YJW Analysis: Will Playing the Video “Confession” in Topete Case Backfire on the Prosecution?

Topete-Defense.jpg

Sometimes the old adage “be careful what you ask for – you might get it” is spot-on.  Last week, the prosecution, citing a change in defense strategy, worked hard to convince Judge Richardson to show the jury Marco Topete’s post-arrest interview, which the prosecution saw as a confession.

The defense fought equally hard to keep it out, citing their view that the interrogators ignored Mr. Topete’s right to remain silent.

Judge Richardson ruled that Mr. Topete repeatedly refused to answer certain questions but not others. Because he continued talking with investigators, Judge Richardson ruled, Mr. Topete did not “effectively” invoke his right to remain silent.

He said that Mr. Topete waived his right to remain silent and did not invoke those rights at a later point in time. He also determined that Mr. Topete’s statement was made voluntarily and not coerced.

The prosecution has tried to portray Mr. Topete as a cold-blooded gang member, striving to put in work to bolster his gang standing.

It is difficult to know how the jury will eventually come to see this confession within the mountain of evidence that they have already seen.  However, there is a reasonable possibility that this will actually have the opposite effect from that intended by the prosecution, and could serve to humanize Mr. Topete.

Mr. Topete told investigators that he had fired at the officer, but did not realize he had struck and kill him.  He also said that he left the child behind, believing that she would be taken care of by the officer.

The interrogation lasted for nearly six hours.  The first half of the video shows Mr. Topete more concerned about the well-being of his four-month-old daughter than anything else.

“I’m just worried about my baby. That’s all,” Mr. Topete said during the interrogation. “Just get her back to her mother.”

Mr. Topete was dodgy at times, refusing to answer as to the location of the rifle or how many rounds he fired.

However, in the second half he opened up a bit.

He explained to Ron Cordova of the Woodland Police Department that he is not a f-ing killer.  “That’s not who I am.”

He would call the shooting a “tragic accident,” explaining that he did not mean to kill Deputy Diaz.

He would end up firing 17 rounds, however, in the direction of the deputy, one of which struck and killed him.

“I thought I was just going to scare him away,” Mr. Topete told the investigators. “It’s a tragic accident. I didn’t mean to kill him. I didn’t mean to harm him in no way.”

Mr. Topete would be found near the scene of the shooting, hiding in brush.  He offered that he was “running from the law” and that he “had been drinking.”

The content of the video did not seem to bolster the case of the prosecution. In fact, it plays more into our analysis from earlier this week, that the prosecution was panicking somewhat in light of what they call a defense change in strategy.

Wrote the prosecution on the change of strategy, “On August 4, 2011, after this trial had already begun, and after a new attorney had replaced Mr. Purtell, the People were prejudiced and surprised to learn that the Defense had changed its previous representations regarding guilt phase witnesses.”

In arguing for the airing of the video “confession,” the prosecution wrote that Mr. Topete claims that “the Miranda advisement was defective because the defendant did not explicitly or impliedly waive his rights.”

They added, “He does not explain how his advisement was ‘defective.’ On the issue of the initial, pre-interrogation waiver, he claims that he merely indicated he understood his rights, he did not waive them.  He then states that he invoked at least six times.”

The DA made a strong case that the defendant’s statement should be admissible.

“The question whether a suspect has waived the right to counsel with sufficient clarity prior to the commencement of interrogation is a separate inquiry from the question whether, subsequent to a valid waiver, he or she effectively has invoked the right to counsel,” the prosecution argued.

“Far from being coerced or controlled, Topete set the rules for his discussion with the police. He firmly avoided answering questions relating to the crime, but was clearly willing to talk to police and answer other questions,” the brief argued.

The prosecution was claiming that Mr. Topete was only “selectively” waiving his right to remain silent, “so that he may have answered some questions but not answered others.”  According to Mr. Topete, “Each time he would refuse to answer specific questions, it should have been taken to mean an invocation that was violated and any subsequent statements should be excluded.”

However, the prosecution argued that such a “selective waiver” is not law in California.

But what we see is not a confession that bolsters the prosecution’s case.  There is little doubt that Mr. Topete shot and killed the deputy.  What remains a huge question is the motivation for the killing, and whether several of the key special circumstances apply.

