I you haven’t found anything from me for a while, the reason is I have not had the urge to sit and write. That happens. So, for my readers: just keep checking once in a while to see if I have put anything new in my continuing blog
Poor unfortunate Kathryn Steinle had her life snuffed out before she could live a full life, get married, have children and grandchildren. Only 32 years old, she was walking on a pier off the Embarcadero, arm in arm with her father, when an illegal immigrant, Jose Zarate, newly released from the San Francisco County Jail on a dismissed old possession of marijuana charge, with a request by Immigration and customs enforcement ignored by local authorities and the Sheriff’s policy not to hold non-violent offenders for the Feds to pick up for deportation, also known as “The Sanctuary City Policy” of non-cooperation between local law enforcement and Federal enforcement. Zarate, according to accounts, was in possession of a hand gun which had been stolen from an automobile in the care of another law enforcement possession. The shooting took place on one of the piers that extended from the Embarcadero walkway out into the San Francisco Bay for locals and tourists such as the Steinles to enjoy the view. Kathryn died in her father’s arms after being shot in the back by the stolen firearm which was in the possession of Zarate. Zarate claimed he found the weapon wrapped in a blanket, and when he unwrapped the cover, the firearm went off by accident. There was solid evidence the discharged bullet was fired at about 60 or so feet from the unfortunate victim, hit the pavement and ricocheted directly towards Kathryn, striking her in the back. The shooting took place July 1, 2015. Zarate was arrested and charged with murder 2nd, but at the trial, the prosecution argued for murder 1st, probably hoping to get a 2nd degree murder conviction or at least voluntary manslaughter based on the DA’s position of an intentional shooting with intent to kill without malice. Did not work out that way for the DA, as the jury rejected the DA’s argument and found Zarate not guilty of murder 1st or 2nd, as well as manslaughter, but did find him guilty of what is known as felon (he had prior felony convictions for drug offenses), a related crime. The trial was in 2017 and Zarate was in custody from his arrest to the day of sentencing, about 3 years, which would amount to the maximum custody time he would have to serve. So, he was turned over to the Feds, who charged him by Indictment with illegal entry, having been previously deported, Felon in possession of a firearm, and other stuff, and he is facing a long prison sentence if convicted of the new charges, then will be deported. He has as his attorney a famous San Francisco Criminal Lawyer, Tony Serra, who has represented over the years many high profile cases. Tony will give the US attorneys a lot of headaches, and rightly so.
Now you may ask, what has all this to do with thoughts and tactics, the theme of this blog. Let me explain.
On occasion, I have either prosecuted or defended high profile cases. What I mean by high profile are that these cases were heavily covered by the press, and in some cases, the trial was shown on TV. I really don’t like press coverage of trials. Heavy coverage skewers the trial, making it go sideways by all the glare and publicity. In England, a country whose legal system was adopted in many respects by the founders of the USA, the press is not allowed to write about pending investigations and trials until it is finished, to protect the rights of the accused, as extreme press coverage takes the solemnity out of a trial and turns it into a circus sideshow. I mentioned in an earlier blog the case of Dr. Bernie Finch and Carol Tregoff, where the jurors fought over who would be foreman, and it took 3 trials to finally reach a verdict. Both as a prosecutor and defense lawyer, I objected to video or excessive coverage of a trial. It ruins the jury panel and makes the trial often a farce. But, that is just me; many lawyers love the limelight. I am not one of them.
Back to the Embarcadero shooting. My opinion is that case should NEVER have been charged as murder. There was no real evidence of intent to kill. The gauge mark in the pavement showed ricochet. At best, the case was a manslaughter. But, lots of pressure on the DA. President Trump was running for office. One of his running issues was that Sanctuary Cities are bad. Immigrants are pouring over our borders, committing crimes, drugs, murders, rapes and so on. And he used that case as a selling point on his position of being tough on illegal immigrants, build a wall at the border with Mexico and so on. One can speculate Trump did not do the prosecution any favors by his pronouncements, particularly in San Francisco. Another aspect I am very familiar with is “don’t try to make a silk purse out of a sow’s ear.” It just doesn’t work with a jury, anywhere. Jurors, for the most part, take their job very seriously and try to do the right thing. I prefer a jury trial over a court trial any day of the week. My experience with probably over several thousand trials in my career is that jurors get it right most of the time and judges, due to various factors, are just not as good as jurors in deciding cases. Actually, after waiving a jury on cases that I thought were dead-bang winners, when I made a motion at the end of the prosecution’s case to find the client not guilty based on the DA’s evidence, after three different trials where the motion was denied and I had to jump through hoops to get a not guilty verdict, I just stopped waiving the jury trial and demanded a jury in every case thereafter. I attribute the disparity between judge or jury trial to modern politics. When I first became a prosecutor in the 1950s and 60s, a judge was secure in his/her office and didn’t worry about losing their job because they made an unpopular decision. Unless the judge actually committed behavior misconduct, they were set for life. Then came the Rose Bird California Supreme Court, and from that time to the present, DAs started to run for the job on a tough-on-crime program, claiming a particular judge is soft on criminals. So, the independent judiciary in California is no longer so independent.
