After three years of waiting, and three months in trial, then a conviction of first degree murder with four special circumstances, the jury in the Topete case now has the unenviable task of determining whether Marco Topete should spend life in prison without parole or get the death penalty.
The DA would argue repeatedly that Mr. 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.
Much of the debate on the final day would be over 11 factors of either aggravation or mitigation.
Unlike the guilt phase of a trial, much of this comes down to the individual views of the jurors. There are few requirements of burden of proof. This is not about proof beyond a reasonable double. As Mr. Reisig argued, this is not a clearly-guided path, but rather a path that each one would individually have to take.
The Prosecution
Going first, Jeff Reisig argued that this is not a debate on capital punishment. He argued that capital punishment in this form has been the law since 1978, and that all of the jurors had promised they would follow the law.
He also pointed out that this was not a case of lingering doubt that would be the subject for debate for the next thirty years. This was not a “whodunit,” he argued.
There were a number of themes that ran throughout Mr. Reisig’s argument. The first is that Mr. Topete is not a typical case. Mr. Reisig pointed out repeatedly that there was only one case in 2008 in which a peace officer was killed in California.
He argued that we have a special duty to protect peace officers whom we entrust to protect us, and those who murder a peace officer forfeit their lives. There are cases that are so rare and so horrific that the death penalty is appropriate, and this is one.
Mr. Reisig argued that nothing the defense has presented mitigates this fact.
“Make no mistake about it,” he said, “Marco Topete has been the sole author of his demise.”
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.
Jeff Reisig would also argue that Deputy Tony Diaz put his life at risk protecting Mr. Topete’s child. That Deputy Diaz refused to leave the scene to search for Mr. Topete, due to the presence of the child. And yet, Mr. Topete put the child at risk, not only by taking her on a high-speed chase, but also by shooting in her close proximity.
Mr. Reisig would also argue that the AR-15 itself is an aggravating factor. He held it up to the court and described it as an instrument of war meant to kill. He argued that he pulled the trigger dozens of times over a very short period of time, and that in doing so he was not just trying to kill Deputy Diaz, he was trying to annihilate him.
Mr. Reisig described several of his previous crimes, which are factors in aggravation. The crime that put him in Pelican Bay was an attempted murder, according to Jeff Reisig, in which Marco Topete pled to an assault with a deadly weapon.
There was also involvement in a prison riot and a jail attack that was on April 11 of this year. In that case, he attacked a fellow inmate, and correctional officers had to choke him to pull him off.
“No matter where Marco Topete goes, people are at risk,” said Mr. Reisig. “No one in the free world is immune from his wrath.”
No one in the correctional system is safe, he continued, saying that there is a pattern of violence behind bars from this respected gang leader.
“I urge you not to play Russian Roulette with the lives of correctional officers,” Mr. Reisig added.
He later argued that there is a “viciousness,” an “evil that lurks in his heart,” as he referenced a 2003 letter to his father that describes the fact that he does not forgive, he is a cruel person, and he hopes no one in the family sees the damage that he could do.
Jeff Reisig would also attack the credibility of the mitigation experts, hired, he said, at great expense by the defense, whom he claimed were all death penalty opponents who were highly-paid and biased.
He would go on to argue that the experts failed to talk to key people like friend Jesse Gonzalez, on whose property the incident occurred, and also Dr. Haney, who would attack the system and jump to conclusions but ignored Marco Topete’s own words in his letters.
Mr. Reisig would also make the point that there are a whole umbrella of people devastated by the impact of this crime. He spent a lot of time talking about Tony Diaz the father, the community volunteer, the colleague.
He noted that there were law enforcement officers so haunted by this killing that they changed their careers, others were fearful to put on the uniform in the morning and lamented that this is not a way for a community to be best served by law enforcement.
“It is because of circumstances like this that the death penalty is absolutely warranted, when a peace officer is killed in this community,” he said. “There can only be one meaningful result in this case – Marco Topete must be given the death penalty.”
“Death stalks us all,” he added, but at least Mr. Topete would be given due process of law, years of preparation, two capable attorneys and hundreds of thousands in expert witnesses at his disposal. Deputy Diaz only had a few seconds and no chance to defend himself.
