News + Politics

Cops in Zarate case never considered that they might be wrong

Matt Gonzalez questions inspector Anthony Ravano about his interrogation of Zarate. Illustration by Vicki Behringer

The prosecution in the Jose Ines Garcia Zarate trial rested its case today after a routine presentation by the chief medical examiner.

But before that, we learned even more about the strange interrogation of Zarate, leaving even more in doubt what the jury is likely to make of this critical evidence.

Matt Gonzalez questions inspector Anthony Ravano about his interrogation of Zarate. Illustration by Vicki Behringer

Matt Gonzalez, attorney for Zarate, cross-examined Inspector Anthony Ravano, who lead the investigation into the death of Kate Steinle, and shed some light not only the cops’ techniques but on some key evidence that they didn’t bother to look for.

Ravano’s testimony made clear that he and his colleagues never considered any evidence that might corroborate Zarate’s claim that the gun fired by accident.

In fact, Gonzalez pointed out, they never pursued any sort of investigation into any theory of the incident except the one that they had decided on early: That the homeless undocumented immigrant had intentionally aimed the gun in Steinle’s direction and fired.

At one point, Ravano argued that Zarate couldn’t have found the gun on Pier 14, because if it had been there, somebody else on the busy dock would have noticed it and called the police.

When asked where Zarate might have found it, Ravano said “anywhere else” on the waterfront.

But the entire waterfront along the Embarcadero is also busy, and if the weapon was left “anywhere else,” by Ravano’s logic, someone should have called the police to report it there.

It also became clear during questioning that the police treated Zarate very differently than they treated the federal agent who left the gun loaded and ready to fire in his car. Ravano even testified that he was unable to ask the agent more than very limited questions about the gun because of restrictions imposed by Justice Dept. lawyers.

After the testimony, reporters asked Alex Bastian, a spokesperson for District Attorney George Gascon, whether the city participated in limiting the questioning of the agent. He repeatedly declined to answer.

“The police used kid gloves to accommodate that fellow officer,” Gonzalez told us after the testimony. But they put Zarate in a patrol car for four hours then interrogated him until 6am, despite the fact that he was clearly sleep-deprived and unable to offer coherent answers to their questions.

Gonzalez asked Ravano about a long list of statements Zarate made that were clearly not accurate. He said he was five or six feet from Steinle when the gun discharged; he was 90 feet away. He said he walked past the wounded woman and offered no aide; he was never near her and neve walked past her. He said that he was shooting at a seal, which was impossible since the pier is way too high and seals couldn’t reach it. When the officers asked Zarate to repeat back what they had said, he was unable to do it.

At times, he agreed to the officers’ version of events, only to make contradictory statements later.

And it appears that the officers never looked into some of those contradictions. They never asked, for example, where the seal was, or how Zarate could have fired at the seal from a seated position.

During the interrogation, the copes asked him what the gun was pointed at. After nine seconds of silence, he said “I don’t know.”

The tape of the interview shows the officers banging on the table and telling the clearly exhausted Zarate that they are “sick of him.”

But under repeated questioning, Ravano defended the interrogation, saying that he started off assuming Zarate was lying, that it was necessary to lie to the suspect to “motivate” him to talk, and that it didn’t matter that he was sleep deprived. “I was sleep-deprived too,” Ravano said.

The interrogators asked Zarate why he had killed the young woman. Zarate responded: “I don’t remember.”

I saw that as a pretty dramatic indication that Zarate was confused, disoriented, or had some sort of cognitive issues; he didn’t deny killing her (although when he was brought in for questioning he didn’t know she was dead). He didn’t say that he had not motive, or cite a motive. He said he didn’t remember.

When Zarate said he found the gun wrapped in rags or a shirt, the officers never asked him to elaborate: What color was the shirt? How heavy was the weapon?

That, it became clear, was because Ravano didn’t believe Zarate could have found the gun on the pier — even though under direct and intense questioning, he repeatedly said that was what happened.

“You say that didn’t find the gun because someone else would have found it,” Gonzalez asked. “Why couldn’t he have been the one that found it?”

Ravano said: “He could have.”

But that possibility was never part of the investigation.

The grainy video that was introduced earlier, from a fireboat 800 yards away, shows that shortly before this incident, a group of perhaps six people congregated briefly around the chair where Zarate sat. But that wasn’t a part of the investigation, Ravano said.

“I don’t know if I saw it or not,” he testified. When asked if he had made any notes in his investigative report that there were six people in that area shortly before the gun was fired, he said: “I did not.”

