The Vanguard has a new home, please update your bookmarks to

Thursday, July 31, 2008

Topete Case Gets More Bizarre Rather Than Less

Just as you want to believe things will return to a more routine level in case of Marco Topete who is accused of killing Deputy Sheriff Jose Diaz on June 15, 2008, things get even more bizarre.

Suddenly Yolo County Public Defender announced that his office has a conflict of interest and can no longer represent Mr. Topete. Mr. Melton gave no reason as to what the conflict of interest was.

In a statement filed before court, Mr. Melton wrote:
"The Public Defender's Office cannot professionally and ethically represent the defendant herein without breaching professional and ethical duties and responsibilities."
The decision by the Yolo County Public Defender leaves many unanswered questions. One question will be apparently answered on August 8, 2008, when a Sacramento Judge will hear whether or not to remove presiding Yolo County Judge Dave Rosenberg from the case.

Sacramento Superior Court Judge David De Alba can only rule on the public defender's request to remove Dave Rosenberg. He cannot consider the defense challenger to the other Yolo County Judges because they have already disqualified themselves (in the case of three judges) or had not been assigned to hear the case at all.

A Brief Look At The Issue of Change of Venue

The question has been repeatedly been raised here and elsewhere, why they have not simply moved for a change of revenue. The answer seems to be there are several reasons. First, Judge Rosenberg would be the person who made the decision on whether there will be a change of venue and the Public Defender's office clear believes they cannot get a fair trial under Judge Rosenberg. Moreover the criteria for a change of venue may be difficult to establish.

According to California Case law there are "five relevant factors" that have been established for deciding venue motion based on pretrial publicity. There are: "1. nature and gravity of the offense; 2. nature and extent of the media coverage; 3. size of the community; 4. community status of the defendant; and 5. prominence of the victim."

Furthermore, California Penal Code § 1033 sets forth grounds by which and at what point a change of venue can occur.

Subsection (a) lays forward cause:
"On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county."
But also states that only the trial itself can be moved to another county, the pretrial proceedings shall all occur in the original venue.
"When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who is to preside over the trial."
From this it appears then, that pretrial proceedings which are currently going forth, necessarily have to occur in the original venue.

Furthermore, from case law:
"A motion for change of the place of trial must be based upon facts and circumstances from which the conclusion may be deducted by the court that a fair and impartial trial cannot otherwise be obtained."
One of the standards is pretrial publicity makes it impossible to get a fair and impartial jury. While this case has received a fair amount of pretrial publicity, it is unlikely that the level rises to the standard needed. This has hardly been an OJ Simpson case of such high and sustained publicity that everyone has heard of this case.

Moreover, a disqualification of a judge is not sufficient to move venue.

Based on my limited reading of statutes and case law, it appears most likely that the strategy of the public defender's office was to disqualify as the Yolo County Judges which would give them a pretty strong case for change of venue.

However, it frankly seems unlikely that even Judge Rosenberg will be disqualified. So despite the strange turns of this case, it seems probable that it will be heard in Yolo County and by Judge Rosenberg.

Then again it is probably safer to hedge a bit given the strange turn of events this week that now sees the Public Defender bow out of this case. That will require someone else to be appointed to represent Mr. Topete. Again, this will not be grounds for change of venue either it would appear.

---Doug Paul Davis reporting