Marc Thiessen: San Francisco is guilty of Steinle's murder

This is a rush transcript from "The Story," November 30, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, HOST: Thank you very much, Bret, indeed. We are, we pick up the story from here with a Fox News alert. Take a look at the scene right now, chaos, basically in the hallway. Everybody running around; they are waiting for this verdict, which we expect in a matter of minutes, reached in the murder trial of Kate Steinle. You remember Kate Steinle, up in the left-hand corner of your screen. This young woman was shot and killed when she was taking a stroll on a pier in San Francisco with her dad in July of 2015.

The man that you see in the right hand -- in the lower left-hand corner is a seven-time convicted felon. He was in this country illegally. In fact, he had been kicked out of the country five times, and somehow managed to get back in and commit this heinous crime and change the life of this family forever. The family is now in the process of gathering as they get ready to hear the verdict in the story that has become the center of their lives since that happened in July of 2015.

Jose Zarate confessed to firing the shot that killed Kate Steinle, but he says it was an accident. Tonight, we're going to find out whether the prosecution or the defense has made the better case with this jury. Do they believe that that shot was fired intentionally, that he was looking for someone to kill and that he picked Kate Steinle? Or that the gun went off and that this was a crime that maybe amounts to involuntary manslaughter? Obviously, the family wants closer and some finality, if at all attainable at this point for this heinous crime as we said. Fox News Claudia Cowan is live, she is at the court room tonight as we wait for this verdict. Good evening, Claudia.

CLAUDIA COWAN, FOX NEWS CHANNEL REPORTER: Good evening to you, Martha. After deliberating for about 30 hours, we are told that the jury reached a verdict just about 2 hours ago -- and we will find out what that verdict is any minute. No cameras allowed in the courtroom, but we do have a producer inside. And as soon as the verdict is read, she will pass it along to all of us. Now, this case was never really a who'd done it?

The defendant, 45-year-old, Jose Ines Garcia Zarate admitted to police that he handled the gun, a 40-caliber, Sig Sauer pistol, that he handled that and killed Kate Steinle who was, as you mentioned, walking with her father on that San Francisco pier in July of 2015. What the jury here had to decide was whether that shooting was an act of murder or a tragic and freak accident; there were no eyewitnesses and no motive. Zarate didn't know Steinle and there was no direct evidence presented that he intended to shoot her.

That fatal bullet, you'll recall, ricocheted off the ground before striking Steinle in the back at a distance of some 90 feet. Now, the defense argued: Steinle's death was the result of an unintentional discharge. Zarate claims he found the loaded gun wrapped in a t-shirt and it just went off when he went to pick it up. Prosecutor Dianna Garcia said guns don't just go off, and that Zarate brought the pistol onto the pier hidden in his clothes to play quote a secret game of "Russian roulette."

She argued there was enough evidence of malice to convict for murder. Zarate is also charged with assault, with a semi-automatic firearm and felon in possession of a fire arm. Once this verdict is read, Zarate will remain behind bars. If he's acquitted, he will be turned over to U.S. Marshals for a federal arrest warrant and eventually deported to Mexico. If he's convicted, everyone's back here in a few weeks for a sentencing hearing. The defense will file a motion that will hear victim impact statements from Kate Steinle's parents and others who will talk about the tragic loss of this beautiful young woman, just 32 years old. We may hear from supporters of the defendant at that time as well.

Members of the Kate Steinle's family attended much of this trial, and, of course, Jim Steinle -- Kate's father -- testified on the first day about the horror of having his daughter collapse in his arms after she was shot in the back and begging him for help. A Fox News has learned that the Steinle's will not be here today for the reading of this verdict. A family spokesperson saying that the family does not want to politicize this case. So, Martha, we are standing by. As soon as we have the verdict, we will bring it to you.

MACCALLUM: Claudia, thank you very much, and we do expect that verdict in a matter of minutes. Joining me now: Mark Eiglarsh, criminal defensive attorney and former prosecutor; and Marc Thiessen, American Enterprise Institute Scholar and a Fox News contributor. There are obviously have been huge political ramifications that emanated from the Kate Steinle story -- in terms of immigration, in terms of the border wall and the like. But let me start first with you, Mark Eiglarsh, in terms of what you expect. Obviously, no one can read the minds of these jurors, but as you watch this case, what can you tell us?

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY AND FORMER PROSECUTOR: Well, the prosecutors had a challenging job. It's the first time I'm aware of a murder case being charged this way where it was a ricochet. It's tougher for prosecutors to prove intent. In other words, jurors can make the finding that we're definitely certain that maybe he intended to shoot -- that equals not guilty or at least a reduced charge. So, they will bear the burden of proof.

There's no words that float from lips prior to the shooting, which would evidence his intent to specifically shoot her. But what does helps the prosecutors are these photos that tourists took, which tend to show that he looked in her general direction, and then the argument that he unintentionally shot the gun? This Sig Sauer weapon, generally, experts will say, doesn't go off unintentionally and automatically. So, his argument seems to be a little bit bizarre. The good news is that the jurors reached a unanimous decision, so this doesn't have to be retried again.

MACCALLUM: Mark, staying with you, Mark Eiglarsh for just a moment. You know, the prosecutor made the argument that he swiveled or turned around in his seat in that car. And that's part of their argument that he had intention, that he was looking for something, looking for someone, right?

EIGLARSH: Yes. If that's believed by the jurors, that coupled with the other evidence could easily justify a first-degree murder conviction.

MACCALLUM: All right. Marc -- let me turn to you Marc Thiessen, because, you know, we all know that this case took on a life. Obviously, the most important life in this case is Kate Steinle and her family who, as Claudia Cowan just reported, is waiting for this outside of the actual court house as they wait to hear this verdict. No doubt, these are tensed moments for them as they wait for this information. But it did take on a much larger discussion about immigration, Marc.

