As we await the jury’s verdict, I will save you the suspense, this case has been over for a long time, and during District Attorney Jeff Reisig’s brilliant closing, he buried Marco Topete.
The defense responded with a very cosmetic defense, first trying to present reasonable doubt on three of the prison incidents, and then in a painfully cumbersome process laid out why Mr. Topete never had a chance to make something of his life. And they are right, but they never matched the intensity and urgency of Mr. Reisig’s appeal.
As often is the case in public life, the simplest argument wins the day. And Mr. Reisig’s was simple and able to cut through the rhetorical binds to reach our heart. You have to be cruel and heartless not to feel sympathy for the victim – and you should anyway.
But all of that said, when you strip it down, the death penalty is just a very flawed system, even if you ultimately believe as Mr. Reisig does, that there are some people who do things so bad that they deserve, under the due process of law, to forfeit their lives.
I am not one of those. I do not believe we have the right to kill people, except in direct self-defense. I don’t believe that society teaches people not to kill by killing. I don’t think that expresses the sanctity of life. I think that, as bad an action as Marco Topete took on that night, there is still humanity in him that deserves to live, even if it is a life in prison for the rest of his life.
Unfortunately, this is the aspect of Mr. Topete that the defense did the worst job of portraying. They were never really able to counter the emotional weight of Jeff Reisig’s argument and persuade the jury that Marco Topete is not a monster, that he is a person who did something horrible and deserves to be punished for that, but he is not a monster.
They needed to give him his humanity back, and then make a more poignant and emotional case that this is a guy with a horrible upbringing, with anger management issues, who was never given the tools to be able to cope with the pressures of the outside world.
As Jeff Reisig pointed out, this is not the forum to debate the death penalty, there will be another venue for that. This is an argument about why seeking the death penalty was silly and costly in this case, and why the death penalty as it is currently administered is fatally flawed.
I am going to make three points here.
First, one of the key arguments that Mr. Reisig made is that Marco Topete was an evil, unrepentant monster, the worst of the worst, who was a danger to those outside of prison and whose acts in prison presented a danger to those around him.
He said that Marco Topete has rejected rules of society, and no one is safe from Marco Topete, even behind prison walls. This evil will continue to thrive in prison for the rest of his life.
To back up that powerful narrative, Mr. Reisig then presented a very one-sided version of Mr. Topete’s prison record to show the danger that he represents. Now, if you talk to people close to the defense team, there is a good deal of dispute about that record that they really never adequately presented, but even beyond that, there is a tremendous flaw in the logic.
Everyone knows it, but no one has the lawful power to argue it.
Dwight Samuel came the closest to doing so when he attacked the “no one is safe” argument. That argument was objected to because the jury cannot consider factors of post-sentencing living situations when weighing the death penalty.
Mr. Samuel would argue that the DA opened the door for this and the judge agreed, but all Mr. Samuel pointed out is that Mr. Topete, regardless of the result, would be housed in solitary confinement 23 hours a day with no human contact – ironically the same conditions that he endured for 9 years at the SHU (Security Housing Unit) and that probably contributed to the murder of Deputy Diaz.
What nobody was allowed to argue is that first, even if Mr. Topete is sentenced to death, he is going to spend a minimum of 20-25 years on death row before being executed and the chances of his even being executed are slim and none.
In other words, Mr. Reisig argued to the jury they need to impose the death penalty on Mr. Topete because he is a danger to those in prison, but even if they impose the death penalty, he will spend 20 to 25 years in prison, minimum. And even more ironic is that he is going to be 60 to 65 years old, at minimum, if he is ever executed, and at that point he will be a threat to very few.
So, one of the key arguments that Mr. Reisig makes is made irrelevant by the realities of the system. And no one is allowed to argue otherwise.
Second, Mr. Reisig impeached the credibility of the mitigation experts hired by the defense, noting that they were biased against the death penalty and very expensive.
