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Blame A Politicized Prosecution For Kate Steinle Killer’s Verdict


In the aftermath of the jury verdict in the Kate Steinle case, America expressed outrage, calling the verdict a miscarriage of justice. Fox News’ Judge Jeanine Pirro devoted her opening monologue to the verdict, saying Steinle’s life was “worth nothing on the political market.” Nearly every other talking head bandwagoned and fueled the anger that an illegal immigrant—the confessed shooter—would be found not guilty of the murder of a beautiful young American citizen.

Many commentators blamed a “liberal” San Francisco jury and even went so far as to make wild claims that a white American citizen would have been found guilty. Reading the commentary, one would think the jury was either completely stupid or solely politically motivated.

Rep. Todd Rokita (R-IN) is now calling for prison time and punishments for elected officials who vote for or support sanctuary cities or shelter illegal immigrant criminals, through a bill introduced in Congress, “Stopping Lawless Actions of Politicians Act” (the apt acronym “SLAP Act”), and Sen. Ted Cruz (R-TX) is maintaining his call to support Kate’s Law.

It’s understandable to be frustrated with the lack of enforcement on immigration policy and Attorney General Jeff Sessions had a point when he said in a statement that, but for his five-time deportation and continual reentry, shooter Jose Garcia Zarate would not have been on the San Fransisco Pier to begin with. Had the immigration system worked effectively to secure our borders, Steinle would not have been shot.

It seemed like an open and shut case to the public. We are supposed to be secure! Unfortunately, that’s exactly what the prosecutors banked on. In the criminal justice world, political agendas and facts irrelevant to the narrow legal question before the jury legally cannot (and ethically should not) be introduced to the jury—regardless of how persuasive the political agenda, how horrible the facts, or how much we desire “justice to be served.”

This Jury Couldn’t Consider Immigration, For Good Reason

This is precisely the point of our judicial branch. It is designed to be the non-political and non-emotional branch of government. This case was not about illegal immigration and sanctuary cities. This case involved someone whose collateral issues fit into those two categories, and that’s what the media focused on. Thus, that’s what the case became in the court of public opinion, but immigration issues were not what this jury was authorized or empowered with determining.

The very narrow question before the jury was to determine what happened on the pier — nothing before, nothing after. Did Zarate intentionally shoot Steinle, or was the shooting an accident? That was the sole and only question, regardless of whether Zarate was legally on the pier or not, or any other legal or personal characteristic about him.

This may seem counterintuitive or even unfair to excise Zarate’s immigration status from the case, but fairness requires the separation of powers and a court of justice that contemplates only the relevant facts to the crime charge—nothing irrelevant and especially nothing political.

Why? Because juries are not legislators. They are fact-finders. They listen to and observe the evidence presented in testimony and physical evidence and determine whether the prosecutors have proven the charges alleged beyond all reasonable doubt. It’s not even just what the jury decides to believe or what “probably” happened. The burden of proof is high in a criminal case—the highest in our system of law—and prosecutors bear the responsibility to prove their case. In other words, the prosecutor here had to show beyond all reasonable doubt that Zarate intentionally fired the gun and intended to kill Steinle.

Set aside for a moment the fact that Zarate is an illegal immigrant or why he was on the pier. Set aside the frustration, the political questions about sanctuary cities, the insecurity of the border, and the desire to tear your hair out that Congress is stalling on this. Consider if Zarate had been here legally. If he was an average guy walking down the pier that day, nothing particularly politically persuasive, and this happened, we would still be horrified that an innocent young woman was killed, but would we have this level of outrage and political focus? I seriously doubt it.

This why it is important that the facts the jury must contemplate must not be unduly influenced by the political cloud surrounding the facts. Zarate’s illegal status does not change the answer to the ultimate question: was the shooting intentional or an accident?

Some Prosecutors Politicize to Leverage a Weak Case

Unfortunately, prosecutors have increasingly tried cases banking on their political agenda or prominence, or both. Add the media’s agenda and political frenzy, and cases get completely distorted for the average American. We confuse justice in the criminal courtroom with our political agenda, and prosecutors hope that the jury won’t see their sleight of hand.

This type of prosecutorial abuse of discretion is becoming more common, especially as prosecutors’ offices and elected district attorneys use their job as a platform toward a political office, such as Congress. No campaign should be furthered by criminal prosecutions and political soundbites.

But this happens regularly. Any criminal defense attorney (many of whom are former prosecutors, including myself) will tell you how often a criminal defendant is over-charged or prosecutions are politically motivated. They may not receive the same kind of prominence as the Steinle case, but the people affected by these cases are defendants and victims.

If the prosecutors in the Steinle case had not overplayed their hand and had charged only what they could actually prove absent a politically motivated jury, they may indeed have secured a conviction beyond possession of an illegal weapon. Many people wondered why Zarate wasn’t convicted of a lesser offense, such as manslaughter.

But when the prosecutor’s theory of the case was that Zarate intentionally pulled the trigger to intentionally kill Steinle, it basically boxed the jury into an all or nothing situation. This is common in criminal courtrooms, and juries must believe in the credibility of the prosecution’s theory of the case and match it with the facts, testimony, and evidence—and not just probably, but beyond all reasonable doubt.

It’s entirely unfair and unjust to both sides when the accused is over-charged and potentially wrongfully convicted (and yes, it’s still wrongful when the conviction does not match the facts of what happened) or when the accused is over-charged and potentially not convicted of what actually happened. Then the victim is left feeling like the system let him or her down, as I’m sure Steinle’s family feels. This approach serves no one, including justice.

Sometimes It’s about Notoriety and Power, Not Justice

This kind of blatant strong-arming by prosecutors also happens regularly to coerce plea agreements, prior to trial. Many prosecutors’ offices intentionally over-charge (either charge a higher-level crime or add multiple counts or both) to push the accused to accept a “lesser” plea agreement, thinking they’re getting a good deal or just because they are terrified of the abusive charges.

Not all prosecutors charge this way, but within the justice reform world, abuse of prosecutorial discretion is one of the key changes needed to prevent over-incarceration, unjust convictions, over-criminalization, and frankly even ensure justice for victims.

Abuse of prosecutorial discretion is one of the key changes needed to prevent over-incarceration, unjust convictions, and over-criminalization.

One of the main reasons I left being a career prosecutor to be a defender was because prosecutors’ offices are too heavily influenced by political considerations, which is absolutely wrong. I know some excellent prosecutors, but I also know the tendency of political influence and strong-arming in over-charging. I am a defense attorney because preserving and protecting the fundamental fairness of the justice system is incredibly important to the integrity of our judicial system.

The Steinle case is fraught with multi-layered problems and elements that do need solving within the correct forum. For immigration issues, that forum is Congress. Within the context of the jury and the judicial system, we must conserve the fundamental difference between politics and fact-finding. Justice does not have a political agenda. Facts don’t have a political agenda. Due process does not have a political agenda.

This case should highlight the importance of immigration reform, but it should also show Americans, especially conservatives, why justice must continue to be in the business of conserving the proper role of our juries and holding prosecutors accountable when they attempt to improperly politicize their cases.

We the people must hold firm to our separation of powers and never seek to politicize our system of justice, otherwise we risk losing our fundamental freedoms, including our constitutionally protect right to due process.