What Legal Rights Do Immigrants Have? How The Kate Steinle Trial Is Testing Trump's America

With his silvering shoulder-length hair and goatee, his truculent manner and his cigarettes, Matt Gonzalez looks less like a lawyer than a poet, one of those souls to whom this fair and foggy city of San Francisco once belonged. But Gonzalez is a lawyer, the chief attorney in the San Francisco Public Defender’s Office. And he is representing Jose Ines Garcia Zarate, an undocumented immigrant from Mexico who in the summer of 2015 shot and killed San Francisco resident Kathryn Steinle as she was taking an evening stroll with her father.

Garcia Zarate had been deported from the United States five times, and had been convicted of several drug offenses. However, he was released from a San Francisco jail in 2015 without notification to Immigration and Customs Enforcement because of a “sanctuary city” policy that forbids law enforcement from cooperating with federal immigration officials in some instances. About three months later, he shot and killed Steinle on Pier 14, in the crowded waterfront district known as the Embarcadero.

President Trump frequently alluded to the Steinle killing during the 2016 presidential campaign: "My opponent wants sanctuary cities,” he said at the Republican National Convention. “But where was the sanctuary for Kate Steinle?"

Steinle’s family asked that Kate not become a political talking point, but Trump and his supporters disregarded that plea. To them, the Steinle murder is too potent a symbol, encapsulating as it does the follies of a liberal elite that loves “illegals” more than an innocent 32-year-old dying in her father’s arms.

In response to more aggressive enforcement of immigration laws by Trump and his attorney general Jeff Sessions, the liberal state legislators of Sacramento redoubled their support for undocumented immigrants. This may be opportunistic, and it may be principled, but either way it’s bound to be a political risk. Weeks before Garcia Zarate’s trial began, California declared itself a sanctuary state. California state Senate President Pro Tem Kevin de León said the bill would erect “a wall of justice against President Trump’s xenophobic, racist and ignorant immigration policies.”

San Francisco County Superior Court judge Samuel K. Feng has said Garcia Zarate’s status as an illegal immigrant will have no bearing on the proceedings in his courtroom, but he has no control over the headlines on Breitbart, the dispatches airing on Fox News. There, another trial is playing out, to another jury.

“It’s so fucking pathetic,” Gonzalez says. It in this case, is the procession of circumstances that brought Garcia Zarate to a second floor courtroom in a slate-gray Art Deco courthouse on a dusty stretch of San Francisco lined with car-repair shops and unappealing diners. Outside the courtroom is a bank of cameras, from outlets both national and local. Beyond that, the ordinary business of a courthouse goes on, with little awareness of what’s happening in Department 13: sullen mothers listening to hopeful lawyers, court officers, paunchy and bored, debating whether Colin Kaepernick will ever play professional football again.

Inside Department 13 — where Judge Feng has, as is his wont, allowed no cameras, laptops or cellphones, and where a dozing reporter might earn a court officer’s unfriendly nudge — Garcia Zarate sits with enormous earphones over his balding head: He speaks some English, but apparently not enough to understand the proceedings. He is 45, was thought previously to be 54, and could easily pass for 65. Whether he is a killer or not, a jury of six men and six women will determine sometime in December.

Directly above Feng’s head is the seal of California, showing the bounteous land and its motto: “Eureka,” the famous cry issued by Archimedes, the ancient Greek scientist who in his bathtub discovered the principle of buoyant force. The Daily Caller, a conservative news outlet, impressively compiled what appears to be his entire arrest record, starting with a conviction for “inhaling toxic vapors” in 1991. In 1993, he was convicted on three separate occasions of either selling or manufacturing drugs in Washington State. The following year, he was convicted of another drug crime in Oregon and, for the first time, deported to his native Mexico.

In the years that followed, Garcia Zarate kept returning to the United States, only to be caught, deported and or/imprisoned. But other than his prodigious arrest record, little is known about his past. He seems to have floated through life, across borders, into trouble, into prison and, finally, into San Francisco.

