Lost in the melee of the pepper spraying incident is an interview of a juror by Davis Enterprise reporter Lauren Keene, whose interview now casts doubt on the dismissal of the other juror, ostensibly for language reasons.
“If that lady had not been excused, we would have been a hung jury,” the juror said.
The juror “added that while he believes Topete is deserving of the death penalty,” he believes “the law was not properly administered in this case.”
The Enterprise reports, “According to the Davis man, the holdout juror expressed belief that it was Topete’s abusive childhood and the influence of his father, who reportedly took his son on drug-dealing transactions, that guided Topete’s actions.”
“He said the woman seemed fixated on a photograph displayed during the trial that showed a young Marco posing with his father in front of a Christmas tree, rifles slung around their shoulders.
The Enterprise quoted the juror, ” ‘She said his upbringing was the reason he turned out so bad, ‘ the juror said. ‘She hung her hat on those psychologists and psychiatrists’…who testified about the impacts of Topete’s childhood, violent surroundings and years of incarceration.”
“The juror said while he also found the defense experts persuasive, ‘it does not outweigh the things (Topete) did.’ “
Quite clearly this revelation puts in jeopardy the death sentence recommendation, and, indeed, the entire verdict.
Juror No.11 sent the Court a hand-written note asking to be excused from further deliberation and replaced with an alternate juror.
Juror 11 wrote, “Your Honor: I was raised in foreign country and it is very difficult for me to make a dessision from point of view of this country. I tried my best, but now I see that I am dragging other juries down. I am asking you to replace me by alternative juror, please.”
After making the decision to do an inquiry, Judge Richardson agreed with the District Attorney that language was the issue.
But even at that time, we questioned whether the juror was directed by the judge’s questions to take the language issue as the reason for the note as the easiest path to dismissal. Lending credibility to our belief was that originally she said that the language barrier was “partially” the issue.
However, the judge never returned to the phrasing of “partially,” and eventually she suggested that language was the sole issue.
At the time, Defense Attorney Dwight Samuel noted, “We don’t have a major language problem here.”
Moreover, as our experts noted, she did not have a language problem in the guilt phase and had no trouble conversing and understanding the issues when Judge Richardson conducted his inquiry.
Now this fellow juror has acknowledged to the Enterprise that the language issue “was never discussed in the jury room. She never said she was not capable of understanding.”
Instead, he argued that “other jurors, including himself, challenged the woman’s views on the death penalty, and she may have found the pressure to be too much to bear.”
The Enterprise reports, “The Davis man said in his opinion the aggravating factors – including Topete’s increasingly violent criminal history, his gang ties and his use of an assault rifle to murder a law-enforcement officer – eclipsed any mitigating ones offered by the defense.”
“He does not deserve to be in this society. But justice has not been served as far as the system is concerned,” he said. “This lady circumvented the system by writing this silly note.”
The Enterprise cites the legal opinion of Ruth Jones, a criminal law professor at McGeorge School of Law in Sacramento and a former prosecutor, who “said Monday that the juror’s revelation is likely to be one of many issues Topete’s defense lawyers will raise on appeal.”
The Enterprise adds, “But she cautioned that his statements are not evidence or part of the official record. What the appellate court will review, she said, is whether there was sufficient evidence to support the Russian juror’s release due to a language difficulty, and, if so, whether she should have been involved in the case’s guilt phase.”
Our own experts point out that, because Mr. Topete has not been sentenced yet, it is possible for Judge Richardson to act now to protect the sanctity of the process that has now apparently been compromised.
Our experts believe that the judge may have the choice of declaring a mistrial, in which they would have to start over again. An alternative would be simply to sentence him to life without parole, which would nullify the legal questions that are now lingering.
The Enterprise’s expert, Professor Jones, seems to suggest, “The holdout-juror matter [to be] a ‘colorable,’ or plausible, legal claim – one that is more likely to have merit than issues that are raised as a matter of form.”
