Sunday, July 14, 2013

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:


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.


Anonymous said...

Yes, the feds should prove the prosecution of zimmerman was always about race as opposed to justice. Why not.

Anonymous said...

Martin should not be dead, and he is because he is black. If he had been white, zimmerman would not have bothered him. But, the problem is that martin had an unreasonable and criminal reaction to zimmerman's poor judgment, he physically attacked zimmerman in a brutal manner and left zimmerman with no choice but to shoot martin or suffer a potentially deadly beating. That should be discussed as much as zimmerman's profiling of martin. The fact that the black community has failed to say that violence can never be the answer, even to prejudice, speaks volumes of problems that exist in the black community. Yes, zimmerman profiled martin, but martin's reaction to zimmerman's error (which at the end if the day posed no real physical threat to anybody) proved exactly why zimmerman needed to be armed.

Anonymous said...

verdicts matter. this is a closed case.

Rumpole said...

The state should appeal and next time call george zimmerman to the stand and force him to explain what happened.

Anonymous said...

So, this is 2013 and we still have to tell young black males, "Don't go into white neighborhoods, and if you do and you are accosted by someone (who is older and outweighs you ny a good 30-50) make sure you act meek and don't dare fight back - take a beating if yiu have to -- otherwise you will end up dead and your killer will walk."

That's BS. The kid was walking back from a convenience store. TM was singled out and ended up dead because of the color of his skin. DOJ needs to take a serious look at it.

Anonymous said...

Crim law 101: The state cannot appeal an acquittal.

Anonymous said...

where is the fed jurisdiction?? Rodney King was different; the defendants were state actors under color of law, hence 1983. But in this current day and age, without a showing of color of law by the assailant, what fed interest could be constitutionally applied?

Bob Becerra said...

I agree with 5:55 a.m. If you don't like the verdict, call your state legislator about the 2005 Stand Your Ground law. Given the instruction given to the jury on that law, they had no choice but to acquit Zimmerman.

Anonymous said...

Stand Your Ground had nothing to do with it. The law in every state permits lethal force when faced with reasonable fear of imminent death or great bodily harm and no ability to safely retreat. The stand your ground instruction may have been given (along with several other instructions that didn't apply to the facts in evidence) but it doesn't apply when the evidence is clear that retreat was not an option.

Anonymous said...

an unarmed kid is dead
the adult who killed him with a gun, who initiated the confrontation between the two at least in part for the simple fact that the kid was black, is a free man
rationalize it any way you want -- it is not justice
and given our history in this country and this state -- it is shameful

swlip said...

I agree that SYG had nothing to do with this case. Had this case arisen under Florida's previous law, the only difference would have been that Zimmerman would have had a duty to retreat if he was able to safely do so. The state could have never proven beyond a reasonable doubt that Zimmerman could have retreated.

Anyone claiming that Zimmerman should have been convicted obviously didn't pay attention to, you know, the evidence and the jury instructions.

If you want to get riled up about something, consider the more than ten thousand black males who have been murdered by other black males since February, 2012.

Anonymous said... not such a good track record

Rumpole said...

10:38 am. Congrats. You are the one sucker who didn't see the sarcasm in my comment. Take a bow. Then go back to reading the comics.

Anonymous said...

Omg...just watched the bachelorette and realized the ausa lost out to a gay guy.

Anonymous said...

No Rumpole, I just assumed you were that ignorant.