Should the feds indict George Zimmerman?

Although Zimmerman was just acquitted of second degree murder, many are now clamoring for a federal indictment.

But doesn't the double jeopardy bar a federal prosecution after a complete acquittal in state court?

Nope. Although the Fifth Amendment provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," the Supreme Court in Abbate v. United States, 359 U.S. 187 (1959), said the dual sovereignty doctrine permits both the State and the Feds to prosecute the same person for the same crime:

The basic dilemma was recognized over a century ago in Fox v. Ohio. As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months' prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants' acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. See Screws v. United States, 325 U. S. 91, 109; Jerome v. United States, 318 U. S. 101, 104-105. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.

Even though the law allows for a federal prosecution, it seems extremely unlikely in this case for all sorts of policy reasons.

The DOJ issued this statement, saying its investigation was ongoing:

JUSTICE DEPARTMENT STATEMENT ON THE TRAYVON MARTIN-GEORGE ZIMMERMAN CASE

As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. 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 a state trial.

The Herald quotes friends of the blog here:

Jurors found that prosecutors failed to prove the more serious second-degree charge that Zimmerman, the neighborhood watchman at a Sanford gated community, possessed “ill-will,” “hatred” or “spite” in the fatal shooting of Martin. Instead, the six female jurors found that Zimmerman acted in self-defense.

Consequently, experts said, it would be legally inconsistent for the Justice Department to consider filing criminal charges against Zimmerman under the federal Shepard-Byrd Hate Crimes Prevention Act of 2009. Generally, that law prohibits someone from “willfully causing bodily injury” to another person because of his race, color, religion or national origin.

“If the state jury had been persuaded beyond a reasonable doubt that Zimmerman caused bodily harm to Trayvon Martin because of Martin’s race, it would have almost certainly convicted Zimmerman of second-degree murder, which requires proof of ‘ill-will’ or ‘malice,’” said Scott Srebnick, a prominent federal criminal defense attorney in Miami. “So, to bring a federal civil-rights prosecution against Zimmerman, the attorney general would essentially be second-guessing the state jury’s verdict as opposed to vindicating a different or broader federal interest.”

Srebnick added: “I find it doubtful that the attorney general will pursue a prosecution on a civil rights theory simply out of displeasure with the state jury’s verdict.”

Brian Tannebaum, a Miami defense attorney and past president of the Florida Association of Criminal Defense Lawyers, agreed.

“People are comparing this case to Rodney King, where there was a federal prosecution after a state acquittal, but the difference there was there were witnesses, specifically the video everyone still remembers,” Tannebaum said, referring to a man’s sensational videotape of the police beating.

Role Reversal: Zimmerman closing arguments

Interesting dynamic in the Zimmerman closings so far.

The prosecutor's closing yesterday seemed very much like a defense closing -- passionate and poking holes in Zimmerman's story. He seemed to be arguing that there is a reasonable doubt about Zimmerman's version of events.

This morning, O'Mara started his closing by accepting the burden of proof and arguing that Zimmerman is "100% innocent." He is also very low key, walking them through the facts and the elements of self-defense.

I thought the prosecution crushed the defense in opening statements, but it seems just the opposite so far in closings. The prosecutor was screaming and yelling way too much.

Anyway, Rumpole hates when juries go out on Friday afternoon... But I don't think there will be a verdict today.

UPDATE -- the rebuttal was much better, but than the opening summation. Intense, but not screaming at the jury. Predictions on when the verdict will come back and what it will be?

Thursday News & Notes

1.  Judge Lenard denied Juan Caro's bid for a new trial, rejecting his request for a hearing to find out when the government knew about Nevin Shapiro's bad acts.  From the Herald:

Lenard rejected a new bid by defense attorney Arturo Hernandez to hold an evidentiary hearing to explore whether a Justice Department lawyer who teamed up with a Miami prosecutor in the La Bamba trial knew about the FBI’s investigation of Shapiro in New Jersey months before he took the stand.
Hernandez filed documents such as government emails in hopes of challenging the Miami prosecution team’s timeline.
The Miami prosecutors first informed Hernandez of the Shapiro criminal probe when Shapiro was charged in April 2010.
Hernandez argued that had he been told about the Shapiro probe, he would have asked him about his investment scam on the witness stand. Hernandez said he was “disappointed” with the judge’s ruling.

2.  The Justice Department found lots of bad Miami police shootings.  From the NY Times:

Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.       

In a summary addressed to Tomas P. Regalado, Miami’s mayor, and Manuel Orosa, the police chief, the Justice Department noted that its own investigation would have been completed sooner if not for the Police Department’s “frequent inability to produce necessary documents in a timely fashion.”

 Here's the letter to the Mayor.

3.  Young guns can see who the best closer is at this upcoming competition.  My advice -- don't start with a knock knock joke.

4.  Judge Kozinski is so good.  Footnote 1 from a 1992 opinion of his that was recently emailed to me:

We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in "eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places." Appellee's Brief at 7. Finally, we will also not "set off important text" by putting it on "separate lines" and enclosing it in "quotation marks."
See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

AUSA Michael Garofola doesn't get a rose

This was Michael G.'s last episode (prior blog coverage about the federal prosecutor on the Bachelorette here).  He had a good run on the show, making it to the final five. 

