How Zimmerman's colorblind trial helps the Justice Dept.'s case

(This story originally appeared at Colorlines.)

Veteran civil rights attorneys and advocates are convinced that enough evidence of wrongdoing remains from the George Zimmerman case to allow the U.S. Department of Justice to file additional charges against Trayvon Martin's killer. Over a million people have signed an NAACP petition in agreement. The Justice Department has responded by reopening the investigation they started early last year, when the Sanford police still were figuring out for weeks if they would even arrest Zimmerman.

"I am concerned about this case and as we confirmed last spring, the Justice Department has an open investigation into it," U.S. Attorney General Eric Holder told the NAACP at their national convention in Orlando Tuesday. "While that inquiry is ongoing, I can promise that the Department of Justice will consider all available information before determining what action to take."

Civil rights division attorneys in the Justice Department are working with the FBI to evaluate the Zimmerman case above and beyond what was argued in state court. There are two main differences between this federal investigation and the state's: One, the federal government has broader resources and authority to examine everything that went wrong in the Zimmerman case; and, two, unlike the state's prosecution, they have no reason to leave race out of it.

Actually, the Justice Department's intervention is made possible by the state trial's racial disappearing act. The judge presiding over the Zimmerman trial barred racial profiling evidence from arguments, and the prosecution didn't bother bringing it up. The jury was instructed to rule based exclusively on the evidence before them, and that evidence made no reference to the idea that Zimmerman may have followed Martin because he was black.

"Race was clearly the centerpiece of the case," Vincent Southerland, senior counsel for NAACP Legal Defense Fund, told me in a phone interview. "It was the reason for the encounter [between Zimmerman and Martin] in the first place and it's the reason Zimmerman thought [Martin] was a criminal from the moment he laid eyes on him."

But local and state officials aren't built for these kinds of racial investigations; the Justice Department is.

"Because they have the resources they can pour more into these investigations and dig deeper into information that was previously overlooked," said Edward Hailes, managing director for the civil rights law organization Advancement Project, and a former general counsel for the U.S. Commission on Civil Rights. "Small police departments don't have the resources to do the investigations that a federal probe can."

So the silver lining of the state's colorblindness in the Zimmerman case is that it allows a better weaponized and capitalized institution -- the Justice Department -- to bring perhaps a stronger case against all who did Martin wrong in Sanford, Fla. Had race been allowed in the state trial, the federal government would have an even more difficult journey -- and maybe not a case at all.

"If the state had attempted to bring race claims while bringing homicide charges and there was still an acquittal, then the feds would have been blocked from bringing race claims under double jeopardy laws," said Hailes.

In other words, had the state already litigated race, there would be little way or reason for the Justice Department to re-litigate it, and the jury's ruling may have been the last word, save for a civil trial. Allowing the state to bring a non-racial case while preserving the federal government's prerogative to bring one "works due to their different strengths, resources and statutory authority," said Hailes.

The Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 provides much of that statutory authority. It prohibits anyone from injuring or attempting to injure another person because of their "actual or perceived race, color, religion, national origin."

While NAACP LDF president Sherrilyn Ifill told MSNBC that "there's certainly more than enough [information] to warrant a sharp look at whether the Hate Crimes Act could be invoked," a number of former DOJ attorneys have publicly stated that this will be a difficult thing to prove in the Zimmerman case.  

"We can all agree that Martin was targeted and trailed by Zimmerman because of his race," said Southerland, "but the question the Justice Department is investigating is if he was killed because of his race."

As with the namesakes of the federal hate crimes law -- Matthew Shepard, a gay college student killed for being gay, and James Byrd, an African American whose body was dragged by a truck and decapitated by confessed Klan mamebers -- there must be clear evidence of racial malice and bigotry during the criminal event. Zimmerman's following and approaching Martin were not against the law.