The latest example is Judge Aaron Persky of Santa Clara County who presided over the trial of Stanford University athlete swimmer, Brian Turner, where the swimmer was convicted of sexual crime, and was sentenced to probation with a condition of 6 months in jail, 5 years’ probation with a condition he register for life as a sex offender. The probation department recommended one year in custody as a condition of probation. The defendant would have to do only half time for work and good behavior credits, so if the judge followed the probation recommendation, the defendant is out of custody in 6 months, and because he was sentenced to 6 months, the defendant gets out in 3 months. So the squabble is over 3 months. However, the DA wanted State Prison time and the judge did not go along with that recommendation. The defendant still has to register for the rest of his life as a convicted sex offender, and he lost his scholarship at Stanford. Generally speaking, one can legitimately not agree with the sentence, but it was well within the judge’s authority and jurisdiction. Not so for Judge Persky, as there is a present group headed by a Stanford professor to recall Judge Persky for doing his job. One need not agree with the judge’s decision, but to me, it is very dangerous to kick out a judge based on popular opinion where the arbiter has to worry every time he/she mkes a decision that is unpopular. That is mob rule and dangerous in a democracy.
Back to Zarate. I learned during my prosecution days, jurors could smell insincerity a mile away. I blogged earlier about advice given to me by wiser old heads in the trial business. Presenting your case is not a show for most trial lawyers. You want the jury to like you and your client if possible. If you have a problem, don’t ignore it. Face the problem, admit it as a problem, and then try to show why it doesn’t apply. I had a case as a prosecutor where the victim was really unlikeable, with felony convictions, who got into an argument with another guy in a pool hall and as the victim /witness approached the defendant in a forceful and threatening manner, the defendant clobbered the victim with a pool cue striking the victim on the head, causing some serious injury. Defendant was charged with assault with a dangerous weapon; Faced with strong cross exam by the defense and bringing out the victim’s felony record, my approach to the jury in a conversational tone admitted my victim was no angel, but the law protects everyone, and I got a guilty verdict. Also, for me, my approach to all cases is know the acts thoroughly and be conversational. Every time I varied and got theatrical I fell on my face.
I recall another case where my client, a big shot in the technical world, after attending a company Christmas party, was driving to his hotel and was suddenly confronted with a police car, with its red light and siren on, came bursting through an intersection directly in front of the client. The police car was struck by the client’s car directly in front of the police car’s driver’s door, causing severe injuries to the police officer, who was, as a result, off duty for several months due to severe injuries. The officer was on his way to a fire. This happened in Sunnyvale, a major Silicon Valley community. I should mention, Sunnyvale police not only attend to police duties, but as far as I know, they also are fire men, and the injured officer was on his way to a reported fire, The client had been drinking, was arrested and had a blood alcohol reading o over the .08% limit. There was a video of the travel of the police car which starts immediately upon the start of the engine. Now during a criminal charge, there is the arrest, followed up with a 1st court appearance, where a plea is entered, If the plea is not guilty, then dates are set for motions, discovery completion and also a trial date is set. In this case, a not guilty plea was entered, dates were set for motions, pre- trial negotiations and preliminary hearing and trial. The client was after a preliminary hearing held to answer for trial. He was charged with felony drunk driving, felony driving with .08% blood alcohol driving with bodily injury. The DA, a rather attractive young lady with lots of experience, was assigned the case and it was scheduled to be tried in front of a crusty but decent old-time judge, who was a former DA. They tried their best to get me to have my client plead, guaranteed probation and would consider reducing the case to a misdemeanor after the probationary period, pointing out that never had a Sunnyvale jury ever returned a not guilty verdict in this type of case, as the jury panel was composed of very intelligent engineering and math experts. We politely turned down the offer and proceeded to trial. I had in my preparation encountered some problems. In these type of cases, I generally hired two types of experts. One had to do with the effects of alcohol on the human system, including absorption and elimination of ethyl alcohol, performance on field sobriety tests and so forth. The second as an accident reconstruction expert. These are generally mechanical and force engineers. I had mentioned earlier about my case in Visalia where I had used Harry K, and he was wonderful. But Harry’s practice had grown, and he was associated with others. So engineers were sent out to the scene and a whole bunch of stuff was surveyed. To make a long story short, without my asking, I was sent a report outlining their findings, with a conclusion of comparable negligence- mostly the officer was at fault, but my client was partly negligent. In a civil accident case there is what is known as comparative negligence and a jury, if they find liability, can assess damages in one figure such as $100,000.00 and then deduct from that figure the percentage of contributory negligence from the injured party’s award. Great! Doesn’t work in a criminal case. If the accused is any percentage negligent, the other party’s negligence is immaterial So after much expense, I had to find another expert. James Hughes was recommended. James was a former accident reconstruction expert with the San Francisco Police Department who, through his studies, qualified as a reconstruction expert. We met, gave him all the reports to review, he went to the scene, did his thing with measurements, reviewed the roads, took some more measurements, made calculations, and the bottom line testified the accident was caused by the officer for failing to stop and look both ways before entering the intersection. The DA, for some reason, tried to prove the officer actually made a stop at the intersection, and it was safe and the accident was caused by my client’s unsafe speed. I never could figure out why the DA took that position and tried to back it up by manipulating the video. The reason I suspect is the officer swore he made a full stop, but the video, and witnesses and expert testimony contradicted that position. I have always believed if she had merely argued that the officer as wrong and just forget his testimony and concentrate on my client’s lack of constant observation, his speed and the fact the officer contributed to the accident was immaterial that is if my client was at all negligent then he would be guilty regardless of whether the officer did or did not stop at the intersection. My point is if the DA had just admitted in her closing argument the officer was not candid, but that did not excuse the defendant, she may have won her case. As I said before, if there is something that hurts, don’t try to ignore it. That way, you maintain your credibility with the jury and you can win your case. Oh, by the way, the client was found not guilty of the felonies and sentenced to work furlough for the included DUI offenses. I wanted to appeal, but client was satisfied. Just to recap, the flonies were not guilty in front of a Sunnyvale jury and according to the judge that was a first.
Enough for today
Marshall
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