Mr. Samuel meekly argued that the defense experts are among the tops in their field. It is kind of ironic that prosecution brings in law enforcement officers with minimal amounts of training and calls them experts, and when the defense brings in guys who testify before Congress and the United Nations, their experts are mocked.
But to attack the integrity of the experts based on their cost is somewhat ironic, given the overall cost of the trial, which the District Attorney has complete control over.
Think about how much more the county and state are spending on this case. You have a mandatory two attorneys. You have two phases. You have hundreds of thousands of dollars in costs for experts in both phases on both sides.
You have the three-year cost of housing Mr. Topete in Sacramento, with transportation costs and added security costs. One of the things not talked about is the fact that last year the Sheriff’s Department laid off a number of deputies. Well, a lot of those guys are back working in the courthouse because of the need for additional security.
We will probably never know how much this trial cost this county over and above what it would have cost if they had offered an LWOP plea from the beginning, or even had an LWOP trial.
Finally, we have the victim impact, which is a factor in aggravation. From all accounts, Deputy Diaz was loved by his family, loved by his friends, respected if not loved by his colleagues. He rose from being an immigrant, dreamed of being a law enforcement officer, and was just in his 30s when he was struck down.
I understand the argument that we ask peace officers to put themselves in the line of fire to protect others in society.
But when it comes down to it, I think the victim impact statements should not be admissible and should be irrelevant. It should not matter if Deputy Diaz is a hero or a scumbag. It should not matter that he was a police officer or a drunk, living in the gutter.
A life is a life. One of the biggest biases in the death penalty is not just that people of color are more likely to get sentenced to death, but victims who are white or, in Mr. Diaz’s case, are peace officers are more likely to trigger sentences of death.
That bias is a huge problem for the death penalty, because it suggests that Deputy Diaz’ life is worth more than a random guy on the street.
The second we start attaching gradations of value to life, we devalue life as an entity to be sanctified unto itself. That is a tragedy.
All of the victims in this case suffered enormously. But the punishment should not be based on the amount of suffering, because it implies that the person with more friends and more family is somehow more important than the person who lives life alone.
And in the end, despite the brilliance of Jeff Reisig’s closing comments, he could not save the death penalty from itself.
That is the worst part. I mentioned yesterday that he tried to take the choice away from the jury. By that I meant that he tried to put the onus of this crime on Marco Topete, so that the jury did not think that they were voting on whether or not to kill a person.
The biggest tragedy is I don’t know how we can call upon a group of people to make a decision to terminate someone’s life. We put all other sentencing decisions in the hands of judge who can coldly weigh the law and apply it. Here we make emotional appeals to a group of citizens who did not volunteer and ask them to make the horrible choice of weighing life versus death.
I just don’t believe that is right. Moreover, as we have mentioned previously, they cook the books. We have this emotional argument and we exclude from making the decision anyone who, in good conscience, opposes the death penalty. So we have selected a jury that, from the start, may be biased toward the death penalty.
As I left the courthouse on Tuesday, after spending an entire day listening to arguments, I just felt empty. Empty that in the year 2011, we are still arguing about worth and value of life, and making subjective balances of aggravation and mitigation in determining whether someone else lives or someone else dies.
It would be one thing if we could ease the pain of suffering for those who loved Mr. Diaz, but I just saw, on the faces of seasoned law enforcement, pain. It would be one thing if we could bring Tony Diaz back to his family. But we can’t.
So in the end, all we are doing is deciding whether or not to kill a man and call it justice. But it is not justice that we seek, it is vengeance. And vengeance is empty.
—David M. Greenwald reporting
Its about time you said something nice about the DA.
“But all of that said, when you strip it down, the death penalty is just a very flawed system even if you ultimately believe as Mr. Reisig does that there are some people who do things so bad, that they deserve under the due process of law to forfeit their life.
I am not one of those. I do not believe we have the right to kill people except in direct self-defense. I don’t believe that society teaches people not to kill by killing. I don’t think that expresses the sanctity of life. I think as bad an action as Marco Topete took on that night, there is still humanity in him, that deserves to live, even if it is a life in prison for the rest of his life.”
