The attorney for Paul Zumot, the Palo Alto man convicted last year of strangling his girlfriend and burning down the Addison Avenue cottage they shared, is arguing in an appeal that Zumot did not receive a fair trial and that the conviction should be overturned.

Cliff Gardner, the attorney representing Zumot, argued in a 120-page appeal that Zumot's conviction should be reversed because the judge violated the law when he allowed the prosecution to use testimony from the victim, Jennifer Schipsi, as evidence during the trial. Gardner is also arguing that Santa Clara County Superior Court Judge David Cena gave the jury "one-sided and unbalanced instructions" that favored the prosecution.

Zumot was found guilty of murder and arson in February 2011 and sentenced to 33 years to life. During the trial, the prosecution relied heavily on text messages and other cell-phone records to paint a picture of the turbulent relationship between Zumot and Schipsi, a 29-year-old real-estate agent. The message exchanges, along with testimony from witnesses, indicated that Zumot and Schipsi were involved in a major fight in the early morning of Oct. 15, 2009. Later that evening, Palo Alto firefighters and police officers responded to a fire at 969 Addison Ave., which arson investigators later determined was caused by an accelerant. Schipsi's body was found inside the burned cottage, though a coroner found that her hyoid was broken, suggesting that she was strangled before the fire.

The appeal from Gardner criticizes the judge and the prosecution for violating Zumot's Sixth Amendment right to "confrontation," which prohibits "hearsay" testimony in which the person making accusations cannot be cross-examined by defense attorneys. The prosecution relied on an exemption to this rule typically reserved for witnesses in gang-related trials who are prevented by the defendant from presenting their testimony at the trial.

Gardner is arguing in his appeal that the court made a mistake in allowing Schipsi's statements to be admitted under this "forfeiture-by-wrongdoing exemption." Under the common law, Gardner wrote, this exemption "applied only to the unavailable witness who had made statements or given a testimony at a prior proceeding." Gardner wrote that Schipsi had not testified or made statements against Zumot at any prior proceeding.

"Admission of the unconfronted hearsay was, therefore, not justified by the forfeiture-by-wrongdoing exception," Gardner wrote in the appeal. "Because Mr. Zumot had no opportunity to confront this evidence, admission of the evidence violated his constitutional right to confrontation."

The statements include comments Schipsi made to Palo Alto police officers in August 2009, shortly after she and Zumot had a fight. She told the officers about Zumot's "shady thought process" and "infatuation with murder" and asked for an emergency restraining order, which was granted. She also told police that Zumot had planned to burn down his University Avenue hookah shop, Da Hookah Spot, and collect the insurance money.

Gardner also argued that testimony about Zumot's history of domestic violence should not have been used to determine whether he had killed Schipsi. The prosecution's extensive discussion of Zumot's prior incidents of domestic violence, coupled with what Gardner called the judge's "conflicting instructions" to the jury about how this evidence can be used, violated due process, the appeal states. Gardner wrote that it is "universally recognized that erroneous admission of uncharged offenses is highly prejudicial."

"This is especially true here," the appeal states. "The state's case rested almost entirely on the prior incidents of domestic violence in conjunction with evidence that Mr. Zumot and Ms. Schipsi argued on the day she was killed. The defense case rested almost entirely on Mr. Zumot's testimony that he was completely innocent and had nothing to do with Ms. Schipsi's murder. Evidence that Mr. Zumot had prior incidents of domestic violence involving his girlfriend Ms. Schipsi from which the jury could infer he was guilty of murder was devastating to his case."

Gardner is also arguing that Judge Cena's instructions to the jury had "undercut the presumption of innocence and the right to proof beyond a reasonable doubt." The court, Gardner wrote, told the jury that the prosecution had to prove that Zumot was involved in the prior incidents by a "preponderance of evidence" standard -- a lower bar than the "beyond the reasonable doubt" standard required for a murder conviction.

The court also instructed the jury that once the prosecution has proven the prior incidents, the jury could infer from these incidents whether the defendant is likely to commit and "did commit" murder. The jury, Gardner wrote, "was effectively told that the finding of criminal disposition -- from which guilt cold be inferred -- need only to be proved by a preponderance of evidence." The incidents, which the jury heard about during the trial, include episodes in which Zumot had spat at Schipsi, hit her car, threatened her and flooded her with hundreds of text messages.

"Of course, the ultimate determination of guilt was one in which the state had the burden of proof beyond a reasonable doubt," Gardner wrote. "Because the combination of instructions permitted the jury to make this determination based on evidence which the state was only required to prove by a preponderance of the evidence, due process was violated."

The opening brief from Zumot's attorney was filed in the state's Sixth Appellate District, which represents Santa Clara, San Benitez and Santa Cruz counties. The respondent's brief in this case has not yet been filed.

Zumot, 38, was represented during the trial by high-profile attorney Mark Geragos, whose previous clients included Michael Jackson and Winona Ryder. Zumot fired Geragos shortly before the sentence hearing in the fall of 2011.

Gardner also criticized the trial court for failing to assign Zumot a public defender after learning that Geragos was fired. Attorney Tina Glandian, part of Geragos' legal team, represented Zumot during the sentencing.

Gardner wrote that the court's refusal to either appoint a public defender or continuing the sentencing to another day so that Zumot could retain new counsel "deprived Mr. Zumot of his right to the effective assistance of counsel at sentencing."

Zumot is serving his sentence at the Calipatria State Prison in Imperial County, according to the state Department of Corrections.

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