Winnipeg Free Press - PRINT EDITION

Retrial of shooting will fail

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For those anguished by the Saturday night acquittal of George Zimmerman, the remedy appears obvious: The U.S. Department of Justice should mount its own criminal case and prosecute Zimmerman for violating civil rights or hate crimes statutes in the shooting death of Trayvon Martin.

The argument has appeal. Federal laws allow prosecutors to make broader arguments, citing broader federal priorities, than does the typical state murder or manslaughter law, more narrowly tailored to adjudicating who caused whose death and why. Justice at times has won convictions on these federal grounds after courts have acquitted defendants accused of violating local or state laws.

That said, it's often difficult to use federal prosecution to right an alleged wrong done in a state court. More important, the federal statutes are a poor fit for the circumstances of the Zimmerman case and how it played out in Florida. Given those circumstances, it's all but inconceivable that prosecutors could prove beyond a reasonable doubt that Martin's race provoked Zimmerman's activity. Nor should they try.

Federal civil rights and hate crimes statutes evolved, and achieved their prominence and respect, because localities and states egregiously had failed to follow their own protocols for delivering criminal justice. With intentionally shoddy investigations, weak prosecutions and other inadequate efforts, some local and state officials didn't properly pursue criminal cases because of a victim's race, colour, religion or nationality.

In such cases, Justice today can insert itself as the designated and well-resourced provocateur. The national interest in equal justice under law permits this federal intervention into what may originate as local cases born of local crimes.

The Zimmerman case doesn't meet that test. Each of us can agree or disagree with the jury's verdict. And critics can say local police were slow to probe the complexities of the case. But as the prosecution's evidence attested at trial, the investigation was extraordinarily elaborate. Like the rest of the nation, the defendant -- and the victim's family -- witnessed a fair and open trial. And the prosecutors' suggestion that Zimmerman had acted out of "ill will" or "hatred" or "spite" didn't convince jurors.

Those jurors had limited options when they declared Zimmerman not guilty. But by rejecting murder and manslaughter convictions, they in essence declared Zimmerman innocent by reason of self-defence -- a crucial point that goes to the heart of the decision on whether Justice now should attempt to prosecute him. Attorney General Eric Holder's Justice Department said Sunday that "experienced federal prosecutors" will make that decision. They should conclude the statutes at their disposal weren't written for this case.

Jurors spent weeks hearing the best evidence prosecutors could produce against Zimmerman, yet didn't declare him in the wrong or ill-motivated. Ron Safer, a former federal prosecutor now in private practice in Chicago, notes that in a subsequent federal trial, "the prosecution would have the added burden to prove racial animus. It can't be assumed; it has to be proved." Yet federal investigators who interviewed dozens of Zimmerman's friends, neighbours and co-workers reportedly found no one who thought he was a racist. The lead detective in the Sanford police inquiry concluded he was not. Unless Justice has hitherto unseen evidence that racial bias motivated Zimmerman, accusing him of a civil rights or hate crimes violation risks the appearance, but also the reality, of prosecutorial overreach.

Sometimes federal intervention does make sense. The feds successfully prosecuted two Los Angeles police officers for beating Rodney King in 1991 after they had been acquitted in a state trial. But there was extensive video footage of that episode, and the cops were convicted of violating King's rights "under colour of law" -- a category that applies only to law enforcement, which Zimmerman was not. Even so, two of the four officers acquitted in the original trial were acquitted in federal court as well.

The most comprehensive summation we've read of why Justice shouldn't interject itself here comes from Florida federal defence attorney Scott Srebnick. "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,' " Srebnick told the Miami Herald. "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."

In this highly visible and racially charged case, the acquittal of George Zimmerman is bound to frustrate many people. But barring decisive new information, the Florida jury's decision ought to be the last word.

Republished from the Winnipeg Free Press print edition July 19, 2013 A11

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