YOLO COUNTY NEWS

Crime, Fire + Courts

Yolo DA opposes bid for new Topete trial

By From page A1 | January 08, 2012

A Yolo Superior Court judge was “proper” in his removal of a juror from the death-penalty trial of Marco Topete, whose bid for a new trial should be denied, prosecutors said in a court document filed Thursday.

In a response to a motion by Topete’s defense attorneys for a new trial, Supervising Deputy District Attorney Garrett Hamilton said Judge Paul Richardson “established a complete and thorough record” before dismissing Juror No. 11 due to her insufficient command of the English language.

The removal occurred during the penalty-phase deliberations for Topete, who had been convicted of murder with special circumstances for the June 15, 2008, fatal shooting of Yolo County Sheriff’s Deputy Jose “Tony” Diaz.

On the second day of discussions, the juror sent Richardson a note indicating she was “raised in a foreign country and it is very difficult for me to make a dessision (sic) from point of view of this country.” She asked to be replaced with an alternate juror.

Richardson questioned the woman away from the other jurors before ruling that she should be dismissed.

“Her responses that she was having difficulty in understanding the concepts, evidence and law as they pertained to the penalty phase of the trial were a demonstrable reality, as required by law,” Hamilton wrote. “As such, her discharge from the jury was proper.”

The judge replaced Juror No. 11 with a male alternate, and the jury deliberated two more days before recommending that Topete, 39, should be sentenced to death. A sentencing hearing is scheduled for Thursday.

In their bid for a new trial, defense attorneys Hayes Gable III and Dwight Samuel produced a declaration from another juror in the case, who contacted The Davis Enterprise shortly after the Nov. 16 death-penalty verdict to voice concerns about the removal of his fellow juror.

Juror No. 6, a Davis resident, described the woman as a holdout who believed Topete should be sentenced to life in prison without the possibility of parole. He said the woman was swayed by defense experts who blamed Topete’s behavior on his abusive and violent upbringing.

The woman submitted her note to Richardson after being pressured by other jurors to change her mind, the declaration said.

Hamilton dismissed the juror’s statement as “inadmissible hearsay,” saying the declaration was not signed under penalty of perjury and seeks only to impeach his fellow juror’s testimony.

“It details what Juror No. 11 was thinking, and what effect certain types of evidence were having on her,” Hamilton wrote. Jurors’ thought processes are inadmissible under case law, he added, calling the declaration “a clear violation of the sanctity of the deliberation process.”

Gable and Samuel also have argued that if Richardson upholds his decision to remove Juror No. 11, then Topete should receive a new guilt-phase trial because the woman may have been impaired from the very beginning of the proceedings.

Not so, responded Hamilton, who noted that the woman expressed to Richardson she was having trouble understanding “legal documents” the jury received during the penalty phase.

“She made no mention or indication that she had difficulty in the guilt phase with the evidence or the instructions,” Hamilton wrote. “As such, no presumption can be made that because she had difficulty in the penalty phase that she had difficulty in the guilt phase.”

— Reach Lauren Keene at [email protected] or (530) 747-8048. Follow her on Twitter @laurenkeene

Lauren Keene

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