Gina Loudon, Ph.D., is host of "The Dr. Gina Show" and a national speaker, analyst and author. She has appeared or been cited by the BBC, ABC, Vanity Fair, Al Jazeera, Huffington Post, CNN, New York Times, Time magazine, Fox News, Fox Business, The Hill, "The Daily Show" with Jon Stewart and many others. Loudon is credited as one of the "100 founding members" of the tea-party movement, founder of ArizonaMore ↓Less ↑
A federal case could be brought against neighborhood-watch volunteer George Zimmerman, experts say, even though he already has been acquitted on state second-degree murder charges.
But the chances of success are limited and such a move could be seen as being politically motivated, those experts have told WND.
The 5th Amendment to the Constitution says, in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
Officials with Attorney General Eric Holder’s Justice Department have not formally announced whether they will pursue civil rights charges against Zimmerman for the death of Trayvon Martin.
But the questions about double jeopardy already are being discussed.
Pete Lepiscopo, a constitutional law attorney, says that the federal government can try someone again for a case already decided in state court.
“If the U.S. Attorney General empanels a federal grand jury to seek violations of federal criminal statutes based on violations of Mr. Martin’s civil rights, this would not constitute double jeopardy under the U.S. Constitution,” he said.
He said that “this is because each sovereign (e.g., federal, state or Indian reservation government) is free to bring criminal charges against the same defendant for the same set of facts.”
He explains, “Double jeopardy is violated when the same sovereign brings a second set of charges against the same defendant based on the same set of facts.”
So, for example, if Florida would bring new criminal charges against Zimmerman for the same set of facts on which the jury determined Zimmerman was not guilty, then “that would be double jeopardy.”
Under common law, the Constitution might read differently. But the courts have changed that over time.
According to Nick Kasoff, who has studied this case in depth, the federal government actually have two options. One is to prosecute Zimmerman on a civil rights charge. The other is that they could prosecute him for the very same thing as the state did.
According to the Legal Information Institute of Cornell University Law School, “Double jeopardy protects defendants only for retrials brought within the original jurisdiction, which is why a defendant can be tried in federal court after being tried in state court.”
Read today’s full report about the Zimmerman case:
In 1982 a man (Heath) was tried twice for the contract killing of his wife. He was tried in Georgia, and then in Alabama. The court held that “successive prosecutions are barred by the double jeopardy clause only if the defendant is prosecuted for exactly the same offense twice.”
While technically, Zimmerman’s prosecution by the DOJ may not be considered double jeopardy, the court of public opinion may play a role, too.
According to attorney Michael Burwick, a former Assistant Attorney General and a current member of the Florida and Washington, D.C., bars, the DOJ can bring criminal charges under the federal hate crime legislation.
He told WND that “prior to 2009, the ‘victim’ (in this case, Trayvon Martin) would have had to be engaged in a federally protected activity” (for example, voting, going to school, etc).
Burwick said that requirement was removed with the passage of the 2009 expansion law.
Guy Maisnik, an LA-based defense attorney, explains the mechanism:
“The Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249, was enacted as Division E of the National Defense Authorization Act for Fiscal Year 2010. Section 249 of Title 18 provides funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes. The federal criminal law criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when… the crime was committed because of the actual or perceived race, color, religion, national origin of any person. The person need not be engage in any federal activity.”
Burwick says that notwithstanding the expansion in 2009, the DOJ would still have to prove that Zimmerman attacked Martin because Martin was black.
He says that is “very unlikely” because “zero evidence” was presented that Martin was attacked for his race. He believes that the DOJ prosecution would prove politically motivated, and could backfire.
In fact FBI documents that have been filed in the case fail to include “any accounts that Zimmerman … exhibited racial bias.”
Fox News reported Sanford police Det. Chris Serino told FBI agents he considered Zimmerman as having “a little hero complex, but not as a racist.”
Holder, after the Florida verdict, confirmed his department was investigating the case.
Florida defense attorney Brian Tannebaum told Fox News the DOJ’s hurdle would be that there’s no evidence for a claim of bias.
“There’s been an acquittal. The evidence has not changed. It’s not like the feds are going to go in and find more evidence,” he said.
McClatchy also reported that documents reveal the FBI agents interviewed dozens of people in the course of the case, but “nobody would say Zimmerman showed such bias before the shooting.”
Burwick contends that if Zimmerman is tried, it “would represent a violation against Zimmerman, committed by the federal government” because there is no evidence of racial motivation, and because the Obama/Holder administration may be politically motivated.
“There is still plenty to argue about here,” said Burwick.
“If brought in federal court under the Civil Rights Act … it does open a number of doors that are on less than solid ground. It would be a very tough case to win,” he said.
Burwick notes that from his perspective, the goal of the administration might be ill-constructed.
He believes it would “force an argument that the left really doesn’t want to have, and subject to scrutiny, the real issue of murder in this country, who commits them, who are the victims, etc., and open a statistical door that will take the clothes off racism versus reality. If the DOJ brings this case, it will be one of the dumber moves it makes.”