On Thursday, Judge Paul Richardson will formally sentence Marco Topete in a case that has been anything but routine. Back in November, a jury reached a unanimous verdict in the penalty phase, recommending the death penalty for Mr. Topete. However, under 190.4(e) of the California Penal Code, the trial judge makes an independent determination regarding imposition of the death penalty.
At issue was the dismissal of Juror No.11, who sent the court a hand-written note asking to be excused from further deliberation and replaced with an alternate juror. Following the brief inquiry, Judge Richardson made the decision to replace Juror No.11.
“Due to Juror No. l1’s insufficient command of the English language the Court is of the view that she is unable to perform her duty in this stage of the proceedings, and under Penal Code Section 1089,” Judge Richardson ruled, “She responded that her core issue at this point was language and understanding the concepts. The Court is of the view she should be discharged, and that will be the ruling.”
A little more than a week later, Juror No.6 told the Davis Enterprise that the juror had been opposed to the death penalty in this case.
“She said under no circumstances will she go for the death penalty,” the juror, who is apparently a Davis resident but is withholding his name, told the Enterprise four days after the jury came back with a death sentence recommendation.
“If that lady had not been excused, we would have been a hung jury,” the juror said.
Following the Davis Enterprise article, Juror No.6 was interviewed by the defense investigator, who was told by Juror No.6 that Juror No.11 had no difficulty with the use of English, felt strongly that mitigating factors outweighed the aggravating evidence, gave significant weight to the opinions of defense experts, was the only juror to hold out for a life verdict and was being pressured by other jurors to change her mind.
In his declaration, Juror No.6 said, “I spoke with [Juror No.11] on numerous occasions and she never had any problem with her use or understanding of the English language.”
Furthermore, she had said that “she felt that the mitigation testimony outweighed the aggravating factors” and that “the ‘hurdle was too high’ to vote for death.” He added that she “was fixated on a picture we had in the jury room that was also displayed during the trial that showed a young Marco Topete posing with his father in front of a Christmas tree, rifles at their sides and ammo slung around their shoulders.”
“While the deliberations were respectful,” wrote Juror No.6, “it was clear that [Juror No.11] wanted to hold out for a life sentence, and she was the only one of us who felt that way.”
“The fellow jurors were actively engaged in trying to get [her] to change her mind,” he added. “I could tell the pressure was getting to the soft spoken [Juror No.11]. After returning to the jury room for the second day of deliberations, [Juror No.11] ripped a page from her notebook and wrote a note to the Judge. [She] gave the note to the bailiff.”
At the time the jury did not know the contents of that note.
“I voted for the death verdict and personally feel that Marco Topete is deserving of this verdict. I am, however, very concerned that the law was not properly administered in this case,” Juror No.6’s declaration concluded.
Deputy District Attorney Garrett Hamilton responds to the defense’s call for a new trial, arguing that the declaration from Juror No.6 is “unreliable hearsay,” that is “not signed under penalty of perjury” and “even if it were properly signed and sworn, it addresses the subjective decision-making and mental thought processes of Jurors No.6 and No.11.”
“Such evidence,” he argues, “is inadmissible because it invades the sanctity of the decision-making process.”
He argues, “It is worth noting, because the affidavit of Juror No.6, is not offered in the traditional sense of new trial motions based on jury misconduct. Essentially it is being offered to impeach the testimony of Juror No.11 that was taken by the court on November 14th, 2011, to show that the court made the wrong decision in excusing the juror.”
On the other hand, if the question is the abuse of discretion, it may not be necessary to admit the affidavit of Juror No.6 for the truth of the matter, only to show that the trial judge erred in not fully scrutinizing the reasons for the juror asking to be excused.
The prosecution argues otherwise, citing case law that declares, “A trial court does not abuse its discretion in denying a motion for new trial based upon juror misconduct when the evidence in support constitutes unsworn hearsay.”
The prosecution continues, “Juror No. 11 was properly excused on November 16, 2011, because she was unable to perform her duty as a juror. A trial court has the discretion to excuse a juror and replace her with an alternate when there is good cause shown that the juror is unable to perform her duty, or when a juror requests a discharge and good cause exists.”
The question is really whether good cause exists and whether the judge probed deeply enough to make that determination.
Here is where the newly-decided California Supreme Court ruling from December 12 may come into play. That overturned the conviction of two men who have been sitting on death row for nearly 14 years, on grounds that the trial court denied them their right to a fair trial by improperly dismissing a juror.
The court would discharge that Juror No.11 in the matter for “asserted misconduct during the guilt phase.”
Juror No.5 in that case, who was the foreperson, and Juror No.4, reported to the court their belief that Juror No.11 “had prejudged the case while evidence was still being presented.”
The court then conducted a lengthy investigation and interviewed all 12 jurors – something that never occurred during the Topete trial.
