Public Defender Melton is Off The Topete Case, Should He Be Out as Public Defender?

Public Defender Barry Melton officially removed himself yesterday from the case of accused Sheriff's Deputy killer, Marco Topete. Officially it appears we do not know the nature of the conflict of interest.

Barry Melton was immediately replaced by Hayes Gable III of Sacramento and Tom Purtell of Woodland. The defendant is in excellent hands with two lawyers experienced in capital murder cases.

However, Barry Melton's departure from this case leaves more questions than answers. Both of which are hinted at by an excellent article in the Woodland Daily Democrat on Friday morning.

In it, it chronicles the relationship between Barry Melton, Sheriff Ed Prieto and Judge Dave Rosenberg.

According to the article by Daily Democrat Staff Reporter Luke Gianni:

"Topete's wife, Angelique Topete, told the Democrat Thursday she witnessed an argument between [Deputy Public Defender Dean] Johansson and Melton last week at their office in Woodland days after Melton filed his motion.

She said Johansson was concerned over the political connections Melton shared between Yolo County Sheriff Ed Prieto and Rosenberg."

The article goes on to quote Mrs. Topete:

"In the process of Dean doing his investigation, he dug up a lot of stuff between Melton, Prieto and Rosenberg and that pissed Melton off."

The bottom line here is that the Daily Democrat dug up--what many of us have known for a long time--the fact that there is a strong relationship between Barry Melton, Ed Prieto, and Dave Rosenberg all of whom hang in the same Davis political circles and all of whom have contributed money to each other's campaign.

The Democrat continues:

"According to county election records obtained by the Democrat, all three men have contributed funds to each other over the last 10 years as their political careers have progressed.

Ed Prieto's political action committee "Citizens for Ed Prieto," received monetary contributions totaling around $600 from Rosenberg's political fund starting in 1998 when he ran for Sheriff up and until his last contribution in 2003.

Records also show Melton contributed a little more than $300 to Prieto's fund from 2000 to 2003.

As for Rosenberg, his "Friends of David Rosenberg" fund has received more than $150,000 in political contributions over the last decade before morphing into the "Judge David Rosenberg Committee," which was formed in 2003 during his run for a judicial seat.

From 1999 to 2003, Melton had contribute[d] more than $900 to this fund, records show.

The monetary ties between the judge, the attorney and the organization that employed the man her husband allegedly killed, has Angelique concerned over his chances at a fair trial."

The Democrat then brings in Judicial ethics expert Carol Langford, an adjunct professor at UC Hastings Law School. She told the Democrat that the political contributions did not mandate withdrawal from the case, but she also suggested a "voluntary step down to assure the public the case is being handled fairly."

"What I would say is you probably want to give that case to one of your panel people. You want to make sure that everyone is doing a good job and that there's the appearance that everything is fair and just. It's important that people think they're getting a fair shake especially in a small town."

So is this the reason that Barry Melton is recusing himself from the case? If so, there are more serious problems on the horizon. If he must remove himself from this case, does he then have to remove himself from every case involving Judge Dave Rosenberg? Does he have to then remove himself from every case involving the Sheriff's Department? Right there, that's a lot of cases? Did he also support Judge Tim Fall in his reelection bid this past June? Would he have to remove himself from any cases involving Judge Fall as well, if he did support his reelection?

But that is just the tip of the iceberg. The real kicker is that the Democrat did not complete the circle here. Back in 2006, there was a rather heated battle for District Attorney between fellow deputies Jeff Reisig and Pat Lenzi. Jeff Reisig eventually won that race by a rather narrow margin. Barry Melton did not formally endorse Jeff Reisig but behind the scenes he was a powerful advocate for Reisig and frequently attacked Pat Lenzi.

There's of course more to this than just that. Barry Melton did not himself donate to Jeff Reisig's campaign, but his wife, Barbara Langer did. The Democrat probably did not know to look for contributions to Jeff Reisig from Barry Melton's wife, but the support from Melton to Reisig is well known.

If indeed the reason that Barry Melton withdrew from this case had to do with the close political relationships here, then it calls into question Barry Melton's entire position as public defender. As such a political animal to begin with, perhaps Barry Melton is not the person best suited for this position.

This is all unfortunate for the family of the slain Sherrif's Deputy but also the Topete family that is entitled to a fair trial. Last week, members of Topete's family wanted Dean Johanson, whom Marco Topete trusts, to stay on the case. Now it appears that Barry Melton's entire office will drop out of the case.

