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December 1, 2017

Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after "disgraceful verdict in the Kate Steinle case"?

Download (4)The provocative question in the title of this post is prompted by this news of a (surprising?) trial verdict in California state court in a high-profile prosecution and the immediate reactions thereto.  Here are the basics (with some emphasis added):

A jury handed a stunning acquittal on murder and manslaughter charges to a homeless undocumented immigrant whose arrest in the killing of Kate Steinle on a San Francisco Bay pier intensified a national debate over sanctuary laws.

In returning its verdict Thursday afternoon on the sixth day of deliberations, the Superior Court jury also pronounced Jose Ines Garcia Zarate not guilty of assault with a firearm, finding credence in defense attorneys’ argument that the shot that ricocheted off the concrete ground before piercing Steinle’s heart was an accident, with the gun discharging after the defendant stumbled upon it on the waterfront on July 1, 2015.

Garcia Zarate, a 45-year-old Mexican citizen who was released from County Jail before the killing despite a federal request that he be held for his sixth deportation, was convicted of a single lesser charge of being a felon in possession of a gun. He faces a sentence of 16 months, two years or three years in state prison. Garcia Zarate, who has already served well over two years in jail and gets credit for that time, will be sentenced at a date not yet determined.

The verdict set off a flurry of reactions.  Defense attorneys said the case had been overcharged, while U.S. Attorney General Jeff Sessions blamed the killing on San Francisco’s policy of refusing cooperation with immigration agents. Jim Steinle, who had been strolling on the pier with his daughter when she fell, told The Chronicle he was “saddened and shocked,” adding, “Justice was rendered, but it was not served.”...

President Trump, who has cited the case in his effort to build a border wall, said on Twitter, “A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.”

Defense attorney Francisco Ugarte suggested a different lesson, saying, “From day one, this case was used as a means to foment hate, to foment division, to foment a program of mass deportation ... and I believe today is a vindication for the rights of immigrants.”...

Garcia Zarate was charged from the beginning with murder, and prosecutors gave the jury the option of convicting him of first-degree murder, second-degree murder or involuntary manslaughter. Jurors rejected all three.

The defendant is not likely to be released again in the city. San Francisco officials have long said they will turn over undocumented immigrants to federal authorities if they obtain a warrant, and records show Garcia Zarate is being held on a U.S. Marshals Service warrant. U.S. Immigration and Customs Enforcement “will work to take custody of Mr. Garcia Zarate and ultimately remove him from the country,” Tom Homan, the agency’s deputy director, said in a statement.

Steinle, 32, had been walking with her arm around her father on Pier 14 when she was struck in the back by a single bullet. The round had skipped off the concrete ground after being fired from a pistol that had been stolen, four days earlier, from the nearby parked car of a federal ranger. Prosecutors told the jury that Garcia Zarate brought the gun to the pier that day to do harm, aimed it toward Steinle and pulled the trigger. Assistant District Attorney Diana Garcia spent much of the trial seeking to prove the pistol that killed Steinle couldn’t have fired without a firm pull of the trigger, while establishing that Garcia Zarate tossed the weapon into the bay before fleeing the scene.

Alex Bastian, a spokesman for the district attorney’s office, said Thursday that prosecutors had found sufficient evidence for the charges at every step of the case. “The verdict that came in today was not the one we were hoping for, but I think it’s unequivocal that both sides gave it their all,” Bastian said. “This really is about the Steinle family. They’ve shown incredible resolve during this whole process, and our hearts go out to them.”

Defense lawyers said the shooting was an accident that happened when Garcia Zarate, who had a history of nonviolent drug crimes, found the gun wrapped in a T-shirt or cloth under his seat on the pier just seconds before it discharged in his hands. Lead attorney Matt Gonzalez said his client had never handled a gun and was scared by the noise, prompting him to fling the weapon into the bay, where a diver fished it out a day later....

During the monthlong trial, jurors watched video from Garcia Zarate’s four-hour police interrogation, in which he offered varying statements about his actions on the pier. At one point he said he had aimed at a “sea animal,” and at another point, he said the gun had been under a rag that lay on the ground near the waterfront, and that it fired when he stepped on it. Gonzalez said it was clear in the video that Garcia Zarate — who has spent much of his adult life behind bars, was living on the street before the shooting, and has a second-grade education — did not fully understand what the officers were asking him through an officer’s Spanish translation.

What primarily prompts the question in the title of this post is the possibility that the current federal administration might view the California state court acquittal of Garcia Zarate in terms comparable to the California state court acquittal of Los Angeles police officers for their beating of motorist Rodney King. (These verdicts, as well as OJ Simpson's acquittal, lead me to think Californians at least sometimes take "beyond a reasonable doubt" quite seriously.)  The outrage over that state court acquittal surely played a significant role in the decision by federal authorities to pursue federal charges against the LA officers.  Perhaps similar outrage (at least from Prez Trump) over this state court acquittal will have federal authorities thinking the same way. (And, as criminal procedure gurus know, the dual sovereignty doctrine means there is no Double Jeopardy limit on the feds pursuing parallel charges in this case.)

