Will Zimmerman Be Prosecuted By The Feds?
Six women -- five white, and one Hispanic -- acquitted George Zimmerman Saturday night for the killing of Trayvon Martin. The jurors rejected both a charge of murder, which, under Florida law, required showing of hatred or animus, and manslaughter, which required a lesser showing of a lack of justification for the shooting death. They set Zimmerman free late Saturday night in a verdict that stunned many who suspected that this crime reflected less the exigencies of self-defense than it did the raw edges of the new American frontier between white, or near-white, privilege, and the black underclass.
Does that mean the case is now closed?
As a matter of Florida criminal law, the answer is yes. The Fifth Amendment’s ban on double jeopardy shields Zimmerman from another prosecution in the Sunshine State. Yes, there may be a civil suit. But claims for money damages ring hollow when there’s a dead body to account for.
Will Zimmerman face federal prosecution?
How can Zimmerman be prosecuted again?
The bar on double jeopardy applies to one sovereign at a time. In the Zimmerman case, that means he can be prosecuted but once by the State of Florida. However, a separate sovereign, the United States Government, can prosecute him if his conduct violates a federal criminal statute. There’s no bar on what I call “existential double jeopardy.” That’s the law, as crazy as it may sound. We may call ourselves the land of the free, but two sovereigns can call us to account for our conduct.
The federal Justice Department under Eric Holder has been uncommonly aggressive in its prosecution of civil rights claims. It has prosecuted cops for conduct that many civil rights practitioners regard as garden variety misconduct.
What of a federal prosecution of George Zimmerman?
There is a precedent for the feds stepping in to prosecute after a failed state prosecution. Recall the Rodney King case? After a California jury acquitted the police officers who beat King, a federal jury was empaneled, and several of the officers were then convicted and sent to prison.
Typically, federal civil rights actions require that the defendant be a state actor, that is, a person acting under color of law, whether that be a law enforcement officer, or some other official. However, 18 U.S.C. Section 249 holds open the possibility that a private person can be prosecuted for violating the rights of another.
The statute seems tailor-made for a case such as Zimmerman’s.
The statute requires, for purposes of the Zimmerman case, that a person use a firearm to injure or kill another because of his actual or perceived race. The defendant need not be a public employee.
To be found guilty, a defendant must act willfully to cause death, and he must act to cause death because of the race of the victim.
Proof of a race-based animus might be difficult in federal prosecution. There’s no smoking gun, no KKK membership card in Zimmerman’s wallet, to make it easy. But states of mind are proven by circumstantial evidence. What’s an armed guy doing in a gated community other than keeping strangers out? And who can be stranger in a gated community than a young black kid? Armed with statistical proof about who lives in gated communities, this case might make it to a federal jury. The feds can call as an expert witness on life in gated communities none other than Rich Benjamin, whose book,Searching for Whitopia: An Improbable Journey to the Heart of White America, published in 2009, sketched a compelling picture of white flight behind the security of gates from an integrated America.
In order to establish federal jurisdiction over the shooting, the feds would next have to prove that the gun Zimmerman used traveled in interstate commerce. That is usually an easy enough thing to do. All that would be required was a showing that the gun was manufactured somewhere other than Florida. Zimmerman need not have been the person to move the gun across state lines.
Finally, the statute requires that Attorney General certify that such a prosecution is in the public interest and that it is necessary to secure substantial justice. This is where politics become key.
Reaction to the Zimmerman acquittals will spark massive discontent among communities of color. There will be a justifiable suspicion that things might have turned out differently if a black man shot a white boy. A tense nation now waits to see whether there will be violence in communities who feel betrayed by the verdict. I suspect public discontent with the acquittals in the California prosecution of Rodney King’s assailants played a large role in the Justice Department’s decision to prosecute again.
A federal decision to prosecute would be a political decision. It would not be unprecedented. Several years ago in Connecticut, a state judge handed out a lenient sentence to a defendant who pleaded guilty to possession of child pornography in the Town of Avon. When the community erupted in outrage, the feds indicted, and secured a lengthy prison sentence.
Zimmerman’s defense team in Florida did a masterful job. I wondered at the outset about the wisdom of six female jurors. I wonder whether the prosecutions over-the-top emotionalism backfired in this case. Did it frighten the ladies of the jury? Were the women inclined to view Zimmerman as their protector against the dark menace lurking in the distance? Certainly, Mark O’Mara, who lead the Zimmerman defense team, was the sort of quiet, understated hero who would pose no threat to the timid. That was a once in a lifetime jury.
I’m no fan of the federal government, and I am surprised by some of the prosecutorial decisions it has made in civil rights cases in recent years. But a significant number of Americans will be deeply troubled by the Zimmerman acquittal. It may well be that this case will get a second. If so, don’t be surprised if we see round two in a federal Florida courthouse some time soon.