The good news from Topete and for Yolo County is that he is in very capable hands. He was assigned first class defense.

But as this entire saga has shown, there are serious cracks in the Yolo County Justice System's foundation. The public defender as many have known for some time, seems to be right in the middle of the problem.

---Doug Paul Davis reporting

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

State Senate Majority Leader Calls For New Rules Protecting Public Access to Court Rooms

The recent problems in the Yolo County Courtroom have led one of the foremost legislative advocates for open government, State Senate Majority Leader Gloria Romero (D-East Los Angeles) to call for the Judicial Council of California to adopt new rules protecting public access to courtrooms.

In addition to Senator Romero's role as Majority Leader, she also chairs the Senate Committee on Public Safety.

According to a release from the Majority Leader's Office on Monday, the California Supreme Court, upholding the constitutional right to public trials, has held that a judge may close a courtroom only under very limited circumstances and after making specified findings on the record in open court.

“The recent incident in Yolo County is a shocking reminder of how easily these constitutional rights can be violated... Open, public courts are a cornerstone of our system of justice.”

“Sheriff’s deputies must provide bailiff and security services to county courts in a manner that protects the constitutional right of defendants to a public trial and the right of the public to attend court proceedings... The Judicial Council’s pending rulemaking on courtroom security provides an ideal opportunity to be proactive and ensure that courtrooms throughout California are open to the public.”

In a letter to William Vickrey, the Administrative Director of the Court on the Judicial Council, Senator Romero wrote:

"The recent incident in Yolo County is a shocking reminder of how easily these constitutional rights can be violated. On June 18, 2008, during the arraignment of a defendant charged with murdering a sheriffs deputy, courtroom deputies locked the media and public, including the defendant's family, out of the courtroom. The deputies allowed the victim's family and other law enforcement officers into the courtroom through a side door. An internal investigation concluded that the deputies did not follow the presiding commissioner's order that entry be on a first-come, first-served basis. The sheriff said locking the courtroom was a mistake but that he did not intend to discipline the deputies involved. The county's presiding judge said that he lacked authority to take action against these deputies because they provide security services to the courts pursuant to contract."

Furthermore she was concerned with the fact that this was not simply an isolated incident that indicated a simple mistake:

"News reports indicate that this was not an isolated case of denying access to court proceedings in Yolo County. Moreover, anecdotal evidence indicates that bailiffs in other counties have unlawfully locked courtrooms, such as during the start of afternoon session while a judge finishes up cases left over from the morning calendar."

The Senator is proposing new language to the Superior Court Law Enforcement Act of 2002 which requires the presiding judge and sheriff in each county to develop a security plan. The suggested language would require sheriff's deputies to provide courtroom security services in a manner that protects the right to public court proceedings.

The proposal adds two key sections. First:

"Each court security plan must address how the presiding judge and sheriff will ensure that security services are provided in a manner that protects the Sixth Amendment right of criminal defendants to a public trial and the right of public access to court proceedings under the First Amendment and Section 124 of the Code of Civil Procedure."

Second:

"Describe policies and procedures for ensuring that security services are provided in a manner that protects the Sixth Amendment right of criminal defendants to a public trial and the right of public access to court proceedings under the First Amendment and Section 124 of the Code of Civil Procedure. Describe the training to be provided to ensure that courtrooms remain open to the public unless a lawful court order authorizes closure. Describe outreach efforts to local media and any Bench-Bar-Media Committee to facilitate discussion of concerns about fair trials, the free press, and other key issues affecting the courts, the media, and the public."

According to the Senator, requiring counties to address these constitutional rights will:

"will guarantee that county judges and sheriffs specify how they will protect these rights when they develop their security plans before the November 1, 2009, deadline. It will enable them to identify education and training necessary to ensure that no deputy or court staff mistakenly denies the public or media access to court proceedings. It will help counties avoid the expense of having to retry a defendant if a conviction is overturned because the constitutional right to a public trial was violated."

Senator Romero continues:

"As you know, open court proceedings are a cornerstone of our system of justice. Openness assures the public that justice is administered fairly and guards against prosecutorial bias and perjury. Public confidence in our judicial system will quickly erode if we do not take steps now to ensure that courts do not operate in secret. Thus, I strongly urge you to revise your pending rules to help protect the constitutional right of public access to courts."

