Any Charges Would Have Faced 3 Major Hurtles – Impartial Expert
WASHINGTON, D.C. (February 24, 2015): To the surprise of no knowledgeable attorney, the federal government has finally determined that it will not file civil rights charges against George Zimmerman over the shooting death of Trayvon Martin.
Charging – much less winning – a federal hate crime case against the Hispanic who was acquitted in Florida would be incredibly difficult because of three major legal hurtles, says a public interest law professor who is not only sensitive to concerns about racial profiling, but actually won legal actions aimed at the racial profiling of African American males.
George Zimmerman not found guilty
FIRST, since “self defense” would be as complete a legal defense to federal charges as to the state charges of murder and manslaughter of which Zimmerman was found not guilty, the U.S. Attorney would have to show beyond a reasonable doubt that Zimmerman did not believe that he was in danger of serious bodily harm at the moment he shot Martin, say law professor John Banzhaf.
But since Florida was never able to show beyond a reasonable doubt even what happened – who was the first physical aggressor?, who was initially on top?, who cried out for help?, was Martin trying to retreat when he was shot? – it’s very doubtful that federal prosecutors would be able to do any better.
Here, Banzhaf notes, even the state was forced to change its version of events several times, going from Zimmerman on top of Martin beating him to Martin trying to retreat, Martin being the one who cried out to seemingly conceding that it was at least as likely George Zimmerman’s scream, etc.
“If you can’t prove what happened, you can’t possibly prove that self defense doesn’t apply,” says Banzhaf, and that would be at least as much a problem for federal prosecutors as for state prosecutors.
George Zimmerman – The federal hate crime statute
SECOND, the federal hate crime statute requires, in addition to what the state had to prove, that George Zimmerman intended to cause Martin’s death because of the youth’s race.
Since a major FBI investigation found no evidence of racial bias by him, and there was no evidence that Zimmerman used racially disparaging terms – as had been true in some other hate crime cases – it’s very hard to see how the Justice Department could prove beyond any reasonable doubt that racial animus was the cause of Martin’s death.
It should be noted, says Banzhaf, that even if race were a factor in Zimmerman watching, following, and/or even initially verbally confronting Martin, that would not satisfy the strict requirement of the federal hate statute. What is legally relevant is whether race was the overwhelming factor in the seconds when Zimmerman decided to pull the trigger. A former acting assistant attorney general put it this way.
“There is a good argument that racial profiling may well have occurred, and [Zimmerman’s] identification of Trayvon Martin as a suspicious person certainly had a racial element to it. But the legal question will be whether that initial racial consciousness carried through to the point where he actually decided to inflict bodily injury by shooting.”
Prof. Banzhaf puts it more dramatically. Can one even imagine – much less prove beyond any reasonable doubt – that, at the moment George Zimmerman fired, apparently afraid for his life, he fired because Martin was black, but would not have fired if a white, Hispanic, or Asian was beating his head against the concrete or reaching for his gun?
George Zimmerman – Prosecutors may not get a second bite at the apple
THIRD, bringing federal charges just because George Zimmerman was freed would seem to be very clearly contrary to well established Justice Department policy which is in turn based upon a Supreme Court decision, because, as Banzhaf puts it, the federal hate crime statute is not designed to provide a “second chance” or “do over,” or to give prosecutors a second bite at the apple when the first prosecution is a failure.
Rather, say the Justice Department’s own clear guidelines, U.S. attorneys are justified, under the so-called Petite policy, to bring federal charges only in very limited circumstances where there was:
1. “Incompetence, corruption, intimidation, or undue influence” in the state prosecution;
2. “Court or jury nullification in clear disregard of the evidence or the law”;
3. 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.”
Since no one has even suggested – much less proven – that in the Zimmerman trial the prosecutors were incompetent or corrupt, that the jury engaged in jury nullification by ruling in face of the clear law, or that there is any material evidence yet to be discovered, any federal prosecution would be promptly challenged by Zimmerman’s lawyers not only as unwarranted and unsupported by the federal hate law, but also directly contrary to the Justice Department’s own guidelines, suggests Banzhaf.
Moreover, unlike guidelines regarding most criminal proceedings, the guidelines are mandatory here because they are written right into the statute [18 U.S.C. section 249] itself, which clearly states:
“(4) Guidelines.- All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person.”
Naturally, public pressure and political considerations may be a major factor in an attempt to persuade federal prosecutors to file charges despite the many legal problems, just as many alleged that pressures forced Florida to undertake the Zimmerman prosecution in the first place.
But, says Banzhaf, who notes that he has no stake in the outcome, nor any bias from being or having been a prosecutor or a defense attorney, “I can only lay out what the law seems to require.”
In short, Banzhaf’s prediction almost three years ago that there would be no federal prosecution of George Zimmerman has now proven to be accurate.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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