On August 1, the Yolo Judicial Watch Editorial Board wrote, “A recent study, by Ninth Circuit Court of Appeals Judge Arthur Alarcon and Loyola Law School Professor Paula Mitchell, of correctional records reveals the stunning toll that legal proceedings take on the financial resources of our state. In the face of the staggering cost of capital punishment, California can no longer afford the legal proceedings required, by law, to put a person to death.”
As the Editorial Board wrote two weeks ago, “The study finds that since 1978, when voters reinstated capital punishment here in California, we have spent more than $4 billion on death penalty cases and executions. In those more-than-3 decades, thirteen people in total have been executed here – an average cost to us of $308 million per execution. The study estimates that if we don’t abolish the death penalty that we will have spent $9 billion on it by 2030.”
The truth is that we have already spent too much time and effort on the Topete case. It seems more likely that the defense for Mr. Topete will focus on the special circumstances and attempt to avoid the death penalty rather than challenge that he was the one that shot Deputy Diaz – a fact that would be difficult to dispute.
The Davis Enterprise earlier this week reminds us of the crazy and unpredictable path that this case has taken us. At each twist and turn along the way, the taxpayers of this county ought to hear the noise of a manual cash register, making a “cha-ching” sound. Of course, the Enterprise sanitizes the account, rendering it almost sterile.
If opening statements begin as scheduled on Tuesday morning at 8:30 am, we will have seen the beginning of the end of an exceedingly long process.
The controversy started immediately, as the public and reporters were locked out of the court room during Mr. Topete’s arraignment hearing.
The Sheriff’s Department would be blamed for the error, calling it a “mistake,” as the Sheriff’s Department gave preferential courtroom access to their own members.
Next came the effort by the Yolo County Public Defender’s Office, then representing Mr. Topete, to have all Yolo County judges recused from the hearing – a motion that included Defense Attorney Dean Johansson’s accusation of judicial collusion.
Public Defender Johansson told the court that other judges had their courtrooms for half an hour in order to allow deputies to fill up this courtroom. To substantiate this allegation, the public defender’s office had subpoenaed the surveillance videos from each courtroom.
“Legal experts interviewed Friday agreed that the defense would have a tough time winning its motion. But they said recent events in the case leave little doubt that it should be moved out of Yolo County voluntarily to avoid the appearance of impropriety,” the Sacramento Bee wrote at the time.
Mr. Johansson likely overreached with his argument, perhaps costing the opportunity to move the case from Yolo County. It allowed Judge Rosenberg to respond, “There is not a scintilla of evidence presented that I knew other departments were doing so, nor that I and any other judge ‘colluded’ to close our departments…”
He did agree, “The public and the press should never be barred from a criminal hearing or trial because of a locked door.”
It was a motion that pushed too far, though it did leave all judges at the time, except for Judge Richardson, to ultimately individually recuse themselves from the case.
Meanwhile, to the amazement of many, the case remains in Yolo County Court.
But we are not done. Then Public Defender Barry Melton removed his office from the case and was immediately replaced by Hayes Gable III of Sacramento and Tom Purtell of Woodland.
The Daily Democrat reported in August of 2008, “”Topete’s wife, Angelique Topete, told the Democrat Thursday she witnessed an argument between [Deputy Public Defender Dean] Johansson and Melton last week at their office in Woodland days after Melton filed his motion.”
The Democrat continued, “She said Johansson was concerned over the political connections Melton shared between Yolo County Sheriff Ed Prieto and Rosenberg.”
Mrs. Topete added, “In the process of Dean doing his investigation, he dug up a lot of stuff between Melton, Prieto and Rosenberg and that pissed Melton off.”
When the case was about to resume late last year, Mr. Topete fired his attorneys
Mr. Topete told the court the reason he wished to dismiss his counsel was simply due to his constitutional rights to represent himself. Mr. Topete complained to Judge Richardson that he was being refused access to the law library.
Yolo County DA Jeff Reisig dismissed the move as “a game for a defendant” and alluded that Mr. Topete might be doing this in response to the fact that Mr. Gable was not granted a continuance for this trial.
Judge Richardson granted Mr. Topete’s request to act as his own attorney. He said that the “right to self-representation is sacrosanct,” and that upon examining the motion, he believes that even though the motion was filed within a month of trial, Mr. Topete’s Faretta motion has merit.
However, representing himself proved an impossible task. Faced with inadequate time to research the case, lack of hours in the law library, lack of privacy and protection for legal product, Mr. Topete finally had enough and reluctantly took back the two attorneys he had dismissed just three months before.
The Vanguard spoke with Angelique Topete, the wife of the defendant, “It does not matter if he represents himself or if these attorneys represent him. If they insist on keeping it in Yolo County then he will get the death penalty.”
