José Inez García Zárate: "This isn't Spain, you know"

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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.)

 

I.   Introduction

 

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. 

 

The facts in this case are critical, as in all legal matters, the outcome is dependent on the interplay of facts and law.

 

II.  How Was He Not Convicted Of Murder?

 

In California:

 

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:

 

Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the
defendant is guilty. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable
conclusions points to innocence and another to guilt, you must accept
the one that points to innocence.
 
Thus, in a battle of circumstantial evidence, such as this, the defense has an inherent advantage.
 
IV.  Why Did The Jury Not Know That Zárate Was A Multiple-Felon, Five Times Deported From The United States? 

 

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 chargePeople 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.   

 

 

  

 

  

 

 

 

   

 

Comments

Thomas Napers Added Dec 3, 2017 - 3:00am
“In the United States, crimes require more than harmful acts  or bad outcomes: they require bad intent.”
 
There is such a thing called criminal negligence.  Think drunk driving. 
 
Having said that, I had no idea until reading your article that the bullet ricocheted off a pier and then hit Steinle.  In light of that fact, her death was clearly not first or second degree murder, as I had previously thought.  I can also appreciate how the judge wouldn’t allow his past criminal history to be admissible, in light of the fact her death didn’t happen while involved in some crime.  In addition, I can appreciate how a judge could determine his immigration status and history to have no bearing on the case. However, if I were the judge, I would have allowed his criminal history and immigration status to be included.    
 
As an avid watcher of Fox News, this story has definitely knocked the channel down a few notches with me.  Despite repeated calls for Kate’s law, they never once mentioned she died from a bullet that ricocheted. 
John Minehan Added Dec 3, 2017 - 6:58am
"There is such a thing called criminal negligence.  Think drunk driving."
 
Absolutely right.  However, to become something that rises above ordinary negligence, you have to exhibit something like   "wanton disregard for human life"
 
In California, under Section 192 of the Penal Code that would be "without due caution and circumspection."
Michael B. Added Dec 3, 2017 - 9:13am
John, interesting post, as usual. You're absolutely right in saying,
 
"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."
 
What's that old saying? "Better 100 guilty men go free than one innocent man convicted?" Something like that.
Michael B. Added Dec 3, 2017 - 9:14am
I know someone (friend of a friend) who was originally charged with second-degree involuntary manslaughter after beating someone to death outside of a bar over a pool game dispute. After it was discovered, through several eyewitnesses, that he kicked the guy's head very hard twice after already knocking him down (in addition to being a psychopath, this dude was was a very accomplished fighter), the charge was upgraded to first-degree manslaughter, for which he got 8.5 years. I don't know what kind of evidence was presented, but the guy who was killed had a reputation for being a thug and had a long rap sheet to prove it, whereas the perpetrator, amazingly, had a pretty clean record overall.
John Minehan Added Dec 3, 2017 - 9:14am
Another take on this. 
John Minehan Added Dec 3, 2017 - 9:23am
And another
 
I suspect the reason the Jury didn't come back with an Involuntary Manslaughter conviction was: 1) the particular gun could go off without being mishandled do to the light trigger pull and other factors; and 2) the charge to the Jury probably had something to do with why the Jury convicted him of a felony gun-possession charge without finding him guilty of  Involuntary Manslaughter.  
John Minehan Added Dec 3, 2017 - 9:53am
Yet another interesting take.
 
Michael, I probably display my Libertarian tendencies, but given the power of the Government (at any level) it is good to know there is a known procedure for things and some things that prevent arbitrary decisions.  
John Minehan Added Dec 3, 2017 - 10:01am
"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."  People v. Zackowitz, 254 NY 192, 197-8 (1930).
 
