GARCIA ZARATE TRIAL

first published in Medium, July 2, 2108

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Photograph of Jose Ines Garcia Zarate on San Francisco’s Pier 14 taken by Jay Martin on May 23, 2015.

Jose Ines Garcia Zarate Did Not Receive a Fair Trial: 10 Examples

By Matt Gonzalez

“When the court changes it’s ruling on a whim, it disrupts the trial that the parties can expect to have. Last minute changes in rulings without any substantive reason only serves to undermine the confidence attorneys have in the judge’s role in the proceedings.” — Defense counsel Matt Gonzalez via email to Judge Samuel Feng, October 27, 2017.

Introduction

When Jose Ines Garcia Zarate was acquitted by a California jury of murder charges brought against him for the death of Kate Steinle, less attention was paid to Garcia Zarate’s conviction on the lesser charge of gun possession. But Garcia Zarate was innocent of that charge as well. It may seem like a small thing to dispute this lesser conviction, but it was nonetheless faulty, particularly as it resulted from a series of inexplicable evidentiary and instructional rulings by the trial judge, Superior Court Judge Samuel Feng, a Republican, appointed by Governor Schwarzenegger in 2009, who was assigned the trial on August 4, 2017.[fn1]

Garcia Zarate now faces federal prosecution duplicating the state gun possession charges — a politically-motivated prosecution that has already led to Garcia Zarate’s further imprisonment.

The fact that Garcia Zarate was acquitted of murder charges (where he was facing a sentence of life in prison) is a testament to the tireless work of the team of lawyers, investigators and experts who worked for his defense.[fn2] Nevertheless, his wrongful conviction for gun possession is a stark reminder of the power trial judges wield in both the evidence and testimony they allow and the instructions they give to the jury.

Garcia Zarate Did Not Receive a Fair Trial.

On November 30, 2017 a San Francisco jury returned a not-guilty verdict in the main charges of murder in the case of Jose Ines Garcia Zarate. Garcia Zarate had been charged in the murder of Kate Steinle. The case gained national attention because of then-candidate for president Donald Trump’s repeated invocations of it to highlight his widely criticized complaint that Mexico was sending its worst people to the United States.

The verdict was a shock to many who expected that the jury would at least return a guilty verdict on the charge of involuntary manslaughter, but they acquitted on that charge as well. Garcia Zarate was convicted of the single charge of being an ex-felon in possession of a firearm. Here, the jury sought appropriate instructions, yet these were not provided by the trial judge (as will be discussed below).

Despite the outcome, which many hailed as an example of the jury trial system working, Garcia Zarate did not receive a fair trial. This article presents 10 examples where Judge Feng mishandled evidentiary issues.

To recap the basic facts: Kate Steinle died on July 1, 2015 in San Francisco, after a gun stolen from a car owned by a federal Bureau of Land Management ranger discharged on Pier 14, a popular tourist attraction. The fully loaded semi-automatic handgun had been left in a backpack under the front seat of the ranger’s SUV. Homeless immigrant Jose Garcia Zarate was arrested for the shooting wherein a single bullet ricocheted off the concrete pier near where he was seated and traveled over 90 feet before striking Steinle in the lower back. Garcia Zarate, who has a second grade education and a history of mental health issues, gave conflicting accounts of what happened. He said both that he was pointing the gun at seals when it discharged and that it was an accident that occurred as he handled a discarded bundle left on the ground, which contained a firearm.

After a lengthy trial and five days of deliberations the jury unanimously found that it was an accident and acquitted Garcia Zarate of the major charges of murder (1st and 2nd degree), involuntary manslaughter, and assault with a semi-automatic firearm causing great bodily injury. He was convicted of being an ex-felon in possession of a firearm.

