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For Trayvon Martin, Justice Hinges on “Prosecutorial Discretion”

Posted: Apr 06, 2012

The call to action in rallies across the country following Trayvon Martin’s death is a wake-up call for our country to confront racial profiling in our communities. Racial profiling may have killed Trayvon Martin, but it is the so-called prosecutorial discretion that allowed, and may still allow, his killer to escape justice.

It must be pointed out that his killer, George Zimmerman, has until now not been charged with murder because of Florida’s Stand Your Ground self-defense law that allows people who feel threatened to use deadly force in self-defense and says they have no duty to retreat. The law has been at the center of the Feb. 26 shooting of Martin.

As the tragedy of his death calls the country to examine the racial inequities of the criminal justice system, it must go beyond our common, and justified, focus on the racist zealots or inept police officers. It has to go where the real power lies – with the prosecutors – the ones who control the levers of the system in counties and states across the country. In Martin’s case, it was prosecutor Norm Wolfinger who allowed his killer to walk free. It is Wolfinger’s face that should be on signs, posted next to George Zimmerman in news articles, whose name should be woven into chants for justice.

And just as Zimmerman – a racist with a gun – represents a real threat to America, so too does Wolfinger – a prosecutor who’s given the completely subjective discretion to deliver or deny justice without any explanation or measure of accountability to the public.

The term “prosecutorial discretion” has the ring of legal jargon that would only be used by lawyers and judges, but it is a power that extends out of the courthouse and into the streets. As such, it needs to be worked into the vernacular of any civil rights movement that is hoping to bring justice to the Trayvon Martins of America, and bring accountability to the criminal justice system.

Prosecutorial discretion describes the authority given to a prosecutor to review the initial investigation of a crime and decide if charges should be filed or not, and if so, which charges. In cases like Martin’s, where a youth of color is the victim of a horrible crime, a community calling for justice is at the mercy of this prosecutorial power to decide whether or not a case should enter the justice system.

And this is where communities of color end up in a bizarre dynamic with the criminal justice system – relying on the fairness and impartiality of the prosecutors, despite every statistical reason not to. The truth of the matter is that prosecutorial discretion is mostly used to target and incarcerate Americans who look like Martin, rather than attempting to secure justice for his memory.

After the firestorm that erupted once Martin’s murder became national news, Wolfinger recused himself and Florida Governor Rick Scott appointed another prosecutor, Angela Corey, to decide if Zimmerman should be charged. Through their attorney, the Martin family wrote a letter to the US Justice Department to review the investigation for possible wrongdoing by Wolfinger's office. Wolfinger responded that he was “outraged” by the letter.

Corey has a grand jury scheduled for Zimmerman, but there are no guarantees that the wheels of justice will take it from here. That there is even a grand jury, versus a direct filing of a charge from the prosecutor, is telling.

A common hypothetical that is heard at Martin rallies and by pundits in the media is, “What if the roles of Zimmerman and Martin were reversed?” Civil rights leader Van Jones posed this question on John Stewart's Daily Show last weekend. He concluded to a roaring audience that a black man who shot an unarmed white man would be detained by police. This is true, but the other reality is that the hypothetical black man would be facing criminal charges from a direct filing by the prosecutor. No grand jury needed.

That another prosecutor has been given the case does not ease the concerns of many who bore witness to such injustices similar to the Martin case. In an opinion piece written for New America Media, political columnist Earl Ofari Hutchinson worried that a prosecutor such as Corey, “whose gear is stuck in overdrive when it comes to the hardest line prosecution of young black males can switch gears” and be totally unbiased.

Across America, prosecutors are taught to use four standards to determine if they will be charging someone. One: Was a crime committed? Two: Do we know who did it? Three: Are we confident we can prove it beyond a reasonable doubt? Four: Is it the right thing to do? (The fourth standard is to give some discretion around charging where the direction of the law does not match the context of the situation: such as offering some leniency for a person who stole bread to feed his family.)

Who knows if Wolfinger went through the protocol of those questions when allowing Zimmerman to walk? But what Wolfinger likely did count on is that the scrutiny of the public would not likely befall his office. Prosecutors are rarely looked at when the justice system fails. And if they are exposed for misconduct, rarely are they held to account.

In California, the Northern California Innocence Project showed startling numbers around prosecutorial misconduct. In their 2010 report they write, “Judges in California are casting a blind eye to prosecutors who place their thumbs on the scale of justice.” In a study that spanned over a decade, they examined “707 cases in which courts had found prosecutorial misconduct in the 11 year period. Of all of those cases, only six prosecutors were disciplined.”

If our country is to learn from the death of Trayvon Martin, we must be vigilant to stop the racism that allowed a Zimmerman to shoot an unarmed innocent teenager. But to do so, we must address the systemic racism and unexamined power of prosecutorial discretion that allowed Zimmerman to avoid the justice he must be held to answer to.

Raj Jayadev is the director of Silicon Valley De-Bug and directs the Albert Cobarrubias Justice Project -- an organizing model for families and communities to navigate and have impact on their local criminal justice systems. www.siliconvalleydebug.com // www.acjusticeproject.com

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