Ravano, prompted by prosecutor Diana Garcia, introduced what Gonzales later said was a new theory in the case: That Zarate had found the gun elsewhere, and hidden it in the pocket of the coat he was wearing. Garcia had Ravano show the jury the coat that was collected as evidence when Zarate was arrested, and the gun in question, and show how the gun could fit into one of the pockets.

However, he said he had never done a test to see if there was gunshot residue in the jacket.

“There are a lot of pockets this gun could fit in,” Gonzalez said outside the courtroom. “This is a new theory. If they really believed it, they would have tested the coat for gunshot residue.”

The defense will start its case Monday, and it’s possible that this could go to the jury the next week.

SFist network shut down by anti-union billionaire owner

Visitors to local news aggregator and commentary site SFist were stunned today to find all of its content and archives replaced by a simply worded note from billionaire CEO and owner Joe Ricketts, announcing that parent networks DNAinfo and Gothamist were ceasing publication immediately.

Ricketts, a noted political conservative who founded TD Ameritrade, bought the Gothamist network — which controls SFist, LAist, and others — in March under the auspices of his DNAinfo media company, causing wary rumblings on the local scene. How would the new owner’s conservative activism square with the voices of the -Ist sites, media wonks wondered, especially since there was already evidence of censorship as the deal went through.   

We finally have a definitive answer, although SFist’s demise owes less to its wide-ranging curiosity, diverse voice, and political commentary than to that billionaire bugbear of old: unionization.

The battle of billionaire vs. journos had been brewing for months. Editorial employees of Gothamist in New York had announced their decision to unionize right before the sale. According to the New York Times:

“When the DNAinfo and Gothamist New York newsrooms first moved to join the union in the spring, management warned that there might be dire consequences.

DNAinfo’s chief operating officer sent the staff an email wondering if a union might be “the final straw that caused the business to close.” Around the same time, Mr. Ricketts, whose family owns the Chicago Cubs, wrote bluntly, “As long as it’s my money that’s paying for everything, I intend to be the one making the decisions about the direction of the business.”

Just last week, reporters and editors of Gothamist voted to officially join the Writers Guild of America East, after a monthslong struggle with Ricketts, who refused to recognize the union, that ended up involving the National Labor Relations Board. (Ricketts supported Trump in the election and recently written a vociferously anti-union screed on his blog.)

That was a final straw for Ricketts, who was losing a reported $200,000 a month on the sites — despite attracting 9 million users per month — and who, like many moguls, had been unable to make an solely online advertisement-driven media model profitable. 

“The decision by the editorial team to unionize is simply another competitive obstacle making it harder for the business to be financially successful,” said a DNAinfo spokesperson regarding the decision to shut down the sites and terminate 115 employeees, according to the Times. (The employees are receiving three months’ administrative leave pay and one month severance.)

Eve Batey, SFist founder and current writer for the site, referenced the original Gothamist founders in a statement to 48 Hills: “Jen Chung and Jake Dobkin built an amazing network of sites, and they changed countless lives and brought truth to power for 15 years — an eternity in the online publishing world. I’m privileged to have been part of that for so long. When they allowed Rita Hao, Jackson West, and me to start SFist in 2004, none of us knew what we were getting into. It’s been a wild, wonderful ride, and while I’m sad today at how things appear to have ended, I’m still happy that for so long it was such a big part of, I hope, so many of our lives.”

There’s much to be said here about the influence of billionaires on the media, the drive against unions that is keeping wages unlivably low for those who perform the necessary work, and the sheer cruelty of erasing years’ worth of work. There’s also much to be said about the importance of supporting local, independent media so that billionaire meddling can be avoided and a healthy environment can grow for writers to develop and thrive without constant fear of fiduciary retaliation.

But for now we mourn SFist and feel for our talented friends who are now out of a job.     

Proposal calls for every renter facing eviction to have the right to a lawyer

Advocates file for a Right To Counsel measure at City Hall

A coalition of renters and advocates, led by Dean Preston, who ran for supervisor last year, filed the paperwork today for a ballot measure that would guarantee every tenant facing eviction in San Francisco the right to a lawyer.

“This will go a long way toward improving the eviction problem,” Preston said. “Tenants who go to court without a lawyer almost always lose.”

Advocates file for a Right To Counsel measure at City Hall

In fact, he said, nationwide 90 percent of tenants facing eviction don’t have legal representation, while 90 percent of landlords do.

“Housing is a fundamental human right,” Preston said. And that means people who risk losing it have a fundamental right to counsel – just as people who risk losing their freedom in a criminal trial have a guaranteed right to legal representation.