10 EXAMPLES

1. The judge denied effective cross-examination of a key witness, the BLM ranger whose gun was stolen and later caused the death of Kate Steinle

The DA opposed the defense calling the Bureau of Land Management ranger, John Woychowski, who owned the semi-automatic handgun that caused Steinle’s death, arguing it was irrelevant. Since the BLM ranger was the last person to handle the gun before it was stolen from his vehicle, the judge agreed to allow the defense to call him as a witness. However, the court drastically restricted the scope of the defense’s examination of Woychowski — essentially only allowing the defense to question him regarding the gun’s condition and some of the circumstances of the auto burglary.

Once the defense won the right to call Woychowski, the DA announced her intention to call him first, as a prosecution witness. Before he took the stand, Judge Feng granted the BLM ranger privileges not extended to any other witness. He was allowed to enter the courtroom through back hallways, so that he could avoid the press. Thereafter, the DA was allowed to question the BLM witness without the restrictions the court had imposed on the defense. Thus, the prosecution was allowed to elicit testimony from the ranger covering extensive details of his training, his usual safety practices, his trip up the coast of California to San Francisco, and finally, the discovery that his car had been burglarized and the gun stolen.

After widening the scope of the ranger’s testimony when he was questioned by the DA, the court then re-imposed its original restrictions when the defense attempted to cover the same ground during cross-examination. The court sustained over twenty-five objections admonishing defense counsel to abide by his earlier ruling limiting the scope of the examination. The defense was not permitted to counter the prosaic narrative laid out by the prosecution of a highly trained professional, on a vacation with his family (wife and three children), who unknowingly fell prey to auto burglars in San Francisco.

The court could not be made to understand the defense’s right to cross-examine the ranger on the subjects the prosecutor chose to cover in direct examination. This isn’t merely a basic legal principle: it is the definition of cross-examination. California Evidence Code section 761 states:

Cross-examination is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.

Just in case section 761 wasn’t clear, California Evidence Code section 773, subdivision (a) restates the rules:

“A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.”

When we tried to explain that the earlier ruling didn’t apply since it was now cross-examination, and that the DA had elected to open all of these areas of inquiry, the court insisted we were in violation of his order.

The truth the defense wanted to present, which was largely suppressed by the court’s rulings, was that that this was a ranger excessively armed, for no apparent purpose, who stored his gun in violation of various BLM and state regulations. But for his conduct, the ensuing tragedy would not have occurred.

2. The Court allowed the prosecution to portray the BLM ranger as security conscious, while preventing the jury from hearing evidence that the ranger carried a second loaded and improperly stored semi-automatic pistol in his vehicle.

Prior to the BLM ranger testifying, the DA moved to exclude evidence that the ranger was also transporting a second semi-automatic handgun in his vehicle in violation of safe storage protocols. The court agreed, ruling it was irrelevant.

As it turned out, the DA elicited extensive uncorroborated testimony from the BLM ranger that he carefully followed safety protocols and always handled his weapons safely. He testified that when he left the gun in the car he was “being very safety conscious.”[fn3] This testimony opened the door to evidence that showed the opposite.

The evidence to rebut the BLM ranger’s claimed conscientiousness was substantial. Among other things, the BLM ranger disregarded the general gun manufacturer safety manual requirement that firearms not in active use be stored securely and unloaded. More specifically, in leaving the loaded firearms unsecured in the car that was being used to transport children, he violated the BLM department’s manual that states: “Firearms not in an officer’s immediate control must be appropriately secured to ensure they are kept out of the reach of children or other unauthorized persons.” He also failed to use the firearm safety locking device that the department had provided him on either gun.

When the defense sought permission to rebut the ranger’s claims to having acted conscientiously and with regard for safety, — by introducing evidence that on the date in question the ranger had actually been travelling with another loaded and improperly stored gun in the trunk of his vehicle, in violation of department policy — the court disallowed it, denying Garcia Zarate important impeachment evidence that would have assisted the jury in evaluating the ranger’s other testimony (which was not subject to any corroboration).

3. The court denied access to evidence that could establish that Garcia Zarate did not burglarize the BLM ranger’s vehicle.

