How Jose Ines Garcia Zarate avoided a murder conviction

Garcia Zarate, an illegal immigrant who had already been deported several times, was acquitted of murdering 32 year-old Kate Steinle on a San Francisco pier, and the President of the United States is responding with his usual restraint:

 

Mind you, some anger is understandable considering that Garcia Zarate wasn’t legally in the country to begin with, and was arguably on the streets because of San Francisco’s “sanctuary city” policies:

The judge in the trial did prohibit discussion of Garcia Zarate’s immigration status and the mention that he was deported to Mexico, but returned to the U.S. five times. Instead, jurors were told to focus on the events surrounding Steinle’s death.

[…]

Garcia Zarate, who also used the name Juan Francisco Lopez Sanchez, had been deported five times before the deadly encounter. He had finished a federal prison sentence for illegal re-entry into the United States and was transferred in March 2015 to San Francisco’s jail to face a 20-year-old charge for selling marijuana.

But three months before the deadly encounter on the pier, Garcia Zarate was released after the district attorney dropped the marijuana charge — despite a request by federal immigration authorities to detain him for yet another deportation.

His immigration status, however, has nothing to do with whether he is guilty of murder.  Writing for the conservative site RedState, Sarah Rumpf explains why he was likely acquitted:

…The main issue is that the defense was able to present a credible case that the shooting was an accident, and the prosecution aggressively overplayed their hand. Add in a misguided police interrogation strategy and you have reasonable doubt…

[…]

…we have a defendant with zero connection to Steinle. He had a history of drug crimes but no known violent crimes. The bullet that killed Steinle hit the ground and then ricocheted upwards. There was a video possibly showing another group of people disposing of the gun where Garcia Zarate said he found it.

Reviewing the SIG Sauer website shows [the handgun used in this case, which had been stolen from a federal officer a few days before] cost $1,000 or more. You can see how defense counsel could easily argue that a homeless illegal immigrant would be unfamiliar with one.

All of this adds up to the defense presenting a plausible explanation for how Garcia Zarate could have fired the gun and killed Steinle by accident. That’s reasonable doubt. 

The prosecutors were under tremendous political pressure. People wanted Kate Steinle’s killer’s head on a platter, even before Donald Trump ever tweeted her name.

So it’s not that surprising that “San Francisco prosecutors told the jury that Garcia Zarate intentionally brought the gun to the pier that day with the intent of doing harm, aimed the gun toward Steinle and pulled the trigger,” as the Chronicle reported, adding that the Assistant District Attorney also “spent much of the trial seeking to prove the gun that killed Steinle couldn’t have fired without a firm pull of the trigger.”

This seems to be a classic example of prosecutorial overreach.They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand). [emphasis in original]

For the record, Garcia Zarate was convicted of a firearms offence, and it will likely head to his deportation.  Again.

One quick but important note: Garcia Zarate is not going free. The jury did convict him of a lesser charge of being a felon in possession of a gun, and he now awaits sentencing, which will be 16 months, two years, or three years in state prison. He has already served two years and will get credit for that time, but even if he is not given the maximum sentence, there is an outstanding U.S. Marshals Service warrant against him, and despite the sanctuary cities policy, San Francisco apparently does turn over undocumented immigrants to the feds when they have a warrant. So he is either getting deported, or spending more time in prison first, and then getting deported.

This case does raise real concerns about American immigration and border policies – the very concerns that arguably got Trump to the White House.  It should not be an excuse for the President to call into question the integrity of his own country’s justice system.  But then again, look who we’re dealing with.

I’ll give federal prosecutor (and veteran blogger) writing under the name “Patterico” the last word:

…My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.

 

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Murder without a body

Yesterday, the news we’d all been dreading was confirmed by Calgary police, and today a suspect was charged:

The man police have been investigating in the disappearance of a missing Calgary family has been formally charged with their murders.

Douglas Garland was arrested near Airdrie on Monday morning, as the search for five-year-old Nathan O’Brien and his grandparents, Alvin and Kathryn Liknes, turned into a homicide investigation.

He was escorted to the Calgary police arrest processing unit on Monday evening, prior to appearing before a justice of the peace.

On Tuesday, Garland was officially charged with two counts of first-degree murder in relation to the deaths of Kathryn and Alvin Liknes, and one count of second-degree murder in the death of Nathan O’Brien.

He is scheduled to appear in court on Wednesday, July 16, 2014.

When asked how police were able to lay charges despite not yet recovering the bodies of the victims, Calgary Police Chief Rick Hanson admitted it is a ‘complexity.’

“You can still find evidence that supports a homicide, unequivocally supports a homicide charge in the absence of a body.” says Hanson while on Global Calgary’s Morning News on Tuesday.

