Written by David Greenwald Wednesday, 08 February 2012 07:27
There are a lot of things that need to be said and I will undoubtedly forget some of them.
First, I am morally opposed to the death penalty. I do not believe that society values life or respects life or teaches that life is sacred through the state-sanctioned killing of people, no matter what they did or how horrible they are. That is something that, while I have believed it for a long time, it has grown stronger through observation and experience about the way the legal system works.
I understand that there are people who believe that some deeds are so heinous that the only appropriate punishment is death. While I respect people's rights to their beliefs, I think they are misguided.
However, the debate in society over the death penalty is not over this ultimate issue, but the more practical issues. The application of the death penalty has been unequal. We suffer and continue to suffer from problems of wrongful convictions. And in California the system is broken.
Since 1978, just thirteen people have been executed. We spend $90,000 per year to incarcerate someone on death row. We will be spending billions of dollars to house thousands of death row inmates that will never ever be executed, and Marco Topete is one of those people.
In most ways, the trial of Marco Topete was so simple and so straightforward that it should have been completely uninteresting. After all, he did it. He clearly shot Deputy Diaz after leading him to his friends' property on a high-speed chase. He had an innocent baby in the back of his car. He showed a callous disregard for her safety and the safety of everyone else that night.
And yet, despite how simple the matter was from the start, where they closed the courtroom doors to the media until the last days when they booted a juror off - likely improperly - there are so many mistakes that I really believe that one day we will have a second Marco Topete trial.
We have used a lot of proverbial ink on this site recounting the impropriety of booting a juror who may have disagreed with the sentence of death. We have spent much time pointing out that Mr. Topete should have had his case heard in another county where everyone in the courthouse did not know and admire the victim.
One of the lesser discussed conflicts in this case is that fact that the investigator who would play a critical role in the investigation of this trial, was an admitted friend of the slain deputy, a fact that in most other professions would have recused him from taking part in the investigation or testifying as a gang expert.
This was a guy who played a huge role in determining that Marco Topete was an active gang member. And yet, he should have been conflicted out. How could he render an objective opinion?
There are a couple of additional points that I want to raise here.
First, as quoted in the Enterprise, Judge Richardson ruled: "The court finds that the aggravating circumstances are so substantial ... that they warrant the penalty of death over life without the possibility of parole."
The judge then noted Mr. Topete's "lack of remorse." This is a key problem I have with the legal system overall and the death penalty in particular. There is conflict between the defendant's right to defense of a charge versus the fact that that defense may be held against them at sentencing.
Moreover, in this case, I think Judge Richardson is simply wrong. The video recording of Marco Topete right after his arrest shows very clear remorse and concern about others, including his family. Angelique Topete, Marco Topete's wife, has told me on numerous occasions that he has a great deal of remorse for what he has done and the consequences it has had in his life, his family's life and Deputy Diaz' family's life.
This idea of mitigating versus aggravating circumstances requires us to turn people into monsters in order to justify what is essentially state-sanctioned murder.
Mr. Topete is certainly not the most sympathetic figure, though I think the defense got a lot of it right when they looked at his upbringing and the circumstances of his family and incarceration. It is not that everyone who has a tough upbringing ends up a murderer, but looking at his background, it is not all that surprising a result.
Then there are the victim-impact statements which, frankly, I think should be abolished. It introduces emotion into what should be reasoned and rational justice. And what does it tell us?
By all accounts Tony Diaz was a great person. He certainly did not deserve to die when he did and in the way he was killed. But let us suppose he was a destitute homeless man with no redeeming qualities and no friends or family - does that person deserve less than Tony Diaz? Is that person's life worth less than Tony Diaz?
Logic should tell us no, and yet the emotional victim-impact statements by Deputy Diaz's relatives tell us otherwise.
"You took what was not yours to take," said Maria Guadalupe Diaz, the slain deputy's sister as quoted in the Enterprise article. "When you ran like a f- coward, Tony was watching your every move. He wanted you, and wanted you bad."
"Why did you kill him? I know you're not man enough to answer," another sister, Angelina Garibay, the Enterprise reported she said to Topete, also reporting that Topete displayed no visible emotion while watching the victim testimony. "You took away his life while he was saving your daughter's life. You paid him back by killing him."
The family of Marco Topete believes that the death sentence was deserved.
The deputy's niece said "This is the beginning of rebuilding our lives again" and argued it was the "the first hurdle" that takes the family "five steps forward and maybe one step back."
