The case of Marco Topete began in June of 2008, when the parolee led Sheriff’s Deputy Tony Diaz on a high-speed chase that ultimately ended with the tragic shooting of the sheriff’s deputy.
From the time Mr. Topete was arrested and the time that reporters and the public were locked out of the Yolo County Courtroom, until the jury ultimately reached the verdict during the penalty phase to impose the death penalty – there were numerous twists and turns.
One of the big questions is how much did the prosecution of Marco Topete cost the taxpayers of Yolo County? To determine that, the Vanguard made a multipoint public records request to Yolo County.
Yolo County provided the Vanguard with a summary of expenses. The total was $1.4 million. That includes $650 thousand for legal fees for defense counsel, $744.5 thousand for experts and other vendors. And $12.4 thousand for miscellaneous defense expenses such as copies, travel, parking, etc.
We have considerable reason to believe that this is a low figure. Because Marco Topete killed a sheriff’s deputy, he was placed in custody in the Sacramento County Jail, rather than in Yolo, and transported for months on a daily basis. The county did not provide figures on that.
A large amount of the expense went directly to legal fees for the defense counsel. The Vanguard attempted to interview lead attorney Hayes Gable, but Mr. Gable did not return the Vanguard‘s request for comment.
The case actually began with Mr. Topete represented by Dean Johansson, a Deputy Public Defender. However, the Public Defender at that time, Barry Melton, ultimately recused his office from defending Mr. Topete.
Barry Melton declined to comment, citing the ongoing nature of capital murder trials stating, “It would be inappropriate (and likely unethical) for any lawyer who participated in the defense of the Topete case to comment on the costs of trial or any other trial-relatad matter.”
The high cost of death penalty cases is not a surprising or particularly new development. In 2011, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell published a study that shows the state of California spends $184 million each year in additional costs for capital trials.
They write: “The Legislature’s Joint Committee on Prison Construction and Operations reported in 1992 that “an average death-penalty murder trial can cost more than six times the $93,000 spent on non-capital murder cases.”” Another estimate puts the cost at 10 to 20 times more than for other murder trials not involving the death penalty.
They cite a 1993 study, looking at capital cases in California between 1989 and 1992, that concluded at that time the “cost of a death penalty [trial was] at least $1.2 million more than a comparable murder trial pursuing the alternative of life in prison without parole.”
An ACLU study looking at the costs of homicide trials between 1996 and 2005 looked at 10 capital cases and concluded: “Comparing the least expensive death penalty trial to the most expensive noncapital trial yielded a difference of $1.1 million more for the death case, but it is impossible to project this difference to all death penalty trials.”
Natasha Minsker, Death Penalty Policy Director of the ACLU-NC who managed the Prop. 34 campaign, told the Vanguard, “Death penalty trials are much more expensive than regular murder trials, costing at least $1 million more and sometimes tens of millions more.”
What accounts for these extra-costs?
“The extra costs are the result of the unique double trial process, requiring more experts, investigators, lawyers and court time,” she told the Vanguard.
Critical to the expenses are several things. First, in a death penalty case, there is an extensive period of time where jurors are selected. Each juror has to be “death qualified” – determined that they will be willing to sentence the individual to the death penalty, with those opposed to the death penalty excluded from consideration. That requires large panels of jurors who must fill out extensive questionnaires and face extensive questioning by the attorneys.
Second, unlike a typical murder trial, the court appoints two attorneys to represent the defendant in death penalty trials.
Third, a death penalty trial contains two phases. First there is the guilt phase in which the jury has to determine beyond a reasonable doubt whether the defendant is, in fact, guilty of the murder with the special circumstances.
If they find the defendant guilty of murder with special circumstances, they then have a separate penalty phase, where the jury hears evidence and makes the determination as to whether to sentence the individual to execution or life without parole.
Finally, as we can see, $744.5 thousand was spent on experts, investigators, lab results and other expenses – this is far larger than would be the case in any non-capital case.
District Attorney Jeff Reisig blames the costs of the death penalty on its opponents.
Last July in an op-ed, he wrote, “The voters in California approved of the current death penalty law in 1978. Despite the will of the people, the American Civil Liberties Union and its allies have waged a relentless attack on public safety for decades, with a goal of overturning the death penalty. Their approach has been shameful and costly, in dollars and pain for victims.”
“Sadly, the proponents of this latest effort to repeal the death penalty have masked their intentions in a supposed concern for the state budget. Don’t be fooled,” he writes. “It is precisely because of the actions of the ACLU and other opponents to the death penalty that the delays and costs of capital punishment are what they are today.”
