Zach Kennedy's friends and family spread photos of him far and wide when he disappeared in 2017. Photo courtesy Jeff Kennedy.

A judge today threw out the murder charge pending against a 54-year-old Long Beach resident accused of letting a younger man die in his bathtub before mutilating and burying the body to conceal his death.

“It is absolutely disgusting what was done,” Superior Court Judge Gary J. Ferrari said. “But putting that aside, that could be different than the actual second-degree murder.”

The decision is a significant twist in the prosecution of Scott Leo, who is still facing other charges in the death of 31-year-old Zach Kennedy, whose disappearance more than three years ago sparked an intense search by police and garnered national media attention.

Leo’s attorney has admitted his client essentially let Kennedy die in October 2017 when the younger man overdosed or began suffocating after a night of drug use and sex.

But, over the course of several court hearings in recent months, defense attorney Matthew Kaestner has spent hours arguing that’s not enough to justify a murder charge.

“I agree it sounds bad that Scott Leo could have watched him take his last breath, but in California, you don’t have a duty to act unless you have a special relationship,” Kaestner said Wednesday, using a parent neglecting a child or a doctor overprescribing dangerous pills as examples of people violating that “special relationship.”

In his ruling, Ferrari declined to throw out a charge of involuntary manslaughter and a trio of narcotics counts including maintaining a house for drug use.

But the remaining charges could land Leo behind bars for only a maximum of four years if he’s found guilty instead of the 15 years to life the murder conviction would have carried, Kaestner said.

Leo, who was in quarantine in Los Angeles County Jail, wasn’t in court to hear the verdict.

“I haven’t been able to talk to him, but I imagine that he’s relatively elated,” Kaestner said shortly after the ruling. Ferrari also lowered Leo’s bail from $500,000 to $100,000—although it’s unclear if he’ll be able to afford even the reduced amount.

Scott Leo is accused of killing Zach Kennedy
Scott Leo appears in court via video at his arraignment on Wednesday, September 2, 2020. He was absent from his latest court date. Photo by Thomas R. Cordova.

Kennedy’s father, Jeff, who has pushed to keep Leo behind bars, was deflated by the news.

“It’s hard to take,” he said. He and prosecutors saw Leo’s actions as murder.

In court, Deputy District Attorney Simone Shay relied on an “implied malice” theory to justify the murder charge—meaning Leo may not have intended to kill, but he knew his actions were likely to cause Kennedy’s death and he continued anyway.

Leo had a long history of inviting over young men to use meth or GHB and have sex, meaning he likely knew the dangers of overdosing on the drugs, she argued.

When Kennedy was dying in the bathtub, Leo began texting a friend, saying Kennedy’s lips were blue and he couldn’t find a pulse but he didn’t want to call for help because he’d been chastised by police in the past for drug use.

“In this case, for that entire period of time, we have insight into the defendant’s mind,” Shay said.

Leo recognized the dire situation Kennedy was in but chose not to act, according to the prosecutor.

“What this man did is sit there and watch another human life ebb away in his home and chose not to call 911 because he didn’t want to get another lecture from police,” she said.

Kaestner seized on that point, arguing that Leo’s inaction in calling for help doesn’t constitute an action that led to someone’s death. It was most likely drugs—which Kennedy very well may have taken on his own accord—that actually caused the death.

Ferrari said his decision was made more difficult by Leo’s undeniably despicable decision to cut off Kennedy’s feet so he would fit the body in a plastic bin he buried in the yard. After disposing of Kennedy, Leo allegedly continued inviting men over to party while the body lay underground just a few yards away.

Nevertheless, Ferrari said, he didn’t see evidence that it amounted to murder.

“Of course, this doesn’t preclude the people from refiling this,” he said—prompting a quick reply from Kaestner suggesting prosecutors appeal the judge’s decision if they disagree with it fervently enough to file an entirely new case.

“I have no problem with that,” Ferrari said. “I’ve made mistakes before.”

“This isn’t one of them, your honor,” Kaestner quipped.

That, the judge said, is yet to be seen.

It will be up to a jury to decide Leo’s guilt if prosecutors decide to proceed on just the remaining charges.

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Jeremiah Dobruck

Jeremiah Dobruck is managing editor of the Long Beach Post. Reach him at [email protected] or @jeremiahdobruck on Twitter.