Bulos Zumot, a former Palo Alto resident who was convicted in 2011 of murdering his girlfriend, Jennifer Schipsi, and setting their rented cottage on fire, will face a new trial after a federal judge concurred with his claims that prosecutors had failed to disclose to the jury evidence that supported his alibi.
In a Sept. 2 order granting Zumot's petition for a writ of habeas corpus, U.S. District Judge William Orrick directed the state to release Zumot from prison, unless the state commences proceedings for a new trial within 120 days. The Santa Clara District Attorney's Office plans to retry Zumot within that window, spokesman Sean Webby said in an email.
Zumot is currently serving a term of 33 years to life at California Men's Colony, a state prison near San Luis Obispo, after being convicted of killing Schipsi and setting their Addison Street cottage on fire on Oct. 15, 2009. According to the California Department of Corrections and Rehabilitation, he is eligible for parole in October 2034.
By granting Zumot's petition, the federal court handed him a victory after numerous defeats on the state level. In November 2016, the California Superior Court denied his petition for writ of habeas corpus. Two months later, he filed a petition to the California Court of Appeals, which rejected his argument on Aug. 31, 2017. Zumot then took his petition to the California Supreme Court, which similarly denied it in March 2019.
Orrick, however, concurred with the arguments from Zumot's attorney, Cliff Gardner, that the prosecution's case had significant flaws. In his petition, Gardner focused on two pieces of evidence that were used during the trial: surveillance footage from the now-closed Da Hookah Spot on Oct. 15, 2009, the day of the fire, and a record of phone calls from a blocked number that Schipsi received on Aug. 24, 2009.
During the trial, Palo Alto police officers testified that Zumot was at Da Hookah Spot, a University Avenue hookah lounge that he owned, at about 6:47 p.m., and surveillance footage showing him at the downtown establishment at that time. This suggested that it was feasible for Zumot to set the fire between 6:35 p.m. and 6:40 p.m. and reach the hookah lounge by 6:47 p.m. The Fire Department received the call about the fire at about 6:39 p.m., when Zumot's landlord saw the flames and reported the blaze.
In his petition, Gardner presented evidence suggesting that Zumot may have been at the hookah lounge earlier, which would make it less likely that he had started the fire. One was footage showing Zumot at 6:45 p.m. The other was a five-second clip from 6:41 p.m., showing a blurry image of someone walking to the hookah shop from the Ramona Street entrance. Gardner contended that the man was Zumot; prosecutors claimed that the man was another hookah shop employee.
"The video evidence shows that the state presented false evidence and argument as to exactly when Mr. Zumot arrived in the café," Gardner wrote in the petition. "The state's argument that he did not arrive until 6:47:38 was false."
In its response, prosecutors from the California Attorney General's Office disputed the idea that this footage represents "false evidence" and pointed to prior court decisions, which found the 6:41 p.m. footage highly questionable. The person in the brief clip is shown wearing a shirt with shirttails extending below the waste, the state's argument notes. Zumot was wearing a sweatshirt that ended at waist level.
"Petition's claim should be rejected. No 'false' evidence was introduced or argued at trial, and even if it was, the prosecution neither knew that nor should have known it, and the evidence was not material," Attorney General Xavier Becerra, Supervisor Deputy Attorney General Peggy Ruffra and Deputy Attorney General Gregory Ott wrote in their answer to Zumot's petition. "Petitioner's claims to the contrary are built upon a selective characterization of the evidence adduced at trial, the prosecutor's argument, and petitioner's defense."
Gardner's second allegation of "false evidence" pertains to threatening phone calls that Schipsi allegedly received on Aug. 24 from a blocked number. During the trial, it was established that Schipsi had called Palo Alto police to report that Zumot had called her and threatened her life over the phone.
After the trial, however, it was determined that the phone calls from the blocked number actually came from Schipsi's friend, Roy Endemann. Gardner's petition states that Endemann had admitted to the police in 2013 that he had made the calls from a blocked number at Schipsi's request at a time when she was trying to get a restraining order against Zumot.
The petition argued that the prosecution presented false evidence in its arguments that the call came from Zumot.
"If the jury had seen the video footage from the café, and the telephone records regarding the August 24 call, a unanimous conviction was most unlikely," Gardner contends.
The state Superior Court rejected the argument, noting that the petition ignores the "detrimental inferences that could have been made had Petitioner proved definitively that Endeman made the call on Aug. 24."
"For example, emphasizing the victim had a friend make the call tends to show she was so fearful of the petitioner, and so desperate for a restraining order, that she would go to great lengths to obtain it," the court found. "From such actions the jury could have also drawn conclusions regarding the petitioner's personality and disposition which would have negatively impacted the defense case."
The state response to Zumot's petition points to other evidence that prosecutors presented at the trial, including records documenting the heated exchange of text messages between Zumot and Schipsi on the night before the murder, testimony from Schipsi's friends about Zumot's threatening behavior and forensic evidence indicating that she died from strangulation.
"The totality of the relevant circumstances points overwhelmingly to the petitioner's guilt," the response states.
Orrick, however, concluded that the false evidence cited in the Gardner petition was "material because it obviated the need for the jury to grapple with the parties' conflicting timelines of events and to assess the credibility of numerous witnesses, notably Zumot."
"Further, there was no tactical reason for trial counsel to fail to present and debunk evidence that directly bore on Zumot's alibi defense and his credibility as a witness," Orrick wrote.
Webby said the District's Attorney's office disagrees with the ruling and is preparing to retry the case.
"We need to get the case to trial within the timeframe ordered by the court," Webby said in an email. "We will work with CDCR (California Department of Corrections and Rehabilitation) to make that happen."