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  THREE

  Too Squeamish to Talk About Race

  A GROUNDSWELL OF AFRICAN-AMERICAN grassroots activism, rising up through the churches, civil rights organizations, social media, as well as persistent and powerful commentary by leading black journalists, pushed the state to arrest and try Zimmerman, as we’ve seen. Yet from the beginning, Zimmerman’s defenders pushed back, denying that the case was “about” race, insisting it was a straightforward case of selfdefense. Throughout the trial, commentators posed the question “Do you think Zimmerman racially profiled Trayvon?” In online polls, cable news reports, on talk radio, Facebook, and Twitter, opinions swung back and forth. Zimmerman has African-American friends, family members! his supporters said. He’s a racist! a mysterious family member anonymously phoned in to the police shortly after the shooting. He did racially profile! He didn’t! The debate raged, unresolved.

  The divide did not always neatly line up along racial lines. Prominent black commentators Juan Williams and Larry Elder flatly refused to see racial profiling in the case. Trayvon’s black stepmother,43 speaking emotionally about the young man she helped raise (she said Trayvon lived 85-90 percent of the time with her, her two daughters, and his father, Tracy Martin, for fourteen of his seventeen years), said she did not think Zimmerman followed Trayvon because he was black. An anonymous African-American neighbor of the Zimmermans was quoted by Reuters as wanting to “talk about the elephant in the room. I’m black, OK?” the woman said. “There were black boys robbing houses in this neighborhood,” she said. “That’s why George was suspicious of Trayvon Martin.”44

  Others presented more muddled views on the subject. Members of Trayvon’s immediate family and their legal representatives struggled with the question to such an extent that one wonders whether the prosecutors instructed them to tone down the racial aspect of the case in their public statements. Benjamin Crump, the Martin family lawyer, said in September 2012 that the case “shouldn’t be about race,” though if the roles of the two young men were reversed, he said, an arrest would have occurred quickly. (Crump had concluded with “that’s why race is involved in this case.”)45

  And after Rachel Jeantel testified to the only racial epithets uttered in the courtroom, including Trayvon’s characterization of Zimmerman as a “creepy-ass cracka,” another family attorney stood alongside Trayvon’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 Trayvon’s parents had traveled to Washington to attend a Congressional forum46 on racial profiling and hate crimes on March 27, 2012, which resulted in the Congressional Black Caucus’s describing the killing as one of “racial bias.” And earlier that month 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.” Central Florida, the United States, and much of the world had organized and focused on the case because the racial implications seemed clear, especially to African Americans who saw this as the latest in a sad long line of unarmed black men killed based on unfounded suspicions, with police slow to arrest and prosecutors unenthusiastic about prosecuting. The NAACP, the Urban League, and the National Action Network spoke out loudly and often about the shooting, the perceived cover-up, the insensitivity—and the case was not about race?

  Ultimately, all the chatter about whether observers thought the case involved racial profiling or not was entirely irrelevant. Because the topic was not a matter of personal belief or disbelief. One may as well ask, “What is your opinion: was it 55 degrees at 3 PM today, or not?” That is verifiable information, and so is the fact—the fact—that Zimmerman followed Trayvon in substantial part on account of his race.

  How can we be so sure? Because of this much overlooked point: the defense conceded the point at trial, unapologetically.

  When asked to explain his killing of Trayvon, Zimmerman always began the same way he had begun his police call when he first spotted Trayvon walking through the neighborhood: “Hey, we’ve had some breakins in my neighborhood and there’s a real suspicious guy …” After the shooting, he was taken into police custody. He was read his Miranda rights, he waived his right to remain silent and to have an attorney present, and he answered the detective’s open-ended “tell me what happened that night” in the same vein: “This neighborhood has had a lot of crimes. My wife saw our neighbors get broken into …”

  There’s been a lot of crime around here—burglaries—we’ve had some breakins. The shooting was framed by that context, each time Zimmerman told it, just as Trayvon might have begun, “I was walking back from 7-Eleven when a creepy guy started following me” or a neighbor would begin, “I heard screaming outside my window.” Zimmerman provided a handwritten statement47 to the police that night as well, starting the story at the same point in time, providing more detail: “In August of 2011 my neighbor’s house was broken into while she was home with her infant son. The intruders attempted to attack her and her child; however, SPD [the Sanford Police Department] reported to the scene and the robbers fled.”