He adds, “Quite simply, they have created the issues that they now rely upon in their misleading campaign to reverse the will of the People. Moreover, their promises of savings are deceptive and wrong.”
And he notes, “Even without the death penalty, taxpayers must still pay for a lifetime of prison confinement and skyrocketing health care costs to make sure all convicted criminals stay healthy in prison. This will cost taxpayers tens of millions of dollars annually as the current 725 most evil murderers on death row, and the many more to come in the future, live out their lives in California institutions before dying of old age.”
Ellen Kreitzberg, Professor at the Santa Clara University School of Law and Director of the Death Penalty College which trains defense attorneys who represent persons charged with capital crimes, told the Vanguard she believes the $1.4 million figure is a low number.
“I think that’s definitely a low number,” she said. “I’m sure that that does not cover the investigative costs on the District Attorney’s side. It definitely does not cover the costs within the District Attorney’s office both in terms of the attorneys and other additional expenses that it takes to try a capital case.”
Professor Kreitzberg also told the Vanguard that experts for the District Attorney’s office that come out of their regular expenses would not show up either. Some may argue that those are budgeted expenses, but in a finite pot, expenditures in this case means that the DA’s office may not be have the funding to spend in other cases.
And, of course, the costs do not include the cost of incarceration in Sacramento County or transportation to and from Sacramento County.
One of the arguments that the proponents of Proposition 34 made during the campaign is the relative high cost of the death penalty compared to its lack of use.
“Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs,” the Los Angeles Times reported in 2011.
The unlikelihood of Mr. Topete ever being executed looms large in the calculations about spending.
Professor Kreitzberg, in noting the 13 executions since 1978, said, “Right now there are two additional impediments towards any additional executions.”
One of these is the judicial decision in Marin County where, following a federal court ruling that the state’s method of execution violated the Eighth Amendment’s ban on cruel and unusual punishment, a state judge threw out the CDCR’s rewritten protocol arguing that the state violated its own process by failing to adequately consider public comment on the process.
The judge noted that the state made the decision to stick with a three-drug lethal injection process over a one-drug procedure that many consider more humane and less prone to mistakes.
Professor Kreitzberg also said that the issue of the unconstitutionality of the old protocol is still pending “and they have to go back to that court before they can proceed.”
“There are these two legal impediments before they can even begin the process and they still need to create the protocol that passes judicial muster,” she added. “So no matter how quickly they decide to go there will still be several years before an execution takes place.”
Given the expense involved in carrying out a death penalty trial during a time when the county has sharply cut back on funding to both the DA’s office and on criminal defense, the only logical explanation is that the decision is political.
Professor Kreitzberg argued, “We are using the death penalty, I think it’s clear, more for political reasons than for punitive reasons because in fact these people will get life without the possibility of parole.”
“Had they done that from the beginning this case would have been over, the victim’s families would know that there’s a finality to it, the defendant will be out of the news, they won’t make the news every time they have a hearing come up,” she continued. “The case would be over and put away.”
“I think that’s what a lot of the people in California are saying they would prefer,” she added.
Bolstering this view is the fact that Angelique Topete, wife of Marco Topete, has told the Vanguard on numerous occasions that Marco Topete would have taken a plea for life without parole had he been given that opportunity.
In a system of scarce resources, that is at least $1.4 million that the county might have for other pursuits.
As Natasha Minsker put it, “Almost all of that money comes from the county budget and could be used for better purposes, such as education or solving the 66% of unsolved rape cases and many unsolved murder cases in Yolo county.”
—David M. Greenwald reporting
OK… Topete could have “copped” to Man 1 or 2, as the guy in Sacramento did when he killed an innocent man with an axe. Topete didn’t… as I recall, he pled “innocent”. Right.
He killed a police officer. High speed chase where other folks could have been hurt/killed. He could have pulled over and dealt with a much lesser crime. He chose not to do so.
You say, with what appears to be 20-20 hindsight, to assert that Mr Topete would have plea-bargained for. HIS PLEA WAS INNOCENT.
If he had pulled over, and was arrested for only the crimes he had committed to that point, what would the “taxpayers” costs have been? Had he pled to a lesser murder charge, what would the costs have been? Mr topete seems to be more responsible for the taxpayer costs than any action of the DA’s office. I believe there are issues with the DA’s office, but it seems to be ignored that Mr Topete has the lion’s share of creating the “cost” problem.
