It was not supposed to happen this way. But a juror’s shocking request to be removed from the penalty phase of the Topete trial has thrown a monkey wrench into the system.
What this means depends on who you ask. For his part, Judge Richardson simply called it a weekend and will have attorneys reconvene at 8:30 on Monday with the juror reporting an hour later.
District Attorney Jeff Reisig argued that this was evidence that she has impairment, and therefore that this is good cause to remove her. He said he has legal precedents to this effect.
However, the defense team disagreed, arguing that they would have to restart the proceedings, including the guilt phase, if she is to be removed.
During their closing argument, the defense noted that the default position is for life without parole. That means, if jurors are not unanimous, the defendant gets life. It is obvious here that there is one holdout and she is not comfortable going along with her colleagues. They do not get to dismiss her for that reason.
As one defense attorney pointed out to the Vanguard, there is no requirement that she sit there until the other jurors change her mind. She simply needs to say that she is not comfortable voting for death.
Not being able to make a decision is, in fact, a decision. The prosecution has simply not convinced her that death is appropriate.
Generally speaking, it is not appropriate for a juror to be replaced due to disagreement with other jurors. That is why we have deadlocks. If the judge were to replace this juror, it could jeopardize the entire verdict and penalty, and force them to start again from scratch down the line.
The options are not great, according to those we spoke with. In the worst case scenario, the judge could declare a mistrial, which would start it all over again. As we mentioned, replacing the juror would risk a reversal.
The other option is that the woman has to deliberate and make her choice and if she is not comfortable with death, then she votes for life as the default option.
It is ironic that, anticipating death penalty stages, they spend an inordinate amount of time death-qualifying juries to avoid this very problem.
But as critics like Natasha Minsker, Death Penalty Expert from the ACLU, told us, the death-qualification process cooks the books.
For one thing, she said, “Research shows that our prejudiced ‘qualification’ process produces juries that are more likely to convict. Prospective jurors who make the cut to serve are more likely to believe prosecution witnesses and less likely to ask probing questions.”
That was probably less of a risk in this case, which was admittedly not a whodunit, but the process also produces a jury who is “likely to sentence someone to death.”
“But it’s not just that all the people with moral qualms about the death penalty have been removed from the jury,” Ms. Minsker said. “The prospective jurors left after death qualification are more likely to view evidence as ‘aggravating,’ meaning it supports sentencing the person to death, and less likely to view the same evidence as ‘mitigating,’ meaning it supports imposing a sentence of life without possibility of parole instead.”
She added, “Death-qualified jurors view the facts and the evidence differently than do the jurors excluded from serving, differently in a way that favors the prosecution across the board.”
What happened here is exactly what this system is supposed to prevent. A juror who seems to be legitimately death-penalty ambivalent somehow snuck through the death-qualification phase.
But think about that for a moment, if you remove those who are by their very nature skeptical of the death penalty, is that not in essence cooking the books?
There have been problems with the Topete case from the start. In fact, surprising problems, given the fact that from the start there was no doubt that Mr. Topete shot and killed the deputy. Each time, the Yolo County system has found a way to keep the case moving, ever so slowly toward the inevitable.
This probably represents the biggest hurdle of all.
As we made the point yesterday, DA Jeff Reisig in his closing made the case that the death penalty was the only way to protect correctional officers from the wrath and anger of Marco Topete. The problem with that argument is that we know that Mr. Topete will not be executed for at least the next 20 to 25 years, if ever.
Mr. Reisig in his closing tried to take the choice away from the jury. By that I meant that he tried to put the decision regarding the death penalty on Marco Topete, due to his actions, so that the jury did not think that they were voting on whether or not to kill a person.
He argued that Mr. Topete was the sole author of this story and that his actions compel this verdict.
That clearly has not worked as anticipated. I think the plight of this juror demonstrates more clearly than ever that we should not be asking citizens to make the decision to terminate someone’s life. Is this appropriate for us to ask people to do?
I cannot imagine a more horrific choice to have to make, whether you believe in the death penalty or not, whether you believe Mr. Topete is a monster or simply a product of his dysfunctional and unsympathetic background.
I know how I felt as I left the courthouse on Tuesday and I had no tough decision to make. The closings set forth a highly-charged and emotional argument. We give them little guidance other than their own subjective views and collective consciousness.