“[The death penalty] is a decision that must be made – our society depends on this decision being made.”
He would conclude, “Marco Topete doesn’t deserve to live life behind bars – justice must be done.”
The Defense
In an interesting contrast in styles, while District Attorney Jeff Reisig would use largely emotionally-based arguments to elicit sympathy for the victim and wrath and vengeance for the convicted, the defense would ask for mercy and ask the jury not to engage in vengeance, and for the most part they presented a fact-based case against giving Marco Topete the death penalty.
Hayes Gable went first, arguing that the factors of aggravation, such as prior violent crimes, have to be proved beyond a reasonable doubt. While DA Reisig relied heavily on past court decisions and plea-bargained results, Mr. Gable actually presented a hearty case against three past crimes.
First, he argued that the prison riot evidence is inconclusive about Mr. Topete’s actual role. He pointed out that the fight/riot was instigated by a Sureño ringleader who brought with him a large group of people who clearly were looking for trouble.
There is no indication in the report, that he read verbatim, as to what Mr. Topete’s actions were. We do not know if he was defending himself or the aggressor, but the evidence that the Sureños started it might show it to have been self-defense.
He argued that it must be proved beyond a reasonable doubt that Mr. Topete was the aggressor there.
Second, they cited an incident at the Sacramento County Jail where authorities found a rolled-up magazine in Mr. Topete’s cell and argued that this was actually a blunt prison weapon.
Mr. Gable argued that the officer destroyed the magazine, therefore they had no physical evidence, only his word. The officer admitted he had never seen anyone use this as a weapon and that the magazine was found in plain sight, suggesting that this was not effort to hide contraband.
Mr. Gable then thoroughly attempted to dismantle the case for attempted murder at the AM/PM in 1997.
He noted that one of the witnesses was Sandra Herrera, who was brought back from Mexico to testify in this case. She had been deported after possessing large quantities of drugs in Southern California and they cut her a deal to remove outstanding warrants and charges against her in exchange for her testimony.
He also cast doubt on her credibility, showing several examples of her lying to police about her fiancé’s gang membership, as well as never telling police about critical details that she would testify to in court, such as the fact that she claimed to have attempted to disarm the shooter.
Another critical witness, Eugene Ramos, did not testify but he made statements, after being shot, that a short kid wearing red did it. The problem is that Mr. Topete was wearing black on the night in question.
Mr. Gable used the video surveillance to show that another individual was actually the one wearing red and carrying the gun. The surveillance photos never showed Mr. Topete with a gun, though he was at the scene. They never did analysis on the shell casings to see if more than one gun was used.
Mr. Topete would plead guilty to the assault charges rather than face attempted murder, but Mr. Gable used the evidence available to him to show that the People had failed to prove beyond a reasonable doubt that Mr. Topete was the one who actually fired the shots.
Co-counsel Dwight Samuel then took over for the balance of the closing arguments. He first took on the statement by Mr. Reisig that “no one was safe from Marco Topete.” He pointed out that, regardless of the results of this trial, Mr. Topete would never be in the position to commit the crimes he is accused of in prison. He will not be housed with anyone, will never be in a line again, will never be at county jail, and he will be confined 23 hours a day and will exercise alone.
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.
The bulk of Mr. Samuel’s time was taken discussing Mr. Topete’s life. He pointed out that as a youngster he had an outlaw father who was toxic, who used to beat young Marco. His father was an alcoholic, engaging in drug sales and pulling Marco in at a young age, and he was put in prison when Marco was 15. When he returned, he started selling drugs and involving Marco.
“We’ve got an outlaw father, and now we’ve got an outlaw son,” Mr. Samuel said. “Is it Marco Topete’s choice? No, it is not.”
He would argue that Mr. Topete, as the result of these experiences, was “damaged goods” who never received the help or resources he needed to overcome his background.
Mr. Samuel argued that Mr. Topete had multiple risk factors. He argued that Mr. Topete never really had a choice about these factors – 16 of the 24 factors, he argued, were not his choice. Moreover, he had no help – only 3 of 15 protections were present and there was never a strong parental influence in his life.
Mr. Samuel argued how we are brought up dictates how we think and the choices that we make.
