Suspicion Nation Read online

  In the weeks before the trial began, I crammed, reading everything I could about the case: the news stories about “Witness 8,” Trayvon’s mystery “girlfriend” who we expected to be the star witness (later revealed to be the much-debated Rachel Jeantel, and simply a friend); the highly anticipated testimony of Trayvon’s parents who would say it was their son screaming for his life on what would be known as the Lauer 911 call; the Sanford Police’s alleged mishandling of the evidence and the investigation. I analyzed the map of the Retreat at Twin Lakes; I read Zimmerman’s handwritten police statement; I listened to the audio of his interview with detectives; I watched his lengthy videotaped reenactment; I watched his television interview with Fox News anchor Sean Hannity; I put together a timeline.

  After this initial review, it seemed to me the chips were falling almost entirely on the defense side of the case—that is, for Zimmerman. The prosecution faced a tough burden: they had to prove beyond a reasonable doubt that Zimmerman had not acted in selfdefense. One might think that the defense, claiming that Zimmerman shot to save his own life, would have the obligation to prove that, but in forty-nine states, including Florida, it is the prosecution that must disprove selfdefense once the defense raises a plausible argument for it.

  Consider that challenge for a moment in a trivializing analogy that draws upon the common experience of parents: Your two kids skirmish in the backyard while you are inside, making dinner, listening to music. You didn’t see or hear it. They both come running in, complaining of the other. You suspect one caused the fight and the other was the victim. But now imagine that you must decide if you can honestly say beyond and to the exclusion of any reasonable doubt that one did not act in selfdefense while smacking the other. If you can’t say that, you can’t punish.

  What would most of us say? I don’t know, I didn’t see it. In a criminal trial, that translates into reasonable doubt. An acquittal.

  Zimmerman was the only surviving witness to the shooting, and he said he shot once to defend his own life, as Trayvon reached for Zimmerman’s gun and threatened to kill him after pounding his head dozens of times on the concrete sidewalk. His calm, seemingly honest demeanor in telling his story (captured on audio and video); the internal logic of his story; the legal requirement (which most pundits were missing) that the jury focus less on what I call Phase 1 (his obnoxious profiling and following Trayvon—all perfectly legal) and more on Phase 2 (the “fight” and shooting); his full and open cooperation with the police, answering all their questions, submitting to every test; and his bloody head injuries all seemed to support his credibility.

  Opening statements underscored my initial impression that this looked like a clear defense case—that is, that Zimmerman would walk. The media fixated on defense attorney Don West’s dumb knock-knock joke.12 His attempt at humor as he sat just a few feet away from the grieving parents of Trayvon Martin, who had fought for months to get law enforcement to prosecute their son’s killer and then waited anxiously for the trial to begin, was grossly insensitive. It was also an easy sound bite and talking point, so most of the media focused on it rather than the remaining hour and a half of his opening statement and the large amount of evidence he methodically laid out for the jury, which was far more significant in previewing his side of the case. In contrast, the prosecution gave a widely lauded, passionate, short opening statement, which mentioned only a few pieces of hard evidence. Remember the profanity that startled Maddy? Drama only goes so far. In this murder case, the prosecution appeared to lack proof. In openings, the prosecution won on style, the defense won on content.

  As the first week of witnesses played out, neighbors who heard or saw parts of the altercation and police responders testified. The defense undermined some of them by getting them to admit their memories were hazy, and they turned others in their favor, eliciting testimony that Zimmerman was well-liked, or that Trayvon was on top of Zimmerman in their encounter. Zimmerman seemed like a pleasant, reasonable guy—not a wild stalker and murderer—and very possibly the victim in the altercation. Even the cops liked him.

  We were still in the prosecution’s case—the beginning of the trial when the state puts on its witnesses—but the defense already seemed to be winning. Off camera, I spoke with my friends, top legal analysts from other networks, and we all saw it the same way. The case seemed grossly lopsided. The state was in trouble.

