President Barack Obama’s administration is considering a federal hate crime charge against George Zimmerman in the 2012 shooting death of Trayvon Martin, but the case lacks the racial animus that was evident when a Green Forest teenager attacked five Hispanic men in 2010, said a law professor at the University of Arkansas at Fayetteville.
Laurent Sacharoff, who specializes in criminal law, was talking about Frankie Maybee, who was 19 years old when he used his three quarter-ton Ford 250 pickup to force a Buick LeSabre off U.S. 412 near Alpena, injuring five Hispanic men when the car overturned down a hill, hit a tree and exploded.
During a May 2011 trial in U.S. District Court in Harrison, two of Maybee’s friends testified that he called the Hispanic men “beaners” and “wetbacks” at the Red-X Express gas station in Alpena before pursing them on June 20, 2010. Maybee was found guilty and sentenced to 11 years in prison.
Maybee was the first person in the United States convicted by a jury under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, which removed a requirement that a victim had to be engaged in a federally protected activity, such as voting or going to school, for an attack to be a hate crime.
The Justice Department is “actively considering” whether to prosecute Zimmerman under that same act, said William Yeomans, former chief of staff in the Justice Department’s Civil Rights Division.
“The hurdle it faces is proving that his determination to use force against Trayvon Martin - i.e. the decision to shoot him - was motivated by race,” Yeomans said in an email. “Although Zimmerman’s profiling of Martin almost surely was motivated by race, the challenge will be to prove that he pulled the trigger because of race.”Zimmerman has said he shot Martin, 17, an unarmed black boy, in self-defense. A jury in Sanford, Fla., acquitted Zimmerman of murder and manslaughter charges on July 13.
Normally, for a case to be successfully prosecuted as a federal hate crime, there’s evidence of racially charged statements, confessions to friends of racial motivation, discussion of racial motivation among co-conspirators, a history of racially motivated conduct, or association with racial hate groups, Yeomans said.
“In the absence of such evidence, these prosecutions are hard to pursue,” he said.
Sacharoff said the Maybee case is a “perfect illustration” why the Zimmerman case isn’t a good one for federal intervention under the hate crimes act.
“The Maybee case involved clear proof that the reason Maybee did that was racial animus,” said Sacharoff.
Based on the testimony, “it was really a strong case” for the federal government, he said.
“In the Zimmerman case, we don’t have any of that,” said Sacharoff. “He didn’t use any racial epithets. In his call to the police, he didn’t volunteer that Trayvon Martin was black. When asked, he said, ‘I think he’s black.’ … That’s just so potentially neutral. … You have to prove that Zimmerman shot him because of his race.”
Sacharoff said he hopes the Zimmerman case leads to more open discussion of racial profiling in America, but the case itself isn’t a clear cut example of profiling.
“The Zimmerman case is very hard because it has come to symbolize a real problem, but the case itself may not really be an example of that problem,” he said. “I think we need to direct the agitation toward the systemic problem of racial profiling rather than focusing on this particular case, which is not necessarily the best example of racial profiling.”
Sacharoff said Florida prosecuted Zimmerman to the fullest extent, charging him with second-degree murder. Maybee was initially charged in Carroll County Circuit Court with battery, criminal mischief, leaving the scene of a personal injury accident and reckless driving. The federal government took over the Maybee case before it was adjudicated at the state level.
Byron Cole Rhodes, who was Maybee’s attorney while trying to appeal the case, said the jury, 8th U.S. Circuit Court of Appeals and Supreme Court, which refused to hear the case, seemed to agree that Maybee’s actions constituted “hate.”
But that apparently wasn’t so evident in the Zimmerman case, said Rhodes.
Rhodes said there’s no evidence that Maybee, who is white, attacked the Hispanic men because of race. Rhodes also contends that the hate crimes act is unconstitutional because Congress exceeded its authority when it enacted the law.
Maybee was convicted of five counts of violating U.S. Code Title 18, Section 249(a)(1) of the hate crimes act, which involves attacks because of perceived race, color, religion or national origin.
Maybee also was convicted of conspiring with Sean Popejoy of Green Forest to violate the hate crimes act.
The act is named for Matthew Shepard of Wyoming and James Byrd Jr. of Texas who were killed in separate attacks in 1998.
Yeomans said there have been several charges filed under the act since Maybee’s case. Most recently, on June 27, Jamie Larson, 49, pleaded guilty in Seattle to the racially motivated assault of a Sikh man who was a taxi driver.
“I have no reason to think that the Justice Department has been anything but vigorous in pursuing charges,” said Yeomans. “Fortunately, it often doesn’t need to do so because states, which generally have primary responsibility for prosecuting violent crimes, have stepped up to prosecute and have fully vindicated the federal interest.”
Northwest Arkansas, Pages 9 on 07/31/2013