Mr. Samuel disputed the notion that Dr. Haney was unqualified or biased. He said he was a premier expert who had testified before the United Nations and Congress. He is a top person in his field.
Dr. Haney was correct, Mr. Samuel continued, in assaulting the correctional system, because the system did not help Marco Topete. He went down the list in painstaking detail of the problems that Mr. Topete had and the failure of the system to treat his problems.
The system only created more problems, including gang affiliations. Mr. Samuel showed a photo of Mr. Topete when he first arrived in prison as a “green” looking 18-year-old – “notice no tattoos” he said. Two years later, he had quite a few tattoos, belying his gang affiliation.
He was then thrown out into society after serving nine years at Pelican Bay at the SHU (Security Housing Unit), where he had no physical human contact, he was in lockdown 23 hours a day, engaged in solitary exercise and had no treatment or rehabilitation to address known problems.
He described Mr. Topete as “psychologically ill-equipped to reintegrate into a free society,” and discussed the lack of reentry treatment, counseling or help. He was basically thrown to the wolves and when he could not survive, he snapped.
Mr. Samuel would then argue that mercy itself was an act of mitigation and that the jurors were free to show mercy.
“Marco is not the worst of the worst,” Mr. Samuel told the jury. “Yes, he’s responsible for what he did, but he does not deserve the death penalty.”
He added, “I submit there is no necessity to kill this defendant. There is no reason, unless you’re talking pure vengeance.”
Mr. Samuel would repeatedly argue that Mr. Topete will never be free again.
He concluded his case with the photo of Mr. Topete’s young daughter. “Celebrate life. Give life a chance. Vote for life,” he concluded.
The jury will now make the unenviable determination as to whether Mr. Topete lives or dies. 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.
—David M. Greenwald reporting
[quote]”We’ve got an outlaw father, and now we’ve got an outlaw son,” Mr. Samuel said…”
He would argue that Mr. Topete as the result of these experiences was “damaged goods”…
He described Mr. Topete as “psychologically ill-equipped to reintegrate into a free society,”… when he could not survive, he snapped.[/quote]
Frankly, I don’t think this helped the defense’s case…
[quote]He added, “I submit there is no necessity to kill this defendant. There is no reason unless you’re talking pure vengeance.”[/quote]
Actually another rationale is “deterrence”…
Elaine
Please provide evidence that the death penalty serves as a deterrent.
He’s making the case between lwop and death, I don’t know how much of a difference that will make.
One thing I do want to say is that while I may not agree with seeking the death penalty, I thought Jeff Reisig make a very strong and emotional case, it was a very good presentation. I was also impressed with the defense, but they have an impossible barrier here.
As I’ve opined before, I have very mixed feelings (moral, economic, etc.) about death penalty vs. LWOP… it is clear to me, absent great strides in medical/mental health treatment, Mr. Topete should NEVER be amongst us as a free man. I don’t think that the fact that his victim was a police officer should determine the final result. We should be facing the same choices whether he killed a pregnant woman or a homeless person, etc. I grieve for the victim’s family, Mr. Topete’s family, but I’m not a good enough person to grieve for Mr. Topete.
On a past blog, Rich, in arguing in favor of the death penalty, questioned me about whether life in solitary without possibility of parole was not less humane than the death penalty. I think for some individuals, he was doubtless right. So, I would like to get folks perspective on a different solution. Once we have come down to these two extreme alternatives, why not let the convicted and possibly condemned individual decide for themselves, death or isolation for life. Obviously this would apply to only the handful of cases in which there was zero doubt of guilt and no contention of innocence. For individuals choosing death, the society is protected without the costs of ongoing appeals.for those choosing isolation , society is still safe and we are no worse off financially than we are now. Would of course require major change in current law, but to paraphrase Elaine, if you don’t like the law ….change it,
[quote][i]”District Attorney Jeff Reisig made the closing case for the prosecution and tried to take that choice out of the hands of the jury, arguing that Mr. Topete had made these decisions and put himself in this place, their job was to simply follow the law.”[/i][/quote]Huh? How is this “trying to take the decision away from the jury”?