The judge then concluded that Juror No.11 “prejudged the case and was relying on evidence not presented at the trial, the court discharged him and seated an alternate juror. The reconstituted jury found defendants guilty and later returned death verdicts.”
The California Supreme Court found that the trial court “exceeded its discretion under [Penal Code] section 1089 when it removed him and seated an alternate. Because the record does not show to a demonstrable reality that Juror No. 11 was unable to discharge his duty, the court abused its discretion by removing him.”
The question in the Topete case is if the court did indeed exceed its discretion under 1089, when there might not have been “demonstrable” evidence that Juror No.11 in this case was “unable to discharge” her duty.
Mr. Hamilton goes on to argue that, even if the judge erred here, “the defendant is not entitled to a new guilt phase trial.”
He argues, “There is no indication that Juror No.l1 was unable to understand or was incapable of making a decision during the guilt phase.”
However, the defense disagrees on this point, arguing, “Due process and established case law require that the court grant defendant a new guilt phase trial, because Juror No. 11 was unfit to sit as a juror in either phase due to her language deficiency.”
“Simply put, the court cannot have its cake and eat it, too,” the defense argues. “If Juror No. 11 was impaired from the beginning of the jury selection process as the prosecution successfully argued in having her removed, then she was impaired during the guilt phase of the trial and the deliberations that followed it.”
This is a point that Natasha Minsker, the ACLU of Northern California’s Death Penalty Policy Director, argued.
“The Judge and the Prosecutor have made a huge mistake,” Ms. Minsker told the Vanguard. “If the juror was not competent for the penalty phase, then she was not competent for the guilt phase.”
“They have made it very likely that the guilt [verdict] will be reversed,” she added.
“One of two things are happening here. Either the juror in reality [should not] have been sat on the jury – in which case the guilty verdict will have to be reversed,” Ms. Minsker said. “Or the Judge and the Prosecutors are so eager to get a death sentence that they have found this a convenient reason to excuse her from the jury and substitute another person so they can get their death sentence.”
“The result is the guilt conviction is now in doubt and likely to be reversed,” she concluded. “It is highly likely that the conviction will be reversed because the judge has now declared that the juror for language reasons is not competent to serve on the jury, she should never have been there for the guilt verdict and the guilt verdict is no longer valid.”
However, John Myers, a criminal justice professor at Sacramento’s McGeorge School of Law, told the Sacramento Bee this week, “It seems to me that the judge acted within his discretion to dismiss that juror.”
Professor Myers thought it was reasonable that “she could vote to convict Topete but then struggled with her insufficient English during the more complex penalty-phase deliberations.”
The question again appears to be whether Judge Richardson went far enough in questioning the juror as to her reasons. While watching the proceedings live, our view was that he opened the door on language and she saw it as her opportunity to escape and took it.
Our expectation at this point is that the judge will leave it in the hands of the appellate courts to determine whether he acted appropriately, but we will find out on Thursday.
—David M. Greenwald reporting
[quote]Professor Myers thought it was reasonable that “she could vote to convict Topete but then struggled with her insufficient English during the more complex penalty-phase deliberations.”[/quote]
That is how I see it…
I will be very surprised if Richardson does not sentence Topete to death. I will be much more surprised if Richardson’s incorrect decision with regard to Juror No. 11 does not cause the verdict and sentence to be tossed.
From a purely financial basis (and buoyed by an outcome basis) I find it a shame that the Yolo County DA and the judge lack the common sense to see the obvious: that Topete is not going to be executed due to the Juror No. 11 situation; and that the people (at this point) would be best served by agreeing with Topete to a life without parole sentence. I say that as someone who favors the death penalty in all murder cases and especially favors it in cases like Topete’s. I simply can see the obvious of what went on here; and I know that the Yolo County authorities’ obstinance will not bring about a punishment of death for Topete.
I think Rich in terms of his prediction is correct.
The case should have been moved out of Yolo County. From the first day Topete entered the Yolo Superior Court (and the doors were closed behind him) faulty decisions were made driven by politics. This case proves Yolo County was incapable of administering Justice to this character – too many vested interests from the very start.
I agree the Judge will likey sentence Topete to death, but not due to the lack of common sense. Judge Richardson may feel he has more to lose by altering the sentence than accepting defeat when the sentence is reversed. He has a better chance of saving face by making a wrong decision.
The anonymous Davis panelist opined: [quote]If that lady had not been excused, we would have been a hung jury…”[/quote]
Who crowned the Davis juror ‘expert witness’ status?
The above assertion is NOT an established fact, PERIOD!
The juror’s personal lay opinion is at best pure unadulterated speCulation.
[quote]In his declaration, Juror No.6 said, “I spoke with [Juror No.11] on numerous occasions and she never had any problem with her use or understanding of the English language.”[/quote]
One person’s anecdotal experience is worth?