“
OK… Topete could have “copped” to Man 1 or 2, as the guy in Sacramento did when he killed an innocent man with an axe. Topete didn’t… as I recall, he pled “innocent”. Right.”
He wasn’t offered the opportunity to cop to that.
He ALWAYS can… see the Sacramento case where he pled to Man 2, the DA wanted 1st degree murder, and the jury “split the baby”…. of course I’m not as knowledgeable as you, but even if the DA doesn’t fully accept the plea, the defendant can plead any way they want.
I offered some what if’s… you choose to ignore those. Understood. Your metrics.
He would have the option of pleading to the sheet, but pleading to the sheet would still expose him to the special circumstances and the dp.
I’m going to “call” what I think is a “bluff” on your part… did the defense ever offer a guilty plea if the DP was off the table? You say that his wife says he would have accepted the plea. Was it ‘offered’? Cite your sources. If they had, and if the DA accepted it, what would have been the costs? Please cite sources.
Do you believe Topete was innocent, and therefore shouldn’t have even considered offering a plea? Was the officer’s death a macabre suicide intended to frame Topete? Was another individual involved?
What would have been the cost to taxpayers if the DA had gone for LWOP, and Mr Topete maintained his innocence? Please cite sources. Or, is it ‘David Greenwald opinining/pontificating rather than “reporting”?
“did the defense ever offer a guilty plea if the DP was off the table?”
I was told they had.
“If they had, and if the DA accepted it, what would have been the costs? Please cite sources. “
In the article there are estimates as to how much more a death penalty trial would be over a standard murder trial and there is a lay out of why.
One example, had a public defender handled the case, had it been a standard trial, it simply would have been covered within the PD’s office budget rather than the $650,000 additional it costs now.
“Do you believe Topete was innocent,”
Even he didn’t claim he was innocent.
“What would have been the cost to taxpayers if the DA had gone for LWOP, and Mr Topete maintained his innocence? Please cite sources.”
Probably less than $100,000.
Does anyone know how it came to be that one or more City of Sacramento employees came to speak to the Davis City Council about Davis water rates?
Oops wrong thread, sorry!
This cop-killer’s first-degree murder trial with taxpayers picking up costs of outside counsel, experts and “other vendors” would have been “less than $100,000”?
Which of the $1.4-million expenses and the other unlisted costs (Sacramento lodging, etc.) would not have been spent on a LWOP trial, given the other variables in the Topete case?
Obviously, death penalty cases jack up the costs after a guilty finding. But, $100,000 hardly seems adequate to cover all the things that went on here that had nothing to do with charging this as a death penalty case.
People who plead “not guilty” (yet, somehow, “even he didn’t claim he was innocent….”) to murder charges get an aggressive defense, not some discount operation just because the death penalty isn’t involved.
The second attorney’s bills wouldn’t show up. But, what else would the remaining attorney forego just because Topete would face life without the possibility of parole instead?
The problem isn’t the bad acts of the district attorney. As long as we have a death penalty for crimes such as Topete’s, these crimes will be charged that way regardless of who sits in the DA’s office.
Stop the death penalty for cost and other reasons. Killing people is hard to justify whether it’s a Topete on the delivering or the receiving end.
Of course, absence of the death penalty will result in more, expensive LWOP trials since there’ll be no reason to cop the pleas that sometimes have resulted from death option. Ironic, eh?
Why would people facing life or even lengthy set sentences–whose defense is paid by the public–have any reason to plead guilty? Wouldn’t anyone think it better to roll the dice with a trial and hope for reasonable doubt or some kind of error in order to walk away a free person, guilty or not?
Is it possible you’ve underestimated the cost of Topete’s imaginary LWOP trial? Or, that you found some discount outside attorney who would take the case for $25,000 and wouldn’t demand very many experts, Xerox copies or vendors?
Good job, by the way, tracking down the costs of Topete’s actual trial. You’re right, it costs a lot to protect the rights of defendants. Fine with me if it keeps one innocent person out of prison and off of death row.
It’s possible but you can see the itemized list of costs and all of those are I budgeted while an LWOP trial would be within the current budget – if there was no plea
Lets not blame the folks who are following the law for the cost here. I think instead of opining again and again David could do some reporting on how the ACLU and the like have increased the costs of the DP. I know it doesn’t follow the VG’s agenda but it’s worth looking at. If the ACLU was worried about the cost, like they said (with a straight face) during the prop 32 campaign, they could push for the legalization of the single drug DP.