 
 


Gossip Cop has the recap of the show.  Some highlights:

Next up was Michael G, getting to have a 1-on-1 with Hartsock for the first time.
After going tobogganing, the federal prosecutor opened up about his estrangement with his father, his battle with Type I diabetes, and finding out his live-in girlfriend was cheating on him.
“The silver lining to all this is that — I mean this from the bottom of my heart — is I’m feeling these feelings again,” he told Hartsock, adding to the camera later that he’s “falling in love.”
For her part, the reality star told the camera that “Michael is one of the greatest guys I ever met.”
***
At the rose ceremony, Hartsock ultimately gave roses to everyone except Michael.
She explained to the shell-shocked contestant her other relationships were “growing differently.
“I’m heartbroken,” he confessed as Hartsock went on to praise their “friendship,” before wishing each other “the best.”

Did you know we had a secret court, operated by similar thinking judges on an ex parte basis?

The New York Times had a front page piece on the FISA Court this weekend.  The whole thing is worth a close look.  From the article:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
***
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Closer to home, visa-fraud prosecutions are up.  According to the Herald:

A report released in April by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that visa fraud criminal prosecutions now rank third among the top 10 immigration law prosecutions in the country.
Also, a Government Accountability Office report issued in September said the State Department screens visa applicants for fraud.
But GAO auditors found that consulates do not systematically employ methods to prevent fraud.
“State has a variety of technological tools and resources to assist consular officers in combating fraud, but does not have a policy for their systematic use,” the GAO report said.
In response, the State Department said it generally agreed with GAO findings and would implement recommendations to improve fraud tracking .
The GAO report said the top 10 countries where visa fraud occurs are China, Dominican Republic, Mexico, India, Brazil, Ghana, Cambodia, Jamaica, Peru and Ukraine.

Your Friday moment of Zen

Gotta love technology.  Here's Rachel Maddow on the Zimmerman trial getting Skype Bombed:

And here's the actual raw footage of the whole thing:

 

Happy Birthday to the Blog!

Yesterday, the blog turned 8 years old.  Pretty neat.

This was the original post, asking the President to appoint a Floridian to the Supreme Court.  We are still waiting 8 years later....

Since then, your first local legal blog has had 2,361 posts and almost 2 million page views. 

The most popular post this year was breaking the story that AUSA Mike Garofola was going to be a contestant on the Bachelorette.  Second, was Dore Louis' NSA motion.

After the United States, the blog's readership is as follows:

Entry	Pageviews
United States	918641
Russia	12746
Germany	12597
United Kingdom	11530
Canada	10289
France	8799
Norway	7695
Netherlands	3722
Ukraine	3142
Malaysia	1532

The blog has broken a number of stories this year, including your newest magistrate judges and the nomination of Will Thomas to the federal bench (he needs to get confirmed already!).  Speaking of magistrates, Alicia Valle was officially named to the bench yesterday.  Congrats to her!

It's been really fun for me to post over the last 8 years, and I hope you have enjoyed the blog as much as I have had doing it.

Happy Fourth of July!

--David

What was Chief Judge Roberts' favorite case of the Term?

A.  DOMA

B.  Voting Rights
C.  Affirmative Action
D.   DNA
E.  Fane Lozman's house boat case

Yup, you got it -- E.  The Chief Justice loved the case from the Southern District of Florida about whether the floating structure was a house or a boat.  From Forbes:

Turns out the Chief Justice felt the same way. In this interview on C-SPAN, John Roberts called the lawsuit over whether a floating house was a boat one of his favorites from the last term.It’s surprising to hear this, given the momentous cases that were also before the court: The Voting Rights Act, gay rights, affirmative action, human gene patents — nearly all of them had broader implications for society at large than Fane Lozman’s Quixotic battle with the authorities of a coastal city in Florida over whether they had the power to haul his home away.“There are going to be  half-dozen cases people are going to be talking about,” Roberts said in the interview with Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III.“The littler ones can be quite fascinating,” he said, however. “My favorite from last term was a case called Lozman."“The way cases develop in the law, you have something that seems to fit not comfortably on either category,” Roberts said. “Depending on which side you were on, it was either a floating home or a house boat.”In Lozman’s case, it was a seedy-looking house on a floating platform, connected to shore with a garden hose and an extension cord. Lozman had towed it hundreds of miles around the Florida peninsula, but the house didn’t have any power to move itself. City officials argued it was a boat for purposes of obtaining a maritime lien and impounding it. The court decided otherwise, in a decision with implications for much more significant structures like floating casinos.“We had a lot of fun with it …looking at the different characteristics and posing a lot of interesting hypotheticals at the argument,” Roberts said. At one point, the justices seemed to be toying with the lawyer for Riviera Beach, trying to back him into ridiculous definitions of a boat.Roberts asked if an inner tube qualified. After all, it could support a human and move him from place to place. Then Justice Stephen Breyer chimed in: “This cup. what about the cup?” Justice Sonia Sotomayorasked, “what about a garage door?” And Elena Kagan followed up with: Take the inner tube, and you know, paste a couple of pennies on the inner tube. Now it carries things.”

On a separate note, I haven't been watching the Bachelorette, but I'm told that local AUSA Michael Garofola has made the top 5....  And that he is very against other contestants cursing on the show.