Judge Richardson Questions DA’s Fairness in Topete Trial

Topete-Defense

Last week, District Attorney Jeff Reisig and Deputy DA Garrett Hamilton revealed that they have DNA evidence that purportedly ties defendant Marco Topete to the murder weapon.

However, Judge Richardson, in a rare display of fairness and fortitude, questioned the prosecution’s tactics of revealing the evidence so late in the process – particularly since the case has dragged on for three years.

The defense filed two motions aimed at preventing the DNA evidence from being admitted into Mr. Topete’s trial.

Defense Attorney Dwight Samuel told Judge Richardson Tuesday that the DA’s late disclosure of the DNA evidence has harmed his ability to effectively represent his client.

Just as importantly, Mr. Samuel complained that during the testing of the DNA evidence, the prosecution destroyed the sample, meaning that the defense has no ability to independently test, verify or impeach the evidence.

He told Judge Richardson, “Now they want to jam it down our throats, and that’s not fair.”

In the motion he argued, “By digesting all the DNA matter contained on the subject swabs, the people have deprived defendant of due process in that it is now impossible for defendant to have any of the swabs independently tested. Further, testing all swabs for DNA without notification to the defendant of such testing so that the defense could send an expert to observe the consumptive testing of the swabs deprived defendant of due process in that defense is now unable to verify the procedures of the testing process.”

In a second and separate motion, Mr. Samuel argued that the DA has indicated that he intends to use the DNA testing results, “despite the fact that the DOJ has indicated that the test results cannot be interpreted and given any statistical significance, therefore defendant makes [a] motion [that] includes such DNA testing results.”

According to the second motion, on August 24, 2011, the Yolo County Sheriff s Department submitted multiple swabs of various sites from the AR -15, live cartridges and magazine in question.

The test results, according to Mr. Samuel were inconclusive and the report of August 31, 2011 reflected that the results of DNA testing showed a “low level DNA mixture of at least three individuals, including at least one male …. Due to the complexity of this mixture, no further interpretation will be made.”

An additional result reflects, “Low-level DNA types were detected at two STR [short tandem repeat] loci for the swabs of the smooth area of the grips, trigger and handle …….. No interpretation will be made as to the source of these low level DNA types.”

The defense further maintains that, although counsel received a three-page report on August 31, 2011, the supporting bench notes were not received until the following day. Counsel immediately contacted counsel specializing in DNA cases and provided the materials from this case.

Finally, the defense argues, “Just by the initial contact with expert DNA counsel, he opines that there could be as many as 21 contributors in the first test results.”

DA Jeff Reisig would counter in court that the destruction of DNA during testing is “common.”

Judge Richardson granted the defense’s motion to exclude the DNA evidence during the trial.

“If all the samples were consumed, why wasn’t there notification to the other side to have a defense expert present [during testing]? It does put the defense at a real disadvantage. … It’s a question of fairness,” the judge ruled.

Department of Justice analyst Terry Hamlin testified that only one of three latent prints was definitely Topete’s on the AR-15 rifle.

He testified that Mr. Topete’s right thumb was identified near the center of the weapon.  However, another, while consistent with Mr. Topete’s thumb, could not be determined with absolute certainty and therefore he determined the test was inconclusive. Also, a third print was found near the butt of the gun, but determined not to be Mr. Topete’s.

This leads us to wonder exactly whose print was found on the gun and whether the gun belonged to that person.

We also have to wonder why the district attorney would wait until the trial had actually begun to test for DNA.  DA Reisig argued that DNA testing was done because the defense had changed its strategy.

It is not even clear that, if the DA had turned over the evidence in a timely manner, it would have been admissible.  The defense in their motion argued, “The basis for the various state Appellate and Supreme court opinions standing for the proposition that DNA results without accompanying statistics are not admissible, is well-grounded in the science of DNA testing as it is currently used in our criminal justice system.”

As they put it, “To allow the prosecutor to bring in equivocal results other than inclusions with a statistic or exclusions, will be extremely time consuming, confusing for the jury, and highly prejudicial to defendant who is in that ‘middle’ ground.”

However, there is a basic matter of fairness, that you do not obtain and destroy evidence once a trial has begun without allowing the defense to have the same opportunity to analyze the evidence.

As a judge in another trial put it, in California we do not practice trial by ambush.

—David M. Greenwald reporting

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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14 Comments

  1. DarkAges

    The excerpts of Rick Gore’s letter from the previous story, if they are to be believed, give’s perspective to this story. Also, why would physical evidence from a case like this just sit and not be tested at the outset if the goal is to produce evidence beyond a reasonable doubt? Obviously, money (of the people of Yolo) is no obstacle for this DA.

    “We did the DNA testing now because the defense changed their tactics” sounds a bit like “We served only Billy because we thought he’d tell the rest of the defendants.”

