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Home Featured Zarate prosecutor seeks First-Degree Murder

Zarate prosecutor seeks First-Degree Murder

DA's Office asking judge to instruct jury on a charge that requires planning and premeditation -- something no evidence in the case suggests

Jose Ines Garcia Zarate listens to tesimony, wearing a headset for a court interpreter. Drawing by Vicki Behringer

The prosecution in the nationally-covered Jose Ines Garcia Zarate case is asking for a First-Degree Murder verdict – which would imply that Garcia Zarate planned the shooting of Kate Steinle in advance.

Rumors about the jury instructions, which Judge Samuel Feng will deliver Monday, have been flying around the last two days. Alex Bastian, the spokesperson for DA George Gascon, told me only that “the jury will be instructed on multiple theories of homicide.” But Matt Gonzalez, attorney for Garcia Zarate, confirmed that the prosecution is asking the judge to instruct the jury on First Degree Murder.

Jose Ines Garcia Zarate listens to tesimony, wearing a headset for a court interpreter. Drawing by Vicki Behringer

“They go deeper and deeper into a theory that can’t be proved,” Gonzalez told me.

Deputy District Attorney Diana Garcia has sought to prove that the defendant knew he was firing the gun in the direction of Kate Steinle, who was killed after the bullet ricocheted off the concrete at Pier 14.

But she has introduced no evidence to suggest that Garcia Zarate knew Steinle, had malice toward her, or planned the killing.

In fact, when the jury saw selected parts of the police interrogation of the homeless immigrant, there was no indication that Garcia Zarate had planned to shoot anyone.

At one point, he indicated that the gun discharged and he threw it in the bay so it would stop firing. At another point, the clearly disoriented man who had been up all night facing interrogators, said he was aiming at a seal – which is impossible since the pier is too high above the water for marine mammals to reach it.

The defense argues that Garcia Zarate picked up the gun, which was wrapped in a shirt or some other cloth, and it discharged by accident. Numerous defense witnesses have said it would be impossible to plan a ricochet shot.

Police witnesses have said that it’s possible Garcia Zarate found the gun somewhere else on the waterfront, put it in his pocket, and carried it to the pier. But they never tested his clothes or his jacket pockets for gunshot residue.

First Degree Murder is usually reserved for the most serious homicides, cases in which the defendant is charged with carefully planning a premeditated killing.

Even a Second-Degree Murder charge requires the prosecution to prove that the defendant intended to kill the victim or had no concern for the loss of human life.

So unless there is some new interpretation of the evidence that the prosecutor can deliver in closing arguments, it’s hard to see why she would got for a charge that requires a huge group of assumptions that were never part of the trial.

The jury instructions, which Judge Samuel Feng will deliver Monday, tell the six men and six women who will decide Garcia Zarate’s fate what the law is and how it applies to this case.

Garcia Zarate was initially charged with Second-Degree Murder, but under California law, the jury can be instructed to consider other verdicts – including a more serious verdict.

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  1. You’re a day late and dollar short. Feng specifically instructed the jury to consider 1st degree murder. and Bastian knew his decision the week before.

  2. It is one of the more absurd moments from the trial. It is a Hail Mary attempt to save a case that the prosecution truly botched. Garcia seems pretty incompetent.

  3. By the way, by my reckoning, at least 95% of the homicides in San Francisco end up going to trial. Around 5% are offered a manslaughter that a decent percentage of defendants plead to. A very small percentage (less than one percent) might get to plead to a PC 245 due to unusual circumstances.

    The San Francisco DA’s Office handles homicides differently than other crimes. They rarely offer a lesser offense to plead to. So, you’re usually left facing the top charge, making it a must go to trial kind of case.

  4. Actually, I correct my-self – there was a Brady violation. The
    prosecution failed to disclose that their witness John Evans either lied
    or fabricated testimony concerning forensic evidence in another murder trial. That evidence was exculpatory because it negatively effected the credibility of the witness. Consequently, it should have been turned over by the prosecution to the defense.

  5. No, I don’t see a Brady violation in Zarate’s case, but I’d have to be part of his defense team to know if there was one.

    I was speaking of a miscarriage of justice generally that has arisen due to repeated underhanded behavior by prosecutors and judges such as the late 1st Deg. Murder instruction in Zarate’s case, routine Brady violations in other cases and routine disregard of the “do justice” ethical duty each prosecutor has.

  6. My presumption was not incorrect. Yes, Zarate’s top charge was murder, second degree, initially. The trial judge allowed an instruction of murder, first degree, after the prosecutor asked that it be an option.