The prosecution has little problem establishing first degree murder in this case, given that it is a murder that resulted from another felony act.  However, the video portrays Mr. Topete as having concern for his daughter, wanting to be sure that she was reunited with her mother rather than placed in CPS care.

He also claims the shooting was an accident rather than intentional.  Whether the jury buys that explanation or not, remains to be seen.  But from what we can see, there is little of value for the prosecution in airing this confession.

—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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26 Comments

  1. E Roberts Musser

    [quote]He also claims the shooting was an accident rather than intentional. Whether the jury buys that explanation or not, remains to be seen. But from what we can see, there is little of value for the prosecution in airing this confession.[/quote]

    Only if you are looking at this through defense colored glasses…

  2. Alphonso

    The actions and the confession seem to be consistent and neither are consistent with the theory that this was a “cold blooded gang influenced ambush”

    But what does that mean? – I would guess he gets the death penalty anyway. It is as if the the DA is going for a double death penalty, as if it makes a difference.This case has always been about revenge and that is why it has taken so long.

  3. JustSaying

    [quote][b]”YJW Analysis: Will Playing the Video ‘Confession’ in Topete Case Backfire on the Prosecution?”[/b]
    “Last week, the prosecution, citing a change in defense strategy, worked hard to convince Judge Richardson to show the jury Marco Topete’s post-arrest interview, which the prosecution saw as a confession.”[/quote]Are you positive the prosecution wasn’t already prepared to use the confession video all along? This seems like an odd omission in a murder case (or most any case where a recorded confession is sitting in the DA’s evidence pile).

    It’s your analysis that “there is little of value for the prosecution in airing this confession” or that playing it will “backfire” because the jury will be moved by Topete’s displayed humanity and excuse his murder? Or both? What are your sociological, psychological, historical or other bases for such radical conclusions?

    Is the prosecution just stupid not to foresee the potential negative outcomes of which you’re warning? Was the defense unwise to fight admission of the confession, given the positive potential you see in the jury reaction to it? If the jury could be so moved by seeing the video, would you recommend Mr. Topete take the stand in his defense?

    Your analysis certainly is counter-intuitive. Don’t you think most people would figure the prosecution should use every piece of convincing evidence it has available? And, wouldn’t most people find it difficult to sort out the ultimate humanity of this loving father from the specifics he provides about how he went about killing a police officer?

    You may be correct. But, what are the odds?

  4. David M. Greenwald

    “Are you positive the prosecution wasn’t already prepared to use the confession video all along?”

    They said in their motion that they were attempting to admit this due to the change in defense strategies. That’s all I can go on. Normally I think you try to get stuff admitted in the beginning rather in the middle of the trial.

    “It’s your analysis that “there is little of value for the prosecution in airing this confession” or that playing it will “backfire” because the jury will be moved by Topete’s displayed humanity and excuse his murder? Or both? “

    I don’t see how this helps the prosecution and it is possible it could hurt them.

    “What are your sociological, psychological, historical or other bases for such radical conclusions? “

    I haven’t had enough sleep this week to answer this question.

    “Is the prosecution just stupid not to foresee the potential negative outcomes of which you’re warning?”

    Not sure.

    “Was the defense unwise to fight admission of the confession, given the positive potential you see in the jury reaction to it? “

    Probably not, the defense wants to keep out any evidence that it cannot control for. Nevertheless, I was expecting something very different than what came out. Read the other news coverage too.

    “If the jury could be so moved by seeing the video, would you recommend Mr. Topete take the stand in his defense? “

    I almost always recommend it. I think defense’s put the defendant on the trial too little and it hurts them. Very few acquittals when the defendant doesn’t testify.

    “Don’t you think most people would figure the prosecution should use every piece of convincing evidence it has available?”

    If they are trying to prove that he killed the deputy, then yes. If they are trying to prove that it was premeditated murder than Topete is a monster, then this hurt their case.

    “And, wouldn’t most people find it difficult to sort out the ultimate humanity of this loving father from the specifics he provides about how he went about killing a police officer? “

    That’s the part we know least about right – the specifics about how he went about killing a police officer. if he was really panicking and firing to scare off the officer, then it changes a lot.

