As I watched the reactions from pundits on T.V., I was perplexed by the reactions of disbelief and disgust at the verdict of “not guilty” by many of the so called “experts”.  Some of the commentators seemed incredulous that a California jury didn’t convict an illegal immigrant with prior convictions and prior deportations and who discharged a firearm that killed an innocent bystander.


Let me explain why the analysis by these pundits was wrong and why the verdict was the right one.  First of all, the rules of evidence in California only allow for certain types of evidence to come in.  Prior bad acts as a general rule are inadmissable.  Can you imagine if you were on trial for a DUI and the prosecution wanted to bring in your petty theft conviction from five years ago?  Even if it was remotely relevant to the case it would certainly be much more prejudicial and would likely confuse the jury.  That is why with the exception of certain sex crimes and domestic violence crimes, the general rule is to exclude prior convictions or prior bad acts, charged or uncharged.  If the defendant in this case, Mr. Jose Zarate, took the stand to testify in his own defense, (which he did), then certain prior convictions can be brought in if they are relevant to impeach the veracity and honesty of the defendant. Not all prior convictions are admissible and are subject to a balancing test under Penal Code 352 to determine if the probative value outweighs the prejudicial effect of introducing the evidence.  Even when the judge allows prior evidence to impeach the witness there is a caveat: the priors cannot be used as evidence to convict the defendant on the new charges, only to measure or “ size up” the honesty of the defendant as it relates to his testimony.  The jury is admonished by the court to strictly follow this jury instruction.

Mr. Zarate had no prior convictions or arrests for crimes of violence.


As awful and unfortunate as the killing of Ms. Steinle was, the District Attorney would almost never be allowed to bring in the fact that the defendant was in the country illegally or had been deported numerous times previously.  While such evidence may be very relevant to public policy and immigration debate, it rarely has any relevance in a court of law applying the current rules of California evidentiary law.


In this case the prosecution charged First Degree Murder, Second Degree Murder and Involuntary Manslaughter.  First degree murder is punishable by death, life in prison with no possibility of parole or 25 years to life in which case the defendant is eligible for a parole hearing with no guarantees after serving 85% of the 25 year sentence.  For first degree murder, the burden is on the prosecution to prove either premeditation or an act that showed a “depraved or callous heart”.  These are legal terms used to describe the most heinous mental state with which a person could conceivably kill someone.  It rises above the regular “mens rea” or evil intent that is required in almost all crimes whether felony or misdemeanor.  The defendant, Mr. Zarate testified that he accidentally discharged the firearm.  This was supported by forensic evidence that showed the bullet hit the ground a few feet from in front of where he was seated and caromed some 80 feet away to hit Ms. Steinle.


Definitely not the requisite intent required for a first degree murder conviction.


Second degree murder is punishable by 15 years to life with a few exceptions extending it up to 25 years to life.  The district attorney must prove that the defendant had malice aforethought for a conviction of second degree murder.  Again, the prosecution must prove beyond a reasonable doubt to all twelve jurors that Mr. Zarate intended to kill Kate Steinle for this charge to stick. There was testimony by expert witness that the particular gun that the defendant discharged had no safety lock on it and that it was fired from a very low angle.

Furthermore, the prosecution provided no evidence of motive for the killing.  Again, these facts would make any conviction for second degree murder a daunting task for the most skilled litigator.


Involuntary manslaughter is punishable by up to four years in prison.  To prove this charge the District Attorney would have to prove that the defendant killed Ms. Steinle unintentionally while committing a crime that is not an inherently dangerous felony.  The District Attorney in this case alleged the underlying crime to be brandishing a weapon in support of the involuntary manslaughter but according to some of the jurors there was not one shred of evidence propounded at trial to support the allegation that Mr. Zarate brandished the gun.  Perhaps this was carelessness on the part of the District Attorney in anticipation that they would get at least a second degree murder conviction.


It is important to understand that the burden of proof is on the prosecution in every case.  The defense never has to prove his or her innocence.  What that means is that if there is ANY doubt which is based on reason that an accused committed the crime for which he is charged, then the verdict MUST  be not guilty.  In this case there were two competing narratives and of the two, one was supported by the forensic evidence.  This would lead any jury following the law to return a verdict of not guilty on the three charged offences in the People V.  Zarate case.

For more info, please contact a professional criminal lawyer.


No comments yet.

Leave a Reply

Richard McGuire