The No Eviction Without Representation measure needs 9,400 signatures to qualify for the ballot.

The city has allocated money to help nonprofits fund legal defense for people facing eviction, but it’s not enough to cover every tenant. And there’s no rule in place saying that nobody facing eviction, whatever their income level, has an absolute right to counsel.

Early polling suggests that the idea has a lot of support. A poll released by the SF Right to Counsel Committee shows that 60 percent of likely voters support the idea, with only 27 percent opposed. That’s a 2-1 margin, great news for any nascent campaign.

The poll also snows that only 30 percent of voters approve of Mayor Ed Lee’s job performance, and 50 percent disapprove.

The measure could become a litmus test for candidates running for supervisor in the spring and the fall: In San Francisco, politicians always want to sound pro-tenant, but when it comes to money – funding equity proposals – they often fold.

For more information, check out the group’s website, and to volunteer to collect signatures, email [email protected]. The group plans a Dec. 2 kickoff, and will need to get signatures by Feb. 5, 2018 to make the June ballot.

Zarate looked confused, disoriented during police interrogation

Zarate huddled in an interrogation room as the cops questioned him late into the night

It was confusing, often contradictory, as the jurors today heard the interrogation of Jose Ines Garcia Zarate, an undocumented homeless man accused of killing Kate Steinle.

Only a portion of the late-night, four-hour interrogation was played by prosecutor Diana Garcia as part of the prosecution’s case that Zarate intentionally shot Steinle. The video shows Garcia Zarate huddled in a corner in a cold police interrogation room sometime after 1am on July 5th, hours after the shooting on Pier 14. 

Zarate huddled in an interrogation room as the cops questioned him late into the night. Illustration by Vicki Behringer

Officer Martin Covarrubias translated the interrogation from Spanish for homicide investigators Anthony Ravano and Chris Canning, both sergeants with the San Francisco Police Department at the time of the interrogation.

Zarate appeared confused, stating that he was born in 1863 and that he was from Colombia. Actually, he’s from Mexico.

Zarate at first denied being at the pier and repeatedly told the officers that he was sitting on The Embarcadero and eating crackers on a planter, but later admitted to sitting at the pier, finding the gun wrapped in a piece of cloth, shooting it and throwing the gun in the Bay. 

At multiple points during the interrogation, Zarate told investigators that he found the gun wrapped in a piece of cloth — providing information that backs the defense’s claim that the shooting was accidental instead of intentional. 

“When I got there, I was walking along and I stepped on it (…) it was wrapped in a cloth so I picked it up (…) it was heavy so I grabbed it and it fired,” Zarate said. When Ravano asked why he threw the gun in the Bay after it fired, Zarate said, according to the translation provided by Covarrubias, “because the gun was shooting by itself.” 

Later he contradicted himself again by saying the gun got “caught in something” and was too heavy to carry so he “dropped it.” He also repeatedly said Steinle was between five and six feet away, when it’s been established that she was at least 90 feet from where he was sitting. 

Ravano also testified Wednesday that police investigators had lied to Zarate before his confession as part of their tactic to elicit a confession.

“It was just another tactic to help motivate him or elicit a more truthful response,” Ravano said. 

Investigators told Zarate that the police had witnesses, had recovered the gun from the water, and matched his DNA to the weapon. In fact, there were no witnesses to the shooting and the gun hadn’t been recovered at the time of the interrogation. 

In another instance during the interrogation Zarate gave conflicting statements about the shooting.

“Did you mean to do it?” Canning asked trying to ascertain whether Garcia Zarate intended to shoot Steinle.

“No,” Zarate responded.

“Was it an accident?”

“Yes.”

“But you did make the decision to pull the trigger, correct?”

“Yes.”

“What did you think was going to happen after you pulled the trigger?”

“That I wasn’t going to be able to hold it, it was too big for me and too heavy.” 

During part of the interrogation, Zarate responded in the affirmative when officers asked him if he found the gun elsewhere or intended to shoot. But when asked “where he found the gun” he goes back to his original statement “right there,” signaling to his statement earlier that he found the gun at the pier. 

The cross examination will continue tomorrow.  After court, Defense attorney Matt Gonzalez told he was happy with the way the case was proceeding. Gonzalez told reporters that he believed that the  police pushed and led Zarate into his answers during the interrogation that lasted until 6am. 

“The fact that very skilled and experienced and educated interrogators can get a second-grade-educated Mexican immigrant to adopt what they are saying, like that Kate Steinle was five-feet away when the gun discharged, that doesn’t make it true,” Gonzalez said. 

