There’s an old joke that takes the form of a dialogue between a New England farmer and his neighbor:
Farmer: Had to shoot my dog.
Neighbor: Was he mad?
Farmer: He wasn’t too pleased
This joke comes to mind when I think about the concept of the “hate crime.” Let’s say a man intentionally shoots his wife. The following dialogue might ensue:
Regular neighbor: Old Joe shot his wife.
Lawyer neighbor: Was it a hate crime?
Regular neighbor: It wasn’t an act of love.
But not all killings are hate crimes in the colloquial sense. George Zimmerman didn’t shoot Trayvon Martin because he hated him; he did it because Martin was pounding him.
Under federal law, though, the touchstone for hate crimes isn’t hate; it’s racial, or some similar form, of animosity.
Even so, the evidence would not support a charge that Zimmerman committed a hate crime against Martin. It could hardly be more obvious that Zimmerman shot Martin because Martin was beating him up; not because Martin was black.
Even the Justice Department recognizes this. According to the Washington Post, “current and former Justice Department officials said Monday that bringing civil rights charges against George Zimmerman. . .would be extremely difficult and may not be possible.”
The problem, they say, is that “it’s not clear that he killed Martin because of his race.” Actually, as I said, it’s pretty clear that he didn’t.
But even if this weren’t clear, the burden would be on the government to prove beyond a reasonable doubt that the shooting was racially motivated. No rational jury could convict under that standard.
As for the more plausible claim that Zimmerman followed Martin because of his race, it’s legally insufficient to make out a hate crime case. As Rachel Harmon, a law professor at the University of Virginia and a former prosecutor in the Justice Department’s civil rights division, told the Washington Post:
It’s not enough to show that Zimmerman followed Trayvon Martin because of his race. They would have to show that he attacked Martin for that reason. . . . Proving that motive is why it’s hard to bring hate crime charges in general and why it is likely to be hard to bring them in this case.
Moreover, although the notion that Zimmerman followed Martin in part because of his race isn’t implausible, it doesn’t appear to be true. Interviews with Zimmerman’s ex-fiancee, neighbors, friends, co-workers, and lead police investigator Christopher Serino provided no basis for believing that Zimmerman is a racist. Serino concluded that Zimmerman followed Martin because of his attire, not his race.
But again, this doesn’t matter. The issue in a hate-crime case would be whether Zimmerman killed Martin on account of his race. In light of the evidence that supports Zimmerman’s claim of self-defense, a hate-crime case would be frivolous. And, if the Post’s report is correct, the Justice Department knows it.
Does this mean that Eric Holder will back off? Not necessarily, but my sense is that, slightly more likely than not, eventually he will.