This article first appeared in the St. Louis Beacon, July 15, 2013: The Justice Department could prosecute George Zimmerman for a hate crime under federal law, but such a dual prosecution would not be justified without more proof of a racial motivation by Zimmerman or ineptitude by state prosecutors.
That is the view of legal experts in St. Louis who followed the Florida prosecution of Zimmerman for the 2012 shooting death of Trayvon Martin, a young African-American man.
Former U.S. Attorney Stephen B. Higgins, a partner at Thompson Coburn, advised against a federal prosecution. He wrote in an email, “As someone 20 years ago who had to decide when it was appropriate (and inappropriate) for the federal arm of justice to pursue what are really state cases, I hope the U.S. attorney in that district and the civil rights division exercise their discretion and stay out of the case. Particularly because it’s so high profile and there doesn’t seem to be any evidence that the trial was tainted or ineptly prosecuted.”
Peter A. Joy, a professor at Washington University Law School and director of the Criminal Justice Clinic, agreed. “The jury heard all of the evidence and reached its verdict,” he wrote in an email. ‘I’m not going to second guess them. I’m sure this was a difficult experience for them due to the tragic loss of life.” He added that the evidence to support a federal hate crime prosecution was “thin.”
On Sunday, a day after a jury acquitted Zimmerman on state second-degree murder and manslaughter charges, civil rights leaders and some members of Congress called upon the Justice Department to resume its investigation and to prosecute under federal law. The NAACP started a petition drive pushing for federal action.
The Justice Department said in a statement Sunday that “experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the department’s policy governing successive federal prosecution following state trial.”
President Barack Obama didn’t say anything about the Justice Department in a brief statement released by the White House. The president said, “I know this case has elicited strong passions. And in the wake of the verdict, I know those passions may be running even higher. But we are a nation of laws, and a jury has spoken.”
Dual sovereignties
Filing a federal prosecution after a state acquittal would not be unprecedented. That is what happened in the famous Rodney King case two decades ago. After a state jury acquitted Los Angeles police of assaulting King – and after a deadly riot in reaction to the verdict -- the federal government successfully prosecuted some officers for violating King’s civil rights.
These kinds of prosecutions do not violate the Constitution’s prohibition of double jeopardy because of the so-called “dual sovereignty” doctrine. States and the federal government are separate "sovereigns" so federal prosecutors can file criminal charges in federal court for a criminal act growing out of the same conduct that led to state charges.
But there are both legal and policy limits.
One policy limitation is called the Petite policy, named after a Supreme Court case. It states that the Justice Department will file charges only if an important federal interest has not be vindicated by the state prosecution. Second prosecutions may be justified where there was:
- “Incompetence, corruption, intimidation, or undue influence” in the state prosecution;
- “Court or jury nullification in clear disregard of the evidence or the law”;
- An “unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact's consideration because of an erroneous interpretation of the law.”
The freedom of a young black man to walk home without intimidation could well be considered an important federal interest. But without evidence of state prosecutorial incompetence or jury nullification, the conditions for a second prosecution may not exist, lawyers say.
Weak evidence of racial hatred
There are other legal problems. In the King case, the government could charge the officers with violating his civil rights under “color of law” because they were state officials. Zimmerman, while a volunteer neighborhood watch captain, probably wouldn’t be considered to be acting under color of law, lawyers say.
Joy wrote that he didn’t “see any state action here, unless there is something about the city or state involvement in the neighborhood watch that I don’t know.”
That leaves the 2009 federal hate crime law that requires proof of racial motivation. But the FBI’s preliminary investigation of the case in 2012 found than none of the 30 witnesses questioned had found racial animus on Zimmerman’s part.
Joy agreed that “the evidence for a hate crime seems thin. The real problem is that Zimmerman had a gun. He never would have followed Martin if he was unarmed. It is tragic that this happened.”
Last year, Attorney General Eric H. Holder Jr. spoke of the high bar the government must clear in hate crime cases. “We have to prove the highest standard in the law,” he said at a news conference. “Something that was reckless, that was negligent, does not meet that standard. We have to show that there was specific intent to do the crime with the requisite state of mind.”
