America has entirely forgotten how due process works, and why we have a constitutional separation of powers. We are blatantly ignoring the legitimate and important differences between the intentionally non-political judicial branch of government and the three political branches—the legislative, executive, and mainstream media. (The latter is probably in the penumbra somewhere, I’m told.)
The jury in the Kate Steinle murder case rendered a not guilty verdict late Thursday, and everyone is outraged over this supposed “injustice.” Twitter and late-night media pundits were railing on the immigration system, with Mark Steyn calling it “a miscarriage of justice in the profoundest sense.” Ted Cruz was reportedly “angry” at the verdict, saying that “justice must be served” and President Trump tweeted,
A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.
— Donald J. Trump (@realDonaldTrump) December 1, 2017
Even Attorney General Jeff Sessions issued this entirely political statement, which read in part:
San Francisco’s decision to protect criminal aliens led to the preventable and heartbreaking death of Kate Steinle. …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…
That is all true on the immigration debate, but this wasn’t a miscarriage of justice. What all this chatter fails to recognize is the critical purpose of the judicial branch—and that its purpose is not political. It is not the province of a criminal courtroom to turn justice into a referendum on immigration policy.
Constitutionally, Congress is vested with the power to change immigration law and enforce it throughout the country. The states actually do not have power to create “sovereign cities,” and that is an important debate that this case highlighted and serves as an example for, but a debate that is fundamentally not the question in front of the jury.
This was a question of fact, not a question of political policy. The jury rightly did not contemplate why Zarate was on the pier to begin with and his immigration status. It is constitutionally not the jury’s job to convict any person of a crime because of some other irrelevant legal status.
I realize that it is hard to separate the two because, as Sessions noted, but for Zarate being on the pier, Steinle would not have been shot. Valid. But whether or not he was legally on the pier was not the criminal question. Due process requires us to parse that difference. Consider for a moment how important it is to the justice system. When the legal question is solely whether a shooting is intentional or accidental, as it was in the Steinle case, should the jury convict a person based on anything else but intent?
It would set an incredibly dangerous precedent to judge guilt based on anything else. Would we want a jury to convict not based on facts, but based on the accused’s gender, race, political affiliation, religious beliefs, marital status, or any other irrelevant legal status, such as immigration? Would the question of whether or not Zarate intended to kill Steinle change if he was a legal immigrant or had a green card?
Zarate was not in federal immigration court—the appropriate forum for the question of why he was on the pier and whether he was there legally. California criminal law required the jury in this case to look only at the narrow question before them, and they did so. We should not second-guess their verdict simply because we have a collateral immigration issue that is rightfully so important that it’s a national conversation.
Yes, we need to change our immigration laws and I’m all for Congress doing something about securing the borders and actually legislating DACA and the DOJ enforcing the law and the government providing real solutions. Let’s have that national conversation and urge Congress to do their job. But let’s not obfuscate the issue and place blame or outrage at the one branch of government that is inherently designed to be non-political.
And that’s the other part of the media and Twittersphere outrage that is increasingly disturbing. Somehow we think our opinion matters over and above the proper authorities that are responsible for actual decision-making. In a culture increasingly overwrought with self-aggrandizing and platform punditry, we get severely annoyed when the decision-makers don’t do things our way. We forget that we don’t have access to all the information and it is bothersome and almost offensive to consider that sometimes you don’t get to decide.
That’s the point of separation of powers. Politics should not influence justice.
I wasn’t part of that jury, and unless you’re one of those 12 people in California, you weren’t either. We didn’t hear all of the evidence and arguments, or the jury instructions from the bench that admonished that national immigration policy isn’t the issue. We didn’t take the oath to apply only the State of California’s criminal law to the facts as we heard them in a criminal courtroom setting.
I’m grateful to live in a country with a constitution that has a separation of powers and that our judicial process is not political. It’s not perfect, but at least on paper (those five important pages of our Constitution), it is intended to form a more perfect union. We undermine our freedoms and individual liberty when we fail to parse the important distinction between justice and politics.
Call your congressional representatives on your immigration concerns. But thank the jury for upholding their sworn duty and rendering a verdict, even if you disagree with it.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.