On the eve of trial, via subpoena, the defense obtained a redacted police report from the police department of an auto burglary adjacent to the BLM ranger’s car. The DA had withheld this report from the defense during discovery. This report confirmed that there was not a single auto burglary in the area, but rather over half a dozen break-ins, most likely by an experienced group of thieves (notably, Garcia Zarate had no history for theft crimes). Some of the items stolen from the BLM ranger were discarded at the location of the second car. The second car had numerous items of value taken, including laptop computers, passports, credit cards, and a birth certificate.

Importantly, no items of value were found on defendant at the time of his arrest four days later. He had no money and no one came forward to say Garcia Zarate had ever offered to sell any of the stolen items. No physical or forensic evidence tied Garcia Zarate to the crimes despite police attempts to find it. In fact, police investigators specifically asked Woychowski to preserve items he found by his car for fingerprinting, hoping to connect Garcia Zarate to the offense. Ultimately, police found no witnesses, no fingerprint match, and no DNA evidence connecting Garcia Zarate to the crime. Despite this lack of evidence, media reports widely identified him as having stolen the gun that caused Steinle’s death including a major article from the Washington Post in June, 2017 (just before trial commenced) which said “Less than three months later, authorities say, Garcia Zarate stole a .40-caliber pistol from the unlocked car of a U.S. Bureau of Land Management ranger, and shot Steinle at Pier 14 along the Embarcadero.”[fn4]

When the defense learned (from the victim of the second auto burglary) that several cars in the close proximity of the ranger’s vehicle had been burglarized, the judge refused to order the DA to turn over other possible police reports and 911 calls the DA withheld pertaining to the various auto burglaries, or to identify the owners of the burglarized cars, to allow the defense an opportunity to properly investigate the much larger crime scene that included not one car, but several. Evidence showing that the burglary of the ranger’s vehicle was conducted as a part of a planned, wide-scale scheme to break into several cars would have put to rest any implication that Garcia Zarate committed the burglary.

The defense independently identified one of the owners via rental car information and obtained additional information raising further doubts that Garcia Zarate was the burglar. The lessee of that car told a defense investigator that stolen personal paperwork (a birth certificate and work documents) taken during the auto burglary were mailed back to her months after Garcia Zarate was in police custody, presumably by the thieves who had taken it in the first place.

The court attempted to cure its error by instructing the jury that they were not to speculate as to whether Garcia Zarate was the burglar. But substantial pretrial publicity had referred to Garcia Zarate as having stolen the gun, and the prosecutors sought to buttress this belief, by repeatedly emphasizing Garcia Zarate’s proximity (at Pier 14) to the auto burglary crime scene (they were within ¼ mile). Given these facts, the defense should have been allowed to definitively prove he was not involved in the burglary. At the very least, the court should have required the prosecution to produce all information regarding the other burglaries, which could have produced exculpatory evidence.

4. The jury was not allowed to handle the firearm so that they could assess the ease with which the gun could be fired.

The defense alerted the court that it would introduce a trigger-pull simulator that would allow the jury to “pull” the trigger on a disassembled SIG Sauer P-239 to demonstrate how easily this elite firearm could misfire. The issue was central to Garcia Zarate’s defense to the gun possession charge, because this firearm is so easily triggered that it could be fired by a person who lacked knowledge that it was a gun (if, as the defense claimed here, it was wrapped in cloth).

The DA objected and instead proposed that the jury be allowed to handle the actual firearm to test its trigger pull while unloaded and supervised by an expert. The court immediately adopted this proposal. Thereafter, the defense worked on logistics with Sheriff authorities, to allow this demonstration. A few days later, however, the DA announced a change in strategy and elected to oppose allowing the jury to handle the firearm. The court then reversed itself.

After acquiescing in the DA’s flip-flop on her willingness to allow the jury to test the firearm, the court allowed the DA to argue that the trigger pull on the gun was heavy, equating it to lifting a 5 lb bag of sugar. Even after the jury specifically asked to feel the trigger pull during deliberations, the court refused.