“Without bodies, you have to build a case which is based on pieces of evidence that have to pull together at a particular time,” adds Hanson. “You assess, you add evidence, you get new evidence in, you chase down some leads, you pull more information together… and every day you’re looking at what you’ve got.”

 

After processing the horror that someone took the life of an innocent little boy, many probably wonder how Garland can be charged with murder when none of the alleged victims’ bodies have been discovered. Needless to say, that will make prosecutors’ job of proving guilt beyond a reasonable doubt much more difficult – but not impossible.

Following the arrest of New Yorker Robert Bierenbaum for the murder of his wife fifteen years earlier – ABC News posted a fairly detailed piece explaining the burden to be met by prosecutors where there is no body:

To prove there was a death in missing-body cases, prosecutors must prove there has been no sign of the person’s existence. That means presenting close friends and family members who would say they haven’t heard from the alleged victim in a long time and that the missing person would not have just gone away without informing them. Prosecutors and investigators also comb through records in 50 states to show there has been no activity in the accounts belonging to the victim, such as Social Security funds, bank accounts and credit card activity.

“You have to develop an understanding of the victim’s life, the details of their life,” says California prosecutor Richard Holmes, who successfully convicted Alejandro Gilbert Ruiz in the disappearance and murder of his wife in 1980. “Who would they contact? Do they have any medical problems that would require constant attention? What are their habits? You have to do everything you can to bring the victim to life in front of the jury. Very few people drop off the face of the earth. You have to prove that the victim is unlikely to do so, disregard everyone they’ve known in the past, especially if they have nothing to hide from.”

Prosecutors also must illustrate the circumstances under which a murder could have occurred: evidence of a troubled relationship; the discovery of the victim’s blood in their house or the suspect’s house. A confession from the suspect to either police or other people is always welcomed by prosecutors. But that alone is not enough to win a missing-body homicide case. The law mandates that prosecutors should have enough evidence to prove their case without a confession because suspects often retract their statements.

[…]

Without the presence of a body, Pertler says, questions that normally would be uncontested, such as the occurrence and place of the death and the identity of the victim’s remains, become fuel for the defense. In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.

“Most definitely they are the toughest cases you can face,” says Pertler. “With any murder case, there are certain elements that are no-brainers, like the death of so-and-so occurred in such-and-such a county and they died in this way. But without a body, you have the other side saying, ‘There’s no way you’ve identified these remains as belonging to the victim.’ You’ve got to hope that your case withstands the defense’s request for a directed verdict of acquittal from the judge [because of lack of strong evidence] and that your case passes with the jurors, who take their job seriously.”

[…]

Though they lack more direct physical evidence, missing-body cases, some lawyers say, ultimately can be stronger than standard murder cases with bodies and are more likely to withstand appeals. Because the body is missing, prosecutors must worry more about their case being thrown out before or during trial because of a lack of sufficient evidence. These obstacles, along with the fact that they have to prove there was a death by murder make prosecutors present a more efficient case.

“Circumstantial cases can often be stronger than direct evidence cases whereas the evidence you present is less susceptible to tampering,” says Joshua Marquis, who successfully prosecuted a missing-body case in Oregon in 1993. “You don’t have all the baggage that may come if police are not as careful as they should be at the scene of a crime. And I don’t worry about these cases being overturned on an appeal. Most judges won’t let you get past [the defense’s request for] a directed verdict of acquittal at trial if you don’t present a strong case. You combine that along with the fact that you convinced a jury to convict, it’s unlikely an appeals court will overturn the verdict.”

Bierenbaum was convicted, and as Christie Blatchford notes, there have been some successful missing-body murder prosecutions here in Canada:

There’s R vs. Pritchard, a decision affirmed by the Supreme Court of Canada. It’s a 2007 decision from the British Columbia Court of Appeal which involved a man convicted of first-degree murder despite the fact that the victim’s body has never been found.

There’s R vs. Ratte, another B.C. case where a husband was convicted of second-degree murder despite the fact his wife’s body was never found. The Supreme Court dismissed the application for leave to appeal.

There’s R vs. Wristen, a 1999 Ontario case where another husband was convicted of second-degree murder though the body of his wife has never been found; that was upheld by the court of appeal.

If Garland is convicted, it may bring some closure to that poor family – but only a little, if the bodies of Nathan and his grandparents remain undiscovered.  For any parent, not knowing for sure what happened to your child must be unbearable.

Explaining the Dunn non-verdict

One day in November 2012, a white man named Michael David Dunn got into an argument with four black teenagers over the loud music they were playing.  Dunn says one of the youths threatened him with a gun, and in response he grabbed his own weapon and fired in self-defence – killing one of the boys.  He then continued to fire at their vehicle as they drove away.  Police later found no weapon in the boys’ possession.