I think it is worth noting that John Paul II in his encyclical about the sanctity of life made an exception for the most heinous crimes. Reisig makes this theological case calling Topete a “monster.”
What is debatable is whether the death penalty is a waste of money.
If we were executing people the cost would be debatable, since we are not, I don’t see how it is debatable.
As I understand it, there few appeals of LWOP cases… not true of DP cases, as I understand it… if Mr. Topete is sentenced to death, we get to pay all his room, board, medical, dental, AND legal fees until he is executed or dies of other causes. The difference between DP & LWOP… legal expenses… talk about “unions”… a blank check for the attorneys representing BOTH Mr. Topete, and the State… nice work if you can get it…
We executed Tookie Williams only six years ago, Not that long ago but a glacial rate by today’s standards.
Don’t forget that Geodano Bruno, who was burned at the stake in 1600 for saying the stars were suns that were surrounded by planets, served as a deterrent for Galileo in 1633, causing him to recant that the earth orbited the sun even though Italy used the death penalty much more rarely than Spain during the inquisition.
DMG: “As we wait the jury’s verdict, I will save you the suspense, this case has been over for a long time, during District Attorney Jeff Reisig’s brilliant closing, he buried Marco Topete. That’s right, I called it brilliant and it was.”
You could have fooled me that you thougth the DA’s closing arguments were brilliant, based on your article from yesterday, that was critical of the DA’s closing arguments, but laudatory of the defense…
DMG: “They needed to give him his humanity back, and then make a more poignant and emotional case that this is a guy with a horrible upbringing, with anger management issues, who was never given the tools to be able to cope with the pressures of the outside world.”
A bad background is never an excuse for murdering anyone. Many people come from bad backgrounds, perhaps even worse than Topete, but they don’t go around murdering others.
DMG: “As I left the courthouse on Tuesday, after spending an entire day listening to arguments, I just felt empty. Empty that in the year 2011, we are still arguing about worth and value of life, and making subjective balances of aggravation and mitigation in determining whether someone else lives or someone else dies.”
We are arguing the worth of life – bc Topete chose to coldly and brutally snuff out the life of another human being with malice. You seem to want to blame the legal system for the actions of Topete…
I think it’s absolutely horrible and reprehensible what Topete did, and I don’t defend his actions. But the logic sickens me that a father will be executed. He can’t do a whole lot to impact his child’s life from behind bars, and his actions already indict him as an unfit father to be directly involved in her life. But I think he has a chance communicate some positive messages to her in a way that might offer some meaning to the stigma that she will carry all her life.
[quote]I think it’s absolutely horrible and reprehensible what Topete did, and I don’t defend his actions. But the logic sickens me that a father will be executed. He can’t do a whole lot to impact his child’s life from behind bars, and his actions already indict him as an unfit father to be directly involved in her life. But I think he has a chance communicate some positive messages to her in a way that might offer some meaning to the stigma that she will carry all her life.[/quote]
I very much respect your right to hold these views. And I will preface what I am about to say by noting I am an opponent of the death penalty because too many mistakes are made (and even one is too many). I divorced my husband some 25 years ago. He has had ample opportunity to communicate with his children over the years. And I can honestly say it has been nothing but detrimental to my children. You are assuming Topete will give his daughter positive messages, when the exact opposite may be true. He could actually cause her a great deal more harm within his lifetime, however long that is.
I remember having a discussion with my dad, when I first was divorced. I insisted no good was going to come of my ex-husband’s relationship with his children. My father insisted I was wrong, that every child needs to know their father. It is what the courts insisted as well. I held my tongue for years. Now that the children are grown, even my father agrees in this particular case he was dead wrong.