Had the jury been allowed to test the firearm, the members would have been able to assess the credibility of the DA’s claims. The factory trigger pull on a SIG Sauer P239 was 4.4 lbs of pressure in single action mode. A defense expert measured the trigger pull of the actual gun at 3.8 lbs. Various experts testified that a trigger could be depressed with substantially less pressure than a measured trigger pull, making the gun lethal at under 3 lbs of pressure. Significantly, a defense expert tested the trigger pull on two children’s squirt guns at 4 lbs, hardy equating to the heavy bag of sugar the DA sought to picture.

By testing the firearm, the jury would have been able to better weigh this testimony. The court has wide latitude to allow or disallow gun examination. But in a case like this, where the difficulty of triggering the gun is a key fact in dispute, refusing the examination is an abuse of discretion.

The practice of allowing juries to examine firearms is common and forbiding such an examination has been found to be error. See People v. Collins, 49 Cal. 4th 175 (2010)(“[the jury is] entitled to scrutinize [the] evidence, subjecting it to careful consideration by testing all reasonable inferences.”) The Court must allow the jury to handle the firearm and evaluate for itself whether it was susceptible to accidental discharge. (See, e.g., Higgin, 159 Cal. at 658–659 [approvingly citing Taylor v. Commonwealth (1893) 90 Va. 109, where the Virginia Supreme Court held that the jury had properly “taken the gun to pieces and examined the plunger or firing pin”].

5. The court allowed use of defendant’s police interrogation despite numerous instances where he invoked his right to remain silent

During in limine motions, the defense showed that several parts of the Miranda advisement were mis-translated, such as “you have the right to wait for silence.” Additionally, the defendant explicitly said he did not want to speak with police and asked to stop talking to them on several occasions.

SpecificallyGarcia Zarate clearly and unequivocally invoked his right to remain silent (in Spanish) at least three times post-Miranda, during an interrogation that was still taking place after 4am, including:

“And now I will tell you that I am not going to answer anything.”

“That’s why I am telling you. I am not going to keep answering you with words anymore.”

“I already told you. I am not going to answer anymore of your words or anything because you are not cut out for those things. The only ones cut out for those things are the judges and the courts.”

Garcia Zarate did not equivocate or condition these invocations by his mannerisms or tone of voice — the statements reflected his unambiguous intent to terminate the interrogation. At the pre-trial Miranda hearing, the lead homicide inspector testified that he believed Garcia Zarate unequivocally stated he did not want to answer questions. That testimony was as follows:

MR. UGARTE: “Sargent Ravano, you recall asking Mr. Garcia Zarate whether he wanted to have a conversation?”

INSP. RAVANO: “Yes”

MR. UGARTE: And he said ‘No,’ right?

INSP. RAVANO: “He did.”

MR. UGARTE: “And it’s fair to say that when you said you wanted to have a conversation with him in a little bit, that when you did return to the room, you started asking him questions about the crime, right?” . . .

INSP. RAVANO: “Yes”

MR. UGARTE: “You gave him an opportunity to say ‘yes’ or ‘no’ to that question, right?”

INSP. RAVANO: “Yes.”

MR. UGARTE: “Is there anything equivocal about saying, ‘no.’”

INSP. RAVANO: “No. No is no.”

MR. UGARTE: “Pretty unequivocal, right?

INSP. RAVANO: “Yes.”

This concession by the lead inspector, that he subjectively believed Garcia Zarate did not want to answer questions, coupled with the multiple instances where Garcia Zarate told police he did not want to answer questions throughout the interrogation, should have resulted in the statement being excluded.

Despite these repeated invocations of his right, the officers ignored them. Notably, the Spanish-speaking officer who served as a translator, who also testified at the Miranda hearing, said he would have continued asking questions regardless of what Garcia Zarate said.

