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Death row inmate's fate turns on the word 'hacker'

A California death row inmate's fate may depend in part on his use of the word "hacker." Enrique Zambrano, a former Berkeley, Calif., bureaucrat, used it in letters to his then-girlfriend that were introduced as evidence in his trial.

A California death row inmate's fate depends in part on the word "hacker."

Enrique Zambrano, a former Berkeley, Calif., government bureaucrat, was convicted of murdering a fellow waterfront commissioner to prevent him from testifying against Zambrano in a 1988 assault case.

The killing was brutal. A hiker in the Lafayette hills found the headless body of Luis Reyna, the other Berkeley Waterfront Commission member, hacked to pieces. A forensic pathologist later testified that the neck vertebrae had been sawed off and the lower jaw was missing.

Now Zambrano is on death row and in the midst of a series of automatic appeals. In the most recent one, his attorneys argued that Zambrano's letter to his then-girlfriend using the word "hacker" should not have been entered into evidence because it was an inflammatory term -- and therefore provides sufficient grounds to throw out his conviction.

A brief history: In 1987, Zambrano was married and began an affair with a woman named, and we are not making this up, Celebration Oberman. Immediately after the murder, the couple fled to Mexico and bought a house, with Oberman returning to California to earn money for their living expenses. Eventually, in September 1989, Zambrano was arrested when he returned to California to join her.

A letter Zambrano wrote Oberman from jail in December 1989 said, in part, "If any of your friends attack me, tell them that you like your toy boys to be darkly handsome and charming and dangerous, hackers, murderers, pirates, and that I fit the bill." Another one two weeks later said: "Sorry I don't know more about kitchens. I do know about hacking, however; and I could easily hack you a cart to make pizzas."

Apparently, as you can see in the excerpt from the court opinion below, Zambrano was a computer aficionado, viewed the word in a positive sense, and liked his girlfriend to call him "her little hacker."

Now, in technology circles, the word "hacker" has long possessed two meanings: the first, is, of course, richly detailed in books like Steven Levy's now-classic Hackers: Heroes of the Computer Revolution. It means someone who is especially interested in probing how technology works, can be described as a virtuoso programmer, or is able to push the limits of computer hardware.

The second meaning is more derogatory and evokes lawbreaking, software piracy, and discovering and exploiting security holes. (Some self-described hackers call such folks "crackers" instead.)

During the trial, Zambrano's attorney objected to those letters being read aloud by Oberman to the jury, claiming they were not relevant.

The trial judge split the difference. He allowed the first letter, saying it was akin to "an admission of guilt," but refused to allow the "pizza cart" passage into evidence on grounds it wasn't relevant.

In their death penalty appeal, Zambrano's attorneys claimed the trial court was wrong to permit the first letter to be used as evidence. They argued that "hacker" was an unfairly inflammatory term and it violated his 8th Amendment trial rights.

But a majority of the California Supreme Court agreed with the trial court, saying it was reasonable to reference the letter and the allowing it as evidence provides "no basis for reversal" of Zambrano's murder conviction. The lone dissenter wanted to reverse the punishment of death on other grounds. Zambrano, of course, has the choice of appealing again.

Excerpts from the California Supreme Court majority opinion:

In his trial testimony, defendant stated that "hacker" was a "computer term" which had come to have a pejorative connotation, but originally meant "a person who would elegantly solve a problem by hacking at it but persistently trying to find a solution." He said that while he and Oberman were in Palm Springs, he had read to Oberman, a "computer illiterate," from a book about "hackers" as "computer heroes," and as a result, she had come to call defendant "her little hacker."

Defendant now urges that, by admitting exhibit 73-A, the trial court abused its discretion under Evidence Code section 352. He asserts the trial court admitted this exhibit even though it recognized that "hacker" was not used in a murderous context. In particular, he insists, by placing before the jury defendant's self-reference as a "hacker"-an inflammatory term for purposes of this particular case-the court denied him his Eighth Amendment right to a reliable capital trial.

We find no abuse of discretion. At the outset, defendant is mistaken that the trial court saw no sinister implication to defendant's use of "hacker" in exhibit 73-A. On the contrary, as indicated above, while the court considered that the "hacking" reference in exhibit 72-A (Ed. Note: this is the "pizza cart" letter) was probably innocent, it ruled that the "hacker" reference in exhibit 73-A could be considered an admission of guilt.

The court properly concluded that exhibit 73-A was probative on this issue. Though the meaning of the disputed passage was perhaps open to interpretation, a sinister construction was reasonable. Under these circumstances, it was for the jury to make the determination.

Nor, as the trial court implicitly found, was the evidence so uniquely inflammatory that its potential for unfair prejudice clearly outweighed its probative value. Indeed, by admitting this letter excerpt, the prosecution simply asked the fact finder to interpret the defendant's own bragging words. There is no basis to conclude the trial court erred by admitting exhibit 73-A.

Moreover, any error was harmless by any applicable standard. The jurors had already heard the disputed passages, read to them from the witness stand by Oberman. Under these circumstances, and beyond a reasonable doubt, later admission of exhibit 73-A into evidence cannot have affected the guilt or penalty outcome. No basis for reversal appears... We thus conclude defendant has failed to demonstrate that the record is inadequate for appellate review. No basis for reversal of the judgment is shown.