As such it is unreliable…
Two points in response Mr. Remmer. First, when a judge makes the decision to declare mistrial, he relies on juror determinations that they will be unable to reach a verdict. Usually he polls the jurors as to whether they believe more time will render a unanimous verdict, but it is still based on not much more than what you are complaining about now.
Second, I agree with the prosecution that it is hearsay and it should be inadmissible if offered for the truth of the matter, but in this case it shouldn’t be offered for the truth of the matter but rather whether the judge probed deeply enough into the situation and that’s where I think he erred and why I think an appellate court will spit this out.
[i]”Who crowned the Davis juror ‘expert witness’ status?”[/i]
Remmer: put yourself in the position of Juror 6 for a moment. You had experienced guilt phase deliberations with No. 11. You were able to get a sense of how well she spoke and how well she understood English. That does not make The Remmer an ‘expert’ on Juror 11, but it gives you some idea of her capacity as a juror in this case.
Fast forward a few days: you, The Remmer, literally heard her say that she could not recommend a death sentence. You are not sure if it is the evidence in this case or in any case. But you are certain you heard her say she could not recommend death for Topete, and you heard her say that she feels badly about holding up the process.
Fast forward a couple more days: the judge replaces Juror No. 11 under the explanation that her English is now insufficient to deliberate a suggested punishment. The judge instructs you, the other 10 remaining jurors and the alternate who has taken No. 11’s place to reconvene and render a sentence: life or death.
The whole time since your jury decided Topete’s guilt you have believed death was the appropriate sentence based on the law and the instructions given to the jury. So you vote along with the others for death.
Then you go home, Remmer, and it gnaws on you that Juror 11 said explicitly that she could not vote for the death sentence and she did not want to hold up the proceedings. So, when you have a chance to speak with Lauren Keene* of The Davis Enterprise, you tell her what went on with Juror No. 11, in that you, Remmmer, knew for sure the true reason was not what came out as to why No. 11 was removed (for English skills).
Would it not come as a shock to you, Remmer, that the comments of anonymous posters on the Vanguard and The Enterprise are aggressively doubting you? Some are strangely asking, “Who crowned the Davis juror ‘expert witness’ status?” when you never called yourself an expert, but merely one who heard what No. 11 had said. You, Remmer, might even think such posts were cheap shots.
I think, Remmer, those cheap shot artists who are doubting No. 6 are not thinking this thing through. They are mostly concerned about the outcome, I think, and they are firing shots at No. 6 because his testimony threatens what they believe is a just outcome.
My view is that people like Remmer should re-think what No. 6 has said, what Judge Richardson has said, and find that what No. 6 has said makes more sense, and that the sudden loss of English skills makes less sense.
*I should note that Lauren told me who No. 6 was, and told me Juror No. 6 would not mind speaking with me, too, but I did not actually speak with him (as I saw no reason to).
[quote]”Who crowned the Davis juror ‘expert witness’ status?”
“Remmer: put yourself in the position of Juror 6 for a moment. You had experienced guilt phase deliberations with No. 11.”[/quote]Rich, what you say may be true. But, it really isn’t very responsive to AdRemmer’s contention that No. 6 has no way to say with the tiniest authority, “If that lady had not been excused, we would have been a hung jury….” If Judge Richardson had sent them back, she may have voted with the other 11 jurors within minutes. Who knows? Certainly not even her fellow jurors.
All I know is what’s been in the [u]Enterprise[/u] and the [u]Vanguard[/u], and I’ve concluded that Judge Richardson blew this one based on that limited reading. However, I’ve seen nothing that suggests No. 6 has abilities to prognosticate so definitively.
*Rich, I still haven’t seen anything that suggests Judge Richardson (or anyone else) has ruled that the jurors identities should remain confidential. Have you anything new on this question that you raised?
Whether or not one believes in the death penalty in general or believes it is warranted in this particular case, does it not seem strange to anyone other than me that a man’s life might hang on whether or not one individual is perceived as having an adequate command of the English language or whether that individual is strong enough to hold their ground against 11 other individuals who feel differently.
To medwoman: Yes, the vagueries of the legal system are mystifying at best!
One thing that I think that has been lost in this discussion is that the appellate courts tend to give due deference to the trial judge. So I am not as convinced as others that if Topete is given the death sentence, that it will be thrown out on appeal. There is a plausible argument to be made for why the juror was dismissed, to wit:[quote]it was reasonable that “she could vote to convict Topete but then struggled with her insufficient English during the more complex penalty-phase deliberations.”[/quote] In effect the appellate courts cannot substitute their judgment for that of the trial judge, only determine if the judge erred…
I can’t remember where, but I’m pretty sure I read some pace recently, that Judge Richardson has recently been”papered” by Yolo Co. prosecutors( for not being pro prosecution enough) and will be forced by lack of cases to retire. Does anybody have any information on this?
