SAN FRANCISCO (CN) – A homeless undocumented immigrant acquitted last year of murder faces an uphill battle in proving that President Donald Trump directed the Justice Department to vindictively prosecute him on new federal charges, a judge said Tuesday.
“It sounds like your theory is the president and people in the federal executive branch are feeling vindictive toward San Francisco’s sanctuary city policy,” U.S. District Judge Vince Chhabria said in court Tuesday. “That can’t form the basis of vindictive prosecution.”
Jose Garcia-Zarate’s lawyers are seeking records from the Justice Departments that could help prove their vindictive prosecution theory. The defense claims prosecutors indicted Garcia-Zarate on new federal charges in retaliation for him exercising his right to a jury trial. This past November, a jury found him not guilty of murdering Kate Steinle on a San Francisco pier in 2015.
After the jury trial ended, Trump called the result “a disgraceful verdict” and “travesty of justice” on Twitter. U.S. Attorney General Jeff Sessions said on Fox News that the Justice Department “is working right now to bring any charges that are appropriate” and that Garcia-Zarate “is going to face every charge that is proper to be brought against him.”
A few days later, federal prosecutors charged Garcia-Zarate with being a felon in possession of a gun and being an illegally present alien in possession of a gun. Each count carries a maximum 10-year prison sentence.
Garcia-Zarate’s lawyer Tony Serra said Trump and Sessions had a direct hand in guiding the prosecution.
“We would not be bringing this motion, perhaps the defendant wouldn’t even be standing in this court, if it wasn’t for the intervention of the executive,” Serra said. “I’m talking President Trump and Sessions.”
But even if the executive branch guided the prosecution, Chhabria said that would still fall short of what’s needed to dismiss criminal charges for vindictive prosecution.
“Even if there is vindictiveness of some sort in this case, that is not enough to create an inference that there is a constitutional claim for vindictive prosecution,” the judge said.
U.S. prosecutor Shiao Lee urged the judge to reject Garcia-Zarate’s motion to seek discovery, arguing the defense failed to present “tangible evidence” of a vindictive motive by the Justice Department.
Vindictiveness has never been found in a case where two jurisdictions, such as local and federal law enforcement, pursue their own interests in prosecuting a defendant, Lee argued.
“It’s perfectly OK for the federal government to take into consideration the sentence he received to determine whether a federal interest was vindicated,” she said.
Garcia-Zarate was sentenced to time served on a state charge of being a felon in possession of a firearm.
Serra asked the judge to review the requested evidence in camera, or behind closed doors, calling that a good “middle of the road” option that would put to rest questions of whether the executive branch had a retaliatory motive in bringing the charges.
After the hearing, Serra told reporters that “Trump made the case for us” by criticizing the verdict on Twitter.
“I think it’s easy to infer there was communication, that it came from the Trump administration, that they wanted to use this case as their poster illegal immigrant to support the campaign to establish the [border] wall and to punish sanctuary cities,” Serra said.
Garcia-Zarate’s trial took place amid a national debate over sanctuary city policies, which limit cooperation with immigration authorities. Garcia-Zarate had been released from a San Francisco jail months before the shooting of Steinle, despite a request to hold him so he could be taken into custody by federal immigration agents.
During the trial, Garcia-Zarate’s public defenders said the shooting was accidental, that the gun went off unintentionally after Garcia-Zarate found it wrapped in a rag beneath a bench. The bullet ricocheted off a concrete walkway before hitting Steinle in the back.
On Tuesday, Chhabria also said he would deny Garcia-Zarate’s separate motion to dismiss one of the two federal charges as duplicative.
Garcia-Zarate also seeks evidence of collusion between federal prosecutors and the San Francisco police and district attorney’s office, but Tuesday’s arguments focused solely on the vindictive prosecution claim. Serra said he chose to focus on vindictive prosecution because that was the “stronger objective” for the motion to compel evidence.
A trial date is set for Oct. 1.