“Tomorrow I want to focus on and play parts of the interrogation, especially one in the beginning where he [Garcia Zarate] genuinely struggles with telling the officers his birth date reveling his mental, physical fatigue and mental state at that time.” 

Could the gun that killed Kate Steinle have fired by accident?

Gerald Andrew Smith testifies about the gun that killed Kate Steinle. Illustration by Vicki Behringer

The trial of Jose Ines Garcia Zarate today focused on the gun that fired a fatal bullet at Kate Steinle on July 1, 2015. A firearms specialist, Gerald Andrew Smith, told the jury that the gun only discharges if the trigger is pulled — a claim disputed by the defense, which argues that the gun fired accidentally when Zarate handled it.

Smith, a supervising criminalist with the San Francisco police crime lab, tested the stolen handgun Zarate is accused of firing at Steinle. 

Gerald Andrew Smith testifies about the gun that killed Kate Steinle. Illustration by Vicki Behringer

Smith was prosecutor Diana Garcia’s witness on the sixth day of the trial. So far, the trail has largely focused on evidence on whether Zarate intended to shoot Steinle. 

Matt Gonzalez, attorney for Zarate, argued that the gun could have been discharged by accident if, for example, the trigger was snagged on a piece of clothing.

In his opening statement Gonzalez said that Garcia Zarate found the gun wrapped in either a shirt or some other type of cloth on the pier when it went off. 

“We want the judge to allow the jury to dry fire it in single-action mode, I am very confident that if you handle this firearm in single-action mode and depress the trigger, it’s very light,” Gonzalez said.

The alleged murder weapon is a Sig-Sauer P239 and can fire in single and double action mode.

Smith said the handgun also fired in double-action mode, which according to Smith requires at least nine pounds of pressure.

Gonzalez argued that the gun could have discharged in single-action mode, but Smith said he couldn’t say whether the bullet that struck Steinle was fired in single or double-action mode. The bullet fired from the gun ricocheted off the concrete on Pier 14 before it hit Steinle in the back. 

Smith, who examined the bullet after it was removed during the autopsy, said that heavy gouges on one side of the bullet looked “very typical of a ricochet.”

Later in the day, Gonzalez noted that the Sig-Sauer had a history of accidental discharge. During a four-year period, from 2012 to 2015, the New York City Police Department reported that of 54 accidental firearm discharges, ten involved Sig-Sauers. 

Gonzalez said that from 2005 to January 2011, the San Francisco Police Department reported 29 accidental discharges. During this time, the SFPD issued Sig-Sauers as its primary sidearm.

The trial resumes tomorrow, and Gonzales hopes to let the jury examine the gun to establish “how the trigger could have easily been pulled accidentally.”

Prosecution expert presents conflicting testimony on Steinle shooting

Former CSI supervisor John Evans testifies about the positioning of the victim and the suspect in the shooting

A retired police officer who appears to be the prosecution’s main expert on how a gunshot ricocheted off the concrete of Pier 14 and killed Kate Steinle testified in the Zarate trial today – and let me (and perhaps the jurors) a bit confused.

John Evans, who spent 26 years with SFPD, 11 with the Crime Scene Investigation Unit, took the stand to try to explain a critical element in the case: How did a bullet hit the hard concrete then bounce and hit Steinle – and does the path of the projectile show that Jose Ines Garcia Zarate was pointing the gun in her direction when it discharged?

Former CSI supervisor John Evans testifies about the positioning of the victim and the suspect in the shooting. Drawing by Vicki Behringer

The defense is arguing that Zarate never intended to fire the weapon, that it went off while he was handling it and that the ricochet was a tragic accident.

Evans took a very different approach. Under questioning from prosecutor Diana Garcia, he described how he had been called to the scene as the supervising investigator on July 2, 2015, a year before he retired.

He said that the CSI unit never found a shell casing from the weapon – but he also said that’s not surprising, since the casings are light, the pier was windy and narrow, and it could have gone anywhere, including into the Bay.

Then he described what he called “vector analysis” – a process that involved using a laser pointer to determine if there was a direct line from where Zarate was allegedly sitting to the divot in the pier where the bullet hit, and then from there to where Steinle was standing.

Evans was clearly an experienced witness who was careful with his answers. But at one point, he – like Garcia in her opening statement – spoke of how “skip shots” – bullets that bounce off a hard surface – can be “intentional.”

And while he insisted that the path from the chair to where Steinle stood was a straight line, he also said that the bullet hitting the concrete would have changed its direction.

Still, he said: “A human being held the firearm, pointed it in the direction of Ms. Steinle, pulled the trigger and fired the weapon, killing Ms. Steinle. This is the only way it could have happened.”

