Bulos Zumot, a former Palo Alto hookah shop owner who was convicted in 2011 of murdering his girlfriend, Jennifer Schipsi, and setting their shared Palo Alto cottage on fire, is heading for a new trial in February, more than three years after a federal court judge granted his appeal.
Zumot's defense attorneys and Santa Clara County prosecutors have been inching toward the trial since September 2020, when a federal judge handed Zumot a victory after a string of failed appeals at the state level. In granting Zumot's petition for a writ of habeas corpus, U.S. District Judge William Orrick cited flaws in the prosecution's case and ordered that Zumot be released from prison unless a new trial commences within 120 days.
Neither of those things happened. Zumot remains in California Men's Colony, a state prison near San Luis Obispo where he is serving his term of 33 years to life.
The trial, meanwhile, remains on the docket more than three years after the Orrick order. In October 2021, Zumot's team requested a delay, citing the need for more time to investigate the discovery documents and to receive commissioned opinions and reports from experts that they had consulted, according to court records. The prosecution did not object.
Records show that there have been nearly 20 court hearings relating to the new trial, including seven trial setting conferences. The next such conference is set for Dec. 27. The Zumot case will then be on the Santa Clara County Superior Court's master trial calendar on Feb. 13, when the status of the case will be evaluated and the timeline will be adjusted as needed.
Prosecutors have steadfastly disputed allegations that their case was flawed and the state Superior Court generally supported this argument, noting in its ruling that "totality of the relevant circumstances points overwhelmingly to the petitioner's guilt." During the 2011 trial, Deputy District Attorney Charles Gillingham presented to the jury evidence that included a heated text exchange between Schipsi and Zumot the night before her death, forensic evidence indicating that she was strangled, records from phone towers that suggested that Zumot had her phone in his possession.
The jury also heard testimony from a woman who said she was "100 percent" sure that she saw Zumot speeding through the neighborhood near the cottage shortly before the fire was reported. The jury also heard a detailed description of the fight that took place between Zumot and Schipsi on the day before her death, when they were on their way to his birthday party and he allegedly got jealous when she received a text from a male friend and Zumot reportedly threw a cell phone at her.
A key piece of evidence — and one that will likely take center stage at the upcoming trial — is surveillance footage from Da Hookah Shop, a hookah lounge on University Avenue that he owned. Footage showed Zumot at the shop at 6:47 p.m., about 8 minutes after the Fire Department received a report of the fire at the Addison Avenue cottage.
Defense attorneys later found surveillance footage that showed Zumot at the hookah lounge at 6:45 p.m. They also cited a five-second clip showing a blurry image of someone walking into the hookah shop at 6:41 p.m. from the Ramona Street side.
Attorney Cliff Gardner, who represented Zumot during the appeals process, maintained that the person in that image is Zumot and that his presence at the hookah lounge at the earlier time makes him less likely to have been present at the cottage during the time of the fire. Prosecutors had claimed the blurry image was another employee and noted that the jury had access to the full surveillance video and thus had an opportunity to consider the identity of that individual even though the 6:41 p.m. footage was not debated during the trial.
The surveillance footage was a key reason for why Orrick granted Zumot's petition for a writ of habeas corpus. He pointed to the prosecution's open statement during the trial saying that Zumot had entered the café at about 6:47 p.m., notwithstanding the footage showing him at the café a few minutes earlier. The state court's ruling, Orrick argued, was "based on an unreasonable determination of the facts in light of the evidence."
Orrick suggested that the state court's decision "reflects no attempt to grapple with the evidence that is contrary to its ultimate conclusion that the prosecution did not present false evidence."
"Accurate video evidence would have forced the jury to grapple with the parties' respective timelines of events along with the credibility of various witnesses on both sides. In this case, the false suggestion of a definite entry point was critical; the prosecution framed it as lending certainty in spite of the inexact timeline," Orrick wrote in the Sept. 2, 2020, judgment.
The federal judge also took issue with the lower court's treatment of a phone call that Schipsi received from a blocked number on Aug. 24, 2009, as she was trying to get a restraining order against Zumot. The call, which she had attributed to Zumot, was later determined to have come from Schipsi's friend. Orrick's order notes that the friend, Roy Endemann, had admitted in 2013 that he called he from a blocked number at her request in order to help her obtain a stay away order against Zumot.
While the state court concluded that the issue was immaterial, given all the other evidence of domestic abuse against Zumot, the federal judge argued that in making this determination the lower court had failed to address the question of whether the prosecution had presented false evidence. Orrick concluded that it did.
The federal judge also agreed with Zumot's assertion that his legal team, led during the trial by celebrity attorney Mark Garegos, fell below the acceptable standard of care because it had failed to fully review the surveillance footage or call out the false evidence about the Aug. 24, 2009, phone call.
"There was no sound tactical reason for failing to introduce Endemann's phone records into evidence," Orrick wrote. "The records would have done more than merely eliminate one threat from the record; they would have bolstered Zumot's credibility—which was critical for the jury's assessment of his testimony and alibi—and harmed the credibility of other reports that Schipsi made to third parties about her relationship with Zumot."
The counsel's performance, Orrick concluded, "fell below an objective standard of reasonableness."
In the years leading up to the new trial, Zumot's team has been reviewing the evidence and the prosecution's timeline, which suggests that the fire started sometime between 6:20 p.m. and 6:35 p.m. Last year, the attorneys made a request to interview a witness who reportedly walked past the cottage on his way to a party at the main house at about 6:20 p.m. and did not see anything unusual.
About 10 minutes later, after the group spotted the flames, the homeowner and another guest at the party reportedly went outside to fight the cottage fire with garden hoses. Firefighters arrived minutes later and found the burned body of Jennifer Schipsi inside.