When Marco Topete, the accused killer of a Yolo County Sheriff’s Deputy, suddenly dismissed his counsel a week and a half ago, there were still questions that remained. Judge Paul Richardson retained Thomas Purtell as an assistant counsel to help Mr. Topete with legal motions and other technical matters.
However, from the start Mr. Purtell argued that he lacked the resources and apparently even the physical vitality, at age 82, to effectively perform the role he had been assigned to.
According to his motion, he was relying on Hayes Gable’s resources to work on the case. Without Mr. Gable, he lacks tthe resources to investigate, research and prepare the case.
“I have no staff and no resources available to me to produce the paper products that proper advisory work would have to include,” Mr. Gable’s motion said. “I do not have the resources to transfer the electronic files in this case to my possession or to access them, as will be required.”
Furthermore, “Based on the nature of the charges and the complexity of this case, Mr. Topete will need the assistance of an advisory counsel with more resources than I currently have available to me, acting alone without Mr. Gable.”
On Monday, Judge Richardson heard but did not rule on a motion for Mr. Purtell to be relieved of his contractual obligations to the county and Mr. Topete.
In addition to Mr. Purtell’s motion, which is opposed by DA Jeff Reisig and his Chief Deputy Garrett Hamilton, Mr. Topete had a handwritten motion for a continuance of the trial scheduled for next week. Already that will be delayed, it seems, as Judge Richardson will not return until next week with a ruling on the issue of Mr. Purtell’s role.
Mr. Topete complained that he was not allowed access to copy machines and other equipment from the Sacramento Sheriff’s Department. As a result, he was only able to deliver one handwritten copy of his motion on Monday. DA Reisig vowed to get that matter resolved to avoid future delays, delays that he and his office are seeking to avoid in the case.
On Monday, Tom Purtell argued that he was comfortable in his previous role as co-counsel but he lacks the independent resources and staff to perform this new role without main counsel Hayes Gable.
Garrett Hamilton, speaking on behalf of the DA’s office, said that if Mr. Purtell needs helps from the county in terms of resources, they can provide it, and they see no difference in this role from his previous role.
Judge Richardson added that there seemed to be an assumption of a greater responsibility in this role than may be true in reality.
From his perspective, Mr. Topete told the Judge that if Mr. Purtell does not believe he can do this job, then maybe he should be removed if he can’t do it effectively.
Mr. Hamilton called this a smoke-and-mirrors argument, questioning what Mr. Gable had that Mr. Purtell did not. He said that the investigator has already produced a work-product and if there is anything else that Mr. Purtell needs from the county, he should get it.
After a lengthy break, they resumed looking at the county’s contract with Mr. Purtell, who described the contract as “dead as a dog” as soon as Mr. Gable was relieved of duties. “This agreement with the county is a dead dog. We have to sign a new one,” he told the court
Mr. Hamilton disputed this notion and pointed to language in the contract that suggests that “material” adjustments could be made to the agreement. Mr. Hamilton argued that it is that which applies to the current situation, rather than a void contract based on the Faretta Motion.
Mr. Purtell responded by restating that at the moment of the Faretta Motion, when he was no longer the attorney of record along with Mr. Gable , the contractual agreement ceased to be. He said that the current appointment of him as advisory counsel is like “a new creature is being created.”
The county representative, who was brought in by Hamilton, said that the county stands ready to follow the direction of the court, whether the arrangement be deemed a contract modification or a re-appointment of defense counsel.
In a somewhat amusing moment prior to the break, Judge Richardson had conflict council J. Toney brought into the courtroom. Upon arrival Mr. Toney, puzzled, stated to the court, “I didn’t think I had anything in here till 10 o’clock.” Judge Richardson directed him to chambers. Little did Mr. Toney realize what he was about to get himself into.
When the hearing resumed, Mr. Toney was asked for comments on the various motions as all other parties had done. He said that the court has not even fully read Mr. Topete’s continuance motion. He said “I can’t advise the court or help with the case proceedings until the continuance motion is resolved.”
