Sunday, July 14, 2013

Will Zimmerman Be Prosecuted By The Feds? by Norm Pattis

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.

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