Growing chorus agrees Gascon bungled the Zarate case

While rightwingosphere goes crazy, SF looks at how DA tried to turn tragic accident into murder

Nobody’s surprised that the rightwingosphere has gone batshit over the Garcia Zarate verdict. We knew this would happen. From the first day of jury selection, defense lawyer Matt Gonzalez told the prospective panelists that the president of the United States would be watching the outcome.

There are ugly tweets and comments from Washington. There are right-wingers threatening to boycott San Francisco (please do). There are threats to the jurors (who, appropriately, have not been identified.)

Dozens of reporters from local and national media were present, and Matt Gonzalez spoke to them while the DA avoided all media

Even the San Francisco Chronicle used the case as an excuse to complain about Sanctuary City laws (really?)

I think Gonzalez made the case pretty well on Fox News, even under hostile questioning: In a nation with more than 300 million guns, where people die every single day in gun accidents, this was a terrible tragedy. It started with a federal agent who left a loaded gun in his car (and was later promoted).

You don’t hear the right wingers complaining that there are too many loaded guns left in cars, and that too many innocent people die tragically in gun-related accidents. Hunters routinely shoot other people by mistake; they are almost never prosecuted.

I feel terrible for the Steinle family. I have two kids; the idea that one would be killed by a gun is too horrible to even contemplate. I think any reasonable person would feel that way. And the Steinles have shown tremendous class by saying that they don’t want their daughter to be a pawn in Trump’s political agenda.

This case was never about whether her death was tragic. It was about whether the district attorney should have charged an undocumented immigrant who has no history of violence with murder when the evidence suggested he picked up a gun that went off by mistake.

The jury made it pretty clear that the evidence wasn’t there.

Interesting that Matier and Ross, who were not there for most of the trial, have come around to my perspective (as usual, without credit to 48hills). Same goes for Willie Brown, who noted:

The prosecution’s case was a classic instance of a district attorney overcharging a crime, and in the process alienating the jury.

By asking for a first-degree conviction, prosecutors upped the bar of proof and the chances of the whole case falling apart. There was precious little evidence that Garcia Zarate committed premeditated murder, and by raising that bar, prosecutors undercut their credibility with the jury.

How else can you say it? The DA, fort whatever political reasons, insisted on charging this case as a murder, and wound up losing.

  • Tony

    Yes – involuntary Manslaughter should have been the verdict. Zarate is not innocent.

    • Do Something Nice

      But there are 2 types of manslaughter – from the Matier and Ross article: “Jurors were given the option of convicting Garcia Zarate of first-degree
      murder, second-degree murder or involuntary manslaughter. However,
      there are two types of involuntary manslaughter — a purely accidental
      killing, which is a misdemeanor, and one with underlying criminal
      intent, a felony. . . .District Attorney George Gascón’s
      office, however, opted to give the jury the felony version of
      involuntary manslaughter, should it decide the Steinle killing wasn’t
      first- or second-degree murder.”

    • playland

      In addition to the over charging they also just blew the presentation of evidence. They should have been the one insisting that the jury be allowed to pull the trigger on a test gun. ABC7 had a gun expert test the trigger on a Sig Sauer P239. He confirmed that it is not a hare trigger in even in single action mode. They should have brought in experts to testify about the reliability of the gun and why everyone from the Secret Service to the 101st Airborne uses it.

      If you look at the video you can see how absurd the “I was just unwrapping a t-shirt” story is:
      http://abc7news.com/experts-question-decision-that-kept-steinle-jurors-from-handling-gun/2724549/

      And then they should have asked for a field trip down to Pier 14 so that the jurors could see how someone would have to go out of their way to leave the package in clear sight in a touristy area.

      • Rosh HoshHosh

        ‘Hair trigger’ is not a scientific explanantion. Typically it is defined as under 2 lbs of pressure.

        The p239 is rated by the factory around 5 lbs when in single action mode, and around 10 lbs when in dual action mode ź which is how the BLM officer testified he left it.

        The Glock .40, which is more commonly used by law enforcement, is around 10lbs every pull. It is engineered differently and has a single stage strike as compared the the Sig’s double stage. The Sig is much more likely to have an accidental discharge.

