Proving Abandoned and Malignant Heart Murder: The Zarate Case

The gunshot death of Kathryn Steinle on San Francisco’s Pier 14 in July, 2015, became a chief exhibit in Candidate Trump’s “bad hombre” attacks against sanctuary cities. The claim that San Francisco would be a safer place were it not a sanctuary city is almost certainly wrong as is the claim that unlawful immigrants have a higher percentage of bad hombres than the general population. I will not, however, further discuss those well discussed issues.

My focus will be on the murder trial now under way and in particular on proof of the element of “malice aforethought” for second degree murder in California. (The charge is not first degree murder because it is not alleged that it met any of the special requirements of that offense “. . . a weapon of mass destruction, . . . poison, . . . torture,  . . . arson, rape, carjacking, …” California Penal Code Sec. 189.) The question in my mind is whether there is any way that the prosecution can prove second degree murder beyond a reasonable doubt and whether this offense should even have been charged.

It is undisputed that the weapon that fired that fatal shot was set off, one way or another, by defendant Garcia Zarate. The prosecution’s opening statement and the subsequent forensic testimony has it that the bullet hit the pavement 12 feet from Zarate, that it ricocheted from the pavement significantly flattened, traveled an additional 78 feet and struck Steinle in the back. According to the prosecution, no one but Zarate saw the gun go off.

Abandoned and Malignant Heart Murder

In California any murder requires “malice aforethought.” This is one of the law’s most unfortunate bits of terminology.  “Malice aforethought” can be found when the perpetrator has malice towards none and gave the act no consideration in advance at all. It can arise from the impulse of the instant – so long as it is an impulse intentionally acted upon. So the key is neither ill will nor prior thought but intent. The statute reads: 

Such malice may be express or implied.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

At issue in the Zarate case is implied malice of the “abandoned and malignant heart” sort. Here is the language from the California Criminal Jury Instructions that will presumably be read to the jury at the end of the case:

The defendant acted with implied malice if:

1. He intentionally committed an act;

2. The natural and probable consequences of the act were                         dangerous to human life;

3. At the time he acted, knew his act was dangerous to human life;

    AND

4. He deliberately acted with conscious disregard for human life.

The first clause is the chief issue between prosecution and defense – whether the defendant intentionally pulled the trigger or the gun went off by accident. I will hold that for now to address the other elements of an abandoned and malignant heart prosecution. 

Ricochet Danger

A pistol going off in a public place clearly poses some danger to human life. The natural consequence is that a bullet is set loose that may hit someone. Perhaps the chances of a random bullet’s hitting someone in this particular setting was less than 1%, but that is already enough to hit our ordinary measure of dangerousness. No gunshot on Pier 14 is entirely safe.

The second clause, however, requires more than the possibility of harm. There must be probable consequences of the act that are dangerous to human life. Moreover, although the defense theory is that the shot was random, the prosecution’s theory is that it was aimed.  Was the probable consequence of the shot as aimed a danger to human life?  Where the shot was aimed, if it was aimed, was at the pier deck 12 feet away from Zarate.  In hindsight we know that this posed a danger to a human being 90 feet away from where the gun fired.  

Firing into the ground is not usually extremely dangerous. When a bullet hits a surface it may penetrate, it may disintegrate, it may ricochet at substantially decreased velocity, or it may ricochet at only moderately diminished velocity. The probabilities of a dangerous ricochet go up the harder and smoother the surface, the lower the impact angle, and the lower, within limits, the velocity of the bullet at impact. The specific materials of the bullet are also relevant in complex ways. (Very soft deforms to a blob; very hard may penetrate or may splinter.) Here all the factors favorable for a ricochet with dangerous energy came together. That there would be a dangerous ricochet here was objectively probable. If we fired that gun many times in pretty close to the way it fired on that day, we would get a ricochet of significant velocity on at least a good percentage of the trials. 

On how many of those trials the ricochet would strike a person would depend upon the number of persons other than Steinle, her father, and their friend who were on the pier in the ricochet cone of the shot, which cone would depend, in turn, upon how close to the actual angle of fire we set as the parameter for our test. I am not actually suggesting that either prosecution or defense will, or should, conduct such a test. It is only a thought experiment for getting clear on the probabilities of dangerousness to human life. Here, if the number of times the ricochet would cause death or serious injury to a person on the pier is greater than one in a thousand, we arguably have natural and probable consequences dangerous to human life. I see no reason to think the prosecution will not be able to persuade the jury on this second clause of the instruction.