  Watching every minute of the trial, analyzing and synthesizing the testimony with my producers, other attorneys, journalists, and academics, it was not until the Sunday of the July 4 holiday weekend that I had a moment to breathe. Two weeks into the three-week trial, I used the opportunity to take another look at the important evidence that had already been admitted in the trial, as I would if I were trying the case myself for either side.

  That’s when I noticed some critical evidence about the placement of Zimmerman’s gun. That black KelTec 9mm PF-9 semiautomatic handgun was holstered not only inside his waistband (that is, inside his pants, concealed), but behind Zimmerman, on his backside.

  That could not be right. Could it?

  I learned this from Zimmerman himself, as I watched, and re-watched, and re-watched the videotaped reenactment of the incident with Zimmerman showing the police (I’m paraphrasing), I was standing here, and he was there, and then he punched me, and then we were down, and then I took out my gun, like this.

  Stop. Rewind. Play.

  Stop. Rewind. Play.

  No matter how many times I rewound and replayed that video, there was Zimmerman, allowed to reenact the event in a standing position (did the police feel it would be too messy to ask a man who’d just killed a teenager to actually get down on the grass and reenact his story?), clearly demonstrating to the police that his gun was holstered behind him.

  This had monumental implications for the case, as we shall see. Among other things, it completely contradicted and made virtually impossible Zimmerman’s story about the most critical moment in the incident: that Zimmerman was pinned down on his back, Trayvon was on top, straddling him, punching him, and suddenly Trayvon saw and reached for the gun, leaving Zimmerman no choice but to draw his weapon and shoot.

  On a very dark, rainy night, Trayvon saw through Zimmerman’s body to a gun holstered behind him, concealed inside his pants? Did Trayvon have X-ray vision?

  What shocked me most of all was that the prosecution had failed to raise this point at trial. Not in the opening statement. Not in the questioning of any of their witnesses. Not in cross-examination of defense witnesses.

  If the state’s attorneys missed this, what else had they overlooked?

  I reviewed pictures of the crime scene again. I listened to Zimmerman’s prior police calls about other suspicious people in the neighborhood. Astonishingly, the prosecution was missing or glossing over some of the most important evidence in the case—evidence that had been admitted at trial, but that for some reason they were not using.

  My assignment had been to follow the evidence. But I never expected the proof to go in one direction and the prosecution to go in another. In nearly two decades of covering murder trials, this was a first. I had never seen prosecutors shy away from arguing their best evidence.

  What, exactly, was going on here?

  The final week of the trial, I appeared daily on several shows explaining not only what was going on in that Florida courtroom, but what wasn’t: the many prosecution missteps, which were now leaping off the screen at me. Most of all, I talked about the gun-holstered-behind-Zimmerman issue, and others started talking about it too. It began to generate a lot of buzz in the on-air commentary about the case. “Someone needs to tell the prosecution about this,” was a common refrain.

  It appeared that may have happened. Four days later, in his closing argument, having missed many opportunities to argue this and other evidence in direct-and cross-examination of witnesses, prosecutor Bernie de la Rionda for the first time mentioned—mentioned, briefly—that Zimmerman’s gun was holstered be
hind him. He did not slow down and emphasize the video. He did not begin or end with the point (the moments at which jurors would be most likely to remember it), did not reenact it with the gun and holster, did not use the courtroom dummy to drive home this point. He mentioned it, then moved on. Most of his closing was a rambling, disorganized presentation comprised of questions, mights, and maybes, telling the jury blithely that they knew the evidence, they could put it together.

  The state was abrogating its responsibility to give the jurors a roadmap to conviction.

  I started telling everyone, on and off air, to prepare for an acquittal. The prosecution and the defense both had doubt, not certainty. Given that, the jury could reach only one possible outcome.

  With my MSNBC colleagues, I took the verdict on air live that Saturday night. When the words “not guilty” were pronounced, many were surprised. I was not.