Now don’t get my wrong – I am a huge proponent of father’s rights, parental visitation, and so forth. But some parent-child relationships are so toxic, the children would be much better off not knowing a parent who will give them nothing but grief. I suspect Topete fits into that category…
Sorry, but just had to speak out on the issue you raised – it touched a raw nerve…
“You could have fooled me that you thougth the DA’s closing arguments were brilliant, based on your article from yesterday, that was critical of the DA’s closing arguments, but laudatory of the defense… “
I think you very selectively read my writings. And you also jump to conclusions based on only a few statements.
“A bad background is never an excuse for murdering anyone. Many people come from bad backgrounds, perhaps even worse than Topete, but they don’t go around murdering others. “
First of all, your use of the term “excuse” is misplaced. We are talking about the mitigation between “life” and “death” in penalty.
Second, your comment suggests some linear relationship between background and behavior, when we all know there are additional factors such as personality disorders among other factors. Understanding Mr. Topete’s background and watching the interaction in background and personality gives us cues into why he ended up where he did, it doesn’t as you might suggest give us predictive insight.
The bigger problem I see is that once he got into the system, he had no resources or skills to extricate himself from the system and it ended up along with his flaw and background devouring him.
[quote]First of all, your use of the term “excuse” is misplaced. We are talking about the mitigation between “life” and “death” in penalty. [/quote]
So what are you arguing here? That only those that come from “good” backgrounds should be allowed to get the death penalty?
[quote]The bigger problem I see is that once he got into the system, he had no resources or skills to extricate himself from the system and it ended up along with his flaw and background devouring him.[/quote]
So it is the state’s fault that Topete murdered Deputy Diaz?
[quote]ERM: “You could have fooled me that you thougth the DA’s closing arguments were brilliant, based on your article from yesterday, that was critical of the DA’s closing arguments, but laudatory of the defense… ”
DMG: I think you very selectively read my writings. And you also jump to conclusions based on only a few statements.[/quote]
Your words speak for themselves:
[quote]In an interesting contrast in styles, while District Attorney Jeff Reisig would use largely emotionally-based arguments to elicit sympathy for …wrath and vengeance… the defense would ask …the jury not to engage in vengeance, and … presented a fact-based case…
While DA Reisig relied heavily on past court decisions and plea-bargained results, Mr. Gable actually presented a hearty case against three past crimes.
What was unsaid and could not be said is that, whether he receives life without parole or the death penalty, the same risks exist because Mr. Topete will not be executed any time in the next twenty to twenty-five years – if ever.
In reality, as we will discuss later this week, Mr. Topete will not be executed and this entire process was an exercise in symbolic and painful futility.[/quote]
Elaine: I’m not arguing anyone should get the death penalty. However, by the current rules of mitigating and aggravating factors, someone from a better background would have fewer mitigating factors.
“So it is the state’s fault that Topete murdered Deputy Diaz? “
I think you ask the wrong question. Would a better system with more available resources and support, that could have provided job training and life skills, perhaps have avoided this conclusion – I think there is no question that it could have.
Elaine: I don’t see anything in that excerpt that backs your claim that I was criticizing the DA and praising the defense attorney. At best you made assumptions about what was intended to be a descriptive explanation of what happened in the closing trial. Perhaps “hearty” became “cumbersome,” but the point of those words in the first portion was supposed to describe the quantity, in the second meant to opine that while there was good quantity, that the effort dragged and failed to match the urgency and emotional appeal of Reisig. I just think you simply assumed ready the first day what I was going to say about Reisig and when I did not say what you expected you were surprised.
[quote][i]”The bigger problem I see is that once he got into the system, he had no resources or skills to extricate himself from the system and it ended up along with his flaw and background devouring him.”[/i][/quote]While the system isn’t fair, doesn’t provide good support for convicts and teaches bad things, it does not force someone to kill another person. I think you’re arguing that the system trumps free will and somehow lessens a person’s moral accountability for making terrible choices.[quote][i]”But when it comes down to it, I think the victim impact statements should not be admissible and should be irrelevant…A life is a life.”[/i][/quote]Agree. This is one of the worst “improvements” ever imposed on our trial system. It turns the penalty phase into a circus of the worst type.[quote][i]”I think you very selectively read my writings. And you also jump to conclusions based on only a few statements.” [/i][/quote]I wish you’d take more responsibility for what you write. Instead, you regularly blame readers who disagree with you or who question your comments.