MARC THIESSEN, FOX NEWS CONTRIBUTOR AND AMERICAN ENTERPRISE INSTITUTE SCHOLAR: Sure, absolutely. I leave to Mark the weighing of the evidence - - he knows the legal system better than me. But most Americans who are watching this are looking at this and say, look, what was this guy doing in the United States in the first place? Why was he even on that pier, and why was he on that pier with a gun? The gun that been stolen from the Bureau of Land Management ranger, and why was he firing a gun even accidentally?

Even if this ends up being an accidental shooting, this guy was thrown out of the country five times and kept coming back; he's got seven felony convictions, he's gun convictions. This is the kind of person that should not be in the United States. And so, whatever the verdict is, in this trial, and it sounds like it's going to -- it's based on the evidence that Mark laid out, it could be murder. This -- Kate Steinle should not be dead, because this guy should not have been on that pier in the United States with that weapon.

MACCALLUM: Absolutely right. She was 32 years old. Beautiful young woman. And you know, this is a city, San Francisco, that still is maintaining that it's the right thing for them to do to be welcoming illegal immigrants into the city as a sanctuary city. I don't know how they can look at this man and feel like they've done a good job handling that, Marc Thiessen?

THIESSEN: No, absolutely. And look, whatever the verdict is over here, we should all look at the city of San Francisco and say guilty. Because you protected this guy, you protect people like him. You don't cooperate with federal authorities. Look, whatever your position is on illegal immigration, whether you think that illegal immigrant should and brought into the country and give them citizenship, or whether you think they should be deported, all of us should be able to agree that people like this killer should not be in the United States. We don't want criminals with seven felony convictions who are here illegally to stay in the United States. It doesn't matter what your position is on immigration. So, San Francisco is guilty.

MACCALLUM: You know, it raises an interesting point. You know, you say San Francisco is guilty. Mark Eiglarsh, could this family take any action against the city for providing an unsafe environment?

EIGLARSH: I'll tell you this, with 100 percent certainty, they're looking into it. What I wanted to add to what Marc said so eloquently was, here's the irony: here's a guy who's not from this great land, who will be afforded in the criminal system the wonderful presumption of innocence that every defendant enjoys. You don't get a reduction of rights solely because you're not from here, but how a joy the presumption of innocence, the burden of proof to the prosecution has to prove each and every element. And he'll get the benefit of our great land. The laws that are set up that if the prosecution can show that maybe he intended to shoot this woman, then it's not guilty. Very interesting how he'll get the benefits because he is not a U.S. citizen. But treated like every defendant.

MACCALLUM: Incredible. You know, they actually have already gone down that road of, you know, to suing the city. We all hope that they get some justice from this process tonight, and we know that the judge walked by the reporters just a short time ago and said that they we're going to have something in about 30 minutes. That was, I would say about, 17 minutes ago, maybe 20 minutes ago at this point. So, this process is moving forward quickly. Gentlemen, stay with us if you would. I want to go back to California with more background on this story for everybody. Kate Steinle's death, of course, sparked a national outrage that we're talking about here with Mark Eiglarsh and Marc Thiessen right now. There is fierce debate over sanctuary cities. Trace Gallagher is in Los Angeles with some of the backstory that we need to keep in mind as we wait for this verdict tonight. Trace?

TRACE GALLAGHER FOX NEWS CHANNEL ANCHOR: And, Martha, just to kind of jump into this debate if I can very quickly. Kate Steinle's family has filed a lawsuit against the City of San Francisco as well as the Bureau of Land Management and Immigration and Customs Enforcement. It's important when you're talking about how this man got out just to kind of give a tick tock of what happened after the shooting. An hour after the shooting, police arrested the man who was then known as Juan Lopez Sanchez -- as we now know his real name is Jose Garcia Zarate.

He claims he found the Sig Sauer, 40-calibre handgun in a dumpster and that it went off accidentally, and after the shooting he tossed the weapon into the San Francisco Bay -- it was recovered. It was later learned the weapon has been stolen in San Francisco from the car of an agent from the Bureau of Land Management. Now, Garcia Zarate, as you've said, Martha, an illegal immigrant, who'd been deported from the U.S. five times, and had seven felony convictions. In fact, at the very time of the shooting, Garcia Zarate was also on probation for a violation in Texas.

And just days before the shooting, and this is the critical point, he was in the San Francisco jail. He was a suspect being held on drug charges, and Immigrations and Custom Enforcement or ICE, they put a detainer on. In a meeting they asked the local sheriff to hold him until they could come down and pick him up and then likely deport him. But because of San Francisco's sanctuary cities policy, Garcia Zarate was set free. That, of course, sparked a national outcry. And you have to remember that Kate Steinle was shot on July 1st of 2015. Then-Presidential Candidate Donald Trump had just gotten in the race two weeks prior to that.

So, Trump used Steinle's death to call for a crackdown on sanctuary cities and to build a border wall. The president, in fact, continues to this day, to use Kate Steinle's case during speeches on immigration, to call for that wall. Senator Ted Cruz was among those who pushed for Kate's Law that would have placed mandatory minimum sentences on those who repeatedly cross the U.S. border illegally. That bill never came to a single vote. Again, Kate Steinle's father, as Claudia said, gave very emotional testimony in court. They are in the process of multiples lawsuits against the city and those they believe are ultimately behind what was lack of enforcement that caused and led to their daughter's death.

MACCALLUM: Yes. Jim Steinle has been so eloquent and strong, the family has, throughout the course all of all this and speaking out about the loss of their daughter and horrific circumstances that led to it as we've been out running here. I just want to give you a little bit of, you know, sort of a check his of how this is going to work. You see on the right-hand side of your screen, this is the hallway outside of the courtroom, obviously. A lot of cameras waiting for this very important decision tonight. This is a case that the whole nation has really followed very closely since that death in July of 2015, and ensuing immigration debate that it ignited in such a huge way.

So, we have been told that our producer and other producers have gone into the courtroom. So, that is a sign that the decision is getting closer. They will turn off their cellphones as they enter there. So, they will not be able to text any messages out. They'll run those messages out physically after that verdict comes down. So, there will be sort of a quiet period as they go in there and we wait for that verdict to come out. That information was given by the sheriff. You can see, everybody, who is standing by as they wait for the tense moments to pass and the judge to be seated.