Dunn was charged with one count of first-degree murder and three counts of attempted murder.  Last night, after a lengthy period of deliberation, a jury found him guilty of attempted murder but could not reach a verdict on the murder charge, resulting in a mistrial.

Jurors deadlocked on whether Michael David Dunn, 47, murdered 17-year-old Jordan Davis or shot him in self-defense. Judge Russell Healey declared a mistrial on the murder charge.

Jurors did convict Dunn of the second-degree attempted murders of Tevin Thompson, Leland Brunson and Tommie Stornes, and also convicted him of a fourth count of firing bullets into the vehicle all four teenagers were in.

[…]

Dunn was arrested in November 2012 the day after he fired 10 shots into the vehicle Davis was in with three friends. Davis died at the scene while the other three teenagers were not hurt.

According to police and court documents, Davis and Dunn argued over the loud music in the boys’ Dodge Durango. Dunn had pulled his Volkswagen Jetta into a Gate gas station next to the Durango while his fiancée, Rhonda Rouer, went into the convenience store to purchase a bottle of wine and some chips.

Dunn asked the teenagers to turn down their thumping rap music. Thompson, who was in the front seat of the Durango, complied.

But Davis cursed and told Thompson to turn the music back up.

An argument ensued, and Dunn testified Davis threatened to kill him and had a shotgun. He said Davis was getting out of the car to kill him when he defended himself with his own gun from his glove compartment.

The other teens in the SUV and several witnesses in the parking lot said Davis never got out and didn’t have a gun. They said Davis cursed at Dunn but never threatened him.

One witness in the parking lot said Dunn screamed, “You can’t talk to me like that” before pulling out his gun and firing it at the Durango. Dunn testified he said, “You’re not going to kill me.”

After Dunn opened fire, Tommie Stornes backed the Durango up and fled into a connected plaza parking lot to get away. Dunn continued to fire, hitting the back of the Durango with three shots.

After about three minutes and realizing Davis had been shot, the teenagers returned to the Gate and 911 was called.

Attorneys for Dunn argued that the weapon Dunn said he saw could have been disposed of by the friends while in the adjacent parking lot. Police did not search the plaza parking lot that night. Prosecutors said police didn’t know to search it because Dunn fled the scene and didn’t tell his story to police until the next day when he was arrested.

Prosecutors have already announced that Dunn will be re-tried for murder, and he will almost certainly spend the rest of his life in prison on the lesser charges.  But it seems to defy logic: how could he be convicted for the attempted murder of the boys he missed, but not for the murder of the one he killed?

Hopefully, we’ll soon find out how the jury voted and why they deadlocked.  Because of questions put to the judge by the jury, it’s assumed at least one juror accepted the self-defence claim for the murder – but it’s possible that they disagreed over the distinction between manslaughter and murder (the former requires intent to harm, the latter intent to kill) or between first-degree and second-degree murder (the former requires premeditation, the latter does not).

More importantly, I understand that the distinction between the charges arises from the first volley of shots fired by Mr. Dunn, when the SUV was parked, and those he fired after the vehicle drove away.

In order to claim self-defence, Dunn had to argue that he feared for his life, and that he felt his actions were necessary to defend himself.  Although no weapon was found in the boys’ possession (or at the scene, which was not searched until several days later) it’s theoretically possible that Dunn legitimately believed Jordan Davis did have one, and that he was about to shoot.

By contrast, when the boys drove away, Dunn kept firing.  By that point, the claim of self-defence was no longer feasible – they were leaving the scene and could not be considered a threat.  Hence, his conviction on the other charges.

We still don’t know how the jury (which consisted of eight white people, two African-Americans, one Hispanic and one Asian) broke down, either.  If the whole jury accepted the self-defence claim, Dunn would have been acquitted.  But if just one juror accepted self-defence to this charge and would not be moved, that’s all you need for a hung jury.

There was, of course, a racial aspect to the Dunn trial – just like the George Zimmerman trial from 2013, a white Florida man was on trial for shooting an unarmed black teenager.  Even the prosecutor, Angela Corey, was the same.  I’m under no illusions about the gross racial disparities in the American and Floridian justice systems – see the case of Marissa Alexander, who was sentenced to twenty years in prison for firing a warning shot at her estranged husband, after a jury deliberated for only 12 minutes.  (The conviction was later overturned on appeal, and Alexander is free on bail pending her new trial in March.)

But from a legal point of view, it’s possible to make a distinction between the shots that killed Jordan Davis and those that didn’t kill his friends, and Dunn’s mindset at the time each was fired. Hopefully, his retrial for murder will leave no questions unanswered.