Dozens of family, friends, jurors and sheriff's deputies yet again made their way to the Yolo Superior courthouse Thursday morning, hoping after a five-month trial for final word whether convicted cop killer Marco Antonio Topete would be sentenced to death for his crime.
They will have to wait at least one more month.
When the courthouse doors opened Thursday morning, Topete's attorneys inspired by a U.S. Supreme Court decision handed down Monday filed a second motion for a new trial, again focusing on jury issues.
Not long after, Judge Paul K. Richardson shot down a defense team motion, ruling that his decision to dismiss a juror during death penalty deliberations because of the Russian-born woman's struggle with English was supported by evidence.
He was expected to then move on to sentencing, the long-awaited end to a case that first began in August.
But the last-minute introduction of the second motion this one challenging the dismissal of two prospective jurors during panel selection forced yet another delay.
Richardson scheduled arguments on the new motion and, potentially, for sentencing for Feb. 7.
A jury convicted Topete of the first-degree murder of Yolo County Sheriff's Deputy Jose Antonio Diaz with special circumstances, including that he was lying in wait. That same jury also recommended that the 39-year-old Topete be sentenced to death for the June 2008 execution.
Last week, his attorneys, Hayes Gable III and Dwight Samuel, asked for a new trial after producing a sworn declaration from another juror, No. 6, challenging assertions that the dismissed juror, No. 11, struggled with English.
He said the two had shared numerous conversations in English without problem and said she worked on crossword puzzles during breaks.
The juror suggested instead that the woman wanted off the jury because she was the lone holdout in imposing the death penalty on Topete.
Gable and Samuel called into question why the juror had not come forward with her concerns about language comprehension during the guilt phase of the trial.
"You can't have it both ways," Gable said in court.
Richardson dismissed that claim, arguing that the juror had been admonished early on to come forward if language became an issue. That she did not come forward sooner indicates she did not have trouble then, he said.
He also ruled that juror No. 6's declaration was inadmissible and scoffed that one's ability to do a crossword puzzle "has nothing to do with whether she understands and can competently weigh evidence."
Outside the courthouse, fellow jurors said they supported the judge's ruling.
The panel's foreman said juror No. 11 "did her job. She did the best she was able to do" until she felt she couldn't continue. He said the court "did the right thing" in denying the motion for a new trial.
Another juror raised questions about the motives of juror No. 6.
A third juror expressed frustration with yet another delay.
"We have spent quite a bit of time (on this case) and we'd like to show our support for the family, for Tony and for law enforcement," she said. "We just wanted to see it through."
The latest motion claims the court "prejudicially erred in finding good cause to dismiss" two prospective jurors who, during jury selection, said they did not have strong opinions for or against the death penalty.
The defense attorneys cited a Supreme Court decision that another trial court erred when it "excused a juror for cause who did not have strong views on capital punishment," according to the motion. The high court found that the juror never indicated that she would not be able to impose the death penalty despite her lack of opinion, and in fact had expressed clearly that she could do so if the evidence called for it.
A new penalty phase in that trial will follow as a result of the Supreme Court's ruling.