  For him, the story did not begin where one might expect, with his seeing Trayvon walking down the street on that late-February night. It began months earlier, with intruders who were strangers to Trayvon, and, the jury would quickly learn, who shared his skin color. It was in that context that Zimmerman saw Trayvon, as he explained each time. And his defense attorneys hewed to that script throughout the trial, reminding jurors whenever possible that crime, and especially burglaries by African Americans, had been a problem for various residents of the Retreat at Twin Lakes.

  That’s why Zimmerman had organized a neighborhood-watch program and appointed himself its leader, which some community members appreciated, though the president of the homeowners’ association testified that he didn’t think it was particularly necessary. (Perhaps that’s because Zimmerman himself caused the worst outcome—a fatal shooting—far more serious than any of the more minor crimes he was ostensibly out to prevent).

  Lawyers like to begin and end with their most powerful witnesses, because the communication theory of “primacy and recency” teaches that an audience is most likely to remember one’s first and last points. All that stuff in the middle tends to mush together. And so Zimmerman’s highly skilled defense attorneys saved until almost the very end the young white mother Zimmerman had mentioned at the beginning of his written statement, Olivia Bertalan. Bertalan’s neighborhood house had been robbed six months before the Trayvon Martin shooting. Testifying about her frightening experience, she said she’d cowered in her child’s upstairs bedroom, baby in her arms, as one or two African-American males entered and burglarized her home. (She did not, however, testify to Zimmerman’s even scarier rendition of the story, that “the intruders attempted to attack her and her child.” She said instead that they never entered the room she was in, as the police arrived and they ran off. In this and in his own story of his altercation with Trayvon Martin, we know that Zimmerman tends to exaggerate threats.)

  While the defense comfortably handled the race issue straightforwardly (if illogically, as we’ll see), the prosecution and the judge seemed to want to stay a million miles away from it. In an incomprehensible ruling just before opening statements were set to begin, 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 seriously imagine that Zimmerman considered Trayvon 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, as if its very mention would blow the roof right off the courthouse. More incomprehensibly still, the prosecution didn’t push back on this ruling, for example by asking that it be lifted once evidence of racial profiling came in, apparently bec
ause they had already made a decision that they were not going there.

  Either the prosecutors themselves did not believe that racial profiling was a part of the case even though the defense conceded that it was, or they did not trust the jury to handle the hot topic. Prosecutors 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.

  Bertalan’s entire testimony could have been neutralized with one polite but searing line of cross-examination questions:

  PROSECUTOR: Ms. Bertalan, I’m sorry about your experience. But did Trayvon Martin have anything to do with it?

  BERTALAN: Uh … no, of course not.

  PROSECUTOR: Was he one of the burglars?

  BERTALAN: I don’t think so, no.

  PROSECUTOR: You don’t think so? Are you suggesting to this jury, sitting here today, that you think there’s any possibility Trayvon Martin had something to do with your house being broken into?

  BERTALAN: No! No, I am not suggesting that at all.

  PROSECUTOR: Other than skin color, did Trayvon Martin have anything in common with the guys who robbed you?

  BERTALAN: No.

  The prosecution never asked these questions, nor objected to evidence about the Bertalan burglary in open court. To Zimmerman, and the defense team, Trayvon was inherently suspicious because he was of the same race as the burglars. It was the prosecution’s responsibility to undermine this outrageous association of Trayvon with two burglars he’d never met, if for no other reason than as a matter of trial strategy, and they entirely failed to do it. To attribute the wrongs of two African-American men to all African Americans is the very definition of racism. But the prosecutor never said so in court or called the jury’s attention to this fact, thereby missing one of the core issues in the case.

  In his closing argument, defense attorney O’Mara drove home the idea that Zimmerman’s profane police call was reasonable, arguing that Trayvon “did match the description [of the Bertalan burglars], 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—something that just rains down upon some of us, unfortunately!—but a choice to focus almost entirely on race to the exclusion of all other, nonracial, identifying factors.

  The prosecution could have continued the cross-examination of Olivia Bertalan:

  PROSECUTOR: Ms. Bertalan, how tall were the burglars who came to your house that day?

  BERTALAN: I didn’t get a good look at them, so I can’t say.

  PROSECUTOR: What did they look like, other than being black?

  BERTALAN: I’m not sure I understand what you mean. They were black males.

  PROSECUTOR: Did they have any noticeable tattoos?

  BERTALAN: I didn’t see any. But they could have had tattoos, who knows?

  PROSECUTOR: How about facial features? Big nose, squinty eyes? Anything you can describe for us?

  BERTALAN: I don’t know.