Privacy issues are part of the problem, as the jail was logging in videos of Mr. Topete preparing for his trial. Deputy DA Garrett Hamilton, who along with DA Jeff Reisig is prosecuting the case, admitted that he has seen these logs.
It is clear that the court forced the hand of Mr. Topete here, denying motions to house the defendant in a confidential space without video surveillance or to increase the amount of materials available to him at the jail, denying a motion for phone calls not to be monitored, and denying a motion to lift limitations on witness interviews.
Ms. Topete said that this had the feel of a lynch mob. “We just want him to get a fair trial. And we all know that is not going to happen.”
But that was not it either. The attorneys had conducted five weeks of jury selection this spring, including death-qualifying 92 people to hear the case. However, then-attorney Tom Purtell, 83, suffered a stroke on the weekend before the trial was to begin.
Mr. Purtell would withdraw from the case and was replaced with Sacramento Attorney Dwight Samuel. There are now indications that Mr. Purtell may return at some point.
Just remember all of which has occurred, all of the expenses that lie ahead, and the odds are that Mr. Topete will never be executed by the state even if he is convicted and sentenced to the death penalty – as expected.
In fact, if a bill by Senator Loni Hancock becomes a law, there might not even be a death penalty for much longer. Efforts are underway to eliminate the death penalty and replace it with life without the possibility of parole.
According to the bill’s author, at a time of “the heart-breaking cuts to public safety and public education,” we cannot afford the death penalty.
The Yolo Judicial Watch Editorial board agreed, arguing “Looking at the cost of the death penalty and what else could be done with the money, and given that the debt crisis is likely to take years to repair, we are compelled to agree and we support Hancock’s bill – SB 490.”
Unfortunately, DA Reisig sees a law enforcement officer who was brutally murdered, a young grieving family, and he is acting under the parameters of existing law, which means that Yolo County will likely spend $2 million to try to convict Mr. Topete of a capital crime and the State of California will spend $90,000 a year, giving him his own cell, until the day that Mr. Topete dies of natural causes.
—David M. Greenwald reporting
[quote]Unfortunately, DA Reisig sees a law enforcement officer who was brutally murdered, a young grieving family, and he is acting under the parameters of existing law, which means that Yolo County will likely spend $2 million to try to convict Mr. Topete of a capital crime and the State of California will spend $90,000 a year, giving him his own cell, until the day that Mr. Topete dies of natural causes.[/quote]
Aren’t you making a lot of assumptions here? You are assuming that Topete would plead guilty if given LWOP, and therefore money would be saved on his trial. How do you know Topete would plead guilty if given the option of LWOP?
Secondly, if the DA’s Office were not working on Topete’s trial, they would be working on someone’s else’s trial. The prosecution does not get paid “by the case”, but all who work in the office of the DA get paid a yearly salary, no matter how many cases they prosecute. (Someone else made this point yesterday.)
Thirdly, your computation of savings is off, at $90,000 a year for death row. If Topete is found guilty and goes to prison, the taxpayers will have to pay for him being housed in prison whether he gets LWOP or the death penalty. The death row housing already exists, so I am not quite sure why you think it would cost any more to house him there than in the general prison population.
The extra costs come in when it comes to all the extra appeals from the death penalty – that is where the savings would be, unless I’m missing something…
I do agree w you that this has been a somewhat bizarre case, beginning w the public lockout of the public from the courtroom. All sides contributed to the oddity of the case tho, including the defendant himself…
“You are assuming that Topete would plead guilty if given LWOP, and therefore money would be saved on his trial. How do you know Topete would plead guilty if given the option of LWOP? “
His wife told me that on the record.
“Secondly, if the DA’s Office were not working on Topete’s trial, they would be working on someone’s else’s trial. “
That is true they would be working another trial. However, that’s not where the added costs comes in. Capital trials are longer and more expensive at every step than other murder trials. You have two phases. There are two defense attorneys getting paid by the county by the hour. Both sides have several experts coming in that will be paid. The jury selection process went on for about eight weeks in total, that’s all time on the clock for the defense, for jury consultants, etc. You have security costs. The cost of housing Mr. Topete in Sacramento and transporting him over – for three years now. He is in isolation, so that adds to the cost.
In California, capital trials are six times more costly than other murder trials. That’s other murder trials, that doesn’t factor in to what the added cost would be over and above a plea agreement.
The length is typically 3.5 times longer, but there is also more preparation time.
“Thirdly, your computation of savings is off, at $90,000 a year for death row. If Topete is found guilty and goes to prison, the taxpayers will have to pay for him being housed in prison whether he gets LWOP or the death penalty. The death row housing already exists, so I am not quite sure why you think it would cost any more to house him there than in the general prison population. “
I actually understated it, it costs $90,000 MORE to house on death row than in general population. I’m trying to find a break down of it. I’ll find it and post it when I get it.
