Don Franzen Talks with Lisa Bloom




Don Franzen interviews Lisa Bloom

Don Franzen Talks with Lisa Bloom

August 4th, 2014 reset - +

DON FRANZEN: Lisa Bloom, thank you for taking the time to talk to me about your new and very interesting book, Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It. When you first looked at the Trayvon Martin case, you thought George Zimmerman would be acquitted — that he would walk. Then something changed your mind. Can you talk about what changed your view?

LISA BLOOM: I approached this case as I would any case, with a presumption of innocence. I wanted to see if the evidence was there beyond a reasonable doubt. Our criminal justice system has many flaws but requiring proof beyond a reasonable doubt is not one of them. I feel very strongly about that.

I prepared to cover the trial in depth by reviewing everything I could get my hands on, which was a lot. Almost everything in the case was public due to Florida’s “Sunshine” laws that require openness in government. It seemed to me that George Zimmerman initially had a persuasive story of self-defense, a story he told immediately after the shooting. The core of the story was essentially consistent. There was some inconsistency around the edges, but that is to be expected. He was cooperative with the police. He was well liked in the community. He didn’t have much criminal history. So, I went into it thinking this looks as if it may be a defense case. The first week of trial, I became even more convinced because many of the prosecution witnesses turned into defense witnesses easily.

My view changed when I started to review the evidence myself, on the weekend and at night, as I would if I were the trial attorney trying the case myself. I looked in particular at George Zimmerman’s reenactment video. He went out with the police the day after the shooting. He walked the grounds and told police what happened. (He wasn’t asked to lie down on the ground and reenact what he says were the final moments before he shot Trayvon Martin. He wasn’t asked to, which I think was a mistake on the part of the police.)

I had seen the video before, but when I watched it again, for the second and third time, something jumped out at me. George Zimmerman indicated that the gun was holstered behind him. He indicates it three times on the video. The fact that the gun was holstered behind him would make an essential part of his self-defense story impossible. According to Zimmerman, during the struggle, while Martin was on top of him, Martin saw the gun Zimmerman was carrying, Martin reached for the gun, and Zimmerman then shot Martin once in the chest at close range in self-defense. If the gun was holstered behind Zimmerman and Trayvon was on top of him, Trayvon could not have seen through the bulk of Zimmerman’s body to a gun holstered behind him. When you add the fact that both the gun and the holster were matte black, it was a very dark night, it was raining, there was grass on the ground, and Zimmerman was wearing a shirt and a jacket that would cover the gun and the holster, the story is just not plausible.

I really couldn’t believe my own eyes. I watched that video several times. I asked other people to look at the video: lawyers, and producers. They saw the same thing I saw. It then occurred to me, if the prosecution had missed that, then perhaps they were missing other things, and I looked at all of the evidence anew. I noticed for example that George Zimmerman’s story about his head being banged on concrete was also not possible because where the two of them ended up was a substantial distance from any concrete. Therefore, I started looking at the case skeptically, and at that point, the mistakes just started jumping out at me.

Your book reminded me of Outrage by Vincent Bugliosi, where he point by point demonstrated that the prosecution in the O. J. Simpson trial was botched. It seems that you reached the same conclusion here — that the prosecution simply didn’t do what a competent prosecutor would have done. How else, in your opinion, did the district attorney’s office fail?

First off, I am very honored by the comparison to Vincent Bugliosi because he is a very outspoken, intelligent, and keen observer of the law. I read his book Outrage when it came out in ’96, and when I thought about writing this book I actually downloaded it and read it again. It inspired me to think, “Yes, yes, I can do this.”

Other than missing what I call the “smoking gun” evidence, which is where the gun was holstered, the next most significant problem was the issue of race in the courtroom. Prosecutors in this case were just terrified to talk about race at all. So, they didn’t, until closing argument, when they had a couple of garbled references to race. There was a reference to the color of Rachel Jeantel’s personality, for example. I don’t know what color her personality is, and the reference doesn’t make any sense. (Rachel was a friend of Trayvon Martin’s who testified for the prosecution.)

Race was a central factor in this case — that’s why millions of people demonstrated in city streets across America twice. First, to get Zimmerman arrested, and then after the acquittal. This is why two million people signed the Change.org petition. This was obviously a case of racial profiling, but inside the courtroom, the prosecutors were afraid to talk about race, even when they had evidence to support George Zimmerman’s racial profiling of the teenager. The defense very comfortably talked about race. They repeatedly suggested that Trayvon Martin was similar to burglars in the neighborhood. However, the only similarity between Trayvon and the neighborhood burglars was skin color. Olivia Bertalan, one of the last witnesses in the case, a young white woman who lived near Zimmerman, testified about a home invasion. Two black men robbed her. The defense called Trayvon “a match” to the burglars. The prosecution should have been on their feet objecting to the defense theory. They should have been defending Trayvon Martin in the courtroom. That is part of their job. Trayvon was not a burglar, he was not a criminal, and it was offensive that George Zimmerman looked out the window of his car and immediately concluded that he was. The prosecution should have argued that.

