Lawyers for convicted cop killer Marco Antonio Topete have produced a statement from a Yolo County juror challenging assertions that a juror dismissed from death-penalty deliberations in the case for her limited understanding of English had any problems with the language.
Instead, Juror No. 6 whose name is redacted in court files said in his statement to defense investigators that the dismissed Juror No. 11 is an educated woman who worked on crossword puzzles during breaks and held numerous conversations with him in English, without problem.
Her difficulty, he said, was that she disagreed with other jurors about whether Topete deserved the death penalty for gunning down Yolo County Sheriff's Deputy Jose Antonio Diaz after a car chase in June 2008.
Legal experts said the juror's statement added another bizarre twist to an already convoluted case one that will keep Topete's name before state and federal appellate courts for years to come if Judge Paul K. Richardson imposes the death penalty next week.
"I have never seen anything quite like it," said Stanford Law School professor Robert Weisberg.
The juror's statement was filed last week in Yolo Superior Court as part of a motion for a new trial for Topete. Juror No. 6 said in the court documents that on the first day of jury deliberations, the woman told other jurors she felt strongly that mitigating evidence, including testimony about Topete's violent and crime-ridden childhood, suggested he should serve life in prison without the possibility of parole and not be executed.
She was "fixated" on a photograph of a young Marco Topete standing with his father beneath a Christmas tree, both with guns and ammunition slung over their shoulders, the juror said.
"While the deliberations were respectful, it was clear that (she) wanted to hold out for a life sentence, and she was the only one of us who felt that way," he said.
Other jurors tried to persuade her to change her mind, he said, and apparently feeling the pressure, she tore a page from her notebook, wrote a note to the judge and handed it to the bailiff. None of the other jurors knew its contents.
In the note, read aloud at a court hearing in November, the woman said she was raised in a foreign country and was having trouble seeing things from an American perspective. She said she was worried she was dragging other jurors down.
The note didn't mention language barriers.
Judge Richardson called the woman into court Nov. 14 and asked her about the note. She said she had grown up in Russia and trained there as an engineer. Since 1999, she's been a county senior engineering technician, the defense motion says.
"And is any of the is any of the difficulty that you're talking about here one of understanding the English language?" the judge asked.
"Maybe some nuances of English language, that's right," she answered.
He asked if she was able to weigh the evidence and discuss it with other jurors.
"Yes, I tried, but as I mentioned earlier, my English is limited. I cannot be that verbal as other people and pursue what I think or maybe I misunderstood that thing. So I don't want to be like an obstacle."
Eventually, the judge dismissed the woman who had voted to convict Topete on all counts in the guilt phase from the penalty phase for her "insufficient command of the English language."
He replaced her with an alternate. Less than two days later, jurors returned a recommendation of death.
In their motion for a new trial, filed Thursday, defense attorneys Dwight Samuel and Hayes Gable III argue the court "prejudicially erred in discharging a juror during penalty phase deliberations."
During jury selection, the woman had said she could keep an open mind about the penalty phase, the defense lawyers wrote. Prosecutors questioned her in detail about her language skills.
"I think that some special words maybe I won't be able to understand but, regular speech, I am fluent in regular speech and in understanding it," she said during voir dire.
The woman's inability to perform her duty had not been demonstrated in court, they contended. They asked the judge to conduct a new penalty phase.
If the court didn't err, and the woman really was unable to deliberate because of a language barrier, then the verdicts from the guilt phase should be overturned and Topete should get a new trial, they said.
Prosecutors have not yet filed a reply.
Both defense lawyers and prosecutors continue to be bound by a judicial gag order that forbids them from discussing the case.
Ruth Jones, a professor at McGeorge School of Law in Sacramento, said the importance of the juror's statement is that it now becomes part of the official record that an appellate court will consider. With little case law on the point, the case could offer opportunity for appellate courts to give guidance to trial judges, she said.
"There are legitimate reasons to dismiss jurors, but you don't want the court dismissing jurors who simply disagree with other members of the panel," she said. "It's going to be a very interesting appellate court ruling."