    “You may be correct. But, what are the odds? “

    I still think Topete gets convicted and sentenced to death, I just did not find this evidence as helpful for the prosecution as they must have believed it was. Again read the other coverage of the trial.

  5. E Roberts Musser

    [quote]But what does that mean? – I would guess he gets the death penalty anyway. It is as if the the DA is going for a double death penalty, as if it makes a difference.This case has always been about revenge and that is why it has taken so long.[/quote]

    A member of the defense had a stroke. The defendant himself also prolonged the trial through various attempts at getting a delay by trying to defend himself.

  6. E Roberts Musser

    [quote]Convince me that this helps the prosecution’s case for the death penalty.[/quote]

    I don’t think that is possible… but from my perspective, this sums it up nicely:

    [quote]Your analysis certainly is counter-intuitive. Don’t you think most people would figure the prosecution should use every piece of convincing evidence it has available? And, wouldn’t most people find it difficult to sort out the ultimate humanity of this loving father from the specifics he provides about how he went about killing a police officer?

    You may be correct. But, what are the odds?[/quote]

  7. E Roberts Musser

    [quote]I almost always recommend it. I think defense’s put the defendant on the trial too little and it hurts them. Very few acquittals when the defendant doesn’t testify. [/quote]

    I TRULY do not mean this in a disrespectful way, but your statement shows how little you understand criminal trial work. It is almost NEVER A GOOD IDEA TO PUT THE DEFENDANT ON THE STAND. Have you ever been a witness on the stand, grilled by a pit bull for an attorney? I have. It is so easy to get tripped up, into saying the wrong thing, even if you did nothing untoward/illegal/unethical and were a pillar of integrity. Both prosecution and defense attorneys are masters at twisting words, asking questions designed to incriminate/cast doubt. Most defendants are at an extreme disadvantage on the witness stand, bc they often do not think well in the moment and don’t know the law. If you don’t believe that, I strongly advise you to discuss this with the Public Defenders Office. They will tell you the same thing I am saying. If you think law enforcement techniques are grim, a good lawyer can skewer a witness on the stand in a trice… and once out of the mouth, it cannot be taken back. You might want to rethink your naive statement…

    In fact, do a google search about how to take a deposition. That should be an eye opener in and of itself…

  8. JustSaying

    David, just as I’m ready to give up trying ever again to participate in a justice discussion here, you come up with a respectful, respectable response that gives insight into how you come up with the kind of viewpoints you do. I appreciate that, and thank you.

    Not that I think we’ll find much upon which to agree with respect to your coverage of Yolo County investigations, plea bargains and trials.

    It’s disappointing to repeatedly watch you start from such cynical place, move through such a predictable pattern of skepticism and (regardless of the results) end up so critical of the process and participants.

    Since I find myself agreeing with you about many of the system’s shortcomings, I don’t like spending so much time and effort arguing whether Yolo crime and punishment examples are fair or overstated illustrations of these failures.

    Since I appreciate the massive investment you put into the [u]Vanguard[/u]’s mission, I dislike picking at what I see as journalistic shortcomings that jeopardize the credibility and effectiveness of your enterprise.

    And, since I realize that if you don’t do it, no one else in the county will be watching this part of our government operations (plus giving a batch of interns good experience), here’s hoping for a very successful Judicial Watch fundraiser November 2.

  9. David M. Greenwald

    Elaine:

    “I TRULY do not mean this in a disrespectful way, but your statement shows how little you understand criminal trial work. It is almost NEVER A GOOD IDEA TO PUT THE DEFENDANT ON THE STAND. “

    Elaine, you think like a lawyer here, which is good because there have been a few times when I’ve wondered about your lawyerly instincts, particularly when you look things up on Wikipedia rather than actually looking up statutes and Calcrims.

    But there is a shortcoming in that thinking. Abhi, who you met at the fundraiser last month, and I go back and forth with lawyers on this. You have to with most juries convince them that the defendant is innocent and you do that by having them take the stand and be credible.

    Is there a downside to it? Yeah there is. Sometimes witnesses are not credible. Sometimes they are not too bright. Sometimes they are just lying. But there are a lot of cases where the jury needs to see the defendant in order to acquit and if they don’t you will lose.

