- - Wednesday, July 17, 2013

ANALYSIS/OPINION:

Attorney General Eric H. Holder Jr. has promised to use the power of the U.S. government to investigate the death of Trayvon Martin, calling the teen’s death “tragic” and “unnecessary.”

Under federal law, the Justice Department has the power to prosecute criminal acts of violence motivated by racial hatred, but considering the “elements” that the U.S. government must prove to have federal jurisdiction or secure a conviction, it is highly unlikely they will ever have a viable case, even under civil rights statutes.

Federal criminal civil rights prosecution of private citizens such as George Zimmerman is extremely rare and federal jurisdiction in a state case is very hard to prove. In cases where a defendant has already been prosecuted by a state law enforcement agency, successive federal prosecution is almost unheard of, but it has happened.

The government would have an extremely high burden, however, and under all available federal statutes, the government does not appear to have a case.

Here are the Justice Department’s options:

Federal murder and manslaughter statutes exist under Title 18 of the U.S. Code, Section 1111 and Section 1112, respectively, and despite Mr. Zimmerman’s acquittal in the state of Florida, the “separate sovereign” doctrine would not necessarily prevent the United States from re-prosecuting someone already convicted of a state crime even under the double jeopardy clause of the Fifth Amendment.

However, the Justice Department would probably lack federal jurisdiction for those substantive crimes since the killing occurred within a state territory, not a federal property. It did not occur within U.S. maritime waters or on an Indian reservation and did not involve an enemy combatant. In short, there was no federal territorial jurisdiction.

In the past, officials have used Section 242 to prosecute individuals acting under color of law, meaning someone with government authority such as a police officer. Mr. Zimmerman did not work for the government, so this statute would not apply.

The Justice Department has also previously utilized Section 241 to prosecute private citizens who are not acting under color of law. However, this particular statute applies to “two or more persons who conspire to injure, threaten, oppress or intimidate any person of any right or privilege secured to him by the Constitution.”

Since Mr. Zimmerman acted alone, there is no conspiracy.

The only viable option the Justice Department may have is to prosecute Mr. Zimmerman under Section 249 — the recent hate crime legislation, which applies to individual private citizens, not just government officials acting under “color of law,” and no conspiracy with other individuals is required. The government can probably get federal jurisdiction under this statute because it permits such jurisdiction when “the defendant employs a firearm or other weapon that has traveled in interstate or foreign commerce.”

However, the U.S. government would have to prove beyond a reasonable doubt that Mr. Zimmerman killed Trayvon because of his perceived race.

Let’s re-examine the facts:

There was not a single piece of evidence introduced in the original state trial that demonstrated racial motivations on Mr. Zimmerman’s part, and the state of Florida did everything possible to prove the accused guilty.

There is, however, actual contrary evidence that Mr. Zimmerman was not acting out of racial prejudice. When Mr. Zimmerman first called the police dispatcher and was asked to describe Trayvon’s appearance, Mr. Zimmerman did not volunteer any information about Trayvon’s race; he simply described Trayvon’s clothing.

It was the dispatcher who brought up the issue of race, asking Mr. Zimmerman to identify Trayvon’s race to get a more specific physical description. Mr. Zimmerman first replied that he couldn’t tell what Trayvon’s race was and then finally conceded that the unknown person he was watching may have been black.

In 1984, the Justice Department utilized Section 241 and prosecuted a group of Michigan men for murdering a Chinese man named Vincent Chin. In that case, there was a conspiracy, but they were able to obtain evidence of racist motivation by finding witnesses who testified that the perpetrators committed the act because they had recently lost their jobs at a Detroit Chrysler plant to Asian Americans.

To proceed under the Section 249 hate crime law, the FBI would have to find new evidence that proves beyond any reasonable doubt that Mr. Zimmerman had the intent to kill Trayvon because of his perceived race. To date, there are no witnesses like those in the Chin case, and his 911 call demonstrated that Mr. Zimmerman could not clearly identify Trayvon’s race. Unless the Justice Department can find an actual witness to whom Mr. Zimmerman confessed racist motives, it is unlikely that will be a compelling case.

There is no federal jurisdiction under Sections 1111 or 1112 for murder or manslaughter, no conspiracy under Section 241, and no act committed by a government official under Section 242. The only option that appears to be available to Mr. Holder and Justice Department officials is Section 249, which, again, requires proof of a racist motive.

No such proof exists.

In fact, there isn’t even a mild indication racism was the motive. The Department of Justice has no viable case and officials must know this. They should tell the public the truth instead of making false promises they cannot keep — and stop trying to impugn a racist motive to an otherwise innocent man — especially when there is no evidence of such prejudice.

Jeffrey Scott Shapiro is an investigative journalist and former prosecutor in Washington, D.C.

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