Gang Member’s Prosecutor Went Too Far, Court Says

     SAN FRANCISCO (CN) – A convicted killer whose attorney said nothing as a prosecutor inflamed the jury with racial slurs deserves habeas relief, the Ninth Circuit ruled Tuesday.
     The government believes that the 2001 shooting of 19-year-old Juan Trigueros in the parking lot of a 7-Eleven in Gilroy, Calif., was gang related.
     Trigueros had been wearing a basketball jersey with the number eight for the Los Angeles Lakers player Kobe Bryant when he was killed, but the number holds importance for a subset of the Surenos street gang known as Eighth Street.
     The Surenos, a group consisting mostly of first-generation Mexican immigrants who spoke limited English, were known rivals of the Nortenos street gang, whose members tended to be English-speaking, established U.S. residents.
     A known member of a local clique of Nortenos, Paul Zapata’s background was the basis for most of the prosecution’s case, Tuesday’s ruling states.
     It notes that, in closing arguments, the prosecutor encouraged the jury to believe that Zapata had used “several despicable, inflammatory ethnic slurs,” such as “fuckin’ scrap” and “wetback.”
     The prosecutor made this reference when speculating on what language Zapata might have used as he was shooting Trigueros to death.
     Zapata’s counsel “neither objected to the fictional, inflammatory statements in the closing argument nor asked the trial court to issue a curative instruction,” the ruling states.
     Zapata was convicted in 2004 of first-degree murder and received two sentences for 25 years to life in prison.
     Though a federal judge denied Zapata habeas relief, the Ninth Circuit on Tuesday took issue with the “pure fiction” and “wholly speculative” remarks by the prosecutor.
     Precedent dictates that “a prosecutor commits misconduct by recounting the crime from the victim’s perspective during closing argument,” Judge Raymond Fisher wrote for a three-person panel.
     “First, by urging the jurors to base their decision on an experience of the victim the state court labeled ‘pure fiction,’ the prosecutor encouraged them to convict Zapata out of sympathy for Trigueros and animus towards the killer,” Fisher said.
     “Second, by falsely stating the victim heard hateful ethnic slurs in the moments before his death, the prosecutor manipulated and misstated the evidence.”
     The fabrication was “especially pernicious” because of the extensive evidence of Zapata’s gang-related criminal history, according to the 37-page opinion.
     “By concocting the details of the victim’s dying experience in this manner, the prosecutor purposefully blurred the distinction between Zapata’s past convictions and the crime for which he was standing trial,” Fisher said.
     Since the remarks – which were “fabricated from whole cloth, designed to inflame the passions of the jury and delivered in the waning moments of trial” – were reserved for rebuttal, the prosecution “insulated them from direct challenge.”
     This, on top of weak evidence in a case where “the eyewitness and circumstantial evidence was far from overwhelming” and a lack of a curative jury instruction, necessitates a reversal of the denial of Zapata’s habeas petition, Fisher said.
     “Defense counsel’s failure to object to the prosecutor’s inflammatory, fabricated and ethnically charged epithets, delivered in the moments before the jury was sent to deliberate Zapata’s case, constituted ineffective assistance of counsel,” he said.
     Neither side could be reached for comment.

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