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To What Extent Did Race Play a Role In the Death of Trayvon Martin?

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A key question persists in the wake of George Zimmerman's acquittal on charges of homicide: To what extent did race play a role in the death of Trayvon Martin? The question of race was excluded from Zimmerman's Florida state trial. Prosecutors did not charge Zimmerman with a racially motivated murder because it may well be that at the moment he actually fired the fatal shot, his motivation was self defense, not racial bias. That appears to be the jury's view in finding him not guilty. As President Obama said, the jury has spoken on the murder and manslaughter charges, and that much is a closed case.

But suppose we pull back in time and start the camera rolling minutes earlier. Zimmerman's decision to follow this black teenager certainly may have been racially motivated. Indeed, Zimmerman's behavior up to whatever confrontation may have occurred between him and Martin may have exhibited racial animus. If so, there is a federal legal interest overlooked by the state trial of George Zimmerman: the right of Trayvon Martin to proceed down the street unimpeded on his way back from a convenience store, a fundamental freedom protected by American law.

When this right is violated because of a person's race, religion or national origin, it is a federal crime under a key federal criminal civil rights statute enacted as part of the Civil Rights Act of 1968. Willful interference with a person's right to travel was the statute relied upon by the Department of Justice, for example, in the 1994 prosecution of the killers of Yankel Rosenbaum, a Hasidic scholar stabbed in a religiously-motivated attack.

To be sure, there are significant technical issues involved in bringing criminal civil rights charges against Zimmerman: Was Martin on a public highway? Did Zimmerman willfully interfere with Martin because of his use of public facilities? But it would be worthwhile for federal officials to look closely at the possibility of charging Zimmerman with racially motivated interference with the right to travel.

Federal prosecutors should exercise extreme caution in bringing charges following a state court acquittal. Contrary to popular belief, this is not, strictly speaking, a matter of double jeopardy, the Constitutional prohibition of charging a defendant twice for the same crime. Under the well-established "dual sovereignty doctrine," the Supreme Court has ruled that federal and state governments are two separate sovereignties, each of which can charge the defendant with a violation of its law. But it is a matter of sound prudential concern that the Federal government should not easily pursue a criminal case when a State case arising out of the same set of facts has already been resolved. Indeed, the Department of Justice's "Petite policy," after a case of the same name, strictly limits such dual prosecutions to instances in which compelling reasons exist to prosecute, such as cases in which there remain "substantial federal interests demonstrably un-vindicated" by the state procedures.

In some instances, a Federal prosecution was warranted by the default of state prosecutors to proceed vigorously or at all. For example, the Federal criminal cases in 1964 against those involved in the "Mississippi burning" murders of civil rights workers James Chaney, Andrew Goodman and Michael Schwerner, were brought after Mississippi authorities refused to prosecute the killers for murder. This is clearly not true of the George Zimmerman case as Florida prosecutors sought a murder conviction. But there may well be a federal right left un-vindicated after the acquittal of George Zimmerman, and that is the right to travel unimpeded.

A prosecution on these grounds may not satisfy many of those outraged by the verdict in the homicide case. Federal charges here cannot be for murder. However, federal criminal civil rights charges would place the Trayvon Martin incident into the context of race and bias that was so lacking in the Florida state court trial. This was precisely the purpose of the Civil Rights Act of 1968.