Topete Trial Delayed As Lawyer Suffers Stroke

Share:

topete-marcoDelays Poses Possibility of Re-Doing Jury Selection and Questions About Rising Costs During Economic Hardship –

The trial of Marco Topete has been delayed yet again, this time due to the stroke suffered by Attorney Tom Purtell on Friday, according to sources close to the situation.

In a hearing on Monday morning, Judge Paul Richardson was informed by co-Counsel Hayes Gable that Mr. Purtell, who is in his 80s, will not make any decisions about his role in the case for at least a week.

Mr. Purtell is home resting, but apparently suffering from problems of balance.

Mr. Gable declined to proceed with jury selection on Monday, given the uncertainty of the circumstances.

They will have a status hearing on Monday, April 26 to determine how to proceed.  The jury pool was told to come back on May 3, in two weeks.

There are 93 jurors who have been death-qualified (not categorically opposed to imposition of capital punishment, and not against considering life imprisonment) to hear the case.  Already several of them indicated that they could not come back on May 3. Judge Richardson indicated there would be a second round of hardship hearings for those jurors impacted by the two week delay.

However, that is the best possible scenario.  Mr. Purtell’s health is now in question and there is at least a reasonable possibility that another attorney would have to substitute in.

If that were to happen, the defense would need a continuance for a new attorney to become familiarized with the case.  A further delay would probably have to cause the court to dismiss this jury pool altogether, and start from scratch.

On Monday, Mr. Gable informed Judge Richardson that if a new attorney were to come on board, it would take no less than two months for them to be ready to proceed.

The court had just undergone a six-week process in death qualifying jurors. 

Death qualification, according to ACLU Death Penalty Expert Natasha Minsker, is “the process of interviewing prospective jurors on their views about the death penalty to determine if they are ‘qualified’ to serve.”

Any individual who opposes the death penalty is excluded from the jury pool in a death penalty case.

According to Ms. Minsker, “Research shows that our prejudiced ‘qualification’ process produces juries that are more likely to convict. Prospective jurors who make the cut to serve are more likely to believe prosecution witnesses and less likely to ask probing questions. As a result, many researchers believe innocent people are actually more likely to be wrongfully convicted in a death penalty case.”

She added, “Jurors who are pre-selected in this way are also more likely to sentence someone to death.”

“That is, after all, the point of the current qualification system,” she writes. “But it’s not just that all the people with moral qualms about the death penalty have been removed from the jury.”

“The prospective jurors left after death qualification  are more likely to view evidence as ‘aggravating,’ meaning it supports sentencing the person to death, and less likely to view the same evidence as ‘mitigating,’ meaning it supports imposing a sentence of life without possibility of parole instead,” said Ms. Minsker.

She added, “Death-qualified jurors view the facts and the evidence differently than do the jurors excluded from serving, differently in a way that favors the prosecution across the board.”

This has been a long haul just to get to this point.  It was June of 2008 when Mr. Topete allegedly took the life of Sheriff’s Deputy Tony Diaz as he attempted to flee from the deputy with a child in the back of his car.

Already we have seen the Sheriff’s Deputies lock the media and public out of the arraignment court.  We have seen numerous attorneys come and go. 

Mr. Topete last fall dismissed his legal counsel and attempted to represent himself, before recognizing that the barriers placed on him were too cumbersome to overcome.

It is one of the long and painstaking processes that leads to costs for the typical death penalty case running in the millions of dollars.

According to various statistics, it costs roughly $1 million per death penalty trial over and above the cost of non-death penalty murder trials.

This for a penalty unlikely to be ever acted upon.  California has over 700 people on death row, and even at a staggering rate of one per week, the current population would be around for 14 years.

In addition, the state has “$63 million per year extra spent housing people on death row and another $60 million spent on their appeals, again over and above the cost of housing and appeals for life without parole.”

Argue reformers such as the ACLU, the cost comes to about $1 billion for every five years.

“Now, repealing the death penalty in California can only be done at the ballot box,” they argue, “but defunding the whole system can be done with a few strokes of the governor’s pen: just ask any senior citizen, recipient of in-home medical care, or single working parent. They’ll tell you how powerful that pen can be when it comes to cutting government programs.”

The defense in this case argued with no success that the trying of Mr. Topete for the death penalty, given the likely delays and unlikelihood of execution, represents cruel and unusual punishment.

The defense argued, “The excessive delays in California’s death penalty system constitute cruel and unusual punishment in violation of the Eighth Amendment and results in a denial of due process. Based on this violation, the Defense respectfully requests that this Court preclude the People from seeking the death penalty in this case.”