I agree both sides did pretty good with what they had to work with, although Elaine could be right to question whether the jury would be swayed in the “right direction” with portrayals by his attorney that he’s a bad seed now hopeless damaged.
A death penalty qualified jury won’t have a bit of sympathy, second thoughts or moral qualms about sending Topete on the way of all the others who clog up our death rows and expose the shame our system and the inhumanity of our supposedly civilized society. So, we’ll stumble along with a “deterrence” that’s been proven to encourage violence in our country.
[i]Que En Paz Descanse[/i],Tony Diaz.
medwoman, Good commentary. Reminds one of the options excercised by Gary Gilmore and Timothy McVey.
Personally, I’ve always felt that the death penalty was more about revenge than about justice. I also have a problem with the idea that killing a police officer is somehow worse than killing you or me or the homeless guy living in a box under a bridge. Life is life and killing is killing, and the fact that someone chooses a career that requires wearing a uniform doesn’t make that person’s life any more valuable than someone elses.
[i]”Please provide evidence that the death penalty serves as a deterrent.”[/i]
The only way (in my opinion) that the death penalty serves as a real deterrent is if it is carried out fairly soon after conviction. To me fairly soon is five years or less. Beyond that, there is a disconnect between the crime and the punishment. Memories fade; life goes on; the victims are largely forgotten (outside family and friends).
[i]”Personally, I’ve always felt that the death penalty was more about revenge than about justice.”[/i]
As a supporter of the death penalty, I agree. It is about revenge and it is about a punishment which fits the crime and it is about protecting society and it is about not allowing recidivism and it is about not locking up a human being in a cage for 80 years. It is about all of these things.
As to the arguments about whether a first degree murderer is more deserving of the death penalty because his victim was a police officer … I have mixed feelings. If the killer planned his killing in some respect and had malice aforethought, that in my view deserves capital punishment, regardless of who the victim was.
That said, I think as a general rule, our society’s safety will be better served if we make the punishmments for crimes committed against law enforcement officers harsher. Being a cop is a tough job and at times very dangerous. Cops are protecting all of us. I think it makes sense threfore that we give criminals who would endanger the life of a police officer–say in a chase situation where the bad guy drives his car head-on into a cop on foot–reason to think the criminal will be much worse off if he harms a cop than if he stops and is arrested peacefully. But since my belief is that all those convicted of first degree murder deserve to be executed, there would be no difference between choosing to murder a cop and choosing to murder any other person in our country.
mw asked: [quote]Please provide evidence that the death penalty serves as a deterrent[/quote]
When this defendant is dead he will not re-offend, period.
[quote]So, we’ll stumble along with a “deterrence” that’s been proven to encourage violence in our country. [/quote]
Once a convicted felon is dead he, himself, from that day forward, cannot encourage violence, can he?
Rich
I understand the points you are making. However, my question was with regard to evidence, not opinion. Do you have any evidence to support the deterrent value of the death penalty, preferably stratified by time from conviction to execution ?
AdRemmer
You are absolutely accurate that once executed, that one particular individual will never again encourage violence. Unfortunately, the imposition of violence upon him by our society totally belies the moral rationale for not taking human life. I
Hang him high .
While I”ve been gathering examples of innocent people being sentenced to death–the very worst of our death penalty’s collateral damages–and of the death penalty’s contribution to increasing violence in our society, I came across this: [quote][i]”The death penalty is a random act of brutality. Its application throughout the United States is random, depending on where the murder occurred, the race and economic status of who committed the murder, the race and economic status of the person murdered and, of course, the quality of the legal defense.”[/i] (State Senator Raymond Lesniak, who wrote the act to outlaw executions in New Jersey in 2007.)[/quote]Just thought you might find the thought of interest.
First I will say I am not opposed to the death penalty. That being said I do believe that the death penalty needs to reviewed. This case certainly isn’t a “who done it?” There is video. Many cases have DNA evidence. I think we have to look at the information on photo lineups and false convictions after the review of DNA evidence.
I believe LWOP is a more viable option for those convicted without DNA, video, or multiple eye witnesses. Not to say a death penalty case can’t be proven without them I just think the death penalty is easier to accept when we have the more solid evidence.
Food for thought.