        The term ‘ready fire’ does not distinguish between the single and double action modes – it implies the gun will fire with trigger compression only. We don’t know what mode the Sig was in, but this term is not synonymous with single action mode. A single action revolver with a safety on is not ‘ready fire.’

        Regardless, the gun still could have discharged without intent while being handled.

      • Geek__Girl

        I did look at the video. It was effectively worthless. The “gun dealer,” hardly an expert, quickly pulls at the trigger with some device, and makes a comment each time. It is impossible to tell what is happening, and it all looks like an attempt to make a claim without letting people actually see what is happening.

        • playland

          @geek__girl Think about it…you don’t know anything about the gun store owner. So when you degredate his knowledge you obviously aren’t making any sense.

          And the “some device” was an electronic trigger pull gauge with which he was showing that the force needed to pull the trigger was significant, even in single action mode. The part about it being a ‘hare trigger’ just doesn’t hold up.

          It’s never to late to ask for help, @Geek__Girl:disqus . The best time for you to ask for help was a few years ago, the second best time is today. It will be a long road but eventually worth it. Good luck to you!

          • Rosh HoshHosh

            The expression is ‘hair trigger.’ It is likely derived from a test that pre-dates the electronic device shown in the video. Here’s how it works:

            Take a single strand of hair and pass it in front of the trigger of an immobilized gun. Hold the hair strand at each end and pull it against the trigger. If the gun fires, it has a ‘hair trigger.’ If the strand of hair breaks, it does not have a ‘hair trigger.’

          • playland

            I’m not doubting the history of the term. But some media sources (especially 48 Hills) used the term hair trigger to suggest that the gun in question could fire if it was merely jostled around, perhaps in a t shirt.

            Meanwhile, even the defense expert witness said that the gun in question would not have gone off unless the trigger was somehow pulled. The gun in question seems to be on the moderate to perhaps even heavy side in terms of trigger pressure.

            The Secret Service doesn’t use an unreliable gun.

            Ans since you seem to know about this stuff, what about the recoil? What would happen if the gun really did go off by itself while being loosely held in a t-shirt.

          • Geek__Girl

            First off, the suggestion was NOT that it could be fired by jostling. Second, it is well established that this particular model of Sig Sauer had a trigger pull that is less than half as strong in single action mode, as in double action. This is deliberate. It allows for rapid firing. We are talking 4 pounds, versus 10 pounds. The defense position was that he probably accidentally fired the gun while picking it up. The evidence, including the video, and the testimony of a properly qualified expert, showed this was not only possible, but was likely. I had originally thought that he was unwrapping the gun when it fired, but now it is clear that he was lifting it, and the trigger was inadvertently pressed.

          • Rosh HoshHosh

            In all honesty it is my step-father who I defer to on my gun questions. He’s a Vietnam Veteran and an avid hunter. We discussed the term ‘hair trigger’ when I was at the folks for Thanksgiving, which coincides with deer camp. The guns come out for deer camp. I don’t own a pistol, and I am ethically opposed.

            The defense ballistic expert came off much sharper than the prosecution’s. I doubt he testified as you described. What he more likely conveyed was that the gun would not have discharged without pressure being applied to the trigger. Did he use the word ‘pull?’

            A pull implies a finger was used. This may have been the case, but the prosecution couldn’t prove it. It is possible something besides Zarate’s finger was accountable for the pressure.

            And that’s where the prosecution fucked up. I don’t resent Gascon for the way he charged the case. I don’t even resent his hail mary – offering murder 1. I also don’t think the hail mary was a tipping point.

            The prosecution’s focus on proving intent left the backdoor open for a manslaughter acquittal.

            I consistently take Tim to task when I think he is mistaken. If 48hills had more money it would have been better for Tim to recuse himself for coverage of the trial. John Diaz should have also recused himself after he developed a personal relationship with the Steinle family.

            Another conflict in this case is that the DA’s office provided victim assistance to the Steinle family. This would be sure to cloud Gascon’s judgement and the assistance should have been provided by another agency.

            As for the gun going off in Zarate’s lap without a grip on the butt? The gun would loop. Because the majority of the weight is below the barrel, the force of the explosion would push against that weight and move the opposite direction (up, if the gun was in an upright position), while simultaneously also being forced directly back from the direction the barrel is pointing. The gun would be likely to jump a short distance.

