After Kate Steinle’s killer, Jose Garcia-Zarate, was found not guilty of her murder (but guilty on a gun charge and immigration law violations), his hopes for release were quickly quashed. Federal charges of immigration and weapons violations were filed by the Department of Justice and another trial is on the horizon. Or maybe not.

It turns out that the attorneys for Garcia-Zarate feel that his client is being unjustly and vindictively harassed by the feds after having already faced trial. They’re taking two different approaches to this claim, neither of which looks particularly promising. (Washington Times)

The illegal immigrant accused in the shooting death of Kate Steinle is charging the federal government with “vindictive prosecution” and collusion with city and state authorities, and using President Trump’s tweets and public statements by him and his attorney general to make his case.

In a filing this week in federal court in San Francisco, lawyers for Jose Garcia-Zarate demanded that the federal government hand over its communications with local law enforcement agencies — the San Francisco police, district attorney’s office and sheriff’s office — to let him prove collusion and double jeopardy. Attorney J. Tony Serra accused Mr. Trump and Attorney General Jeff Sessions of using his client as a political punching bag and said their words suggest that Mr. Garcia-Zarate is being unjustly prosecuted.

“This case was highly publicized, both locally and nationally,” he wrote in the motion filed in U.S. District Court in the Northern District of California.

Garcia-Zarate either has a pretty poor attorney in Tony Serra or he’s got the best attorney ever if he manages to pull of this feat of legal legerdemain. The defense is attacking the federal case on two different fronts. One is a claim of prosecutorial vindictiveness and the other suggests double jeopardy. Each is more than a little problematic.

First, let’s look at the legal definition of prosecutorial vindictiveness

Prosecutorial vindictiveness is defined as vengeful prosecution for the recovery of damages to person, property, of reputation, shown to have approximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with vengeance, and which has terminated unsuccessfully. Riegel v. Hygrade Seed Co., 47 F. Supp. 290, 293 (D.N.Y. 1942)

This is more commonly seen in civil suits though it apparently can crop up in criminal cases as well. For a hypothetical example, imagine if O.J. Simpson had not only been found not guilty of murder but also prevailed in the wrongful death civil suit brought against him by Ron Goldman’s family. If they turned around and attempted to file another suit related to the first one, O.J. might be able to claim prosecutorial vindictiveness and could conceivably even get a judgment against the Goldman family’s attorney.

But the only charges Garcia-Zarate was cleared on were murder and manslaughter. The feds aren’t going after him for that. Their case runs parallel to the weapons and immigration charges the illegal alien was already found guilty of. So that claim seems to fall flat.

But wait, you might say. Isn’t this a case of double jeopardy since he was already tried for those crimes? That’s the other thing Serra is claiming, calling it a “political vendetta of Mr. Garcia-Zarate.” And at first glance, it might sound like a winner.

But that claim runs into trouble because of an infrequently invoked principle known as the “dual sovereignty doctrine.” What this basically says is that if you commit a crime which is covered individually by both state and federal law, you can be prosecuted by both “sovereigns” (in this case, the United States government and the state government of California) as if it were the first time for each. Generally, when this sort of overlap crops up, either the state or the feds will back off and let the other run the show. But there’s no assurance that they will, and in this case, it allows the federal government a second bite at the apple without running afoul of double jeopardy protections.

There’s one interesting side note to keep an eye on here, however. While researching dual sovereignty I saw a number of references to a case that’s currently awaiting a hearing in the Supreme Court and which might throw a wrench into the works here. It’s Gamble v. United States. It’s strikingly similar and involves a previously convicted felon (though not an illegal alien) who was pulled over for a traffic violation and found to be in possession of a handgun. He was tried in both state and federal court, found guilty both times and is currently serving a three year federal stretch in the hoosegow. His attorneys claim that the dual sovereignty clause is far too broad and does indeed constitute double jeopardy in his case and most others. If the Supremes find in his favor, it could definitely shoot holes in the federal case against Garcia-Zarate, so that’s one to keep an eye on.