We know that the jury has their verdict. They are ready to go. It's a question of getting everything, all their ducks in a row as everybody ensembles and sits down in there. And just a reminder, the Steinle family, as Claudia Cowen reported, is not in the building. So, you will not see their reaction. We will wait to hear from them as this news sinks in as the moments pass by this evening as well. Let's bring back in Mark Eiglarsh, Criminal Defense Attorney and Former Prosecutor; and Marc Thiessen, American Enterprise Institute Scholar and a Fox News Contributor.

You know, Marc, if you could politically, you know, sort of, give us the landscape as you see it. If this goes one of two ways, you know. If he's convicted, obviously it's a win for the Steinle family, most importantly -- they are the central focus of all of this. But in terms of the larger picture of immigration on the building the wall, how does this come down in that scenario and in the other scenario where this man, you know, gets a light sentence or is let off which is possible?

THIESSEN: Sure. I mean, first of all, the immediate impact will be as well on the issue that you raised, which is the sanctuary cities' legislation. You know, the Trump administration has barred funding for sanctuary cities, and a federal court just, just stopped them essentially. It's continue -- that's ruled that they have to continue to funding cities with sanctuary cities.

So, I think President Trump will probably very quickly go to Congress, and say you need to something about that, to fix that. Base on the argument in the -- that the court, the federal court gave was Congress intended this money to go to the cities. The president doesn't have the legislative authority to change that. So, he can go to Congress and say in the name of Kate Steinle, please cut off sanctuary cities.

And secondly, quite frankly, I mean, if you just look at what Trace just said that information he just gave us San Francisco killed her. If they had cooperated with federal authorities and honored that detainer, he would've been in federal custody, he would not have been on that pier. He would not have been there with a gun, and Kate Steinle would be alive today. So, this San Francisco sanctuary city policy literally killed somebody and something needs to be done about it.

MACCALLUM: Yes. Mark, take us through that side of the case. You know, as they make a municipal case against San Francisco and the culpability that that city may have.

EIGLARSH: Well, the issue is whether they did anything that was negligence, which means it was reasonably foreseeable. There's an attorney looking for every possibility. And again, it's all about making change. You know, yes, it's about making as well, but the primary reason -- I'm sure this family is motivated like most families are in civil suits -- is to make change, to make that nothing like this ever happens again to someone, someone that they love like they do her.

MACCALLUM: So, let's talk a little bit about the possible sentencing here. If he is found guilty of first degree murder, he could face the death penalty or life in prison with possibility of -- without possibility of parole or 25 years to life in prison. Mark Eiglarsh, so, you know, as you look at the choices that the jury has. Second degree murder, 15 years to life in prison, and you go to involuntary manslaughter: two, three or four years in prison likely; assault with a semi-automatic fire arm: three, six, nine years in prison. Talk to us about these sentencing guidelines.

EIGLARSH: Well, let's start with -- he's actually facing time for possession of a firearm by a convicted felon. His own story is that he possessed the weapon, he just didn't intend to kill the victim. They should be finding him guilty of that which would then immediately lead to his deportation. The tougher question is whether they're going to find proof beyond and to the exclusion of every reasonable doubt that he intended to kill. At a minimum, his act -- assuming they don't find it -- was unintentional, it just went off like he's alleging, it was a reckless act to fire a weapon when there's people around.

That, at a minimum, should warrant a second-degree murder conviction. The only question is whether they're going to believe and credit the testimony of him swiveling around in her direction, and that couple with testimony that he looked in her direction, the photographs that tend to show that he looked in her direction -- that equals intent. And that's the only question I have: will it equal the most serious charge of first degree murder?

MACCALLUM: What about for his defense, Mark? What did they argue in terms of his state of mind, his ability to have intent in this case?

EIGLARSH: Well, they're arguing that here's a guy who possessed the weapon because he found it. OK. Let's assume that to be true. And that this device according to experts that the defense called, is known for firing unintentionally. I don't know if that's true or not. And it depends on how credible that expert witness was to even get jurors to think whether that's a possibility. Then, specifically, in this case, is that what took place? What helps the defense is that the bullet didn't directly go into the victim, it did ricochet which would suggest that he's either a horrible shot or the gun did go off accidentally, or the third option is, he just, like, was firing it recklessly which then would lead to a second-degree murder conviction.

MACCALLUM: Marc Thiessen?

THIESSEN: Yes. And so, the only possibility -- his only defense of not getting off of this in many ways is saying that it was accidental. Because it doesn't really Matter if he looked at Kate Steinle in the eye and said I'm going to kill Kate Steinle. He didn't know who Kate Steinle was. If you go and take a gun, and just -- he was trying to kill somebody and fire it into a crowd, that's murder, it's second-degree murder as Mark said, but it's murder. So, you know, I think that just -- the city of San Francisco, anyone who quite frankly supports some kind of DACA, you know, fix, or some changes in immigration had better, better hope that this guy gets convicted and deported. Because it's going to roil the debate in Washington over all of these immigration issues that are coming up enormously if this guy is somehow gets off from this.

MACCALLUM: Marc Thiessen, you know, what about the -- go ahead, Mark Eiglarsh, go ahead.

EIGLARSH: I can't envision. I mean, maybe you have one knucklehead on the jury who somehow says the gun might have went off accidentally. I just don't see a unanimous verdict where all of them, all of them, especially in light of the victim's father's emotional testimony, that must've been extraordinary. I've tried over 150 jury trials, and the worst thing that I face when I'm defending someone is the emotional testimony. And so, jurors would have to essentially through a not guilty verdict, say to the father, yes, I'm going to push aside your tears, which, by the way, is what legally they should do if they feel they didn't prove the case. But in a close call, that emotion will carry the day.

