The American Civil Liberties Union seems a bit less unified in the aftermath of the Zimmerman acquittal. I remain a huge admirer of the ACLU and its inspiring legacy in fighting for civil liberties in America. I also have great respect for ACLU Executive Director Anthony Romero. However, the divisions evident on this civil liberties blog appears equally represented in that civil liberties institution. To the surprise of many, including myself, Romero sent a letter to Attorney General Eric Holder that seemed to clearly invite a civil rights or hate crime prosecution of George Zimmerman. The ACLU however has long taken the view that such prosecutions violate the double jeopardy clause of the Constitution. When the federal government does not like the outcome of a high-profile case, it can use the very same facts to bring another prosecution under a different crime. After sending the letter, however, the ACLU staff appear to have objected and sent out a conflicting position that such successive prosecutions are violative of constitutional principles.
As noted in the article below, the ACLU previously faced the same division and retraction in the aftermath of the Rodney King case — first supporting a federal prosecution and then denouncing it.
In his letter to Holder, Romero wrote:
“Last night’s verdict casts serious doubt on whether the legal system truly provides equal protection of the laws to everyone regardless of race or ethnicity. This case reminds us that it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.”
That would seem to clearly invite not just an investigation but possible prosecution under civil rights or hate crime laws. Indeed, the ACLU said such action was “imperative.”
Various civil libertarians cried foul and reminded the ACLU of its policy that “There should be no exception to double jeopardy principles simply because the same offense may be prosecuted by two different sovereigns.”
It was then that the powerful Washington DC office stepped in with a letter of its own to Holder stating that
“We are writing to clearly state the ACLU’s position on whether or not the Department of Justice (DOJ) should consider bringing federal civil rights or hate crimes charges as a result of the state court acquittal in the George Zimmerman case. The ACLU believes the Double Jeopardy Clause of the Constitution protects someone from being prosecuted in another court for charges arising from the same transaction. A jury found Zimmerman not guilty, and that should be the end of the criminal case.”
One could easily understand why Holder would be a tad confused (after all, he just went through mental gymnastics to excuse clear perjury by the National Intelligence Director James Clapper as a mere harmless lie under oath before the United States Congress. That had to leave some lasting cognitive damage). If the ACLU is opposed to such prosecutions, it is harm to understand the “imperative” described in Romero’s letter.
I have previously stated that I do not believe that there is a case for such a civil rights or hate crime prosecution. Indeed, Obama and Holder appear to know that when you read their statements warning citizens of the high burden in such cases. However, these prosecutions have also raised serious questions of double jeopardy despite the erosion of that protection by the federal courts. In this case, many people are outraged by the verdict and want the federal government to take a crack at Zimmerman. However such a prosecution would not only likely fail but it would be viewed as the Administration simply disagreeing with the results of a trial and jury verdict.
I have said from the first day of the indictment that Angela Corey had over-charged the case and I believe that the case might have come out differently had she charged it as a manslaughter. However, the record in the case does not come close to the record for past civil rights prosecutions. People want a do-over. The one thing that many on the different sides agree on is that Corey’s team did a poor job in the case. Yet, too often these federal prosecutions are used to “take another bite at the apple” after a high-profile and unpopular defeat.
I believe that the original letter of Romero was a mistake and contradicts the long commitment of the ACLU to the protection of citizens from successive prosecutions following acquittal. Former ACLU board member Michael Meyers joined many in criticizing Romero:
“The ACLU is out of line; a civil liberties organization is concerned with the accused getting a fair trial, which includes the right of effective counsel, due process and protection against double jeopardy. No government, much less an angry community, is entitled to a verdict to their liking . . . The ACLU is not the NAACP; the ACLU is the guardian of individual liberty, not a victims’ rights or racial grievance group.”
What do you think?
Source: Politico
Cray,
Trayvon Martin Investigator Wanted Manslaughter Charge
By MATT GUTMAN
SANFORD, Fla. March 27, 2012
http://abcnews.go.com/US/trayvon-martin-investigator-wanted-charge-george-zimmerman-manslaughter/story?id=16011674
Excerpt:
The lead homicide investigator in the shooting of unarmed teenager Trayvon Martin recommended that neighborhood watch captain George Zimmerman be charged with manslaughter the night of the shooting, multiple sources told ABC News.