Defendant’s Knowledge

The third clause of the instruction is a matter of what Zarate knew at the time the gun went off, that is the time he fired it intentionally on the prosecution’s theory. Did he know that firing at the pier deck was dangerous to human life? The knowledge of the physics of ricochets is not universal, as is shown well enough by the number of people killed or injured by accidental ricochets each year, often the shooter or a family member.  Zarate might have thought, wrongly, that the bullet would penetrate the deck or harmlessly disintegrate. That he was not thinking about consequences at all seems an even more likely possibility. Of course he should have been thinking about consequences. He was at least negligent if he fired intentionally. But did he know how dangerous was what he did?  

He didn’t know it was unless he believed it was, and he didn’t believe it was unless the question of dangerousness was present to his mind, at least in some wispy way.  So the prosecution must prove that he thought about dangerousness and that his understanding of ricochets was sufficiently accurate and sufficiently well justified that he knew what he did was pretty dangerous. The prosecution will try to work a bit of a finesse here. It will not want the jurors thinking in general about good and bad evidence for what is in another person’s mind.  Certainly it will not want the jury to question Zarat’s knowledge of ricochets. Instead the prosecution will suggest from beginning to end, “Hey, anybody would know this is dangerous,” and it will blur the distinctions among “would,” "should," and "did."

Special Nature of the Abandoned and Malignant Heart

This ploy is made more difficult for the prosecution by the fourth clause of the jury instruction. This clause is intended to capture the chief difference between reckless manslaughter and abandoned and malignant heart murder. Abandoned and malignant heart murder is supposed to be the moral equivalent of killing someone intentionally.  So, the mens rea requirement, the culpable state of mind, is going to have to be really culpable. The defendant doesn’t have to deliberate to commit an intentional murder, but the fourth clause of the implied malice aforethought instruction tells the jury that the defendant must have deliberately acted with conscious disregard. “I consider the fact that what I am doing is very dangerous to human life. I look that right in the face, and I say, I don’t give  a . . . .” 

Here a footnote-level interpolation: New York’s Court of Appeals has held that the mens rea of its version of this offense, “depraved indifference murder,” is no different than the mens rea of reckless manslaughter.  Only the objective circumstances are different – greater risk, more danger. This is inconsistent with the idea that depraved indifference murder is always the moral equivalent of intentional murder and never the moral equivalent of reckless manslaughter. The defendant might well be unaware of the objective circumstances that promoted his action up to the level of murder. In any event, it would be hard for California courts to adopt the New York position. “Depraved indifference” certainly sounds as if it is a matter of mens rea, but “abandoned and malignant heart” really shouts out “mens rea!”  That the key instruction is a matter of “deliberate” and “conscious disregard,” would seem to cement the conclusion that the mens rea here is a matter of a particularly egregious intentional putting aside of a known extreme risk to human life.

A traditional example of abandoned and malignant heart murder was shooting at a passenger train. A similar example I often give in lecture is of a pigeon hater who shoots down from her tenth floor apartment aiming each time at a particular pigeon in the park below, the pigeons being intermixed with a dense crowd of human pigeon feeders. When she misses and kills a person, she is chargeable with “abandoned and malignant heart murder.” She is so chargeable even if she hadn’t the least intention to injure a person and feels terrible about it. She must, however, at least outside of New York, have consciously considered that there was an extreme risk that her shot could go slightly astray and kill a pigeon feeder, and yet decided to fire away.  

So the prosecution must prove more than that what Zarate did was objectively dangerous, and more than that he was reckless. It must give the jury sufficient evidence that Zarate entertained the question of the dangerousness of his action, understood that it was very dangerous indeed, which would require some consideration and understanding of ricochets, and decided to fire despite known extreme danger.  It is difficult to see what evidence the prosecution can put on to establish this point short of a fairly detailed state of mind confession by Zarate.  The portions of Zarate’s recorded interrogation played in court do not appear to have accomplished this. More on that interrogation shortly.