            When I fire a pistol I hold it loosely and comfortably – as my step-father taught me when I was a kid. I use my left hand as a stabilizer under the butt. After every shot the gun ‘loops’ and the barrel rotates up 40-60 degrees. It is common to fire low in anticipation of that recoil, which is a fact the prosecution could have used.

            But I agree with what I think you believe – the video was the key for the prosecution. The prosecution failed to fully exploit the video.

          • playland

            I don’t remember the exact words of the defense expert, but I do remember him reinforcing the idea that something pulled the trigger, not necessarily a finger. He gave an example where a similar gun was snagged on a clothing button and discharged. I am having a hard time understanding how the t-shirt exerted enough pressure on the trigger to make it go off. Unless the original thief knew how to put it in single action mode (without firing it) and then booby trapped it before leaving it in a tourist spot. Great way to dispose of a hot gun.

            I don’t think the video showed much, other than that Zarate sat there for 23 minutes before bothering to find out what was in the t shirt beneath him. Anyone who observes homeless behavior in SF knows that isn’t the way things work. The jury saw the video, they knew that it was a Rorschach test. The defense claim that six people went to the pier in broad daylight and stayed there for 30 minutes to disposeof the gun is offensive to any rational thinking person.

            I think that the prosecution blew it by not arranging a field trip to Pier 14 to see how you could not hide anything there and by not letting them handle an unloaded Sig Sauer P239.

          • Rosh HoshHosh

            His exact full statements haven’t been reported, as far as I have seen. Again, I’m doubtfully he used the word ‘pull.’

            The defense is appealing the possession charge on the premise the jury convicted based on the fact he tossed the gun in the bay, and the defendant admitted it. The reasoning is the jury would have returned a guilty verdict on one of the other charges if thiey had established possession earlier than that.

            The video coupled, with the ballistic evidence, was enough to establish that Zarate had possession prior to the tossing of the gun into the bay.

            Diana Garcia forced the jury to water, and they refused to drink. It seemed to appear the water had been tainted.

          • Geek__Girl

            I watched the video. It was so short, and fast paced, I could not tell what was being shown. I find that rather odd, even suspicious. I suspect ABC 7 wanted to feed the firestorm, not present an accurate report.

            Again, like a few others, I notice you don’t have any real arguments, so you resort to your silly attacks.

      • Weebal BANNED @ Political Wire

        Loaded, the P239 .40cal weighs over two pounds. If such a firearm were wrapped loosely in a cloth, it is completely unsurprising that a person picking it up might inadvertently discharge it simply by using enough force to keep it from slipping from his hands.

    • strange_2_jim

      You were not in the jury room. You did not have the opportunity to evaluate the evidence. Why can’t you accept the jury process? This is the jury’s call, not the court of public opinion. Hopefully you or a loved one will not be in a situation where fate (innocence?) is judged by a jury. You would want that jury to follow instructions presented by the judge, yes?

  • strange_2_jim

    Great coverage. Hope you will follow the appeal of Jamal Trulove and any examination of John Evans.

  • MKR

    Ironically this man probably would have survived longer in a California prison than he will under deportation or wandering the streets of California. If he goes back home he obviously has no friends or family, no job or skills and a serious drug problem. He may very well starve to death or die of an overdose.
    And California has one of the most progressive prison education systems in the country, funded largely by private venture capital money https://thelastmile.org/. There are examples of released felons working at six figure coding jobs.
    There is no happy ending here. The moral of the story is if you want to be completely safe from gun violence don’t live in the US. Its not likely to happen here anytime soon.

    • Rosh HoshHosh

      He had family come for the trial.

      • MKR

        Well they didn’t seem to be offering him too much help to get off the streets

        • Rosh HoshHosh

          Who knows? Zarate is from the center of Mexico – an area currently in chaos and where poverty is a way of life.

          Imagine Zarate’s release from county jail. He exits to 7th St. Does he have any money? Does he have any i.d.? Where can he eat? How is he going to stay warm through the night? What hygiene supplies does he have? Is he wearing jail issued sandals and socks? Does he have a coat? Where can he sleep when he’s tired? And was he referred to a social worker?

