Justice Department lawyers have stated that it "would be difficult to prosecute the case under federal law" because the case may not have the elements of a hate crime. "Civil rights law protects against 'hate crimes' or actions by police officers, but Martin’s shooting may not have either of those elements, two officials said." The concern, as expressed by a Justice Dept. spokeswoman, is that "in civil rights crimes, the government 'must prove beyond a reasonable doubt that a person acted intentionally and with the specific intent to do something which law forbids — the highest level of intent in criminal law.'"
Right now Zimmerman's lawyer, Craig Sonner, is hitting the media to make the case that his client is not a racist and this killing was not racially motivated, trying to convince both law enforcement officials and potential jurors that there is plenty of reasonable doubt.
Former prosecutors say one possible federal case is one law enacted earlier in the Obama administration: The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act that makes it a "federal crime for someone to engage in violence because of a victim's race or color."
The Shepard/Byrd federal hate crimes law (known as Section 249) makes it a crime when someone "willfully causes bodily injury to any person, or through the use of fire, a firearm, a dangerous weapon, ….because of the actual or perceived race, color, religion, or national origin of any person." In 2009, the Justice Department stated the Shepard/Byrd hate crime law requires proof that Zimmerman acted with specific intent:
"Section 249 — like the existing hate crime statute — would require the Government to prove beyond a reasonable doubt both (a) that the defendant had a specific intent to commit a
crime and (b) that the defendant committed the act because of certain characteristics of another person (race, color, religion, national origin, sexual orientation, gender, gender identity, or disability)."
Specific intent means generally that the prosecution must prove more than that Zimmerman acted knowingly – the government must prove that Zimmerman had a "particular purpose in mind when engaging in illegal conduct." That is, the prosecution must provide evidence independent from the commission of the crime or killing of Trayvon that shows that Zimmerman had the specific intent to engage in the prohibited act (cause bodily injury) to Martin because he was an African American. "Specific intent requires that it be shown that an act is motivated by a prohibited motive," in this case, race, and is "difficult to prove absent explicit statements on the part of the actor."
Thus, legal experts and former prosecutors say that the DOJ "could bring a hate crime charge against the shooter in the killing of black Florida teenager Trayvon Martin if there is sufficient evidence the slaying was motivated by racial bias and not simply a fight that spiraled out of control."
This is one reason why the 911 call and Zimmerman's utterance of the "fuckin coons" is so important because motive plays a role in specific intent crimes and Zimmerman uttered the racial epithet right before the shooting. As stated in one news report:
So far, only one such clue has surfaced publicly against 28-year-old George Zimmerman, the neighborhood watch captain who fatally shot the 17-year-old Martin on Feb. 26 in the central Florida town of Sanford. On one of his 911 calls to police that night, Zimmerman muttered something under his breath that some listeners say sounds like a racial slur. Zimmerman's father is white, and his mother is Hispanic.
"It sounds pretty obvious to me," said Donald Tibbs, aDrexel University law professor who has closely studied race, civil rights and criminal procedure. "If that was a racial epithet that preceded the attack on Trayvon Martin, we definitely have a hate crime."
While some say the 911 recording was not "clear enough to determine what Zimmerman actually said," many experts say that "more evidence would be needed that he harbored racial prejudice against black people and went after Martin for that reason alone."
"They are going to have to show he was specifically targeting this individual based on his race, creed, color, et cetera," said David S. Weinstein, a former federal prosecutor in Miami. "Not that he was chasing somebody down and got in a confrontation that may or may not have been based on that."
Here is a little indication of
one problem faced by a hate crime prosecution. In an online discussion of "was Trayvon Martin's death a hate crime," one person stated how this might be better called a "fear crime" rather than a hate crime, and this commenter was wholly oblivious to the fact that his/her reasoning was based on racist stereotypes and bias, where fear is triggered by the very hate that this person denies:
A HATE CRIME OR A "FEAR CRIME?"
I don't think a lot of these crimes are hate, per se, as much as fear. I know that I would be afraid of these "gangsta" type young black men, and so many of the criminals we see on the news, in the paper, etc., seem to be black. If I were to shoot one, it would be purely out of fear--no hate involved.
This is why Zimmerman's lawyer, Craig Sonner, is now hitting the media to make the case that his client is not a racist and this killing of Trayvon was not racially motivated. Sonner is trying to prove that Zimmerman's killing of Trayvon was not racially motivated by using memes that don't prove lack of racism but some people do believe that these memes prove lack of racism. Sonner says Zimmerman's
African-American friends "only have good things to say about him." How unusual that a white person would claim that having black friends provides immunity against any actions being deemed racially motivated? Sonner also wants the public to buy that if Zimmerman and his wife
"served as mentors" to two African-American teenagers, then he could not have been racially motivated to gun down Trayvon because, of course, no whites believe that only they can rescue blacks. Sonner also
claims that one cannot be racist if the person does not use racist slurs. "Based on talking with George and his friends, I don't believe he made racial slurs. He was not known for talking that way," Sonner said." While the use of racial slurs can show hatred, the absence of slurs, if true (and we do have that 911 tape to the contrary), does not prove lack of racial motivations.
Sonner is taking his case to the potential jurors and law enforcement officials who might agree with the commenter that this is a fear crime, not a hate crime. We need to pay attention to what Sonner says and set the record straight because so much depends on what is considered reasonable by a person, and racial bias is embedded in one's perspective of reasonable. Not surprisingly, the media is not questioning what Sonner says.
UPDATE: After meeting with DOJ, Trayvon lawyer says doubt there will be federal hate crime prosecution:
An attorney for the family of slain Florida teenager Trayvon Martin on Saturday told a group of journalists that after meeting with federal authorities, he doubts the killing will be charged as a federal hate crime.
… Parks said the 911 tapes clearly prove Zimmerman's actions were racially motivated and meet the standards for prosecuting the shooting as a hate crime. Yet Parks came away from the meeting with federal authorities doubting that they will indict Zimmerman on the charge.
"They realize that charging this as a hate crime is going to be a challenge. You can tell from their statements. Their statements were slightly guarded," Parks said. He declined to elaborate on his reasons for saying so.