Should Eric Holder prosecute George Zimmerman on a civil rights charge? Such a move would be all about the politics and very little about the merits of the case–but it would not be unprecedented.
After four Los Angeles police officers were acquitted by a jury in Ventura County in the Rodney King case in April 1992–and after the infamous L.A. riots that followed had settled down–the George H.W. Bush Justice Department indicted and tried the four officers on civil rights charge.
With thousands of protestors outside, threatening to burn down more of the city, my friend Stacy Koon was one of those convicted.
I had gotten to know Koon when he approached me, after the L.A. riots, about publishing a book about the case. I did publish it and also set up a defense fund to help pay his legal costs. We wound up paying for the Federal Civil Rights trial, a civil case brought by King, and an appeal to the 9th Circuit Court of Appeals.
We then took the case to the U.S. Supreme Court and ultimately reduced Koon’s sentence in a landmark case that established major changes to the U.S. Sentencing Guidelines.
There was huge controversy when the federal government interjected themselves the L.A. case after the acquittal, and there is no question that the reason they did so was pure politics. George Bush was already running for re-election in the spring of 1992. The liberals, the pundits, and the black community were outraged. Los Angeles was on fire, and retrying the case seemed like an easy way to mollify those who were angry about the verdict.
But there was also plenty of legal controversy. How could the Feds try these cops for the crimes they were accused of by California after the California jury declared them innocent? Didn’t that fly directly in the face of the Fifth Amendment’s guarantee against double jeopardy?
“It looks like double jeopardy, it smells like double jeopardy and it walks like double jeopardy, but legally it is not,” a Justice Department lawyer said about the King case, explaining, in terms only a lawyer could understand, why bringing the case a second time was not a violation of the Fifth Amendment. The policy permitting the Feds to try a defendant a second time originated during the civil rights era, when Southern juries would often acquit white defendants in racially charged cases. While the Supreme Court has sanctioned such trials, they require a great deal of legal two-stepping and double talk and rarely see the result ambitious prosecutors are seeking.
In ruling on the double jeopardy issue in the second Rodney King case, even the judge acknowledged that having two such trials did not legally constitute double jeopardy, but nonetheless it “raised the specter of unfairness.”
But back to the Travon Martin case and whether the Obama Justice Department will attempt to retry Zimmerman on Federal Civil Rights charges. I spoke with Ira Salzman, the Los Angeles Attorney who represented Koon in both criminal trials and the civil case in Los Angeles and one of the country’s experts on double jeopardy.
“The jury has spoken, and only the jury has the evidence,” said Salzman. “The pundits, the NAACP, the race-card players and everybody else screaming for another shot at justice for Zimmerman are only spectators. They know about as much about the case as spectators at a sporting event who watch half the game.” Salzman reminded me that Zimmerman was acquitted on self-defense, and that a federal civil rights charge would be very difficult to prove.
The pundits and the spectators won in the Rodney King case, got their second trial, and two of the defendants went to prison. The upshot?
“It legitimized the pundits and the others who think they have a stake in the case to demand another day in court for George Zimmerman,” said Salzman. “But they forget that if he gets another day, another jury, with access to the facts, will again decide the case. Not the pundits. It is the jurors who are duty bound to rule according to the evidence, not the self-appointed experts.”
The Sixth Amendment to the Constitution makes it clear that those accused of crime are entitled to a trial by jury:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Federal prosecutors would face a high burden of proof if they went after Zimmerman again–one which prosecutors in Florida already conspicuously failed to meet. First the case would have to go before a federal grand jury for an indictment, and then prosecutors would have to convince another jury that Zimmerman was guilty.
“I think you could make out the case that unconscious racism caused Mr. Zimmerman to profile Travon Martin,” Kenneth Nunn, assistant director of the Criminal Justice Center at the University of Florida’s Levin College of Law, told the Wall Street Journal. “But there doesn’t seem to be enough there to justify a claim that racial animus was the predicate behind Trayvon Martin’s death.”
In other words, even if you believe Zimmerman is some kind of racist, that doesn’t necessarily prove his racism was the reason he pulled the trigger. There needs to be evidence that it was something other than self-defense.
That’s a tall order. But for an Obama Justice Department eager to placate angry liberals and an attorney general who once called America a “nation of cowards” on the subject of race, it might be too tempting to not take a second bite of the apple, consequences and legal prospects be damned.