Let’s say that you sit down in a crowded public area and spot a rag under the bench. You pick it up and find a gun in it. You don’t intend to shoot anyone, but for kicks, you point it at an animal. The gun goes off, and a bullet strikes and kills a young woman. That was the scenario depicted by the defense, not the prosecution, in the trial of Jose Ines Garcia Zarate, the illegal alien acquitted last week of all but a weapons-possession charge in the July 2015 killing of 32-year-old Kate Steinle on a San Francisco pier—a killing that figured prominently in Donald Trump’s 2016 presidential campaign.

Understanding the facts and legal claims in the case has been difficult because prosecutors overreached in charging Garcia Zarate, seeking a first-degree murder conviction on dubious evidence (almost certainly less than the required proof beyond a reasonable doubt) that he had intentionally targeted Steinle. Prosecutors compounded this error by focusing their closing argument on the intentional-murder charge, rather than on the “lesser included offenses” of second-degree murder and involuntary manslaughter. Thus, much of the discussion of the case has centered on the prosecution’s questionable claims that Garcia Zarate had not found the gun just before it fired, as he claimed, but had brought it with him to the pier, picked out Steinle as his victim, and deliberately pulled the trigger. But Garcia Zapate’s own lawyers, in defending against the first-degree murder charge, established an obvious case of at least involuntary manslaughter, and possibly second-degree murder.

The form of second-degree murder at issue is commonly known as “depraved indifference” murder, and in California as “abandoned and malignant heart” or “depraved heart” murder. It requires that a defendant, while not necessarily intending to kill anyone, nonetheless does so by acting in a reckless manner that a reasonable person would have known posed a grave risk to human life—by, say, walking down a busy street randomly shooting a gun, to take an example every law student knows.

The distinction between involuntary manslaughter and depraved-indifference murder often turns on subtle and subjective differences in the degree of recklessness and risk involved. A good illustration is that if you shoot randomly at a freight train and kill a hobo, it’s involuntary manslaughter; if you shoot randomly at a passenger train and kill a passenger, it’s second-degree murder. (In California, a finding of second-degree murder may also require a showing that the defendant recognized the risk, though apparently this can be inferred from the magnitude of the risk. So, as in other states, the distinction comes down to the degree of recklessness.)

Garcia Zapate’s own admitted conduct fit the standard for one or both of these crimes. By his own account, he picked up a strange-looking object in a crowded public place and found a gun within it, which a reasonable person would assume could be loaded and ready to fire. Nonetheless, he continued to handle it, aiming it at a seal or sea lion in the bay, he told police. The defense argued that the gun went off “accidentally,” suggesting that the gun fired by itself, without Garcia Zapate even touching, much less pulling, the trigger. What they seem to mean, though, is that he didn’t intend to pull it while fingering it. Garcia Zapate acknowledged pointing the gun; the heart of the defense’s claim about the “accidental” firing was that the model, a Sig Sauer P239, allegedly has a “hair trigger.” In other words, someone holding and pointing it could fire it and kill someone by accident. That’s good enough to beat the intentional-murder rap, but it’s the essence of involuntary manslaughter, if not depraved-heart murder. Further, even if this had been a genuinely spontaneous firing, without Garcia Zapate ever touching the trigger, the act of picking up and handling an abandoned gun in a busy public square is clearly reckless. Maybe Garcia Zapate didn’t get away with first-degree murder, but he did get away with second-degree murder or manslaughter.

The only plausible explanation of the Steinle verdict is that it was pure jury nullification. Most people in Garcia Zapate’s position would have been convicted, but not a repeatedly deported illegal alien in San Francisco, tried before a largely millennial jury including tech workers and Ph.D.s, whose defense lawyers saw the case as an opportunity to “vindicate the rights of immigrants” and strike a blow against Donald Trump, “hate,” and “division.”

Without question, prosecutors erred in stressing the intentional-murder charge. But the jury understood the lesser charges, too, and knew what it was doing in acquitting on them: giving a middle finger to Trump and his “deplorable” supporters in flyover country, with the Steinle family as collateral damage.

Photo by Michael Macor-Pool/Getty Images


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