  Some analysts blamed the jury, some the laws. I continued to say what I’d said so many times before the verdict: the prosecution failed to aggressively argue their best evidence in the case, virtually guaranteeing this outcome.

  I had a short break the next night, and I walked downtown to meet my daughter for dinner, trying to clear my head of this disturbing case. Breathe, I told myself. Enjoy this summer night air. Suddenly I heard a roar echoing down a Manhattan concrete canyon. “What do we want? JUSTICE!” “No justice, no peace!” Thousands of people marched down Second Avenue, holding pictures of Trayvon. Parents, kids, elderly folks, black, white, Hispanic, Asian.

  I stared, speechless, stirred. This case, and its outcome, had deeply wounded so many people.

  “Hey, Lisa Bloom!” a woman called out to me. I smiled weakly. “What happened?” she asked.

  The evidence was there, I wanted to tell her. I can’t explain why the prosecution missed it, or failed to bring it home. But I wanted to detail for her, for everyone with that question, everything that went wrong in this case. I couldn’t do it in that instant, before she and the marchers marched on.

  The next day, Monday, doing post-verdict wrap-ups, Tamron Hall, host of MSNBC’s NewsNation, asked me the hardest question of all. “Lisa, did the prosecution blow it?”

  I tried to hedge my answer on national television. I’d been critical of the prosecution, but up to a point. These were professionals, who presumably did their best. I did not want to so bluntly malign them. “Oh, there were a number of missteps …”

  “So, that sounds like a yes. You’re saying they blew it.”

  The New York Times asked me to write an opinion piece. I thought about it carefully, reviewing the evidence yet again. And in that op-ed,13 for the first time in print, I pointed directly to some of the major prosecution blunders, including their decision to duck entirely the obvious racial issues in the case—the very issues that had propelled popular support for Zimmerman to be brought to trial.

  I thought about Tamron’s question in the days after the trial as the nation erupted in demonstrations, as President Obama himself spoke movingly of his own experience being racially profiled, as I was unable to close the door on this case and move on to the next.

  The answer, to me, is unavoidable: Yes, the prosecution blew it. On a number of very significant points. Explaining how requires more than a brief TV appearance or a short op-ed. Though Zimmerman’s story of the shooting was belied by the physical evidence, though he expressed overt hostility toward Trayvon from the moment he laid eyes on the minor, though he admitted to no remorse afterward and gloated months later that the killing was “God’s plan,” the defense won the trial by painting Trayvon just as Zimmerman had, as “a real suspicious guy.” With his own voice silenced, and without any real courtroom advocates fighting for him, in a system coursing with racial biases, Trayvon never really stood a chance.

  But it’s not just about the state of Florida bungling the case. Because looking more deeply at the cultural context of this trial, the outcome was almost preordained. Our laws, beliefs, assumptions, and blind spots combined to create the conditions that led to the death of Trayvon and made Zimmerman’s acquittal by far the most likely outcome. After all, those forces had created similar injustices many times before, and after this trial, innocent young African Americans continued to be gunned down by frightened white shooters claiming selfdefense. Our cultural norms and implicit biases are the root causes of those tragedies, of the prosecution’s failure to properly argue the case, of the judge’s refusal to allow discussion of racial profiling in the courtroom, of the jury’s attitudes about Trayvon and Maddy. The solution lies not only in reforming America’s gun laws and eliminating Stand Your Ground laws, but also in owning up to and ultimately eradicating racial assumptions that continue to run deep in nearly all of us, poisoning every aspect of the criminal justice system.

  Hence, this book. Many people feel in their gut that this trial was a miscarriage of justice, and they’re often told to get over it because the jury heard all the evidence and reached a decision. I am here to say no, that in fact that gut feeling is correct, based on the evidence and the law as it should have been presented, as it would have been presented in most other murder trials in America.

