Prosecutor’s misgendering offends, but verdict stands

At the trial of a transgender man charged with traffic-related crimes, a Solano County prosecutor referred to the driver as “she,” said it was an accidental mistake, then kept on doing it. A state appeals court says such conduct “offends the administration of justice” — but it wasn’t enough to overturn the driver’s convictions on all counts.

The evidence against Jasmine Mareza Zarazua was “overwhelming,” and the verdict would not have been affected by the prosecutor’s misconduct, the First District Court of Appeal in San Francisco said last Monday in a ruling upholding Zarazua’s convictions for resisting and recklessly evading a peace officer, hit-and-run driving resulting in property damage, and driving with a suspended license.

A police officer in Rio Vista spotted Zarazua driving a sport utility vehicle without a rear license plate in 2019, and instead of stopping, the driver led officers on a 15-minute chase, drove into a gated retirement community, nearly collided with a truck, then crashed into the bushes, the court said. He fled on foot but was eventually caught and arrested.

Zarazua identified as female at the time, but was a transgender male when the trial began in July 2021. Questioned by lawyers for both sides, prospective jurors all said they would not be biased for or against the defendant because of gender identity.

Then in opening statements, the prosecutor, after initially using masculine pronouns, referred to Zarazua as female. After the defense lawyer objected, the prosecutor said, “It’s not intentional,” but did the same thing eight more times in his opening statement, the court said.

Zarazua’s lawyer asked for a mistrial, but after the prosecutor apologized, Superior Court Judge Jeffrey Kauffman let the case continue. The events were repeated during closing statements: six more misgenderings by the prosecutor, who said they were accidental, and an unsuccessful objection by Zarazua’s lawyer.

The jury convicted Zarazua after 2½ hours of deliberations. Kauffman sentenced him to nine months in county jail.

“Parties are to be treated with respect, courtesy, and dignity — including the use of preferred pronouns,” Justice Victor Rodríguez wrote in last Monday’s 3-0 ruling. Prosecutors, representing the government and its enforcement of the laws, must be held to “an elevated standard of conduct,” he said, and repeatedly using the wrong gender for a defendant “can inject prejudice into proceedings.” And trial judges, added Rodríguez — a former Superior Court judge in Alameda County — “have an obligation to ensure litigants and attorneys are treated with respect, courtesy, and dignity — including the use of preferred pronouns.”

But to overturn a conviction because of the prosecutor’s misconduct, Rodríguez said, the defense must show at least a “reasonable likelihood” that the conduct affected the verdict. Here, he said, the prosecutor apologized, Kauffman told jurors to disregard his wording, and, in light of the evidence, “there is no realistic possibility Zarazua would have obtained a more favorable result but for the misgendering.”

Despite the court’s refusal to overturn the conviction, said Zarazua’s lawyer, David Kaiser, “the decision is the first published appellate opinion (state or federal) to recognize that misgendering can constitute reversible prosecutorial misconduct. The opinion recognizes the trial court’s ability to have defendants referred to by their chosen pronouns.”