Wouldn’t it be better all around if you’d deal with the issues as they’re raised–particularly since we bring them up in response to your own words–instead of attacking Elaine’s and others’ reading abilities and/or their intelligence or other capabilities to process your observations?
” I think you’re arguing that the system trumps free will and somehow lessens a person’s moral accountability for making terrible choices”
No. I’m arguing that the system restrains the range of choices and inhibits the making of sound decisions, particularly when you add in various inhibitors such as anger and alcohol. I wish I had the quote from Dr. Haney, I think he explained what I am attempting to state better than I can. The psychological damage caused by nine years in solitary in the SHU has to be mindboggling. And then he is thrown into a situation and asked to conform to the rules of a society that was hardly known to him.
One of the problems I think is that for everyone who does not receive a death sentence coming out of the prison system, with no education, job training, rehab, anager management, we’ve basically created a monster for nine years and then somehow hope that they don’t do something horrific.
“I wish you’d take more responsibility for what you write. Instead, you regularly blame readers who disagree with you or who question your comments.”
I do. For instance, I did not phrase a point that ADREmmer raised well, that’s my fault. on the other hand, I think Elaine cherry-picks and pulls things out of context quite a bit trying to play gotcha. I think you make assumptions about my points and then respond accordingly. Sometimes it is my fault, sometimes not.
“Wouldn’t it be better all around if you’d deal with the issues as they’re raised–particularly since we bring them up in response to your own words–instead of attacking Elaine’s and others’ reading abilities and/or their intelligence or other capabilities to process your observations?”
If they accurately reflect what I wrote then I have no problem. But in one of these comments today, Elaine cut a two clause sentence in half, took it completely out of context, and then make a presumption about it. What do you want to me to do other than attempt to clarify my point and point out the error?
[quote]I think Elaine cherry-picks and pulls things out of context quite a bit trying to play gotcha.[/quote]
Sorry, but in my opinion, I selected the phrases that led me to think you were hyper critical of the DA’s closing arguments as merely “emotion” based, whereas the defense was “fact” based. THOSE WERE YOUR VERY WORDS. To me it appears very clear you were initially more impressed with the defense’s arguments than the DA’s. That is why I was quite surprised when you seemed to do a 180 degree turnaround the next day when you called the DA’s closing arguments “brilliant”. What words you select do make a huge difference in perception…
” THOSE WERE YOUR VERY WORDS. “
Yes separated from other words that give them context.
“To me it appears very clear you were initially more impressed with the defense’s arguments than the DA’s. “
I don’t see where you arrive at that. Whatever words you cited were meant to be descriptive and not carry with them normative implications.
To me, in the legal context, when you say one side used EMOTION while the other side used FACTS, you are in essence saying the side that used FACTS was more accurate… do you see where I am coming from now? That was why I was so surprised at your statement the next day when you called the DA’s arguments “brilliant”.
Just as an aside, a case is only as good as the client. The defense here had a monumental task that was virtually insurmountable. They did an excellent job with what they had… but they in essence had nothing to work with…
Elaine: But part of the death penalty is the emotional tone and he struck a brilliant tone. The defense did lay out the facts in terms of mitigation and background, but those facts are buried because they were presented in a long cumbersome manner and they could not match the emotional tone. Unlike the guilt phase, the penalty phase is subjective and there you have to play on emotion. The defense did not do a good job of making Topete more human.
Your point about facts is correct. But talking with a few of the attorneys who watched the closing, they felt that the defense could have done better and more.
Like I said somewhere, he had the DP as soon as he killed the officer, everything else was for show.