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