Under the best of conditions it is difficult to defend oneself, particularly in a capital murder case. But the system conspired to make the task impossible for Marco Topete, accused of the 2008 killing of Deputy Sheriff Tony Diaz.
Faced with inadequate time to research the case, lack of hours in the law library, lack of privacy and protection for legal product, Mr. Topete finally had enough last week and reluctantly took back the two attorneys he had dismissed just three months ago.
Privacy issues are part of the problem, as the jail is logging in videos of Mr. Topete preparing for his trial. Deputy DA Garrett Hamilton, who along with DA Jeff Reisig is prosecuting the case, admitted that he has seen these logs.
It is clear that the court forced the hand of Mr. Topete here, denying motions to house the defendant in a confidential space without video surveillance or to increase the amount of materials available to him at the jail, denying a motion for phone calls not to be monitored, and denying a motion to lift limitations on witness interviews.
Ms. Topete said that this had the feel of a lynch mob. “We just want him to get a fair trial. And we all know that is not going to happen.”
As a pro-per defendant, Mr. Topete claims he was told that the only way he could have a prospective witness visit would be with a court order.
Mr. Topete argued to the court in his filing that he “is entitled to the same privileges as a defendant represented by appointed counsel or representing himself, no more and no less.”
He further argued, “Defendant cannot proceed forward under such prejudicial circumstances and conditions.”
Once it became clear that the court would not relent, Mr. Topete met with advisory council Tom Purtell and Hayes Gable. When court reconvened, Mr. Purtell told the court that Mr. Topete had requested to withdraw his pro-per status and have counsel reappointed.
Judge Paul Richardson asked Mr. Topete if this were his request and Mr. Topete confirmed it.
Garrett Hamilton complained that the defense counsel would use this to get another continuance of the jury trial.
Judge Richardson accepted the defendant’s request to withdraw his pro-per status and reappointed Mr. Purtell and Mr. Gable as his defense counsel.
Marco Topete did achieve a measure of success on another matter. He had submitted a motion to set aside his gang offense under California Penal Code 186.22(a) on the grounds that the prosecution had failed to present sufficient evidence at the Grand Jury hearing to provide probable cause to indict Mr. Topete on the charge of active participation in a criminal street gang.
Detective Ron Cordova had testified at the Grand Jury hearing about the activities of Nortenos. However, the defense argued in its written motion, “the prosecution did not present any evidence that the killing at issue in this case occurred in gang territory, they did not present any evidence that any other gang members were involved in the killing, they did not present any evidence that Mr. Topete flashed gang signs or yelled out the gang’s name during the incident, they did not present evidence that the crime was committed against a rival gang member, and they did not present any evidence that Norteno gang members in Yolo County are connected to or a subset of Norteno gangs in other counties.”
While Judge Richardson granted the motion to set aside Count 5, he denied the motion to set aside special circumstance C of Count 1, which is murder by an active gang participant.
The next hearing will be on January 10 with the jury trial scheduled to begin now on March 7.
Commentary
This case still presents a number of problems. Angelique Topete is clearly concerned about her husband’s right to a fair trial while at the same time conflicted by the harm he caused, not just to the victim but also to her own daughter, whose safety and well-being he endangered during the initial portions of the incident.
Nevertheless, even the worst people in our system are entitled to a fair and impartial trial. I think it is questionable whether he will get one, but at least now he has attorneys with full resources and privileges advocating for his rights, rather than fighting through the system to gain what measure of respect and privacy he could gain.
If individuals have the right to legal presentation and the right to represent themselves – regardless of how misguided it is to attempt to advocate on your own behalf, particularly in a complex capital case – then there needs to be adequate time to prepare and adequate safeguards on the work-product.
Apparently the law does not allow for these protections and so pro-per defendants are forced into a lose-lose scenario where they are disadvantaged by their own lack of legal expertise while disadvantaged by the system failing to give adequate time to do things like research the law, question witnesses and gather evidence.
Mr. Topete had legitimate concerns about the relationship between his attorneys and the Yolo County judicial system. No matter how professional attorneys are, there is a good-old-boys mentality in this county that is concerning. The wall of separation between prosecution and defense at times is too close.
However, in our year of watching court hearings and trials, we have seen good defense put on by public defenders, by conflict counsel and by out-of-county private counsel. Are there problems with inadequate defense? There are some, but that does not appear to be the biggest problem facing a defendant in Yolo County.
In this case, Mr. Topete faces capital punishment. In this state and this nation one of the surest ways to get the death penalty is to kill or be accused of killing a law enforcement officer. That is a huge strike against him.