The strategy of the prosecution seems to be to avoid the mens rea requirements of abandoned and malignant heart murder, claiming in a news conference that the (only) issue in the case is whether Zarate intentionally fired the pistol. Implicitly the theory is that anyone who intentionally aimed a gun at the pier deck 12 feet away in a more or less direct line towards people would have understood that the ricochet probabilities were high and the danger to life very great and after considering this deliberately acted in a way that could only be the product of an abandoned and malignant heart. 

You may have heard that a prosecutor said that Zarate aimed at people – not just towards people but at them. If they had evidence to establish this, then the fact that the bullet struck the ground 78 feet away from Steinle would lose relevance as would the whole issue of ricochet knowledge. However, if the prosecution could prove that Zarate aimed at Steinle or even at a knot of people, why didn’t it charge intentional murder? The prosecutors put on no eye witnesses to the gun’s going off.  The most that the evidence at trial seems to give the prosecution on this issue is that the barrel of the pistol must have pointed at least roughly in the direction of Steinle while in Zarate's hands because that is where the bullet ended up after the ricochet. That Zarate pointed it is not in the evidence. 

So prosecutors, even on their theory that he pulled the trigger intentionally, should have faced head on the difficult issues of Zarate’s state of mind and knowledge. So far as the reporting has it, they didn’t. I submit, then, that the judge should have granted a defense motion at the end of the prosecution case to dismiss the murder charge. The prosecution did not put in evidence sufficient to elevate reckless manslaughter to abandoned and malignant heart murder.

Intentional Firing

Pursuant to the first clause of the implied malice aforethought jury instruction, the prosecution is going to have to prove its contention that Zarate intentionally fired the pistol. If he did fire intentionally, the prosecution doesn’t automatically win, but if he didn’t, the prosecution automatically loses on second degree murder.

There are several ways that the prosecution might have attempted to prove their key contention of intentional firing: photo, video, eye witnesses, expert testimony, or confession. There are no photos at or very near the time the gun fired and the distant surveillance video is useless for this purpose. No witnesses to the firing of the pistol have testified. The prosecution had intimated that there would be eye witnesses who would testify that the saw a pistol in Zarate’s hand. That would have been very important evidence. Unless, however, the news reports are utterly incompetent, no such testimony was offered. 

Now for confession and the recording played in court of portions of Zarate’s interrogation. The interrogation was a mess – as is not unusual for statements extracted over long hours of uninterrupted questioning. It also featured, as is common in this country but unlawful in many others, intentional lies by the police interrogators about evidence incriminating the defendant. Data shows that false confessions under these conditions are right up there with mistaken single witness identifications in convicting innocent people. 

Zarate in the recording contradicts himself repeatedly. He says that he stepped on the gun and it went off accidentally, and that he was unwrapping it from a cloth when it went off accidentally. But immediately after his claims of accidental firing, he agrees with his interrogator that he fired the gun. Attempting to sum up interrogator asks Zarate if he shot a woman who was five feet away from him. Zarate agrees. Steinle, however, was more than 90 feet away from Zarate, not five. He also says at one point that he was shooting at fish or a seal. What he says repeatedly is that the gun went off one way or another accidentally, and that he threw it into the water to stop it from firing again. 

It seems not unlikely as a result of this recording and his courtroom behavior that the jury has developed a strong distrust and dislike of Zarate. If so they might well seize on very select portions of the recording in concluding against him on the intentionality issue. 

Expert Testimony

With ideal jurors, whether or not the pistol was fired intentionally should come down to expert testimony. The prosecution’s expert has opined, after testing the Sig Sauer P239 pistol in question, that it could only be fired by a finger intentionally pulling the trigger. The pistol is double action, which means that if the pistol is un-cocked it will only fired by a long pull of the trigger of considerable pressure. If the pistol is pre-cocked, however, the pull is shorter and requires less pressure. As the prosecution has no evidence on the question whether or not the pistol was cocked, the expert’s opinion was that even in the cocked state the pistol could only have been fired by an intentional trigger pull.