But Sanford, Fla., Investigator Chris Serino was instructed to not press charges against Zimmerman because the state attorney’s office headed by Norman Wolfinger determined there wasn’t enough evidence to lead to a conviction, the sources told ABC News.
Police brought Zimmerman into the station for questioning for a few hours on the night of the shooting, said Zimmerman’s attorney, despite his request for medical attention first. Ultimately they had to accept Zimmerman’s claim of self defense. He was never charged with a crime.
Serino filed an affidavit on Feb. 26, the night that Martin was shot and killed by Zimmerman, that stated he was unconvinced Zimmerman’s version of events.
I’ve said I disagree the SPD and the prosecutor’s did a proper job, Cray.
If you think otherwise? Good for you.
However, you seem to forget this point:
“The lead homicide investigator in the shooting of unarmed teenager Trayvon Martin recommended that neighborhood watch captain George Zimmerman be charged with manslaughter the night of the shooting, multiple sources told ABC News.” http://abcnews.go.com/US/trayvon-martin-investigator-wanted-charge-george-zimmerman-manslaughter/story?id=16011674
So Z was given a walk while the lead investigator wanted him charged. Kinda belies your assertion that the SPD had no reason to believe charges were not merited.
Hmmmmmm.
As I said, I have minimal to no investment in this case.
Mike Spindell,
Maybe this will help you understand the difference between a tort and criminal law.
http://www.georgialegalaid.org/resource/the-difference-between-torts-and-crimes
Mike Spindell,
“Should you be able to sue the allegedly drunk driver if he was found innocent of DUI at his criminal trial?”
Sure! His guilt or innocence as to DUI has nothing to do with his destruction of my property. A finding of guilty of DUI does nothing to make me whole, nor does his innocence to that charge.
Gene H.
Zimmerman was arrested and investigated. He was handcuffed; placed in the back of a patrol car; and transported to the police station. At the Sanford PD he was questioned on, at least, two different occasions. His clothes were taken as evidence.
The Sanford PD had no reason to believe that his use of deadly force was not lawful. In other words, they had no reason to charge him with any violation of the law. That’s why he was subsequently released without charge.
“The problem lies with your conception. A person can be convicted of a crime and still be held civilly liable for a loss suffered. i.e. A drunk driver could run off the road and into my house. He could be convicted of DUI. Would you have a problem with me suing him for the damage caused to my house?”
Cray,
Admittedly my statement was problematic and I thank you for pointing that out to me. My problem though was in expression of my proposition, rather than my conception originally. Your example of the Drunk Driver being sued not only points out how I wrongly stated my idea, but in the end actually bolsters my concept. Should you be able to sue the allegedly drunk driver if he was found innocent of DUI at his criminal trial? At the criminal trial there would be a higher standard of evidence required, than at civil trial. That is the real analogy with OJ’s case. At the time of Nicole’s parents lawsuit it was clearly stated by them that they were using the Civil Trial with its considerably lower evidential standard in order to ensure that he was punished in some way for the crime for which he was acquitted..
Cray,
I think you mistake me for having some kind of investment in the outcome of the trial. I do not now nor have I ever. My primary interest in the case was that Zimmerman was effectively getting a walk for what seemed to political reasons in circumstances where anyone else would have at a minimum been arrested and investigated before being cut loose. Beyond that, all I was concerned with was that the trial be fair. And I think it was fair. I also think it was poorly prosecuted and that his injuries were minor (not only as a lawyer but as someone with martial arts experience).