After numerous days of testimony and argument, the court admitted the four-hour long statement (or any portion the prosecution wanted to use) — without providing any reasoning for doing so. The court merely said it considered “all of the evidence” and decided not to exclude the statement.

6. Garcia Zarate’s recorded statement to the press was disallowed to impeach the police interrogation

Garcia Zarate gave a statement to ABC-7 News before his arraignment and before he had counsel while jailed at the Hall of Justice, which was later broadcast widely on television. The defense sought to introduce key portions of the statement that contradicted the statement to police under California Evidence Code 1202, which provides: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant . . .”

Evidence Code section 1220 allows the introduction of a statement to impeach another statement because “[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party.”

A California case, People v. Baldwin, affirmed that “the language [of 1202 and 1220] permits a criminal defendant to attack his own credibility as a hearsay declarant… by offering evidence of an inconsistent statement.” People v. Baldwin (2010), 189 Cal.App.4th 991. The defendant in Baldwin sought to impeach his own credibility in jail recordings introduced by the prosecution with evidence of his own inconsistent statements to the police — a near identical situation to Garcia Zarate’s situation.

The prosecution argued Garcia Zarate admitted to intentionally pulling the trigger of the gun, and admitted to shooting at seals. This is key evidence upon which the prosecutor relied to charge defendant with intentional murder. However, those statements were made in a hostile, many hours-long interview in the middle of the night, in which Garcia Zarate repeatedly said he would confess to whatever the officers wanted. The ABC-7 interview featured much of the same information but lacked the leading, targeted questions that were used to coerce the sometimes false statement. The news reporter also didn’t interrupt Garcia Zarate as he tried to explain his answers as the police interrogators had. Importantly, the DA had offered portions of the police interrogation where Garcia Zarate had apparently said he had “pulled the trigger” and that the gun fired when he stepped on it. In reality, these answers were not accurate: one was mistranslated, the other incomplete. The excerpts of the ABC-7 interview should have been admitted as they contradicted these important points and served to bolster the defense’s explanation of these seemingly damaging facts.

Excerpt from the ABC-7 jailhouse interview:

(The exchange between interpreter and Garcia Zarate was in Spanish)

INTERPRETER: Where did you get the gun? Where was it?

GARCIA ZARATE: It was there on the floor, but when I placed my foot, uhm, I felt that there was something inside a shirt. And when I grabbed it, since it was really spongy, well, I wanted to unwrap it from the shirt and it exploded three times because it was, it was something easy to, to explode.

INTERPRETER: So then you didn’t grab the gun and press the, the trigger?

GARCIA ZARATE: No, just when, just when I intended to grab it because I had heavy shoes on and that’s why I be, began to feel that, there was something inside and when I grabbed it, it started exploding and everything from inside the shirt.

INTERPRETER: Why did you grab the gun and shoot at this young lady?

GARCIA ZARATE: Mm, because when I grabbed it it began to go off by itself.

INTERPRETER: When he, when I grabbed it, it just shot by itself.

ABC-7 REPORTER: Okay, so it was an accident?

INTERPRETER: Was it an accident?

GARCIA ZARATE: Yes.

INTERPRETER: Yes? Why did you try it if, if you can remember, explain to him if it was a accident or intentional because —

GARCIA ZARATE: Yes, it was an accident because when I, when I was going to unwrap it from the, from the t-shirt that, uhm, I didn’t know how to unwrap it, and it started going off by itself.

The clips from the TV interview would have been properly admitted to impeach the prior statement defendant made to police. However, the court disallowed any part of the ABC-7 statement from being heard by the jury.

7. Judge allowed a prosecution witness to give expert testimony, although he was never qualified as an expert

In another example of unfairness, the court allowed the prosecution to elicit expert testimony regarding how the shooting that caused Steinle’s death occurred, from a lay person neither qualified, nor even offered as an expert, while refusing opposing testimony from qualified defense experts.