Civil rights advocates have said that the fact that Zimmerman had repeatedly called 911 on numerous African Americans to the point of harassment in the months leading up to murdering Martin is one glaring display of racial animus that may have motivated him to aggressively assault Martin.

Depending on how you define justice for Trayvon Martin's family, there are a number of other criminal statutes that DOJ can bring charges under as well, and not all of them would target Zimmerman.  

Anita Earls, executive director of the Southern Coalition for Southern Justice and a former deputy assistant attorney general in the Justice Department's civil rights division, said DOJ could pursue the Sanford police department, given their neglect to conduct an investigation into the murder after it happened. It took six weeks for Sanford police to file charges against Zimmerman. So Justice officials could look into whether Sanford police violated The Violent Crime Control and Law Enforcement Act of 1994, which prevents police department practices that violate citizens' federal rights. Other statutes, said Earls, forbid agencies that receive federal funds from discriminating on the basis of race.

"I think how things transpired with Zimmerman being able to walk away after the murder, the Justice Department would have to look at the facts about what the police did or did not do," said the Advancement Project's Hailes, who directed hearings examining the New York City Police Department after the 1999 killing of Amadou Diallo when he worked at the U.S. Commission on Civil Rights.

Florida has its own hate crimes law that allows for an enhanced penalty and reclassification of crime (converting misdemeanors to felonies, as one example) if racial bias is found in the underlying crime. While many called for Florida state attorneys to bring hate crime charges against Zimmerman, they chose not to -- and that might have been for the best.

While Florida has a stronger hate crimes statute than most states, it packs nowhere near the same punch as the federal statutes. The record also suggests Florida state attorneys are less adept at prosecuting hate crimes than federal attorneys.

Only 139 hate crimes were reported in Florida in 2011, according to the state attorney general's annual hate crimes report, down from 334 in 2004. Of the 2011 hate crimes, 81 were based on race, color, ethnicity or national origin. Ninety-four of the hate crimes that year were against people as opposed to property, which was down dramatically from 254 in 2004. Hate crime reports have been low and steadily declining in Florida since 2007.

But those are just hate crimes reported from police departments and sheriffs. Most of them never reach full prosecution. According to the state attorney general's office and Department of Law Enforcement, Florida does not keep track of how many hate crimes they actually prosecute, plea out, or convict. These stats indicate that prosecutors just aren't used to bringing those kinds of cases. The 2011 hate crimes report said no hate crimes had been reported in Seminole County (where Sanford is located) that year. 

Conversely, the Obama Justice Department's civil rights division has convicted 141 people on federal hate crimes between 2009 and 2012, 74 percent higher than George W. Bush's Justice Department. They've also brought charges against 254 law enforcement officials in 177 cases in the same time period.

State attorneys pursuing hate crimes are best helped by what's been thoroughly investigated. The state's hate crime report reads, "The thorough and immediate reporting of hate crimes is essential. Law enforcement officials will be in a better position to process hate-related crimes more effectively only when a realistic assessment of the problem is known."

In the Zimmerman case there was no immediate reporting of any crime and no investigation for weeks, leaving state attorneys little to work with.

"Unfortunately, if a hate crime is not initially reported as a hate crime by local law enforcement, sometimes it gets lost in the fray and then never prosecuted as such," said David L. Barkey, National Religious Freedom & Southeastern Civil Rights Counsel at the Anti-Defamation League in Florida. "These are difficult to prove because not only do you have to prove the underlying crime, but you also have to prove that the full intention was to use bias or bigotry to do crime."

But highlighting the role of race in Zimmerman's case and many more like it is a challenge not only for prosecutors, but for people in general, says LDF's Southerland. "There is this idea that racism is only this thing you can see, like a cross burning, or a Klan member," said Southerland. "But when you have more nuanced connections between race and criminality, like the kind that drives someone to drive up and track someone down and then shoot and kill them when they were doing nothing wrong -- it's not the kind of racism of our grandparents, but a more pernicious form of racism."