Judge in Zarate case sides with prosecution on two key motions

Rambling late-night statement to cops is riddled with confusion and inaccuracy, but judge wants the jury see hear it as evidence

Judge Samuel Feng denied two key motions by lawyers for accused shooter Jose Ines Garcia Zarate today, ruling without further comment that Zarate’s rambling statement to the cops can be admitted, despite serious problems with his Miranda rights, and that another statement he made to KGO -TV will not be seen by the jury.

Zarate is charged with killing Kate Steinle with a gun he discovered on the waterfront after it was stolen from a federal agent’s car.

Matt Gonzalez, attorney for Jose Ines Garcia Zarate, talks with reporters after the hearing

The two rulings were a disappointment to the defense, although they give Zarate’s lawyers grounds for an appeal.

There were a number of key issues the defense raised, among the most compelling the fact that the police officer who translated when Zarate was read his rights screwed up: Instead of saying “you have the right to remain silent,” he said “you have the right to wait for silence,” according to a defense translator whose statements went unchallenged.

The officer also mangled the word “interrogation” in a way that could have made it difficult for Zarate to understand at what point he could stop talking.

Zarate made his statement to the police — during which he said he just wanted to sign a paper admitting to the shooting — in a long, late-night interrogation. Snippets of video produced during the hearing yesterday showed Zarate passed out in deep sleep between interrogation periods, which ended after 5am. 

At several key points in the questioning, — three times — Zarate said he didn’t want to talk to the cops. That, attorney Francisco Ugarte noted, was by a law a statement of his Miranda rights, and all interrogation should have stopped.

The US Supreme Court has been pretty clear on this issue: The minute a defendant says he doesn’t want to talk, the interview has to cease. The defense put up a powerpoint with key elements from the interrogation.

At an early point in the questioning, at about 1:30 am, SF Sergeant Anthony Ravano asked Zarate if he wanted to talk “in a little bit.” Zarate said “no.” At several other points during the long night, he repeated that he didn’t want to talk, but the cops kept asking questions. “When he said ‘no,’ there was no equivocation,” Ugarte said.

The statements Zarate made were often incoherent and clearly wrong: At one point he said that he was five feet away from Steinle, when he was by all accounts and evidence at least 90 feet away. He said at one point that he was 19 years old, when he’s clearly over 50. He said he walked by the young woman’s dead body, when it’s impossible that he actually did that.

Ugarte noted that coercive interrogation tactics lead to false confessions — “and we have all these folks confessions,” Ugarte noted.

Matt Gonzales, who is also working on the Zarate legal team, noted that his client was exhausted — but that in a later interview with KGO-TV, he said that the gun had gone off by mistake. He asked that, if the jury is able to review Zarate’s statement to the cops, they also be allowed to view the interview with the TV station.

The defense is arguing that Zarate found the weapon — a Sig-Sauer pistol with a hair trigger — on Pier 14, and that it went off by mistake. That’s what he says in the KGO interview.

The prosecution’s main argument, laid out by Assistant District Attorney Diana Garcia, is that Zarate never waived his rights and spoke freely to the officers who questioned him. In the course of that questioning, he admitted firing the pistol.

Garcia argued in court that while the Miranda warning might have been flawed, Zarate had been arrested in the past, and had been giving a similar warning 20 years ago, so must have understood, even if the language was mangled. 

She also said that Zarate kept talking, and that the cops had the right to use somewhat intimating techniques — including pounding on the table and saying they new they suspect was lying — to get him to confess.

Judge Feng listened, questioned both sides, then came back after a lunch break with a ruling entirely in favor of the prosecution. He declined to explain why he reached that conclusion.

From the little bits of Zarate’s statement that were heard in open court today, it seemed clear to me that his confession — such as it was — was either coerced, the result of sleep deprivation, or rooted in some other type of confusion. 

But the judge, who is a Republican appointed by Gov. Schwarzenegger, wants the jury to hear it. And he doesn’t want the jury to see the TV interview, which was taped when Zarate was neither sleep deprived nor coerced — and the reality is, it’s been seen so many times by so many people that most potential jurors probably saw it anyway.

Jury selection starts in early October.

14 COMMENTS

  1. It is odd that someone would steal a weapon and then throw it away. Zarate probably bought the weapon. But regardless- Sam Francisco should pay the family of the woman killed because they did not hold Zarate to be picked up by ICE. Zarate had already been deported 5 times and reentered the US illegally again. If San Francisco pays for all of the damages that is caused by there violation of federal laws then CA government officials should not have to go to jail.