The other significant point that was not argued was that all the calls George Zimmerman made regarding suspicious people in the neighborhood in the prior six months, which were in evidence, were about African-American males, 100 percent. As a civil rights lawyer, I know that we don’t often get evidence like that. Therefore, if you have it, argue it! Clearly, a decision was made. This is not going to be about race. This was confusing for the jury. We know now that the jurors believed the case was not about race. Juror B29, known to the public as Maddy, put together, on her own, that all the prior calls that Zimmerman made were about black men. She noticed that, but then immediately put it out of her mind because she was told they were not supposed to think about race.

You write that the trial was a result of a large national movement condemning the initial failure to bring charges against Zimmerman. Do you think the reluctance of the prosecution to even file charges may have tainted their enthusiasm for the case or even their willingness to pursue the case?

I think the prosecution’s reluctance to file charges is a reflection of the fact that they did not believe in the case. The political groundswell forced them to file charges. However, that same groundswell couldn’t get inside their offices and show them what their theory of the case should have been or at a minimum persuaded them that they needed a theory of the case, which they never had. That same groundswell couldn’t point them to expert witnesses to counter Dr. Vincent Di Maio, the defense expert. They could have used Dr. Shiping Bao, the medical examiner in charge of handling Trayvon’s autopsy, as a rebuttal witness. As I reveal in the book, he had a theory he wanted to talk about called pneumothorax, which is about Trayvon Martin’s lungs being punctured, but the prosecution wouldn’t let Dr. Bao present that theory.

The activists who got this case into the courtroom couldn’t do the lawyers’ jobs for them. That was up to the lawyers. Many people felt, “okay, we got the arrest, we’ve won,” forgetting that an arrest is just the first step. The case still needs to be proven in the courtroom. When I was covering the case, I saw the prosecutors make mistake after mistake, and yet people who wanted to see George Zimmerman convicted believed so much in the prosecution. I think it is very sad ultimately that the prosecution did not seem to truly believe in their case and did such a perfunctory job.

For you, race was the elephant in the courtroom. This leads into part two of your book, which is about suspicion. In other words, the biases and prejudices that are so rampant among us. You discuss in your book how this kind of reasoning has a toxic effect on people’s ability to judge situations like the Zimmerman-Martin confrontation. Can you speak to that please?

I think this was the essence of the case. The prosecution failed to call the defense on the concept that Trayvon Martin was inherently suspicious because he was African American, because he and the burglars shared the same skin color. I think that maybe the prosecution didn’t understand that the reasoning was a fallacy because they shared the opinion. Many if not most people share that way of thinking. I have had conversations with progressive people, people you wouldn’t believe think that way, and they say, “If there is a black man walking down the street, isn’t it okay for me to cross the street because it’s likely he is a criminal?” The answer is, “No, no it is not okay.” I wanted to do a deep dive into this issue because I think it is pernicious, and it is just wrong as a matter of logic and statistics. I didn’t want to approach the issue from the view of ideologies. I wanted to point out that the view is wrong. That is why I put in other syllogisms, for example: most housekeepers are female, Susan is a female; therefore, she must be a housekeeper. The logic is absurd, we understand immediately it’s absurd, and yet when it comes to race it does not seem absurd at all, why is that?

I also wanted to talk about this fear of the African-American male because he is a “criminal.” I think this is at the root of so much racism that continues today. We see it in schools where black males are three times more likely to be suspended as white males. I think this is a very similar issue because African-American males’ behavior is seen as more hostile and more aggressive, more violent. I wanted to talk about the studies. For example, where a black guy shoves a white guy, three-quarters of the subjects saw that as an act of aggression, but in the reverse, a white guy shoving a black guy, only 17 percent saw that as aggressive. Most saw it as merely fooling around. I think that study and many others I discuss in the book account for differential treatment in schools, certainly for the differential treatment in the criminal justice system.

It deeply disturbs me that here we are in 2014 and black and white Americans experience the criminal justice system so differently. The criminal justice system is the one institution in our culture where everyone should be treated equally, an institution that’s sworn to treat everyone equally, that has scales of justice somewhere in most courthouses or the statute of lady liberty blindfolded, and yet it is probably the worst institution for racial bias in our country.

How can we prevent prejudices and biases from influencing our views? It seems it takes more than just having an African-American president to erase prejudice from people’s minds. How do we ensure that justice really will have a blindfold?

As the 12 steppers say, the first step is admitting that we have a problem, and we do have a problem when it comes to race, especially in the criminal justice system.

Many people believe that we are in a post-racial society, and that we have all the laws we need. That if people just work hard they’ll do fine. If you ask a group of people, “Who here is a racist,” nobody will raise their hand. Nobody wants to admit to being racist. Most of us are very clear on the fact that we are not racist, but we still have these tremendously disparate outcomes that favor whites.