    “Have you ever been a witness on the stand, grilled by a pit bull for an attorney? I have. It is so easy to get tripped up, into saying the wrong thing, even if you did nothing untoward/illegal/unethical and were a pillar of integrity. Both prosecution and defense attorneys are masters at twisting words, asking questions designed to incriminate/cast doubt. “

    There is that danger. Although what is interesting is that most prosecutors are not great cross-examiners. Why? They don’t get a lot of practice because defendants so rarely take the stand.

    “If you don’t believe that, I strongly advise you to discuss this with the Public Defenders Office. “

    WHo do you think Abhi and I debate this point with?

    “You might want to rethink your naive statement… “

    The problem with your whole diatribe is you made the assumption that I had not considered any of what you wrote when in fact I have considered it all, debated it with other attorneys, but my experience observing trials leads me to believe that most of the time, the defendant either is going to help themselves by taking the stand or has little to lose by doing so.

  10. David M. Greenwald

    Put it this way Elaine: Topete most likely is going to get convicted and sentenced to death, what risk does he run testifying? What are they going to do, execute him twice? He’s a bright guy, he speaks well, thinks on his feet, didn’t do a half bad job when he was representing himself, why not?

  11. Iyah

    The issue of whether or not to testify is one of those things where there is a huge disconnect between what the legal field thinks and the public thinks. Everyone knows the right not to testify should not be used against someone, but subliminally whether we like it or not it is used against the defendant. People always wonder why didn’t s/he testify?

  12. E Roberts Musser

    [quote]Elaine, you think like a lawyer here, which is good because there have been a few times when I’ve wondered about your lawyerly instincts, particularly when you look things up on Wikipedia rather than actually looking up statutes and Calcrims. [/quote]

    I am a licensed attorney, passed the bar. So I have a pretty good grasp of the law generally. Wikipedia is a good source to explain what I know to be the law in a simple straightforward manner the layperson can understand. If I actually provided the specific statutes, it often is so technical, it would produce more confusion than be of assistance.

    [quote]There is that danger.[/quote]

    In other words, you have never been a witness on the stand, grilled by a pit bull for an attorney. Come back and talk to me after you have…

    [quote]ERM: “If you don’t believe that, I strongly advise you to discuss this with the Public Defenders Office. ”

    DMG: WHo do you think Abhi and I debate this point with? [/quote]

    The Public Defenders Office has had innumerable years of experience – you have been at YJW observing trials for a very short time with limited vision/filtered glasses on. You are not a lawyer, don’t do trial work, have never been grilled on the witness stand. People w experience are saying one thing, you w extremely limited experience are saying another. I’ll trust my experience and that of the Public Defenders Office over yours. You may feel free to take the stand if you are ever involved as a defendant in a criminal case, and then we’ll see who is right 😉

  13. E Roberts Musser

    [quote]The problem with your whole diatribe… [/quote]

    From Merriam Webster dictionary:
    Definition of DIATRIBE

    1archaic : a prolonged discourse
    2: a bitter and abusive speech or piece of writing
    3: ironic or satirical criticism
    See diatribe defined for English-language learners »
    See diatribe defined for kids »

    My comment on the reasons for not having a defendant testify was meant to be educational – as far as I can tell is was not prolonged, bitter, abusive, ironic, nor satiric. Did I miss something?

  14. E Roberts Musser

    [quote]Put it this way Elaine: Topete most likely is going to get convicted and sentenced to death, what risk does he run testifying?[/quote]

    Sounds to me like his lawyers may be working on a insanity defense – how would that work if he gets on the stand and sounds very articulate as you put it?

  15. E Roberts Musser

    [quote]The issue of whether or not to testify is one of those things where there is a huge disconnect between what the legal field thinks and the public thinks. [/quote]

    Yes, bc generally the public has not been subjected to being on the witness stand, and is unaware of the dangers of testifying…

  16. David M. Greenwald

    Elaine:

    All I can say is having watched and observed cases in which the defendant is on trial and cases in which they are not, most of the time, the defendants has little to lose by taking the stand and a lot to gain. The jury may get the instruction not to take the defendant’s lack of testimony into account but they do. You can point out I’m not a lawyer, but neither are juries.