Exactly your acquaintance's situation . . . .  "The life of the law has not been logic; it has been experience."  O.W. Holmes, Jr., The Common Law.
Michael B. Added Dec 3, 2017 - 10:22am
When I first heard about it, I wasn't a bit surprised. Apparently, the two started having words, and the bartender told them to take it outside, which they promptly did. My "friend" then promptly went ratta-tat-tat and knocked the guy down and out, where he should have stopped. It was the extra kicks to the head that were fatal, but oddly enough, the "victor" then dialed 911, which may or may not have helped him. He didn't have an extensive criminal record, like the "victim", but on a certain website, there were plenty of anecdotes about my "friend", saying he had an anger management problem, had a short fuze, was very violent, etc, etc. I don't know how much evidentiary value internet chat rooms and/or comment sections have. There are actually quite a few guys like that around. Oh, he was a Marine M47 Dragon gunner during Desert Shield/Desert Storm.
John Minehan Added Dec 3, 2017 - 10:56am
If this were a few years back, no one would think about it, now it would be looked for, if nothing else, for decisions about what to charge and possible witnesses . . . .   
Michael B. Added Dec 3, 2017 - 11:17am
Yes, social media added another dimension for sure. A couple of months ago, a mistrial was declared in a capital murder case because one of the jurors starting posting info about the case on social media somewhere, and they are charging him or her with contempt of court. Of course, the entire jury selection process had to start all over again completely from scratch.
John Minehan Added Dec 3, 2017 - 12:01pm
big issue in a criminal case and also anything involving trade secrets or confidential business issues . . . .
Jeff Michka Added Dec 3, 2017 - 5:57pm
JM: But he musta been guilty!!! The Orange coward sais so!! Justice hasn't been served, and lies bleeding like the last Fox TV news ARBs...How can you hold the rule of law above hatred for immigrants?
Ari Silverstein Added Dec 4, 2017 - 5:36am
The reason we don’t allow have gun laws is because we respect the fact guns are really dangerous.  It’s the same reasons we require people to have driver licenses.  So when someone decided to use a gun or car illegally, they are showing disregard for the lives of others.  This is why, at the very least, Zarate should be found guilty of Manslaughter. 
John Minehan Added Dec 4, 2017 - 6:32am
Manslaughter was probably the crime that was best supported by the facts.
 
But in CA, Involuntary Manslaughter is "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."
 
The defense  keyed on the fact that the handgun in question has a very light trigger pull and is known to produce accidental discharges even in the hands of experienced shooters.  Initially, it was wrapped in a tee-shirt, so it is not clear that the Defendant's acts were "without due caution and circumspection."
 
Ben Shapiro, a conservative pundit and honors graduate of HLS, has pointed out that the fact that the jury convicted him of a felony means the other tier of Involuntary Manslaughter applies.
 
However, the conviction was for a felony and the text of the applicable statute reads "not amounting to a felony." 
 
I would really be interested in seeing the Charge given by the Judge to the Jury.  I'm not admitted in CA, so I don't have an informed answer.
John Minehan Added Dec 4, 2017 - 1:58pm
"How can you hold the rule of law above hatred for immigrants?"
 
In a nation of immigrants, isn't the law what holds it all together, the Constitution, the common law and the idea that we all, as citizens, have at least some (small) say?
 
Theodoric of York, Mediaeval Lawyer goes, "Naah." 
Ari Silverstein Added Dec 4, 2017 - 9:27pm
I don’t see how the lightness of the trigger matters.  The fact the gun was loaded is all that should have been required to convict Zarate of Involuntary Manslaughter. I mean, unless you’re looking for trouble, who walks around with a loaded illegal firearm?
 
That being said, the punishment for a bullet killing someone after it ricocheting, should probably be light in comparison to other forms of involuntary manslaughter.  The fact the judge made all those restrictions on the prosecution makes me think the verdict was more political than legal.  Californians were looking for a way to stick it to Trump and his supporters and this was served up on a silver platter. Poor Kate Steinle and her family. 
John Minehan Added Dec 4, 2017 - 10:19pm
"Poor Kate Steinle and her family."
 
Very true.  The father made very appropriate comments about the verdict, given his situation.
 
Very light trigger pull (without notice of the condition) means it becomes a lot easier to have it go off accidently even while trying to clear it (or even picking it up as it was wrapped in cloth).  The condition (without notice) meant that ordinary due care was not enough.
 
As set forth in the article, prior bad acts with no direct relationship to the crime charged are excluded, both by common law and statute.  

 
Michael B. Added Dec 4, 2017 - 10:40pm
I know that the Sig Sauer P239 was sold to the Govt. in two different main models: those that have what's called Double Action/Single Action (DA/SA) triggers, and others which are Double Action Only (DAO). Cops usually carry (and occasionally store) their weapons with a round chambered, but whether or not the P239 in question was in SA mode was undetermined, but I'd guess that it was. Many people, even career criminals, do not know how to properly handle firearms, and it's a distinct possibility that this particular dumbass was one of them. I also have to point out that I would NEVER leave a loaded or unloaded firearm in my vehicle unless I was in eyesight of it, so I wonder what kind of trouble the LEO is in to.
John Minehan Added Dec 6, 2017 - 2:19pm
I think that turns on what policy Bureau of Land Management ("BLM") set for carrying and storing an authorized side arm while on official business (TDY/TAD kind of thing) but when not working (getting dinner).
 
If he followed that policy, he's probably off the hook but BLM may want to consider settling with the Steinles.  This would not be a case where I would assert Sovereign Immunity, even if I had good legal grounds too much chance for a firestorm of bad publicity..