  Technically prosecutors represent the people of the state of Florida, not the victim, Trayvon Martin. But in a very real sense, they serve as his advocates in the courtroom, giving a voice to the silenced teenager. And Trayvon Martin did not get a fair trial. Not even close.

  Can I say to a certainty that had the prosecution aggressively argued their best evidence, as I will outline it here, they would have won the case? I cannot. But we know that of the six jurors, four began jury deliberations wanting to convict (two would have convicted of the top charge of murder, two for the lesser charge of manslaughter) and two to acquit. We know that the pro-conviction jurors hungered for the facts and the law to be given to them in a way that could counter the strong voices for acquittal, and that, shamefully, that did not happen. Had the state of Florida done its job, this close case could well have gone the other way. The sympathies of most of the jurors, along with much of the nation, even the President, were on the side of the prosecution. I can now say with confidence, having analyzed every aspect of this trial, that this case was the prosecution’s to lose. And lose it they did, by missing some critical evidence almost entirely, failing to emphasize other evidence, and making sure-to-fail choices contrary to what prosecutors in murder cases in American courtrooms do every day, such as failing to adequately prepare their key witnesses and never giving the jury their version of what happened that dark, wet night in that small Southern town.

  Here’s what happened.

  PART ONE

  A WINNABLE CASE IS LOST

  ONE

  The People Demand an Arrest

  PROSECUTORS ARE THE most powerful players in our criminal justice system. Their day-to-day decisions can literally determine which Americans will lose their liberty, even their lives. In virtually every criminal case in America, prosecutors decide whether to file charges, and if they do, which charges to file—minor crimes (misdemeanors) or major ones (felonies)? Once a criminal defendant is charged, prosecutors choose whether to offer a plea bargain, and if so, what deal to offer (community service? A fine? One year behind bars? Twenty?) or whether to roll the dice and go to trial. Though they are public officials in our democracy, paid with our tax dollars, all of these decisions are made behind closed doors, without transparency or accountability, almost never subject to public review. If you and your friend are both involved in an incident, and you get charged and convicted and your friend does not, there’s nothing you can do about it.

  A great deal of the work prosecutors do is spent determining plea bargains. Limited resources drive them to make deals in most cases in order to avoid trial. Cases run the gamut from very strong (credible eyewitnesses, DNA evidence, a confession, a videotape) to very weak (defendant has a verifiable alibi, there’s a lack of forensic evidence, witnesses don’t exist or are not believable). Most fall somewh
ere in between, and prosecutors must sift through the evidence to decide if the case is strong enough for them to prove guilt to a jury beyond a reasonable doubt.

  As many as 95 percent of cases14 resolve by plea bargain,15 where defendants give up their right to go to trial and gamble on the outcome in exchange for a lesser sentence offered to them by prosecutors and blessed by a judge. Courts across America, already budget-strapped, would be instantly crippled if every defendant insisted on a trial. And thus very weak cases do not get charged at all, even if law enforcement has a hunch that Defendant X is good for the crime. A gut feeling isn’t enough. Cases rarely improve with the passage of time. If anything, they get worse. Witnesses get sick, die, disappear, forget, or pretend to forget what they saw or heard. So if the case isn’t strong at the beginning, prosecutors leave it alone. (Which is as it should be. Those against whom a case cannot be proven beyond a reasonable doubt should remain at liberty.)

  If significant weaknesses arise after an arrest—a witness recants, say, or a videotape shows the complainant to be lying—charges are dropped. (Again, this is as it should be.)

  In middle-ground cases—not weak, not strong, cases with some evidence but that could go either way at trial—prosecutors offer a defendant a plea bargain, and those plea offers are accepted, after some back and forth, by most defendants, innocent or guilty, because the sentence is normally far less than the high stakes of losing at trial. If you’re facing twenty years if convicted of the top charge at trial and the state offers you one year, unless you enjoy gambling with your freedom, you’re probably going to take it.