MACCALLUM: Very true. You know, I think everybody can sympathize, obviously, when you look at this family, and you look at Kate Steinle's dad, Jim, who as I said has spoken so movingly about this case, and about the larger implications of this case, but he's a dad, first and foremost. You know, every American believes that you ought to be able to go out for a walk with your dad on a beautiful day in July, and walk down the pier in San Francisco and not lose your life. And the account of her -- of him holding her, and her asking him for help, to help her, and the amazing, awful death of helplessness that he had to have felt in that moment is just heart-wrenching. And you know, that's why we watch this. You know, that's why we wait for this decision to come down. And, you know, the other thing is, it's my experience, and, Mark, I would imagine it's yours as well, that juries take these responsibilities extremely seriously.

EIGLARSH: Absolutely.

MACCALLUM: And they have been deliberating for 30 hours.

EIGLARSH: Absolutely. And let me just say this about the sympathy factor, judges will tell every jury -- both in state and federal court -- that sympathy plays no role here. You are not to consider sympathy at all, and you don't decide this case based upon how you feel about anybody for or against. But here's the reality: these are not jurors. They are moved by this significant loss. They are putting themselves on a pier, and they are thinking, really, we're not going to hold someone accountable if somebody tragically guns them down? I feel that these jurors want to hold someone responsible. And the fact that they all unanimously came to a decision, I find it very hard to believe that that means that they're going to acquit him of murder.

MACCALLUM: All right. Let's go back to Trace Gallagher out in Los Angeles who has more to weigh in on this. Hi, Trace.

GALLAGHER: Hi, Martha. I just want to kind of tell you about this whole ricochet thing you guys are talking about, because it's very important to understand the perspective. And if you had a -- if you had a picture of pier 14, which is right next to the San Francisco Embarcadero, you'd get a better idea of what they're talking about. Because we went up there, and we did a number of stories in the days following Kate Steinle's death. And when they talking about the ricochet of the bullet, it's not as if -- the term is a little misleading, it's not as if the bullet banged off one piece of concrete and then came at her, that she was at an angle, and they figured the shooter was at an angle where the ricochet could've just been a skim off one of the pile on, the cement pylons that go down the pier.

So, when you say he was a terrible shot if it really did ricochet, that's not exactly an exact perspective because it could have come from any direction, and then just glanced off one of those concrete barriers, and then hit Kate Steinle one time in the back. And we should also point out that at the time of all this, during this debate, the local sheriff was under immense pressure to do something about the sanctuary city policy. In fact, Senator Dianne Feinstein who was the Mayor of San Francisco some years ago, she came out and strongly saying at this point in time that this man, this suspect should not have been set free, should not have been put back on the streets because of the fact he had seven felony convictions against him. And this was a drug felony conviction that he was being held for, and he should've been turned over to the federal agents at that point in time. A huge political debate. And to this very day, San Francisco is now fully entrenched in the fact that they want to remain a sanctuary community. In fact, the entire state of California, for all intents and purposes is a sanctuary state. Martha.

MACCALLUM: Yes. I mean, Marc, this was such an animating feature in the Trump campaign. And so much of the emotion that people felt with this, you know, she sort of -- Kate Steinle, personified in many ways that fear, and the anger that people feel about not wanting -- you know, everyone understands that there are American citizens that they face danger from, but they don't want this. This isn't fair. People can't wrap their brain around the fact that it's OK for this guy to be here.

THIESSEN: Sure. And like, what she personifies, her death personifies, is the fact our system is broken. How can it be that a person who's been confessed five felony conviction -- I mean, seven felony convictions, and was deported five times, made his way back into the United States and was being protected by the city of San Francisco? It doesn't matter what your position is on illegal immigration. Every American should believe, this guy shouldn't be here. So, yes, we have -- I mean, it doesn't matter what you think of Donald Trump, it doesn't matter what you think about the illegal immigration position, we should all be able to -- Republicans, Democrats, Liberals, Conservatives, pro-immigration and anti-immigration -- agree that we need to fix the system, so somebody like this is not on a pier taking shots at American citizens.

MACCALLUM: Yes. And you think -- I'm going to bring in Guy Benson, who joins me now as well, Political Editor at and a Fox News Contributor. Guy, you look at the other part of the immigration debate that's going on right now, and the funding of the United States government and the possibility that in some of these, you know, financial dealings and the budget and funding, DACA is also a big factor that's being discussed -- whether or not children who've been brought here, through no fault of their own, should be able to stay. But it raises the question that we -- you know, we have so much concern for these young people, you know, and I there's a lot of sympathy for that argument, but at the same time, we want concern for people like Kate Steinle who ought to have the freedom to walk down the pier with their dad on a July afternoon.

GUY BENSON, FOX NEWS CONTRIBUTOR AND POLITICAL EDITOR AT TOWNHALL.COM: And not get murdered, exactly. So, I've listened to your guests, and Marc Thiessen has been really hitting a lot of the points that I would echo in terms of the broader immigration debate, which is what your question gets to, Martha.

And one thing that I'm reminded of, especially since you asked about President Trump earlier and some of his themes on the campaign trail on immigration, the reason that his immigration rhetoric was so resonant with so many people, even people who may have doubted his ability to follow through on every promise he was making, was the fact that for years, including -- especially during the Obama administration, we were told by people in power that the border was effectively secure. And over and over again, we have found that that is not true, whether it's with the unaccompanied minor crisis down there in 2014 or instances like this horrible tragedy where an illegal immigrant was deported five times. That the thing that really starts to stirs some outrage deep within me.

This guy was caught, convicted seven times, thrown out of our country five times, and kept getting back in. That's not a secure border. I don't care how you spin, and it's insulting to the intelligence of Americans when we see this type of thing happening to contend otherwise.

MACCALLUM: It absolutely is. Let me just point out on the right-hand side, you see everybody's getting ready assembling for this verdict as we wait for it just to -- if you're just joining us. The judge did give the word. Some 30 minutes or so ago, that in 30 minutes, that verdict would be ready to go. So, they're assembling everybody in the courtroom, and our producer is in there. Text messages, cellphones are down. So, we will wait until the verdict is read, and then the produces will leave that room and come out to give us the verdict as it comes in. Claudia Cowan is standing by as well. Claudia, just a sense of what the mood is like there tonight?

