THE FEDS MAY INITIATE THEIR OWN ACTION AGAINST ZIMMERMAN

For those who are following the Trayvon Martin / George Zimmerman case, you might be interested in knowing that in addition to the investigation and charges conducted by the Florida state prosecutor, we are advised that the U.S. Department of Justice is conducting their own investigation to see if Zimmerman (GZ) violated the Shepard/ Byrd Federal Hate Crime Acts which provides:

Sec. 249. Hate Crime Acts
``(a) In General.— ``
(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.— Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person— ``
(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and ``
(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if— ``(i) death results from the offense; or ``(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

It appears that no matter what the outcome of the state court action, the federal prosecutors may initiate their own criminal action against GZ under the the Shepard/ Byrd Federal Hate Crimes Act or any other federal statute applicable. I also believe that the state prosecutor was very careful to word the charging document and information so as to make clear they were not applying federal law in prosecuting GZ and relying exclusively upon state law. If GZ is convicted, acquitted, or found not guilty, the federal prosecutors may still step up and initiate their own prosecution - although I doubt that will happen - but that depends upon what the outcome is and public response/pressure. The premises is:

“Every citizen of a State owes a double allegiance; he enjoys the protection and participates in the government of both the State and the United States.” Houston v. Moore 18 U.S. (5 Wheat.) 1, 33 (1820).

Different sovereigns successively may prosecute for the same criminal activity. The U.S. Supreme Court has resolved the issue in the context of U.S. federalism by developing the dual sovereignty doctrine. The doctrine “is founded on the . . . conception of crime as an offense against the sovereignty of the government.” Heath v. Alabama, 474 U.S. 82, 88 (1985).

It holds that “[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’” Id. (citing United States v. Lanza, 260 U.S. 377, 382 (1922)). [Emphasis added.]

No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because “by one act [the defendant] has committed two offences, for each of which he is justly punishable.” Id. (quoting Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852)).

The defendant, in other words, is not being prosecuted twice for the same “offence” if another sovereign successively prosecutes for the same act—even if the second sovereign prosecutes using a law identical to that used in the first prosecution. U.S. CONST. amend. V.; See Heath, 474 U.S. at 87–88.

Controversial high-profile examples of re-prosecution include the Los Angeles police officers accused of using excessive force against Rodney King.

History of the dual sovereignty exception to the double-jeopardy protections:

In Houston, Justice Johnson addressed a main counterargument to concurrent federal and state jurisdiction; namely “if the States can at all legislate or adjudicate on the subject” of federal regulation, “they may . . . embarrass the progress of the general government.” That is, if state jurisdiction overlaps with federal jurisdiction, the states could thwart the federal government’s ability to carry out federal lawmaking and enforcement functions. One obvious way for the states to do this, of course, would be to acquit an individual in state court so as to insulate him from prosecution in federal court for the same act. Or, as Johnson put it, “[i]t is true, if we could admit that an acquittal in the State Courts could be pleaded in bar to a prosecution in the Courts of the United States, the evil might occur.” Yet such a reading of double jeopardy doctrine, in Johnson’s view, would be wrong:

"But this is a doctrine [prior acquittal as a bar to double jeopardy]
which can only be maintained on the ground that an offence against
the laws of the one government, is an offence against the other
government; and can surely never be successfully asserted in any
instances but those in which jurisdiction is vested in the State
Courts by statutory provisions of the United States. . . . [C]rimes
against a government are only cognizable in its own Courts, or in
those which derive their right of holding jurisdiction from the
offended government."

Because the state government and the federal government—as distinct lawgivers—enjoy distinct jurisdictions to make and apply distinct laws, distinct prosecutions would be permissible. Indeed, the only circumstance in which double jeopardy protection against a successive federal prosecution could arise, according to Johnson, would be where state courts acted on behalf of the federal government in applying federal law, i.e., where “jurisdiction is vested in the State Courts by statutory provisions of the United States.” Houston v. Moore 18 U.S. (5 Wheat.) 1, 35 (1820).

Later, Moore v. Illinois 55 U.S. 13 (1852) solidified the jurisdictional foundation laid by Houston. Moore involved a challenge to a state court conviction under an Illinois law outlawing harboring fugitive slaves. In response to the double jeopardy concern, the Court announced the dual sovereignty doctrine:

"An offence, in its legal signification, means the transgression of a
law. . . . Every citizen of the United States is also a citizen of a State
or territory. He may be said to owe allegiance to two sovereigns,
and may be liable to punishment for an infraction of the laws of
either. The same act may be an offence or transgression of the laws
of both. . . . That either or both may (if they see fit) punish such an
offender, cannot be doubted. Yet it cannot be truly averred that the
offender has been twice punished for the same offence; but only that
by one act he has committed two offences, for each of which he is
justly punishable. He could not plead the punishment by one in bar
to a conviction by the other." Id. at 19–20.

The Court would go on to use the dual sovereignty doctrine to uphold successive federal court prosecutions following state court convictions for the same acts in Abbate v. United States, 359 U.S. 187 (1959); successive state court prosecutions (and convictions) following acquittal of the same acts in federal court in Bartkus v. Illinois, 359 U.S. 121 (1959); successive federal court prosecutions following conviction for the same acts in Indian Tribal Courts in United States v. Wheeler, 435 U.S. 313 (1978); United States v. Lara, 541 U.S. 193 (2003) and successive prosecutions in different state courts for the same act where the defendant pleaded guilty in the first case to avoid the death penalty but was sentenced to death in the second in Heath v. Alabama, 474 U.S. 82 (1985).

I believe the federal investigation was only commenced as a result of the strong public pressure it was receiving over Sanford PD's lack of action or claims of corruption. I suspect now that the state has charged Zimmerman, they will take a back seat with a "wait and see" attitude. The whole purpose of the hate-crime laws has been to beef up charges in a criminal case motivated by hate of a specific group, etc. Since the criminal penalty for murder is already the most severe regardless of motivation, it would make sense from a federal prosecutor's perspective to let the state prosecutor handle the case. Under the dual-sovereignty exception - that double-jeopardy protections do not apply to separate sovereign governments, if the federal prosecutors are dissatisfied with the outcome of the state's case, they are not precluded from initiating their own action.

I would venture to say that it may be accurate to call hate crimes the most emotionally-charged criminal issue in the nation today. And when a case like this causes a public uproar– even on the brink of hysteria -- and you realize that federal prosecutors will have the opportunity to get a second bite at the apple if they don't like the outcome of the state case, or they sense an opportunity to make headlines, it does make one take pause. Although I tend to lean to the prosecutor's side because of the nature of my work, I have not lost sight of the fact that U.S. Attorneys and other DOJ officials are office holders, many of whom often aspire to higher office. They may be looking for votes–so they can become state legislators, State Attorneys General, members of the House of Representatives, Governors, etc. I am not saying these are bad people; the vast majority are good people. But the desire to please the crowd is part of their make-up. Can anyone seriously argue that thousands of sign carrying protesters will have no effect on their judgment? That said, I don't know whose face I would enjoying watching more, GZ's or Daddy Z's, when O'Mara explains this to them.