When Garcia asked how the shot could have gone low and hit the pier floor, Evans said that inexperienced shooters often jerk the trigger of a gun, causing it to discharge before it is level with the ground.

That, of course, assumes that Zarate intended to fire the weapon in the first place.

Matt Gonzalez, representing Zarate, objected to that line of questioning, saying that Evans hadn’t been qualified as an expert and referring to his analysis as “junk science.” But Judge Samuel Feng overruled him.

During cross-examination, Gonzalez challenged the whole concept of “vector analysis.” He pointed out that CSI normally does something called “trajectory analysis,” but Evans said that wasn’t possible in this case since there was no fixed point where the gun was fired and no fixed point where the bullet landed.

The CSI team estimated where the gun was fired (from a swivel chair, possibly from a right hand or a left hand or some other position) and estimated where it hit the victim (based on where her blood was found and where her bloody clothing was left after the paramedics took her to the hospital.)

That’s a lot of loose points. Evans admitted that his team didn’t know exactly where Zarate was, or where Steinle was. And the term that Evans used to describe his system isn’t standard forensic technique.

“I have been doing this a long time,” Gonzalez said, “and I have never heard of ‘vector analysis.’”

But the central point of his testimony came when Gonzalez asked if it would be fair to say that hitting the hard concrete changed the direction of the bullet.

“Yes,” Evans said.

In that case, Gonzalez, asked, can there really be a straight line from the barrel of the gun to where Ms. Steinle was standing?

Well, as Bill Clinton almost said, that depends on the definition of what “straight” is.

Evans said that from a side view, the trajectory of the bullet would look like an elongated ‘V’. But from above, the shot would appear to be straight.

When Gonzalez asked if the bullet could have been deflected horizontally, the CSI supervisor said he didn’t understand the question.

This much we got from the testimony: The bullet hit the concrete hard enough to dig out a divot. After that, it stopped spinning and “tumbled” – not how bullets normally travel.

And yet, Evans said the path from the barrel of the gun to the victim was still essentially straight.

“When you try to say it was a straight line but you don’t know where the suspect was and where Ms. Steinle was, you are engaging in wild speculation,” Gonzalez said.

In essence, we learned, the CSI team created a pair of circles, around where the victim was likely hit by the bullet, and where the gun was likely fired. If those circles were big enough, it would be easy to find a straight line between them that included the place where the bullet hit the concrete.

If those circles were smaller, it might be much harder to define that straight line, Gonzalez said.

If, in fact, the bullet hit the ground and was deflected to the left or the right, it would support the idea that Zarate wasn’t aiming at anyone. So we heard this exchange:

Q: What evidence do you have that someone pointed a firearm at Ms. Steinle?

A: My training and experience is that firearms do not fire by themselves.

That wasn’t the point – the question at hand is whether Zarate actually aimed toward the people on the pier. But the questioning took a new direction, with Evans insisting that it’s exceptionally rare for a gun to go off unless a human being has pulled the trigger.

That will be an issue later, when the defense presents the experts promised in opening statements who will say that some weapons, like the Sig-Sauer .40 in question, have a history of accidental discharges.

But back to the central question.

Evans said that someone who was “stressed” or “in a hurry” might be likely to pull the trigger in a way that sent a bullet into the ground, even though that person meant to fire at a target.

There is at this point no evidence that Zarate was stressed or in a hurry. “Isn’t it just as likely that the bullet stuck the ground because it was accidentally fired,” Gonzalez asked.

“No, I don’t think it’s just as likely, it’s less likely,” Evans said.

Q: “But you don’t know that he even knew he was handling a firearm.”

A: “I don’t know what was in his mind.”

Q: “You don’t know if it was an accident or not.”

A: “I cannot say.”

Garcia, in a brief (and rare) discussion with reporters outside the courtroom, said she can’t say how many more witnesses she’s going to present. The trial continues tomorrow.

 

 

 

The Agenda: Tasers, cannabis, and homeless deaths…

Homeless advocates will remind local officials of the people who died on the streets this Day of the Dead, Thursday/2

The Zarate trial, and the history of the weapon that fired the fatal bullet that killed Kate Steinle, got me thinking about who gets to carry lethal weapons in our society.

Clearly, police officers do, in pretty much every city, town, and county in the United States. County sheriffs and their deputies do. Transit police often do. Some of the officers patrolling university campuses are armed; so are some park rangers.

