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Justice Dept.: Zimmerman case under review

Monday - 7/15/2013, 5:44am  ET

Averri Liggins, 22, of Atlanta, chants while holding a picture of Trayvon Martin during a protest the day after George Zimmerman was found not guilty in the 2012 shooting death of Martin, Sunday, July 14, 2013, in Atlanta. From New York to California, outrage over the acquittal of George Zimmerman poured from street demonstrations and church pulpits Sunday. (AP Photo/David Goldman)
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PETE YOST
Associated Press

WASHINGTON (AP) -- The Justice Department said Sunday it is looking into the shooting death of Trayvon Martin to determine whether federal prosecutors will file criminal civil rights charges now that George Zimmerman has been acquitted in the state case.

The department opened an investigation into Martin's death last year but stepped aside to allow the state prosecution to proceed.

In a statement, the Justice Department said the criminal section of its civil rights division, the FBI and the U.S. Attorney's office for the Middle District of Florida are continuing to evaluate the evidence generated during the federal probe, in addition to the evidence and testimony from the state trial.

"Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction," the statement said. Justice added that it will determine "whether federal prosecution is appropriate in accordance with the department's policy governing successive federal prosecution following a state trial."

From the Rodney King case in Los Angeles to the Algiers Motel incident in Detroit more than four decades ago, the Justice Department has a long history of using federal civil rights law in an effort to convict defendants who have previously been acquitted in related state cases.

On Sunday, NAACP President Benjamin Todd Jealous started a petition calling for the Justice Department to open a civil rights case against Zimmerman for the shooting death of 17-year-old Martin, but experience has shown it's almost never easy getting convictions in such high-profile prosecutions.

"The Justice Department would face significant challenges in bringing a federal civil rights case against Mr. Zimmerman," said Alan Vinegrad, the former U.S. Attorney in the Eastern District of New York. "There are several factual and legal hurdles that federal prosecutors would have to overcome: They'd have to show not only that the attack was unjustified, but that Mr. Zimmerman attacked Mr. Martin because of his race and because he was using a public facility, the street."

As to the last element, the confrontation between Zimmerman and the shooting victim occurred in a gated community, which may not fit the legal definition of a public facility.

Lauren Resnick, a former federal prosecutor in New York who successfully prosecuted a man in the killing of an Orthodox Jew during the 1991 Crown Heights riots in Brooklyn, said the Justice Department could conceivably proceed under a theory that Zimmerman interfered with Martin's right to walk down a public street based on his race. But that would be challenging, she said, because it would require prosecutors to prove, among other things, that trailing Martin on the street constituted interference.

"One could argue it did, if it freaked him out and he couldn't comfortably walk down the street -- there's an argument here," said Resnick, who now specializes in white-collar criminal defense and commercial litigation.

But she said federal prosecutors were likely to encounter the same hurdles as state prosecutors in establishing that Zimmerman was driven by racial animus and was the initial aggressor, as opposed to someone who acted in self-defense.

"When you have a fact pattern where one person's alive, and one person's not, and the person alive is the defendant, it's hard to prove things beyond a reasonable doubt," said Resnick. She also said it was easier to prove a criminal bias in the Crown Heights killing than it would be in any federal prosecution of Zimmerman.

Samuel Bagenstos, a former No. 2 official in the Justice Department's civil rights division, said: "This is an administration that hasn't shied away from bringing hate crimes cases that are solid prosecutions based on the facts and the law, but from what I've seen this would be a very difficult case to prosecute federally because the government would have to prove beyond a reasonable doubt that George Zimmerman acted because of Trayvon Martin's race. If you're trying to prove racial motivation, you are usually looking for multiple statements related to why he is engaging in this act of violence. I think it's a difficult case to prove."

Another federal case, the Rodney King prosecution, illustrates just how difficult it can be for the federal government to come in behind a state prosecution that ended in acquittal, even when there's videotaped evidence of the crime.

King was beaten by Los Angeles Police Department officers after a high-speed car chase in 1991, but the four police officers charged in the incident were acquitted on state charges of assault with a deadly weapon and three of the four were acquitted on a charge of use of excessive force. The jury deadlocked on the excessive force charge against the fourth officer.

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