Two weeks ago Judge Paul Richardson denied the motion of Marco Topete, acting as his pro per counsel, a motion to continue the jury trial for an additional six months, until March. The Judge’s rationale was that the burden was on the moving party to prove reason to extend the trial, and that Mr. Topete, acting as his pro per counsel, was unable to show good cause.
However, a funny thing happened after the ruling by Judge Richardson, as the logistics showed that the defendant was exactly right. And so on Tuesday, Judge Richardson set trial motions to be filed by February 14 with jury selection beginning on March 7.
However, Mr. Gable is working on a federal trial, and thus unavailable until at least the end of January.
Two weeks ago, Supervising Deputy District Attorney Garrett Hamilton objected to any further delays.
“Here’s the thing, we’re talking about giving him two lawyers for advisory counsel,” he argued two weeks ago, “The reality is for a trial date, it doesn’t matter what Mr. Gable is doing for the next six weeks because Mr. Purtell, who is yet another advisory counsel, can work with Mr. Topete to get ready for a trial, especially if Mr. Gable is going to agree to let him use his computer, his fax machines, and his secretary that Mr. Purtell was so adamantly complaining about.”
On Tuesday he was downright livid, “The court has given Topete a luxury Cadillac.”
Interesting choice of words by the prosecutor in a case where the media and public were locked out of the court by court personnel, and where Mr. Topete is housed in high security in the Sacramento Jail, only able to access the law library for two hours a week, unable to communicate confidentially, and is being given a luxury Cadillac because the logistics of the case is forcing it back to March?
Mr. Topete almost certainly faces either the death penalty or, at minimum, life in prison for the killing of Yolo County Sheriff’s Deputy Jose “Tony” Diaz on June 15, 2008.
The handling of his case has been difficult at best, and the questions about whether he can receive a fair trial persist.
For all of the talk about victims’ rights which Mr. Reisig launched into previously, the fact remains that this case as it stands may well have its verdict thrown out.
“What I would ask the court to keep in mind is while the defendant has the right to a fair trial, we appreciate and respect that,” Mr. Reisig had said. “Marcy’s Law guarantees that the victims in this case also have the right to a fair trial, to a speedy trial, and to due process.”
Judge Richardson dismissed Mr. Topete’s attempt to move venue as untimely, since the issue was addressed previously but withdrawn by previous counsel. This ruling is despite the fact that he dismissed his previous counsel, precisely because he did not think they were adequately representing him.
Mr. Reisig had continued, “I bring that up because the family that’s behind me, has been here going on over two years, quietly and patiently waiting for a trial. So as we sit here today after 28 months, talking about coming back in two weeks to set a trial. I would urge the court, let’s set the trial today and acknowledge that this family of the victim has a right to due process, as well.”
While that may make a powerful emotional argument and the DA likes to speak about reality, the reality is that they need to take the time to get this right, the first time. Because the worst thing that could happen to the family of the victim is that they go through the whole trial, they convict Mr. Topete, and they have a flawed court process and it gets thrown out after ten years and suddenly they have to come back and have another trial ten years down the line because they rushed things through today. How will the family of the victim feel then?
The question now is whether Mr. Topete is going to accept Mr. Purtell and Mr. Gable as his advisory counsel. After all, there is a reason that Mr. Topete filed the Faretta Motion in the first place, dismissing his counsel.
But we will see. For now the trial is set for March 7 and that should be a spectacle that I do not think serves either the victim’s family or the defendant well in this case. But that is how the DA’s Office has wanted it – they want the quick win, perhaps believing they won’t be around when the higher courts throw out the conviction later on.
—David M. Greenwald reporting
I understand the need for appropriate process. I understand that you believe that the motivations of the DA’s office are “less than pure”. At the end of the day, given the ‘problems’, do you believe that Mr. Topete should be released to the community, now, in the interests of saving all of us time and money “when the higher courts throw out the conviction later on”?
From what I have read on this blog about the case, and from the newspapers, I don’t think it is likely at this point the case will be thrown out on appeal on any issues that have occurred thus far. However, I do think it is imperative to “get it right”, to minimize the chances of an appeal issue arising in the future. The victim’s family deserves no less than a fair trial, as does the defendant.
I’m not sure you can appropriately call this schedule of nearly three years getting to trial “rushing through” anything. It certainly isn’t on track for a “quick win” that you say the DA wants, “perhaps believing they won’t be around….”
Please give a quick summary of why you’re so positive “the higher courts (will) throw out the (possible) conviction later on.” Serving as his own counsel not only jeopardizes Mr. Topete at this point, it also could result in building an inadequate foundation for successful appeals.
Actually, if the quote attributed to the DA is accurate he did not mean what he said. The victim does not have a due process right. The victim is not a party to the proceeding. [in this case the victim is deceased]. In any event, the Due Process Right is a Constitutional right belonging to the defendant in a criminal trial.
The victim’s (or the victim’s family) have certain rights under the Victim’s Bill of Rights passed by initiative in California which are generally to be consulted in plea bargains and to speak at sentencing.
[quote]Please give a quick summary of why you’re so positive “the higher courts (will) throw out the (possible) conviction later on.” Serving as his own counsel not only jeopardizes Mr. Topete at this point, it also could result in building an inadequate foundation for successful appeals. [/quote]
I agree with you on that point. But I think the bigger problem is that Mr. Diaz worked in the court system, Mr. Topete has been shown disparate treatment, he was denied his motion for change of venue and probably inappropriately so as untimely by Judge Richardson, particularly in light of the fact that he just took over representing himself. Everyone overseeing the court operations – the Judge, the deputies, the attorneys, knew the victim. How is this court a neutral arbiter of the facts and law in this case?
dmg: “I agree with you on that point. But I think the bigger problem is that Mr. Diaz worked in the court system, Mr. Topete has been shown disparate treatment, he was denied his motion for change of venue and probably inappropriately so as untimely by Judge Richardson, particularly in light of the fact that he just took over representing himself. Everyone overseeing the court operations – the Judge, the deputies, the attorneys, knew the victim. How is this court a neutral arbiter of the facts and law in this case?”
It is my understanding that Topete (or his attorney) made a motion about the unfairness of the court (the lockout), then withdrew it. So I suspect the ability to argue the lockout/unfairness issue on appeal has come and gone. I think Topete has shot himself so many times in the foot by trying to represent himself, he is not going to have a leg to stand on (pun intended) when it comes to any appeal…