earl ofari hutchinson

Earl Ofari Hutchinson

*Within days after the unwarranted and outrageous slaying of 17 year old Trayvon Martin by neighborhood watch volunteer George Zimmerman in Sanford, Florida, the call quickly went up for the Justice Department to prosecute Zimmerman in the killing.

The call was prompted by the refusal by the police to detain, let alone arrest, Zimmerman on gun charges, and the refusal by the Seminole County prosecutors to bring any charges against Zimmerman.

It took tens of thousands of signatures on an on line petition demanding the prosecution of Zimmerman, massive media attention, loud protests and statements from the Congressional Black Caucus and virtually every national civil rights organization, and the continued stubborn refusal of local authorities to prosecute Zimmerman to get the Justice Department to announce a probe.

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There was relief at the Justice Department’s action. But the relief is premature. In almost all cases that the feds probe, they take months and in almost all cases they quietly close the books on them. The reasons for the inaction in civil rights abuse cases are many, and the Martin case will likely be no different. The feds note that they are the “backstop” to local prosecutors. This means that they rigidly adhere to the legal doctrine of separation of federal and state powers. The killing of Martin, as all murder cases, is first and last a state matter, and the feds scrupulously defer to local authorities to bring charges. If state or county prosecutors won’t bring charges, the Justice Department does not regard it as its responsibility to usurp the decision of local authorities not to prosecute.

This is glaringly evident in questionable police shootings of young, in most cases unarmed, blacks and Latinos. Despite boasts by Justice Department officials that they have cracked down on police violence, the Department prosecuted cops in only a tiny fraction of the police abuse cases that the FBI investigated. Though Zimmerman is not a police officer and has had run-ins with the law, he was still for all intents and purposes acting in the quasi-official capacity as a law enforcement officer in patrolling the Sanford, Florida neighborhood where Martin was slain.

This presents another obstacle that causes Justice Department officials take a hands off stance toward prosecuting individuals who kill unarmed civilians under the legal or quasi-legal color of law. The attorneys that defend the shooters almost always are A-team attorneys. They are highly skilled, and have had much experience defending police officers, or men like Zimmerman, who kill. They seek to get as many whites on a jury as possible. The presumption is that white jurors are much more likely to be middle-class, and conservative, and much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims. The same rule applies to black or Latino jurors. They are generally middle-class, and share the same biases, and negative attitudes toward those they perceive as the criminal element as many whites.

The Justice Department also is reluctant to step on the toes of local police officials. When the Justice Department slapped a consent decree on Pittsburgh in 1997 after an extensive investigation found widespread police abuse and misconduct there, it walked a careful line. Federal officials made it clear that the federal government would not purport to substitute the judgment of its monitors for that of local police administrators. Many Pittsburgh officers expressed strong opposition to federal intervention of any kind.

Federal prosecutors also complain that they can’t nail more men such as Zimmerman involved in dubious shootings because they are constrained by the lack of funds and staff, victims who are perceived as criminals, credible witnesses, and the public’s inclination to always believe the testimony of authority figures. They also claim they are pinned in by the almost impossible requirement that they prove an officer had the specific intent to kill or injure a victim in order to get a conviction. These are tough obstacles to overcome and since the Justice Department is in the business of winning cases many prosecutors are more than happy to take a hands-off attitude toward misconduct cases.

A Zimmerman prosecution presents an even legal higher bar for federal prosecutors. They’d have to sideswipe Florida’s so-called stand your ground law that says that individuals are perfectly within their rights not to retreat in the face of a real or perceived threat. In plain English, if they think they’re in danger no matter how whimsical the threat they can take action up to and including deadly force. Seventeen other states have such laws.

Sanford Police Chief Bill Lee essentially shrugged his shoulders and said the law is the law and refused to put the cuffs on Zimmerman. The Justice Department likely won’t either.  The call then must be for local or state prosecutors to do the job they should have done from the start, and that’s to throw the book at Zimmerman.

Earl Ofari Hutchinson is an author and political analyst. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is host of the weekly Hutchinson Report Newsmaker Hour heard weekly on the nationally network broadcast Hutchinson Newsmaker Network.

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