“There’s enough evidence there that both sides would have good arguments,” Professor Jones said. “It is difficult to predict how the appellate court might rule.”
She does not seem to acknowledge the possibility that this could be handled prior to appeal.
Call this yet another strange twist in a matter that likely will not end any time soon.
—David M. Greenwald reporting
First off, the unidentified juror in the newspaper article was expressing an opinion, not a fact. His assessment of the dismissed juror–and the impact on the ultimate finding–was conjecture, not a fact.
The dismissed juror cited a language/cultural issue as a basis for requesting dismissal. It was presented in writing. The judge acted on that information alone, consistent with this responsibility in such a circumstance.
The most pragmatic and legally defensible choice for Judge Richardson is to disregard the recommendation of the jury and impose a life sentence. It will save the State hundreds of thousands of dollars, since it pays for both sides to argue and posture (and ultimately rule) for literally years to follow. Alas, justice is not supposed to have a price tag, so that can’t be at least an open consideration by the judge.
The other very pragmatic consideration is that the convicted killer will probably outlive many of us even should he be placed on death row. Judge Richardson risks incurring the wrath of death-penalty advocates and friends and family who interpret justice as requiring another person to die. But if Judge Richardson were to impose a life sentence, I’d tell him that he has the wisdom we look for in persons holding such a crucial role.
It really doesn’t matter. Topete will spend the rest of his life in prison. He will never be executed and we will spend hundreds of thousand of dollars talking about his actions and his trial. It would have been better if the jury gave him life without parole. He would have to just sit in prison and we could be done with him.
I think the potential was that this juror would have been guilty of perjury. The question would have been asked if she had any moral objection to the use of the death penalty. Apparently she lied about that.
Phil: I disagree with you that it’s conjecture, at least if you are going to use conjecture as a pejorative. It is at worst informed conjecture based on what he directly witnessed and I believe based on what we know it is accurate. In fact, it is pretty much what I and others suspected at the time.
Jeff: It’s not clear that the juror is saying that she would not vote for the DP under any conditions, it sounds like she believed the defense’s case.
“The question would have been asked if she had any moral objection to the use of the death penalty. Apparently she lied about that. “
We would have to look up exactly how they can phrase death qualification, I doubt any moral objection would fly, I think it would have to be whether they are willing to consider the death penalty.
Keep in mind that these comments were made anonymously to the Davis Enterprise (at least, the juror wishes to remain anonymous). They contain statements of what he believes another juror was thinking. Also keep in mind that the comments on the story reflect that the other 11 jurors will tell a very different story.
Initially the media report was that she was stepping down due to language challenges. My guess was that other jurors raised the issue of her refusal to consider the death penalty and the “I did not understand the initial questions asked me during jury selection” strategy was used to prevent a charge of perjury. This is a guess based on my Spidy Senses.
David: You could be right, but this is what I initially believed her original message was trying to communicate.
Jeff: I believe her original note indicated this was the problem, however, once the Judge offered her the way out using language as the reason, she took it.
It is my understanding that the problem manifested itself in the penalty phase, but not the guilt phase for the following reason:
During the guilt phase, the evidence was mostly presented in court, and the deliberations were basically discussions about the guilt while reviewing the testimony and physical evidence. Her language wasn’t much of a barrier to the conversation based on guilt.
During the penalty phase, the jurors were presented with something on the order of a thousand pages of discovery (personal letters, written reports, etc) that they read through. She was having difficulty here for two reasons. First was the inability to understand and process much of the written material. Second was the discussion around specific terms. She was having problems with terms such as “remorse,” which she was unaware of any Russian equivalent. Her language was causing her to not participate because she was having trouble following the conversation.
dgrundler, Thanks for that explanation. It makes sense.