The reality is however very different. There will be no closure. There is a possibility, even a likelihood, that this conviction gets thrown out on appeal. Even if it does not, Marco Topete will likely never be executed, and it will be an open and festering wound.
I am reminded of the words spoken by anti-death penalty activist Ellen Eggers, who spoke at the Quaker House in Davis against the death penalty.
She told the story of "Sammy," who was convicted of murdering two young college students who were on a date. He was in a group of guys who felt they needed to steal a car, and ended up taking a car with two kids in it. They ended up killing both of the kids in execution style.
Ms. Eggers described that about six years into representing this guy, he mentioned he got a card from the victim's family.
It was a card from the boy's parents, it was a Christmas Card and it said, "We think about you, we love you, we pray for you, we forgive you."
Eventually, she met with the family in Los Angeles, a well-to-do family. They still had his room set up as a shrine.
Ellen Eggers said that she wanted to understand how the family could come to forgive the man who killed their oldest son. The mother told her, "I didn't do it for him, I did it for me."
She said their son was killed, they went to victim's support groups and tried to feel better, but it never made them feel better. People were just angry and "there was so much rage and venom in those groups" and "they couldn't let go of it" and "they were just proposing tougher legislation and more death penalty."
The lady told Ms. Eggers, "We would leave those meetings just shaking and not calm at all." She said, "We wanted to find another way and that is what I chose to do."
The father said that he dealt with his grief by becoming a volunteer at a youth detention center for seven years, to help troubled youths. He said, "Ellen, I didn't want any other family to have to go through what we went through."
The family of Tony Diaz is angry. They have the right to be angry. But they will not get solace in their anger and hatred. They will get no comfort and no closure.
The death of Marco Topete will not heal their wounds. They will be left feeling empty and bitter.
In the meantime, Marco Topete will remain alive and on death row while their loved one will never return to them.
It is a horrible thing that they have suffered. My compassion and sympathies are with them.
But this is not the answer.
Yesterday I wrote: I did not attend the Topete death march today - I did not want to validate an invalid process with my presence. I pray for the souls of those who rejoice in the face of the demise of others.
I take pity on the family of Tony Diaz, knowing that, despite their words, they will have neither rest nor peace of mind in the coming years.
On July 26, Yolo Judicial Watch will host the leading opponents of the death penalty in the state at our dinner and awards ceremony. Included will be Ellen Eggers, who is a state public defender who represents people on death row.
Also joining us will be Jeanne Woodford, who once served as Warden of San Quentin and now heads up the anti-death penalty group, Death Penalty Focus.
Don Heller wrote the statute that was passed by the voters, authorizing and expanding the death penalty in California. Now he believes it is an expensive and broken system.
And finally we will be joined by Franky Carrillo, who is rebuilding his life a year after being released, having spent from 1992-2011 in prison for a murder he did not commit. He is still only 37 and has a chance to live a good life despite this injustice.
The entire Topete trial was a farce from start to finish. And our system perpetuates that farce, an expensive one, where no one wins and everyone loses.
I agree with Angelique Topete, everybody is a victim in this and they still are. It is time to end the death penalty in California.
---David M. Greenwald reporting
Thanks for this David. I have written elsewhere about the limits of our retributive system but will simply note here that one of the biggest problems with our current approach (even for violent crimes) is that the true victims are sidelined because the state (not the true victim) becomes the "offended". We need a process to offer the true victims an opportunity to face the offender (which, admittedly, is not always possible). Here is a link to a study of victim offender conferencing in violent crime cases published in 2003:
The article in question in this newsletter starts on the first page and is entitled: Victim Offender Dialogue in Violent Cases: The Texas and Ohio Experience
Given your obvious agony over the death penalty in the Topete case and my own total agreement with your opposition to the death penalty itself, I want to take care about how I approach my disagreements with this overall presentation. By trying to "get everything in," you again conflate issues that have no business being tossed in the same bucket.
In the first seven paragraphs you present a moving, strong case against the death penalty.
Then, with "And yet, despite how simple the matter was from the start, where they closed the courtroom doors...," you begin a rehash of the full of arguable assertions in a way that invites readers to quarrel. In fact, most of this accounting of "errors" by law enforcement and the judicial system is is a brief for claiming Topete's should not have been found guilty at all.
To run Ellen Eggers' old tale about how one family was able to forgive as a counterpoint to the Diaz family's fresh expressions reflects a heartlessness I'm sure you did not intend.