Senator Gloria Romero has a long track record in advocating for open government. She has been outspoken in several attempts recently to open up police records to public scrutiny. She has successfully modified the Brown Act to facilitate open government in local meetings. And now she has proposed strong new language that at the very least will make presiding judges cognizant of their responsibility to provide open court proceedings. Such changes will, if nothing else, force presiding judges to consider the consequences of locking courtroom doors.

Yolo County must continue to sort out this situation on their own. However, it is clear that the rest of the state has taken notice, and that can only be a good thing in terms of bringing down pressure to resolve the situation in the best possible way.

---Doug Paul Davis reporting

Commentary: Back to Square One in Case Involving the Killing of a Yolo County Sheriff's Deputy

It was not surprising that a Sacramento court of appeal rejected the petition from the Yolo County Public Defender's Office. The public defender had asked the court to order the response of seven Yolo County judges to defense allegations that they could not hear the case because of apparent biases against the defendant.

It was a curious strategy from the start but perhaps was aimed to get information about the judges in order to seek a change of venue which seemed from the start the more logical course of action.

Here we are now, over a month after the death of Sheriff's Deputy Jose Diaz. And really not much has changed.

The case for change of venue seems so clear, so straightforward. The question has to be at this point what are we missing.

We know Diaz worked as a bailiff in Yolo County. We know that his colleagues in the Yolo County Sheriff's Office conduct the security. Any claims that they might have had that they could do their job in a professional and non-biased way, went by the wayside on June 18, when sheriff's deputies, under orders from someone that has not been identified in public, locked the doors of a county court building, preventing public access while filling the courtroom with fellow officers through a side door.

We also know that the Sheriff himself dismissed this as a mistake. This was no "mistake" in the sense that the doors were not accidentally locked. It was intentional.

There is also evidence it seems that Yolo County Judges put their court in recess in order to allow the Sheriff's Deputies to fill the court. What we do not know and has not been proven is that this action rose to the level of collusion as the defense has claimed.

Finally this has been the first major incident since Dave Rosenberg took over as presiding judge. As such, he has been quick to put blame on the Sheriff's Department and slow to step up with any kind of solution to the problem.

People keep wondering the same thing--why is Topete getting this kind of attention. There are two key points here. First, everyone is entitled to due process under the law.

The sixth amendment, which is not one of the amendments you normally see quoted in spaces like this, is very clear in terms of constitutional requirements in the right to a fair trial.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State...

The second point is that really the constitutional issue of the right to a public trial is trumping the actual crime committed. Topete will get his day in court and in all likelihood will be convicted of his crime and sentenced to the appropriate punishment.

However, the bigger issue at stake extends beyond this somewhat simple case of man shooting officer of the law. It extend to the very foundations of our justice systwm. To the very core of the right to a public trial.

Why did the framer's specifically require trials to be public?

One of things that separates tyranny from democracy is the notion of transparency. The ideal that people will know the charges against them and not be held in some sort of Kafka-esque state of confusion. By forcing a public trial where the charges have to read against the defendant, the state itself has to answer for and support the deprivation of life, liberty, and property. The due process of law as spelled out both in the constitution and in 200-plus years of common law is what prevents the government from taking arbitrary action against defendants and thus protects us all from the potential for a tyrannical government.

That notion seems abstract and far-fetched today, but when the constitution was written it was a very real danger. Moreover, if you look over the history of this country, you will find shocking abuses through out.

In fact, this is precisely the type of case where you need such protections the most--where a perpetrator is accused of killing a law enforcement officer, someone that the law enforcement establishment is more likely to seek to protect.

Finally, this is big because once again it exposes the dark underbelly of our county government and its justice system. Once again people are forced to question those in charge and why business seems to be conducted in this manner on a consistent basis.

As we learned through this process, this is not the first time that this kind of "mistake" has occurred. And mistakes that repeat themselves are hardly mistakes anymore.

So you will forgive me as we demand that our justice system acts appropriately. You will forgive me if I revisit this issue yet again all the while transferring the attention from the crime allegedly committed by Mr. Topete to the abuse allegedly committed within our justice system.

At the end of the day, we will unfortunately survive the common street crimes of Mr. Topete far better than we could ever survive a justice system that has run amuck with favoritism, cronyism, and the random violation of constitutional rights. I am not saying that these things occurred, only suggesting that those are my top priority to prevent. We have ways to deal with street crime. The latter is far more insidious.