In March 2015, Garcia Zarate finished a four-year stint tied to his illegal reentry, as well as his previous drug charges. San Francisco wanted him on a weed charge, so he was taken from the prison in Victorville, California and moved to San Francisco. But the weed charge was dropped, and Garcia Zarate was suddenly free, homeless in the cool, gray city of love.

That fact outrages some as much as the killing, because, of course, if Garcia Zarate had been handed over to federal immigration officials, he would have been deported from the United States, and two months later, Kate Steinle would have presumably stood at the end of a pier with her father, looking at the darkening sky above the Bay Bridge, wondering what the rest of that lovely summer would bring. That is what some say, anyway.

In the days after the killing, both ICE and San Francisco law enforcement tried to blame each other for the fact that Garcia Zarate had been released instead of deported.

An ICE spokeswoman: “We are just asking for a heads-up, a phone call. We did not hear anything until the day this young woman was killed.”

San Francisco Sheriff Ross Mirkarimi: “They had his rap sheet and they were well aware of our policies. The natural question is, why wouldn’t they follow through with a warrant for this suspect?” (Sanctuary cities allow law enforcement authorities to neglect a detainer, but not a warrant.)

According to some news reports, Garcia Zarate took sleeping pills he’d retrieved from a garbage can before wandering over to Pier 14. There, Gonzalez says, he found something wrapped under a bench (the alleged ingestion of sleeping pills doesn't figure into his defense). Curious, he unwrapped it. Who wouldn’t?

The bullet Garcia Zarate had allegedly fired from a .40 caliber Sig Sauer P226 pistol ricocheted off the concrete surface the pier. It then flew 78 feet, tearing into Steinle’s back. It severed her aorta and she died. But, according to his lawyer, Garcia Zarate had not meant to kill her, or anyone.

"Somebody would have handled that gun eventually," Gonzalez says.

We spoke at length last Friday, as the first week of court proceedings concluded. In previous days, Gonzalez had cross-examined Bureau of Land Management ranger John W. Woychowski, Jr., who was travelling from Southern California to Montana, when he and his family stopped for dinner in San Francisco. It would have been better for all if he’d just kept driving.

The gun with which Garcia Zarate shot and killed Steinle was stolen several days before from Woychowski’s car on the Embarcadero, where car break-ins are as frequent as the squawking of seagulls. How it got to Pier 14, nobody knows.

"He never sees the gun,” Gonzalez says of his client. “He doesn't know it's a gun." He points to the fact that forensic analysis discovered a single gunshot residue particle on Garcia Zarate’s hands, whereas if he’d actually held the gun and fired it, there would have been hundreds. “This is consistent with Garcia Zarate's claim that the gun was probably wrapped up in something,” Gonzalez maintains. He adds that the Sig Sauer P226 has “a very light trigger pull when it's in single action mode," about 4.4 pounds. The New York Police Department, by comparison, does not allow anything more sensitive than a 12-pound trigger pull.

And as far as Gonzalez is concerned, any attempts to tie the Steinle killing to San Francisco’s sanctuary city policy, to turn Garcia Zarate into an icon of liberalism’s excesses, are “extremely disingenuous.” They may also prove extremely effective, judging by the efforts of Fox News and others.

“He's been attacked so often,” Gonzalez says of his client. The lawyer has received threats, too, but he doesn’t want to talk about that. He will say only this: “People were far more respectful in another era." Maybe they were, and maybe we are always fated to think of the past that way.

Out on Pier 14, where Steinle was shot by a gun taken from a car headed to Montana, allegedly wielded by an undocumented immigrant from Mexico, traces of death do not linger on a bright fall afternoon. Cities, like the concrete from which they are made, can be remarkably durable. Tourists talk in French. Office workers with badges dangling from their waists hunch over rice bowls. There was once a makeshift memorial to Steinle affixed to the steel railings of the pier, but it is gone now.

“Help me, dad,” she said. Those were her last words.

The trial is expected to conclude in early December. On the 13th of that month, Kate Steinle would have turned 35.

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