Zimmerman Prosecutors Duck the Race Issue By LISA BLOOM July 15, - TopicsExpress



          

Zimmerman Prosecutors Duck the Race Issue By LISA BLOOM July 15, 2013 Driving to Target on his Sunday grocery run on Feb. 26, 2012, George Zimmerman looked out the window of his S.U.V. and saw a stranger who he instantly concluded was “a real suspicious guy.” “Punks,” he said, adding an expletive. “They always get away.” There were unsolved burglaries in his community, and as he said in a call he made to the police, “this guy looks like he’s up to no good.” Mr. Zimmerman’s recorded profanity-laden police call became a focal point at his murder trial, but not because of its obvious significance: that Mr. Zimmerman jumped to insulting conclusions about Trayvon Martin primarily on account of Mr. Martin’s race. What began as a local crime story gained national attention after African-American journalists and civil rights leaders immediately grasped the racial implications of the confrontation between Mr. Zimmerman and Mr. Martin, and ended with Mr. Martin’s death. Mr. Zimmerman’s acquittal on Saturday sparked nationwide civil demonstrations against racial profiling and hate crimes. But in the courtroom, race was a topic carefully controlled by the judge and handled awkwardly by the prosecution team. In an odd ruling, Judge Debra Nelson decided that the word “profiling” —but not the phrase “racial profiling” — could be used in opening statements. But what other kind of profiling could possibly have been involved here? Could jurors — and the public — seriously imagine that Mr. Zimmerman considered Mr. Martin a criminal solely because he was walking slowly in the rain as he chatted on the phone? Lawyers were free to use the profanity involved in the case over and over again, but initially the “r” word was off limits. Shortly thereafter, it seemed the prosecution was building its case, at least partly, around Mr. Zimmerman’s obvious racial profiling, which was the run-up for the altercation and shooting that followed. The state fought hard outside the jury’s presence to enter into evidence police calls Mr. Zimmerman had made in the months before the shooting; 100 percent of the calls about suspicious persons involved African-Americans. Though the judge ultimately granted the state’s request and admitted tapes of these calls into evidence, the prosecution did not use the evidence and remained strangely silent on Mr. Zimmerman’s pattern of racial profiling during its two closing arguments. To those who followed the trial closely, as I did, it seemed a decision was made midstream to abandon the strategy that included calling attention to Mr. Zimmerman’s pattern. Prosecutors apparently trusted jurors to dispassionately evaluate photos of a dead teenager’s remains and of the bullet hole through his heart as well as photos of blood dripping from George Zimmerman’s head. But the state was too squeamish to put the touchy issue of race squarely before the six-woman jury. The defense was far more comfortable with the disturbing racial aspects of the case, and as one of its final witnesses called a young white mother who had been robbed in the neighborhood months before the shooting. The witness, Olivia Bertalan, testified that she had cowered in her closet, baby in her arms, as two African-American males burglarized her home. What did that have to do with Trayvon Martin? The prosecution never asked. Was Mr. Martin inherently suspicious because he was of the same race as the burglars —the clear import of this story? To attribute the wrongs of two African-American men to all African-Americans is the definition of racism. But the prosecutor never said so in court or called the jury’s attention to this fact. In his closing argument, Mark O’Mara, one of Mr. Zimmerman’s lawyers, drove home the idea that Mr. Zimmerman’s profane police call was reasonable, arguing that Mr. Zimmerman’s descriptions of Mr. Martin and the burglars “did match the description, unfortunately, and that’s just maybe happenstance.” But other than race and youth, no other description of the burglars was admitted into evidence. Race and youth were the sole basis of what defense lawyers deemed “a match.” The state did not question any of this, much less point out that racial profiling was not happenstance but a way to filter out all other, nonracial, identifying factors. How tall were the Bertalan burglars? Did they have any noticeable tattoos, facial features, haircuts, manner of speaking, gait, clothing? Had they been seen walking slowly in the rain, talking on the phone? The burglars’ and Mr. Martin’s mutual blackness obscured all else. By the defense logic, all young African-American males in the neighborhood would warrant a call to