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SHAPIRO: The real villains in the Zimmerman case

Eric Holder should investigate Florida’s abusive prosecution

- - Friday, July 26, 2013

The U.S. Department of Justice should consider investigating Florida officials for abuse of power instead of investigating George Zimmerman for civil rights violations.

There is no evidence to suggest that Mr. Zimmerman committed a civil rights violation or a hate crime, but there is evidence that Florida officials abused their power in prosecuting an otherwise innocent man without probable cause.

The Justice Department could probe state officials for "unlawful conduct," under 42 U.S.C. 14141.

Not only did they prosecute a murder case without probable cause, they reportedly failed to disclose exculpatory evidence that could have helped prove Mr. Zimmerman's innocence. Prosecutors submitted an affidavit to a judge to support their original second- degree murder charge.

Recently, Harvard law professor Alan Dershowitz referred to the affidavit issue during a Fox interview with Mike Huckabee:

"There ought to be a Justice Department investigation, but it ought to be focused on prosecutor [Angela] Corey in this case. She really violated civil rights in this case. What she did is she filed a false affidavit in front of the judge in order to get a second-degree murder charge, failed to tell the judge that there were photographs that demonstrated that Zimmerman had wounds on the back of his head she misled the judge into giving her an overcharge second-degree murder charge against Zimmerman. That is a true violation of civil rights The rest of the case is routine. There was reasonable doubt written all over this case."

Earlier this week, I explored the legal remedies available to the U.S. Justice Department to prosecute Mr. Zimmerman. Since the killing did not occur on federal territory, federal murder and manslaughter statutes 18 U.S.C. 1111 and 1112 respectively do not apply.

18 U.S.C. 242 allows the U.S. to file criminal civil rights charges against government officials when acting under "color of law," and 18 U.S.C. 241 allows the government to charge private citizens when they have conspired with others. Since Mr. Zimmerman acted alone, and he was not a government official, neither statute applies.

The only legal remedy available is most likely 18 U.S.C. 249, otherwise known as the hate-crime statute, which requires proof of racist motive. To date, there is no evidence of such motive.

On the contrary, the 46 calls Mr. Zimmerman made to the police since 2004 show a pattern of a man complaining about everything and everyone including loose dogs, children playing on the street, pool parties, open garage doors and illegally parked cars. There are many things that can be said about such a person, but racist is not one of them.

The most illuminating statements made throughout this case were actually made by Ms. Corey.

After Mr. Zimmerman was acquitted, Ms. Corey said that the state charged Mr. Zimmerman so, "We would get all of the facts and details of this very difficult case before a jury, and that we chose to do it that way because we felt that everyone had a right to know everything about this case — that for a case like this to come out in bits and pieces served no good to no one."

But getting information out to the public is not a permissible reason to file criminal charges.

Florida Bar Rule 4-3.8 requires that prosecutors have probable cause.

Ms. Corey's statement shines a light on the possible motivations of Florida officials. Even throughout the trial, courtroom prosecutors sounded as though they were asking the jury what happened, not telling them. At the post-verdict news conference, prosecutor Bernie de la Rionda narrowed down the state's position:

"Who was following who? I mean, isn't that what this case was about? That was our theory what it boils down to was a kid minding his own business being followed by a stranger, and so I would submit that's when it started."

But following someone does not mark the start of a confrontation — not under the law. A person does not forfeit their legal right to self-defense just because they upset someone else. Mere words never justify violence under the law, and Florida officials know this.

From the beginning, Florida officials lacked the evidence to secure a conviction. They lacked probable cause to even file charges.

Even after Mr. Zimmerman was acquitted, state officials made extrajudicial statements released to the public.

Shortly after the verdict was returned Ms. Corey described Mr. Zimmerman as a "murderer," during a media interview, and U.S. Attorney General Eric H. Holder Jr. stood on a stage at the NAACP and said that Trayvon's death was unnecessary — implying that Mr. Zimmerman was at fault.

Perhaps Ms. Corey and Mr. Holder should read — and reread — American Bar Association Rule 3.8, which admonishes prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

Since the Justice Department is considering new, federal civil rights charges, Mr. Zimmerman should still be afforded the rights of any accused person.

The U.S. Justice Department should not repeat the mistakes of the state of Florida and initiate another baseless prosecution to ease racial tensions. It should, however, consider launching an unlawful-conduct probe into the state of Florida to protect other citizens from future abuse of power.

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