"The family of Tony Diaz is angry. They have the right to be angry. But they will not get solace in their anger and hatred. They will get no comfort and no closure. The death of Marco Topete will not heal their wounds. They will be left feeling empty and bitter."You don't have a clue about how the family of Tony Diaz would react. And, how presumptuous of you to preach to them about about the futility trying to find "solace in their anger and hatred"!
So, let's wrap it up with a promotion for a Vanguard event five months down the road, and a summary from Angelique Topete, the philosopher, who opines, "everybody is a victim in this and they still are."
"There are a lot of things that need to be said and I will undoubtedly forget some of them."Not a problem. From where I sit, you said way too much.
When I first read this, I thought I was speechless. Maybe I should have remained in that state.
While I appreciate the viewpoint described in the above article, I have a somewhat different take. Trials are a manmade construct, and so of necessity are imperfect. To expect anything else is being unrealistic. Evidence, witnesses, prosecutors, defense attorneys, defendants, judges, jurors, just as any human being, are by definition imperfect. But that does not mean there should be no attempt by the state to mete out justice of some sort. Better the state mete out justice than the family of deputy Diaz, no? That is what our justice system is all about - to pull the determination of justice back from vigilanteism and have a more objective process view the situation and decide what needs to be done to protect public safety and provide deterrence.
There is no question that the justice system is corruptible and less than ideal. There is no perfect lie detector test that can determine guilt or innocence. It would be nice if there were. But that is not reality. Much in life is messy, unfair, less than ideal. However, we still need to engage in life, and that includes rounding up those who have committed crimes and decide what to do with them. No system we devise will ever be perfect. And one person's sense of justice is not necessarily the same as another's. Victims of criminal activity are going to view things a bit differently than member of the public at large.
Topete is not a particularly sympathetic figure. Nor is there doubt about his guilt. Even Topete is not denying he committed the crime. He killed a law enforcement officer; endangered his child. End of story. So he really does not represent a good case for why we should not have the death penalty, unless you are an ardent believer that the state should not be in the business of taking lives. That is a very personal view, but not one that everyone shares...
"To run Ellen Eggers' old tale about how one family was able to forgive as a counterpoint to the Diaz family's fresh expressions reflects a heartlessness I'm sure you did not intend."
JustSaying, this is a very fine point. David, I don't think you get how this type of comment plays with many of us. The Diaz family has a right to demand justice over the significant and permanent damage caused them by Mr. Topete. End of story. There is no "but". It is not cool for anyone to infer some deficiency in victims meeting some expectation above and beyond their natural rights. You are in fact passing judgment on them in doing so.
Everything bad that has happened is the responsibility of one person and only one person... Mr. Topete.
There is no "but". It is not cool for anyone to infer some deficiency in victims meeting some expectation above and beyond their natural rights. You are in fact passing judgment on them in doing so.
Everything bad that has happened is the responsibility of one person and only one person... Mr. Topete.
Forgive my lack of clarity. I am not suggesting the state has no role. It has a role in maintaining order and in creating an orderly process to assure that justice and blind vengeance prevail. However, what I am saying is that this does not go far enough and that the victim should have the right to face the offender if s/he chooses. This is a missing piece of our justice system and is critical to restoring the health of victims, society, and (dare I say it) offenders themselves. Robb Davis
"But is it justice they are seeking or merely vengeance.
There you go again.
It is justice and it is their right. In my book, you don't get to ask the question "is it vengeance". You are projecting more sinister motives that, frankly, have no bearing on the case and only serves to smear the victim.
Forgiveness is a personal decision that comes with personal challenges… and the actions that manifest from it can be as destructive they can be constructive. It is not for us to pass judgment since we do not walk in their shoes and we cannot know the consequences. As the victims, they should have the right to be angry and feel hate for Mr. Topete as long as it serves them.
Elaine, you've made an excellent evaluation of how imperfect human systems are, even what we think are the best in the world, and how perfection always will elude.
In fact, your observations pretty much are what have led me to oppose capital punishment entirely, that there's no way in our human condition to keep from executing an innocent person.
Any system without a built-in guarantee against errors in administering death penalties should offend every potential mistaken executee-and that, of course, would include every one of us. It's one thing to accept the possibility that our system could convict and punish an accused, but innocent shoplifter. Or, to find out that someone is in jail for a murder he did not commit. But, to know we have put innocent people in graves shouldn't be acceptable to our society.
I suspect David feels as strongly about this issue, a moral one, as I do. His mini-boycot of Topete's sentencing hearing testifies to that, I originally thought. But, since he still chose to read and use the Enterprise report of the event he skipped in order to lecture the Diaz family what they said at the hearing suggests another, more worrisome prospective motive.
