Civil-rights leaders call on Justice Department to act

07/14/2013 3:53 PM

07/15/2013 5:33 PM

As Trayvon Martin supporters marched and rallied, prayed and protested the acquittal of George Zimmerman, the nation’s civil-rights leaders worked to define the next steps in a case stubbornly entrenched, for many, at the messy crossroads of race and criminal justice.

In the hours after Zimmerman was found not guilty by a six-member jury in the shooting death of Trayvon, civil-rights organizations quickly shifted the focus from a Seminole County courthouse in Central Florida to the U.S. Department of Justice, calling on the federal government to take action.

“A jury acquitted George Zimmerman, but we are not done demanding justice for Trayvon Martin,’’ Ben Jealous, president of the NAACP, the nation’s oldest civil rights groups, declared in a statement. A petition demanding Justice Department action on the NAACP website had generated more than 250,000 by Sunday evening.

The group’s strategy is also about making social and legislative changes by forcing the uncomfortable discussions about the role race plays in the criminal justice system.

“The trial, for some, sends the message that you can shoot first and have a high probability of prevailing under our self-defense laws. What is indisputable is that a 17-year-old boy who was carrying nothing but Skittles and a drink is dead,’’ said Tamara Rice Lave, a University of Miami associate professor of law. “Even if the federal government does not prevail, they would be sending the message that young men of color’s lives matter.’’

The Justice Department has a handful of criminal civil-rights laws at its disposal, and has filed charges in the past after state juries have returned acquittals.

Among them: the federal prosecution of a group of Los Angeles police officers after they were acquitted in state court of the brutal beating of Rodney King in 1991, which sparked riots in that city. Two of the four officers were eventually convicted by a federal jury of violating King’s civil rights under “color of law” — but that law applies to those in law enforcement, and Zimmerman is a civilian.

In his case, it’s possible the Justice Department might consider using a different type of civil-rights law: the federal hate-crime statute. As in the King case, the double-jeopardy clause of the U.S. Constitution does not prohibit such a federal prosecution after a state acquittal, because it’s a different jurisdiction.

On Sunday, the Justice Department issued a statement that the criminal section of the Civil Rights Division, the U.S. Attorney’s Office for the Middle District and the FBI have an open federal investigation of Martin’s death, which Justice officials said they had first acknowledged last year.

The statement said authorities “continue to evaluate” evidence from both the federal investigation and state trial. It further noted that “experienced” U.S. 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” under Justice’s policy following a state trial.

In South Florida, legal experts said it’s going to be a formidable challenge for Attorney General Eric Holder to press forward with a hate-crime case against Zimmerman under U.S. civil rights laws, because Florida jurors found Zimmerman not guilty of second-degree murder.

Jurors found that prosecutors failed to prove 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.

So 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. “Zimmerman was a failed prosecution from the beginning — where the only witness [Zimmerman] had the right to remain silent [by not testifying] — and I don’t think the federal government will try again.”

The day after the verdict, Trayvon’s parents, Sybrina Fulton and Tracy Martin, spoke with their attorney, Benjamin Crump, about what happens next — possibilities including not only a federal prosecution but also a wrongful-death case against Zimmerman in civil court.

“Sybrina cried and prayed last night in Miami, but she also made a decision that she is not going to let this verdict define the legacy of her son, Trayvon Martin,” Crump said. “She and Tracy are ready to roll up their sleeves and get to work using their foundation to make sure this never happens to another child. At the same time, they are still trying to understand the verdict and then they will be making a decision about pursuing the case in other ways legally.’’

If Trayvon’s parents pursue civil action against Zimmerman in state court, they will likely encounter a major obstacle, the “immunity” provision of Florida’s Stand Your Ground law that became part of Zimmerman’s self-defense strategy at his criminal trial. The 2005 law, which allows a person to use force to prevent imminent death or harm to himself, can also shield a defendant from liability in a civil wrongful-death case.

Zimmerman’s defense attorney, Mark O’Mara, made that point when questioned by reporters after Saturday’s verdict. But a state judge would have the authority to decide a Stand Your Ground immunity defense as part of a lawsuit, according to legal experts.

The not-guilty verdict in the Zimmerman murder trial served as a call to action for participants of the 104th NAACP National Convention this week in Orlando.

“Like you, I have a lot of questions as it relates to the verdict and what it means to be young and black in this country,” Sammie J. Dow, national director of the NAACP’s Youth and College Division, said Sunday to an auditorium of about 200 young people gathered from across the country. “If there’s ever been a time that we needed to act, that time is now.’’

Earlier in the Youth and College session, speaker Alethea Bonello touched on the Zimmerman case during an opening prayer.

“We shall not be moved by six jurors,” said Bonello, a former Southeast regional director for the NAACP youth division. “We shall not be moved by a slick-talking defendant. We will stand our ground.”

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