I now see where the figure comes from, this is from a 2009 LA Times article:
“It costs the state about $49,000 a year to house each prisoner, according to corrections department statistics. [Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation] said her department has never put a figure on the cost for “more staff-intensive” death row housing, but a state commission of experts last year estimated that the additional security and legal spending for capital inmates costs taxpayers $138,000 per death row prisoner each year.”
Death Row at San Quentin is operated like other segregated housing units in the state (SHU and Administrative Segregation). When any condemned inmate leaves their cell for any reason and need to leave East Block or the Adjustment Center, they are accompanied by two correctional officers. When they leave SQ to go to off-site medical visits they are accompanied by several more. Compared to the general population, where about 25% of inmates are in the mental health system, there are more than 30% of death row inmates in the mental health system. Because the way the law is written, CDCR has to have special mental health programs for death row inmates because we can’t transport them any where but Vacaville for treatment of the severest mental health problems.
They get more storage space because of the their legal status. They require a separate unit of correctional counselors because of their special legal status. They are also more litigious, as far as I can tell. I once did an post-mortem mental health evaluation on an inmate who died while on death row and this guy was suing officers in Marin County small claims court and federal district court. (I think he was particularly litigious.)
Their habeas corpus process is really expensive. The few Atkins (mental retardation) cases that I know about have had huge expenses in mitigation research. I read one mitigation report that was several hundred pages long and investigated this inmate’s life from birth.
And although I don’t know as much as some, aren’t death-qualified juries more expensive? There are actually two trials to be completed.
All in all, given how poorly we administer the law on the books, it just seems like throwing good money after bad.
“Privacy issues are part of the problem, as the jail was logging in videos of Mr. Topete preparing for his trial. Deputy DA Garrett Hamilton, who along with DA Jeff Reisig is prosecuting the case, admitted that he has seen these logs”
Why would prosecutors from the DA’s office be allowed to see the logs?
“nfortunately, DA Reisig sees a law enforcement officer who was brutally murdered, a young grieving family, and he is acting under the parameters of existing law, which means that Yolo County will likely spend $2 million to try to convict Mr. Topete of a capital crime and the State of California will spend $90,000 a year, giving him his own cell, until the day that Mr. Topete dies of natural causes.”
You forgot to mention DA Reisig also gets to show how “He’s tough on crime” for his next campaign.
To rdcanning: I can understand that the prison system maintaining a death row adds additional costs to the prison system as a whole. But what I was really referring to was will Topete as an individual, if found guilty and sentenced to death, cost the state that much more (other than the appeals process) to be housed on death row? A death row already exists, the guards to escort are already in place, the extra storage space already exists, etc.
I’m all for doing away w the death penalty, for several reasons. But I guess I am not totally convinced the $90,000 figure dmg is quoting for Topete in particular is an accurate assessment.
If Mr. Topete was going to accept a plea of LWOP do we know if he was even offered a plea? It certainly would be better for all involved.
Privacy issues are part of the problem, as the jail was logging in videos of Mr. Topete preparing for his trial. Deputy DA Garrett Hamilton, who along with DA Jeff Reisig is prosecuting the case, admitted that he has seen these logs.
DDA Garret Hamilton if he as seen privileged information should be removed from the case. Why is the jail logging information of Mr. Topete preparing his case this violates sacrosanct constitutional rights and is outrageous.
There’s an expectation of privacy in county jails?
The door was locked at the Preliminary Hearing so that the victim’s family could enter the courtroom without bumping into media or Topete’s family. The deputies then forgot to unlock the door after they were seated. Now the Sac Bee reports that the victim’s family sobbed and wailed loudly during opening statements by the prosecution, prompting the defense to immediately ask for a mistrial and the Judge to caution the jury to focus on the evidence. I think that the victim’s family needs to pull it together or not attend the trial. Maybe the DA should stop the circus and allow Topete to plead guilty and receive Life/no parole.
Ryan: I was there and have a report for tomorrow.
Two things, one the victims family should not have been in there during the video. It was disturbing for me and any observer to see. And yes, I think the defense should be entitled to a mistrial, one woman was screaming so loud in the hall everyone in the entire courthouse could heard.
Elaine,
I’m not sure what you mean. He will be an additional inmate. Of course he will use the same CO’s who are there and the staff will just add him to their rolls. But he will be an added expense to the system, just like all other inmates – maybe not the full $90,000 – but more than an “average” inmate moving into CSP Solano or another mainline prison.
Themis, “You forgot to mention DA Reisig also gets to show how “He’s tough on crime” for his next campaign”
Seeing as how he ran unopposed last time and incumbent DA’s are rarely challenged, not to mention when they are…not often defeated, I’m beginning to doubt that Reisig’s decisions are so largely “political” in that sense as some here contend.
“There’s an expectation of privacy in county jails?”
There is an attorney-client privilege that is supposed to supersede all other arrangements. However, when he represented himself, he was not afforded that right which it impossible for him to represent himself.