A judge on Friday delayed the second trial in San Francisco of the undocumented man found not guilty of murder for shooting Kate Steinle, citing an upcoming U.S. Supreme Court decision that could dismiss the federal case.
The U.S. Attorney’s Office charged Jose Ines Garcia Zarate, the Mexican national whose case President Donald Trump used to call for a crackdown on immigration, with two gun possession counts after jurors in state court found him guilty of being a felon in possession of a firearm last November.
Prosecutors filed the charges under an exception to the rule in the Constitution that a person cannot be tried twice for the same crime. The so-called dual sovereignty doctrine allows the state and federal government to charge the same person without violating the Fifth Amendment because they are “separate sovereigns.”
But after the Supreme Court decided in June to hear an Alabama case that threatens to overturn the exception, U.S. District Judge Vince Chhabria decided to put the Garcia Zarate trial on hold “for a few months.”
“There is a serious possibility that the Supreme Court’s ruling in that case will require dismissal of the charges against Garcia-Zarate,” Chhabria wrote. “The ends of justice served by continuing the trial outweigh any interest in proceeding to trial immediately.”
The delay will save J. Tony Serra, the famed defense attorney representing Garcia Zarate, the trouble of appealing the conviction if the Supreme Court overturns the long-standing exception to double jeopardy and Garcia Zarate is found guilty.
“We’re waiting now for the Supreme Court to rule,” Serra told the San Francisco Examiner. “We’re keeping our fingers crossed, and by god this case might go away if they change the separate sovereigns doctrine.”
The Garcia Zarate trial was scheduled to begin Oct. 1. Chhabria found that the delay would not weaken the case against Garcia Zarate, impact public safety since Garcia Zarate is behind bars or “otherwise harm the public interest.”
The U.S. Attorney’s Office argued against the delay, according to Serra. A spokesperson for the office did not respond to a request for comment.
Garcia Zarate fired a bullet that ricocheted off Pier 14 and struck Steinle in the back on July 1, 2015. Jurors in San Francisco Superior Court later found him guilty of one count of being a felon in possession of a firearm while acquitting him of murder and lesser charges and assault with a semi-automatic firearm.
Defense attorneys had argued Garcia Zarate shot Steinle on accident.
Soon after, the U.S Attorney’s Office charged Garcia Zarate with being an alien in possession of a firearm and being a felon in possession of a firearm under federal law.
Similarly in the Supreme Court case of Terrance Gamble, both federal and Alabama prosecutors charged him with being a felon in possession of a firearm in connection with the same arrest in November 2015.
Gamble’s attorneys argued in their petition to the Supreme Court that “the exception flunks every test of constitutional interpretation.”
Legal experts say the exception is valuable, for instance, when the federal government can charge a hate crime case after the state has failed to convict.
Serra acknowledged that value, but said the use of the doctrine has “mushroomed into a form of federalism where if they don’t like something they will just take it from the state or charge it after.”
Serra has argued that the U.S. Attorney’s office filed the charges against Garcia Zarate in retaliation for the not guilty verdict, which the president called “disgraceful.”
Serra sought evidence to prove that the counts should be dismissed because of alleged collusion between federal prosecutors and San Francisco District Attorney’s Office, but the judge ruled against him.
The Supreme Court is not expected to hear the Gamble case until after November at the earliest.
In the meantime, the Garcia Zarate case will be at a standstill.
As for when the case does head to trial, Serra said the public should expect much the same as the last trial.
“The law is pretty similar and therefore I think they’re going to do a carbon copy of the state case,” Serra said of the prosecution. “I’m the one that has to come up with something new and inventive, saying that federal law is different than state law.”
“I will find some subtleties,” he said.
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