One of the big questions coming into this trial was how would the defense defend a case in which there was virtually no doubt that the defendant shot and killed Deputy Tony Diaz.
That strategy by the defense has become clearer now. A defense expert will be allowed to testify that Mr. Topete’s mental disorders caused him to “acutely decompensate” and also “lose control over his behavior.”
However, efforts by the defense to get the expert to testify that Mr. Topete “snapped,” or that he otherwise lacked premeditation, failed.
The defense argued that, while the law makes it clear that experts cannot testify that Mr. Topete’s intoxication “negated his capacity to form the requisite mental state, the defense is certainly entitled to present evidence through experts on the issue of whether or not Mr. Topete actually formed the required intent.”
They thus argued that alcohol consumption is admissible as to whether the defendant “actually formed a required specific intent” and therefore whether the murder was “premeditated, deliberated, or harbored express malice aforethought.”
The defense argues that, in order for a jury to convict an individual of first degree murder, they have the burden to prove that such a killig was in fact “willful, deliberate, and premeditated.”
However, the prosecution can always allege that it was a first degree murder through a felony murder theory, whereby a homicide committed during the act of committing a felony is held to be murder. The problem is that conclusion will not allow them to get to the special circumstances needed for the death penalty.
Lead Defense Attorney Hayes Gable, in a 30-minute opening statement, argued that Mr. Topete suffers from a number of mental disorders and he “lost control” on the night in which he shot and killed Deputy Diaz.
Unfortunately for Mr. Topete, it looked at times that Mr. Gable was grasping at thin reeds in hopes of finding something tangible that would convince the jury to choose life in prison, rather than the death penalty.
Mr. Gable argued that psychiatric experts would testify that Mr. Topete suffers from alcoholic dependency, attention deficit hyperactivity disorder, post-traumatic stress disorder and anti-social disorder.
Mr. Topete was described as a broken man. He had gotten out of prison and wanted to change his life with his pregnant wife. He was unable to hold jobs and eventually unable to live in the home in Davis that was costing the couple $1500 a month in rent.
The defense vividly described his trauma and turmoil, waking in the middle of the night screaming.
In the afternoon, his wife, Angelique Topete, testified that Mr. Topete was “very jumpy” after being released from prison. He did not like loud noises. He had nightmares and would wake up with breathing difficulties.
She testified that these nightmares occurred almost every night and they left him sleep-deprived and irritable.
Mr. Topete was forced to rely on his wife’s income, and there were points when they had no income. For instance, Angelique had a problem receiving her maternity leave from her job at Lowe’s, because they said she had been pregnant before she began working there and therefore did not qualify for maternity leave benefits.
They struggled financially, borrowing money from Mr. Topete’s mother to survive.
According to Mr. Gable, all of this wore on Mr. Topete. The combination of alcohol problems and arguments with relatives contributed to the ultimate breakdown for Mr. Topete when, heavily intoxicated, he would lose control over his behavior during his encounter with Deputy Diaz.
“The defense is confident that when you apply the law to the case you will find that Mr. Topete did not act with premeditation or deliberation, nor did he lie in wait for Deputy Diaz,” Mr. Gable told the jury.
The prosecution has attempted to paint Mr. Topete as a brazen gang member, eager to put in work to impress gang leaders in prison. They argued he lay in wait for Deputy Diaz, setting him up and killing him in cold blood.
In contrast, the defense painted Mr. Topete as a troubled soul, angry and out of place in the world, unable to provide for his family and turning to alcohol in violation of his parole.
Mr. Gable would call the shooting “a terrible tragedy that had nothing to do with gangs.”
Mrs. Topete would testify that on the day in question, Mr. Topete was supposed to spend the day, Father’s Day, with the couple’s young child. Instead, he spent time with his cousins, drinking and betting on horse racing.
As she had testified earlier in the trial, when he came to pick her up, she found him slumped over the wheel and passed out.
The prosecution has attempted to counter this testimony with an expert who testified that Mr. Topete could have had a blood alcohol level as high as .20, but would not have been able to lead the Deputy on a high speed chase with that high a consumption of alcohol.