---Doug Paul Davis reporting

Yolo County ACLU Requests Change of Venue for Topete Case

Many who read the Davis Enterprise on Sunday, undoubtedly saw the story that the Yolo County Chapter of the American Civil Liberties Union called "upon the Yolo County Court to quickly secure a change in venue for the trial of Marco Topete, the accused killer of Sheriff's officer and former court baliff Tony Diaz."

Yolo County ACLU President Natlie Wormeli makes the argument based on the Sixth Amendment to the US Constitution, which reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State..."

The Sixth Amendment, many people do not realize, guarantees the right not only to a speedy trial, to have the right to face the accuser, and to the right to an attorney, but also the right to a public trial.

The ACLU is making a different argument than that of the media, who have argued that this is a First Amendment issue, a freedom of press. And whose primary concern naturally was that the press corps were excluded from the arraignment of a high profile case of public interest.

According to Ms. Wormeli:

"This change [of venue] is necessary to assure basic rights to the accused as guaranteed under the United States Constitution."

She continued:

"The Sheriff's Office forgot the basic charge of the Sixth Amendment... Everyone can understand the emotion the bailiffs must feel at the loss of their comrade. This is no excuse, however, for unprofessional and constitutionally prohibited conduct."

Natasha Minsker, an attorney with the ACLU of Northern California added:

"The right to a public trial is a fundamental human right, protected by numerous international treaties, including the Universal Declaration of Human Rights. An open courthouse is the hallmark of a free society." A public trial concurrently protects both the rights of the defendant and the greater right of the people to know.

The Vanguard had Natasha Minsker on its June 25, 2008 Radio Show which discussed this issue as a whole. [You can catch that show by clicking here, the conversation with Natasha Minsker begins around the 35 minute mark]

Natalie Wormeli believes that this violation raises concerns about who controls the legal procedures in Yolo County--the Sheriff or the Judges.

She wonders "whether the judge of the court can conduct a proper and fair trial in such an atmosphere."

"Those who attended last Saturday's funeral for Officer Diaz, including representatives of the YCACLU, were moved by the obvious suffering of Tony Diaz' family and the heartwarming support from his fellow officers in the face of this heinous crime. It is at these times that the criminal justice system, beginning with the trial court, faces its greatest challenge. When justice is pursued with every attention to fair procedure, even under these exceptional circumstances, then all citizens can be assured that the system is credible, reliable, and fair. The sacrifice of Officer Diaz demands that nothing interfere with a speedy and impartial public trial for his accused killer. The ability of the Yolo County Court to provide such proper procedures is in serious question. To remove any taint or threat of a procedural challenge later, the best thing to do is move the trial to another county."

The Vanguard continues to believe that the best course of action in this case is to move the trial to another county to insure that Mr. Topete receives a fair trial and that if he is indeed found guilty of this crime and is indeed the perpetrator of this callous and horrific act upon a peace officer, who attempted to rescue a baby, then Mr. Topete should spend the rest of his life in prison without the possibility of parole.

However, above all else, the constitution must be adhered to. The right to a fair and public trial must be afforded to the defendant in this case.

---Doug Paul Davis reporting

Sideshow Continues in Murder Trial; Chief Justice Called in To Help

California's Chief Justice Ronald George has been asked to intervene in the Yolo Superior Court's handling of the case against a man who has been accused of killing a Yolo County Sheriff's Deputy. Justice George will appoint an outside judge who will then rule on the motion to disqualify every Yolo County Judge from hearing the case.

Three Judges have already disqualified themselves two because they had worked with the Sheriff's Deputy in past employment and the third because as Judge, they had ruled on a family law issue involving the defendant.

The other seven refused to disqualify themselves and Judge Rosenberg ruled that he had no power to remove those judges and he refused to disqualify himself.

He is quoted in the Sacramento Bee saying:

"It would be easy to disqualify myself with the stroke of a pen... There being no good reasons to disqualify, I decline to disqualify myself from hearing this case."

Judge Rosenberg then apparently read aloud his entire nine page ruling into court where he criticized bailiffs and sheriff's deputies for their decision to prevent access to the June 18 arraignment.

The Sacramento Bee continues:

The judge said he had not known the outer doors of the court building were locked until after the hearing was over.

Deputies had made a "unilateral decision to prevent access" to the public and the suspect's family, while allowing fellow officers and the victim's family to enter through side doors, he said.

He said a judge would have to be "downright stupid" to "sanction, condone, or collude with other judges to actually bar the press and the public from an arraignment courtroom."

