The Morning Jolt

Law & the Courts

No Justice for Kate Steinle

Making the click-through worthwhile: The jury reaches a verdict for the man who shot Kate Steinle, the GOP Senate faces a make-or-break moment, a quartet of superhero shows try to get serious and fail, and wondering what the president really believes.

Sanctuary Jury

Upon hearing that the illegal immigrant who shot and killed Kate Steinle was acquitted of murder, involuntary manslaughter, and assault charges, I was reminded of Robert Wuhl’s joke after the O.J. Simpson verdict: “What do you expect? It’s California. They haven’t convicted anybody since Charles Manson.”

The thing is, even if you believe Jose Ines Garcia Zarate’s version of events, that he accidentally fired the gun, didn’t aim at Steinle, and that she was killed when the bullet ricocheted and struck her, I don’t quite understand how his actions wouldn’t constitute “involuntary manslaughter.”

Check out the definition of “involuntary manslaughter” under California law:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary—upon a sudden quarrel or heat of passion.

(b) Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.

Wouldn’t firing a gun in a crowded public place amount to an act that might produce death in an unlawful manner, without due caution and circumspection? Doesn’t Zarate’s account amount to a confession of this?

You’re going to hear a lot of talk about “jury nullification” in the coming days, and it doesn’t sound all that farfetched. Zarate’s defense attorney was quick to make an argument to the Trump administration after the verdict:

Defense attorney Matt Gonzalez said this “verdict should be respected.”

Gonzalez, the chief attorney in the San Francisco’s Public Defender’s Office, said it was important to remember that the president, vice president and attorney general were under investigation themselves and should appreciate that they would be afforded the protections of the justice system.

“Before you start tweeting or commenting on this outcome, just reflect on the fact that all of us get these protections,” he said. “We get a right to a jury. We get these burdens of proof. We have to respect that a jury that spent this much time on this case got it right.”

Did they? By convicting Zarate of only illegal possession of a firearm, and nothing relating to the shooting, the jury effectively ruled that Zarate wasn’t responsible for her death.

I’m reminded of another cynical joke, this time from Dennis Miller: “How comforting is it to know that as a defendant in our criminal justice system, your fate is being decided by 12 people who were not smart enough to get out of jury duty.”

Attorney General Jeff Sessions was quick to issue a statement:

When jurisdictions choose to return criminal aliens to the streets rather than turning them over to federal immigration authorities, they put the public’s safety at risk. San Francisco’s decision to protect criminal aliens led to the preventable and heartbreaking death of Kate Steinle. While the State of California sought a murder charge for the man who caused Ms. Steinle’s death—a man who would not have been on the streets of San Francisco if the city simply honored an ICE detainer—the people ultimately convicted him of felon in possession of a firearm. The Department of Justice will continue to ensure that all jurisdictions place the safety and security of their communities above the convenience of criminal aliens. I urge the leaders of the nation’s communities to reflect on the outcome of this case and consider carefully the harm they are doing to their citizens by refusing to cooperate with federal law enforcement officers.

Zarate is not, however, a free man:

Acting U.S. Immigration and Customs Enforcement Director Thomas Homan said that immigration officials will take custody of Jose Ines Garcia Zarate once his case concludes.

Alex Bastian, a spokesman for the San Francisco prosecutor’s office, said the “verdict that came in today was not the one we were hoping for” but it was the jury’s decision and prosecutors would respect it.

Jurors did find Garcia Zarate guilty of being a felon in possession of a firearm.

Public Defender Jeff Adachi said that charge carries a potential sentence of 16 months to 3 years.

Sarah Rumpf makes the argument that a good portion of the blame may lie with the prosecutors, for putting so much focus and effort on a first degree murder charge that the evidence simply couldn’t support: “This seems to be a classic example of prosecutorial overreach. They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand).”

It’s Make-Or-Break Time for Senate Republicans on the Tax Reform Bill

We might have genuine drama in the Senate today:

The Senate is scheduled to hold its first votes of the day at 11 a.m. on a pair of Democratic motions as GOP leaders try to salvage the legislation, which they see as vital to their political fortunes.

