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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: April 4, 2012

WAS THE SHOOTING OF TRAYVON MARTIN A HATE CRIME? (Part Three)

Today, the Boston Criminal Lawyer Blog finishes its three-part series on the mind-numbing issues surrounding the killing of unarmed Trayvon Martin (“Shot”) by George Zimmerman (the “Shooter”) in Florida.

Yesterday we concentrated on what Florida law enforcement must consider in determining whether there is probable cause to arrest the Shooter for any crime whatsoever. The fact that it was as close a call as it apparently is might have surprised some people.

Today we tackle what may be the most emotional issue of the whole thing. Certainly, it is the most explosive issue.

Was the killing of Shot a hate crime?

Not surprisingly, various news outlets report that opinions differ on the Shot killing by racial lines. Maybe. It is also clear that various political figures, including those who simply like to incite despite the fact that they have very-little-to-no credibility left have been quite vocal about this being a racial killing.

One would imagine that, as they decide how their criminal investigation will end, they need to decide whether probable cause exists that, if the Shooter committed any crime, was it racially motivated.

What do you think?

Attorney Sam’s Take On Hate Crimes

As you have seen, so-called “Hate Crimes” prosecutions seem to be on the rise throughout the country. Just recently, in New Jersey, a young man was found guilty by a jury of what the prosecution argued was a hate crime which led to the death of another young man.

This despite the fact that the prosecutor argued that the state was not holding the defendant in that case responsible for the death.

The argument was that the defendant did this hate crime because of his feelings about gay people because his roommate was, indeed, gay. The evidence, the prosecution argued, was various statements the defendant had made about whether or not he was comfortable having a gay roommate.

Let me make my bias very clear. I am very sensitive to the rhetoric of hate. Being Jewish, I have witnessed anti-Semitism. Being white, straight and alive since 1959, I have also been privy to homophobia and racism. I have little sympathy for either.

In other words, I prefer not to keep company with bigots and homophobes.

However, this being the United States, I also know that this country was founded on freedom of belief. Therefore, I believe that, albeit a sign of the weak-minded, people have the right to be racists. However, they are, for the most part, not allowed to act on said prejudice when it will violate another person’s rights.

Now, we need not debate the New Jersey case because the jury has spoken and the matter is decided. For now.

But what about the killing of Shot?

I would imagine that my sarcasm and tone on this subject would lead you to believe that I feel that charges of some sort should have been brought against the Shooter by now. If that is the message you have taken from the last couple of blogs…you were right.

I believe there has been abundant probable cause. While, in most cases, I would caution law enforcement to be careful and painstaking whenever possible in deciding to bring charges…I think we are past this point in this case. I also have to admit that, cynic that I am, I truly question whether the motivation on the part of law enforcement is really their never-ending goal of simply “doing Justice”.

Experience on both sides of the criminal justice aisle has led me to that conclusion.

However, is there enough evidence to believe that probable cause exists to bring charges for a hate crime?

Let me re-word the question. Is there any evidence to believe that probable cause exists to bring charges for a hate crime?

“Well, Shot was black….”

Yes he was.

“…And the Shooter was not black…”

No, he wasn’t.

"…And the Shooter thought he did not belong in the area and had some fear that he was a criminal”.

So he has said. But did he kill Shot because he does not like black people?

I do not think there is really any evidence of that. There may be some racial profiling involved, and the Shooter may or may not be racist. However, I am unaware of any indication that he killed Shot because Shot was black.

“Is there a difference between racial profiling and hate crimes?”

I would say there is. In fact, police and investigators engage in a certain amount of racial profiling all the time. Are they committing hate crimes when they do so?

Let’s say that Shot had been white and was dressed and acting the same way. Would the same thing happen? Probably…although there is a chance that the Shooter would have been less concerned because of his own bias.

Whether or not the Shooter acted reasonably in this case may have to do with his fear. Certainly, if he acted out of no or an unreasonable fear, then he should be charged. But, I would argue, that does not make it a hate crime.

Part of the problem here is that we have vague and sometimes inconsistent laws which keep the doors open to different interpretations. I think that this is to be expected because we often pass these laws in reaction to a media frenzy and in a rush so that we can make the general populace feel safe enough not to ask too many inconvenient questions.

You have heard me use our impotent Anti-Bullying statute as an example of this.

Maybe one day our society will not be so susceptible to these political tricks and really take control of the criminal justice system. But, that will take time and a great deal of thought and, I know, Life is hard enough sometimes.

Maybe after reading enough of these blogs folks will understand what is really going on here and get concerned enough to take action.

In the meantime, if we are going to pass some new laws in various states to smooth over the questions this ugly incident has brought up, could I make a request? Can we pass something which holds the legal gun-toting among us to a slightly higher standard when using the firearm than others who might merely give someone a broken nose if they overreact…instead of a broken life?

I mean, I love the old TV show “The Rifleman”…but that does not mean I want to really live in the old “wild west”.

Just a thought.

Tomorrow
, we return to the most recent Massachusetts crack down on the most serious of all crimes!