To make matters worse, 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 and sometimes even that does not work.
So, we have a case where the guy is likely never going to be executed in the existing system, and a juror that cannot bear to make the tough decision. Why are we pushing this so hard? Why are we not saying enough is enough?
In the end, I am still where I was yesterday – only now with more evidence and fodder. We are trying to justify the murder of another human being by calling it justice. But we need to be honest, because it is not justice that we seek, it is vengeance. Maybe we need to stop deluding ourselves.
[quote]The prosecution has simply not convinced her that death is appropriate.[/quote]
Without talking to the juror that is speculation. She could be dealing with internal questions on the death penalty not necessarily the case at hand.
Without talking to the juror I read the statement about being from a foreign country to mean it is more of an ideological problem.
DMG opined: [quote]By that I meant that he tried to put the onus of this crime on Marco Topete[/quote]
I’m not following you – If the onus “of this crime” is [b][i][u] NOT [/u][/i][/b] attributable to the convicted felon; in your opinion, to whom is it attributable?
David meant that Mr. Reisig’s closing appeared to indicate to the jury that they had no choice, that their decision had already been made for them by Mr. Topete’s actions.
DA Resig’s argument that killing this convicted murderer will somehow protect the lives of others in the prison setting is completely nullified by the knowledge that he is going to spend the next 20-25 years in prison, filing appeals (at tax payer expense). All moral issues aside, economics alone dictate that a life without parole sentence will save the taxpayers millions of dollars. This is a no-brainer.
Perhaps the juror who is having difficulty voting for executing this convicted murderer is not morally opposed to the death penalty, but simply smart enough to do the math. That person may have put two and two together and figured out that sentencing this guy to death is going to cost the taxpayer millions and provide no more safety for anybody than life without parole.
[quote][i]”The options are not great according to those we spoke with….This probably represents the biggest hurdle of all (where ‘there have been problems with the Topete case from the start’.)”[/i][/quote]With whom did you speak, and what are the undesirable options they listed?
I don’t see this as a big issue. The judge will have this handled soon after the proceedings resume next week.
It shouldn’t be surprising that the DA and defense attorneys are trying to make something out of this–they’re always looking for an immediate advantage. You have to discount most everything they argue in the midst of trials. They’re not dependable as big-picture observers when they’re arguing at trial.[quote][i]”Mr. Reisig in his closing 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.”[/i][/quote]You’re way over-thinking this throw-away line. This is a death-penalty qualified jury; it doesn’t need the DA’s “permission” to do a thumbs-down to Topete.[b][quote][i]”Topete Juror Puts Death Penalty In Jeopardy and Exposes More Flaws in Death Penalty System”[/b][/i][/quote]We’ll see, but I think this won’t look like such a big deal to you very long.
highbeam is correct that is what I meant, but the way it is written I can see the confusion
” If you remove those who by their very nature are skeptical of the death penalty….”
I consider this one of the key problems with the death penalty. When serving on a jury, an individual does not give up their individual rights and responsibilities. What we are asking is that each of 12 individuals decide for themselves whether another human being deserves to live or die. It is to me ironic that they, as an individual are in exactly the same position as the accused in his or her decision to take or spare a life.
It does not matter to me that this is occurring with the trappings of civility in a court room or under the branches of a tree in a lynching ( “Hang them high”) as recently posted. The decision to take the life of another human being is the same. Calling it “criminal” on the one hand, and “justice” on the other does not change the essence of the decision. When our “justice system” eliminates an entire category of individuals,
namely those who are opposed to the death penalty, from the process, the system in itself is obviously prejudicial. So the author of “Hang them high” would probably qualify for a death penalty case, but I would not. Is someone seriously going to argue that this is not prejudicial ?
Further confounding the lack of morality of the decision by a single human ( juror in this case) to end the life of another is the inflammatory and prejudicial use of language. Dehumanizing another person by labeling them a “monster” allows for distancing and self justification, doubtless at least in part the same process that allowed Mr. Topete to take a life. Is it so far a stretch from the labeling and demonizing that we have seen in other posts where some of the least fortunate of our society have been labeled as “an infestation” and “slime”. We will be unable to build a truly just system until we are able to see all other humans and ourselves for what we are, unique combinations of positive and negative traits with variable expression and variable ability to control and regulate our own actions.