“When Holder delivered his 2009 “nation-of-cowards” speech blaming racism for racial separation, Manhattan Institute’s Heather Mac Donald suggested that our attorney general study his crime statistics.” Vincent P. 2:02am
“But in the past there was slavery and the Fugitive Slave Acts, there was violence and lynchings of black people, and there were Jim Crow laws, all these things enforced or at least condoned by the government. But none of that exists anymore.” Scott Lazarowitz 5:35am
The second part of the issues raised by this post arose in the comment thread that followed. Vincent P. posted a comment, represented by the quote above, whose premise is that Blacks have no business talking about racial prejudice simply because they bring it on themselves by being the perpetrators of most crimes. Bigfatmike at 6:27am logically demolishes the statistics quoted in Vincent’s comment, but I would like to go further. Vincent P. provides a link to an article by Patrick Buchanan that comments on these statistics. Mr. Buchanan can be, via his own words, charitably be described as an Anglo Saxon Centric White Supremacists. I can supply many quotes but this one gives the full flavor of Mr. Buchanan in his own words:
‘We are trying to create a nation that has never before existed, of all the races, tribes, cultures and creeds of Earth, where all are equal. In this utopian drive for the perfect society of our dreams we are killing the real country we inherited — the best and greatest country on earth.
– Suicide of a Superpower- (from his official website under quotes0
“White America is an endangered species. By 2020, whites over 65 will out-number those 17 and under. Deaths will exceed births. The white population will begin to shrink and, should present birth rates persist, slowly disappear.
– Suicide of a Superpower”
Mr. Buchanan is also anti-Jewish and this fact was admitted by his close friend William F. Buckley, Jr.. Clearly the con man and mountebank that is Pat Buchanan is hardly someone to go to as a even handed observer of race in America.
As for Scott Lazarowitz quote above its thrust is that racism no longer exists in America. I would disagree with his assessment and here are two links of guest blogs I’ve written that to my mind dispose of that idea:
http://jonathanturley.org/2013/06/21/post-racial-america/#more-66055
jonathanturley.org/2011/11/26/the-incarceration-of-black-men-in-america/
I disgusts and distresses me that not only is racism alive and well in this country but those who would foment it have tried to turn the blame upon the victim and in some cases admirably succeeded. I am not calling either of the two commenters I quoted racists, since I have no real knowledge of either gentleman other than Scott is a Libertarian, with a blog of his own and he follows the economics of Von Mises. One can surely be a Libertarian and not be a racist and there are many issues that Libertarians and I see the same way. However, I will state that both gentleman have fallen victim to a fallacious argument on race and bigotry in America.
Gene H.
If you had watched the trial (which provided information not adequately covered by the press), you would have seen that the Sanford PD really did do a pretty good job of investigating the case.
In order for manslaughter to be charged, the state still has to overcome the statutory provision of “without lawful justification”.
Injuries to the head are reliably indicative of an intent to cause serious bodily harm…which provides the lawful justification for the use of deadly force.
The Prosecution interpreted the law to require Zimmerman to have sustained serious bodily harm prior to being able to lawfully use deadly force. The jury didn’t buy that, but a lot of those wanting Zimmerman’s head sure did.
Gene, Mike S., Bob Esq,
Said it all……
Mike,
Cray’s point vis a vis criminal versus civil liability is valid. Jurisdiction and double jeopardy aren’t as simple as they seem on the surface. And as much as I generally agree with the “traditional” ACLU stand on DJ as it applies to hate crimes, the Matthew Shepard Act is still the law. I’m on the record here many times opposing hate crime legislation in general based in part on DJ, but mostly on that it is an attempt to prosecute for a state of mind instead of a crime proper. Personally, I still don’t think the DOJ can make that stick to Zimmerman and would have a better chance going after the locals for deprivation of due process based on intentional discrimination (a civil charge).
Cray,
You are correct. I misremembered the events around the grand jury. As I’ve said before, once Zimmerman was arrested and investigated, I didn’t pay much attention to the case. As for manslaughter? Manslaughter is the unlawful killing of a human being without malice aforethought. It was the appropriate charge in this circumstance. What would have been needed to overcome a claim of self-defense is proof and arguments that Zimmerman was not justified in using deadly force (and does not have a duty to retreat) because he reasonably believed that such force was necessary to prevent the imminent commission of a forcible felony or to prevent imminent death or great bodily harm to himself or another. You’d overcome the reasonable doubt by attacking the reasonableness of his beliefs in the circumstances.