  2. JustSaying

    [quote]“However, there is a basic matter of fairness, that you do not obtain and destroy evidence once a trial has begun without allowing the defense to have the same opportunity to analyze the evidence.
    As a judge in another trial put it, in California we do not practice trial by ambush.”[/quote]Who are you quoting here? Who equates this presentation of evidence to the court as an “ambush,” and why?[quote]“DA Jeff Reisig would counter in court that the destruction of DNA during testing is ‘common’.”[/quote]David, is Reisig’s statement correct? What reasons did Judge Richardson give for not allowing the DA’s DNA into evidence? And, why do you state that Judge Richardson made the decision: [quote]“in a rare display of fairness and fortitude….”[/quote]

  3. jimt

    Guess I’m confused on the rules of evidence testing–
    for the DNA sampling; aren’t analysis results by a certified lab with standardized test protocols and chain-of-custody documentation adequate to serve as evidence by both the prosecution and defense? I don’t understand the rationale for the defense requiring their own samples to submit–do different labs give different results? And if the samples are at very low levels and will be consumed by the test procedure; should not the prosecution have custody of these samples, rather than the defense?

  4. jimt

    David–I think you often make very good points in your articles, and am thankful you have this forum; but this particular submission strikes me as stretching the defense argument to a ludicrous extent (‘trail by ambush’; who buys that?), and undermines some of your more credible and valuable contributions.

  5. jimt

    David–I’ve cooled off now and realize my anger is really directed at the judge as much as you; though I directed my comment at you since you supported the judges decision and then some. This decision by the judge is the type of thing that drives many people; including me; crazy about the way the law works. Could you imagine the outrage if the defendant were to get off scot-free based on a technicality like this? There is infinite regress in this process of checking results–if a defense expert is in there during the test procedure with the technician doing the testing; who is to say his very presence isn’t interfering with the testing, even if unintentionally? So send in someone from the prosecution to be in there as well–and so on, and so on. Does the taxpayer really have the luxury of shelling out $ for the expense of checking every little contingency like this?

  6. David M. Greenwald

    “David, is Reisig’s statement correct? What reasons did Judge Richardson give for not allowing the DA’s DNA into evidence?”

    I don’t know that Reisig’s statement is correct. But whether it is correct on the surface of it is immaterial. The issue is not whether the sample got destroyed, the issue is whether it was the only sample, whether the DA’s gave the defense an equal opportunity to analyze it, and whether they gave the defense proper notice it.

    As explained, Judge Richardson did not allow the DNA into evidence due to the fact that they had the DNA sample for three years and only tested it once the trial had begun, the defense had no opportunity to analyze it themselves, and there were flaws in the analysis itself.

    “in a rare display of fairness and fortitude….”

    Judge Richardson is a nice guy and he means well, but generally speaking he has ruled in favor of the prosecution on this case at every major turn to the point where I think most people would have expected this evidence to be admitted by him.

  7. David M. Greenwald

    jimt: I understand your frustration, but there is a pretty hard and fast rule that the prosecution cannot hold back their cards and present evidence they have been hiding for three years. The defense has the right to be able to scrutinize and attempt to discredit prosecutor’s evidence and in this case they were not allowed to do so. The Judge made the correct ruling.

  8. medwoman

    jimt

    I would like to address your very reasonable question about standardization of testing and whether or not testing by one certified lab should be adequate for both the prosecution and the defense. First, for full disclosure, I have no expertise in DNA testing. I will provide an example from my area of expertise, obstetrics. Most births are completely normal events and there is no need for placental testing. Occasionally, something goes very wrong, and part of the evaluation is to send the placenta to a pathologist for evaluation. Our delivery hospitals have pathology services that are certified to do this kind of evaluation. Some delivery services choose to use their in house pathologists exclusively. However, we choose not to send the placentas to the in-house pathologist, but rather to a placental pathology specialist in San Francisco because the results will be much more detailed and the interpretation may vary widely from that of the local pathologist. Choice of lab and specialist can make a huge difference in interpretation.

    I think that the more appropriate process in this case would have been for the DA to have promptly ( not after three years) notified the defense of the existence of the samples, at which point they could have either divided the samples for independent testing at the labs of their choice, or in the case of very small samples, agreed upon a mutually acceptable lab.

  9. E Roberts Musser

    [quote]“If all the samples were consumed, why wasn’t there notification to the other side to have a defense expert present [during testing]? It does put the defense at a real disadvantage. … It’s a question of fairness,” the judge ruled.[/quote]

    Missed this article (had a busy, busy week). I agree with the Vanguard that the judge made the correct ruling here…

  10. Alphonso

    “DA Reisig argued that DNA testing was done because the defense had changed its strategy.”

    Anyone know what that means? Possibly, Topete called while being chased and had someone waiting to shoot the officer as both cars drove up? Is that why they want to prove Topete’s DNA is on the gun?

  11. jimt

    David and medwoman,

    Alright, I accept your correction and clarification (thanks medwoman, this seems reasonable).
    I guess I should save my anger for the prosecution team for fowling up the procedure on this, resulting in disallowal of what could be a very important piece of evidence.

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