This reminds me of why I look at expectations for multi-culturalism a bit differently than some of my friends. Effective communication is a necessary requirement for an increasingly complex world. She should not have been selected as a juror, but I bet there are legal issues for rejecting someone because English is a second language.
Removal of the juror was incorrect, and most likely reversible error. It calls into question the liability conclusion, too. Thanks, District Attorney, but it’s not your money wasted here, is it?
JB said
“I think the potential was that this juror would have been guilty of perjury. The question would have been asked if she had any moral objection to the use of the death penalty. Apparently she lied about that.”
I object to the idea of excusing jurors who have a moral objection to the death penalty. How can a murder defendant get a fair hearing (jury of peers) when 33% of the pool is eliminated simply because they do not like the death penalty. For murder cases we are changing the playing field of Justice which is obviously not fair – skewing the decision toward guilt and toward death. Another reason to eliminate the death penalty.
Alphonso said:
[quote]I object to the idea of excusing jurors who have a moral objection to the death penalty. How can a murder defendant get a fair hearing (jury of peers) when 33% of the pool is eliminated simply because they do not like the death penalty. For murder cases we are changing the playing field of Justice which is obviously not fair – skewing the decision toward guilt and toward death. Another reason to eliminate the death penalty.[/quote]
The flip side of that argument is also true. How can justice be served if there are people on the jury that will refuse to find a defendant guilty, regardless of if they believe him/her to be guilty or not, simply because they have moral objections to the death penalty?
PHIL: [i]”First off, the unidentified juror in the newspaper article was expressing an opinion, not a fact.”[/i]
Not true. Not true at all. The unidentified juror said, “She said under no circumstances will she go for the death penalty.” He either heard her say that and therefore what he told the Enterprise is a fact. Or he did not hear that and thus what he told the Enterprise is a lie. In neither case is what he said “an opinion.”
PHIL: [i]”His assessment of the dismissed juror–and the impact on the ultimate finding–was conjecture, not a fact.”[/i]
Again, wrong. Your assessment of the situation is conjecture. His statement that she said she would not vote for death under any circumstances is a fact or a fabrication. It is not conjecture.
My own guess–conjecture if you will–is that there was a language problem to some degree from the very start. I suspect that Juror No. 11 probably would have a serious qualm with imposing the death penalty in any case, this one included. I would not be surprised, however, if she did not understand during voire dire that in order for her to serve on this jury, she had to have no qualm if the facts fit the case and the judgment of guilt. I suspect that if she really understood that qualification she would have spoken up from the start. I doubt it was her intent to perjure herself.
I also guess–more conjecture on my part–that she probably did not understand everything that was spoken during the trial. Even if someone is fully fluent, the language in a trial can confuse some jurors who are not familiar with courtroom language. As someone whose English is limited, as this Russian lady is, she probably could not fully grasp some testimony during the trial. I say this based in part on my own experience. I am fluent in Spanish. I can communicate whatever I need to. And I can follow the news in Spanish or understand conversations or dramas, etc. But I can also struggle: sometimes I cannot understand what little kids are saying in Spanish. Sometimes technical terms elude me. Sometimes uncommon verbs throw me for a loop. And sometimes I am just not mentally in the right frame of mind to follow a conversation, such as trial testimony, for an extended period of time. Perhaps this Russian woman’s English is roughly comparable to my Spanish. If so, I conjecture that she did not follow all the testimony as easily as native English speakers on the jury did.
That then gets to the guilty/not guilty phase. I suspect she heard and knew and understood enough to find Topete guilty. But I doubt, based on her withdrawal from the case, she really could express her full thoughts in that deliberation. I just sense she went along with it, because she probably agreed with it. (It would be hard not to think Topete murdered Tony Diaz.)
I conjecture that the Davis juror is being truthful. Why would he have any reason to lie? He heard No. 11 say that she would not impose the death penalty. She probably could not express her reasoning why in English. She probably was uncomfortable admitting that she did not understand the voire dire process at the start of the case. So a convenient fib for everyone was to get her off on the language claim, which probably is the truth, but not the full truth. The full truth, I conjecture, is filled in by the Davis juror who heard her say she was not going to vote for an execution no matter what.
