ACLU Leadership Chooses Politics Over Principle by Calling for Second Zimmerman Prosecution

Law Professor Jonathan Turley has an excellent discussion of the division with the ACLU over whether Zimmerman should be prosecuted for a civil rights violation in the wake of his acquittal on state murder and manslaughter charges:

Anthony Romero

... To the surprise of many, including myself, [ACLU Executive Director Anthony] Romero sent a letter to Attorney General Eric Holder that seemed to clearly invite a civil rights or hate crime prosecution of George Zimmerman. The ACLU however has long taken the view that such prosecutions violate the double jeopardy clause of the Constitution. When the federal government does not like the outcome of a high-profile case, it can use the very same facts to bring another prosecution under a different crime. After sending the letter, however, the ACLU staff appear to have objected and sent out a conflicting position that such successive prosecutions are violative of constitutional principles.

... In his letter to Holder, Romero wrote:

“Last night’s verdict casts serious doubt on whether the legal system truly provides equal protection of the laws to everyone regardless of race or ethnicity. This case reminds us that it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.”
That would seem to clearly invite not just an investigation but possible prosecution under civil rights or hate crime laws. Indeed, the ACLU said such action was “imperative.”

Various civil libertarians cried foul and reminded the ACLU of its policy that “There should be no exception to double jeopardy principles simply because the same offense may be prosecuted by two different sovereigns.”

It was then that the powerful Washington DC office stepped in with a letter of its own to Holder stating that

“We are writing to clearly state the ACLU’s position on whether or not the Department of Justice (DOJ) should consider bringing federal civil rights or hate crimes charges as a result of the state court acquittal in the George Zimmerman case. The ACLU believes the Double Jeopardy Clause of the Constitution protects someone from being prosecuted in another court for charges arising from the same transaction. A jury found Zimmerman not guilty, and that should be the end of the criminal case.”

...

I believe that the original letter of Romero was a mistake and contradicts the long commitment of the ACLU to the protection of citizens from successive prosecutions following acquittal. Former ACLU board member Michael Meyers Joined many in criticizing Romero:

“The ACLU is out of line; a civil liberties organization is concerned with the accused getting a fair trial, which includes the right of effective counsel, due process and protection against double jeopardy. No government, much less an angry community, is entitled to a verdict to their liking . . . The ACLU is not the NAACP; the ACLU is the guardian of individual liberty, not a victims’ rights or racial grievance group.”

As a conservative, I too admire some of the work the ACLU does, in particular its work in the free speech and Fourth Amendment area.  My problem with the ACLU is that it picks and chooses which constitutional rights it will support.  Additionally, the ACLU often pushes a political agenda by twisting the actual words of various constitution provisions (and ignoring the history regarding their enactment) to include those favored policies.

In this case, many of my liberal attorney friends want to see Zimmerman prosecuted by the federal government.  But when you ask them though if a they are okay with the federal government as a matter of routine prosecuting those defendants who are acquitted in state court, they duck the question.  If the enormous power of the federal government is used to do second prosecutions of defendants acquitted in state court, those who will be the most harmed by such an approach are the poor and minorities. 

The Founders did not provide any exceptions to the Double Jeopardy clause of the Fifth Amendment.  However, even if the constitutional protection and the history behind its enactment can be fairly read (twisted?) to allow second prosecutions under the guise of "dual sovereignty," which I don't think it can, then the question becomes whether allowing a second prosecution following an acquittal represents good policy.  To that question, all of us who are involved in the legal system and care about its fairness to those charged with a crime, should answer "no."   Zimmerman won. The game is over. It is time to move on.