Zumot challenges constitutionality of bail law

An attorney for accused murderer Bulos “Paul” Zumot argued on Friday in Santa Clara Superior Court that a county statute on setting bail is unconstitutional.

Zumot, owner of Da Hooka Spot lounge on University Avenue, is accused of strangling his girlfriend, Jennifer Schipsi, on Oct. 15, 2009. Prosecutors say he set their Palo Alto rental home at 969 Addison Ave. on fire to cover up the crime.

Zumot has been held in county jail without bail since October. Santa Clara County prosecutors asked for the no-bail status based on the presence of accelerant found on Zumot’s clothes by an accelerant-sniffing dog and Zumot’s statements to police that he was the last person to see Schipsi alive. The two had argued before she was killed, according to a police report.

But holding Zumot without bail is unconstitutional, San Jose Defense Attorney Cameron Bowman argued. A defendant charged with non-capital murder is entitled to have bail set, he told Santa Clara County Superior Court Judge Patricia Lucas. And the legality of the county’s bail schedule, which sets predetermined rates, “is arbitrary and unconstitutional,” Bowman said.

When the presumption of guilt is great and based on facts, and the court finds clear evidence the defendant would be a flight risk or cause harm to others if released, a court can withhold bail, he said.

But in Zumot’s case, neither clear and convincing evidence of Zumot’s guilt is present, and the previous reasons for withholding bail have changed as more affidavits are unsealed, he said.

Zumot’s clothing and other evidence were sent to a Department of Justice, Bureau of Alcohol Tobacco and Firearms laboratory. Tests there found no presence of accelerant on the clothing previously sniffed out by the dog, he said.

The Department of Justice report did find the presence of gasoline on Zumot’s shoes, but noted that shoes have been shown to contain petroleum products. Acetone, another ignitable liquid, was found on the passenger-side foot carpet in Zumot’s vehicle. Acetone is often found in nail-polish remover and some paint thinners, according to the report.

Without the presence of accelerant on Zumot’s clothing, which was the prosecution’s main evidence resulting in his arrest, Zumot should receive bail, Bowman said.

Surveillance video at Zumot’s downtown Palo Alto business, Da Hookah Spot, could also provide an alibi that would exonerate Zumot, Bowman said. Palo Alto police, who have not produced any report to show that Zumot did not have an alibi, confiscated the “Lorex” surveillance video system. Zumot and two employees have said he was at the business at the time the fire was started, according to court papers.

The Santa Clara County District Attorney’s Office has refused to turn over a copy of the videotape in a useable format, Bowman told the court.

“If the surveillance tape shows (Zumot) coming into his place of business before the fire was started, he did not commit this crime,” Bowman said.

Attacking the county’s “predetermined” bail schedule, from which judges set bail amounts, Bowman said the U.S. Supreme Court and California statutes have determined that once a prisoner appears before a magistrate, it is the judge’s duty to fix bail in an appropriate amount based upon factors relevant to that prisoner. The nature of the charges, the defendant’s standing in the community, family and other factors should be considered, he said. Bail should not be based upon any fixed schedule, Bowman argued.

Zumot is a low flight risk, since police have confiscated his passport, Bowman said. Setting a high bail or other judicial safeguards, such as requiring Zumot to wear an electronic monitor, would also be deterrents to flight, he added.

Deputy District Attorney Chuck Gillingham did not submit a rebuttal brief. He told Judge Lucas the no-bail ruling should be sustained because Zumot gave conflicting testimony regarding his whereabouts to a Monterey County sheriff’s deputy who is a close friend. Zumot told the friend at one point he had gone home prior to arriving at his business, Gillingham said.

Zumot’s history of domestic violence against Schipsi, coupled with restraining orders against him should be sufficient to show that Zumot poses a public danger, Gillingham said.

Schipsi filed for a restraining order against Zumot in 2008. Zumot and two brothers, Tony Ghanma and Hisham Ghanma, with whom he had quarreled, applied for restraining orders against each other.

Bowman countered that Zumot also filed a restraining order against the Ghanmas and all parties had agreed to drop the orders.

Judge Lucas, who had inherited the case just a half hour prior to the hearing, said she would issue a written decision on Thursday, Feb. 4, at 1:30 p.m.