They cite that, “Since the death penalty was reestablished in California [in 1977], 13 offenders have been executed.”  And they added that a recent report by the California Commission on the Fair Administration of Justice on California’s death penalty agreed with former California Chief Justice Ronald M. George that “California’s death penalty system is dysfunctional.”

“The time between judgment and execution in California is more than any other state,” they wrote.  “California has more people on death row than any other state.”

The DA countered that the argument was premature or not yet “ripe.”

They wrote, “Marco Topete is the defendant in the pretrial phase of a capital murder prosecution. To date he has been convicted of nothing in this case. Should he be convicted of murder with at least one special circumstance, the People intend to seek a death sentence.”

They cite a case where “the court rejected a claim by the appellant that a more than 20-year delay in his execution violated the state and federal constitutions. In that case the court addressed the Lackey decision of the United States Supreme Court that is cited in the defendant’s motion. In that decision, at page 404, the court held that the normal post-conviction review process was not grounds for finding that the constitution had been violated.”

Judge Richardson agreed with this and allowed the death penalty to move forward.

However, given the likelihood of further delays, we wonder how much both the county and state could save should they simply seek life without parole and take the death penalty off the table.

—David M. Greenwald reporting

Share:

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.

Related posts

4 thoughts on “Topete Trial Delayed As Lawyer Suffers Stroke”

  1. E Roberts Musser

    Good point that removing those against the death penalty from the jury pool makes the sitting jury more prone to convict/impose the death penalty. Yet if you allowed those who are opposed to the death penalty onto a jury, you can guarantee a hung jury at the very least, but will never get a conviction. No easy answers to this problem…

    The cruel and unusual punishment argument against the death penalty won’t work – bc it is the defendant himself/herself who delays the carrying out of the sentence w endless appeals. The defendant could easily speed the process up by not making so many/any appeals. That is not to say a defendant should not appeal, but it just is by way of saying this is the reason the cruel and unusual punishment argument is not a viable one…

  2. David M. Greenwald

    [quote]Good point that removing those against the death penalty from the jury pool makes the sitting jury more prone to convict/impose the death penalty. Yet if you allowed those who are opposed to the death penalty onto a jury, you can guarantee a hung jury at the very least, but will never get a conviction. No easy answers to this problem… [/quote]

    There is a reason why you separate guilt from the penalty phase. Jurors are not supposed to take into consideration punishment when they consider guilt. I don’t see why this case would have to differ from the Bennie Moses case in that respect.

    “The defendant could easily speed the process up by not making so many/any appeals. “

    Perhaps. Although it’s hard to make the case that you waive your rights to avoid cruel and unusual punishment by accepting your rights to a fair and full trial.

    The real point though is that we are paying lot of money to put a guy through trial and on death row and have him sit their 30 years, when we could save that money by allowing him to plea to LWP.

  3. Rifkin

    [i]”Good point that removing those against the death penalty from the jury pool makes the sitting jury more prone to convict/impose the death penalty.”[/i]

    This is an area of our judicial system which confuses me. It’s my understanding that in most areas of criminal justice, the jury decides to acquit or convict, but then the judge decides the sentence, based on sentencing guidelines. However, with murder cases, the jury decides both halves of the equation.

    It seems to me the best solution would be to have the jury determine guilt or innocence. If they decide the accused is guilty of a murder, I don’t see why the judge should not decide what the appropriate sentence is, based on guidelines. If someone, for example, is convicted of the murder of two peace officers with malice, the guideline ought to suggest the death penalty. If the conviction is for a lesser crime, say a single count of Murder 2, then the guideline should suggest life in prison.*

    If we had that set-up, then anyone who is morally opposed to the death penalty could serve on such a jury without a problem; and you don’t get a jury bias built in by weeding out all possibles who are anti-death penalty. The only logical downside to my suggestion is that you might find all judges, due to the fact that they have to be re-elected periodically, would err on the side of the death penalty in all death-eligible cases, assuming that is the popular view in their jurisdiction.

    *As I have noted in other threads, I think the death penalty is the right punishment for all murder convictions (not all homicide convictions), including a single count of M-2.

  4. Rifkin

    [i]” It’s my understanding that in most areas of criminal justice, the jury decides to acquit or convict, but then the judge decides the sentence, based on sentencing guidelines.”[/i]

    For the record, I am aware that in death penalty cases, the judge ultimately does the sentencing. That is, if the jury finds for death, the judge can reject that and sentence the convicted to life without parole. As such, the jury’s finding on life or death is not the end of the game. However, it is my understanding that most judges, when a jury finds for death, will ALWAYS agree to it, and thus, the jury is de facto, if not de jure, the decider on sentences in death cases. … My view thus stands that I would prefer our system cut the jury out of that element of the criminal process.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for