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Topete case heading to trial

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March 1, 2011 |

Marco Topete faces the death penalty for fatally shooting a Yolo County sheriff's deputy in June 2008. Enterprise file photo

WOODLAND — Hours before he allegedly shot and killed a Yolo County sheriff’s deputy, Marco Topete was involved in another shooting in Woodland, but fled the scene before authorities arrived, Yolo County prosecutors say.

Topete may have believed Deputy Jose “Tony” Diaz knew about the earlier shooting and was intent on arresting him. Prosecutors say Topete also likely knew he was a “three-strikes” candidate facing life in prison if convicted of another serious felony.

“He has nothing to lose in taking the life of this deputy,” Supervising Deputy District Attorney Garrett Hamilton said this week in Yolo Superior Court, where attorneys in Topete’s death-penalty trial argued a series of pre-trial motions.

The discussions offered a glimpse of the evidence lawyers plan to present in the case, information that has not been widely disseminated due to a gag order and the lack of a preliminary hearing in the case.

Instead, prosecutors took the case to the grand jury for an indictment, a hearing that was held behind closed doors and the transcript sealed.

Now, the case is gearing up for trial, with 850 potential jurors being summoned to court in the next couple of weeks. That group will be whittled down to about 85 deemed qualified to hear a death-penalty case.

From those, attorneys will choose 12 jurors and six alternates. The full jury-selection process is expected to take about five weeks.

Attorneys also debated this week the scope of gang-related testimony that will be offered in the case. Prosecutors say they plan to argue that, in addition to his three-strikes status, Topete was a longtime Norteño gang member for whom killing a law-enforcement officer would earn him respect in prison.

“This is, for lack of a better term, a fisherman catching a whale,” Hamilton said.

One count in Topete’s indictment charging him with criminal street gang activity had been dismissed in December but was later reinstated. He also faces a special-circumstance allegation of murder by an active gang participant.

The pre-trial motion process has been largely unsuccessful for Topete’s court-appointed defense attorneys, Hayes Gable III and Tom Purtell, who saw many of their requests denied by Judge Paul Richardson.

They included an attempt by Gable and Purtell to preclude the death penalty as a possible punishment for Topete. They argued that the state’s excessive delay in imposing capital punishment constitutes cruel and unusual punishment.

According to Purtell, only 13 of the state’s 700-plus death-row inmates have been executed in the past 30 years. At that rate, it would be 1,400 years before Topete is put to death, he said.

“Our point is that it’s a useless process. It’s a cruel hoax on everybody,” Purtell said.

Richardson disagreed. Later, he chastised the veteran defense attorneys for the lack of discovery materials they have handed over to the prosecution.

Hamilton said all he’s received from the defense are “a bunch of brain scans,” along with a doctor’s opinion that the images — presumably of Topete — are “consistent with the toxic effects of solvents on the brain.”

Richardson said Monday he was “troubled” by the lack of information being produced, including a list of witnesses who are expected to testify on Topete’s behalf.

“That’s inappropriate, and it flies in the face of what’s expected of defense counsel,” said Richardson, who issued a formal court order for the defense attorneys to hand over material by Friday.

Gable, meanwhile, responded that he and Purtell are well aware of the rules of discovery. He said the problem lies with the defense experts, who have yet to provide any written reports they can share with the prosecution.

“We can’t give what we don’t have,” Purtell added.

Topete, 38, read a book during most of Monday’s proceedings, during which he sat in courtroom’s jury box.

But he seemed to play closer attention to discussions of the restraints that court security personnel want him to wear during the trial — leather cuffs around his ankles and wrists that would keep one arm attached to his waist.

Sheriff’s Lt. Carter Vaughn testified that the restraints are necessary due to Topete’s alleged history of “behavioral issues” at the Sacramento County Jail, where he’s been housed while awaiting trial.

Vaughn said Topete has been found with makeshift weapons inside his jail cell and therefore poses a threat to courtroom safety.

But under cross-examination by Purtell, Vaughn admitted that Topete has not been violent or tried to escape during any of his 35 trips to and from the Woodland courthouse since his arrest.

Purtell also argued that the cuffs, if seen by the jury, could be prejudicial against his client.

“There’s a need for dignity and self-respect — innocent until proven guilty, your honor,” Purtell said.

Richardson was expected to rule on the restraint request later this week.

By the time attorneys present their opening statements to the jury, it will have been nearly three years since the 37-year-old Diaz was fatally shot on a rural Dunnigan roadway on June 15, 2008.

The process leading up to trial has been anything but typical.

First, there was the much-publicized public lockout from Topete’s arraignment hearing, followed by an attempt by the Yolo County Public Defender’s Office to get all of Yolo County’s judges disqualified from hearing the case.

That bid was withdrawn when Gable and Purtell took over the defense, though the case went through two judges before landing in Richardson’s courtroom in 2009. Topete later tried a second time to have Richardson disqualified, but an outside judge turned him down.

The case appeared to be back on track until last August, when Topete — frustrated by Richardson’s refusals to delay the trial from October until March — filed a motion to act as his own attorney.

But Topete reversed course in December after discovering that investigators and experts were reluctant to work on his case.

— Reach Lauren Keene at [email protected] or (530) 747-8048. Comment on this story at www.davisenterprise.com

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