Alice More: Arrest him!
More: Why, what has he done?
Margaret More: He's bad!
More: There is no law against that.
Will Roper: There is! God's law!
More: Then God can arrest him.
Alice: While you talk, he's gone!
More: And go he should, if he was the Devil himself, until he broke the law!
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake! ----- Robert Bolt, A Man For All Seasons
"Ubi jus ibi remedium" ----- Anonymous ("Where there is a right, there is a remedy." Lawyer's Corollary: But there is not necessary a remedy where there is only a wrong.)
Many people do not like the verdict that came down on Thursday (November 30, 2017) in The People v. Zárate. They vent their spleen on Twitter and on talk radio.
However, in my opinion, the verdict in this case demonstrates that the rule of law and the protection it gives the individual citizen, which Robert Bolt has Sir Thomas More talk about in the dialogue quoted above, endures.
II. How Was He Not Convicted Of Murder?
Murder is the unlawful killing of a human being, or a fetus, with malice aforethought . . . . Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice. CA PEN §§ 187-188.
To be convicted of Murder in the First Degree in California:
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206 , 286 , 288 , 288a , or 289 , or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. CA PEN § 189.
To be convicted of Murder in the Second Degree in California:
All other kinds of murders are of the second degree.
Manslaughter is defined under Section 192 of the California Penal Code as:
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary-upon a sudden quarrel or heat of passion.
(b) Involuntary-in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular- (Not applicable here)
In the United States, crimes require more than harmful acts or bad outcomes: they require bad intent.
That Kathryn Michelle "Kate" Steinle was shot and died, begging her father to help her, is a tragedy. However, the fact that it is a tragedy does not make it a crime.
In our system, in this kind of case, determining if the defendant is guilty of a crime rests with a jury. Determining that the jury is properly instructed on the law and that the Prosecutor and Defense offer only proper evidence rests with the judge.
III. How Could The Jury Not Convict Zárate of More Than Illegal Possession of a Fire Arm?
As the above selections from the California Penal Code indicate, a prosecutor has to prove intent in order to convict someone of murder. Additionally, to convict someone of manslaughter, you have to prove facts that support a studied indifference on the Defendant's part to the outcomes of his acts.
Given that the elements for Murder One are so specific and do not fit the facts here, a conviction on that count was very unlikely.
A conviction for Murder Two was more likely, but it is questionable if the necessary "malice aforethought" was present. Based on the fact that Zárate did not know (and, in fact, never met) Steinle, the elements needed for a conviction on Voluntary Manslaughter ("sudden quarrel or heat of passion") are not present.
This leaves Involuntary Manslaughter.
It is at least arguable that some of the elements were met ("in the commission of an unlawful act, not amounting to a felony" or "without due caution and circumspection").
The first is more likely, as the Jury convicted Zárate of illegally possessing a firearm, that element definitely appears to be present. However, much of this depends on how case law has construed this provision of the California Penal Code, as reflected in the California Pattern Jury Instructions given to the Jury by the Judge on this issue.
The issue of "without due caution and circumspection," at least, is not clear.
Ms. Steinle was struck by a bullet that went 78 feet after ricocheting off a concrete pier. There is no evidence that Mr. Zárate stole the weapon (a .40 caliber Sig Saur P239), which had been stolen from a Bureau of Land Management Ranger on official business in San Francisco. The defense was able to introduce evidence that that particular weapon has a very light trigger pull and that even experienced shooters have accidental discharges with this weapon, especially if left in single-action mode. (The owner did not recall if it had been in single-action mode.)
Zárate gave multiple conflicting stories to the Police, it came out at trial, in response to lies the Police told him about evidence they had against him. It is possible that this damaged the credibility of the State's case.
Further, under the California Criminal Jury Instructions:
Because the judge did not allow evidence to be admitted of prior bad acts (in Zárate's case, multiple convictions for non-violent felonies and being an illegal immigrant who was deported five times).
In criminal cases in the United States, we tend to not allow criminal history to be considered by a jury unless, per Section 404 (b) (2) of the Federal Rules of Evidence:
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
In other words, evidence of prior bad acts is not admitted in order to be generally prejudicial to the Defendant but may be admitted where it might be probative of some element of this case.
As Chief Judge of the NY S Court of Appeals (later Justice of the US Supreme Court) Cardozo wrote:
If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one. In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime. The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide, but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy. There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. People v. Zackowitz, 254 NY 192, 197-8 (1930) (citations omitted) (emphasis added).
Conclusion: "This isn't Spain, you know."
In Robert Bolt's play, A Man For All Seasons, Sir Thomas More, former Lord Chancellor of England now on the outs with Henry VIII, is frequently told in response to concerns, "This isn't Spain, you know." The idea being that in England, the Common Law will protect him from the extrajudicial wrath of the Sovereign. The play ends with More, one of the most brilliant lawyers of his time and a noted Scholar, being executed based on perjured evidence.
In The People v. Zárate, the United States demonstrated, at least this time, "This isn't Spain, you know," and we did it with a Defendant who was neither a scholar, a lawyer nor a statesman.
Instead, Zárate is a common criminal, not even a US Citizen, and the kind of man my old Drill Sergeant of 40 years ago might have charitably described as "Joe Tentpeg" and "Dummy!"
But, if the protections our system affords can protect such a man, a member of a class of people being currently vilified, then it can act as a check against arbitrary government power being used against anyone.
One hopes that, somewhere, Sir Thomas More smiles.