John Evans was a retired police inspector. He participated in gathering evidence on Pier 14 and directed the taking of some measurements. Notably, he prepared a report saying that his investigation was “not a trajectory investigation.” [Emphasis in Evans’s report]. A trajectory analysis requires two fixed points and a “suspect in a swivel chair [as Garcia was] and the walking victim are not fixed points.”

When he testified at the preliminary hearing under oath, Evans confirmed that he could not perform trajectory analysis and cited examples of fixed points as two holes in two different walls, allowing for drawing “a straight line between them without an intervening stopping them.”

But at trial, Evans introduced a new concept he had never made reference to previously, “vector analysis,” to say he was now able to determine Garcia Zarate fired the gun at Steinle in a straight line. He was further allowed to opine on how the shooting occurred:

MS. GARCIA: Given what you know from your own personal knowledge from conducting the investigation at Pier 14, from other information that you’ve gathered from your investigation, and all the forensic evidence, do you have an opinion about how this shot occurred?

MR. GONZALEZ: Your Honor, I object. Lack of foundation…

THE COURT: It’s overruled for now.

MR. GONZALEZ: Your Honor, can I voir dire? If he’s going to be offered as an expert, I think I should be allowed.

THE COURT: Ms. Garcia, are you proffering Officer Evans as an expert? And, if so, in what capacity?

MS. GARCIA: No, Your Honor.

THE COURT: You may continue….

BY MS. GARCIA:

Q. What is your opinion?

A. That a human being held a firearm, pointed it in the direction of Ms. Steinle, pulled the trigger, firing the weapon and killing the victim.

Q. Why do you believe that?

A. Not only from the evidence in the scene but from all of my experience at crime scene investigations as a police officer and relating to firearms in general, that is the only way that this could have occurred that is reasonable.

Any lawyer minimally familiar with the rules of evidence would recognize the foregoing as expert testimony, for which a witness must be qualified as an expert before providing testimony. When the defense attempted to offer similar opinion testimony (contradicting Evans’s) from its own ballistics and firearms experts, including a former head of the San Francisco crime lab, the court disallowed the testimony. This despite the fact that unlike Evans, the defense witnesses had been offered as experts in their respective fields, and had substantial knowledge with trajectory analysis.

Furthermore, after Evans’ testimony was completed, the defense learned that Evans was being sued in federal court for lying about the results of a SFPD study on where shell casings land after being fired from a gun. The primary testimony against him coming from other police officers deposed in Trulove v. City and County of San Francisco.

Evidence that Evans had previously lied about firearms is plainly admissible under settled California law, which allows the introduction of a witness’ prior false statements to impeach the witness’ credibility. See People v. Wheeler (1992) 4 Cal.4th 285. Nevertheless, Judge Feng refused to allow the defense to recall Evans and impeach him with this new evidence. The court did not find that the DA had any obligation to inform the defense of his pending litigation, although a number of San Francisco homicide prosecutors had testified in the case and the office was aware of the lawsuit. This was evidence that the defense should have been alerted to under Brady v. Maryland, (1963) 373 U.S. 83, but again the judge denied the motion and refused to strike the parts of Evans’s testimony which lacked proper expertise.

8. Garcia Zarate was entitled to a Mistake of Fact jury instruction, yet the court chose not to give it

The entire defense was premised on the fact that Garcia Zarate did not know that the wrapped object he picked up to examine was a firearm. As a result, the defense argued that he could not be convicted of gun possession because of this mistake of fact, particularly if he dropped the gun after realizing its true nature.

Although Mistake of Fact, CALCRIM instruction 3406, is a sua sponte instruction (meaning the court must give the instruction whether it is asked for or not), the defense also requested it. When ruling on the instruction, the court had a doubt that the Mistake of Fact instruction could be applied to the charge of involuntary manslaughter. Rather than omit the portion of the instruction dealing with that charge alone, the court declined to give the instruction at all (including for the charge of possession of a firearm).