    I didn’t state that a judge other than Feng had considered murder one charges, and then had been challenged and sustained. My point was that upon arrest and initial charging, a judge other than the trial judge has seen sufficient evidence to proceed against Zarate, and that is correct.

    I find it not at all surprising that the prosecution tries (and in this case, succeeded) to up the ante by asking for murder one – and I surmised that this was an effort to present a theory to maximize the consequences to extract a plea. And no, the prosecution didn’t not make out a case for murder one. With that said, few murder cases go to jury as I understand it, perhaps for the worse. Most are pleaded out. Is the criminal justice system a mess in this country? Absolutely agree. With that said, this defendant is getting a zealous defense by what appears to be a seasoned, committed defense attorney. It also appears that the jury is not convinced of the case in their lap.

  7. “A judge other than the trial judge presumably found sufficient prima facie evidence of a crime by this defendant to proceed.”

    Your presumption is incorrect. Zarate’s top charge was murder, second degree. That is the charge he was given (as you point out) 2 1/2 years ago and that was the charge that was unsuccessfully challenged in his 995 motion shortly after being charged. While a different judge may have decided his 995 motion, that motion did not challenge a first degree murder charge because Zarate was not facing that offense 2 1/2 years ago. He has only faced murder, first degree, since J. Feng approved the instruction in the last week or so. So – your assertion that he had this new charge was challenged and sustained by a judge other than J. Feng is completely wrong. By extension, your assertion that “…to say this is some outrageous ethical episode or some huge miscarriage of justice is belied by the facts” has lost some punch. You can paint the prosecution’s machinations in the Zarate case as atypical if you want. I just happen to know for a fact that it is typical to the point of being predictable and boring. And yes, I have an “axe” to grind and so should every body else who may have to have face criminal charges in this country.

  8. let’s not put the cart before the horse. The killing happened in July of 2015, that’s less than 2.5 years he has been in jail. None of us know that if convicted, the conviction or the sentence will be appealed or by whom. You’re saying that he’s innocent (not simply not guilty) – but the jury gets to decide just guilty or not guilty – and yes, although he’s presumed innocent in a court of law, he is indeed in custody – likely due to his $5 million bail. The defense strategy – which is indeed a vigorous one – is just that, a strategy, which has the possibility of unintended consequences.

    If you have an axe to grind with the prosecution or the DA’s office – by all means, grind away. But to say this is some outrageous ethical episode or some huge miscarriage of justice is belied by the facts. A judge other than the trial judge presumably found sufficient prima facie evidence of a crime by this defendant to proceed. He’s also charged with being a felon in possession of a firearm and assault with a semiautomatic – both of which are already proven, unless one seriously believes he doesn’t know what a gun is.

  9. @Not A Native – you said: “That means Judge Feng has already decided to instruct the jury to consider 1st degree murder.” Not necessarily. What Alex Bastian said gave no new information and did not address J. Feng’s decision to instruct on first degree murder. “Multiple theories of homicide” includes second degree murder and manslaughter. Manslaughter is a lesser included offense of second degree murder, so there was always going to be jury instructions on “multiple theories of homicide.”

  10. Hey Geek_Girl, you mean the prosecution proving that the gun could fit in Zarate’s pocket does not mean it is more likely than not that he brought the gun to the pier?

    I agree.

  11. SF Sunset Guy, you said “Yeah, it probably is an attempt by the prosecutor to perhaps offer
    either the defense or the jury what may appear to be more reasonable

    It’s the latter – there’s no way the defense will take a plea.

    The prosecution is hoping the jury ignores the evidence to make a compromise verdict. Then, even if it is overturned on appeal, that will take at least five years. Add that to the three years he’s already been incarcerated and an innocent man has been in jail for 8 years, about the same amount of time the prosecution could expect if he were found guilty of manslaughter.

    In other words, it’s just the prosecution perpetrating their usual unethical behavior.

  12. Not a Native,

    The only investigator who said the gun was aimed was John Evans and his credibility went out the window when he was charged with misconduct in a previous and similar murder case. What he did was interpret evidence differently than any other cop on the case and the defendant was convicted and the conviction was overturned due to Inspector Evans’ testimony.

    Same thing here. Every other witness said that the infamous ‘Skip Shot Ricochet’ ADA Garcia says Zarate used does not exist.

    Evans was there because he will lie on the stand in accordance with the wishes of the prosecution. Hard language but that’s what the lawsuit says.

    And, every other witness.

