Earl Ofari Hutchinson's take on the politics of the day
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The moment the NAACP, the Reverend Al Sharpton and other civil rights organizations publicly demanded that the Justice Department conduct a federal probe into the Trayvon Martin slaying and George Zimmerman’s acquittal for killing him with a view toward bringing civil rights charges against him, volumes were written and spoken as to why the department supposedly couldn’t or shouldn’t prosecute him. There’s one problem with all this. Most argue that charging Zimmerman with a hate crime in the Martin killing won’t fly because there’s no basis for that from the apparent evidence. But that’s not the only reason, in fact there are eight of them, the Justice Department can consider a “compelling federal interest” in prosecuting a defendant after a failed state prosecution, They are clearly spelled out in the Justice Department’s guidelines under the subsection: “Initiating and declining Charges—Substantial Federal Interest.”
1. Federal Law Enforcement Priorities. The Justice Department will prosecute only cases that it deems “are most deserving of federal attention.” A US attorney in a jurisdiction has much discretion as to the priorities for prosecuting a case and how a prosecution fits in with the department’s priorities. This means that Robert O’Neill, US Attorney for Florida’s Middle District that covers Sanford, Florida, has the leeway and authority to decide that a Zimmerman prosecution not only deserves federal attention but does not violate the department’s established priorities.
2. The Nature and Seriousness of Offense. The US attorney must consider the “nature and seriousness of the offense” in deciding whether to prosecute or not. The major factor that determines that is “the actual or potential impact of the offense on the community and on the victim.” The Justice Department spells out exactly what that means. It means economic harm to the community, physical danger to citizens, and erosion of citizen’s peace of mind and security. Zimmerman’s acquittal squarely fits each of these criteria in in terms of lasting damage to the community, erosion of confidence to secure that peace resulting from the state’s failed prosecution, and the danger of vigilantism in the Zimmerman’s jury’s upholding of an individual’s right to use deadly force solely because they presume that their life is in danger. Further, the rules spell out that the circumstances of the offense, the identity of the offender and the odious publicity in the case that create strong public sentiment in favor of prosecution must be weighed. The Zimmerman acquittal fits all three circumstances.
3. Deterrent Effect of Prosecution. The goal here is to insure that criminal conduct not be encouraged or furthered by a failed prosecution. The right to kill or maim an individual based on the perpetrator’s perception of danger as the department notes if unpunished would “commonly have a substantial cumulative impact on the community.”
4. The Person’s Culpability. The department must judge that the accused has some culpability in the commission of an act. The one indisputable fact in the Martin slaying is that Zimmerman initiated the confrontation by targeting Martin as a “suspect” and then following him. This establishes Zimmerman’s clear culpability in the deadly train of events that followed.
5. The Person’s Criminal History. Zimmerman has a criminal history. Both of his arrests, for domestic violence and resisting a police officer, involved violence. Federal prosecutors are duty bound to consider that history in determining whether to initiate or recommend prosecution and most importantly does the prior violence have a relationship to the charged offense. Zimmerman’s offenses involved violence and therefore that fits in with the rule that this past must be weighed in the decision to prosecute.
6. The Person’s Willingness to Cooperate. There is absolutely no hint that Zimmerman would be willing to cooperate in any federal probe into his conduct or actions that fateful night. His and his attorney’s public statements following the acquittal have been marked by defiance, baiting of the prosecutor’s case, and even gloating at the acquittal.
7. The Person’s Personal Circumstances. The circumstances that may preclude against a prosecution are youth, old age, mental or physical impairment. Zimmerman fits none of these personal circumstances. However, if federal prosecutors determine that the accused “occupied a position of trust or responsibility which he/she violated in committing the offense” this would be a strong factor in favor of a prosecution. Much was made that Zimmerman was at least at one time a sworn neighborhood watch captain and though his status as neighborhood guardian was dubious at best when he killed Martin, the strong presumption was that he acted as a neighborhood guardian—authorized or not.
8. The Probable Sentence. If Zimmerman had been convicted on any charge no matter how minor, federal prosecutors almost certainly would not consider a prosecution. It would not justify the government’s time or resources. But the fact is that he wasn’t. So this is a non-factor against considering a federal prosecution.
The legion of Zimmerman defenders and legal naysayers of a federal prosecution have no need to read the actual federal guidelines that determine when federal prosecutors can bring a second prosecution because their goal is not to adhere to the actual provisions that govern a federal prosecution but spout their pro Zimmerman legal biases. Federal prosecutors, however, have that duty. And there are eight compelling reasons they have to prosecute Zimmerman.
Earl Ofari Hutchinson is an author and political analyst. His new ebook is America on Trial: The Slaying of Trayvon Martin (Amazon). He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.
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