Homeless advocates will remind local officials of the people who died on the streets this Day of the Dead, Thursday/2

Apparently, the Bureau of Land Management thinks that its rangers need serious weapons, like the Sig-Sauer .40.

Investigators at the SF District Attorney’s Office are allowed to carry guns.

I remember years ago some of the inspectors from the California Dental Board argued that they needed to be armed. One of them asked me, “have you ever had to argue with an angry man with a drill?”

The list keeps growing. Now the San Francisco Community College police want to carry guns.

So where does it end? Will Muni fare inspectors want guns? How about Parking Control Officers?

Are we safer if we arm more people?

The issue before the SF Police Commission Friday/3 is slightly different. The panel is holding its final public hearing at City Hall on the question of giving the local cops Tasers.

The department and the chief argue that Tasers will give officers a “less lethal” alternative – that they will be less likely to shoot people if they can zap them instead. For police accountability advocates, that makes no sense at all.

You can weigh in on the issue at 5pm; a room hasn’t been assigned yet, so check here for updates.

The Board of Supes Land Use and Transportation Committee holds a special meeting Thursday/2 to consider the long-awaited legislation that would set regulations for the cannabis industry. We’re running a bit out of time here – the state law legalizing adult use takes effect Jan. 1, and with only two months to go, the city is scrambling to be ready.

The changes in state law are pretty dramatic. After Jan. 1, people who want medical marijuana will have to get a recommendation from their regular attending physician, not from a doctor they find online or in a storefront clinic. And a lot of primary-care doctors may not offer that recommendation.

That shouldn’t matter to people who are 21 or over, since they can legally buy cannabis anyway. For patients who are between 18 and 21, it’s a very big deal.

The city has a fairly comprehensive package of land-use regulations that would allow cannabis retail in a lot of neighborhood retail areas, allow it with some restrictions in areas where it’s not now legal, and repeal the special-interest bill by Sup. Ahsha Safai that bans new outlets in D11.

The bill would ban any retail cannabis licenses until the city figures out an equity program, to make sure that the benefits of this lucrative new industry go at least in part to people who suffered most from the failed War on Drugs.

Some worry that it will take a long time to develop the equity plan, and that will delay the entire industry in the city, while (for example) Oakland moves ahead.

But we have a new Department of Cannabis, and a well-established medical marijuana industry, and we ought to be able to make this work. Soon.

The hearing’s at noon, in Room 263.

This Day of the Dead (Thu/2), homeless advocates are trying to get elected officials to pay attention to the number of homeless people who die on the streets every year.

The Coalition on Homelessness will hold a march to City Hall, with four stops along the way to honor community members who died without a roof over their heads. Along the route, activists will paint red footprints and handprints to symbolize the city’s lack of comprehensive action.

After the march, there’s a traditional Mexican lunch in Civic Center Plaza. It starts at 11am at the corner of Larkin and Eddy.

Zarate had gunshot residue on his hands — one tiny particle

When a gun fires, thousands of tiny particles escape. Wikipedia image

An expert in forensic science testified Friday that Jose Ines Garcia Zarate has exactly one particle of gunshot residue on his hands – enough for the prosecution to claim as evidence that he fired a pistol, but little enough to give the defense grounds to argue that it was inconclusive.

Linda Abuan, who works at the San Francisco crime lab, explained to the jury that every time a firearm is discharged, it releases hundreds of microscopic particles, some only 1/40th the thickness of a human hair.

When a gun fires, thousands of tiny particles escape. Wikipedia image

A distinctive particle, which contains antimony, barium, and lead, is characteristic of that residue, she said. And the discovery of any amount on a person’s hands indicates that the person “fired a gun, was close when a gun was fired, or touched something with GSR on it.”

She went through the testing procedure, which involves a scanning electron microscope searching swabs taken from a suspect’s hands. In this case, the microscope found one particle that didn’t appear to have the characteristics of GSR.

But, following standard procedures, Abuan went back and manually examined that particle and decided that it fit the profile.

It’s not a quantitative test, she said: “We are just looking to see if it is present or not.” So one microscopic particle can trigger a positive result.

On cross-examination, Matt Gonzalez, representing Zarate, asked her if everyone in the forensic world agreed that the presence of one particle was enough to demonstrate that the person had fired a weapon. In Baltimore, he said, the Police Department considers five particles the minimum for a positive identification. Abuan acknowledged that there is no commonly accepted threshold.

In fact, Gonzalez pointed out, researches in Los Angeles found GSR in 45 of 50 samples from the back seat of police cars. The FBI lab in Quantico has found it on desks and railings.