I highlighted the limited severity of the sentence that Garcia Zarate now faces in state court to highlight another reason why federal authorities might be inclined to take up this case. Even if the federal prosecutors were only able secure a federal conviction for felon in possession, that charge alone in federal court would carry a sentence of at least up to 10 years and might actually have a mandatory minimum sentence of 15 years if Zarate's criminal history made him subject to the Armed Career Criminal Act (ACCA).  And, of course, the feds could and would get their usual two bites at the apple if they also charged various homicide offenses: a jury conviction of homicide charges would immediately raise the sentencing stakes, but even a jury acquittal would not preclude prosecutors from arguing to the judge that Steinle's death was critical "relevant conduct" at sentencing that should drive up his guideline range.

Last but not least, as I was typing up these thoughts, I saw this new FoxNews report headlined "DOJ weighing federal charges in Kate Steinle murder case, after not guilty verdict." Here is a snippet:

Justice Department spokeswoman Sarah Isgur Flores acknowledged Friday that the DOJ is looking at federal charges.  She suggested a possible charge could be felony re-entry or a charge pertaining to a violation of supervised release.  “We’re looking at every option and we will prosecute this to the fullest extent of the law because these cases are tragic and entirely preventable,” Flores said on “Fox & Friends” Friday.

If DOJ is really serious about "prosecut[ing] this to the fullest extent of the law," it seems to me that there are many more charges available beyond just immigration offenses (although those offenses, too, could be used to imprison Zarate for decades).

December 1, 2017 at 10:23 AM | Permalink


What federal homicide charges could be brought?

Posted by: whatever | Dec 1, 2017 10:58:19 AM

Whatever this crime was, it was 100% the fault of the city and state officials protecting, privileging, and empowering this criminal. These officials should be arrested on federal conspiracy charges. The predicate crime is violation of the immigration laws, resulting in the homicide of this innocent victim.

Whether found guilty or not, the family should sue them in a wrongful death, from negligence per se claim, since they violated federal law. Nor is the violation of federal law a part of the job description of the positions to which they were elected. All settlements should come from their personal assets. The taxpayer should not be paying for the crimes of their elected officials.

Posted by: David Behar | Dec 1, 2017 11:29:53 AM

City officials charged with a conspiracy to violate federal immigration law? Which officials?

Posted by: whatever | Dec 1, 2017 11:33:43 AM

Federalism means the federal government can't force states and cities to do its bidding. If you don't like it, go ratify another constitution.

Posted by: Andrew Santos Fleischman | Dec 1, 2017 12:34:11 PM

You are right, whatever, that I need to figure out some hook for federal homicide charges, though I assume this could be charged possibly as a hate crime if federal prosecutors could (reasonably?) allege this was an intentional shooting motivated by national origins (18 U.S.C. § 249 - Hate crime acts). This is not a homicide charge, technically, and seems a stretch on the facts. But federal prosecutors sure like to stretch statutes when needed.

Posted by: Doug B. | Dec 1, 2017 1:09:34 PM

Whatever I think about the courts and the judiciary as a whole I never find any value in attacking the jury system. It is thankless, basically unpaid work that many people do their best to get out of--we all should be grateful that there are people willing to undertake the task out of a sense of civic duty.

“Justice was rendered, but it was not served.”

There are innocent people who have been imprisoned and some who are still in prison who can say the exact same thing. We live in an imperfect world. It aggravates me that people have a tizzy fit when a person they think is guilty goes free but when a person imprisoned is exonerated they look around and say, "well that was just his tough luck, don't expect the public to pay for it!"

Posted by: Daniel | Dec 1, 2017 1:15:35 PM

An American soldier raped and killed a Japanese girl. It will be educational to see how Japan handles this case. It has a low crime rate. It has 20,000 lawyers for a population of 100 million. That ratio is a likely powerful factor in its low crime rate. The article has the remark that military people have a low crime rate. Should military service become a mitigating factor? They are screened, trained, disciplined people. They are superior to the general population. If they get a mitigating factor, so should rich people, also superior economic performers.


Posted by: David Behar | Dec 1, 2017 2:36:17 PM

"They are superior to the general population. If they get a mitigating factor, so should rich people, also superior economic performers."

Yes, it so much hard work being born into a trust fund.

Posted by: HIm-e-lay-a | Dec 1, 2017 3:34:45 PM

The Attorney General of the United States calls the verdict of a jury "disgraceful."

I find that comment disgraceful.

Posted by: Michael R. Levine | Dec 1, 2017 5:11:25 PM

I agree with Michael R. Levine.