          Now imagine yourself in that same situation (minus the just being discharged from jail part). Better hold on tight to your civil liberties at that point ’cause you’re gonna need ’em.

          • MKR

            What’s your point?

          • Rosh HoshHosh

            My first point is that you have very little concept of Zarate’s reality and you shouldn’t be speculating like you did in your initial post.

            My second point is that we are rolling the dice with our prisoner release system.

            My third point is that people who have never been in the downward spiral don’t fully understand the importance of civil liberties.

          • MKR

            We are all speculating because no one ever really knows what goes on in someone else’s head. The prosecution probably became excessively zealous with the charges because of the sensational appeal of the case to right wing media. She may have wanted to show that sf is not a liberal haven for criminals.
            But honestly people will probably forget it and move on since it’s not really that important to anyone except the late Ms Steinle’s family

          • Rosh HoshHosh

            Obviously it is okay to speculate in a comment forum. My issue was with your unfounded character assassination.

          • MKR

            I’m not assassinating anyone . This man was a homeless drug addict. I don’t see him as a good candidate for re entry into the work force.

      • Niece and her friend,

        They were scared to death and he didn’t seem to know who they were.

        Give Ohtani Bob Pritikin’s estate!

        h.

        • Rosh HoshHosh

          I’d imagine they were scared and I wouldn’t be surprised if he did not recognize her.

          She did a very honorable thing representing the Garcia Zarate family like she did. I dont know where she traveled from, but you don’t just hop on a plane to the states if you are a Mexican national. It is difficult to get documents in line.

          I’d go to Mexico and write that story, mr. brown.

  • Rosh HoshHosh

    Accidental shootings while hunting are prosecuted *if* the hunter has any negligence on top of the accidental discharge.

    If a hunter fires after dusk – as the recently high profiled upstate NY shooting -the hunter will be charged. If a 15 yr old shoots his friend with a pistol when commencing the hunt – as happened in WI this spring – he will be charged (Governor Walker just reduced the minimum hunting age in WI from 10 to 0, but you still have to be 18 to legally possess a pistol).

    There is relevance with this comparison, but I think this distinction is important.

    • Geek__Girl

      When my father was shot while hunting, and there was NO question of negligence, the person was not charged. That may have been because my father declined to press charges, but I have no idea. As best I can remember, the question never came up. I mean, the guy fired because my father moved his hand, and was wearing gray glove. The shooter thought it was a squirrel. That has to be one of the worst examples of negligence ever. Fortunately, he was far enough away that the shot had spread out. Otherwise, if close, he might have lost his hand, or worse. And of course, countless hunters have been killed when mistaken for deer…and yet, in every Walmart in Alabama, they sell camouflage hunting clothes (and pretty much everything else…like a camouflage pattern slow cooker????). I find that not only idiotic, but downright suicidal.

      • Rosh HoshHosh

        I am sorry to hear that. It is usually required a certain percentage of clothing to be blaze orange when hunting. It would not have been up to your father whether charges were filed or not, though it may have swayed the DA.

        My father was rear ended in a vehicle accident. He didn’t make it.

        • Geek__Girl

          That is my understanding, but apparently those laws either don’t exist in Alabama, or they are not enforced. He was shot back in the 1970’s. I was in high school. I don’t think they had started requiring orange then.

          I am quite sure that the emergency room would have had to report the incident. He also had a serious accident when he fell asleep while driving. When I went to the hospital, he was pretty banged up, broken jaw, and a number of other injuries. I was a bit upset when I heard them mention filing a coroner’s report. They explained that it was a requirement whenever someone was involved in a car accident, or such, even if there was no real chance of them dying. Just in case, so I am pretty sure it would have been required for a shooting. But I don’t remember charges ever coming up. He would not have wanted them.

  • SnapsMcKenzie

    Regardless of the verdict or Matt Gonzalez’s plans to appeal the conviction, Zarate has a federal warrant out for his arrest, so as soon as he’s released here it’ll be into the custody of US Marshals, where he can begin the next stage of his never-ending journey through the US legal system.

  • Scott Pearson

    I myself like the verdict, because it was an accident and he shouldn’t have been prosecuted at all. so maybe Gascon didn’t bungle the case; maybe, because of politics, he got it just right.