The fact that Mr. Diaz used to work in the courts, and Mr. Topete will be tried in the very courts in which the victim worked and by all accounts was adored, is troubling. The machinations that have gone on in this case add to that.
I agree with Mrs. Topete that he will never get a fair trial in Yolo County, but at least with defense counsel he has a small chance.
As one expert told me three months ago when Mr. Topete dismissed his attorneys, it will be very difficult for him to avoid the death penalty in a case like this but, with a good lawyer, he has a chance. If he represents himself, he does not.
The bottom line is, no matter what horrific thing Mr. Topete is accused of doing, he has a right to a fair trial and he just was not going to get that representing himself. Worse yet, he would have little or no recourse if he did.
Maybe that is not right, but that is the way the system is set up. Sometimes when one is fighting for one’s life, one has to err on the side of pragmatism.
—David M. Greenwald reporting
“Nevertheless, even the worst people in our system are entitled to a fair and impartial trial. I think it is questionable whether he will get one, but at least now he has attorneys with full resources and privileges advocating for his rights, rather than fighting through the system to gain what measure of respect and privacy he could gain.”
I would counter with the notion that the “worst” have even greater need for a fair and impartial trial.
It’s really hard to follow the convoluted thinking of the defendant and his spouse. Refusing professional counsel is apparent based on the supposition that the defendant can do a better job by himself. Or, he suspects the counsel given is part of some kind of conspiracy to deny him a fair trial. As the defendant will soon learn when his case comes to trial, you have to give evidence to support and argument such as this. Wild speculations are not allowed, for the simple reason that they do not allow for a “fair and impartial trial.”
The defendant cries foul for not having been given appropriate concessions to the fact he’s in jail. He wants more privacy, communications capability, and mobility to defend himself properly. Yet, that is just one of the reasons why a jailed defendant must have outside professional legal counsel.
This whole sordid story makes one wonder if the defendant is deliberating trying to deny himself a fair trial, then complains about it should he be convicted. Many defendants have tried that before. Never works.
“Or, he suspects the counsel given is part of some kind of conspiracy to deny him a fair trial. “
This is what I believe to be the case. And for what it’s worth, I don’t think it’s a meritless concern. However, the other factors I think outweigh that concern and that’s why in the end I think he made the right decision.
“This whole sordid story makes one wonder if the defendant is deliberating trying to deny himself a fair trial, then complains about it should he be convicted. Many defendants have tried that before. Never works. “
There would be no lgeal grounds with which to do that however. He actually loses the argument for ineffective counsel by being his own counsel.
I don’t know the details of this case, but I do know firsthand what often happens in our local counties when someone who is poor/and/or a minority is prosecuted for a felony. Very few defense attorneys are capable of or willing to oppose a powerful DA at trial even when there is considerable evidence that the accused is innocent. The person is pressured to “take a plea” even though it is fairly clear that they are not guilty. The presumption of innocence plays no part. So if this is the case with Mr. Topete, it is understandable that he would be so frustrated as to try and defend himself (Not a good idea)
If Mr.Topete HAS committed a crime, his lawyers should get him the best plea deal possible and he would do well to take it, but if he is innocent he should never stop fighting even if he has to go through a dozen lawyers to find one who will actually defend him.
The defendant has been provided competent counsel. If the defendant’s legal situation is fraught with difficulty, it may be because the case against him is overwhelming. Murder of a peace officer in uniform is a special circumstances case. It should be no surprise that those convicted of this face the death penalty. What is so complicated here?
“What is so complicated here?”
The victim worked in and with the courtroom personnel, sheriff’s deputies, and judges that will preside over this case.
At his arraignment, these officials conspired in some form to lock the public, the media, and the defendant’s family out of the courtroom.
As we are aware, taxpayers are asked to bear new and additional burdens to support schools, programs, and city/county services. Moving this trial to another venue will be extremely costly. I hate to see hundreds of thousands Yolo County dollars wasted because a door was wrongfully not opened at the arraignment hearing. Do you think or judges and the appointed attorneys are unable to exercise their responsibilities?
Typo: or should be our
If you want to save money, don’t try it as a DP case, that’s what really jacks up the costs. Changing venue pales in comparison with trying and then housing a DP case.
Saving money is not the priority and the decision to seek the death penalty should not be made on the basis of money. However, unnecessary expenses should be avoided. The defendant withdraw his motion to change venue. Our judges apparently maintain they are not biased and are capable of fulfilling their mandate. The defendant has — and continues to have — the benefit of competent counsel or the choice to represent himself. On with the trial.