Judging from Topete’s demeanor on TV and photos, and news stories, it would seem there is little doubt that Topete’s periods of time spent in prison almost certainly strengthened his gangsta ‘tude. This gangster attitude likely stuck with him, to a large extent, upon release from prison, and likely contributed to his desperate brutal reaction to being apprehended by the policeman.
So why do we have prisons in which prisoners are free to abuse each other, and often for personal safety one may be forced to join a prison gang, adopt a gangster attitude, and participate in intimidation, extortion, and other forms of brutality? Or be a victim of such brutality and build up an inner rage and other psychological problems.
Why not have a prison where the prisoners work: are too busy to cause trouble during work; and too tired to cause trouble at the end of the day? To prevent this from being a slave system; pay them something like minimum wage; with most of the money available to them only after release from prison? So if you are locked up for a year and work 40 hours/week at minimum wage; you’ll have ~$14,000 available when released. This gives the newly released prisoner a chance to get started on a low wage job and still have enough money to live decently; until he becomes more highly skilled and can earn decent wages; of course this should reduce the temptation to turn back to a criminal lifestyle.
For lifers or long-term prisoners, some of the money can be spent in prison for little luxuries–better TV; some deluxe meals, etc., in addition to sending out some $ to family or friends if desired.
“When this defendant is dead he will not re-offend, period.”
That’s not the definition of a deterrent. A deterrent is an action that convinces others not to commit that act, not an action that prevents the perpetrator from committing a future act.
Mr. Obvious: While I philosophically disagree with the death penalty, I think your view is very reasonable.
[quote][i]”I believe LWOP is a more viable option for those convicted without DNA, video, or multiple eye witnesses. Not to say a death penalty case can’t be proven without them I just think the death penalty is easier to accept when we have the more solid evidence.”[/i][/quote]An interesting point, indeed, since the state officially killing innocent people is a pretty repugnant practice for a supposedly civilized society.
Everyone is convicted on a “beyond reasonable doubt” standard. Juries likely work really, really hard to make sure that standard is met when they’re judging serious crimes.
But, it’s tough to move things even further–as you are trying to–to a “beyond [u]all[/u] doubt” requirement for imposing the death penalty. If we insist on killing humans who aren’t a threat to us, however, this would be an improvement.
[quote]Elaine: Please provide evidence that the death penalty serves as a deterrent.[/quote]
It is a rationale… I didn’t say I agreed with it. For instance, check out the following article in support of the death penalty:
[url]http://deathpenaltycurriculum.org/student/c/about/arguments/argument1a.htm[/url]
Here is another interesting article by NY Governor Pataki in favor of the death penalty as a deterrent:[url]http://www.prodeathpenalty.com/articles/pataki.htm[/url]
[quote]”The death penalty is a random act of brutality. Its application throughout the United States is random, depending on where the murder occurred, the race and economic status of who committed the murder, the race and economic status of the person murdered and, of course, the quality of the legal defense.” (State Senator Raymond Lesniak, who wrote the act to outlaw executions in New Jersey in 2007.)[/quote]
This is my problem with the death penalty… it depends too much on economic status, ethnicity of defendant/victim, what state the defendant lives in, etc. Too many mistakes are made in our legal system, and the death penalty is final – once executed, there is no way of undoing a mistaken conviction/execution…
“Mr. Reisig pointed out repeatedly that there was only one case in 2008 in which a peace officer was killed in California.”
The DA made people think that Deputy Diaz was the only peace office killed in 2008 however that is not true. He may be the only one killed with “a rifle” but not the only one who died in the line of duty in 2008 in California.
“Even with a Oakland gun battle that took four officers in March, California’s officer deaths represent a decrease compared to 2008, when 13 died on the job, including two Los Angeles Police Department officers (Randal Simmons, killed in a shootout, and Spree DeSha, taken in the Metrolink collision that killed 25 people).” SOURCE LA Weekly
By Dennis Romero Mon., Dec. 28 2009 at 4:43 PM
Comments (6)
Categories: City News, Community, Crime
DMV penned: [quote]That’s not the definition of a deterrent.[/quote]
My apologies, DMG – but my studies & experience in the field indicate otherwise. If I may once again suggest you try doing a little more research on the topic.
oops DMG…