  PROSECUTOR: What kind of haircuts did they have?

  BERTALAN: Short hair, I think.

  PROSECUTOR: Did you hear them talking? Did they have low voices, high voices, or something else?

  BERTALAN: I don’t remember.

  PROSECUTOR: Any unusual gait? For example, the night they burglarized you, had they been seen walking slowly in the rain?

  BERTALAN: I don’t think so. I didn’t see that.

  PROSECUTOR: Were they talking on the phone before they came to your house?

  BERTALAN: Not that I know of.

  PROSECUTOR: Were they carrying candy and fruit punch?

  BERTALAN: I don’t think so.

  PROSECUTOR: As far as you know, did they have anything whatsoever in common with Trayvon Martin besides skin color?

  BERTALAN (uncomfortable): Not that I know of. But I never said they looked like Trayvon Martin!

  A witness spontaneously uttering words like that is rare, and if she did, the prosecutor should pause, let that all sink in, and slowly make his way back to his seat. Otherwise, he might have finished by pointing out that all African Americans do not look alike, not even by skin color:

  PROSECUTOR: Were the burglars dark-, medium-, or light-skinned African Americans?

  BERTALAN: Um, medium-skinned, I guess.

  The prosecution didn’t go near this fertile ground for cross-examination, accepting the defense premise that shared skin color justified suspicion. The burglars’ and Trayvon’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 simply for walking while black—this in a racially diverse, middle-class community that is 20 percent African American.

  BOILED DOWN TO its essence, here was the defense’s simple syllogism, which, unfortunately, went entirely unchallenged in the courtroom:

  1.Two black burglars had robbed a house in the neighborhood.

  2.Trayvon was black.

  3.Therefore, Zimmerman was suspicious of Trayvon, and that suspicion was reasonable.

  Though this deductive reasoning seems sensible to many people, even intelligent lawyers, commentators, and thinkers, it is entirely specious. The ancient Greeks, who developed the syllogism, are turning in their graves. Because it is wrong. False. If you took Logic 101 and wrote this on your final exam, you would get an F.

  Let’s examine this illogic, taking the hot-button issue of race out of it. Consider this similar logical fallacy:

  1.Ninety-five percent of housekeepers are female.

  2.Susan is female.

  3.Therefore, when Susan comes to my home, it’s fair for me to hand her a mop.

  I’m not sexist, it’s just happenstance that’s she’s female!

  Or this one:

  1.Nine out of ten child molesters are male.

  2.Eduardo is male.

  3.Therefore, Child Protective Services should take his kids away.

  Unfortunately, he’s a match!

  Last one:

  1.Nearly every alligator wrestler in America lives in Florida.

  2.Rick Scott is the governor of Florida.

  3.Therefore, he likely keeps his crocodilians locked up in the governor’s mansion.

  I’m just trying to protect the community!

  The fallacy is the flipping of the syllogism, which should be deducing from the larger group to the smaller, not the other way around. Proper reasoning goes this way:

  1.All nuns are Catholic. (Big, all-inclusive statement.)

  2.In-Hei is a nun. (She fits within the subset of the big, all-inclusive statement.)

  3.Therefore, In-Hei is Catholic. (Therefore, she fits into the bigger group.)

  The Zimmerman logic incorrectly extrapolates backward from a limited subset (burglars) to a much larger group of people (black males), as in the other fallacious examples. The population of housekeepers, child molesters, or alligator wrestlers is extremely small. To generalize from a tiny sample to a much greater one, such as the population of women, men, or Floridians, sweeps in a lot of people who have nothing to do with the smaller group, which is the flaw in the deductive reasoning. Most women are not housekeepers, most men are not child abusers, and most Floridians are not alligator wrestlers (thankfully for the poor reptiles).

  Neither are most (nor even many) black males burglars.

  In fact, the defense logic, seeing Trayvon as suspicious because of the Bertalan burglars, as a matter of pure deductive reasoning, is far worse than my examples. Each false syllogism above involved a smaller group (housekeepers) that was more than 90 percent comprised of the larger group (women). There
is considerable debate over how much crime is attributable to African Americans, as we shall see in Part II, but no one claims it’s anywhere near 90 percent, or even over 50 percent. So the defense syllogism could not even begin with “most crimes are committed by blacks,” but at best, “a few crimes in the neighborhood were committed by blacks” (as we’ll see in a moment), weakening the connection between the two groups. If you fear all black males because of two black burglars, then by the same logic, you would believe that all men are child molesters.