COWAN: Well, there's a lot of anticipation. You know, this has been a big local story for, you know, more than two years -- almost two and half years. And so, there is a lot of media here. I'm counting five or six different live trucks, perhaps you can hear the helicopter hovering above me. Everybody has been waiting for this moment, you might say, for this verdict to be reached.

Honestly, earlier today, there was speculation that it was taking so long that the jury might be deadlocked, and then we got word that some of the jurors asked to see and handle the gun that was used to kill Kate Steinle. There was very little information, honestly, during these deliberations of what was happening with the jury. And the media was not allowed inside the courtroom, which is very rare. But we did hear today that they asked to see the gun.

And then, just a matter of hours later, they reach a verdict. But, yes, a lot of anticipation here. And you can, perhaps, see some of the media milling around behind me. Most of the members of the press and media are inside the Hall of Justice, here behind me on the second floor down by a Department 13, where this trial took place. And they obviously have the microphones set up for when the defense attorneys and a spokesperson for the prosecution come by and give their statements.

We're going to want to hear from Matt Gonzales, he is the Chief Public Defender. He defended Jose Ines Garcia Zarate. And by many, many accounts Matt Gonzales did a masterful job. Now, we'll see what the jury decided and how they felt about Matt Gonzalez's job. But by most accounts, and myself having sat through this trial, he did a very good job.

And, of course, on the prosecution, we may hear from Diana Garcia, she was the Assistant District Attorney for the People, who also did a very, very good job. But, again, there was no eyewitnesses to this shooting, only circumstantial evidence. No motive that we know of. He didn't know Kate Steinle. The defendant didn't know her. And so, we'll have to see if this jury decided that this tragic shooting was either a freak accident or an act of murder. We should learn anytime now, Martha.

MACCALLUM: Yes. So many layers of potential probability, and as was pointed out earlier tonight, it is not a case of what happened? We know that the gun -- the shot that was fired by Jose Garcia Zarate's gun is the bullet that killed Kate Steinle. We know that this bullet came out of absolutely nowhere when she was walking on that pier with her father as we have said. Trace -- let me go back to Trace Gallagher in Los Angeles, who is watching all of this and waiting for this verdict along with us. Trace, in terms of this gun, because that was one of the initial questions, where did he get this gun? And that's a legal part of this story as well.

TRACE GALLAGHER, FOX NEWS: It's a huge part, which is why the Steinle family is actually suing the Bureau of Land Management because the agent for the BLM left his car open and the gun was missing. Now it's unclear if Garcia Zarate actually stole the weapon from the car. He claims that he found it wrapped in cloth inside a dumpster. And then, when he was walking along the Embarcadero, the gun suddenly went off, and the bullet -- he was not aiming at anybody, and the bullet ricochet and it hit Kate Steinle. You know, it's important when you look at the whole scheme that Claudia was just talking about, the defense, and how the defense was meticulous about - - kind of laying this out.

It's also important to know, Martha, that you look at the makeup of the jury and you have 6 men and you have 6 women, and 3 of the jurors are immigrants. And so, when the defense is laying this whole scenario out, that is playing into the entire scope of where he's trying to lead this jury. There's been a lot of talk. Well, they deliberated for the better part of five days, four and a half days if you will. I mean, they've been deliberating for a week. We had the Thanksgiving holiday. So in the course of that they deliberated for a little over 30 hours, approximately five days in all. And the question becomes, is this a hung jury? We still haven't gotten the verdict. Understood debates going on? How do they present this? A lot of times when you have these kinds of delays, and we're up in San Francisco for the Scott Peterson verdict years ago, and the Michael Jackson verdict in Central California, so when you actually get the brass task of what happened you could see there was some negotiation at the end of how this thing is set to be delivered. That might be what we're going through at this point in time. Martha?

MACCALLUM: All right. We are getting some early indications here. We're not going to go with anything until we know that we are in target. But I can tell you that it appears that the verdicts are beginning to be read as we've mentioned before. As we've mentioned before there are -- phones are supposed to be shutdown in that courtroom, but it is always possible that some of those messages are getting out before we get anything. So we just want to be -- we want to stay very cautious here because, you know, even when you start to get some of this information, we have to keep in mind that some of the early parts of the verdict may not necessarily reflect whether or not the jury found, you know, not guilty on one aspect of the definition of murder, whether it's first degree, second degree, or involuntary manslaughter. So we wait to hear as they go through the course of these. And I'm going to refrain from saying what they are doing at this point as we wait for our own producer to give us the information that we need. But, you know, Mark, obviously, give us a sense, Mark Eiglarsh, of what it's like in a courtroom as these start to be read, and why we need to be cautious about jumping the gun in terms of what it means.

MARK EIGLARSH, ATTORNEY: Well, it's the most tensed environment ever. If you've ever gone through it I tell my clients, you know, do everything you can to avoid that scenario because if you're in it, it is -- it's literary life or death in this scenario. I do want to go back to something that was said earlier with one of your reporters which I did not know. So jurors were deliberating for quite some time, and then what did they want to see? The gun. Why do they want to see the gun? Think about what the defense is. It went off accidentally. I'm guessing that they took the gun, they each -- or whoever wanted to, put their finger on the trigger and then realized, wait, this doesn't just go off. You've got to actually put some pressure on this thing to make it happen. And then shortly thereafter, after looking at the gun as requested, they had a verdict. If I'm a prosecutor, I think that's very favorable. I think they debunked with that experiment the defense's theory that the gun just went off accidentally.

MACCALLUM: Interesting. We're keeping a close on this. And as I've said, we're getting early indications but we are -- we're waiting. You can see when you look on the left-hand side here -- or the right-hand side rather, cameras are getting ready. There's a lot of activity in that hallway, and people seems to be moving toward the cameras. It is possible that people are starting to come out, so we're going to keep a close eye on that as we wait for this verdict to come out. Let's watch this for a moment.


