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Saturday, June 28, 2008

Commentary: Defense Charges Yolo Courthouse Collusion

Just when we thought things would slowly return to some semblance of normal, Assistant Public Defender Dean Johansson makes a surprising motion.

Johansson called for Rosenberg and every other judge in Yolo County to remove themselves from hearing the Topete case because they could not be fair and impartial. The lack of a public hearing has raised concerns about the constitutionality of the process and the bias of the court.

More shocking was his charge of judicial collusion in which the Assistant Public Defender Dean Johansson told the court that other judges had their courtrooms for half an hour in order to allow deputies to fill up this courtroom. To substantiate this allegation, the public defender's office has subpoenaed the surveillance videos from each courtroom.

As a result of this motion, Judge Rosenberg has asked the District Attorney Jeff Reisig to respond to this motion at a hearing set for July 3, 2008.

Unfortunately, there is a judicial gag order on this case, thus we cannot talk to Mr. Johansson (who as a point of full disclosure is a personal friend).

A few thoughts on this other than the single word, "wow."

The Sacramento Bee and even the Davis Enterprise has questioned whether Topete could get a fair trial in Yolo County. I agree with that sentiment, I don't think he can get a fair trial in Yolo County.

Can he prove judicial collusion? I suppose if he gets a hold of those surveillance videos from every courtroom and they show that they did indeed shut their courtrooms to allow the deputies to fill the department, he might have a point. But that probably also falls short of collusion to keep the public out which I think has to be the core of the charge. I think they would have to show intent to keep the public out rather than a move that was as a courtesy to allow deputies to attend a hearing regarding their fallen colleague.

Second point I think is a change of venue simply makes more sense. Even if you got a visiting judge to hear the case in Yolo County, you would still get courtroom security from the Yolo County Sheriff's Department. Obviously the defense believes that an out of area judge would have more scrutiny over the sheriff's in their court, but why risk that? Put the trial in another county and start anew.

As the Sacramento Bee article says this morning:
"Legal experts interviewed Friday agreed that the defense would have a tough time winning its motion. But they said recent events in the case leave little doubt that it should be moved out of Yolo County voluntarily to avoid the appearance of impropriety.

Robert Weisberg, who teaches criminal law at Stanford Law School, said he doubted the public defender's office could win its effort to have every judge in Yolo removed from the case. The legal standard for removing judges is too high, he said.

"You would have a huge burden to show prejudice," Weisberg said.

However, the judge and lawyers could agree to relocate Topete's case.

"That's obviously the sensible thing to do," he said. "It should really get done and done quickly."

A move to a neighboring county could avoid future litigation and prevent any conviction from being overturned because of apparent bias, he said."
Where does this leave the case? Unfortunately in flux until next week just before the July 4 holiday.

Meanwhile Yolo County Sheriff's Deputy Jose Diaz was laid to rest on Friday with 1500 people, many of the law-enforcement officers from Northern California. Sheriff Ed Prieto posthumously award Deputy Diaz with the department's Medal of Valor for his actions which perhaps saved the life of an infant who had been abandoned in the suspect's vehicle.

From the start of this event, the most regretful aspect has been the courthouse drama overshadowing the horrific personal tragedy that occurred still less than two weeks ago. We need to have a fair and open trial if for no other reason than to honor and respect the life of Deputy Diaz who was by all accounts good and dedicated law enforcement officer and father.

---Doug Paul Davis reporting