    Giants should forget Stanton and go for the Japanese pitcher/outfielder/slugger who is only 23 and weighs 185 lbs and hits the ball further than Stanton and throws 102.5 mph and runs like a deer.

    We don’t need another steroid loaded player.

    Go Giants!


  13. You ignore one very simple, but important fact in your effort to mold the facts to fit your bigotry. He was sitting down. He was not standing along the railings. He was sitting. And have you considered the shape of a shell casing? No, of course not. A shell casing would not easily roll like you claim. The rim that holds prevents the shell from going too far into the chamber when loading would prevent it from easily rolling in a straight line. It would roll sideways. I was wrong about the railings, and admitted it, but then it occurred to me that you were clearly assuming it would simply roll in a straight line if blown. You need that cartridge to have gone in the water, so damn it went in the water. No possibility that it was caught in a cloth covering the gun. You need him being truthful when he said he shot at a sea lion, so damn it, he could have easily seen, and shot at a sea lion through the railing. Reason, and facts be damned!!!! You see, that is why I make you so angry. I don’t accept your dogmatic claims that are based on assumptions, and prejudice. You cannot accept, even remotely, that he did not intentionally fire into a crowd, at a minimum. It is simply not something you can consider. For you, he has to be guilty.

  14. Yes, the judge is wrong. Guess what? This is why we have appellate courts. This is why cases are overturned. It is not a matter of just disagreeing. I have a rational basis. How can he tell the jury that they can consider 1st degree murder when it was not charged, when the prosecution did not even attempt to prove it, when the prosecution has shown NO evidence that considers it? There is no basis for first degree murder. It is outrageous.

  15. Yes, he can “formulate” opinions that he stand’s by. I do the same thing with facts. Opinions, as they say, are like a certain body part. Everyone has one. Facts, are, well, facts.

  16. So, basically what you are saying is that you cannot stand me disagreeing with you, especially strongly. You don’t like being confronted with the truth.

    Actually, there was a claim posted back at the time that the jury was seated to the effect that there was someone on the jury who had already made up his mind, and who would vote guilty no matter what. I don’t know if it was true, but it was claimed.

    And yes, the judge is out of line, but not because I say so. A basic principal of due process is the concept of prima facie. The prosecution has to prove certain things before the jury can consider them. To allow the jury to consider 1st degree murder, for the judge to allow that, when there is no basis, is outrageous. It would be akin to the judge saying, “Hey, while your at it, you can also consider if the defendant shot JFK, kidnapped the Lindberg Baby, and was the mastermind behind 9/11.” Yes, a bit exaggerated, but not really an different. She has blown this case, and is trying a desperate stunt. He is allowing her to do it.

  17. The difference is that you can formulate opinions that you then stand by; she can do the same things with facts.

  18. Because, it is NOT REMOTELY A LEGAL OPTION

    OK, so the judge is wrong. Nobody expects him to have a legal understanding of the case that is as good as yours. If you disagree with the judge then of course he is wrong and you must be right.

  19. I know, I know, the ONLY thing he said that was true is that he found the gun and that it went off by itself.

    Everything else that he said needs to be ignored because of his mental state. I know.

    Also, I can accept that the railings at the Pier 14 on your planet would make shooting at seals an absurd idea but you need to know that it is in no way absurd at the Pier 14 that exists here on planet earth. I was down there the other day and a sea lion went right by the fishermen’s area and it was in plain view of everyone. The railings go up to lower chest level on adults.

    So there must be a difference between the Pier 14 on your planet and the one here on earth. I remember that the one on your planet also has guard rails that prevent shell casings from rolling off and the one on planet earth doesn’t.

  20. I have an opinion to offer just like you, but of course, your smugness and arrogance cannot tolerate any dissent or other opinions, as evidence by your repetitious and repetitious postings lambasting everyone who disagrees with you, thus the bigotry label for everyone. Your printer spitting out all those labels must be worn-out.

    With that said, I don’t “hate” anybody or anything. Garcia [may] have got a bigot on the jury – as if that was her intent? Seriously? The Judge is “out of line” because you say so?

    Yeah, it probably is an attempt by the prosecutor to perhaps offer either the defense or the jury what may appear to be more reasonable charges. I guess one would call it tactics, but since you have no tact, it has to be explained to you.

  21. No, but given the railings along the pier, it is an absurd idea. He was confused, and the police had lied. And he also said he was born in 1863. So, I guess you also believe he is now 154 years old as well?

  22. The defense (what, do you think they remove fences?) will not fall for this. They know that there is no basis for a 1st degree murder conviction, and that the jury is not going to fall for that. It is an attempt to fool the jury.