The prosecution has made the gang ties the centerpiece of the case. In the prosecution’s opening, Garrett Hamilton, Deputy District Attorney, began with the words “Norteño Gangs” and described in vivid details Mr. Topete’s gang affiliations in prison. Mr. Hamilton attempted to portray Mr. Topete as a gang leader who was out to kill a cop as a way to boost his reputation on the street
The defense’s account argued that Mr. Topete’s act “had nothing to do with gangs at all.”
Instead, they describe Mr. Topete as drunk and troubled.
Mrs. Topete would describe their marriage and financial problems. She testified that she had threatened to leave him due to the fact that she believed he was cheating on her.
She would testify that they had no physical fights, from the arguments that she and Mr. Topete had regarding their finances or his drinking.
She testified that, despite these troubles, she was not aware that he was making money in illegal ways while he was out on parole.
The prosecution tried to portray Mr. Topete as receiving calls at night from girls wanting to buy drugs, but Mrs. Topete said, “No, I said girls would call at night.”
While Mrs. Topete said that she never saw anything illegal that Mr. Topete did while out on parole, she suspected something was wrong.
“I believed he was doing things he shouldn’t,” she said.
—David M. Greenwald reporting
[quote]However, the prosecution can always allege that it was a first degree murder through a felony murder theory, whereby a homicide committed during the act of committing a felony is held to be murder. The problem is that conclusion will not allow them to get to the special circumstances needed for the death penalty.[/quote]
[quote]The prosecution has made the gang ties the centerpiece of the case. In the prosecution’s opening, Garrett Hamilton, Deputy District Attorney, began with the words “Norteño Gangs” and described in vivid details Mr. Topete’s gang affiliations in prison. Mr. Hamilton attempted to portray Mr. Topete as a gang leader who was out to kill a cop as a way to boost his reputation on the street[/quote]
Now I assume you better understand why the prosecution is introducing the gang evidence and making its strongest case, bc it is the only way to obtain a death sentence – which I’m sure the prosecution/law enforcement strongly feel is warranted in this particular situation. You don’t have to agree with the death sentence to understand the rationale. And reasonable minds can differ as to whether the death penalty is an appropriate tool to fight crime… and as you know, I am a death penalty opponent…
[quote]Unfortunately for Mr. Topete, it looked at times that Mr. Gable was grasping at thin reeds in hopes of finding something tangible that would convince the jury to choose life in prison, rather than the death penalty.
Mr. Gable argued that psychiatric experts would testify that Mr. Topete suffers from alcoholic dependency, attention deficit hyperactivity disorder, post-traumatic stress disorder and anti-social disorder.[/quote]
Now how would the defense make their case if the defendant got on the stand testifying in his own defense and appeared calm, cool and collected? The defense is doing just about the only thing it can in a case like this – putting a theory out there of diminished capacity and keeping their defendant as far away from the witness stand as they can. An attorney’s case is only as good as his/her client, and the defense has a very tough hill to climb…
Of course Topete has severe psychological problems. Of course the defense is going to try that tactic. Why is the prosecution surprised? Topete has little else to talk about at trial.
The prosecution should have offered life without possibility of parole, and been done with this case. What a huge waste of precious judicial and county resources.
And if they can’t make the case – or even establish the possibility of diminished capacity – then they may have a harder time during the penalty phase when they present mitigation data. It will be interesting to see what the psychiatric experts come up with. And what the prosecution does during cross of those experts.
“Now I assume you better understand why the prosecution is introducing the gang evidence and making its strongest case, bc it is the only way to obtain a death sentence – which I’m sure the prosecution/law enforcement strongly feel is warranted in this particular situation. You don’t have to agree with the death sentence to understand the rationale. And reasonable minds can differ as to whether the death penalty is an appropriate tool to fight crime… and as you know, I am a death penalty opponent… “
Not if the gang angle isn’t plausible, that’s been my complaint. I don’t see the evidence that he did anything other than panic when faced with the prospect of going back to prison on a third strike offense.
One thing people are not talking about with regards to this case, is the likelihood that this cop would still be alive if not for the three strikes law. Fact is the crimes he had committed would have been worth only a year or two in prison absent a three strikes law which elevated them to life.