    I doubt they are going for an insanity defense, they may be going for a diminished capacity argument to mitigate the death sentence, but I don’t think they get it. Their strongest case against the DP at this point is that Topete did not intend to kill the officer, it still would be 1st Degree Murder under a felony murder rule, but they would lose their special circumstances attempts.

    “Yes, bc generally the public has not been subjected to being on the witness stand, and is unaware of the dangers of testifying… “

    But the public is also the ones who are the jurors. Having watched dozens of trials, I can tell you most of the time, the defendant has little to lose and much to gain by testifying. Most DAs aren’t that skillful in cross examinations either, because they don’t do them often.

  17. E Roberts Musser

    To dmg: With all due respect, and I man that sincerely, you are speaking from ignorance. If you have never been on the witness stand; if you have never practiced law and tried to defend someone in a criminal trial, then you are speaking from a layman’s perspective without any experience to back up what you are saying. As I told you, google how to take a deposition, just to get a feel for the minefield a defendant steps into on the witness stand…

  18. AdRemmer

    ERM quoting DMG,

    [quote] I almost always recommend it. I think defense’s put the defendant on the trial too little and it hurts them. Very few acquittals when the defendant doesn’t testify.

    I TRULY do not mean this in a disrespectful way, but your statement shows how little you understand criminal trial work. It is almost NEVER A GOOD IDEA TO PUT THE DEFENDANT ON THE STAND.[/quote]

    Thank you ERM for your post. I concur…

  19. AdRemmer

    David wrote, [quote] Their strongest case against the DP at this point is that Topete did not intend to kill the officer…[/quote]

    Maybe you misunderstand intent?

    This straightforward excerpt from Lawbrain may help? http://lawbrain.com/wiki/Murder

    “The precise definition of murder varies from jurisdiction to jurisdiction. Under the common law, or law made by courts, murder was the unlawful killing of a human being with malice aforethought. The term malice aforethought did not necessarily mean that the killer planned or premeditated on the killing, or that he or she felt malice toward the victim. Generally, malice aforethought referred to a level of intent or reck-lessness that separated murder from other killings and warranted stiffer punishment.

    The definition of murder has evolved over several centuries. Under most modern statutes in the United States, murder comes in four varieties: (1) intentional murder; (2) a killing that resulted from the intent to do serious bodily injury; (3) a killing that resulted from a depraved heart or extreme recklessness; and (4) murder committed by an accomplice during the commission of, attempt of, or flight from certain felonies.

    Some jurisdictions still use the term malice aforethought to define intentional murder, but many have changed or elaborated on the term in order to describe more clearly a murderous state of mind. California has retained the malice aforethought definition of murder (Cal. Penal Code § 187 [West 1996]). It also maintains a statute that defines the term malice. Under section 188 of the California Penal Code, malice is divided into two types: express and implied. Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” [b]Malice may be implied by a judge or jury “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”[/b]

    Think about it…Firing 17 rounds from a high powered rifle at a uniformed peace officer following a car chase…

  20. E Roberts Musser

    [quote]I doubt they are going for an insanity defense, they may be going for a diminished capacity argument to mitigate the death sentence, but I don’t think they get it.[/quote]

    How the heck would the defense be able to argue diminished capacity to mitigate the death sentence, if Topete gets on the stand and sounds absolutely lucid, in fact articulate. HOW IS THAT GOING TO HELP TOPETE? Secondly, a defendant can always override the advice of his/her attorney, and testify on his own behalf if the defendant so chooses. IT IS THE DEFENDANT THAT MAKES THE ULTIMATE CHOICE WHETHER TO TESTIFY OR NOT. AND MOST CHOOSE NOT TO TAKE YOUR ADVICE, BUT THEIR MORE EXPERIENCED DEFENSE ATTORNEY’S.

  21. David M. Greenwald

    Like I said, I don’t think diminished capacity is their best bet.

    “Secondly, a defendant can always override the advice of his/her attorney, and testify on his own behalf if the defendant so chooses. IT IS THE DEFENDANT THAT MAKES THE ULTIMATE CHOICE WHETHER TO TESTIFY OR NOT. AND MOST CHOOSE NOT TO TAKE YOUR ADVICE, BUT THEIR MORE EXPERIENCED DEFENSE ATTORNEY’S. “

    Of course. Every so often defendants go against the advice of counsel. But most of the time it seems to be a joint decision.

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