On Tuesday, the Vanguard reported that Marco Topete, who stands trial for the 2008 shooting death of Sheriff’s Deputy Tony Diaz, moved to disqualify Judge Paul Richardson, citing questionable and biased conduct on the part of Judge Richardson.
A judge appointed by the California Judicial Council will rule on Mr. Topete’s motion. Judge Paul Richardson has filed his response and Mr. Topete has filed a supplementary motion.
The motion continued, “An off-the-record, in-chambers discussion of defendant’s complex capital case with, and not limited to: J. Toney, Conflict Panel Administrator; Public Defender Tracie Olson, District Attorney and/ or an agent of the People.”
He argued, “This gross violation of defendant’s right to equal protection of the laws deprives defendant of any reasonable opportunity to a fair trial in a fair tribunal.”
He went on to describe the private meeting as “extremely suspicious” and argued that it “violates statutory standards and constitutional law… as well [as] certain ethical codes.”
Judge Richardson disputed Mr. Topete’s claim as not being accurate. “Mr. Topete asserts that he learned from a “confidential source” that the Court engaged in an in-chambers discussion with J. Toney, Conflict Panel Administrator, Public Defender Tracie Olson, and the District Attorney and/ or “an agent of the People,” wrote Judge Richardson who added, “That assertion is not entirely accurate.”
“Mr. Toney and I met alone in my chambers,” the Judge responded. “Neither Ms. Olson nor Mr. Reisig, or any other agent of the Yolo County District Attorney’s Office was present.”
Judge Richardson attempted to clarify the nature of the meeting with Mr. Toney.
“I met alone with Mr. Toney in my chambers to inquire whether there were any attorneys available to act as advisory or standby counsel for Mr. Topete. I explained to Mr. Toney that defendant was now representing himself,” Judge Richarson wrote.
“Mr. Toney stated he was aware of developments in the case, as his colleagues had kept him apprised while he was on vacation. I inquired of Mr. Toney if he knew of any attorneys who might be available for appointment. I was aware that the Public Defender had previously declared a conflict of interest in representing Mr. Topete,” he continued.
“I informed Mr. Toney that the defendant had filed a motion to continue, and Mr. Toney stated that the availability of prospective attorneys would depend on the Court’s ruling on that motion. Mr. Toney informed me that, though the Public Defender had previously declared a conflict of interest in this case, one possibility might be a re-referral to that office in order for the Public Defender to determine whether its conflict still exists. He opined that the Public Defender might need a week to complete that evaluation. Our meeting then concluded,” the Judge wrote.
The Judge went on to argue that the previous events, referenced by Mr. Topete, were untimely and already dismissed.
However, while Mr. Topete’s motion may be untimely, there does seem to be a pattern of conduct that makes it difficult for the average person and neutral bystander to believe that he can get a fair trial in this county.
Mr. Topete argued that, from the onset of this case, he has doubted the fairness and ethical standards of the Yolo County Judicial system, beginning with its “initial disregard and collusion in the ‘Court Room Lock-Out’ of defendant’s arraignment on June 18, 2010.”
With the new developments, “defendant has no faith whatsoever, not only in Judge Richardson, as well has absolutely no trust whatsoever in any of Yolo County’s Judiciary community…as defendant believes they are all conspiring against defendant to secure a conviction at all costs, even going so far to trample upon defendant’s US Const. rights.”
That belief is bolstered by acknowledgments from the DA’s Office that they were listening to his jailhouse conversations with his wife. On September 10th, District Attorney Jeff Reisig wrote, “On September 9, 2010, Investigator James Lucero of the Yolo County District Attorney’s office uncovered a taped conversation between the Defendant and Angelique Topete that occurred at the Sacramento Main Jail on July 21, 2010, during a face-to-face visit. The conversation was recorded by Sacramento County jail officials in the normal course of business and maintained by them until it was delivered to Investigator Lucero. All family visits are recorded by jail officials and the defendant is aware of this fact.”
Mr. Topete on Friday filed an additional motion arguing that, according to the California Code of Judicial Ethics, “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties, concerning a pending or impending proceeding…”
He argued that when Judge Richardson met with J. Toney in chambers, neither “Defendant nor defendant’s Advisory or Conditional Counsel were accorded an opportunity “to be heard according to law.”
Furthermore, he cites Canon 3B(7)(A), “A judge may obtain the advice of a disinterested expert of the law, applicable to a proceeding before the judge, if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.”
Mr. Topete argues that there was no record of Judge Richardson giving defendant notice or the opportunity to respond.
The question is really whether Judge Richardson violated any code of conduct by attempting to meet with J. Toney to discuss the possibilities for advisory counsel for Mr. Topete. It seems unlikely that Judge Richardson would be disqualified on that basis.
But it seems very likely that an appeals court, looking at the totality of the circumstances here, will question the judgment of the Yolo County court system for allowing this trial to continue.
As a final point, while I appreciate Mr. Topete’s frustration and the fact that he felt his appointed counsel were both unresponsive to his requests as well as in conflict, a cursory look at capital cases in which the defendant is represented pro per does not give one encouragement for a fair trial.
Mr. Topete is clearly bright and capable, despite the mistakes he has made in his life, but he is not an attorney. Even with a good attorney it would be difficult to avoid the death penalty in a case involving the shooting of a law enforcement officer, along with the other complicating factors. However, with a decent attorney, he would at least have a chance. The consensus from those I spoke to, none of whom are in this county or have any intimate knowledge of this particular case, is that if he represents himself he has no chance to avoid the death penalty.
From the start, this has been a case about the right to a fair trial. I think the right thing to do is to remand this case to another county, allow them to appoint one of their counsel, and start this case from the beginning. That will certainly delay this case, but so too would a ruling by a higher court that he did not receive a fair and impartial trial due to the closeness of the court to the victim.
—David M. Greenwald reporting