Our judicial system is anchored by trial by jury. Our forefathers thought this right was so important they put it in our Constitution, not just once, but four times (Article III, Fifth amendment, Sixth Amendment, and the Seventh Amendment). The heart of the jury system is the “collective wisdom” 12 people bring to a decision. As a wise judge once said, " I think we can all agree having 12 people make a decision is generally better than one person making that decision. If “two heads are better than one” then certainly 12 are better than one. You bring the diverse backgrounds, experiences, and common sense of 12 people to bear on an issue. That is powerful."

Our Attorney General, the highest law office in the land, should not denigrate the verdict of a jury even if he disagrees with its result. That he does so demeans our system and demeans himself. Shame on him. His remarks are the disgrace, not the jury's verdict.

Posted by: Sally | Dec 1, 2017 6:09:57 PM

Grow up Michael and Sally. The AG has every right to comment on the verdict.

A woman is dead because of BS sanctuary policies---the agent of her death needs to be prosecuted to the fullest extent of federal law. With, of course, no PD--illegals shouldn't get paid for counsel.

Posted by: federalist | Dec 1, 2017 8:49:38 PM

Sessions is a liar five times over, a disgrace to his office. who gives a damn what he thinks about a verdict.

Posted by: Evan | Dec 2, 2017 12:41:03 AM

A federal prosecution would waste time and money. Put the guy in general population and carry out the Italian death penalty, for the tax payer expense of a carton of cigarettes. Give the job to you lawyer fav, a lifer.

Posted by: David Behar | Dec 2, 2017 3:25:06 AM

federalist, do you think non-citizens have no Sixth Amendment right to counsel at all or just that they ought not have the full protections of that right as it has been interpreted/applied for citizens? And do you have the same take for other criminal procedure rights ---

e.g., no Fifth Amendment right to due process for "illegals" OR even if they have this right a court could apply proof standard less than BRD in criminal case despite Winship?

e.g., no Eighth Amendment right to be free of cruel/unusual punishment for "illegals" OR even if they have this right a court could give LWOP to non-citizen juve robbers despite Graham?

Since Heller, there is lower court debate over the application of the Second Amendment to non-citizens, and I am eager to hear more of your account of what/how criminal procedure rights ought to be modified for this population.

Posted by: Doug B | Dec 2, 2017 9:45:26 AM

Hey, Doug. Do you think murder victims have no rights to life, liberty, and the pursuit of happiness?

I am eager to hear more of your account of what the criminal/tort liability should be for the sanctuary city, and the lawyer profession protecting, privileging, and empowering murderous illegal aliens.

Posted by: David Behar | Dec 2, 2017 11:46:44 AM

The crime of entering the United States illegally should not be rewarded with any privileges, nor with any legal rights at the expense of the tax payer, as a matter of policy. The immigration procedure is administrative, and not criminal. When charged with a crime, the above murderer got the full privileges of a citizen. That included the rare public defense team that obtained an actual Not Guilty verdict for murder and manslaughter. He should have been convicted of involuntary manslaughter, the most accurate charge for the facts. The problem? Lawyers on both sides are really stupid.

The Supreme Court has also removed its own jurisdiction over immigration decisions, since they involve foreign affairs, the purview of the executive branch. Judicial second guessing would violate the separation of powers.

Posted by: David Behar | Dec 2, 2017 12:39:36 PM

Federalist, I am entirely awake. I don't quarrel with the A.G's right to comment on the verdict. I quarrely with his right too call it disgraceful. This comment flies in the face of the ABA Standards appllicable to prosecutors.

Fourth Edition of the
for the

Standard 3-6.10 Comments by Prosecutor After Verdict or Ruling
(a) The prosecutor should respectfully accept acquittals. Regarding other adverse rulings (including the rare acquittal by a judge that is appealable), while the prosecutor may publicly express respectful disagreement and an intention to pursue lawful options for review, the prosecutor should refrain from public criticism of any participant. Public comments after a verdict or ruling should be respectful of the legal system and process.

(b) The prosecutor may publicly praise a jury verdict or court ruling, compliment government agents or others who aided in the matter, and note the social value of the ruling or event. The prosecutor should not publicly gloat or seek personal aggrandizement regarding a verdict or ruling.

Granted this applies to the prosecutor at the trial (who was quite respectful after the verdict ). How much more so should the animating principle of the rule apply to the highest law enforcement officer of the land.

Posted by: Sally | Dec 2, 2017 1:11:59 PM

Sally. That is criminal cult enterprise enforcement bullshit. The prosecutor may say anything he wants after a case, including calling for the guillotine for the frustrating judge (real case).

I have proposed beginning to impeach judges for their decisions. To deter.

Posted by: David Behar | Dec 2, 2017 4:23:27 PM

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