How would that impact the issue of cost?
You talk about the ACLU impacting costs, why because they don’t want innocent people executed?
[quote]“…you can see the itemized list of costs and all of those are I budgeted while an LWOP trial would be within the current budget – if there was no plea.”[/quote]Sorry, I’m not tracking you. The $744.500 “for experts and other vendors” and the $12,400 (or $124,000?) for “miscellaneous defense expenses such as copies, travel, parking, etc.” already are pushing ten times your “less than $100,000” estimate.
And that doesn’t even include the single outside attorney (instead of two) who would defend him for the LWOP trial.
Maybe you’re suggesting that Barry Melton refused to defend Topete just because the public defender won’t take death penalty cases and, otherwise, all of the costs would fall within his budget? Still, you’d need to account for years of staff salaries and outside “experts and other vendors…copies, travel, parking, etc.”
What would Melton’s office have done differently over these four years? The public defenders don’t want innocent people executed either. How much different would be the PD’s budget and outsiders’ allowable expenses for the same case?
Another good comparison would be to answer the question: What’s the difference in Topete’s taxpayer support for the next 20 years if he’d have been convicted in a LWOP trial vs. a death penalty trial?
Far less likely he would have, but if he had it would have fallen into the conflict counsel budget. They wouldn’t have had two attorneys. That means they wouldn’t have had two death qualification processes because Purtell wouldn’t have been on the case to delay it six more months. They would have had the trial but not the penalty phase. They would never have spent close to the amount they did on investigation and the experts – most of them hired for the penalty phase. It probably would have fallen within normal budget. I’ll ask Tracie Olson what she thinks the Wolfington murder trial will cost them.
In terms of the next twenty years remember its double the cost to house him at San Quentin than at the SHU. Then you have the state funded automatic appears process.
I’m thinking about the appeals process costs and how those with the two sentences might differ.
[quote]How would that impact the issue of cost?
You talk about the ACLU impacting costs, why because they don’t want innocent people executed?[/quote]
The ACLU was who said they were worried about cost of the DP. If that were true they would push for the available single drug. I saw that prop 32 wasn’t really about fiscal responsibility and fortunately a majority of the voters also saw that. The single dose would impact costs by allowing executions to occur and lower incarceration costs.
MO: You are making a strawman argument here in assuming that because they have argued that the cost of the death penalty is prohibitive, that the cost trumps all other issues. As I understand the arguments not only for Prop 34 but also in general, one of the concerns is the cost to administer the death penalty given all other current parameter.
The single dose would not impact the costs significantly because the lack of executions is only one factor in the bottleneck. Even before DPs were halted in 2006, you had just 13 executions in 28 years.
So your solution does not fix the primary problem here, because that problem existed earlier.
[quote][quote]The ACLU was who said they were worried about cost of the DP. If that were true they would push for the available single drug. I saw that prop 32 wasn’t really about fiscal responsibility and fortunately a majority of the voters also saw that. The single dose would impact costs by allowing executions to occur and lower incarceration costs.
[/quote][/quote]
There can be many valid reasons for favoring or opposing the death penalty. Pointing out a particular one certainly does not mean that you do not believe in other reasons or that it is impossible to stress one point over another at various times and still be sincere.
I have a number of reasons for opposing the death penalty:
1) The moral argument. I do not believe that killing another human is the right course of action morally. I do not believe that having 12 people opt for death makes it morally correct any more than one person deciding to take the life of another.
2) I believe that the death penalty is about revenge, not justice, and as such, I believe it has a detrimental effect on our society overall.
3) I do not believe that the death penalty brings any more safety to society or any more peace or closure to the victim’s families than would LWOP if what is truly being sought is the piece of mind that this person will not be able to repeat these acts.
If what is being sought is revenge, then I see that as part of the problem, not the solution.
4) Many legal issues as David and many others have mentioned over many postings argue against the DP.
5) Many financial issues as have been pointed out in many postings argue against the DP.
It is certainly true that I would be very likely to stress one point over another depending on what group I was speaking to considering which point might be more likely to resonate with them. That does not mean that I cannot sincerely believe in all those other points as well. To pretend that because one point is stressed at a given time means there is hypocrisy or lying is far too facile and to me possibly a bit disingenuous.
The moment the maximum penalty becomes life without parole, the costs of prosecution with the possibility of maximum penalty will be what the current death penalty prosecution costs.