JustSaying:
Why don’t you see this as a big issue? You have a person clearly not comfortable with their decision, but guess what they have to make a decision. The way this is handled now will dictate whether this issue is put to rest or whether we revisit it when the appellate court reverses.
“You have to discount most everything they argue in the midst of trials. They’re not dependable as big-picture observers when they’re arguing at trial.”
That’s correct so I mostly relied on the view of non-participants.
“This is a death-penalty qualified jury; it doesn’t need the DA’s “permission” to do a thumbs-down to Topete.”
I like the line because it illustrates so well how unseemly a process this is.
“We’ll see, but I think this won’t look like such a big deal to you very long. “
I view it as yet another step in the inevitable. This entire exercise is a joke because he is never going to get convicted. The day that Marco Topete killed deputy Diaz is the day he got sentenced to death, if they cannot get the DP in this case, the DP is dead. I don’t think that is an overstatement at all.
[quote]…when the appellate court reverses. [/quote]
WHEN the appellate court reverses? How about a less agenda driven word like “IF”?
You took my comment out of context.
The “when” refers to the consequences of an incorrect handling, it doesn’t presuppose an incorrect handling.
Let me preface what I am about to say by noting I am opposed to the death penalty, bc of the unfairness of the system (innocents being convicted), and because it is essentially not carried out in CA.
We do not know why this woman has decided she is reluctant to impose the death penalty. If it is philosophical, she never should have agreed to be seated on the jury (which is I’m sure what the judge will say to her, or something to that effect). If it is because she does not believe this killing rises to the level of deserving a sentence of death, that is another story. My guess is the judge in such a case would tell the jury to go back and deliberate some more. It is a bit early to draw any conclusions… trials are rarely “perfect”.
[quote]The day that Marco Topete killed deputy Diaz is the day he got sentenced to death, if they cannot get the DP in this case, the DP is dead. I don’t think that is an overstatement at all.[/quote]
But it is also a statement that basically says Topete is deserving of the death penalty…
Not at all Elaine. It is a statement that acknowledges the realities of our death penalty system that weighs the life of a peace officer as its pinnacle. You have a first degree murder, special circumstances, no question about guilt, and if the DA cannot get a DP sentence from their death qualified jury, the DP is dead. Does that mean I believe he deserves the DP? Not at all.
Perhaps there is a knowlegeable attorney who can enlighten me/us…. if the woman is “conflicted”, why can’t she just vote for LWOP? If the jury “hangs” on the DP punishment, I thought it defaults to LWOP… I may be wrong… but I do NOT understand why David says that the verdict itself (guilty) would be undermined by the events that are playing out. If someone can illuminate on this…
From [url]http://www.capitalpunishmentincontext.org/resources/deathqualification[/url]:
[quote]United States Supreme Court Cases on Death Qualification
RESOURCES
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Witherspoon v. Illinois (1968)
The Supreme Court held that prospective jurors could not be disqualified from jury service simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against it. However, a state may exclude those jurors who would automatically vote against the death penalty or those jurors whose attitudes about the death penalty would affect their decision regarding the defendant’s guilt or innocence.
Wainwright v. Witt (1985)
The Supreme Court replaced the death qualification standards of Witherspoon with the standards of Wainwright v. Witt. The Witt standard gave more discretion to the judge in death qualification. The judge decides whether the jurors’ attitudes toward the death penalty would “prevent or substantially impair” their ability to decide on sentence fairly. This decision broadened the range of people who could be excluded by death qualification.
Lockhart v. McCree (1986)
In Lockhart v. McCree, the results of the empirical research on the effects of death-qualification came before the Supreme Court. The court held that the process of death-qualification does not unconstitutionally bias juries towards a verdict of guilt. Justice Rehnquist criticized the research, but ultimately the Court held that general empirical research could not decide the issue; instead, a defendant would have to demonstrate that his or her own jury was biased.
Uttecht v. Brown (2007)
The Supreme Court held that when a capital juror is disqualified and that decision is challenged on appeal, the court should generally defer to the decision of the trial judge who was in a position to observe the juror’s demeanor. In a 5-4 decision, the Supreme Court upheld a trial judge’s exclusion of a juror who had expressed some hesitation about imposing the death penalty, but was not totally opposed to it. The juror from the state of Washington stated on six occasions during voir dire that he could follow the law on applying the death penalty. However, some of his other statements were equivocal and the judge excused him from jury service.[/quote]
More from the same website:
[quote]However, jurors must find that at least one aggravating factor has been proven by the prosecution beyond a reasonable doubt in order to find the defendant is eligible for the death penalty.