A former Yolo County supervisor and state political figure, Rosenberg said he had been accused of many things during his public career. But, "I don't think I've ever been accused of being stupid," he said.

Sacramento News 10 quotes Judge Rosenberg:

"The public and the press should never be barred from a criminal hearing or trial because of a locked door," said Rosenberg.

Responding to defense allegations that Rosenberg and other judges delayed their June 18 caseloads to allow their bailiff to attend Topete's arraignment, Rosenberg said, "... there is not a scintilla of evidence presented that I knew other departments were doing so, nor that I and any other judge 'colluded' to close our departments..."

Dean Johansson the public defender then apparently objected to the entire filing being read into the record.

"That was a political speech."

To which the Judge responded:

"One could say it's a political (defense) motion. The motion has attacked the integrity of the entire bench."

Commentary

Basically what has happened to this point is that three Judges have disqualified themselves who have direct past dealings with either victim or the defendant. The grounds for getting the other seven disqualified seem rather steep at this point, although having Justice George intervene to name a judge to rule on the remainder of the motion is rather unusual.

I remain at a loss here as to the defense strategy. I do not understand why they want to remove the judges but keep the case in Yolo County where they would still have to deal with the sheriff's department.

That said, I think bringing in outside help is a good idea at this point. At the very least, fresh and hopefully unbiased eyes can take a look at the motion and make the key determination--can this guy get a fair trial. Personally I do not think he can get a fair trial at this point in Yolo County.

One can probably find a jury that has not heard about this case--although I always have to wonder about such juries that do not follow the news at all. But I have to question whether the Sheriff's Department can do their job in a professional way after what we have seen to date.

One can probably criticize Judge Rosenberg for reading his nine page ruling. But I also commend him for asking for outside help here.

At this point it appears that the charges have not been read to the accused. This is an integral part of the criminal justice system where the accused has the right to get the charges read against him in a public hearing that ensures that the state is not merely charging him in an ad hoc or secretive fashion. It is what separates our legal system from those in tyrannical countries.

This episode has become a tremendous sideshow. And it does a disservice to the memory of the fallen Sheriff's deputy and his family. As such, we would like to see a quick resolution of these side issues so that the main trial can move forward and the defendant can hear the charges read against him.

---Doug Paul Davis reporting

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

Commentary: Davis Enterprise Gets It Right And Calls the Yolo County Courts On Their Conduct

It is one thing to see the Davis Vanguard complain about the conduct of public officials something that is in many ways our raison d'être. It is another thing when the Davis Enterprise does it.

Yesterday's Vanguard blog entry elicited complaints by among others Matt Rexroad and Val Dolcini, two people that the Vanguard respects tremendously despite their sometimes divergent views. One person went as far as to question whether it was a slow news day--which seemed a bit strange given that it had been a major story in both the Sacramento Bee and the Davis Enterprise.

Nothing compares however to the shock encountered reading the Davis Enterprise's Op-Ed entitled "Disturbing Pattern in Yolo Courts."

The Enterprise goes on to write:

"The issue: Wednesday's lockout of the press and suspect's family is just the latest in a string of abuses

Can Marco Antonio Topete get a fair trial in Yolo County? If there are any more shenanigans like those pulled Wednesday by sheriff's deputies and a court commissioner in Yolo Superior Court, we're not so sure."

More often than not from our view, the Enterprise has been part and parcel to this problem, however, we welcome them to the ballgame on this issue.

In defending the actions of the court here, Supervisor Matt Rexroad inadvertently made a key point when he said:

"They made a mistake under some difficult emotional circumstances."

If that is true, and it may be - we are not necessarily suggesting this was maliciousthen perhaps the Davis Enterprise is right, that the defendant cannot get a fair trial in this county.

The Davis Enterprise went on to write:

"During the proceeding, a gag order was imposed on the case, preventing participants from discussing the matter with the media. While transcripts of the hearing were later made available, the action in the court is a violation of the First Amendment.

Charity Kenyon, a media attorney representing The Davis Enterprise, The Sacramento Bee, News 10 and KCRA3 on the matter, wrote a letter Thursday to Judge David Rosenberg, who has been assigned to the Topete case. She cited the sense from the news outlets involved 'that more than a few court personnel operate on the principle that 'no news is good news.' "

They continue:

"THE YOLO COURT has a tendency to slap a gag order on every high-profile case that comes along, making it difficult for the public to get even basic information about a case from attorneys or law enforcement. Meanwhile, Kenyon said, 'The California and U.S. supreme courts have recognized that public access to court records and proceedings enhances and is an essential component of a fair trial.'

