Juror Believes Woman Improperly Dismissed From Jury in Topete Case

On November 14, Judge Paul Richardson dismissed Juror No.11 from the penalty phase of Marco Topete’s trial for the murder of Sheriff’s Deputy Tony Diaz, after a brief inquiry in which he determined the request for dismissal was based on a language barrier.

A little more than a week later, Juror No.6 told the Davis Enterprise that the juror had been opposed to the death penalty in this case.

“She said under no circumstances will she go for the death penalty,” the juror, who is apparently a Davis resident but is withholding his name, told the Enterprise four days after the jury came back with a death sentence recommendation.

“If that lady had not been excused, we would have been a hung jury,” the juror said.

The juror “added that while he believes Topete is deserving of the death penalty,” he believes “the law was not properly administered in this case.”

Now, as the January 12 sentencing date approaches, attorneys for Mr. Topete have produced a new declaration from Juror No.6 which is included in a filing.  Last Thursday, attorneys filed a motion to seal the declaration of Juror No.6 to prevent its release to the public.

However, the Sacramento Bee has apparently acquired that declaration, along with the motion by the defense to set aside the death penalty in this case.

The Bee reports that Juror No. 6 told defense investigators, “The dismissed Juror No. 11 is an educated woman who worked on crossword puzzles during breaks and held numerous conversations with him in English, without problem.”

Instead, her difficulty was that she disagreed with the other jurors as to whether Mr. Topete deserved the death penalty.

The Bee continues, “On the first day of jury deliberations, the woman told other jurors she felt strongly that mitigating evidence, including testimony about Topete’s violent and crime-ridden childhood, suggested he should serve life in prison without the possibility of parole and not be executed.”

And adds: “She was ‘fixated’ on a photograph of a young Marco Topete standing with his father beneath a Christmas tree, both with guns and ammunition slung over their shoulders, the juror said.”

“While the deliberations were respectful, it was clear that (she) wanted to hold out for a life sentence, and she was the only one of us who felt that way,” Juror No.6 said as reported by the Bee.

It was only after other jurors tried to persuade her to change her mind that she apparently “tore a page from her notebook, wrote a note to the judge and handed it to the bailiff. None of the other jurors knew its contents.”

She wrote in that note, “Your Honor: I was raised in foreign country and it is very difficult for me to make a dessision from point of view of this country. I tried my best, but now I see that I am dragging other juries down. I am asking you to replace me by alternative juror, please.”

She was called into court on November 14 as Judge Richardson tried to figure out the reason for the note and the appropriate action required by the law.

Judge Richardson asked her if there were a language barrier and if she had been having trouble understanding the nuances of the language.  She said that she might be having trouble with the nuances, but that is not the principle issue.

She then said that the language barrier was “partially” the issue and that sometimes she cannot understand the words because, she said, some words you cannot translate.

In a separate 12-page motion, the defense moved that the court reduce the defendant’s punishment to life without parole pursuant to Penal Code Section 190.4(e) which “requires that the trial judge make an independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law.”

The defense points to the fact that at the time of the offense, Mr. Topete had been drinking a significant amount of alcohol.

The defense points to testimony from Dr. Tucker who, in reviewing the dash cam video, testified, “My analysis was that Mr. Topete was taken by surprise by the officer approaching him, was not expecting that. He was increasingly anxious as this went along. Was keeping the car in some motion. Was talking to the officer, but was experiencing a mounting level of panic, at some point, fled. Reached a point where he just drove away.”

They also bring back mitigating factors in his background, namely that his family “failed to protect Marco Topete and exposed him to drugs, alcohol, and violence. His father was characterized by both Dr. Minagawa and Dr. Haney as a toxic influence.”

They also point to the testimony of Dr. Haney, who “testified that from the age of fifteen, Marco grew up and matured in some form of institutional setting,” where “from the age of fifteen through twenty, [he] experienced little or no effective treatment in the local juvenile justice system.”

“The only reasonable conclusion that can be taken from Dr. Minagawa’s testimony is that free will is not really true, the decision making process is affected by one’s upbringing (also the stressors of the moment),” the defense continues.  “It was not Marco’s choice to be raised the way he was. He was a high-risk child without support and his criminal history is predictable. Marco’s evolution while in custody failed to provide him with the skills to do much of anything except survive in prison.”

“Marco is not the worst of the worst. While in Pelican Bay he had no write-ups for significant violence and he educated himself in a very difficult environment,” they add noting, “He has positive personality traits as demonstrated by the testimony of family members.”

In his response, District Attorney Jeff Reisig urges the court to “reach the same conclusion as the jury and find that death is a fair, just, and appropriate sentence in this matter.”

He called it a “cold, calculated and violent murder” of a peace officer as a means to avoid and prevent a lawful arrest, perpetrated by an active gang member and performed while lying in wait.

The district attorney writes, “The premeditated and deliberate killing of Deputy Diaz was not the first violent act committed by the defendant, but rather the culmination of a long history of violence crime” that he says began on November 1, 1992, when “the defendant began his streak of violent criminal behavior by leading police on a high-speed chase through Woodland.”

These arguments, which were brought up during the penalty phase before the jury, would be a mere formality were it not for the overriding issue of Juror No.11’s dismissal and the reasoning behind it.

The Bee’s legal researchers were not sure what to make of the matter, calling it largely unprecendented.  Though there have been a number of bumps along the way, Judge Richardson, to this point, has resisted altering the trajectory of the trial and it will be interesting to see if this becomes the first legal cause to really do so.

—David M. Greenwald reporting