Cray, Your example of DUI and civil liability occurs many times on a daily basis. It also occurs in convictions of battery, rape, etc.
The ACLU got it wrong at first and then corrected itself. Better late than never. If they were to change their longstanding policy against federal prosecutions following state acquittals, then I would hope they’d pick a compelling case, which the Zimmerman case is manifestly not.
Ross @ 6:35 “Why did the prosecutors blow the case?”
They didn’t. It was always a dog of a case. No one should be surprised that it barked when it went to court.
Mike Spindell,
“Part of this erosion conceptually, apparently not legally, was the civil conviction of OJ Simpson. Since there is a lower standard of proof in civil cases OJ was essentially convicted, albeit financially, of a crime which he had be found “not guilty” in a criminal trial.”
The problem lies with your conception. A person can be convicted of a crime and still be held civilly liable for a loss suffered. i.e. A drunk driver could run off the road and into my house. He could be convicted of DUI. Would you have a problem with me suing him for the damage caused to my house?
What?
Lawyers are arguing about what the law is?
Never heard of such a thing.
/snark
As stated above, the Washington office made the right decision. Any organization can make mistakes and get caught up in the fervor of the day, but the ACLU will correct its mistakes and continue to serve anyone whose constitutional rights have been infringed.
Gene H. said “The evidentiary standards are just too high and if that evidence existed, the Florida grand jury would have returned a capital murder charge in the first place.”
In the first place? I think a case has to be presented to the Grand Jury before it can return a charge. Angela Corey did not present anything to the Grand Jury. She relied on a Probable Cause Affidavit that was not supported by the evidence.
I see many people taking the position that a manslaughter charge would have been the way to go. But I have yet to come across anyone taking that position demonstrate how the Defendant’s claim of self-defense would have been overcome beyond a reasonable doubt.
The Prosecution did what they could based on limited evidence.Judge Nelson appeared to bend over backwards to permit the State to present their case.
“People want a do-over.”
Should read: “The mob wants a do-over.”
The mob mentality couldn’t care less about the law.
This post has raised two issues. The first being the thrust of the post itself, which is that to try Zimmerman on a Federal level for essentially the same crime, framed differently, would be another violation of the concept of double jeopardy. notice please that I use “concept” rather than “right”. My feeling is that we have seen the concept of double jeopardy erode over time and with it
went the right to not be tried again for essentially the same crime.
To me, admittedly a non-lawyer, the concept of double jeopardy is one that sanctifies the notion that if at trial someone is acquitted of charges, no matter how heinous the purported offense, then they cannot be recharged for the same offense. This historically was supposed to work as a check of the power of the State to harass individuals that the State felt needed punishment, but was unable to convict the person at trial. A second bite of the apple is I think the term. The history of the erosion of this concept in American jurisprudence is a long one. Part of this erosion conceptually, apparently not legally, was the civil conviction of OJ Simpson. Since there is a lower standard of proof in civil cases OJ was essentially convicted, albeit financially, of a crime which he had be found “not guilty” in a criminal trial. John Gotti was tried six times on essentially the same charges before he was convicted and that was only after his successful attorney in the first five trials, Bruce Cutler, was not permitted to defend Gotti in the sixth trial. I am not defending either man as a paragon of virtue, but under the law we need to all be treated equally, or there really is no law. I’m talking of course of general principles of “The Law” and not the reality of it which is that justice has been unequally applied since the founding of this country.
While I’m clearly stating that the idea of “equal treatment under the law” has been a chimera, it is nevertheless a concept that we can’t just give up on. The consequences of foregoing “equal treatment under the law” are oppression and persecution and so society needs to keep pursuing this concept no matter how we fall short on many occasions.
Like Professor Turley the ACLU is an organization that I deeply admire and strongly support. In this instance I think Mr. Romero was wrong and violated a cardinal ACLU principle by becoming more focused on his political/social beliefs, rather than the organization’s mission. I glad the Washington Chapter stepped in to rebuke him.
I mention two issues raised and dealt with the first above. The second issue though was raised by some in their comments and I will treat them in my next comment.