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Juror in Kate Steinle case ponders different verdict on gun charge as defense seeks new trial

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Jose Ines Garcia Zarate’s defense team led by Matt Gonzalez (second left) exits the courtroom after filing a motion for a new trial in the Hall of Justice in San Francisco, Calif. Thursday, December 14, 2017. (Jessica Christian/S.F. Examiner)

Attorneys for the undocumented immigrant acquitted of murder and manslaughter in the death of Kate Steinle filed a motion Thursday seeking a new trial on the single conviction jurors returned for illegal gun possession.

Matt Gonzalez, an attorney for Jose Ines Garcia Zarate, is seeking a new trial for his client in San Francisco Superior Court after jurors found him guilty of being a felon in possession of a firearm Nov. 30. Gonzalez claims the judge who presided over the trial improperly instructed jurors on the charge.

SEE RELATED: Attorneys for undocumented immigrant to appeal lone conviction in Kate Steinle trial

His argument for a new trial prompted a juror who spoke with the San Francisco Examiner on Thursday to say of the verdict, “Maybe the outcome would be different.” The juror agreed to the interview under the condition of anonymity out of fear of retaliation.

Whether the conviction stands could have an impact on the federal case against Garcia Zarate for the shooting at Pier 14 on July 1, 2015. The U.S. Attorney’s Office charged Garcia Zarate with being a felon in possession of a firearm and being an undocumented immigrant in possession of a firearm on Dec. 5.

Federal prosecutors filed the charges following outcry from President Donald Trump, U.S. Attorney General Jeff Sessions and conservative media over the verdict.

“It’s obvious that the federal government is upset that he was found not guilty, so they immediately brought charges,” Gonzalez said. “If this conviction is either set aside here, or if we prevail on appeal, it will really raise the question, are you bringing charges against him in this other venue for any other reason than the fact you’re upset with the outcome? That’s not the way it should be done.”

According to Gonzalez, the jury would have acquitted Garcia Zarate of the gun charge had Judge Samuel K. Feng instructed jurors on momentary possession, a jury instruction that says it is not unlawful for a felon to hold a gun momentarily if the felon is in the process of discarding the weapon.

“A properly instructed jury, whether it’s in state court or in federal court, is going to find Mr. Garcia Zarate not guilty of this offense,” Gonzalez said.

The juror who spoke with the Examiner said the jury would have had a “big discussion” on momentary possession.

“Justice was done under the circumstances,” said the juror, a 56-year-old San Francisco resident. “If we knew about the momentary possession, maybe the outcome would be different.”

Gonzalez argued during the trial that Garcia Zarate found a gun wrapped in a rag at Pier 14. Garcia Zarate did not know the object was a gun until it discharged a bullet that ricocheted off the ground and struck Steinle in the lower back. Garcia Zarate then immediately threw the weapon off the pier to stop it from firing.

Gonzalez said the jury “believed he picked up an object, he didn’t know what it was, the gun fired, but at that moment he knew it was a gun. As he threw it, he had this very momentary possession that they felt compelled to convict him of.”

“If that’s what happened,” Gonzalez continued, “then it would have assisted them to know that there is a defense to that kind of possession.”

Jurors had questions about the legal concept of possession while deliberating on the charge. According to court documents, the jury asked Feng for the definition of possession as well as if there is a length of time Garcia Zarate had to have held the gun for him to be guilty of the charge.

Feng did not instruct them on momentary possession and said there are no time requirements for holding the gun.

“As soon as he took it and he knew it was a gun, then he’s a felon holding a firearm,” the juror said, explaining the guilty verdict. “The judge never said to us we could consider momentary possession.”

Gonzalez said he asked Feng to instruct on momentary possession but the judge refused.

In his motion for a new trial Thursday, Gonzalez raised the momentary possession issue alongside two other concerns.

Gonzalez claimed Feng should have instructed the jury on mistake of fact, which would have allowed Gonzalez to argue it is not unlawful for Garcia Zarate to have held the gun since he did not know what it was.

Gonzalez also claimed Feng should have allowed him to introduce as evidence a jailhouse interview Garcia Zarate had with a television reporter where he further elaborated on how the shooting was an accident. That interview contradicts parts of a police interrogation the prosecution played for jurors.

Alex Bastian, a spokesperson for the District Attorney’s Office, said, “We will review the basis for the motion and respond in court.”

If Feng rules against the motion for a new trial, Gonzalez is prepared to appeal the conviction.

Feng is expected to rule on the motion Jan. 5. The court is also expected to sentence Garcia Zarate at that time. However, Gonzalez said Garcia Zarate already has more credit for time served in County Jail than the maximum sentence for the gun possession conviction.

The next legal step for Garcia Zarate after sentencing and a potential appeal will be his arraignment in federal court.

Editor’s note: This story has been updated with additional information.

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