Educating the officers of the court and law enforcement personnel is the best way to prevent a repeat of this pattern. They need to learn that shielding victims from paparazzi is not the same thing as blatantly blocking the public's right to know.

Veteran Davis criminal defense attorney Rod Beede said deputies should have known the rules about open court proceedings. Just last week, the defendant in the Stevens slaying was sentenced to death after more than 21⁄2 years of hearings.

'Whenever you have a particularly high-profile case, especially when the victim is a member of the Sheriff's Department, a very, very close watch needs to be conducted on the whole thing,' Beede said. 'Anything that segregates the case as a different case is troubling.'"

On this issue, the Davis Enterprise is absolutely correct.

No one wants to disparage the memory of the slain Sheriff's deputy. However, the defendant is just as entitled to a fair trial in this case as anyone else. Mistakes happen, particularly when emotions are running high. For those reasons, it seems to be a wise move to shift this trial to another county to ensure the fair treatment of the defendant and the public in this matter.

---Doug Paul Davis reporting

Commentary: What Were They Thinking: Sheriff's Department Keeps Court Building Doors Locked

In a bizarre series of events on Wednesday, the man accused of killing Yolo County Sheriff's Deputy Jose "Tony" Diaz was arraigned and the media and public was locked out of the courtroom.

Later Sheriff Ed Prieto called it a mistake and blamed it one on his lieutenants. There was a high degree of security around the arraignment with the defendant arriving in bulletproof vest (ironically similar to one that Deputy Diaz was shot and killed through). And his family was also provided with high security.

According to Court Executive Officer Jim Perry, the closure occurred due to a mistake by the Yolo County Sheriff's Office.

Perry told the media:

"It was not intended that anyone was to be excluded. The court made no order to anyone to lock the doors"

Sheriff Ed Prieto told the media that someone:

"Forgot to tell somebody to unlock the doors... I think it was just an honest mistake, but somebody dropped the ball, and we should look into it."

How big a mistake was this? That's the real question. It was big enough that the Davis Enterprise which tends to be rather forgiving and deferent to law enforcement used the term "bungle" to describe the chain of events.

Judge David Rosenberg was quoted in the Sacramento Bee saying that the hearing should have been open to the public and the media.

"The doors are supposed to be unlocked when court is in session. This kind of hearing should have been open to the public. There are no excuses. It shouldn't have happened."

The Sacramento Bee went further, quoting several lawyers who had grave concerns about the proceedings, especially given the very personal interest that the Yolo County Sheriff's department has in this case, on the one hand, one of their colleagues is the victim of this horrific crime and on the other hand they are charged with providing security and enforcing the rules for this case.

Several lawyers said Wednesday night that for the trial to remain in Yolo County, the court system would have to appear more even-handed.

Stewart Katz, a Sacramento criminal defense and civil rights attorney, called Wednesday's events "flat-out wrong" and said the criminal justice system has to treat cases equally, regardless of the victims involved.

"You have a situation, obviously, where people are acting out of emotion," he said. "But it sends the wrong message to everyone. It undermines confidence in the system when you have people who are personally involved getting to decide how the system operates."

Sheriff Ed Prieto for his part promised that this would not happen again.

The good news here is that this was just an arraignment hearing and the Sheriff's department obviously got enough heat and criticism for their handling of this event that it will not, as the Sheriff promised, happen again. In terms of actual damage, this rates very low.

On the other hand, I do not think you can simply dismiss this as a mistake. It just happened to occur during proceedings that very personally affected the Yolo County Sheriff's office. No one can deny the horrific tragedy that occurred. On other hand, these are professionals and if they cannot fairly and properly administer their normal duties for this case, then maybe it should be moved to a different venue.

The fact that these "mistakes" just happened to occur in a case directly impacting the Sheriff's department does not pass muster. Fortunately, in the scheme of things this is not the biggest problem in the world, as long as it does not repeat itself. However, it does not seem reasonable that we can merely shrug this off as an honest mistake.

Frankly from the standpoint of their fallen colleague, this is the last thing that needed to happen. It took the focus off the horrendous tragedy and put it back on the Sheriff's department. It also makes us all wonder if this was merely a protection instinct on the part of grieving colleagues or is there something that they do not want the public to know. For the sake of decency, we need to give them the benefit of the doubt for right now, but the situation is no less troubling.

---Doug Paul Davis reporting