UNINDENTIFIED MALE: Let's do it. Let's do it.


MACCALLUM: Kate Steinle's case is going to be announced momentarily. You're looking at a live shot in the hallway as everybody is leaving there. We're waiting to find out whether -- All right. The word I'm getting is that he was found not guilty on murder charges. And as I say the rest of these charges are coming. Involuntary manslaughter is one of the charges here. Second degree murder would be another one that he is being considered for. First degree murder is another one of these charges. So we have to get through all of them. But the early indication is not guilty in the murder of Kate Steinle. This is an illegal immigrant. He was guilty in the possession of the firearm. And as we just talked about, the jury asked to see that weapon before they made this decision. This is what we know so far that he has been found not guilty in the murder of Kate Steinle, which I think is fair to say is a shocking verdict. Given the fact that we know he had the gun, we know the bullet came from his gun, and we know that bullet killed Kate Steinle. Jose Zarate not guilty in the Steinle murder. And as I say, there are a number of charges here as we wait to go through them all. And it is possibility that there's involuntary manslaughter charge here, but what we're hearing in the early going is that he is not guilty. All right. Let's go and listen in. This is KGO, let's listen to what they're saying in the hallway.

UNINDENTIFIED FEMALE: The way it went for that was that the judge asked the members of the jury have you reached a verdict? And they said we have. And by the way, it was the four persons who delivered an envelope to the judge. And he spent about three minutes reading over. And I can tell you, you could hear a pin drop. It was so quiet in there. Everybody very anxious to find out what the verdict was. And that I've just told you they arrive to that conclusion.


UNINDENTIFIED FEMALE: No. I think that's something they may do later.

MACCALLUM: All right. That's happening in the hallway. It is a stunning verdict that we have in the Kate Steinle murder case. It is obviously a heart breaking verdict for the Steinle family. The only charge that he was found guilty of was felony possession of a weapon. Mark Eiglarsh, your reaction?

EIGLARSH: It's just so ironic that someone who is not from here gets the benefit of reasonable doubt, the burden of proof. All these wonderful cherished freedoms, and I think that's what saved him. The prosecutors had the burden of proof. The defense put on experts that they probably thought would advance the defense's claim. And the jurors were not convinced beyond a reasonable doubt. That's how it works. The jurors could say we definitely believe it was probably murder and that's not guilty. So the immigrant benefits under our criminal justice system like every single defended which is fair. That's how we treat people. It's very ironic.

MACCALLUM: All right. Let's go to Claudia Cowan who have been watching this trial play out over the last several months. Claudia, stunning, stunning verdict tonight.

COWAN: Just astounding. But what did I say, keep an eye on Matt Gonzalez, he is the chief of public defender here in San Francisco, was a running mate of Ralph Nader in the 2008 election, as this guy really knows his stuff. He put on a brilliant case because he said over and over again this bullet ricocheted. And but for that ricocheted this bullet would have missed Kate Steinle by 78 feet. He claimed that he found the gun wrapped in a t-shirt under the bench. And also, what Matt Gonzalez did was he showed surveillance tape, grant and berry, grainy surveillance tape of people who had gathered around that same bench on that pier about a half-hour earlier and he built the case that these people were acting suspiciously and possibly they left the gun there. What the jury did not hear was any testimony about Garcia Zarate's criminal record or the fact that he was a multiple felon and deportee.


COWAN: None of that came in to this case. They only had the evidence to focus on and it was almost all circumstantial. Again, no motive. He didn't know Kate Steinle. There were no eyewitnesses to this shooting. And again, this bullet ricocheted. So Matt Gonzalez, I think people are going to be talking about this case that he presented. He certainly made this defendant not into a scary illegal alien that have crossed into this country repeatedly and had a criminal record, but a sympathetic figure, a hapless transient who was homeless and on this pier and just happen to came across this gun. It will be interesting to talk to the jurors, Martha. I'll tell you that.

MACCALLUM: Boy, will it ever. It's pretty hard to imagine -- you know, when you think about the fact that you can get involuntary manslaughter for hitting someone with your car. It's pretty astounding that you don't get involuntary manslaughter at the very least from firing a bullet from your gun that killed an innocent bystander. David Wohl joins me now, attorney and conservative commentator. David, this is stunning. He was found guilty, Jose Garcia Zarate, of a felony of possession of a weapon. Not guilty on involuntary manslaughter, not guilty on second degree murder, not guilty of first degree murder of Kate Steinle.

DAVID WOHL, CONSEVATIVE COMMENTATOR: Well, you know, Martha, it's interesting because a felon in possession of a firearm is a felony. It's a felony charge. And committing a murder -- committing any type of homicide while.

MACCALLUM: David, just hold on for one second. We're waiting for a presser here. I believe this is the prosecuting attorney, guys? Let's listen in.

UNINDENTIFIED MALE: I hope that they do not interpret this verdict as diminishing at anyway the awful tragedy, that burden that their family has suffered. This jury's verdict should be respected. They heard the evidence. They deliberated as a group. They heard read-back testimony, they've looked at the physical evidence, and they rendered a verdict to the best of their abilities in accordance with the law. I want to thank the public defender of San Francisco's, Jeff Adachi, who has given us support throughout the trial. He's given us good advice. And we're very grateful for his assistance and help and support. For those who might criticize this verdict, there're a number of people that have commented on this case in the last couple of years, the attorney general of the United States, the president and vice-president of the United States. Let me just remind them that they are themselves under investigation by a special prosecutor in Washington, D.C. And they may themselves soon avail themselves of the presumption of innocence and beyond a reasonable doubt standard. So I would ask them to reflect on that before they comment or disparage the results in this case. I'm going to allow the other attorneys to make a few remarks. Thank you, all.