“Now how would the defense make their case if the defendant got on the stand testifying in his own defense and appeared calm, cool and collected? The defense is doing just about the only thing it can in a case like this – putting a theory out there of diminished capacity and keeping their defendant as far away from the witness stand as they can. An attorney’s case is only as good as his/her client, and the defense has a very tough hill to climb… “
I don’t think this is going to work. Frankly probably nothing would have, but I would have gone with the panic fire and have him get up there and explain his actions and what he was thinking. This seems like too much of a shot in the dark to work.
[quote]One thing people are not talking about with regards to this case, is the likelihood that this cop would still be alive if not for the three strikes law. Fact is the crimes he had committed would have been worth only a year or two in prison absent a three strikes law which elevated them to life. [/quote]
Blaming three strikes for the death of a law enforcement officer? I don’t see how you can blame three strikes in this. A DUI isn’t going to get you life in prison, even with a misdemeanor child endangerment charge. Please show me where a misdemeanor DUI charge has led to life in prison. If he would have complied and stopped he would have had a parole violation, maybe a couple of years. It was the felony reckless evading that could have elevated the case to serious time. All choices Topete made.
Topete spent years in Pelican Bay after attempting to murder someone with a gun. He has shown a predisposition to trying to kill someone. If Topete was a low level criminal (ID theft, shoplifting, ect) you might have a point. Since we already know Topete holds little value for human life(attempted murder, getting in a high speed pursuit with his child in the car, and shooting multiple rounds from an assault rifle at an officer) I don’t think it reasonable to say three strikes cause this. A man who doesn’t care about others caused this.
[i][quote]”Blaming three strikes for the death of a law enforcement officer? I don’t see how you can blame three strikes in this.”[/quote][/i]Isn’t it obvious, Mister? “The likelihood that this cop would still be alive if not for the three strikes law” is a subtle, if somewhat crude, call for a more restrictive “two strikes” approach. That way, sociopaths with violent gangsta histories like Topete’s would find themselves permanently at Pelican Bay before they get yet another chance to kill.
In the meantime, we observe frantic defense efforts to switch strategies and pull out all the Twinkie PTSD stops hoping for some diminished capacity/reduced charges. It won’t be easy now that the prosecution has presented a month of convincing gang (and other) evidence.
[quote]Not if the gang angle isn’t plausible, that’s been my complaint. I don’t see the evidence that he did anything other than panic when faced with the prospect of going back to prison on a third strike offense. [/quote]
[quote]I don’t think this is going to work. Frankly probably nothing would have, but I would have gone with the panic fire and have him get up there and explain his actions and what he was thinking. This seems like too much of a shot in the dark to work.[/quote]
But then you are not qualified to make that judgment. The prosecution and defense attorneys with years of experience are qualified to make that judgment. You are certainly entitled to your opinion and we can agree to disagree 🙂
[quote]One thing people are not talking about with regards to this case, is the likelihood that this cop would still be alive if not for the three strikes law. Fact is the crimes he had committed would have been worth only a year or two in prison absent a three strikes law which elevated them to life.[/quote]
This statement is absolutely ridiculous in my opinion, and flies in the face of what we know about Topete’s character/background…
“But then you are not qualified to make that judgment.”
Are you suggesting people who listen to the evidence are not qualified to judge the case? People like “us” are on the jury and that is what they have been asked to do.
[quote]Are you suggesting people who listen to the evidence are not qualified to judge the case? People like “us” are on the jury and that is what they have been asked to do. [/quote]
Only a defense attorney can decide whether it is best to put his client on the stand or not – a jury does not make that decision. Only the prosecution gets to decide what case s/he puts on, not the jury. That was the issue dmg and I were discussing. Dmg seems to think he knows better than the prosecution or defense how to proceed with a case, or whether the defendant should testify on his/her own behalf. Dmg is certainly entitled to his opinion, but he lacks the experience and certification to make such judgments. He is speaking from a very limited knowledge of seeing trials over a period of ? months. He has never been grilled on the stand as a witness, nor been a lawyer doing trial work. That was the point I was making.
[quote][b]Dmg seems to think he knows better than the prosecution or defense how to proceed with a case,[/b] or whether the defendant should testify on his/her own behalf. Dmg is certainly entitled to his opinion, but he lacks the experience and certification to make such judgments. He is speaking from a very limited knowledge of seeing trials over a period of ? months.[/quote]
Point well taken…
(emphasis added)