I have spoken with a number of attorneys about the acquittal of Jose Ines Garcia Zarate in the killing of Kate Steinle, and I have yet to encounter one of them who believes that the charge of first degree murder was justified.
In an editorial today in the San Francisco Chronicle, former San Francisco Mayor and California Assembly Speaker Willie Brown, himself an attorney, made a similar point to the one I have made over and over again: “The prosecution’s case was a classic instance of a district attorney overcharging a crime, and in the process alienating the jury.”
He writes: “By asking for a first-degree conviction, prosecutors upped the bar of proof and the chances of the whole case falling apart. There was precious little evidence that Garcia Zarate committed premeditated murder, and by raising that bar, prosecutors undercut their credibility with the jury.
“When you’ve lost the jury on one charge, they’ll be more skeptical as well on lesser charges, like second-degree murder and manslaughter.”
Over-charging is a problem that we see over and over again in Yolo County. The verdict here in acquitting Mr. Zarate reminds me a bit of the verdict in the Ornellas-Castro trial which Deputy Public Defender Dan Hutchinson talked about at the Vanguard event last month.
The circumstances in that murder trial were a lot different of course, but in that case in order to get Mr. Ornellas-Castro for first degree murder they had to tie the shooting to a robbery gone wrong. The problem is that the DA could not legitimately prove that the defendant and his accomplice were attempting to rob the victim in that case.
Jorge Garcia, the close friend of Mr. Ornellas-Castro, turned state’s evidence against his friend in order to gain a lesser sentence of 14 years. However, his testimony was inconsistent – at one point he flipped on the prosecution and testified that there was no robbery, only to come back with a new story after conferring with the prosecution.
In addition, the police investigator in that case lied in trying to claim that certain texts and certain phrases used by the defendant meant they were planning a robbery.
By over-reaching for the first degree murder charge, it opened the door to 
show the jury that neither the police nor the other witnesses were reliable or trustworthy.
Then the jury was able focus on the reasonableness of the defendant’s actions in determining whether he was in reasonable fear of his life at the point at which the shot was fired.
Dan Hutchinson explained that the jury in their deliberations placed themselves in his position and asked whether they would shoot the guy, and half said they would. Given that split, the jury ultimately concluded that his fear was reasonable, even if it was based on inaccurate information, and they ultimately acquitted him of voluntary manslaughter.
But the key to the verdict was the overreach, that brought in unreliable evidence and helped to undermine the entire case.
In the case against Zarate there was never any evidence that he intentionally fired the weapon at Ms. Steinle. Once the jury evaluated the case based on the facts rather than emotion or politics, the acquittal on murder was going to be easy.
What should they have charged? As an attorney points out: “Voluntary manslaughter is appropriate when the defendant acts under heat of passion or imperfect self defense. Neither apply here. Involuntary manslaughter is appropriate when the defendant acts legally but with negligence (criminal negligence) or commits a misdemeanor causing death. Again neither apply here.”
That meant that “the prosecution was stuck with 2nd degree murder (reckless disregard for human life) or reckless discharge which requires the intent to fire the gun.”
The jury ended up rejecting both in this case because the prosecutor was never able to prove that the defendant intended to fire the gun. This comes down to – just as in the Ornellas-Castro case – brilliant defense work but also poor decisions by the prosecutor to attempt to overreach on the charges.
The problem for the criminal justice system is that overcharging often works. We have seen cases where the prosecution clearly overcharged the case based on the facts and the state of the law, but the jury still convicted. A few examples that came to mind are the case of the man with epilepsy who lacked a criminal record, who was charged with and convicted of second degree murder.
There is also the Samantha Green case, where the mother, suffering from drug addiction and a number of mental ailments, was charged with second degree murder rather than manslaughter in the death of her infant and thus sentenced to life.
There are also countless examples where overcharging has led to defendants taking pleas, even in dubious cases. Sometimes those cases end up catching bad guys – in other cases, potentially innocent people end up going to prison rather than risking longer exposure if they go through the justice system.
The verdict in the Kate Steinle case, just as the verdict in the case against Lance Ornellas-Castro, shows that there is risk to the prosecution when they overreach. Nevertheless, until the politics of prosecution changes, we will continue to see such overreaching.
—David M. Greenwald reporting
I’m starting to wonder if perhaps the prosecutor knew exactly what he was doing… somewhat like a reductio ad absurdum.
If he had charged simply on the ‘felon in possession of a firearm’ charge (which got a conviction) all the anti-immigrant, law & order, xenophobic elements would have his head on the proverbial platter. It would appear he felt that the victim’s life didn’t matter!
It could well be that he made a classic error in grossly overcharging (the first degree charge is absurd)… or it could have been a brilliant, masterful move to get to the right result while covering his professional ass from the politics of the incident. I know not which… pure speculation… but it actually makes more than a bit of sense.
We lock citizens up right and left. Why didn’t we put this guy in jail for a few years before deporting him the 2nd and 3rd and 4th times he snuck in? I think that would have resulted in him never having been in SF in the first place. Merely deporting undocumented people who have committed non-immigration crimes so they can sneak right back in is stupid. That’s what got Kate Steinle killed.