Murder in the Bay

Murder by the Bay

Last week we were all forced to watch a tragic miscarriage of justice.

Worse… we saw what might be the future of the politics of victimization yielding judicial results that are rooted in the grievances of groups, rather than the actions of individuals.

On July 1, 2015 Kathryn Steinle was walking with her father on Pier 14 in the Embarcadero in San Francisco.  At that time a criminal, with multiple felony convictions for possession and manufacturer of narcotics, was “playing with a gun” he claims he found in a towel under a park bench near where Kate Steinle and her father were walking.  Regardless of how he came into possession of the Sig Sauer P239 chambered in .40 S&W, we do know that it had been stolen from the vehicle of a park ranger two weeks earlier.

The suspect, in addition to being a felon, was also an illegal alien that had been deported multiple times back to Mexico.  His most recent arrest should have resulted in an automatic deportation… but, instead, he was released into San Francisco to take advantage of their “Sanctuary City policy”.  Essentially the City by the Bay had, and continues, to take the position that they will not aid nor assist federal law enforcement when it comes to the deportation of illegal aliens  (Excuse me… undocumented economic refugees).

The suspect initially claimed that he had decided to point the gun at a sea lion  (Seems like a reasonable course of action in the middle of the day in downtown San Francisco).  He never admitted to stealing the firearm, and there were no facts to suggest that he did not in fact simply “find” it beneath his bench. (While this fact pattern strains credulity the defendant is given the benefit of reasonable doubt when it comes to the initial crime of vehicular theft.  Since no facts were presented by the prosecution to suggest that he did in fact steal the gun… we must assume that he was innocent of that crime.)

The prosecution did claim that the defendant brought the gun with him to the pier… but whether he brought it or found it does not seem particularly dispositive as to criminal culpability regarding the events to follow.

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Regardless of the events leading up to the fateful moment, at some point the defendant was holding the firearm and possibly aiming it at a sea lion.  The gun then went off.  According to the prosecution this was a deliberate act by the defendant.  According to the defendant it just… you know… sort of happened.  Regardless, the round that left the muzzle ricocheted off the pavement and struck Kate Steinle in the torso.  Two hours later she was pronounced dead.

The defendant threw the weapon into the bay (where it was subsequently recovered).  About an hour later he was arrested.

Judge James Feng prohibited the jurors from hearing evidence as to the defendants immigration status.  In this, I think, he was correct.  The California rules of evidence prohibit the inclusion of evidence that is highly prejudicial that has no direct bearing of the case at bar.  (Evidence code § 352 “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing issues, or of misleading the jury).

A jury is assembled to adjudicate the case at bar, not to punish for prior bad acts nor to set public policy through the vehicle of a criminal trial.  They have the very limited authority to act as a trier of fact to determine exactly what actions actually occurred.   The defendant’s status as an illegal alien is disgusting, especially in light of the actions of San Francisco… but in no way does his alien status make it greater or less likely that the actions occurred in the manner described by the prosecution.

The judge also allowed the jury to hear the rules relating to the law of involuntary manslaughter.    California Penal Code §192 (a) describes manslaughter as the unlawful killing of a human being without malice.  § (b) further clarifies involuntary manslaughter by stating:  In the commission of an unlawful act, not amounting to a felony, or in the commission of a lawful act act which might produce death, in an unlawful manner, or without due caution and circumspection.  § (e) further states: ”Gross negligence,” as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290.

Yeah, I know… even in the light most favorable to the defendant, it looks like an involuntary manslaughter charge should have been applied by the jury.  Instead the jury acquitted him of all charges of unlawful killing, and only charged the defendant with being a prohibited person in possession of a firearm.


Some have argued that the judge erred in not allowing the jury to see and feel the Sig 239.  The defense had argued that the weapon does not have safeties and somehow the trigger pull is so light.. well… it is just bound to go off.  When the jury asked to see the gun during their deliberations the defense begged the judge not to allow it.

He agreed with the defense.

That, in my opinion, was an egregious error… but frankly, I’m not sure it would have made much of a difference.

The jury seems to have engaged in a form of “juror nullification”.  We don’t like to talk about this much at bar, but jurors cannot be compelled to find an issue of fact.  When the application of law to the facts will create what they consider to be an unjust result, they are free to find the defendant “not guilty”.  This essentially points the proverbial finger to the State, and says “Yeah, its pretty obvious what happened, but we think the law is unjust, and we are not going to allow this poor aggrieved victim of the State to be victimized further.”

It is abundantly clear that the “social justice warriors” of San Francisco found their way onto this jury.  They may or may not have known that the defendant was an illegal alien.  They clearly knew he was an immigrant of some sort… he had translators during the trial.  They were not about to let this poor victim of systemic racism and economic exploitation be further victimized by the white male power structure.  (Forget the fact that the prosecutor was a female, the victim was a female, and the judge was Asian.)

We are left to ponder… If the defendant had actually been successful in killing the sea lion, would the jury have been so lenient with him?

I spent my college years at the University of San Francisco… I am saddened, yet utterly unsurprised as to what has become of the ultimate experiment in collectivism and so called social justice.


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