Hey Patterico!

Yes?

I have some questions about the Kate Steinle murder case.

Go away. Ken White from Popehat has a patent on the cutesy device of having an annoying interlocutor introduce a lawsplainer.

Are you sure you don’t mean a copyright? I thought a patent applied to —

I said GO AWAY.

Fine. Ken is more fun than you anyway.

I’m seeing a lot of confusion online about homicide laws in California and how they might have applied to the case of Jose Ines Garcia Zarate, who was acquitted of murdering Kate Steinle. I’m not an expert on the facts of the Zarate murder case, but I know a little something about the law of murder, and I thought it might be helpful to the debate to put some of the concepts into basic English. (As always, I speak as a private citizen, and not for my office.)

This is hardly a comprehensive discussion of the law of homicide. It’s just an effort to clear up some confusion as it relates to this case. Also: I am not a criminal defense lawyer, and I am not your lawyer. This is not legal advice on how to kill someone and get away with it, or indeed on any topic at all. It’s just a discussion of legal principles as applied to a case of public interest.

Probably the first thing to explain here is that this was not a “felony murder” case. The term “felony murder” does not mean “any killing that occurs when the defendant is committing any felony.” So the fact that Zarate was committing the crime of “felon in possession of a firearm” does not make this homicide a murder, simply because it occurred in the course of that felony.

I could spend a lot of time explaining the ins and outs of felony murder, but that would be pointless because, again, this is not a felony murder case. Plus, felony murder law is very complicated, with a lot of subtleties and rules. All you need to know is that it has nothing to do with this case.

I see some people complaining about prosecutors “charging first-degree murder” in the Zarate case. In California, prosecutors don’t “charge” first-degree or second-degree murder. The charging document reads simply “murder.” The judge will instruct on first-degree and/or second-degree murder and/or lesser included offenses of manslaughter, based on the evidence presented in the case, and how that evidence fits the law. None of these lesser included offenses have to be charged for the jury to consider them.

When I try a murder case (and I have tried about thirty-five of them), with rare exceptions (like a felony-murder case, which this is not; see above) I typically start by explaining what second-degree murder is. Murder does not necessarily require an intent to kill. It is an unlawful killing of a human being with “malice aforethought.” This state of mind could be intent to kill, but it could also be intentionally committing an act, the natural and probable consequence of which is dangerous to human life, with knowledge that the act is dangerous to human life, and with conscious disregard for human life.

That sounds like a lot of legal mumbo-jumbo, so let’s make it simple: if I stab you in the neck, or point a loaded gun at you and deliberately pull the trigger, I know I could easily kill you. But what if I’m not trying to kill you? What if I just don’t care? Too bad. It’s still murder: namely, murder of the second degree.

You need something extra to get to first-degree murder. Usually, this is accomplished by proof that the murder was “willful, deliberate, and premeditated.” Here, unlike second-degree murder, you do have to have an intent to kill — “I don’t care if the victim dies” doesn’t cut it. You also have to make the decision to kill before acting, and do some amount of weighing the decision beforehand.

If Zarate had pointed a gun at Kate Steinle and willfully pulled the trigger, knowing that act could kill her, he would have been guilty of at least second-degree murder. If he had intended to kill her and acted with premeditation and deliberation, he would have been guilty of first-degree murder. The jury clearly didn’t buy either scenario, which (as Sarah Rumpf explained earlier) is hardly shocking, given that the single fatal shot ricocheted off of the ground, and the interview of the defendant did not clearly establish that he pulled the trigger (as opposed to discharging the gun accidentally).

But what about this idea that he was negligent? This is what seems to outrage people: surely this was at least criminally negligent homicide!

Here’s the thing, though: “criminally negligent homicide” does not mean “the defendant was negligent, and hey, somebody died which makes it a crime, therefore, he was criminally negligent.” That’s not how it works. There are definitions that apply.

In California, when you talk about “criminally negligent homicide” you’re talking about a crime called “involuntary manslaughter.” It’s the crime that Michael Jackson’s doctor was charged with, for administering a fatal dose of propofol. The crime requires that the defendant do a crime, or a lawful act in an unlawful manner, that caused someone’s death, with criminal negligence.

So what is criminal negligence in California? The instructions that a judge reads to jurors say, in part:

Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;

AND

2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

I have added some hopefully helpful bold type here. But hopefully the distinction is clear. On one hand, you have ordinary carelessness or an accident. This is not criminal. On the other hand, you have recklessness that is so different from usual care that the person is essentially indifferent to human life. That’s what rises to the level of criminal negligence. Put another way: criminal negligence is not just any negligence that results in death. It’s a reasonably high standard, as befits a criminal statute that carries prison time as a consequence for its violation.

Merely picking up a gun and having it accidentally go off is unlikely to be found to be criminally negligent. Waving it around or brandishing it is closer to the type of behavior that this crime targets.

Again, the jury looked at the factors in the Zarate case, including the fact that the weapon involved is prone to accidental discharge, the ricochet off the ground, and the ambiguous nature of the admissions made in Zarate’s interview. Based on those factors and others, they decided that Zarate’s actions were not so egregious to amount to indifference to human life. They may have thought it was an accident, and/or that he was careless but not reckless.

Was that irrational? I didn’t see the trial, but based on the publicly known facts, I can’t say that it necessarily was. This is not like the OJ case, where evidence of murder is overwhelming and clear. This was a tough case.

The other complaint I see is criticism of the prosecutors for overreaching. With a single shot bouncing off the ground, premeditation is a stretch, and they may have cost themselves some credibility with an overly aggressive theory of premeditation. But again, I didn’t see the trial, and I know how easy it is to second-guess prosecutorial tactics from the outside. My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.

UPDATE: If you’re looking for a ray of hope from the criminal justice system, this may be it:

It is a federal felony, up to 10 yrs’ imprisonment, to be an illegal alien in possession of firearm (18 USC secs.922(g), 924). DOJ should indict Zarate if haven’t already. Sentence consecutive to today’s state gun conviction could keep him in prison 13 yrs or so.

— Andy McCarthy (@AndrewCMcCarthy) December 1, 2017

[Disclaimer]