Zimmerman verdict: Legal experts say prosecutors overreached

By David G. Savage and Michael Muskal

July 14, 2013 12 AM PT

WASHINGTON — The jury’s verdict to acquit George Zimmerman in the shooting death of unarmed teenager Trayvon Martin, a case that became a referendum on race and gun laws for many across the nation, did not turn on how those issues played out in court, legal experts said Sunday.

Instead, they said, the acquittal can probably be blamed on mistakes by prosecutors in bringing a murder charge they could not prove.

The Justice Department announced Sunday that it would continue its investigation of the case to determine whether any federal civil rights laws were violated in the shooting of Martin, 17, who was black. In a statement, the department noted that its jurisdiction is limited: “Experienced federal prosecutors will determine ... whether federal prosecution is appropriate in accordance with the department’s policy governing successive federal prosecution after a state trial.”

PHOTOS: George Zimmerman trial, aftermath

A federal prosecution could resurrect a case that many legal analysts said was doomed by Florida prosecutors’ decision to pursue a hard-to-prove second-degree murder conviction against Zimmerman — responding to the recommendations of a special prosecutor appointed after a nationwide outcry over the youth’s killing.

The nationally televised trial exposed the flaws of that decision and the weakness of the state’s criminal case. Prosecutors could not prove Zimmerman was driven by “ill will or hatred” — the necessary elements of a murder case — when he got out of his vehicle on a rainy night and went after the teenager.

In the confrontation that followed, they also could not prove Zimmerman struck the first blow. If the teenager turned in fear to attack the stranger who was pursuing him, Zimmerman could claim he acted in self-defense. If the jurors were in doubt as to who struck first, they were obliged to hand down an acquittal.

That’s why few criminal law experts were surprised by the verdict.

“The prosecutors made a tactical error by charging this as second-degree murder,” said Charles H. Rose, a professor at Stetson University College of Law. “Their theory was that George Zimmerman picked out this young black kid and set out to do him harm. But at the trial, it became clear it didn’t happen that way.”

He pointed to evidence showing Zimmerman had been injured in the fight and that a witness who saw the two struggling said it appeared the teenager was on top. A defense pathologist testified the forensic evidence was consistent with Zimmerman’s claim that Martin was on top and hitting him.

Rose said prosecutors might have succeeded had they charged Zimmerman from the start with manslaughter or assault. “Then you would be arguing that he was a wannabe cop who stepped over the line and did something stupid. That is very different than trying to prove he stalked Trayvon Martin with an intent to harm him.”

Others were even more critical.

“We have elected prosecutors in this country, and this case was brought because of a political outcry,” said Harvard Law School professor Alan Dershowitz. “This case should never have been brought.”

He said the evidence in the case pointed to “reasonable doubt,” leaving no prospect that Zimmerman would be convicted on the murder charge. “There is no question we have a terrible history in this country involving black men, but that’s not what happened in this case,” he said.

George Washington University Law School professor Jonathan Turley said the prosecutor went too far from the beginning. “I thought this was overcharging. There was never a basis for a second-degree murder charge,” he said. “There is a high standard for proving that, and it did not fit the facts or the evidence. And by overcharging, she played into the hands of the defense.”

In a news conference after the verdict, Angela B. Corey, the state’s attorney who brought the charges, angrily denied the suggestion that Zimmerman was overcharged. “We charged what we had based on the facts of the case,” she told reporters. “We truly believe the mind-set of George Zimmerman and the reason he was doing what he did fit the bill for second-degree murder.”

Near the end of the trial, prosecutors urged the jury to convict Zimmerman of the lesser charge of manslaughter. But it was too late to re-focus the case, several experts said.

“Although the facts are tragic, I don’t think they should have brought this as a murder case,” said Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles. “It would have been more plausible to argue that Zimmerman was grossly negligent and that he brought on the confrontation.” But even so, she said, the defendant could have claimed he acted in self-defense when he shot the teenager.

Prior to the trial, many expected Zimmerman’s defense would point to Florida’s “stand your ground” law as justification for firing his gun. But the defense waived that right and instead argued their client acted in self-defense. Even without “stand your ground,” Florida’s self-defense laws provide plenty of room for a defense.

Zimmerman’s acquittal on criminal charges is not likely to end his legal troubles, however.

Martin’s family is expected to bring a civil suit against Zimmerman contending he is liable for a wrongful death. If the Justice Department decides to pursue a case, it could file charges for civil rights violations, but those claims usually require evidence that the perpetrator is an officer who acted “under color of law,” and not a private citizen.

“The argument would be, if when he called the police, they said, ‘Yeah, you stay on that guy and you let him know you’re there on our behalf,’ if he does that and he identifies himself as acting on behalf of the police, you have an argument that he’s acting under color of law. But those aren’t the facts. That’s not going to happen,” said Joseph Akrotirianakis, a former federal prosecutor in Los Angeles.

A federal law passed in 2009, the Matthew Shepard Act, specifically allows prosecutions in some cases of people who commit crimes of violence that are motivated by bias, including a victim’s race, eliminating the need to prove that the perpetrator was acting under color of law. But it carries a high burden for proving intentional discrimination.

In 1992, the Justice Department brought charges against four police officers who had been acquitted of beating Rodney King in 1991. Two of those officers were convicted on the federal charges and served prison time.

Constitutional protections against double jeopardy do not apply if the federal government charges a federal crime after a state acquittal, legal analysts said. But Justice Department policy calls for prosecutions in such cases only with senior department authorization and only when a compelling federal interest can be established.

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Staff writers Michael A. Memoli in Washington and Alana Semuels in New York contributed to this report.