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The Odds of Re-trying Zimmerman

Attorney General Eric Holder suggests that the Department of Justice may try to re-try George Zimmerman, despite his acquittal this past weekend. Lawyer and Discovery Sr. Fellow John Wohlstetter offers the following analysis of the problems facing the DOJ if it does so.

I did a little research on three possible legal avenues, and it appears difficult for any of them to be successfully used against Zimmerman.

The three are: (1) Florida civil case; (2) federal civil rights case; (3) federal hate crimes case.

State Wrongful Death Civil Case

There appears at most a narrow window under Florida law. A defendant who successfully invokes Florida's "stand your ground" (SYG) self-defense law is immune from civil suits . Zimmerman did NOT invoke SYG in the criminal case, for fear that an unsympathetic judge would deny a request for application of SYG. Such does not operate as a permanent waiver, however. Zimmerman can now plead SYG as a bar to civil suit.

The acquittal in the criminal case was based upon the jury's finding a double negative: the prosecution failed to prove beyond a "reasonable doubt" that Zimmerman did not act in lawful self-defense. That finding is a higher bar than the "fair preponderance of the credible evidence" standard that plaintiff in a civil case must meet. But the judge in a civil suit can nonetheless invoke SYG, and if that happens the civil case avenue is closed.

Federal Civil Rights Criminal Case

From this FBI list of all federal civil rights criminal statutes none seem to apply, except as indicated below. There has been talk of using section 242 , as was done in the federal Rodney King case. But the defendants there were cops, who had thus acted "under color of state law." Had Zimmerman joined the local civilian group that rode around in cop cars and used other law enforcement paraphernalia, perhaps his case could be shoehorned into this jurisdictional predicate. He was NOT a member.

So there appears no basis to indict Zimmerman under the criminal civil rights laws, except possibly as indicated next, re hate crimes.

Federal Hate Crimes Case

Under the hate crimes statute a murder motivated by racial bias carries a possible death penalty. But there are two obstacles. First, an FBI investigation last year found no evidence of racial bias on the part of Zimmerman. Second, there must be a jurisdictional predicate: the crime must involve an instrumentality obtained via interstate commerce. The only instruments relevant to the crimes are the gun Zimmerman used to kill Martin and possibly Zimmerman's car, used to help follow Martin. The gun manufacturer is based in Florida . I have not been able to ascertain where Zimmerman's SUV was manufactured.

So two things must happen for Zimmerman to be prosecutable for a hate crime: (1) the car must have been shipped via interstate commerce; (2) a new report, by the FBI or other federal agency, must find that racial bias at least in part was Zimmerman's motive for the killing of Marttin.

You can email brucechapman@discovery.org

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