The Capital Jury Project found that 45% of jurors failed to understand they were allowed to consider any mitigating evidence during the sentencing phase of the trial, not just the factors listed in the instructions. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation. The law allows that even if only one juror finds a factor to be mitigating that finding is relevant for the whole jury. The Project also found that 44% of jurors believed the death penalty was required if the defendant’s conduct was heinous, vile or depraved, even though the Supreme Court has ruled that the death penalty cannot be required because specific aggravating circumstances have been established.
Jurors often have a difficult time sentencing a defendant to death, in part because it is an inherently vague process, especially in terms of weighing mitigating and aggravating factors. Jurors are typically told to weigh the aggravating and mitigating circumstances presented in the case, but they are not given any scale to perform this task.
Understanding Jury Instructions
RESOURCES
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It can be very difficult for ordinary citizens to understand the abstruse legal framework that the courts have constructed around the death penalty. Craig Haney, a prominent psychologist in California, found that even well-educated people misunderstood the instructions to the jury. His research indicated that:
California’s entire penalty instruction is very poorly understood by upper-level college students, that these problems are not clarified in actual cases through attorney arguments, and that jurors who had served in actual capital cases were plagued by fundamental misconceptions about what the instructions meant.[/quote]
[quote]Perhaps there is a knowlegeable attorney who can enlighten me/us…. if the woman is “conflicted”, why can’t she just vote for LWOP? If the jury “hangs” on the DP punishment, I thought it defaults to LWOP… I may be wrong… but I do NOT understand why David says that the verdict itself (guilty) would be undermined by the events that are playing out. If someone can illuminate on this…[/quote]
I am an attorney, but do not in general practice criminal law. From my brief research, there doesn’t seem to be an easy answer to your question. I suspect what will happen is the judge will try and elicit the reason for the juror’s hesitation in applying the death penalty. If it is philosophical, the juror will most likely be reminded of her duty; if it is based on mitigating factors, I suspect the judge will order the jury back to deliberations. This sort of back and forth is not all that uncommon in criminal trials…
Upon further research, see CA Penal Code Sec 109.4(a):
[quote]In any case in which the defendant has been found guilty by a
jury, and the jury has been unable to reach an unanimous verdict that
one or more of the special circumstances charged are true, and does
not reach a unanimous verdict that all the special circumstances
charged are not true, the court shall dismiss the jury and shall
order a new jury impaneled to try the issues, but the issue of guilt
shall not be tried by such jury, nor shall such jury retry the issue
of the truth of any of the special circumstances which were found by
an unanimous verdict of the previous jury to be untrue. If such new
jury is unable to reach the unanimous verdict that one or more of the
special circumstances it is trying are true, the court shall dismiss
the jury and in the court’s discretion shall either order a new jury
impaneled to try the issues the previous jury was unable to reach
the unanimous verdict on, or impose a punishment of confinement in
state prison for a term of 25 years.[/quote]
Sounds as if there is no unanimous verdict as to special circumstances requiring the death penalty, a new trial will be ordered. If anyone else has a different take on the law, or who knows criminal law, please speak up…
Again, I think the judge will take this juror aside and find out the problem, and act accordingly…
[quote][i]”I view it as yet another step in the inevitable. This entire exercise is a joke because he is never going to get convicted. The day that Marco Topete killed deputy Diaz is the day he got sentenced to death….”[/i][/quote]Assuming you intended to type “executed” (rather than “convicted”), I agree. It’s also difficult to imagine that Topete did not know that truth as well, but here he is. (So much for the concept of the death penalty serving as a deterrent, eh?)”[quote][i]if they cannot get the DP in this case, the DP is dead. I don’t think that is an overstatement at all.”[/i][/quote]I view it as an overstatement because nobody will care about the Topete case beyond Yolo County–it will not drive any future death penalty legislation, decisions or discussion. Before long, no one will give a flying fig about Topete’s problems except the family he cared about so little that he chose the route he’s taken.
