Topete Finally Will Proceed to Trial: Is the Courtroom Stacked Against Him?

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Yolo-Count-Court-Room-600The big news in the case of Marco Topete, who is accused of shooting Yolo County Sheriff’s Deputy Tony Diaz back in the summer of 2008, is perhaps that the latest hearing went according to form, no surprises and no big shake-ups.

That has not been the case through much of this case, that began over two-and-a-half years ago and made headlines around the region when Sheriff’s Deputies locked reporters and family members of the accused out of the arraignment hearings.  That has prompted charges by the media of favoritism and censorship and led to concerns that Mr. Topete could not receive a fair trial.

Mr. Topete grew frustrated at his court-appointed counsel, Hayes Gable and Thomas Purtell, and would dismiss them only to discover that life as a pro per defendant in custody at the Sacramento County Jail put him at a distinct disadvantage in a capital murder trial.

And so last month, lacking any semblance of a better choice, Mr. Topete reluctantly took back his defense counsel, who had been made advisory counsel by the court.  Faced with inadequate time to research the case, lack of hours in the law library, and lack of privacy and protection for legal product, Mr. Topete finally accepted the inevitable last month as he took back the two attorneys he had dismissed just three months ago.

If his goal had been to delay the proceedings, he succeeded in doing that by six months, moving a September trial to March.

So, while these concerns about the ability to have a fair trial have far from resolved themselves, there is now light at the end of the tunnel, at least terms of when the trial will take place.

On Monday, it was a simple status conference in which both the defense and prosecution announced they are ready to proceed to a March 7 trial, when jury selection will begin.  And then the real task will start as they will start out with 90-100 jurors, down from an estimated 130 prospective jurors.

The defense announced that a Dr. Buschbaum will be performing some form of brain scan test which might be used in the penalty phase of the trial.

The real question in this case is not one of guilt or innocence.  There seems very little doubt that he did what he was accused of doing.

Our concern here has been, from day one, process and the right to a fair trial.

From the start that seemed in doubt.  The Davis Enterprise wrote on June 20, 2008, “Can Marco Antonio Topete get a fair trial in Yolo County? If there are any more shenanigans like those pulled Wednesday by sheriff’s deputies and a court commissioner in Yolo Superior Court, we’re not so sure.”

Back in 2008, when the defense moved to disqualify all Yolo County judges from the case, the Sacramento Bee reported, “Legal experts interviewed Friday agreed that the defense would have a tough time winning its motion. But they said recent events in the case leave little doubt that it should be moved out of Yolo County voluntarily to avoid the appearance of impropriety.”

Stanford Law Professor Robert Weisberg told the Bee that “he doubted the Public Defender’s Office could win its effort to have every judge in Yolo removed from the case. The legal standard for removing judges is too high, he said.”

“You would have a huge burden to show prejudice,” Professor Weisberg told the Bee back in 2008.

“However, the judge and lawyers could agree to relocate Topete’s case. “That’s obviously the sensible thing to do,” he said. “It should really get done and done quickly.”

The Bee reported, “A move to a neighboring county could avoid future litigation and prevent any conviction from being overturned because of apparent bias, he said.”

Not much has changed to reassure us since that day and as per the norm, the system in Yolo County has refused to yield on this case.  However, the bar is perhaps set too high to get a conviction thrown out without proving actual prejudice.

When we spoke last month to Mr. Topete’s wife, Angelique Topete, she was frank, “It does not matter if he represents himself or if these attorneys represent him. If they insist on keeping it in Yolo County then he will get the death penalty.”

Monday gave us only a taste of what was to come, with the prosecution parading around the family of the victim.  They did not speak, despite the fact that Supervising Deputy DA Garrett Hamilton suggested they would at the next hearing.

There is no way to undo the pain and the anguish that these family members have suffered, but unfortunately the DA’s Office often parades the families of victims around like political footballs, concerned more about appearances perhaps than true compassion and sympathy.

I will never forget the treatment of the family of the victim in the Solis case, a case that became evident early on that they had the wrong guy.

But for Mr. Topete, this is just the start the show.  We have caught a glimpse of the DA’s tactics when Jeff Reisig a few months ago suddenly leapt to his feet to espouse the virtues of the victim’s bill of rights.

The bright lights of the cameras are not yet again on this case, but they will be.  When they are, we will see a true spectacle.  The question is whether we will also see justice.  In this county, I would not hold my breath.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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9 thoughts on “Topete Finally Will Proceed to Trial: Is the Courtroom Stacked Against Him?”

  1. Roger Rabbit

    DA Reisig lives for these cases, not for justice and not for the victim, but for the publicity and headlines, it is all about politics for this mustela (Latin).

    Judges like getting big cases, DA’s like getting them, Defense Attorneys like getting them. Lots of headlines and lots of money. Most don’t know it but if a Murder trial cost more than a million dollars, the State pays the DA’s back. So when you are on a jury and see all these highly paid experts, when you see all these special diagrams, props and miniature cities built to scale, two or three DA’s, two or three DA Investigators, Victim Witness personnel all sitting at the trial, you know your DA is padding the bill to meet the million dollar threshold.

