Earlier this week, the prosecution in the Topete trial attempted to introduce DNA evidence that they had collected after the trial had begun, destroyed and failed to discover to the defense. Judge Richardson, questioning the fairness of the prosecutor, ultimately excluded the evidence from court – evidence that seemed ambiguous at best.
The motion continues, “Specifically, it was discovered that the Defense now intends to call numerous mental health professionals to testify in the guilt phase that the Defendant suffered from mental disorders that prevented him from forming the requisite intent for the crime of first degree murder.”
At the heart of the controversy now is whether the jury can view a video that the prosecution is calling a confession by Marco Topete.
The prosecution claims that on June 16, 2008, “Defendant Marco Topete gave a statement to law enforcement officials in which he confessed to committing the shooting in this case.”
In a separate motion, the prosecution writes that Mr. Topete claims that “the Miranda advisement was defective because the defendant did not explicitly or impliedly waive his rights.”
They add, “He does not explain how his advisement was ‘defective.’ On the issue of the initial, pre-interrogation waiver, he claims that he merely indicated he understood his rights, he did not waive them. He then states that he invoked at least six times.”
“The question whether a suspect has waived the right to counsel with sufficient clarity prior to the commencement of interrogation is a separate inquiry from the question whether, subsequent to a valid waiver, he or she effectively has invoked the right to counsel,” the prosecution argues.
“Far from being coerced or controlled, Topete set the rules for his discussion with the police. He firmly avoided answering questions relating to the crime, but was clearly willing to talk to police and answer other questions,” the brief argues.
The prosecution is claiming that Mr. Topete was only “selectively” waiving his right to remain silent, “so that he may have answered some questions but not answered others.” According to Mr. Topete, “Each time he would refuse to answer specific questions, it should have been taken to mean an invocation that was violated and any subsequent statements should be excluded.”
However, the prosecution argues that such a “selective waiver” is not law in California.
The court has now excused the jury until next Thursday, September 15. The defense filed a motion to exclude the public, later amended to request that Judge Richardson view the video in chambers rather than in open court.
DA Jeff Reisig would argue that this was “a roundabout way” of closing the hearing and added that it was “improper to take evidence in a suppression hearing into chambers.”
The defense pointed out that the people had no problem with the judge reviewing the video reconstruction of the crime in chambers.
“I’m a bit baffled with the people having no issue with the court viewing the simulation video in chambers,” Defense Attorney Hayes Gable told Judge Richardson on Thursday.
Judge Richardson ruled that he would view the confession privately, but prosecutors refused to turn over the video to the judge for viewing.
Judge Richardson ruled that he needs to view the video in order to determine its admissibility. The defense was fearful that even a viewing outside of the jury would, with media coverage of the trial, get back to the jurors.
Mr. Reisig countered that the concern that jurors would see news coverage of the confession are unfounded since the judge has instructed jurors to avoid watching or reading about the trial.
“The statement would be out in the public domain,” Judge Richardson said. “Would that be acting responsibly?”
Mr. Reisig countered, “I’m not trying to be argumentative,” as he refused to turn over the video.
Judge Richardson countered, “The court believes it has inherent authority to review this material at this time.”
When Judge Richardson made his ruling, he asked the prosecution to provide him with the video and transcript. DA Reisig declined to do so. Rather than force a showdown, Judge Richardson asked the defense for a copy.
When Defense Attorneys Hayes Gable and Dwight Samuel indicated that they did not have a copy of the video, they asked the judge to order the prosecution to turn over their copy. However, Judge Richardson avoided that request and asked the defense to look for its copy.
Eventually the defense located a copy of the video.
If Judge Richardson determines that the confession is admissible, the jury would see the evidence when it returns next Thursday.
—David M. Greenwald reporting
Would one of you with expertise in the law please clarify under what conditions either the prosecution or the defense can with hold evidence from the judge for previewing ?
Follow up question. If either side refuses a judges request, can he or she not disallow it? What are the rules in that case?
[i][quote][b]”DA Refuses to Hand Over Video of Confession [u]After Judge Rules Against Them[/u]”[/b]
“Judge Richardson ruled that he would view the confession privately, but prosecutors refused to turn over the video to the judge for viewing….Mr. Reisig counted, “I’m not trying to be argumentative,” as he refused to turn over the video.”[/quote][/i]Lots more implication here than you even try to support. “Judge rules against DA, so DA takes his ball and goes home.” What’s the relationship you’re making between the DNA ruling and end of the week’s failure to turn over video? Why do you see causality?