But the jury went right to this issue in deliberations, asking if possession coupled with knowledge of the item’s true character alone was enough to “demonstrate wrongful intent”. The court’s answer that “it is sufficient if you find there is wrongful intent” fell short of the admonition in CALCRIM 3406 that the defendant is not guilty if he “did not have the intent or mental state required to commit the crime.”

During deliberations the jury asked a question requesting guidance surrounding the implication of the “knowledge” element regarding intent, illustrating their confusion over the lack of instruction. Had the jury been properly instructed, Garcia Zarate would not have been convicted of possession of a firearm.

9. Garcia Zarate was entitled to a Momentary Possession jury instruction, yet the court chose not to give it

During deliberations the jury very directly requested guidance on the concept of momentary possession, asking “is there any time requirement for possession?”

The defense asked the court to instruct on momentary possession which it refused to do. Momentary Possession is outlined in bracketed language of CALCRIM 2511. The instruction explains that momentary possession is a complete defense to felon in possession of a firearm if the defense proves 1) the defendant possessed the firearm only for a momentary or transitory period; 2) he possessed the firearm to abandon or dispose of it; and 3) he did not intend to prevent law enforcement officials from seizing the firearm.

That is precisely what the defense consistently argued: Garcia Zarate had only momentary possession of the firearm. This was directly supported by evidence, particularly by Garcia Zarate’s post-arrest statements to law enforcement. In those statements, he continually explained that he did not know the item wrapped in the rag or shirt was a firearm when he contacted it and it fired. In response to the question “why did you throw the gun,” Garcia Zarate responded “because if not it was going to keep firing by itself…so I was trying to prevent the gun from shooting” “so [I had] no choice but to get rid of it, cause if [I] had not it would have continued firing.”

The Momentary Possession instruction exists to prevent what the California Supreme Court called “an unduly strict reading” of the statute that would make someone guilty immediately upon realizing its illicit character (discussing heroin in People v. Mijares (1971) 6 Cal.3d 415). Absent that instruction, that was the only option before the jury.

The Court’s refusal to provide the jury the Momentary Possession instruction — even in response to the jury’s specific request for guidance on this very issue — was error. As a result, the jury was led to believe that if Garcia Zarate held the gun for any length of time, and at any time knew it to be a gun, that he would be guilty on this count.

During argument on this issue, the defense showed how illogical the trial court’s actions were. Using Mijares, the defense compared it to someone handing the court an envelope with contraband in it. If the court didn’t know what was inside the envelope, accepted it, then saw that it was something illegal, would the court be guilty of possessing the contraband before dropping or letting go of the envelope?

Had the jury been properly instructed, Garcia Zarate would not have been convicted of gun possession. The jury ultimately believed that Garcia Zarate found an object on Pier 14, wrapped in something, which later proved to be a gun. When he handled that object, it fired once, killing Steinle. Because the gun was in his hand when it fired, and he must have known it was a gun once it fired, the mis-instructed jury was obliged to convict him of gun possession for the fleeting moment he “knowingly” held a gun.

10. The court blocked the testimony of the only confirmed witness who had contact with Garcia Zarate, after his release from the San Francisco Jail and before the death of Steinle, and he disallowed the use of any photos taken by the witness of Garcia Zarate on Pier 14

On May 23, 2015 amateur photographer Jay Martin had an encounter with Garcia Zarate on Pier 14. This is the only corroborated instance of someone having contact with Garcia Zarate during the period he was released from the San Francisco jail on April 15 and when the death of Steinle occurred on July 1. It was notable because Martin took a number of photographs of Garcia Zarate in the exact location where he was when the shooting occurred. Martin noted that Garcia Zarate was friendly, he told Martin he was “back and forth from Mexico a few times”.

The judge refused to allow the defense to call Martin as a witness despite the fact that the DA argued Garcia Zarate went to Pier 14 for the sole purpose of finding a “target” in a secluded place to carry out his murderous plan. The defense countered that Garcia Zarate often spent time there, was homeless, and would be the exact person that might find a discarded object.