Abuan said that GSR can be spread easily by contact; she compared it to talcum powder. It can last for weeks or months, she said; it doesn’t degrade and remains where it was until is it brushed or washed away.

Judge Samuel Feng has been very strict about limiting questions in corss-examination, the courts don’t like speculation. We are under no such rules, so we can raise the question:

If, as the defense argues, Zarate was holding the gun, possibly wrapped in a shirt, when it discharged, then tossed it, possibly still wrapped in cloth, into the Bay, he might have had only a limited amount of GSR on his hand.

On the other hand, some people fire a weapon and get almost no GSR.

I’m not sure how much that testimony proved, particularly since the defense isn’t denying that Zarate was close to the weapon when it fired.

OPINION: The case against Tasers

The Taser x2 is not well tested

On Friday, November 3, 2017 at 5:00 p.m. at City Hall the San Francisco Police Commission will be holding its last public hearing on purchasing stun guns for San Francisco police officers. Although there has been much discussion on the topic, there remain many misconceptions about the weapon under consideration and its potential impact on policing in the city. 

I’ve heard many people – young and old – say that they’d rather be stunned than shot with a bullet. This is a logical response. Unfortunately it’s based on misunderstandings about how conducted electrical weapons (CEWs) work.

The Taser x2 is not well tested

Even the San Francisco Police Officers Association (POA) has repeatedly asserted after officer-involved shootings that SF police officers need CEWs to use as an alternative to guns. 

To be clear, CEWs cannot be substitutes for guns because there are inherent limitations in how they function that render them unreliable for being used in deadly force situations. 

The leading manufacturer of CEWs specifically states in its training materials, “CEWs do NOT replace deadly-force options.” Most departments that have CEWs instruct officers NOT to use them in deadly force situations because they cannot be relied upon to stop a threat.  Many factors can cause the CEW be ineffective – how thick the person’s clothing is, whether both probes hit the person, and whether the CEWs electrical charge captures enough muscle to incapacitate, to name a few.

The law permits officers to use their firearms in deadly-force circumstances, which involve a threat of death or great bodily harm. The manufacturer’s training materials advise officers that the optimal range for CEW deployment is seven to 15 feet. To use a CEW in a situation in which an individual is armed or violent or aggressive would require the officer to be just seven to 15 feet from the individual. Alarmingly, CEWs have been found to fail often, in fact the Los Angeles Police Department (LAPD) reported a 47% failure rate in 2015

The SFPD adopted a new Use of Force policy in December 2016 stating the commitment to accomplish the “mission with respect and minimal reliance on the use of force by using rapport-building communication, crisis intervention, and de-escalation tactics” including time and distance. Bringing in a weapon that requires officers to be within seven to 15 feet of an aggressive individual would undermine the tenets of the policy and the training that has been instituted. And, should the weapon fail, officers would be in jeopardy and would have no choice but to escalate to lethal force.

In considering adopting CEWs it is prudent to ask, “Have CEWs been shown to stop or reduce officer-involved shootings in other law enforcement agencies?” Recent reports from Los Angeles and San Jose, both cities that have deployed CEWs for many years, register significant numbers of officer-involved shootings. LAPD reports 34 officer-involved shootings to date in 2017, and San Jose registered its eighth officer-involved shooting in September. CEWs clearly do not prevent officers from using guns.

SFPD has had ongoing issues with disparate use of force, including deadly force, on persons of color. The findings of the DOJ Collaborative Reform Assessment of the SFPD and the Blue Ribbon Panel Report detail racial inequalities in many areas from stops, searches, and arrests, to officer-involved shootings.

San Francisco is not the only city with disproportionate use of force patterns.  Other cities that have similar problems report disparities in officer-involved shootings as well as CEW use.  For example, a 2016 Chicago study documented that Chicago officers shot and used CEWs on African Americans at disturbing rates, and a Houston study reported that CEWs were used disproportionately on African Americans. 

The question of CEW efficacy is further complicated by the fact that the weapon under consideration for purchase by SFPD at this time, the Taser x2, is a new model that has had very little study or research to verify its reliability. The City of Houston has had several incidents that raise serious questions about the Taser x2.  A lawsuit filed this year by Houston Officer Karen Taylor after she was severely injured in a failed Taser x2 incident details how the newer CEWs, while possibly less dangerous to suspects than previous models, are more risky for officers because they are less effective. In one weekend in March, 2016, in three separate incidents Houston officers shot suspects after failed Taser x2 deployments. 

