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Federal Prosecution of Zimmerman Compelling, But Unlikely

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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.

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Earl Ofari Hutchinson is a nationally acclaimed author and political analyst. He has authored ten books; his articles are published in newspapers and magazines nationally in the United States. Three of his books have been published in other (more...)
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