or myself.”
Judge Richardson responded, “That is the reality, you hit on something, I just don’t want to be in that position. I will take into account the need you will have to meet and confer with your advisory attorneys in this case.”
Judge Richardson argued that this arrangement will expedite the case, as both are not only skilled attorneys, but also very familiar with all aspects of the case.
However, that did not stop District Attorney Jeff Reisig from grandstanding about the issue and the need for a fair and speedy trial, not only for Mr. Topete but for the family of the victim.
“What I would ask the court to keep in mind is while the defendant has the right to a fair trial, we appreciate and respect that,” Mr. Reisig said. “Marcy’s Law guarantees that the victims in this case also have the right to a fair trial, to a speedy trial, and to due process.”
“I bring that up because the family that’s behind me, has been here going on over two years, quietly and patiently waiting for a trial. So as we sit here today after 28 months, talking about coming back in two weeks to set a trial. I would urge the court, let’s set the trial today and acknowledge that this family of the victim has a right to due process, as well.”
While that may make a powerful emotional argument and the DA likes to speak about reality, the reality is that they need to take the time to get this right, the first time. Because the worst thing that could happen to the family of the victim is that they go through the whole trial, they convict Mr. Topete, and they have a flawed court process and it gets thrown out after ten years and suddenly they have to come back and have another trial ten years down the line because they rushed things through today. How will the family of the victim feel then?
The other issue that was addressed was Mr. Topete’s time allotted to him at the Sacramento County Jail’s law library. Judge Richardson issued an order to allow him his designated two hours.
Garrett Hamilton spoke, “I just don’t think we’re in the position to tell the Sacramento Jail to change their policies and privileges for pro pers.”
He reiterated that he is not aware of any right for Mr. Topete to confidentially prepare his case without the jail’s surveillance. “If we need an authority to address that, we can. But he’s in the jail, they have to watch him.”
Judge Richardson reminded Mr. Topete that he knowingly signed an agreement whereby he would not get any more time in the law library than pro per defendants are ordinarily allowed.
Judge Richardson said, “When you waived your right to counsel there were several things that you signed off on. One was that you were not entitled to, nor would you receive any special consideration or assistance from the court.”
“If I am in custody I will receive no more library time or privileges than are available to any pro per defendant. In addition to provision number nine, that I will seek no extra time for preparation,” he continued.
For whatever reason, Sacramento County allows considerably less time in the law library than other counties. For instance, Tulare County allows more access, up to ten hours per week.
It seems like an odd system overall, individuals are entitled to counsel, and they are allowed to represent themselves in trial, yet the system imposes additional burdens on pro per defendants beyond their simple lack of expertise.
As such, Mr. Topete is under around-the-clock surveillance, even as he attempts to prepare his own defense, which should be privileged information.
To me, the first priority in this case should not be speed, but to do it correctly. As I stated earlier, a misstep by the prosecution, whether it is in denying the defendant’s rights or the failure to move the trial to a location that will ensure a more fair trial, may result in the case being overturned.
If the concern is with the rights of the victim’s family, and Mr. Reisig certainly referenced Marcy’s Law at least twice, then perhaps they ought to consider how the victim’s family feels if all of these shenanigans end up with the verdict being tossed out down the line.
In any case, Judge Richardson understood that, while he may desire to move the trial along, the reality is that we are looking at least into January, and probably March or later, before this trial begins.
—David M. Greenwald reporting