  2. Montrouge and Playland,

    Do either of you question Jim Norris' expertise? You loved him when he testified for you.

    Hey, This trial is only important because the President of the US has made it so. Now, my advice to the City is that both Prosecution and Defense subpoena Donald Trump to clear this mess up.

    Giants should get this Japanese superstar.

    500' homers?

    102.5 mph?

    Robert Redford plays him in the movie.

    Much later.

    h.

  3. Hey Dani,

    I loved that part too. Where Judge Feng said: "It's not just what they say, it's how they say it." …. Then, what does he do?

    He tosses the Prosecution case into a loss on appeal if they are even able to convict this guy of the charges they've leveled.

    The judge does it with one word … … "denied"

    No, I don't know how to make my computer whisper but if I could, the way that Judge Feng said "denied" would be very small.

    No conviction whatsoever.

    He let the cops Abu Grahib interrogation tape in and I don't know about you but that won't play well for the jury in my opinion either.

    Then, he shut out the KTVU tape which was the defendant as cognizant as he can get and I'm not fishing for sympathy here. This guy really does not know where he is the same way that you and I know where we are if you get my meaning.

    You forget he's there.

    At one point when opposing counsels were opposing in a more stringent manner and the judge started clearing the court of the 2 or 3 people there, he started to follow us out of the court.

    "Guy thinks he's free to go." I noted to a journalist exiting with us.

    He's really that far off base.

    Plus, Prosecution persists in wanting show some gory autopsy photos and I think that is essentially a horrible cruelty to the family.

    The best thing to me that could come from this tragedy is happening.

    People are discussing our nation's immigration problems seriously.

    Finally, I'm gonna say that this can be the biggest trial since Scopes/Monkey in 1924 and this judge Feng has shut down the media to almost 19th century level coverage by barring live coverage.

    There are 58 seats in that beautiful little courtroom.

    And, it is gorgeous.

    Only 31 seats will be available to the public and with almost no activity at their last meeting on September 25th there were 20 people there.

    So, Scopes/Monkey was the first trial ever broadcast live across the entire country and that was in 1924 and it was on the radio.

    Judge Feng, I'm not saying that I know that you don't like having me in your court because you're a Republican and I'm an Aries but you should put those differences aside and let me listen to every minute of your proceedings on an antique radio at the Mars Bar just around the corner and down a bit.

    Go Giants!

    h.

  4. Whether he'd been arrested in the past, be it 20 years ago or in 2009 is really a moot point. Everyone arrested is supposed to, by law, have the warnings read to them each time.

    What is odd about this article is that Tim states that the judge declined to state his reasoning for his decision, but as noted in The Examiner, he in fact did:

    “This ruling is not in a vacuum,” Feng said. “It’s considering everything.”

    “The court had the opportunity to look at the demeanor of everyone in the interview, how the questions were asked, how the answers were given,” he added. “It’s not just what they say, it’s how they say it.”

    (Now, whether this passes muster on appeal is a different matter).

    It is also unseemly that Tim felt the need to point out that the judge is Republican. Does that mean that he can't decide cases fairly? Kinda sounds like Trump saying that nonsense about the judge with a Mexican background being unable to treat him fairly in his case.

    And lastly, the prosecution did not argue that the defendant didn't waive his rights, as Tim posted, they argued just the opposite. For the sake of accuracy, he should correct that. . .

  5. Curious,

    Yeah, Matt's on top of his game. In 27 years as a defense attorney he has truly crafted his game. His art shows sell out and he curates shows for others all the time. While he was doing his political thing Adachi became Public Defender and Gonzo said he was amazed when he returned at the increased efficiency of Jeff's re-organized agency. They handle something like 26,000 cases a year but murder trials are rare and a case like this one with all of the ramifications for national policy are a once in a lifetime chance for any lawyer. Or, judge.

    And, yes Curious, calling Sanchez a 'Sad Sack' is promoting him.

    h.

  6. Well, yeah, but…the 'hair trigger' story is an essential part of the defense case, so what is Tim supposed to write?

  7. Lol, I like how Redmond keeps on saying the gun has a hair trigger like that's some sort of technical term. That's pretty much a non-factual statement, same with the comment that the gun has no safety. People who get their understanding for firearms from movies and TV have a misconception that manual thumb safeties are the only type of safeties, this is far from the truth. The gun used in this case is very common among law enforcement that has been around since the 80s.