Rifkin: [quote]I conjecture that the Davis juror is being truthful. Why would he have any reason to lie? [/quote] Why would he come to the Enterprise a week later and tell this story? Reason and motivation are very interesting here. Again, the other jurors tell a different story.
[i]”Why would he come to the Enterprise a week later and tell this story?”[/i]
Why? Seems obvious. He thinks an injustice was done by removing her for the false story of her English language skills when he heard her say she would not impose the death penalty. The Davis juror, like all the others, voted for guilt. He also voted for Death. So his problem was not that Topete would be sentenced to die. His problem was that an injustice against the system was done.
[i]”Reason and motivation are very interesting here. Again, the other jurors tell a different story.”[/i]
I have not heard any other jurors contradicting this or speaking out at all. Why would you say the other jurors are telling a different story?
Moreover, unless the Davis juror is lying or unless the Davis juror heard the Russian woman incorrectly, the other jurors may simply not know what the Davis juror heard. So for them to say one thing but leave out this does not mean one group of jurors or the Davis juror is being untruthful.
[quote]I have not heard any other jurors contradicting this or speaking out at all. Why would you say the other jurors are telling a different story? [/quote]
Rich, read the comments in the Enterprise story. Two are yours, and the other two are jurors.
dgrundler,
Russians know no remorse?
No wonder russian criminals are sent to Siberia, to chill out!
rifkin wrote: [quote]He either heard her say that and therefore what he told the Enterprise is a fact.[/quote]
Let us agree to disagree…
In a court related matter, what a person thought he ‘overheard’ is NOT an established ‘fact.’
Would you agree to use your logic/standard in the Meth sales matter?
If so, said defendant is guilty because the officer reported his observations to another, ergo it is “fact.”
Right?
David: “Rich, read the comments in the Enterprise story. Two are yours, and the other two are jurors. “
It is very far from clear that both are from jurors. one could be. The other likely is not.
[i]”It is very far from clear that both are from jurors. one could be. The other likely is not.”[/i]
Agreed. I don’t see any reason to think that either one of them was a juror on this case. The person who calls herself “Noelle” sounded like she thinks she knows what other jurors think in saying: “You will find a very different version of events from other jurors.” Yet Noelle is not saying she was a juror on the Topete case. I suspect, if she has any connection at all, Noelle is connected to the prosecutor or the judge.
“Greg” made it perfectly clear he was not on this jury when he wrote, “I’d argue that the jurors in the case just want to get back to their normal lives.” If he were a juror, he would not have to speculate what jurors want. He could just speak for himself as a juror.
One reason I found the Davis juror’s explanation of what juror No. 11 had said so unsurprising is because when this story first arose, before Judge Richardson announced he was replacing her, the news stories suggested that her real problems were as much if not more cultural than they were idiomatic.
Here is a quote from the Sacramento Bee on November 11: “She said in her note she was raised in a foreign country and was having difficulty make a decision from the American perspective on the death penalty.” Does that sound like someone who cannot deliberate because of a language barrier? I don’t think so. It sounds like someone who opposes the death penalty to me. It made me think at the time that the judge and the DA screwed up in voir dire, probably because this Russian woman may have given them incorrect answers at that time based on some language barriers.
Again, I think language skills did play a role in what ultimately happened. But what the Davis juror says happened still rings true: that once No. 11 realized that it what her job to vote for the death penalty, and she understood that all of the others were going to do that, she wanted out, because she opposes capital punishment. I see no reason to think she wanted out at that point merely due to her English skills.
Noelle is a juror. She is the one who spoke to the media on the day the penalty was announced. I also think you are misreading Greg’s comment. He was also one of the jurors, and wants to get back to a normal life.