Actually, the defense also “refused” to turn over its copy, but obviously you approve of their excuse–or, at least, you report on their “missing video” justification. But, nothing about the prosecution’s excuse. Should we assume the DA just gave the judge the finger?
What theory did the prosecution advance to suggest that it has a right to withhold the video? Was no rationale offered in court for the “refusals” you report without the slightest details?
[quote][i]”[u]The prosecution is claiming[/u] that Mr. Topete is only ‘selectively’ waiving his right to remain silent, “so that he may have answered some questions but not answer others’.” According to Mr. Topete, ‘each time he would refuse to answer specific questions, it should have been taken to mean an invocation that was violated and any subsequent statements should be excluded’.”[/i][/quote]It seems the defense, rather than the prosecution, would be making such a claim. The DA, I’d think, would be making the opposite argument, that the defense has no legal basis to expect the DA to make such assumptions as an interrogation proceeds.
What theory did the defense advance to suggest there’s a right to a “selective waiver assumption”?
What’s the relationship you’re making between the DNA ruling and end of the week’s failure to turn over video? Why do you see causality?
The relationship I see is that the reason that the DA attempted to get the DNA evidence and the reason they tried to get the admission admitted is that the defense changed their tactics.
“Should we assume the DA just gave the judge the finger? “
You can see the other media coverage has reported similarly. You are missing the fact that the DA is seeking to admit the evidence, that places a much higher burden on them.
“What theory did the prosecution advance to suggest that it has a right to withhold the video? Was no rationale offered in court for the “refusals” you report without the slightest details? “
They were never pressed by the judge to offer a response.
“What theory did the defense advance to suggest there’s a right to a “selective waiver assumption”? “
I don’t know. The point was not advanced in court as they are dealing with the video issue and I was unable to find the motion online at the court’s website. So I only have the arguments advanced by the DA and their representations of the defense arguments.
[quote]Would one of you with expertise in the law please clarify under what conditions either the prosecution or the defense can with hold evidence from the judge for previewing ?
Follow up question. If either side refuses a judges request, can he or she not disallow it? What are the rules in that case?[/quote]
If the evidence is to be introduced for viewing by the jury, in so far as I am aware, the judge should be able to preview any such evidence. If one side or the other refuses the judge a preview of evidence, the judge can just preclude the evidence from ever being shown to the jury.
From a legal website (sorry, didn’t save which one, so cannot give proper attribution):
[quote]pretrial conference: A meeting of the judge and lawyers to discuss which matters should be presented to the jury, to review evidence and witnesses, to set a timetable, and to discuss the settlement of the case.[/quote]
Seems odd the defense would claim they did not have (or could not find?) their copy of the video.
This video is potentially very important to both the defense and prosecution; one would think the defense should d****ed well know the whereabouts of their copy of the video.
[quote]This video is potentially very important to both the defense and prosecution; one would think the defense should d****ed well know the whereabouts of their copy of the video.[/quote]
I’m going to be quite blunt here – IMO this is nothing more than the normal give and take that goes on during trial. Issues come up, as a defense attorney/prosecutor you cannot put your hands on things right away; you make a lame argument off the cuff. YJW expects perfection in criminal trial work, which is not realistic or reasonable.
I was talking to someone from the defense bar yesterday, who is following YJW. I asked him to be candid – and he agreed with me as stated above. As attorneys, we know that trial work is grueling, an attorney has to think very quickly on his/her feet, an attorney’s case is only as good as the evidence gathered/the client.
As one investigator put it to me, you have to think of criminal trial work much like making sausage. It is not always clear what goes into it, but what comes out the other end is a “tasty” finished product. Now are defective sausages made now and again? Of course, as is true of any process – perfection is not possible nor reasonable to expect.
So I don’t find it all that unusual that the defense could not put their hands on the video at that moment. It isn’t a big deal – eventually they got it to the judge. I don’t know the reason the prosecution had for not giving the video to the judge, but obviously it didn’t work. I don’t see any of this as particularly earth shattering.
When it was a big deal was when the public was locked out of the Topete arraignment. That was completely inappropriate and definitely worrisome.