Except for the harshness of his writing about the Diaz family's participation in his report and follow up comment, it's not a surprise that David combines a bunch of stuff in kind of an anarchist attack on our justice system and all the players. (This tendency has pretty well weaned me away from "Judicial Watch" reports.)
Now, one has to wonder if not attending and viewing the family face-to-face provided some kind of courage to criticize them so strongly while painting Topete as unfairly treated in a farce trial and emphasizing a portrait of him and his family as the victims of the case. I'm disappointed.
"It is not for us to pass judgment since we do not walk in their shoes and we cannot know the consequences. As the victims, they should have the right to be angry and feel hate for Mr. Topete as long as it serves them."Good points, Jeff. But, what purpose does it serve our system to institutionalize this need?
I think "victim statement" testimony brings a circus atmosphere to the courtroom. It's also ineffective. I don't know of an instance where angry, insulting, pointed testimony has resulted in the judge sentencing more harshly than expected or where an Ellen Eggers' Quaker-type testimony has moved a judge to be lenient.
I'd like to see "victim's rights" in this arena revised to provide for written statements to the sentencing judge. It would serve supposed "closure" as well as the dramatic performances, in my opinion, but who am I to say. In any case, it's important to remember that "the state" is "the vs. party" and the party to enforce. Otherwise, we'd never have a spousal abuse trial.
The family of Tony Diaz is angry. They have the right to be angry. But they will not get solace in their anger and hatred. They will get no comfort and no closure.
"I don't think there's ever closure. I think whoever came up with that concept is an imbecile, whoever they are," said Dr. William Petit, as he emerged from a courthouse where jurors imposed the death sentence in the rapes and killings of his wife and children.
First I want to say I agree the states dealth penalty process is messed up and I do believe in peoples right to opinion. It needs to be fixed and start pushing them through. If a jury convicts, decides death, affirmed by a judge, they should get one attempt at appeal and it should be within the first year after the trial at the state level. If the federal court process does not take it on, move forward with execution. Not only will this put fear back in the criminals, it will help with our budget issues. Housing and financing the 20 plus year appeal process for death row is one of the significant problems in our justice system. Take some lessons from Texas.
"'I don't think there's ever closure. I think whoever came up with that concept is an imbecile, whoever they are,' said Dr. William Petit, as he emerged from a courthouse where jurors imposed the death sentence in the rapes and killings of his wife and children."That's one person's opinion, possibly more directed at the imbecile who asked him the good old "closure" question. I'd guess some good-hearted, well-meaning folks came up with screaming at a murder as a closure method after coming across the Kübler-Ross model.
Whether anyone gets "closure" after a loved one's death, by violence or not, just has to depend on the individual. To announce that someone is wrong in the way they deal in our court system, that "they will not get solace in their anger and hatred" if they participate, is just wrong and over the top.
These people did not "rejoice in the face of the demise of others." That is an inaccurate portrayal of an event David did not attend.
"I don't think you get how this type of comment plays with many of us. The Diaz family has a right to demand justice"
I don't think that you get how many of us do not believe that the death penalty represents justice, but rather is just another form of injustice. For many of us, the decision of whether another human being should live or die is not within the realm of human decision making and this is what makes it morally objectionable to kill another human in the first place.
medwoman: You might be correct that I don't get it the same way. I've kinda' got a zero tollerance thing for cold blooded murderers.
I lost two beloved brother inlaws. They were identical twins. The first was a Davis cop that happened to be friends with Tony Diaz. He was 45 when he took his life. He was a detective and could not handle the stress of his job and a life complicated by it. His twin brother took his life two years later over the stress caused by his brother's suicide (you know, wasn't there to save him, etc). So, from my perspective my wife became an only child, and I lost two beloved brothers due to the existance of the likes of Mr. Topete. You and I don't know what it feels like to make a routine traffic stop knowing that a person like Mr. Topete might be in the car with murder on his mind.
Mr. Topete lost his way and committed crimes that should require him to suffer the same fate as his victim. I don't have a problem with the state executing him for his crimes, because the value of his death exceeds the value of his life after he was convicted. I just wish it could be done quicker.
I respect anyone who believes the state should not carry out the death penalty on moral grounds. However, I also respect those who believe just as fervently that some perpetrators deserve the death penalty, e.g. Ted Bundy, and that the state should mete out death for certain egregious cases. (Personally I am against the death penalty, but only bc the system is just too imperfect.) However, I do not agree with attributing an improper motive to the family of a victim who may cry out for a death penalty sentence for the perpetrator of the crime. I feel as others do that to pass judgment in this way on the family of the victim is just plain wrong...