I hate the death penalty and all the inhumanity it represents. Topete and many others like him are like gnats in the death penalty “big picture.” It’s a waste of your time to use this case as “another nail” example. Try to find someone who thinks Topete got anything other than what he deserved.
On the other hand, a single example of an innocent who is executed (or even a couple sympathetic but guilty, say abuse victims, who get executed). might sway some to think more like medwoman and you do about the death penalty. However, I’d be pleased to have you show that I’m too cynical about this.
I can’t imagine a death-penalty “qualified” jury going any other way in this case, but you know better than most how many things could trip up the DA’s efforts here. Many of the potential complications have nothing to do with the death penalty itself. In any case, nothing that happens in this trial will mean anything for the future of the death penalty
[u]Off-topic comment of the day[/u]: Has anyone noticed that the [u]Enterprise[/u] has quietly switched from being an afternoon publication to a morning paper? I was just starting to get used to it changing from a daily to an occasional newspaper.
My understanding is that if there is no unanimous finding for death, then the result reverts to the default of life.
JustSaying:
I think it is reasonable to believe that at some point Marco Topete realized he was going to prison for life. I also believe at some point given anger issues and alcohol that he probably was not thinking clearly when he committed the crime. In general I don’t believe the DP is a deterrent because most people who kill are doing it in the heat of passion (and those crimes are generally not subject to the DP) and those who are not are not thinking rationally or clearly either.
“I view it as an overstatement because nobody will care about the Topete case beyond Yolo County”
I understand that, but I see it as reflective of the breakdown in support for the DP by those in the population.
“Try to find someone who thinks Topete got anything other than what he deserved. “
But that’s my point. It’s not about whether Topete himself is important, it’s that here is a guy who only the strong anti-death penalty people would conceive of as not getting what he deserved and at least today it is very much in question as to whether he will be sentenced to death let alone ever executed.
I am thus making a form of the canary in the coal mine argument rather than what I think you are interpreting as a exemplar case argument.
[quote]My understanding is that if there is no unanimous finding for death, then the result reverts to the default of life.[/quote]
Where in the law do you see that? Please cite the statute…
Also important to note is article in Davis Enterprise tonight which says:
[quote]”I’ve tried my best, but now I see that I am dragging other “(jurors) down” said the note [from the juror]… The note did not say whether any votes had been taken or if the woman is a lone holdout among other jurors. THE JUROR ASKED TO BE EXCUSED AND REPLACED BY ONE OF THE PANEL’S FIVE REMAINING ALTERNATES… [Judge} Richardson did not immediately act on the request…[/quote]
The juror in this case is asking to be replaced by one of the alternates. The prosecution is arguing she should be replaced; the defense arguing she should not be allowed to be replaced. The Uttecht v Brown case may apply. But I think we have to wait and see what the judge decides to do – he has a number of options from what I can tell…
It appears I was told incorrectly, PC 290.4(b) makes it clear that the verdict needs to be by unanimous verdict or it is in effect a hung jury.
So she wants off the jury. Who wouldn’t.
[quote]It appears I was told incorrectly, PC 290.4(b) makes it clear that the verdict needs to be by unanimous verdict or it is in effect a hung jury.[/quote]
According to my research PC 290(b) reads:
[quote](b) The income from the operation of the service specified in
subdivision (a) shall be deposited in the Sexual Predator Public
Information Account within the Department of Justice for the purpose
of the implementation of this section by the Department of Justice.
The moneys in the account shall consist of income from the
operation of the service authorized by subdivision (a), and any other
funds made available to the account by the Legislature. Moneys in
the account shall be available to the Department of Justice upon
appropriation by the Legislature for the purpose specified in
subdivision (a).[/quote]
I think you want what I cited, which is PC 109.4(a)…
Correction: PC 290.4(b) reads…
As I said before, according to CA Penal Code 109.4(a):
[quote]Sounds as if there is no unanimous verdict as to special circumstances requiring the death penalty, a new trial will be ordered.[/quote]
But the judge still has some discretion in talking to this juror, to remind her of her duties; talk to the jury to find out if she is the only one with doubts; determine if there is any reason to continue deliberations…
Apparently I’m dyslexic too.
[quote]Apparently I’m dyslexic too.[/quote]
No worries. Just wanted to make sure we were on the same page as to what was relevant law in this situation… Interesting conundrum for the judge…