Significantly, Garcia Zarate was wrapped in a blanket and standing by a trash can the entire time Martin saw him on the pier (Martin walked to the end of the pier and returned). The inference was that Garcia Zarate was in a vulnerable condition that would support picking up trash and abandoned items, as the defense alleged occurred in this instance. Moreover, Garcia Zarate did not possess anything other than the clothing he was wearing and a blanket that can be seen in the photos. He carried no bag or items of value one might expect a seasoned auto burglar to possess.

The court also refused to allow the defense to utilize any of the photographs Martin took that day. It is customary to use family photos of the defendant or any photograph that shows what their “normal” life outside of court was like when introducing the defendant to the jury during opening statement. In this case, the defense did not have any non-custodial photographs of the defendant and sought to use one of the photos Martin took shortly before his arrest. It was an accurate portrayal of the defendant who was living on the streets from April 15 to July 1, 2015.

The court disallowed use of the photograph. Notably, sympathetic photos of Kate Steinle had circulated in the press, including photos of her smiling, in various family settings, and on vacation. The DA was allowed to use photos of Steinle with her family during their presentation.

Conclusion

In the aftermath of the jury’s verdict, many have held up the Garcia Zarate case as an example of the criminal justice system working. But as the foregoing examples demonstrate, his conviction of gun possession was directly a result of unfair rulings that the best efforts of his defense were unable to overcome.

Following Garcia Zarate’s acquittal of the murder charges, the Attorney General of the United States Jeff Sessions announced he intended to charge Garcia Zarate with illegal reentry to the United States. After it was discovered that those charges did not apply (Garcia Zarate had been released into San Francisco after serving a sentence for illegal reentry), the Attorney General brought federal gun possession charges against Garcia Zarate, something they never do where a state court defendant receives the maximum sentence in the state court (in this case 3 years in State Prison) and otherwise has no weapons history. Garcia Zarate is now represented by Tony Serra and Maria Belyi in the federal matter.

— Matt Gonzalez

Matt Gonzalez is the chief attorney of the San Francisco Public Defender’s Office. A graduate of Stanford Law School he previously served as president of the San Francisco Board of Supervisors.

Footnotes:

1. Judge Feng is a jovial man widely praised for his avuncular demeanor. The Assistant District Attorney prosecuting the case was Diana Garcia.

2. The elected Public Defender of San Francisco is Jeff Adachi. The team representing Garcia Zarate in the state court included several lawyers in the office: Matt Gonzalez (Chief Attorney), Francisco Ugarte (Head of the Immigration Unit), Michael Hinckley (former deputy public defender), and Zac Dillon (attorney/paralegal). Danielle Thompson, a law school graduate, was the investigator who worked on the case.

Chris Gauger (Head of the Research Unit) handled 4th Amendment issues, including an appeal, prior to trial. Clare Kane, a law student at Yale, interned with the Public Defender’s Office for part of jury selection and took the lead in drafting the jury questionnaire.

Trial attorneys Jim Emison (of Tennessee) and G. Whitney Leigh (former deputy public defender) offered critical trial advice.

Defense expert witnesses called to testify included: Alan Voth (firearms expert), Fanny Suarez (Spanish translation), James Norris (firearms and ballistics), and Paul Endo (video enhancement). Experts consulted with but not called as witnesses included: Bill Hing (immigration law), Camila Magrane (video animation), Gary Aguilar (optometry), Keith Rosenthal (video enhancement), Marc Taylor (DNA), Ricardo Winkel (psychology), Shelley Peery (psychology), and Todd Weller (ballistics and trajectory analysis).

Others assisting the defense included: Tamara Aparton (media), John Thomson (website articles), Thomas Brown (firearms expertise), and Tony Hall (firearms research).

3. All quotations in this article from the trial proceedings are from the official reporter’s transcript.

4. Kristine Phillips, The story behind ‘Kate’s Law’ — and how it could change immigration policies in the U.S., Washington Post, June 29, 2017.

 

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