Trump wrong to criticize judge and jury

Two years ago, Kathryn Steinle was killed by Jose Garcia Zarate, an illegal immigrant who had been deported five times and had a history of drug convictions. On Nov. 30, Zarate was acquitted in Steinle’s murder trial. President Donald Trump called it “a disgraceful verdict.”

It’s a shocking and a horrible result for Steinle’s family, because there’s no doubt Zarate was the shooter. Was Trump right to criticize the verdict and, by implication, the jury?

Trump also took issue with the trial judge for not allowing in evidence about Zarate’s background: “The jury was not told the killer of Kate was a 7 time felon. The Schumer/Pelosi Democrats are so weak on Crime that they will pay a big price in the 2018 and 2020 Elections.” Was Trump right to criticize the judge?

First, let’s look at the entire picture. Steinle was walking with her father along a pier in San Francisco when she was struck by a bullet. According to the L.A. Times, Zarate fired a single shot. The bullet hit the concrete just 12 feet ahead of him, ricocheted and then traveled 78 feet before hitting Steinle. When interviewed by police, Zarate said he had found the gun, which had been stolen, wrapped in a rag and that it accidentally fired when he picked it up.

Zarate was tried for first degree murder, which is killing with premeditation or in conjunction with another crime, such as rape, and second degree murder, which is killing impulsively but without premeditation. He was also tried for involuntary manslaughter. The judge did not allow the prosecution to present evidence about Zarate’s immigration status, deportations or drug convictions. The jury was allowed to consider only whether Zarate intentionally, recklessly or negligently shot Steinle.

According to Fox News, the jury deliberated for 30 hours before acquitting Zarate on all three counts. He was found guilty only of unlawful possession of a firearm.

Let’s look at Trump’s comments in reverse order. Was the judge wrong for not allowing in evidence about Zarate’s past? No. The rules of evidence, which vary to some degree for each state, generally do not permit evidence of a defendant’s past bad acts to be admitted at trial so that the jury is not prejudiced against him. We want a defendant’s guilt to be based solely on the facts presented at trial, not on his past.

This isn’t a matter of being weak on crime, as Trump contends. This is a matter of a long-standing rule of evidence that serves everyone who is tried. This same evidentiary rule also applies to civil law cases. If Trump ever goes to trial, he too will benefit from this rule.

Was Trump right to criticize the jury? As long as human beings are involved in any endeavor, there will always be error, but let’s look closely at the process. I like the analysis of Mark O’Mara, the attorney who defended George Zimmerman in the Trayvon Martin case.

O’Mara was interviewed on Dec. 2 by CNN journalist Michael Smerconish and thinks the verdict was proper. That doesn’t mean he likes the verdict, because he doesn’t. Who could? But the jury did its job to the best of its ability. If fault is to be found, Mara finds fault with the district attorney’s office for overplaying its hand and charging Zarate with first degree murder when the facts weren’t there.

Jurors decide cases based on the written instructions they receive. Those instructions are agreed upon by the attorneys for both sides, and if they can’t agree, the final decision rests with the judge. Maybe a more narrow focus on the key facts and trying Zarate on fewer counts would have yielded a different result.

O’Mara takes issue with politicians who criticize the criminal justice system for political purposes and said Trump was wrong to call the verdict disgraceful. O’Mara also showed his displeasure with former president Barack Obama for having “chimed in twice” during the Zimmerman case. “It’s horribly improper and degrades the system for any politician … to come in and attack the system.”

If you haven’t sat through the entire trial and listened to all the testimony and viewed all the evidence, as jurors do, you’ve got no business second-guessing their verdict. Deciding a case is tough work. Talk to experienced trial lawyers, and you’ll hear them say that jurors work hard to arrive at the best decision.

Trump’s anger has more to do with his agenda on immigration reform and building a wall, but those are subjects separate and apart. Admittedly, Trump is right the immigration system failed by allowing Zarate to be here in the first place, but let’s not give Trump credit for recognizing what’s obvious.

[This post was published as an op-ed in the Columbus Dispatch on Dec. 8, 2017.]


Jack D’Aurora writes for


Originally published at Consider This by JD.