Tragically, CEWs, the “less lethal” weapons, kill far too often. In a series published this past summer a Reuters Report examines 1,005 deaths since 2000 involving Tasers and states, “Many who die are among society’s vulnerable – unarmed, in psychological distress and seeking help.” In the city of San Jose alone there have been eight deaths after CEWs have been used – some linked to the CEWs, and some from other contributing factors. In all of the cases, use of the CEW did not result in safely taking a suspect into custody. 

Would we support our city purchasing new, untested cars for employee use that reputedly fail nearly 50% of the time, that randomly kill people (particularly vulnerable populations and people of color) even when used as directed, and would certainly result in costly lawsuits? Of course not.

Before obtaining a new problematic weapon that would most likely be used disproportionately on people of color and vulnerable populations, the city and the SFPD must focus on de-escalation of force and ensuring that policing in San Francisco is equitable and fair and functions at the stated SFPD “highest priority (of) safeguarding the life, dignity and liberty of all persons.”  SFPD General Order 5.01 Use of Force

 

Barbara Attard is a police accountability consultant, former president of the National Association for Civilian Oversight of Law Enforcement (NACOLE), and co-author of the Police Misconduct Complaint Investigations Manual

Federal agent says it was safe to leave unsecured gun in his car

BLM Ranger John Woychowski shows the gun that fired the round that killed Kate Steinle. Illustration by Vicki Behringer
BLM Ranger John Woychowski shows the gun that fired the round that killed Kate Steinle. Illustration by Vicki Behringer

The federal agent whose gun fired the bullet that killed Kate Steinle was in court today, and in the course of a couple of hours, he testified that:

— He drove from Southern California to San Francisco with three kids, including a five-year-old, in the car while his .40 caliber Sig-Sauer pistol was loaded, ready to fire, and secured only in a backpack;

— He parked on the Embarcadero only after seeing other fancy cars and a parking control officer and deciding it was safe, because safety was his first priority at all times;

— He believed it was safe to leave the loaded gun with a round in the chamber in a backpack under the seat;

— He had been issued a locking device that would have kept the gun from firing, but decided not to use it;

— He had kept the gun in the ready-fire position while he was off-duty with his family although no Bureau of Land Management regulation required him to do that, and in fact, there was no requirement that he carry a gun at all when off duty;

— He was aware that BLM policy states that “all firearms not in active use should be stored in a safe place out of sight and under lock and key;”

And yet, when he was asked if he thought leaving the gun in a backpack in his private car, without a locking mechanism, was a safe way to store it, he said “yes.”

Prosecutor Diana Garcia fought constantly to keep out of the record any discussion of whether the agent, John Woychowski, was in any way responsible for initiating the chain of events that led to the tragic death of the 32-year-old woman.

Every time Matt Gonzalez, the public defender representing Jose Ines Garcia Zarate, who is charged with murder, tried to ask a question related to that issue, she objected.

And nearly every time, Judge Samuel Feng upheld her objection and refused to allow the question.

In her direct examination, Garcia took Woychowski through the events of the night his gun was stolen, and asked him if he had ever been subject to discipline for violating BLM procedures related to gun safety. He said he hadn’t.

Gonzalez dug into the BLM internal investigation, reading from the memos that the investigators wrote after interviewing Woychowski. “when you were asked why you did this [leave the gun unsecured in the car] you said ‘this is something I never do,’” Gonalez noted. “When the BLM agent asked you why you secured the gun this way, you said ‘I really don’t know why I left it like that.’”

Garcia objected. The judge told Gonzalez to move on to other questions.

The Sig-Sauer has two firing positions, single and double action. In a double-action mode, the trigger has to be pulled harder, to move the hammer back and then release it onto the firing pin. Woychowski explained that he loaded the gun with a seven round magazine, jacked a bullet into the chamber, then released the magazine and put another round in.

Along the way, the gun would have been in single-action mode, which allows it to be fired with much less pressure on the trigger.

“If you forgot to depress the uncocking lever, it would still be in single-action mode, correct?” Gonzalez asked. The agent said it would.

That’s relevant because the defense is arguing that Zarate picked up the gun, which was wrapped in a shirt, and it went off accidentally. When the Sig-Sauer is in single-action mode, it requires very little pressure on the trigger to discharge.

Garcia asked the agent if he or any of his colleagues had ever had a Sig-Sauer discharge by accident. He said he knew of nobody who had that problem.

Gonzalez asked him how many colleagues he had, and the answer was never more than 14.

In his opening statement, Gonzalez said he would present evidence that this type of gun has gone off in many instances by accident.

At the end of the session, Gonzalez asked Woychowski: “Do you believe you bear any responsibility for what happened?”

Garcia objected. The judge agreed. The question was never answered.