Senator Steve Daines, a Montana Republican, said Friday morning he backs the tax plan. He said in an interview that he thinks the bill will pass without a deficit-cutting mechanism sought by GOP Senator Bob Corker of Tennessee.

“That’s going nowhere,” he said. “What Bob was suggesting is just causing more problems.” Daines said he would oppose changing the bill to retain the alternative-minimum tax or to add another tax increase.

No pressure, fellas; the only thing at stake is whether the Trump administration can get a big legislative priority passed in its first year.

A Type of Story That Superhero Shows Probably Needn’t to Try to Tell

The CW network has four superhero shows — Supergirl, Arrow, The Flash, and Legends of Tomorrow – and for the past two years, they’ve done big crossovers where all of the heroes work together, in a story that runs through one episode of each show.

Last year it was an alien invasion, this year it was . . . an attack by Nazi versions of themselves from an alternate reality where the Nazis won World War Two. Yes, it was a lot like the Amazon series, The Man in the High Castle.

Look, I’m perfectly fine with Nazi villains; Raiders of the Lost Ark is perhaps my favorite movie of all time and I’d put Indiana Jones and the Last Crusade not too far behind it. But there are two ways you can tell a fictional story about the Nazis. You can use them as pulp-style villains, with only a fleeting reference to their real-world horrors, like in the Indiana Jones movies, The Rocketeer, and Captain America. (In fact, Captain America goes even further to emphasize that its particular villains are “Hydra,” a more-or-less rogue Nazi Science Division.) Or you can do a more serious “afterschool special” with the important message that Nazis are bad, or perhaps the more mature concept that the appeal of fascism isn’t as alien as we might hope. The 1980s NBC sci-fi miniseries V aimed to imagine a scenario where Americans would turn against their neighbors in service to a powerful, alien occupying force that wore red and black and behaved like fascists.

But it’s very hard to do both kinds of stories simultaneously, and the CW storyline, “Crisis on Earth X” handled it pretty ham-fistedly, having the heroes captured and taken to the alternate earth concentration camp, complete with “arbeit macht frei” signs. One of the characters examines the other prisoners’ uniforms and asks what the stars and pink triangles mean, a quick bit of exposition presumably for any younger viewers who hadn’t paid attention in history class. Look, producers, either kind of story could have been good. But it’s hard to cheer for swashbuckling heroics when your show just tried to hit the same emotional chords as Schindler’s List.

(It’s not just comic book movies that have this problem. Monuments Men was thoroughly disappointing, with an all-star cast and a real-life story of American professors trying to recover art stolen by the Nazis during World War Two. The story veered between a sort of comic moments, like the team trying to figure out how to get Matt Damon off a landmine, and then finding barrels full of gold fillings extracted from Holocaust victims. You can’t give your audience this sort of emotional whiplash.)

The ramifications of a Nazi-run world occasionally manifested itself in interesting ways; there were evil Nazi versions of Green Arrow and Supergirl, but not one of the Flash; in the recent Justice League film, Barry Allen (played by a different actor) explicitly says he’s Jewish – suggesting that in the “Earth X” alternate timeline, Barry Allen was probably never born. None of the African-American heroes appear to exist in the alternate reality, either.

Some folks I respect, like John Podhoretz, get really infuriated with Holocaust references and scenes in comic book movies. I’m fine with them, as long as they’re handled carefully, and I’d argue Magneto’s survival of the Holocaust offers a crystal-clear explanation of why he’s so driven, uncompromising, and slow to trust anyone. But “Crisis on Earth X” really bungled the tone of its story — and it’s unfortunate, because the non-Nazi scenes and characterization were pretty good. This doesn’t mean the shows need boycotts, or howls of outrage. Just . . . the next time some writer pitches, “we’ll do a Nazi story!” the creative team needs to ask whether it will really fit the tone of their show.

ADDENDA: Does President Trump believe those outlandish conspiracy beliefs he occasionally mentions? I think he’s trolling, putting out rumors about people he doesn’t like. This isn’t good behavior, but it isn’t evidence of a mental breakdown. But if he really does believe things like the Access Hollywood tape was faked . . . we’re in a whole different world.

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