Calls for federal prosecution of George Zimmerman face hurdles

Federal prosecution of Martin killing would face hurdles, legal experts say


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Twenty years after federal prosecutors won prison sentences against two white Los Angeles police officers who beat motorist Rodney King, NAACP leaders and others Monday pushed for a similar effort following the Saturday acquittal in Florida court of George Zimmerman in the death of Trayvon Martin.

"What we're requesting is that the federal government comes in [and handles the Martin youth's death] as a civil rights issue," said Constance Parker, president of the Pittsburgh unit of the NAACP, in a telephone interview from Orlando, Fla.

She was attending the organization's national convention not far from the Sanford courtroom in which six women acquitted Mr. Zimmerman, 29. "We're asking that the federal government come in and look at the tragic death of this 17-year-old," Ms. Parker said. "That's the only due process of the law that can handle this and take it further."

Even as cries for federal intervention resounded, though, experts said there are high hurdles federal officials have to overcome if they are to charge someone in conduct for which they have been acquitted at the state level.

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"If a full and fair process occurred in the state, even if the result was an acquittal, then usually the presumption is you do not bring another case," said former U.S. attorney Harry Litman, who worked on the team that prosecuted King's assailants before he took the top Justice Department job in Pittsburgh. "Based on past experience and the extremely rare instances in which the federal government comes in following a [state] trial of a non-governmental defendant, I think you'd have to see a federal prosecution here as a long shot."

Mr. Zimmerman shot the unarmed Martin youth in the heart in February 2012. His legal team claimed self-defense, and the jury, apprised of Florida's "stand your ground" law, acquitted him of murder.

"The jury found that no one is guilty of the killing of Trayvon Martin. I find that to be a joke," said Ms. Parker, who added that her NAACP unit is planning a public event in Pittsburgh related to the case, likely late this week.

On what basis should the federal government prosecute Mr. Zimmerman? The Martin youth "was profiled, and that violates his civil rights," Ms. Parker said. "He was profiled as a young man, a black man, with a hoodie on."

The Justice Department issued a statement Sunday saying that the Criminal Section of its Civil Rights Division, along with the U.S. attorney for central Florida and the FBI, is evaluating the trial. Officials will "determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes," according to the statement, and make a decision on prosecution based on the department's "policy governing successive federal prosecution following a state trial."

Double jeopardy doesn't bar federal prosecution of Mr. Zimmerman, because state and federal governments have separate sovereignty.

However, the department's policy says that, generally, federal prosecutors don't charge people with things for which they have been acquitted at the state level. Exceptions, like the King case, occur when there's a "substantial federal interest" that was "demonstrably unvindicated" and where conviction is likely, according to the policy.

The policy says state court's "incompetence, corruption, intimidation or undue influence" can justify the filing of federal charges following an acquittal, as can a jury's disregard for the evidence or the emergence of new information.

Ultimately, Attorney General Eric Holder would have to personally sign off on any federal prosecution of Mr. Zimmerman, according to the policy.

Attorneys could not remember a local case in roughly a quarter-century in which a federal prosecutor second-guessed a state jury's decision. None of the attorneys interviewed, all of whom kept an eye on Mr. Zimmerman's trial on television or through other media, thought he would face federal charges.

"Given the nature of the case, the publicity that surrounded that case, the fact that it was talked about from one end of this country to the other ... that leads me to believe that all of the bases were probably covered by the prosecution," said Almon Burke, who was an assistant U.S. attorney for 23 years before he went into private practice last year. "It wouldn't surprise me if the department decides not to pursue civil rights charges."

The King case involved accusations of racial animosity, and after a California jury found the police not guilty, the Justice Department filed federal civil rights charges. That case, though, included elements that weren't factors in the Martin youth's death, said Mr. Litman.

"In the Rodney King case, the civil right [involved] was the right to be free from an unlawful search and seizure," Mr. Litman said. In the Martin case, he said, the "only plausible theory [of a civil rights violation] would be that it was an intentional killing because of race.

"It's very rare for any reprosecution to happen. It's doubly rare for it to be on a civil rights charge that doesn't involve government actors."

The King and Martin cases are similar in that they inspired heated public reactions, but Mr. Holder has to set that aside, according to Bruce Antkowiak, a former federal prosecutor and defense attorney who's now a professor of law at Saint Vincent College.

"You're not supposed to make [a decision] on the basis of public opinion," he said. Prosecutors "understand the devastating impact on any person of just being indicted."

"Could public opinion have an effect? Sure it could," said defense lawyer J. Alan Johnson, hastening to add that he did not make prosecutorial decisions based on outside pressure when he was the U.S. attorney in Pittsburgh. What will likely weigh heaviest on Mr. Holder's decision? "The jury found the evidence didn't prove the case beyond a reasonable doubt."

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Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord. First Published July 16, 2013 4:00 AM


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