“[Attorney General Eric] Holder told POLITICO that between now and his departure… he will call for a lower standard of proof for civil rights crimes.” The Department has now confirmed that it will bring no federal civil rights charges against George Zimmerman in the Florida shooting of Trayvon Martin, and it is anticipated on many sides that it will eventually decline to bring such charges in the shooting of Michael Brown by Ferguson, Mo. police [Mike Allen, Politico]
United Nations “human rights expert” suggests that compliance with international human rights norms may require casting about for some way to re-prosecute George Zimmerman since the first prosecution didn’t come out as some hoped. [Volokh] As Hans Bader points out, Article 14, Section 7 of the International Covenant on Civil and Political Rights forbids, as opposed to requiring, the exposure of defendants to double jeopardy.
Sen. Dick Durbin (D-Ill.), a close ally of labor union and trial lawyer interests on Capitol Hill, is sending out hundreds of letters to groups linked to ALEC, the free-market group of state legislators that has occasionally involved itself in other issue areas like criminal and self-defense law, promising to shame those supporters at a public hearing for the notional link to the Trayvon Martin affair. (ALEC backed the passage of some state “stand-your-ground” laws, which as we have grown weary of repeating, did not form the basis for George Zimmerman’s successful claim of self-defense; a new Quinnipiac poll finds that American voters back “Stand Your Ground” laws by a 53-40 margin, so that campaign against these laws has evidently flopped badly)
Mostly these letters were designed to intimidate businesses that might support ALEC, but Durbin also sent one of the browbeating letters to the Cato Institute, which might have been a mistake. As related by colleague Ilya Shapiro:
Earlier this week, we received a letter from Durbin asking two questions (you’ll have to pardon the awkward grammar; this went out to hundreds of groups, so Durbin’s staff apparently had no time for proofing):
Has Cato Institute served as a member of ALEC or provided any funding to ALEC in 2013?
Does Cato Institute support the “stand your ground” legislation that was adopted as a national model and promoted by ALEC?
And, by the way, Durbin wants recipients of his polite inquiry to know, “I plan to convene a hearing of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights to examine ‘stand your ground’ laws, and I intend to include the responses to my letters in the hearing record. Therefore, please know that your response will be publicly available.”
Well, I’m proud to say that Cato isn’t going along with this charade. Our president John Allison has responded to Durbin with a letter that I’ll quote in its entirety:
Dear Senator Durbin:
Your letter of August 6, 2013 is an obvious effort to intimidate those organizations and individuals who may have been involved in any way with the American Legislative Exchange Council (ALEC).
While Cato is not intimidated because we are a think tank—whose express mission is to speak publicly to influence the climate of ideas—from my experience as a private-sector CEO, I know that business leaders will now hesitate to exercise their constitutional rights for fear of regulatory retribution.
Your letter thus represents a blatant violation of our First Amendment rights to freedom of speech and to petition the government for a redress of grievances. It is a continuation of the trend of the current administration and congressional leaders, such as yourself, to menace those who do not share your political beliefs—as evidenced by the multiple IRS abuses that have recently been exposed.
Your actions are a subtle but powerful form of government coercion.
We would be glad to provide a Cato scholar to testify at your hearing to discuss the unconstitutional abuse of power that your letter symbolizes.
The Wall Street Journal is on the issue today, and so is the Chicago Tribune, reproaching hometown Sen. Durbin for his propensity to “use the power of his high federal office as a cudgel against his enemies.” Incidentally, while Cato takes no official position so far as I know on “Stand Your Ground” laws, I have been active in discussing them: in the Orlando Sentinel, New York Times, Daily Caller, Bloomberg TV, Cato podcast and other places, and in many places here, including discussions of the campaign against ALEC here, here, here, and here (Paul Krugman at his most careless). Do you think I could ask the Senator to shame me by name at the hearing?
P.S. One of the rare occasions when my opinions diverge from Ira Stoll’s.
Cathy Young arraigns the press for “an ideology-based, media-driven false narrative that has distorted a tragedy into a racist outrage.” Bob Somerby at Daily Howler has been documenting chapter and verse for some time, including this reminder of how the New York Times early on, taking dictation from Martin family lawyers, popularized a super-inflammatory “two-shot, cold blood” narrative that influenced public perceptions. Much of this is already familiar to readers of Overlawyered coverage including posts discussing media handling of the case here, here, here, here, and here.
My own theory — admittedly shaped by my professional interests — is that if you dig beneath the failure of a credulous press here you find a failure in legal ethics. While the press did publish one untruth after another about what happened that night and about the principals, a large share of those untruths can ultimately be traced to the offices of Benjamin Crump & Co., with some later help from Angela Corey’s office.
What about ideological outlets like ThinkProgress, which disgracefully promoted one error after another in egging on the press frenzy? To quote what I wrote at the time Zimmerman was charged:
The thing is, “Stand Your Ground” hadn’t really been a pet issue one way or the other for many of those who now harp on it. I think the better answer is: because many people yearn for ways to blame their ideological opponents when something awful happens. It’s much more satisfying to do that than to wind up wasting one’s blame on some individual or local police department for actions or decisions that might not even turn out to be motivated by ideology.
