The instant that Trayvon
Martin's family, their attorneys, and civil rights leaders honed media
attention on his slaying and made it a national flashpoint issue, the cry rose
for a Justice Department probe and possible prosecution of George Zimmerman on
civil rights charges. The call was made because Sanford police officials and
local prosecutors initially declined to prosecute Zimmerman and there was the
strong suspicion that if they did, there was little confidence that prosecutors
would win a conviction in state courts. This possibility loomed even larger
when the prosecution took big hits for how it handled witnesses and the evidence
against Zimmerman. This raised the real possibility that Zimmerman would be
acquitted.
This effectively tossed
the ball back into the Justice Department's court. The demand almost certainly
will be made for a civil rights prosecution of Zimmerman. As compelling as a federal
prosecution seems to be, and as painful as it to admit, such a prosecution is unlikely.
The first tip that this is unlikely was the initial probe by the department.
After making an exhaustive investigation in which it took testimony from
legions of witnesses, the department could not find any evidence that Zimmerman
attacked Martin out of racial animus. This is the one requisite for a federal
prosecution. There has to be clear smoking gun evidence of a hate motive in the
attack.
The next requisite is
there has to a compelling interest. That's vague, loosely defined, and solely a
judgment call by a federal prosecutor. The prosecutor must obtain prior approval from the assistant
attorney general prior to bring the prosecution.
The few times that the Justice Department has prosecuted cops or racist
vigilantes on civil rights charges after they've been acquitted in state
courts, it came after either massive and sustained protests or in the case of
the cops that beat Rodney King in 1991, massive civil unrest following their
acquittal in state courts. The Justice Department certainly has
the authority to bring a second prosecution against Zimmerman after a state
prosecution has failed. But there is the "petite rule" named
after the U.S. Supreme Court's decision in 1960 that involved the prosecution of
an individual in two federal district courts for what amounted to the same
offense. The Petite policy appears in the Department of Justice's manual
and places tight restrictions on when it can authorize a prosecution after
failure to convict a defendant in state courts.
The reason for the
inaction in civil rights abuse cases such as the Martin killing, the feds note
that they are the "backstop" to local prosecutors. This means that they rigidly
adhere to the legal doctrine of separation of federal and state powers. The
killing of Martin, as all murder cases, was first and last a state matter, and
the feds scrupulously defer to local authorities to bring charges. If state or
county prosecutors won't bring charges or bungle the prosecution when they do,
the Justice Department does not regard it as its responsibility to usurp the
decision of local authorities not to retry or second guess a defendant's
acquittal.
This presents another
obstacle that causes Justice Department officials to take a hands off stance
toward prosecuting individuals who kill unarmed civilians under the legal or
quasi-legal color of law. The attorneys that defend the shooters almost always
are A-team attorneys. They are highly skilled, and have had much experience
defending police officers, or men like Zimmerman, who kill. They seek to get as
many whites on a jury as possible. The presumption is that white jurors are
much more likely to be middle-class, and conservative, and much more likely to
believe the testimony of police and prosecution witnesses than black witnesses,
defendants, or even the victims. The same rule applies to black or Latino
jurors. They are generally middle-class, and share the same biases, and
negative attitudes toward those they perceive as the criminal element as many
whites. This was a major reason why Zimmerman's defense attorneys did not seek
a change of venue for his trial. They pretty much got the jury that would be
most likely to be sympathetic to their pitch that Zimmerman acted in
self-defense and that Martin was the aggressor.
A Zimmerman civil rights prosecution
presents an even legal higher bar for federal prosecutors. They'd have to
sideswipe Florida's so-called stand your ground law that says that individuals
are perfectly within their rights not to retreat in the face of a real or
perceived threat. In plain English, if they think they're in danger no matter
how whimsical the threat they can take action up to and including deadly force.
Though the stand your ground was not an issue in Zimmerman's defense, the
self-defense claim was and that is implicit in the stand your ground law.
Martin's family, their
attorneys, and civil rights leaders face the terrible reality that if Zimmerman
walks, there will be little recourse from the feds. It's not just. It's not
fair. But, unfortunately, it's the system.
Earl Ofari Hutchinson is an author and political analyst. His
new ebook is America on Trial: The
Slaying of Trayvon Martin ( Amazon ).
He is an associate editor of New America Media. He is a weekly co-host of the
Al Sharpton Show on American Urban Radio Network. He is the host of the weekly
Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the
Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter:
http://twitter.com/earlhutchinson