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.
“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.