Consider, for example, the efforts to set up the conservative American Legislative Exchange Council as somehow the ultimate villain in the Martin shooting. Left-wing groups, assisted by labor union and trial lawyer interests, had been pursuing a campaign against ALEC for months before the Martin case, in hopes of making the group radioactive among generally liberal donors like the Gates Family Foundation and the Coca-Cola Co. Nothing had worked — until the synthetic Stand Your Ground furor finally afforded an opening.
…the New Republic corrects its Zimmerman piece in a way that preserves its misleadingness. [Michelle Meyer, Faculty Lounge]
P.S. Before proceeding to scrub the error entirely after it had begun to attract widespread attention. [Meyer update] Latest, and presumably last, update: TNR has now added a correction that does address the three points and regrets the error. [Adler]
Although Eric Holder, Barack Obama and a long list of liberal publications and organizations have lately pressed the cause, states recognizing “stand your ground” principles of self-defense show little inclination to overturn them [Annie Yu, Washington Times last week, quoting me; AP] “The substantial majority view among the states, by a 31-19 margin, is no duty to retreat.” [Eugene Volokh] Barack Obama’s voting record on related issues in the Illinois state senate may surprise some readers [Jacob Sullum, who has been giving the issue thorough coverage] “Blacks benefit from Florida ‘Stand Your Ground’ law at disproportionate rate” [Patrick Howley, Daily Caller] Some more thoughts from Mark Bennett at Defending People. Bonus: what it’s like to be mounted in a fistfight (alleging that bare hands and feet have been responsible for 4,028 deaths since 2007, more than rifles and shotguns combined).
As I mentioned in my CNN piece on Friday, various voices are calling for the federal prosecution of George Zimmerman following his acquittal on state-court charges [commentary about that: Jonathan Adler, Jacob Sullum, Steve Chapman, Eugene Volokh; see also the update to my Friday post regarding the possibility of “hate crime” charges] In a letter to Attorney General Eric Holder, the American Civil Liberties Union (ACLU) takes the view that a federal prosecution would be improper double jeopardy, implicitly rebuking its own executive director, Anthony Romero, who had suggested otherwise in early comments to the press following the verdict [TalkLeft (“the organization came to its senses”), Politico, text of letter from Laura Murphy, director of ACLU Washington Office, PDF; see also David Bernstein]
As I noted in my CNN piece, the exception for “dual sovereignty” prosecutions arose in a 1959 Supreme Court case called Bartkus v. Illinois, decided 5-4, in which the dissenters were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan. Here are a few things that Hugo Black had to say in his dissent, joined by Douglas and Warren: “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” one that did not disappear “even in the Dark Ages.” And “retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.” In short, “double prosecutions for the same offense” are “contrary to the spirit of our free country.” (& welcome Instapundit, InsiderOnline readers)
- “This is just stunning. DOJ is soliciting tips from the public in order to build a case against a single citizen.” [@radleybalko, William Jacobson, @andrewmgrossman] Apparently, Florida Gov. Rick Scott has the power to remove prosecutor Angela Corey from office, and her post-verdict description of Zimmerman as “murderer” is the sort of unprofessionalism that might advance that day [Ian Tuttle with much more about her career, earlier] Ken doesn’t hold back from telling us what he thinks of Nancy Grace [Popehat, earlier]
- Washington Post covers USDA mandate of disaster plan for magicians’ rabbits [Lowering the Bar, David Fahrenthold/WaPo, earlier]
- “Joel Tenenbaum’s $675,000 Music Downloading Fine Upheld” [AP]
- “Hey look, an actual Third Amendment case” may be premature regarding this Nevada dispute, especially if we’re not sure cops = soldiery [Ilya Somin]
- “Why The State Attorneys General’s Assault On Internet Immunity Is A Terrible Idea” [Eric Goldman, Forbes]
- Connecticut: “Supreme Court Upholds $2.9 Million Award For Injured Bicyclist” [Courant]
- The ABA’s annual Blawg 100 nominations are now open, in case, you know, (nudge)
Seven columns/posts I recommend, without necessarily agreeing in full with their contents:
* Eric Zorn, “20 Things I Think About the George Zimmerman Case,” Chicago Tribune (pre-verdict)
* William Saletan, Slate (case “was about misjudgment and overreaction — exactly what we’re doing now to the verdict.”)
* John Steele, Legal Ethics Forum, on prosecution’s post-trial interviews.
* Jonathan Adler, New York Times “Room for Debate” (don’t use federal “hate crimes” statute to give prosecutors second bite at apple).
* Jeralyn Merritt, “The Legacy of the George Zimmerman Trial” (and Merritt’s writings on the case generally), TalkLeft.
* Dan Markel, PrawfsBlawg (“even though over-charging is routine,” it’s “an ethical problem hiding in plain sight.”)
State’s attorney Angela Corey fires the IT director who testified critically regarding the state’s non-sharing of evidence with George Zimmerman’s counsel. [Florida Times-Union] And Jacob Sullum’s latest: “Prosecutor Says George Zimmerman Is Guilty No Matter What Happened in His Fight With Trayvon Martin” [Reason]