  8. Is whatz-his-name a sad sack? Yeah. Forget all the speculation. He finds a gun, then tries to shoot seals with it, misses, and hits a misses. If he weren't an illegal immigrant/undocument-peasant, everyone would say 'throw the book at him'. But given that little side-hitch, self-appointed gud-guys are up in arms defending his sorry a$$.

    Send him back to Mexico – they'll give him the ticker-tape parade SF progs n pols so desperately want to but know better not to.

    Maturity appears to look good on Matty G though.

  9. Furthermore,

    The Defense should subpoena the President of the United States who has stated numberous times that he knows that Jose was sent by the Mexicans to murder and rape our beautiful white women. Really. I like that.

    Bring Trump to SF to testify in the little courtroom that could.

    h.

  10. Playland,

    You gotta go sit and watch this guy while you still can. The court seats 58 and each side get's 6 seats – one each for DA and Public Defender and family members. There are 15 for the press and that will vary by outlet as the judge decides. I've been there virtually every minute of every session but that's cause the Public doesn't know about this free seat at Ford's new theatre in SF … yet

    Go down and watch this guy. He's spent half his life searching for food and the other half eating on the public dole in prisons wherever.

    But, go watch him.

    He barely knows he's there. He's a true peasant. Skinny and beaten and cowering.

    This ain't MS-13.

    He's not smart enough to be trusted by any savvy crook.

    That's why he's wandering on the dock of the bay.

    Digging through the trash and avoiding everyone and threatening no one until … go see the principals while you can.

    h.

  11. Yes except the concept that the gun was so hot that somebody took it to the very edge of San Francisco Bay and then left it in a spot full of law abiding citizens who were certain to turn it over to police….sounds like a scene out of Dumb and Dumber. How about dropping it in the Bay 3 feet away?

    BTW, he didn't say that he found it in a trash bin. He said that it was under a bench. FWIW, there is no bench or trash bin that fits the story. Unless the bench was one of those metal spinning seats.

    If I had to guess I would say that Zarate had some nexus to the break in. He was a street drug person after all. Either he was directly involved or the people that were gave him the gun for some consideration. Maybe it was hot and they wanted to set him up as a patsy. Maybe he had something they wanted. 100% speculation, of course.

  12. Hey,

    Matt said something on a kind of aside at one of those post-session press interviews that no one posted. He noted that the gun was out there for ? Several days anyway and that it might have other crimes attached to it before it ended up in the hands of the defendant. Who knows? Cudda done some dirty with it and then dumped it in the trash on the pier where Jose' unfortunately has dined for over half of his life in one way or another.

    This 'gun' thing is where the sides go nuts. Jeff's crew still hasn't gained possession of the gun. What the hell's up with the gun? Gascon's Chief of Homicide Division, Mark Swart and Lead Prosecutor, Diana Garcia have spent lots of time smearing Defender's expert witness tho the guy (Jim Norris) ran the SFPD lab for 20 years, then went to Santa Clara for another 10 and now provides expert testimony in his retirement years.

    Oh, yeah, answered my own question again.

    They hate him cause he testifies against them in court whereas, as Gonzalez pointed out, they loved him when he testified for them.

    Great trial. I'm never gonna be allowed in once it gets going (only 58 seats) so, I'll pull a Hunter Thompson and cover it from the nearest bar (Mars Bar) and the hallways and lobbies.

    What's up with that gun?

    Huh?

    h.

  13. <blockquote>Zarate is charged with killing Kate Steinle with a gun he discovered on the waterfront after it was stolen from a federal agent’s car.</blockquote>No. He is charged with killing Kate Steinle. The part about discovering the gun on the waterfront if the unverified version of what happened. A good journalist should not mix fact and speculation.<blockquote>Zarate had been arrested in the past, and had been giving a similar warning 20 years ago</blockquote>He has also heard the warning several times since. For example in late 2009 he was arrested and convicted of felony re-entry.

    You wouldn't want to create the false impression that he heard it only once, 20 years ago.

  14. Only in San Francisco can you be a career criminal who has been deported before, on drugs, dishonest, in possession of a stolen firearm, kill someone with it, lie some more about it and get away with it.

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