UNINDENTIFIED MALE: A powerful day for all of us. I also offer my condolences to the Steinle family. This was just a incomprehensible tragedy. And many of us who are parents really can feel the extraordinary tragedy of what happened. I do want to talk about the political ramification for this case. From day one, this case was used as a means to foment hate, to foment division, to foment a program of mass deportation. It was used to catapult a presidency along that philosophy of hate of others. And I believe today, is a vindication for the rights of immigrants. That today we have to reflect all of us on how we talked about this case in the beginning and how this reflection and reaction on the face of what I believe to be the racial dynamic of this case. Nothing about Mr. Garcia Zarate's ethnicity, nothing about his immigration status, nothing about the fact that he was born in Mexico had any relevance as to what happened on July 1st, 2015. We believe the verdict is a correct and accurate reflection of the law and what happened on that day. Thank you. That's all we have. Thank you very much.


MACCALLUM: unbelievable. You just heard from the defense attorney Matt Gonzalez and his co-council. You know, basically said that they felt the jury, obviously, from their perspective came to the right conclusion. However, it took them about 30 seconds, maybe less, to launch into criticism of the president of the United States saying that he would advised the president to be aware that he is also under special prosecutor investigation and that he would hope to be treated with the same sort of impartiality in the justice system that we all abide by here in the United States of America. A pretty stunning statement. David Wohl, let me bring you in with your reaction to -- so some pretty incredible comments from the defense attorney.

WOHL: Yeah, amazing that he wasted no time in politicizing this verdict. I mean, Martha, the reality is this isn't about hate. It's about anger. This guy was deported 5 times and 5 times came back. Whether or not what he did with the firearm legally amounted to murder is irrelevant. The point is, he came to the pier, he has a loaded weapon, he fired the loaded weapon, it ricocheted off the cement and killed Kate Steinle. The point is, he shouldn't have been here to begin with. To politicize this to say that Americans hate him because he's a Mexican ancestry is absolute garbage. And in fact, this verdict if there is a silver lining will fuel the efforts to deal with these immigration issues such as the wall, such as sanctuary cities. That city, San Francisco, rolls out the red carpet so people like that man can come into the city and victimize their citizens. It's disgusting on a legal level, on a social level, on a political level. Every level it's outrageous. And San Francisco ought to be ashamed of themselves.

MACCALLUM: I do want to replay those comments because they really do speak for themselves. As soon as they are available we will do just that. The co-counsel said that from the very beginning this case has used to foment hate in this country. It is a stunning set of comments that we heard. Now we have someone stepped in front of the podium. Let's listen in.

UNINDENTIFIED MALE: This case was a terrible tragedy. Our greatest fear is that Mr. Garcia Zarate would not be able to get a fair trial. And early in the case, chief attorney Matt Gonzalez made the decision to try this case in San Francisco even though there is a tremendous amount of negative publicity around this case. There's a lot of statements and incorrect statements that were made that Mr. Garcia Zarate could get a fair trial in San Francisco. And today, the jurors demonstrated that. That regardless of the, again, tremendous amount of negative.

MACCALLUM: Claudia who is outside of Matt Gonzalez, the attorney we've just heard from. Claudia, take it away.

COWAN: Matt Gonzalez, you have a huge victory here tonight. It's going to get roundly criticized.

MATT GONZALEZ, ATTORNEY: Well, I'm not so sure about that. I mean, I think it's always been a relatively simple case to be honest with you. The physical evidence has always supported the finding that this was an accidental occurrence. And I think the jury came to that conclusion.

COWAN: In your statement just now you didn't waste any time attacking President Trump, why was that?

GONZALEZ: I didn't attack him. I just stated something that's obvious, which is we all have the protections of the presumption of innocence and reasonable doubt standard. And I just think that people need to really reflect on that before they start criticizing a verdict. And some saying, look, before you do that, you yourselves get this protection. I get it. We all get it. That's what it is to be in this country.

COWAN: Matt, what do you say to the Steinle family tonight?

GONZALEZ: Well, you know, I really have the utmost respect for them. I offer condolences. And I just have to say, they should not interpret this verdict as diminishing their loss. It's not about that. The reality is we have 300 million guns in our society, you know, 40 or 50 accidental shootings every day. Somebody dies every day. And this is just a tragedy what happened.

COWAN: Do you think there was one key piece of evidence in your presentation that swayed the jury one way or another? Was it the ricochet? Was it the grainy surveillance video?

GONZALEZ: I think the physical evidence -- I mean, once you're talking about the ricochet and the length that it has to travel before it hits Ms. Steinle in the back, and you consider that Mr. Garcia Zarate had no history for violence, he didn't know her, he didn't have a bad interaction with her. I mean, candidly, it really pointed to this result.

COWAN: The problem is so many people will say he should not have been in this country, and he should have been convicted at least of involuntary manslaughter?

GONZALEZ: But, you know, there're so many other people that could have picked up that gun and most likely would have. Someone working for the department of public works, you know, picking up trash on the pier. Some other tourist. Some other American citizen could have walked along there and picked it up. But at the end of the day, the jury, obviously, did not ignore what we presented to them in terms of the number of people at that seat and the lack of history for Mr. Garcia Zarate. I think it's a good verdict.

COWAN: What happens to your client now? Will he be deported?

GONZALEZ: Well, we'll be back in court in a couple of weeks to discuss the one charge that he was convicted of. We will not be representing him in the federal matter. And so, I don't have any comment or opinion about that.

COWAN: I have to ask you, how are you feeling about this victory for you tonight?

GONZALEZ: I feel good. But I also -- I have to say, I don't feel like I need to be congratulated for the outcome. To be totally candid with you, the physical evidence dictated this outcome. I'm just the lawyer that helped guide it along. But really this is -- this is what the physical evidence pointed toward.

COWAN: Matt, stand by. Martha MacCallum in New York has a question for matt.

MACCALLUM: Yes. Thank you, Matt. We just watched your comments moments ago. You know, it's a difficult comparison to say the president and some of his people are under investigation. They're American citizens. This man was deported from this country 5 times. As you talk about the fact that anyone could have found that gun, it was found by an illegal alien. He fired that gun and it shot this young woman. So how is that not involuntary manslaughter? And how can you make a comparison with the president of the United States and this man?

