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.



Comments: (3)

  • SYG
    Thanks for a wonderful report. I was wondering the same thing but have no legal experience in that federal arena. But let me get this straight: a white man with a gun can take after black kid with a pack of skiddles but if the black kid stands HIS ground and stops running, if he manages to get on top of the guy with a gun, and if he uses deadly force against his stalker, then its 'self defense' for the white guy to kill the black kid who stood his ground? Ergo SYG is only for white men with guns?
    I say this because I've read, with much interest, the posts of Francois Arouet at Open Salon.com . See http://open.salon.com/blog/f_arouete. You may find them interesting so scroll through or just google it: .

    He claims that even one of the Trayvon Martin family lawyers wrote to him and agreed fully with this analysis. I think I agree with him that everyone gets it wrong. Not only is Florida's SYG statute good law it is THE law that should have convicted Zimmerman and exonerated Martin (notice that even Zimmerman dumped SYG.). Arouet wrote that to argue against SYG is to do Martin an injustice to strip the prosecution of the best argument.
    So, as in the OJ case, did the prosecution blow it? Arouet argued that "ZIMMERMAN'S SHIELD IS REALLY TRAYVON'S SWORD." The reason is found in the admitted facts and the plain language of the law. Under the plain language of the statute only Martin had the legal right to stand his ground and use deadly force. The argument is that it was Travyon Martin and not Zimmerman who had the legal right to STAND HIS GROUND and not back down. It seems like a no-brainer to me. Why on earth did the prosecution not argue that it was Travon who really had the right to stand his ground and use deadly force against Zimmerman?
    Posted on July 14, 2013 at 12:47 pm by John
  • your blog on zimmerman
    You use very weak words to describe women. It made me a little sick reading what you had to say.
    Posted on July 15, 2013 at 12:02 pm by Julie
  • Who's Right to SYG
    I was miffed that Eric Holder totally begged the question to pander to the anti-syg faction. He only muddies troubled water. And journalists? Are there any who can even ask the right questions?
    Anderson Cooper's race question to the anonymous juror was silly since the issue of race was not presented at trial; therefore her opinion was based on no evidence either way. An opinion based on what? That was a question never presented to her by the prosecution since no evidence was presented either way because the prosecution chose to not play the race card. Hopefully you point to a second chance for justice. A federal do-over.
    But that juror made my point for me. She said it. The judge instructed them they could consider SYG. My goodness, were they really not admonished that no law is absolute and the argument belongs to Trayvon even more than to Zimmerman? Where they really not instructed (as Charles Blow intimated) that the law applies culpability to Zimmerman for his role in the events that lead up to that point; and that they may find it was really not he, but Martin? who was legally standing his ground? Why were they not instructed they could apply SYG to Trayvon Martin!!! Why?! Where was Martin's advocate?
    “He [Zimmerman] had a right” the juror said. Really? No. He forfeited that right when he (with no fear because he was packing a gun) took after Martin who then stood his ground and defended himself; and it appears from the photos that Trayvon fought desperately. Where was the prosecution?! Where was Trayvon's 'zealous advocate' to plead he had a legal right to stop fleeing and stand his ground against what proved to be a deadly threat.
    George Zimmerman was not standing his ground. Trayvon Martin was. It was Martin who had the right to stand his ground and use deadly force against Zimmerman who, against better advice from actual authority, went after Trayvon with no fear knowing he was packing a concealed weapon.
    I can understand why the media uses this as an opportunity to challenge SYG but that does Martin a dis-service by exploiting his tragedy to push their own agenda. If they really cared about Mr. Martin, they should be arguing that, under these facts, he, and only he, had a legal right to stand his ground. Journalists aside, since even one of the Martin family attorneys agreed with me on this, I am totally miffed the prosecution did not present it as a rebuttal and the jury was not instructed that Trayvon may actually have had more than an equal right to assert the defense and stand his ground against Zimmerman.
    Posted on July 16, 2013 at 10:42 pm by Francois

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