Brian Levin, J.D.: After Intense National Discussion, a Heartbreaking Tragedy Results in a Prosecution

George Zimmerman, a 28-year-old self-appointed neighborhood watch captain from Sanford, FL has been arrested and charged today with second degree murder in connection with the February 26 shooting death of 17-year-old Trayvon Martin, an unarmed African American youth returning home from a convenience store. The announcement was made this evening at a Jacksonville press conference by Angela Corey, the special prosecutor assigned by Florida Governor Rick Scott on March 22.

Zimmerman's new defense attorney, former prosecutor Michael O'Mara has stated that his client will plead not guilty.

The case became the focus of intense national debate and outrage after local authorities did not place Mr. Zimmerman in custody in the immediate aftermath of the killing. Many contended that racial profiling rather than self defense was a key issue. The grace of Martin's parents in the national spotlight further transfixed the nation on their excruciating loss as pressure mounted on authorities to review the matter. On March 13 Sanford, FL police chief Bill Lee stated that there were not facts to dispute Zimmerman's version of the events painting Trayvon Martin as the attacker. By March 22, the chief temporarily left his position after a firestorm of criticism. Over one million signatures were placed on an online petition and the case received international attention, as well as a comment by President Obama, who noted in March, that "if I had a son, he'd look like Trayvon."

Second Degree Murder

If convicted of second degree murder, George Zimmerman could face life in prison without possibility of parole. In cases where over zealous self defense is alleged prosecutors sometimes charge a defendant with the lesser crime of manslaughter, when a defendant acted on a sincere but unreasonable belief that they were in danger. Former federal prosecutor Jeffrey Toobin told CNN shortly after the announcement Ms. Corey "threw the book" at Zimmerman, while former Florida Federal Prosecutor Kendall Coffey called the decision "very aggressive." Sybrina Fulton, Trayvon Martin's mother, holding back tears stated from Washington, D.C., "Thank God, we simply wanted an arrest."

Ms. Corey, who replaced, the local prosecutor on the case announced on April 8 that she would bypass having the matter go before a grand jury. While grand juries analyze evidence in secret before coming to a conclusion that there is enough evidence to go forward to a full criminal trial, prosecutors are not bound to use them. In Florida, if a murder case does not go before a grand jury, the prosecution is, however, precluded from seeking the death penalty.

No State or Federal Hate Crime Charge

While there has been much public speculation about whether the shooting involved a degree of racial prejudice, prosecutors did not bring charges under the state's hate crime law which increases penalties for racially motivated crimes. Hate crime charges in this instance would not increase the possible sentence and would inject additional factors that would make the case more complicated than it already is. Many high profile "hate crime" murder cases such as those involving the dragging death of James Byrd in Jasper, TX and Matthew Shepard in Wyoming were successfully prosecuted without an additional hate crime charge.

On March 19, the United States Department of Justice revealed that it was also launching an investigation into the case. As a technical matter both federal and state authorities may prosecute the same crime when it is a violation of both federal and state law without violating the constitutional prohibition on double jeopardy, although as a practical matter dual prosecutions are not common. Moreover, federal authorities are much more limited in proceeding with a federal criminal civil rights or hate crime charge, and tend to do so only in circumstances where there is a failure to successfully prosecute under state law.

For instance, the most broadly applicable federal hate crime law states:

Certification Requirement --
(1) In general -- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that -- (A) the State does not have jurisdiction; (B) the State has requested that the Federal Government assume jurisdiction; (C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or (D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Self Defense Will Be A Key Substantive Issue

A key component in this case appears to be whether George Zimmerman acted in self defense. Self defense is one of many affirmative defenses available under the criminal law, which will, if established, preclude a finding of guilt even if it is proved that the violent, otherwise punishable act took place. The model penal code, which is used as a national guide for state legislatures, mandates that deadly force is justified when used to protect oneself or a third party from death, serious bodily injury, kidnapping or compelled sexual intercourse. In 2005 Florida removed the requirement that called for a person in a public place to retreat when facing an aggressor under what has been called the "Stand Your Ground Law." Over 20 states have such a law, and while it has been invoked 130 times in Florida, it has only been successful in 19 of those cases. Ms. Corey, by charging the case in the manner she did, indicated, "If stand your ground becomes an issue, we will fight it." At issue will be the circumstances of the confrontation that left the unarmed teenager holding only iced tea and Skittles dead on the rain soaked ground.

Change of Venue Is a Potential Early Procedural Issue

The criminal law calls for trials to occur and juries be culled from the jurisdiction where a crime is alleged to have taken place. However, particularly in circumstances where there has been much coverage and public activity, defendants sometimes ask a judge for trials to be moved to a different place. Zimmerman's lawyer, Mr. O'Mara appeared to consider that possibility in an interview Wednesday evening stating "any high profile case has a lot of extra elements." Some notable changes of venue included the federal Oklahoma City Bombing case which was moved from Oklahoma City to Denver, and a recent police shooting case which was moved from the San Francisco Bay area to Los Angeles.

In a compelling press conference Ms. Corey told the press, "We pledged to look at our precious victims" and said the case would be not be tried "in the court of the public" or "the media." However, no matter where in the state it is tried there will be intense media scrutiny, in light of both the significant national interest in the matter and the liberal laws Florida has relating to the televising of criminal trials.

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