COWAN: Martha, Matt did not have an earpiece in, so I will try to paraphrase your question for him. Martha is asking how can you make a comparison with this man and with President Trump when he should not have been in this country. Why was this not involuntary manslaughter?

GONZALEZ: It's not involuntary manslaughter because in order to prove it the prosecution had to prove brandishing of a weapon which is in a rude, angry, or threatening manner, and criminal negligence which would be that he knew that he had a gun and he handled it in a way that was dangerous to others. The jury clearly rejected that having heard the evidence. I do not mean to compare Mr. Garcia Zarate to our president Donald Trump. I have the utmost respect for the president of the United States. I'm just saying before you start tweeting or commenting on this outcome, just reflect on the fact that all of us get these protections. We have a right to a jury. We get this burden of proof. And, you know, we have to respect that a jury that spent this much time on this case, you know, got it right.

COWAN: We understand that the jurors asked to see the gun today. What do you think happened with that, and they came back with a verdict just a few hours later.

GONZALEZ: Well, they looked at a lot of evidence, heard a lot of read back. So it would be just be speculation for me to comment on that.

COWAN: All right. Matt, I'll let you go. Matt Gonzalez the public defender -- chief public defender here in San Francisco came right out of the hall of justice to talk with us here at Fox News, and to let us know that this is not necessarily a night that he will be celebrating, but a night where he feels that this jury reached the correct verdict given the evidence, again, largely circumstantial evidence presented during the trial, Martha.

MACCALLUM: Claudia, thank you very much. Claudia Cowan on the scene there and getting the first interview with Matt Gonzalez who defended Mr. Zarate. David Wohl, let me go back to you. Many things jump out. And I know you want to respond to them. But he said that it would be involuntary manslaughter if the defendant knew that he had a gun and mishandled it. I don't know how this crime doesn't fit that description at the very least.

WOHL: This was a -- by definition, it was a negligent discharge of a firearm. When you commit a negligent discharge of a firearm and someone gets killed because of that negligent discharge, that is involuntary manslaughter by definition. This case beyond what we talked about already was an utter, complete and total failure by the prosecutor who handled it. For them to not even get involuntary manslaughter charge in this case is shocking to the level that -- it really reduces your faith, if I'm a citizen in San Francisco county, in the criminal justice system's ability to protect innocent San Franciscans. That's just stunning, incomprehensible, and -- I don't know -- I've never seen anything like it, Martha. It's just unreal.

MACCALLUM: It's incredible. And I think that a lot of people are stunned as they watch this unfold tonight. Any lawyer or non-lawyer understands about involuntary manslaughter scene. In my mind that would have been the very least that they would have walk out there. As we say, we're going to hear from the jury as we go through this. The accusation that the case from the very beginning as was said by the co-counsel on the defense side was used to foment hate in this country. I also found astonishing.

WOHL: No. Anger is what was fomented. The fact that someone like this could go back and forth between Mexico and here so many times, someone with a serious criminal record -- as you know, Martha, I've got a client whose fiance was killed by an illegal immigrant drunk driver who's been deported five times as well. He's now pending trial. And we'll see what happens in that case. But the sad reality is on the civil end of this, there is very little if anything to hold these jurisdiction, these counties and these cities accountable when they don't take action to assist federal law enforcement in the deportation of these felons. There's almost -- these cases get thrown out of court because of governmental immunity. It's shocking. It's sad. But that's the state of affairs right now.

MACCALLUM: All right. David, thank very much for being with us tonight. Obviously, it is a stunning verdict. Breaking news this evening, that the man who killed Kate Steinle with his gun and with the bullet that came out off of that gun was found not guilty tonight. The only crime he was found guilty of was a felony firearms possession. He claimed that he found the gun, didn't know what it was, and that he picked it up and it went off and killed Kate Steinle. Let's bring Trace Gallagher back in for a moment. In terms of what happens from here with this man, Trace, tell us.

GALLAGHER: Well, it's curious, Martha, because now you heard the defense attorney saying that he will not be defending him in the federal part of this case. And what happens now is you have this man, Garcia Zarate, who already spent the better part, more than 2 years in prison. So if just the one charge of the felony possession of a firearm, then it carries anywhere between 2 and 5 years in prison, but likely the lower part of that. So in essence, this man could have served his time. He's been in jail, not anywhere else, could have serve his time and he could be freed at the end of this. So he could be freed in a matter of weeks. And at that point, he would be handed over to the federal authorities and then they would decide what to do with him. Likely they could file federal charges of some type against him. It's unclear exactly what they would file against him or they could deport him for the sixth time, it is likely they would take the latter.

MACCALLUM: Let's hope this time he can't get back in. But he's pretty good at it because he's done it 5 times. So he'll probably would be able to get back it. We're waiting reaction from the White House. Nothing from President Trump yet. I thought it was remarkable that the attorney that defended this man went to that immediately, basically, talking about President Trump, vice-president as well in his statements. So we wait for some reaction from them. In terms of the San Francisco part of this case, because you think of the Steinle's tonight and our hearts go out to them. This has been obviously a devastating verdict I would imagine. And we will hear from them in time. But the next step is to get some kind of change and justice from the city of San Francisco.

GALLAGHER: It's not going to happen. You know San Francisco, and I have been there many times. I lived there for years, Martha. And they have dug in. I mean, since this case, they're still not -- when there's detainers requested by immigration customs enforcement they're not complying. I mean, if it's not a felony they're not complying. They're kicking these people back out on the street even after this case. And there is no evidence to say that they will change their ways any time soon.

MACCALLUM: Well, I would imagine that the people of San Francisco feel very unsafe after this verdict. We will see. Trace, thank you very much for being with us tonight as we watch this unfold. A striking evening in justice and in the cases evolving around immigration and illegal immigrants in this country as Kate Steinle finds no justice this evening. The man who fired the gun that killed her is guilty only of a felony weapons possession charge. That is "The Story" for tonight. Stay with is throughout the evening. Tucker Carlson is coming up next.

Content and Programming Copyright 2017 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2017 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.