Tuesday, 16 July 2013 09:25

Zimmerman Federal Hate Crimes Prosecution Would Be Double Jeopardy

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On July 13, a jury acquitted George Zimmerman of charges of second-degree murder and manslaughter in the death of Trayvon Martin. Despite being found not guilty of criminally killing Martin, Zimmerman faces an uncertain and dangerous future. Before the verdict was announced, radical groups were calling for riots and for personal attacks on Zimmerman.

In the wake of his acquittal, Zimmerman now faces another threat to his freedom and his future.

As reported by The New American,

Zimmerman could also face a civil trial if Martin's family brings a wrongful death suit against him for the fatal shooting that Zimmerman's lawyers successfully argued in the criminal trial was a matter of self-defense.

The Justice Department has said it is investigating the case, and Ben Jealous, president of the NAACP, said the nation's oldest and largest civil rights organization has urged the department to bring criminal charges against Zimmerman, who was born to a white father and Hispanic mother, for allegedly violating the civil rights of Martin, an African-American.

There is a problem with such a scenario. As the Wall Street Journal reports, “Millions of Americans would see such federal charges as an example of double jeopardy, and a politicized prosecution to boot.”

While many Americans have a workable understanding of this critical concept, a more thorough examination of double jeopardy may help explain why the Founding Fathers included protection from it in the Bill of Rights.

An article in the Long Island Newsday presents the problem in a nutshell:

The U.S. Justice Department, which opened an investigation into the George Zimmerman case Sunday, could charge him with federal civil rights violations, local attorneys said.

While a Florida jury found neighborhood watch volunteer Zimmerman not guilty of second-degree murder, a federal probe would examine whether he violated Martin's civil rights when he fatally shot him Feb. 16, 2012, in Sanford, Fla.

To prove such violations requires a different standard of evidence and law than what was used in the state case against Zimmerman. So a federal prosecution would not be double jeopardy, they said.

The Fifth Amendment to the Constitution guarantees that “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.”

Joseph Sobran once wrote, “One of the great goals of education is to initiate the young into the conversation of their ancestors; to enable them to understand the language of that conversation, in all its subtlety, and maybe even, in their maturity, to add to it some wisdom of their own.”

To that end, it is important to understand what “double jeopardy” meant in the language of the Framers of the Constitution.

In his decision in the case of United States v. Gilbert, Justice Joseph Story sets the metes and bounds of the protection:

My judgment is, that the words in the constitution, "Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb," mean that no person shall be tried a second time for the same offence, where a verdict has been already given by a jury. The party tried is in a legal sense, as well as in common sense, in jeopardy of his life, when a lawful jury have once had charge of his offence as a capital offence upon a good indictment, and have delivered themselves of the charge by a verdict.

Later in the same decision, Story explained the common law provenance of this particular principle:

This too is the clear, determinate and well settled doctrine of the common law, acting upon the same principle, as a fundamental rule of criminal jurisprudence. I deem it a privilege of inestimable value to the citizen; and that it was introduced into the constitution upon the soundest principles of prudence and justice. But if it were otherwise, it is my duty to administer the constitution as it stands and not to incorporate new provisions into it. If this clause does not prohibit a new trial, where there has already been a regular trial and verdict, then it is wholly immaterial whether the verdict is of acquittal or of conviction of the offence.

The lawyers, pundits, and professional race-baiters currently clamoring for another trial on charges of violating a federal civil rights statute point to the fact that a second trial would require “a different standard of evidence and law.” They cannot, however, claim that a second shot at punishing Zimmerman would involve a different set of facts — one more favorable to a guilty verdict.

In fairness, such a scenario is not covered by the Constitution. This is undoubtedly due to the fact that not a single man present at the Constitutional Convention in 1787 could have imagined that the limited government they were establishing would one day promulgate thousands of pages of federal crimes, particularly since such a police power was not granted by the states to the federal government. According to the 10th Amendment, then, that power is retained by the states and the people.

Furthermore, the Obama administration would face a formidable legal obstacle were it decide to prosecute Zimmerman for having violated the federal Hate Crime Prevention Act.

In order to prove that Zimmerman was guilty under that statute, the Justice Department would have to demonstrate that the attack on Trayvon Martin was not only unjustified, but that it was motivated by race.

Apart from the difficulty in carrying its burden of proof in a federal hate crimes case, a more insuperable roadblock in the path of a Justice Department decision to prosecute Zimmerman a second time is the lack of constitutional authority to do so.

The federal government is a government of limited, enumerated powers. If a power is not given to it in the Constitution, the federal government is prohibited from legislating in that area.

There is not a single syllable in the Constitution that gives the federal government police power over issues of state or local law enforcement. Therefore, Congress has no authority to criminalize the behavior covered by the several federal hate crime laws.

This does not mean, however, that violent crimes will go unpunished. As the Heritage Foundation explained in 2009:

The fact that the federal Constitution does not authorize Congress to address particular conduct does not mean that such conduct must be left unpunished. In the case of "hate crimes," the underlying violent conduct is punishable as a crime in every state, regardless of the motivation of the perpetrator or identity of the victim. Further, almost every state has adopted criminal offenses that increase the penalty for certain violent crimes deemed to be "hate crimes." Whether or not such enhancements are needed, they do not exceed the states' authority under the Constitution to criminalize violent, non-economic activity that is truly local in nature. And they do not undermine the ultimate responsibility and accountability of state and local officials to investigate and prosecute such crime.