  23. Then why do you hang out here? You clearly hate both of them. And you wander why I think you are a bigot? And no, the defense would be insane to take a plea. No, it is an attempt to fool the jury and make second degree murder, or possibly manslaughter look more reasonable. It might work, and that will likely result in the case being overturned, it might cause the jury to be hung if Garcia got a bigot on there, and it might blow up in her face. The judge is out of line, as there is no prima facie evidence for 1st degree murder, but by allowing it, he is implying, falsely, that there is.

  24. Because, it is NOT REMOTELY A LEGAL OPTION. The prosecution did not even try to make a case for first degree murder. If they had of claimed that, the judge should, properly have dismissed that charge out of hand. It is a ploy by the prosecution to deceive the jury, and it may well result in the verdict being overturned if it works as Garcia hope.

  25. I apologize. I thought you were saying that the judge had made the decision arbitrarily rather than Garcia asking for it. It is clearly an attempt by the prosecution to influence the jury, and it is inappropriate, as the prosecution has not remotely presented evidence that supports such a verdict, and the judge should not have opened that door. It is an attempt to make their weak case look stronger.

  26. Don’t understand your problem with my post. Tim here writes we won’t know the judge’s decision until Monday. You cite the same Examiner article I did that the judge has made a decision and what it is.

    Your issue seems to be with the judge’s decision, not with it having already been announced. Maybe it will be cause for a successful appeal if the jury reaches a conviction verdict. I don’t know enough about law to form a opinion on that. It looks like a murder verdict will depend mostly on the testimony of the investigator who said the gun was aimed at the victim and the trigger was pulled.

  27. No, it didn’t. Why are you literally lying about this?

    From the Examiner:

    “Jurors in the Kate Steinle murder trial will be able to c an undocumented homeless man of first-degree murder after prosecutors sought the more serious charge against him, a San Francisco judge decided Wednesday.

    Since the beginning of the trial, the prosecution has argued that a Mexican national named Jose Ines Garcia Zarate is guilty of second-degree murder for the death of Steinle, who was struck by a ricocheted bullet on Pier 14 on July 1, 2015.

    But San Francisco Superior Court Judge Samuel K. Feng agreed with prosecutor Diana Garcia on Wednesday that jurors should consider first-degree murder as well as second-degree murder during deliberation, according to the District Attorney’s Office.”

    This is outrageous. It is a violation of due process. The prosecution did not remotely make a prima facie case for first degree murder, and quite frankly, did not even try. To “allow” the jury to consider such a finding is inappropriate. In fact, this could very possibly result in the case being overturned if he is convicted of anything. It is clearly a ploy by the prosecution to influence the jury. By falsely implying that first degree murder is a possibility, they might be fooled into going for second degree murder, when the prosecution did not prove that either.

  28. The SF examiner reported this differently. Examiner says that Alex Bastian’s statement “the jury will be instructed on multiple theories of homicide.” is simply reporting what is going to happen. That means Judge Feng has already decided to instruct the jury to consider 1st degree murder.

  29. Once their star witness tanked,

    Once John Evans was proven to have lied on the stand in a very similar trial 2 years ago and the judge wouldn’t let him back on the stand, the ADA (Garcia) decided to shoot off the entire box of fireworks.

    Will she claim he shot JFK next?

    Go Giants!


  30. I think it’s a tactic. When you go to an expensive restaurant and they ask you if you want the $200 bottle of wine or the $100 bottle then suddenly a $100 bottle of wine seems surprisingly reasonable.

  31. I’m sure Tim chronicles when Matt goes to the can.

    While they are just instructions and the judge makes the final call, it seems odd to me that at this stage, they’re asking for 1st degree as an option. Maybe it’s a tactic to get the defence to take a plea? I just find it curious, that at the conclusion of the trial they ask for this.

  32. It’s just instructions. What is the problem with the judge explaining the full range of legal options to the jury? Why is informing the jury a bad thing?

    And it isn’t a bad thing for the prosecution. Matt Gonzalez was obviously worked up enough about it to make Tim write this article.

  33. Is the DA intentionally trying to sabotage their own case? They had enough of a task proving murder 2

    This is a very strange turn of events.

  34. the clearly disoriented man who had been up all night facing interrogators, said he was aiming at a seal – which is impossible since the pier is too high above the water for marine mammals to reach it

    Right! The sea lion would have to jump up onto the pier before someone could aim at it. Because you can’t aim at a sea lion as it swims by.


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