Immigrant Will Stay Jailed Indefinitely Pending Competency Test

FILE – Civil rights attorney Tony Serra speaks to reporters after his client Jose Ines Garcia-Zarate made an initial appearance on federal weapons charges Jan. 8., 2018. (Nicholas Iovino/CNS)

SAN FRANCISCO (CN) – An undocumented immigrant cleared of murder in the 2015 shooting death of Kate Steinle will languish in jail indefinitely until he submits to a mental health evaluation, a federal judge warned Wednesday.

“I am ordering you to participate in this evaluation,” U.S. District Judge Vince Chhabria told the defendant Jose Garcia-Zarate in court.

Garcia-Zarate refused to participate in a court-ordered evaluation Monday to determine if he is fit to stand trial. Chhabria required that evaluation after questions were raised last week about the defendant’s mental state.

Acquitted of murder by a state court jury in 2017, Garcia-Zarate now faces up to 20 years in prison for being a felon in possession of a gun and being an undocumented immigrant in possession of a gun. Opening arguments in the trial were scheduled to start Wednesday, but the trial has now been postponed indefinitely.

Speaking to reporters outside the courtroom Wednesday, Garcia-Zarate’s lawyer, Tony Serra, revealed what prompted the judge to order his client to submit to a competency test last week. During a closed-door hearing on Friday, the defendant told the judge twice he was being prosecuted for “unlawful entry” rather than illegal gun possession when asked if he understood the charges against him, according to Serra.

Despite questions surrounding the defendant’s competency, Serra insisted Garcia-Zarate’s mental state will not be an issue at trial because their entire case is based on hard evidence, not testimony from the defendant.

“I don’t think any defense lawyer in his right mind would put him on the stand,” Serra said of his client.

The “hard evidence” includes a grainy video taken from far away that Serra says shows Garcia-Zarate bending over, picking something up and throwing it away.

Garcia-Zarate has maintained he found the gun wrapped in a rag beneath a bench and that it accidentally fired when he picked it up. The pistol was later thrown in the bay and recovered by a diver.

“I don’t know if he really ever realized it was a gun,” Serra said. “He realized something went off and threw it away.”

According to proposed jury instructions, the government must prove Garcia-Zarate knowingly possessed the firearm in order for jurors to find him guilty.

Serra said he will argue that possession of the weapon was “fleeting” and “transitory” and therefore his client did not knowingly possess the firearm.

Chhabria rescheduled a mental health evaluation for Garcia-Zarate to take place next week with psychologist Ricardo Winkel.

Serra said he would prefer his client be evaluated by a psychiatrist who can prescribe medication for mental health conditions.

“A psychiatrist could prescribe some medication and alleviate the judge’s concern and the judge could order medicine be administered involuntarily,” Serra said.

The defense lawyer bristled at the prospect of his client being found incompetent, noting such a diagnosis could force the defendant to remain locked up in a mental health facility until he is deemed restored to competency.

“He could be in there for the rest of his life,” Serra said, adding that a guilty verdict and limited jail sentence would be preferable to that scenario.

During the court hearing Wednesday, Serra asked the judge to explain to his client the consequences of not participating in the evaluation. Noting that such an explanation should probably come from the defendant’s lawyer, Chhabria nevertheless warned Garcia-Zarate that he will remain in custody with no trial date scheduled until he submits to the evaluation.

“I wanted it to come from an official source,” Serra explained after the hearing Wednesday. “When it comes for a judge’s mouth, it has more potency.”

Garcia-Zarate’s rescheduled competency evaluation is set to take place on Thursday, Jan. 23, at Santa Rita Jail in Alameda County.

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