One of Martin’s lawyers, Daryl Parks, conceded to the Washington Post in an interview during the trial that, “There was not enough evidence to say that [Zimmerman] made this decision based on race. . . . On the facts of this case, you can’t say it was based on race.”
The state prosecutors argued and the evidence showed that Zimmerman had “profiled” Martin as a suspicious person in the neighborhood. But the state was not able to show it was racial profiling and the judge ruled that characterization could not be used in court.
A local investigator for the Sanford, Fla. Police department, Chris Serino, was skeptical of Zimmerman but told the FBI that Zimmerman followed Martin “based on his attire,” not “skin color.”
Some civil rights lawyers have disagreed, however, noting that Zimmerman had reported other black suspects to police. In the 911 call on Martin, Zimmerman said: "F------ punks. These a--holes, they always get away."
One legal avenue that is left open to Martin’s family is a wrongful death suit seeking money damages from Zimmerman. The burden of proof in a civil case is much lower.
In a hate crime case, the prosecutor not only has to prove the charge beyond a reasonable doubt but also has to prove the specific racial intent, which is hard. In a civil case, proof is a preponderance of the evidence -- greater than 50 percent. And there would be no specific intent requirement. Proving recklessness on Zimmerman's part would be enough, whereas it was not enough to prove the Florida criminal case, nor would it be enough to prove a federal hate crime.
Jury instructions
The verdict by the jury of six women clearly was not jury nullification. The verdict was not surprising in light of the jury instructions and the evidence admitted at trial.
Florida’s controversial "Stand Your Ground" law came into play in the instructions. Circuit Judge Debra S. Nelson instructed the jury that it could not convict Zimmerman of either second-degree murder or manslaughter if the killing was “excusable homicide” or if Zimmerman was standing his ground in self-defense.
Excusable homicide includes “when the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation” or “from sudden combat.” The defense often pointed to photos of cuts on the back of Zimmerman’s head, allegedly inflicted by Martin hitting Zimmerman’s head on concrete.
In accordance with the "Stand Your Ground" law, Nelson instructed that if Zimmerman was “in a place where he had a right to be” and was attacked, he could use deadly force.
The instruction read: “If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm....or to prevent the commission of a forcible felony.”
The jury instructions also said “the danger facing George Zimmerman need not have been actual” to justify using deadly force. Zimmerman just had to “reasonably” believe that he faced great bodily harm. And the jury was to judge Zimmerman’s belief “by the circumstances by which he was surrounded at the time” and the “relative physical abilities and capacities” of the two men.
The defense stressed photos show scrapes on the back of Zimmerman’s head, which it said were inflicted by the younger, stronger Martin.
The instructions added, “If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.”
Missouri and Illinois
Chad Flanders, a professor at Saint Louis University Law School, wrote in an email that he wasn’t “sure how much stand your ground affected this case -- Zimmerman was arguing he was pinned to the ground, and so couldn't have retreated (so wouldn't have had a duty to retreat in any case). But you're right: it's there in the instructions.”
Flanders also questioned whether the prosecution should have the burden of persuasion on the self-defense issue, as it did in the Zimmerman case and it does in Missouri.
“I also wonder whether, going forward, people will start looking at the burden of persuasion in self-defense cases,” he wrote. “Should it be on the prosecutor to prove beyond a reasonable doubt that Zimmerman was not justified? Or should we shift the burden to be more on the defendant? Missouri's rule is like Florida's in this respect, I think (once self-defense is raised, ‘any reasonable doubt on the issue requires a finding for the defendant on that issue’).
Until the late 19th century, Anglo-American law generally included the duty to retreat. But American states began removing that duty from the law. "Stand Your Ground" laws have become popular since 2005. ProPublica lists 24 states, including Illinois, with some "Stand Your Ground" law.
“’Stand your ground’ has morphed to mean a lot of things,” wrote Flanders. “It used to mean no duty to retreat if you were in your home, apartment, etc. (this is what Missouri has). But Florida's is stronger -- no duty to retreat if you're in a place you have a right to be generally.”
The Castle Doctrine, which exists in Missouri, says there is no duty to retreat in your home. In other words, a resident can use deadly force against an intruder. Missouri expanded its Castle Doctrine in 2007 to include vehicles.