The undocumented immigrant facing a second round of charges in the killing of Kate Steinle could see his federal case dismissed depending on a U.S. Supreme Court decision related to double jeopardy.
U.S. District Judge Vince Chhabria on Wednesday scheduled a date for attorneys to discuss whether the upcoming decision would have an impact on the case against Jose Ines Garcia Zarate, the Mexican national who fell into the national spotlight after shooting Steinle on a San Francisco pier July 1, 2015.
The Supreme Court agreed on June 28 to hear an Alabama case challenging an exception to the Constitution’s rule that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The exception allows the state and federal government to charge a person for the same crime as “separate sovereigns.”
The Supreme Court case centers around Terance Gamble, a man who both Alabama and the U.S. charged with being a felon in possession of a firearm as a result of the same arrest in November 2015.
In the case of Garcia Zarate, the federal government charged him with being a felon in possession of a firearm and being an alien in possession of a firearm last December, just days after jurors at the state level had already convicted him of being a felon in possession of a firearm.
If the Supreme Court rules against the exception, University of San Francisco professor Bill Hing said defense attorneys could make an argument to dismiss the federal gun charges based on double jeopardy.
But Hing said that outcome is unlikely at the Supreme Court as it would “wreak havoc for the criminal justice system.”
“It’s an important rule for the good guys and the bad guys,” Hing said, noting that federal prosecutors could for example charge a person with a hate crime who has escaped conviction at the state level.
Hing offered the investigation into Russia meddling in the U.S. election as another example, as the state could charge someone who President Donald Trump decided to pardon at the federal level.
“I may not like it for [Garcia] Zarate,” Hing said, “But I can’t pick and choose.”
Hing said the Supreme Court agreeing to hear the case could also be “bad news” for Garcia Zarate, since the court siding with the exception would only reinforce the charges against him.
“I don’t see a way out of him facing these charges,” Hing said.
But Matt Gonzalez, chief attorney for the Public Defender’s Office, who successfully defended Garcia Zarate against murder and lesser charges in state court, argued that federal and state authorities are too entwined to allow for multiple prosecutions for the same crime.
“Given the extent to which resources and information are shared by so-called ‘separate sovereigns,’” Gonzalez said, “prohibiting multiple prosecutions would be the only way to make the double jeopardy clause truly meaningful.”
Tony Serra and Maria Belyi, federal defense attorneys for Garcia Zarate, have already made a different argument over double jeopardy concerns to dismiss either one of the two gun charges.
The argument hinged on alleged collusion between federal authorities and the District Attorney’s Office, as federal attorneys sat with the state prosecutor during the murder trial.
“He’s being prosecuted in federal court for the same offense because he was acquitted of the murder charges and that angered state and federal prosecutors,” Gonzalez said. “That’s not a very good way to decide who should be prosecuted.”
The attorneys argued if the federal government had already assisted with the prosecution in state court, then charging him again at the federal level would amount to double jeopardy.
But Chhabria, the judge, denied the motion to dismiss based on double jeopardy in May.
Belyi and Serra did not respond to a request for comment. A spokesperson for the U.S. Attorney’s Office did not respond to a request for comment.
The attorneys are expected to discuss the impacts of the upcoming Supreme Court decision Aug. 23. The Supreme Court is not scheduled to hear the case until after November at the earliest.
No matter the outcome, Gonzalez said, “I predict Garcia Zarate will win his case.”
“That is the only just outcome,” he said.