A statement issued Sunday by President Obama may make the question of double jeopardy moot. In the message posted on the White House website, President Obama urged “calm reflection” and declared, “We are a nation of laws, and a jury has spoken.”

Should, however, Attorney General Eric Holder or his boss cave to the pressure from “civil rights” organizations and decide to prosecute George Zimmerman, the Constitution will be offended in two ways: First, George Zimmerman will be denied one of his civil rights — specifically that protecting him from being tried twice for the same crime (double jeopardy) as guaranteed by the Fifth Amendment; second, the core constitutional concepts of federalism and enumerated powers will once again be sacrificed by the federal government on the altar of absolute, consolidated power over the life and limb of every American.


Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels frequently nationwide speaking on topics of nullification, the NDAA, and the surveillance state. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.


  • Comment Link Harold A Priest Wednesday, 17 July 2013 23:53 posted by Harold A Priest

    Holder is trying to pull another fast one by ignoring the Constitution, as Barack Obama always does in his dictatorship. I also read on Spooner and Darius trial that there are similarities between Zimmerman/Martin trial and the Spooner/Darius trial. I was glad of decision of the jury on Spooner. What I can't connect is, when did 13 year old Darius break Spooner's nose and bang his head on the concrete at least 6 times??

  • Comment Link William B Wednesday, 17 July 2013 06:58 posted by William B

    You could be right. Of course, the Senate voted 53-46 on March 23 to not enter the Arms Trade Treaty and uphold the 2nd Amendment (see http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=113&session=1&vote=00091). But then the rule of law has not been a problem for Obama so far. And Holder...is he really a lawyer? He continues to rail against Stand Your Ground laws, even though SYG had nothing to do with Zimmerman protecting himself from the thug Martin who was on top of him beating his head against the pavement! He spoke again last evening to a meeting of the NAACP, about what else but Stand Your Ground.

  • Comment Link Heidi Preston Wednesday, 17 July 2013 02:22 posted by Heidi Preston

    If someone wanted to start a race war, this is definitely the way to do it. If you want fascism to dictate in the guise of liberalism this is the way to do it also. THERE WAS A TRIAL and found not guilty. This is the process of a democratic way. To over throw that ruling because you don't like it..that's fascism and tyranny. Civil Rights have to do with equal rights under the law..this was done. Fascism on the other hand has two mechanisms to achieve it's goal. One are the "street radicals" (the protesters, uprising,instigators ect.) and the "establishment radicals" (journalists, preachers, Government officials (Obama..if I had a son he would look like Trayron...what's that all about) and between these two forces they try to tear down the processes/structures/laws that exist for the protection of ALL and instead become terrorists for the agenda. What agenda? July 29, 2013 Geneva Switzerland disarmament conference part 111. If you don't think there is a correlation , think again...and paving the way for new laws in place of old ones granted by the constitution.

  • Comment Link Kurt Hyde Tuesday, 16 July 2013 23:33 posted by Kurt Hyde

    Is it constitutional for the Department of Justice to file civil suits?

  • Comment Link REMant Tuesday, 16 July 2013 23:25 posted by REMant

    Well, the Federal govt would not be exercising police power in this instance, but considering it a "hate crime."

    However, Martin was not the victim. He was shot, which doesn't equate to being a victim even if liberals think so.

    As Pat Buchanan remarks (http://www.theamericanconservative.com/shut-it-down-mr-president/comment-page-1/#comment-2257177), Zimmerman was tried and convicted long ago by blacks and the media.

    The prosecution even kept half of the information on Martin's phone and computer from the defense so that it wouldn't seem prejudicial, and then fired the man who blew the whistle on them.

    This episode had nothing to do with race, or with self-defense laws. Most black men are killed by other blacks. Zimmerman shot a man who was beating him up. The reason why he was being beaten up is not the issue. We cannot have peace in a country where either supposed victim or oppressor is privileged, and that has been the law since the Ten Commandments. Standing one's ground doesn't embolden anyone. Holder suggested Zimmerman should have run; I ask why Martin didn't run.

    Murder is basically a tort; manslaughter, a crime against the state. There's no particular reason why killing should be a crime against the state, or hatred for that matter. The state, in any case, may be able to punish a violent act, but like insurance, it is powerless to effect a remedy. These days it cannot even be said to act as a deterrent, and when it does, it threatens privacy and liberties. Nevertheless, the jury found Zimmerman innocent of both and there ought be no civil case, nor a Federal one, which would amount to double or triple jeopardy.

    The real problem in the trial was that the bigotry of the prosecutors and the black witnesses was made clear to the entire nation.

  • Comment Link R Jensen Tuesday, 16 July 2013 20:55 posted by R Jensen

    I said the same thing when OJ Simpson was put on trial for "wrongful death," whatever that means.

  • Comment Link Peggy Finch Tuesday, 16 July 2013 20:17 posted by Peggy Finch

    It would indeed be double jeopardy. But given this administration's TOTAL disregard for the Constitution, I doubt that will stop them. My prayers go up for George Zimmerman, his family, and this nation.

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