The defense has promised its own expert. We can expect this expert to emphasize that the P239 has no safety, although other models of essentially the same pistol do. Presumably the bulk of the expert’s testimony will cover the conditions under which this pistol might go off without an intentional pull of the trigger. The expert might also suggest that testing the trigger force after a pistol had been immersed for hours in salt water could give a less than fully accurate measure of trigger force before it went into the bay. Defense counsel has promised to request that the jury be permitted to handle the pistol to get form their own judgment of whether it might go off accidentally. 

It is difficult to know in advance of the defense expert how an ideal jury would decide on the intentionality issue. When there is a clash of experts real jurors sometimes ignore both experts, and go with their gut. As intestinal judgments are often affected by the jurors’ relative degree of identification with the defendant and the victim, the defense should be prepared for the possibility that they will lose on intentional firing, even if their expert does very well indeed. 

Defendant Testimony

I do not anticipate that the defendant will testify. It is a commonplace in the criminal bar that once the defendant testifies the only real question in jury deliberations is whether they believe the defendant. Other evidence and even the instructions of the judge on the law recede into near insignificance. 

The prosecution will have a wealth of material from the interrogation with which to cross examine Zarate, and the interrogation suggests that he will not handle cross very well at all. Probably the jury wouldn’t believe Zarate no matter what he said, and they would probably like him even less when he left the stand than when he took it. 

Moreover, as the price for testifying, the prosecution will be permitted by the judge to introduce part of Zarate’s bad hombre past convictions. The jury, of course, will be instructed to consider this criminal career only for purposes of assessing Zarate’s character as it affects his credibility as a witness under oath. Under no circumstances should they draw the judgment that a man with such a record might be more likely to have committed the crime charged, or that it will not hurt much to lock away for a long time a man with such a record whether he committed the crime charged or not.

Charging Decision: Prosecutorial Ethics

If the jury credits the prosecution’s expert, and not the defense, they will conclude that Zarate fired the pistol intentionally. That would be enough for a crime of negligence and arguably of ordinary recklessness. As argued above, there does not, on the basis of the reports I have read, seem to be the right sort of evidence to convict Zarate of second degree murder. The prosecution was in a position to know this in advance. The test for the prosecutors making the charging decision should not, of course, have been whether, given the victim and the defendant, they would probably get a conviction. The test should be whether they had sufficient evidence to convict the defendant of abandoned and malignant heart murder beyond a reasonable doubt. The public attention given the case, and the political pressure to be tough towards a bad hombre who did indeed cause the death of a fine young lady should have had no influence on the question whether Zarate ought be charged with second degree murder or reckless manslaughter.

If there is going to be an offense of non-intentional murder at all, it should be carefully guarded from dilution. It must not become nothing more than reckless manslaughter with a different name and stiffer penalty – to be used when the crime gains greater public attention. This is a duty of the judges, of course, but also of the prosecutors in their charging decisions.


December 2017 Post Script 

On November 30, 2017, the jury acquitted Zarate on the murder charge, on involuntary manslaughter, on assault with a semi-automatic weapon, but convicted him of felony weapons possession. In a surprise move, the Prosecution had briefly argued for intentional murder, in alternative to abandoned and malignant heart murder. There seems to have been nothing to support this other than prosecutorial speculation. It appears that some of the news reports confused the intentional branch of second degree murder with first degree murder.

The involuntary manslaughter charge required "criminal negligence" -- that the defendant should have been aware of a high level of risk to human life. This is the most serious offense with which Zarate could ethically have been charged, as I understand the evidence. Even it required a proof that Zarate pulled the trigger intentionally. The prosecution might have expected the expert testimony to establish this. It didn't, and they had nothing else.

Assault should not have been charged as the prosecution had no evidence of intent to kill or injure.

It is not out of the question that the weapons possession was a jury compromise, some of the jurors insisting that Zarate had to be convicted of something. The only evidence that Zarate knew he had a gun was his very confused and contradictory interrogation. Perhaps if we read all of the interrogation we would be persuaded that Zarate did not set off the gun by kicking it or when unwrapping an unknown object wrapped in a t-shirt, but did realize he had a gun in his hands. If so, then the jury seems to have gotten the case just right.

The President of the United States called it, "a disgraceful verdict" and "a complete travesty of justice."