I'm with you, Elaine, except for the part about getting rid of the death penalty all together, the sooner the better. But, as long as it's a part of our system, however unworthy a part, let's avoid casting shame on those who we invite to show up and scream at a killer. Even this unpleasant event doesn't make the killer the victim. Topete is going to go through a lot in the coming years, and deserves every bit of what he gets (which won't include execution).
I concur with the main points made by Jeff and ERM.
Also I am puzzled as to the article title '..and the Culture of Death". I certainly don't see the existence of capitol punishment as emanating from a culture of death; I see it as one of many means of protection from violent predators in society. I just don't buy it.
Neither is and execution state-sanctioned murder. Murder is a legal term, as is execution, assassination, etc; they each have distinct meanings. A value-neutral umbrella term woud be killing. I would agree that the death penalty is a form of state-sponsored killing.
Whether the victims family chooses to forgive should remain a purely personal choice that they should have no obligation to do. I have no problem if they express some satisfaction with the verdict and with the execution.
That said; the whole story of Topete's circumstances and his unfortunate actions on the day of the murder is a tough one; from the story I think all his buttons were pushed that day and he lost it; but his choice to revert to murder, I would guess, might stem from a certain defiant attitude toward the law and law enforcement; too bad he couldn't have shifted his attitude before that unfortunate day.
A thought on "the culture of death"
I do not speak for anyone but myself. What I believe is the basis for the moral objection to the death penalty is the belief that humans do not have the moral right to take the life of another human being. If you believe that this is true, then killing by an individual, by a vigilante group, or by the state is still killing. We justify killing by the state by having made it legal and putting in an elaborate set of rituals, justifications, policies, and procedures which we call justice. In the end, these are window dressing to allow the more powerful entity, the state ( embodied by 12 non randomly selected jurors since they have to believe in the death penalty to serve) to perform the same act as the accused, namely killing another human. We clearly as a society have chosen to define killing as a desirable outcome in some instances. Thus the concept of culture of death, namely killing those we deem unworthy of life. Whatever happened to " let him cast the first stone" as an affirmation of life ?
I am truly sorry to hear about your families loss. I have a different perspective on loss. Many years ago a cousin of mine was murdered while
hitchhiking. The murder was not solved. My point in relating this is to those who believe that the opposition to the death penalty is only held by those who have not been directly affected by murder or killing, since as we pointed out, murder is a legal term. If you believe, as I do, that death is a normal part of life, then instituting death does not actually punish the killer who goes on as we all will at some point. Those who are actually punished are the innocents who love the condemned. How this represents justice except in the crudest sense of "an eye for an eye" escapes me.
This concept of " a life for a life" has been the basis for family and societal feuds, ethnic conflicts, tribal warfare and genocides throughout history.
In my opinion, all we have done is to depersonalize, sanitize and rename, exactly the same act, the killing of another human being.
Excellent thoughts, medwoman. It's easy to see how killing someone is easy to justify in theory (an "eye for an eye"). Yet it's interesting to see how we still need to demonize the target before we can bring ourselves to execute someone or invade a country. The prosecution arguments and victim statements are equivalent to the propaganda that engulfs the media as we prepare for an invasion.
I think this psychological prep is required because it's not really in the human nature to be killing other people. So, the demonization gets added to the depersonalizing, sanitizing and renaming you mention to convert the unnatural act to something we can tolerate, even relish if we get our attitudes adjusted enough.
Most modern countries--and lots of "less advanced" ones--have realized that executions serve no productive purpose and have outlawed them. It's odd to me that the U.S. hasn't come to that realization yet. Once we all get out of the execution business, maybe we'll make some progress on killing on a more massive scale.
Jeff Boone thinks we don't know what it's like to be a cop and stop
people who might be dangerous. A few dangerous people are around all
of us, they're not confined to vehicles which the cops happen to stop.
Law enforcement is not nearly as dangerous as law enforcement would like us to think. The PR spin puts law enforcement salaries higher
than they should be. Way over $100,000 for prison guards! The joke's on us.
For the state to kill people on purpose, malice aforethought, is
simply barbaric. When people kill others, they have a mental defect. That is, when you do something not in your own self interest, there's obviously something wrong with you. And where's the mental health care? It takes close to 2 months, and LOTS of hoops to jump through, to get an apptmt at Yolo County Mental Health. Seriously ill people don't get the help they need.