Later this week, Yolo Superior Court Judge Paul K. Richardson will make a life-or-death decision when he sentences convicted cop killer Marco Antonio Topete.

Should he follow a jury's recommendation that Topete be executed for gunning down Yolo County Sheriff's Deputy Jose Antonio Diaz on a dirt road near Dunnigan in June 2008? Or should he find that mitigating circumstances, including Topete's troubled upbringing, weigh in favor of a sentence of life in prison without the possibility of parole?

Topete's sentencing hearing begins Thursday and is scheduled to continue for two days.

Before Richardson gets to the sentencing, however, he will have to deal with a motion for a new trial brought by Topete's lawyers. They claim Richardson erred when he removed a juror during death penalty deliberations in November for what he found was her lack of English language skills.

The woman – who grew up in Russia, trained as an engineer there, and has lived in this country for 20 years – sent the judge a note saying she was having trouble making the decision from an American perspective. She worried she was dragging other jurors down and asked to be replaced with an alternate.

Richardson called her into court and questioned her about her language skills. When asked, she agreed they were a problem. "I'm afraid that I could misunderstand some points, and my evaluation wouldn't be proper," she told the judge. The judge dismissed her, and the newly constituted jury soon returned a death verdict.

That was on Nov. 16. In the meantime, another juror came forward and told defense lawyers that the woman was well educated and her language skills were fine. She had wanted off the jury because she was the sole holdout for life without parole, he said.

In his written declaration, he said he supported the death verdict but was concerned "that the law was not properly administered in this case." The juror's statement was a key element of the defense motion for a new trial.

Among the factors Richardson may have to consider when he weighs that motion is a recent state Supreme Court decision that overturned a death sentence for the first time in two years. The reason: The Los Angeles judge in the case wrongly removed a juror during guilt deliberations, the high court said.

In the case, People v. Allen, the high court ruled Dec. 5 that the judge had removed the juror for prejudging the case without sufficient evidence that he had closed his mind or refused to deliberate.

"Because the record does not show to a demonstrable reality that Juror No. 11 was unable to discharge his duty, the court abused its discretion by removing him," Justice Carol Corrigan wrote for the unanimous court.

The dismissed juror in the Yolo case was also No. 11.

Legal experts said the state Supreme Court's ruling sets a high bar for discharging jurors, but they disagreed on whether Richardson is in peril of being overturned by appellate courts if he denies the defense motion and sentences Topete to death.

"If you look at it from the California Supreme Court's point of view, they don't want you to pull the trigger too fast on these jurors, especially when they're in deliberation mode," said Thaddeus Hoffmeister, an expert on juries and professor at the University of Dayton School of Law in Ohio. "They want you to bend over backward before you pull somebody off a trial."

After reading portions of the court transcript, Hoffmeister said it seemed the judge had been appropriately cautious not to ask about jury deliberations – an area that is generally off limits to judges – but hadn't gone far enough in his inquiry about the woman's difficulty with English.

"I don't think he did enough to demonstrate that this person could not deliberate," he said.

The real issue, he said, seemed to be that the woman was uncomfortable being the lone juror who didn't think the death penalty was warranted. That's not a reason for a judge to remove her, he said.

Bringing up the language barrier so late in proceedings also called the guilty verdicts into question because the woman had voted to convict Topete on all counts in the guilt phase, he said.

John Myers, a criminal justice professor at Sacramento's McGeorge School of Law, read the same exchange and came away with a different view. "It seems to me that the judge acted within his discretion to dismiss that juror," Myers said.

The Supreme Court case involved a juror who had formed an opinion, but had not firmly made up his mind, in the guilt phase, Myers said. The Yolo case is different, he said.

"Here you have a juror who said, 'I haven't been able to participate (in deliberations) because the language issues are more serious than I thought,' " he said.

Myers said it was reasonable that she could vote to convict Topete but then struggled with her insufficient English during the more complex penalty-phase deliberations.

The fact that another juror expressed an opinion about her language skills after the trial was over "is kind of irrelevant," he said. The judge questioned her and made up his own mind, he said. In that case, Myers said, "the benefit of the doubt goes to the judge."

One expert in jury dynamics, a professor at Santa Clara University who goes by the single name SunWolf, said the situation that the Yolo court faced is typical of juries that find themselves divided.

Jurors think an inability to reach a unanimous consensus is a failure, and lone jurors who disagree will often be pressured to step aside and let the majority have its way.

The situation in jury rooms is rarely like the movie "12 Angry Men," in which Henry Fonda's character, a lone dissenting juror, persuades the others to see things his way.

"You never get Henry Fonda in there," she said.

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