The court noted that the motion was handwritten by Mr. Topete and only one copy of it existed, since he was denied access to a copy machine. Since the normal procedure is for motions copies of motions to be provided to all parties prior to a hearing, the court could not adequately address the motion at that hearing. Mr. Topete mentioned a Lieutenant Vaughn in Sacramento, who he said had told him that by court order Mr Topete would hand deliver any paperwork to the court at the time he had a hearing. Mr. Topete asked the court if that was in fact the correct procedure – and was asking, in essence, whether the court had indeed made any such order. Judge Richardson responded that the court will not advise Mr. Topete, that he should speak with his legal adviser on the matter.
Mr. Topete seemed a little frustrated and said that he understands that the court cannot advise him. He asked again if the only way for him to provide written motions and paperwork to the court was to bring them with him to scheduled hearings. Again Judge Richardson responded by saying that the court cannot advise the defendant on any matters.
Mr. Purtell rose and stated that Mr. Topete was, in fact, not being allowed to copy any documents and was being told be Sacramento County officials to hand deliver paperwork to the court on the very day of his hearing. The court stated that there are rules governing the access that pro per inmates are allowed to witnesses and to the hours spent in the law library, and so on, and that it would “behoove” all involved to conduct a review of all of that “in light of the questions raised by Mr. Topete.”
He told Mr. Topete that there would have to be a way that paperwork from him could be served to the DA and the court in the proper manner, before the day of a hearing so that all parties were not handed papers for the first time at a hearing. DA Reisig stood and stated that he would work with Sacramento County and look in to the matter and the level of facilities that are provided to Mr. Topete.
At the end of the hearing on Monday, Mr. Purtell asked for a clarification of his current standing. The court said that the Faretta Motion applied only to Mr. Gable and at this point Mr. Purtell remained, in a sense, legal counsel for Mr. Topete, but that since the court had appointed him as advisory counsel, he was “sort of that” as well.
To that Mr. Purtell asked if he understood correctly that he was not legal counsel and not advisory counsel, “but something in between?” The court responded by saying that the court appointed him advisory counsel and would decide on the matter the following week.
On Monday, Judge Richardson will rule on Mr. Purtell’s motion to withdraw as well as the motion for a continuance. At this point, it seems highly doubtful that the trial can go on as scheduled next week. Mr. Topete has legitimate concerns about the lack of ability to get information and about Sacramento County’s Sheriff’s Department putting up hurdles in the way of his ability to defend himself.
If he is granted the continuance, this would be the fifth such postponement since his arrest in June of 2008.
—David M. Greenwald reporting
dmg: “Mr. Topete seemed a little frustrated and said that he understands that the court cannot advise him. He asked again if the only way for him to provide written motions and paperwork to the court was to bring them with him to scheduled hearings. Again Judge Richardson responded by saying that the court cannot advise the defendant on any matters.
Mr. Purtell rose and stated that Mr. Topete was, in fact, not being allowed to copy any documents and was being ordered to hand deliver them to the court on the very day of his hearing. The court stated that there are rules governing the access that pro per inmates are allowed, to witnesses and to the hours spent in the law library, and so on, and that it would “behoove” all involved to conduct a review of all of that “in light of the questions raised by Mr. Topete.”
He told Mr. Topete that there would have to be a way that paperwork from him got to the DA and the court before the day of a hearing so that all parties were not looking at papers for the first time at a hearing. DA Reisig stood and stated that he would work with Sacramento County and look in to the matter and the level of facilities that are provided to Mr. Topete.”
And this is why Topete should not represent himself. He does not know court procedure, the judge cannot give him advice, and he is not being given adequate access to basic equipment/materials needed to provide an adequate defense. This sets up issues on appeal…
Wouldn’t it have been easier to have allowed the short delay in the trial to avoid the conflict in the schedule of his original defense attorney? Reisig is going to have to assist Topete in staging his defense in the interest of moving the trial along. Let’s see if Reisig sees the bigger picture, is able to swallow his (and the Sac County Sheriff’s) distaste for the Topete and can get it done.