For example, blind studies show when an African American and a Caucasian have identical resumes, the Caucasian gets the job over the African American, even when the Caucasian has a felony conviction and the African American doesn’t. For example, we know that schools that are predominantly African American are underfunded, whereas schools that are predominantly Caucasian are better funded. African Americans are more likely to be suspended or expelled. I go through a lot of this in the book to remind people of how far we need to go. Doctors spend twice as much time with Caucasian patients than with African-American patients. And, doctors are more likely to refer Caucasian patients to a specialist than African-American patients — with the same symptoms.

You have to wonder, if nobody is a racist, how is it that we still have these very different outcomes for blacks and whites? I think the answer is implicit racial bias. That’s the concept. Although we don’t like to admit to being racist, most of us still have hidden racial biases. There is a test you can take free online, developed by Harvard University researchers, which I took and discuss in my book. The test will tell you what biases you’re walking around with. The genius of it is you cannot cheat or trick the test. The test demonstrates that 80 percent of whites are moderately or severely biased against blacks and 50 percent of blacks are biased against their own group, which is disturbing. The test opened my eyes, and I think everyone in a position to make decisions, whether in the criminal justice system or outside, should have to take the test.

Some wonderful educational programs are happening, which I discuss in the book too. When individuals are made aware of their disparate behavior, they change their behavior. The change we have seen in the last 50 years is in attitude. I think we want to be egalitarian, we don’t want to be racist, and we don’t want to have these different outcomes. Fifty years ago people would say, “I don’t want any blacks working with me.” For the most part people don’t say that anymore. So, we do have a change in attitude, but our actions need to catch up with our attitude.

So, part of what I am trying to do in the book is raise consciousness around these issues in an inclusive way, which is why I took the test myself, and talk about my own results, which I was not happy with. I wanted to show that this was not about pointing the finger. I think it is very easy to demonize someone like George Zimmerman. It is much more difficult for all of us to look at our own actions, our own lives, and our own communities, and in a more inclusive way work on solving it. In the book, I talk about a judge who discusses implicit bias when he delivers jury instructions. He tells the jury that race has no place in his courtroom. He instructs that if they think it is possible that racial assumptions and biases are coloring their thinking — he asks jurors to switch the races of the parties in their minds and ask whether it affects how they are looking at the case. I think this is great — a good start. We have a long way to go from here, and talking about it is important.

One thing I learned while writing this book and speaking about this book is how uncomfortable most Americans are when talking about race. People do not want to talk about race. There are too many minefields. It’s awkward. You are accused of race-baiting, or playing the race card, a very common phrase, as if anything about this is a game. None of that matters. We must be brave and talk about it.

You argue in your book for jury instructions that target this issue and perhaps raise the jury’s awareness about the issue. As you said, the first step is admitting we have a problem. What do you think we can do in terms of jury instructions that might help?

I think the concept of implicit racial bias should be explained to jurors in cases where it might be an issue, and it might be an issue in many cases. The issue of who was the aggressor, who was the victim, who felt threatened, whether fear was reasonable — these are at the heart of many cases in the criminal justice system, in cases of assault or murder.

People are making assumptions about African Americans. For example, there are studies that show people see black faces as more hostile than white faces when they have the same expression. At issue in criminal cases is often who was hostile, who was aggressive, justifying an act of violence. So, I think jurors need to be instructed about implicit racial bias and in the manner that I mentioned the judge is doing.

I also think everyone in the criminal justice system needs to be trained on the issue. Many people in the criminal justice system are good people. They are in it for the right reasons; they want to do justice. Many of them are African Americans, and yet we still have these outcomes. For example, blacks are four times more likely to be convicted for marijuana possession than whites, even though the groups use it at about the same rates. This is just unacceptable.

The only way we can overcome, I think, is by talking about it, by having constant training. Attorneys have to take continuing education classes. I think everyone in the criminal justice system should have to do the same.

What do you think are the lasting lessons we can take from the whole process and the conclusion of the Zimmerman trial?

Well, unfortunately this case has already repeated itself in the Jordan Davis case, and we may be seeing the same factors at play in the case of Renisha McBride, and Jonathan Ferrell.

One of the reasons I wrote this book was because as awful as the Trayvon Martin case was, it’s not just this case. This is a recurring problem in America, and when I’m on the news talking about these cases, everyone is shocked and horrified. These are big cable television words, “We’re shocked, so shocked.” Well, I think we should stop being “shocked,” and we should look at the root issues. I cannot do that in a 10-minute television segment, but I can do it in a 300-page book. That’s what drove me to write this book. To understand the root issues we need to eradicate.

We still have a long way to go on race, and I wanted to raise consciousness. The three root issues are the lax gun laws, the “Stand Your Ground” laws encouraging violence, and implicit racial bias. These created the perfect storm that resulted in not only the death of Trayvon Martin but in the acquittal of George Zimmerman, the death of Jordan Davis, and the hung jury of Michael Dunn.

When you start to see a pattern and you know what the root causes are, you can start going after the root causes. My hope is that people will be willing to go a little deeper with me, see what’s really going on here, and then start to make change.

I think my favorite review is on the back of the book from Piers Morgan, who said, “Read this book, get angry, and demand change.” That about sums it up.

¤

Don Franzen serves as law editor for Los Angeles Review of Books.

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