Rifkin:
[quote]I will be much more surprised if Richardson’s incorrect decision with regard to Juror No. 11 does not cause the verdict and sentence to be tossed. [/quote]
The “incorrect decision” is your opinion. I believe that Richardson made the correct decision.
JustSaying:
[quote]*Rich, I still haven’t seen anything that suggests Judge Richardson (or anyone else) has ruled that the jurors identities should remain confidential. Have you anything new on this question that you raised?[/quote]
On the day the jury returned the penalty phase verdict, the last order from Richardson before dismissing the jury was to order the identities and contact information of the jurors be sealed by the court. Jurors can willingly come forward, but their identities are not available through the court.
With regard to juror #6, much of what he says is directly refuted by the other 11, as well as the remaining four alternates. If his statements were admissible as evidence, you would have seen 15 sworn affidavits from the other jurors and alternates refuting #6’s testimony. Plus, #6 was very misleading in much of his statement. For example, #6 discusses juror #11’s crossword puzzles to support his claim that she understands english:
http://www.sacbee.com/2012/01/04/4161098/dismissal-of-juror-in-yolo-deputy.html
[quote]Instead, Juror No. 6 – whose name is redacted in court files – said in his statement to defense investigators that the dismissed Juror No. 11 is an educated woman who worked on crossword puzzles during breaks and held numerous conversations with him in English, without problem.[/quote]
What juror #6 fails to state here is that those crossword puzzles were in Russian. Juror #6’s statements are full of half-truths and outright misrepresentations.
[quote]Legal experts said the state Supreme Court’s ruling sets a high bar for discharging jurors, but they disagreed on whether Richardson is in peril of being overturned by appellate courts if he denies the defense motion and sentences Topete to death.
“If you look at it from the California Supreme Court’s point of view, they don’t want you to pull the trigger too fast on these jurors, especially when they’re in deliberation mode,” said Thaddeus Hoffmeister, an expert on juries and professor at the University of Dayton School [/quote]
http://www.sacbee.com/2012/01/09/4172479/did-yolo-judge-err-in-removing.html?storylink=lingospot_related_articles
[quote]John Meyers, a criminal justice professor at Sacramento’s McGeorge School of Law, read the same exchange and came away with a different view. “It seems to me that the judge acted within his discretion to dismiss that juror,” Myers said.
The Supreme Court case involved a juror who had formed an opinion, but had not firmly made up his mind, in the guilt phase, Myers said. The Yolo case is different, he said.
“Here you have a juror who said, ‘I haven’t been able to participate (in deliberations) because the language issues are more serious than I thought,’ ” he said.
Myers said it was reasonable that she could vote to convict Topete but then struggled with her insufficient English during the more complex penalty-phase deliberations.
The fact that another juror expressed an opinion about her language skills after the trial was over “is kind of irrelevant,” he said. The judge questioned her and made up his own mind, he said. In that case, Myers said, “the benefit of the doubt goes to the judge.”
Read more here: http://www.sacbee.com/2012/01/09/4172479/did-yolo-judge-err-in-removing.html?storylink=lingospot_related_articles#storylink=cpy%5B/quote%5D
One may ponder the reason for DG’s continued FAILURE to cite the following:
“During jury selection, the woman had said she could keep an open mind about the penalty phase, the defense lawyers wrote. Prosecutors questioned her in detail about her language skills.
“I think that some special words maybe I won’t be able to understand … but, regular speech, I am fluent in regular speech and in understanding it,” she said during voir dire.”
Read more here: http://www.sacbee.com/2012/01/04/4161098/dismissal-of-juror-in-yolo-deputy.html#storylink=cpy
DG, when will you post what other jurors have said in opposition to juror #6?
For their opinions hold equal weight, no?
DG when will you provide the following:
There was also the possibility Juror No. 6 had an alternate agenda.
At the beginning of the trial, he indicated the case was “good fodder for a book,” said Noelle, another juror.
She, nor any of the other jurors, gave their last names.
Jurors who were willing to comment said they agreed with Richardson’s decision Thursday to deny the motion for a new trial.
“His ruling was absolutely accurate,” Noelle said.
David Grundler, thanks for the information. Was any reason given for keeping jurors’ identities secret after the trial was over? Is it temporary or permanent? I’m used to that being an unusual act, attempted in very special circumstances and sometimes overturned. Secret juries seem un-American to me.
Just Saying: I don’t have the code handy, but protecting identities of jurors is part of the code.
It was done for safety reasons in light of some of the evidence that was presented. It is permanent. If the records are to be unsealed, the jurors will be notified, and they can plead their case in a private hearing as to why they should not be unsealed.
silence
continues