    So with all the headlines and all the money up for grabs, who doesn’t like a good killing?

    Our justice system is broke in so many ways and rewards, jobs and benefits for attorney’s (judges, DAs, Defense) drives it all.

    Some where the victim gets used by many and is normally lost in frenzy.

  2. E Roberts Musser

    dmg: “The real question in this case is not one of guilt or innocence. There seems very little doubt that he did what he was accused of doing.”

    I find these two statements rather surprising/disturbing. The “real question” is determining innocence or guilt – that is the sole purpose of a trial. The defendant is innocent until proven guilty – YOUR DOUBT OF HIS INNOCENCE NOTWITHSTANDING.

    dmg: “The bright lights of the cameras are not yet again on this case, but they will be. When they are, we will see a true spectacle. The question is whether we will also see justice. In this county, I would not hold my breath.”

    Why will we necessarily see a “spectacle”? What do you have in mind, other than a trial to determine the innocence or guilt of the defendant? In what way do you think this will be a “spectacle”, especially in light of the previous court shutout debacle in which the Yolo County Court system was publicly embarassed? Don’t you think the Yolo County Court might be a bit more careful this time around to follow all proper court protocols?

    You concede you have little in the way of doubt that the defendant is guilty, but somehow don’t see justice being done in Yolo County. Not getting your point…in what way will justice not be done if all the i’s are crossed and the t’s dotted? Or do you suspect proper court protocols will not be followed in Yolo County – that all the Yolo County judges are incapable of rendering a fair trial? If you believe that, it is a pretty sweeping generalization…

    My feeling is that the trial venue should be changed bc of the courtroom shutout of the public at the arraignment, which gives the appearance that there may be some problems with bias on the part of the judges and the ability of the defendant to get a fair trial. Rather than make this an issue on appeal, it would be better to have the venue moved to another county….EXCEPT THAT THIS ISSUE WAS ALREADY BROUGHT FORWARD, AND THE DEFENDANT CHOSE TO WITHDRAW IT (at least that is my understanding). Thus there seems no impediment to having the trial in Yolo County bc of the defendant’s own actions…

  3. jonruth

    Regarding the statement – “The defendant is innocent until proven guilty”
    Is it not correct that this should be The defendant is [u]presumed[/u] innocent until proven guilty.”

    Does anyone believe that some other person shot and killed Deputy Diaz?

  4. David M. Greenwald

    “EXCEPT THAT THIS ISSUE WAS ALREADY BROUGHT FORWARD, AND THE DEFENDANT CHOSE TO WITHDRAW IT”

    There is apparently some dispute on why that happened and I’m not sure the defendant did, rather than his attorneys and there may have been technical grounds for doing it

  5. David M. Greenwald

    And I believe Jon Ruth is correct, there is the presumption of innocence until the court procedure has been followed and the individual is determined guilty beyond a reasonable doubt by his peers. As Jon points out, that is not to say that the individual is innocent, only that he is entitled to the full process of law whether we believe him innocent or not.

  6. E Roberts Musser

    dmg: “There is apparently some dispute on why that happened and I’m not sure the defendant did, rather than his attorneys and there may have been technical grounds for doing it”

    It matters not one whit whether it was defendant or his lawyers. The lawyers speak for the defendant.

    dmg: “And I believe Jon Ruth is correct, there is the presumption of innocence until the court procedure has been followed and the individual is determined guilty beyond a reasonable doubt by his peers. As Jon points out, that is not to say that the individual is innocent, only that he is entitled to the full process of law whether we believe him innocent or not.”

    From Wikipedia: “The presumption of innocence, sometimes referred by the Latin Ei incumbit probatio qui dicit, non qui negat (the principle that one is considered innocent until proven guilty) is a legal right of the accused in a criminal trial, recognised in many nations.”

    INNOCENT UNTIL PROVEN GUILTY – BEDROCK PRINCIPLE OF LAW

  7. Mind_hunter53

    A fair trial is necessary, not a perfect one. Why should the taxpayers pay the additional heavy costs of moving this trial to another venue? Do we believe all the judges are biased in the county; do we believe we cannot select reasonable jury members; do we think our judges are incapable of running the trial according to law? Do we believe the error made by deputies during the arraignment hearing will make the future acquisition of a lawful jury unlikely?

    Also, lets remember the defendant chose to represent himself, has not been found incompetent, and had his opportunity to address venue issues. The trial needs to move forward, here, in the county where the crime occurred.

  8. Mind_hunter53

    [quote]When we spoke last month to Mr. Topete’s wife, Angelique Topete, she was frank, “It does not matter if he represents himself or if these attorneys represent him. If they insist on keeping it in Yolo County then he will get the death penalty.”[/quote]

    Frankly, if he gets the death penalty it will be because he murdered a peace officer in Yolo County, not because the trial occurred here.

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