the police for walking while black — this in a racially diverse, middle-class community that is 20 percent African-American. The most discordant note in the entire three-week trial came in the prosecution’s rebuttal closing argument, its last chance to drive its points home with the jury. John Guy, a prosecutor in the case, insisted forcefully that the case was not about race; relying on a strategy reminiscent of John Grisham’s book “A Time to Kill,” Mr. Guy asked the jury to consider a role reversal: would Martin be convicted if he had followed and then shot George Zimmerman? After this obvious, if implicit, reference to race, Mr. Guy finished up by reminding the jury that the case was not about race. Huh? Mr. Martin’s family, too, wavered on the subject. Mr. Guy’s remarks mirrored those made by Benjamin Crump, the Martin family lawyer, who said in September that the case “shouldn’t be about race,” though if the roles of the two young men were reversed, an arrest would have occurred quickly. (Mr. Crump had concluded with “that’s why race is involved in this case.”) And after Mr. Martin’s friend Rachel Jeantel testified to the only racial epithet uttered in the courtroom —Mr. Martin’s characterization of Mr. Zimmerman as a “creepy-ass cracker” — another family attorney stood alongside Mr. Martin’s parents at a news conference and said, “To this family, race is not a part of this process. Anybody who tries to inject race into it is wrong.” Yet Mr. Martin’s parents had traveled to Washington to attend a Congressional forum on racial profiling and hate crimes, which resulted in the Congressional Black Caucus’s describing the killing as one of “racial bias.” And in March 2012 Tracy Martin had said, “For the Sanford Police Department to feel as though they were going to sweep another young black minority death under the rug, it’s an atrocity.” Many disturbing factors were present in the Zimmerman trial: his legal right to drive to the grocery store with a loaded concealed weapon, bullet chambered; Florida’s overly permissive self-defense laws; subpar crime-scene evidence-collection techniques; the oddly arrogant medical examiner who had little interest in answering the questions posed to him by counsel; the prosecutors’ apparent failure to adequately prepare their key witness, Ms. Jeantel; prosecutors’ failure to emphasize how Mr. Zimmerman’s gun, holstered behind him and inside his waistband, could not have been seen and reached for by Mr. Martin in the scenario Mr. Zimmerman described, where he was pinned on his back with Mr. Martin assaulting him; prosecutors’ failure to drive home the fact that Mr. Zimmerman’s claim that Mr. Martin pounded his head on concrete in his final moments did not fit the crime scene, since Mr. Martin’s body was found on the grass a substantial distance from any concrete. The prosecution’s most glaring trial failure was its absence of a theory about what happened on the night of the shooting that would counter the defense’s frightening story about Mr. Martin’s pinning Mr. Zimmerman to the ground, straddling him and banging his head against the concrete and then reaching for Mr. Zimmerman’s gun. The defense seized upon the prosecution’s unusual practice throughout the trial, and especially in closing, of simply raising questions of what might have happened, rather than proving its own case or presenting its own theory about the facts. When both sides seemed to advocate for reasonable doubt, an acquittal was the only possible outcome. It cannot reasonably be disputed that the incident that left Mr. Martin dead began with ugly racial profiling. But the prosecution seemed afraid to say so at any point in the trial. Instead, the state appeared to want to tread lightly on the jurors’ presumed delicate sensibilities on the dicey subject of race and, leaving the race question aside, simply pointed out that Mr. Zimmerman must have made “assumptions.” The state’s refusal to take an aggressive, clear position on Mr. Zimmerman’s racial profiling was, like many of its strategic decisions, a clear fumble. One of the final photos the defense showed to the jury was a 7-Eleven surveillance camera image of Trayvon Martin an hour before his death, the kind of blurry photo one sees on the local news when the police are searching for a holdup suspect. This was the person George Zimmerman encountered, counsel insisted. By the following night, Mr. Zimmerman was acquitted. Afterward, smiling broadly after her team had just lost the case, Angela B. Corey, the special prosecutor, said: “This case has never been about race.” Lisa Bloom is a lawyer, author and NBC News legal analyst.
Posted on: Tue, 16 Jul 2013 12:31:29 +0000

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