'Hardball with Chris Matthews' for Friday, July 13th, 2013

HARDBALL
July 12, 2013
Guests: Paul Henderson, Tad Nelson, Karen Desoto

MICHAEL SMERCONISH, GUEST HOST: The jury gets the case.

Let`s play HARDBALL.

Good evening. I`m Michael Smerconish, in for Chris Matthews.

The fate of George Zimmerman is in the jury`s hands now. This morning,
George Zimmerman`s attorney, Mark O`Mara, made his closing argument,
emphasizing that Zimmerman acted in self-defense and pointing out the state
had not proved otherwise beyond a reasonable doubt.

Then state attorney John Guy offered a rebuttal, asking jurors to bring
their common sense to bear in deciding this case and pointing out what he
says was in George Zimmerman`s heart the night of the shooting.

Moments ago, the jury had a question for Judge Debra Nelson, requesting an
inventory list of the evidence by number and description.

MSNBC`s Craig Melvin has been following this trial closely and joins me
from outside the Florida courthouse. Craig, one interpretation of that
request is they`re settling in for a length deliberation.

CRAIG MELVIN, NBC CORRESPONDENT: That is -- that is an astute observation
there, Michael Smerconish. Two-and-a-half hours, that`s how long the jury
of six women has been deliberating so far. Did not take them long to ask
that first question. We`re told that right now, the clerk is working on
making that list, that list of evidence. After the clerk is done making
the list, counsel will review the list, and then it will be made available
to the jurors.

Again, not terribly uncommon at all in a case like this for jurors to ask
questions. In fact, we anticipate that more questions will be asked. I
spent some time just a short time ago talking to Benjamin Crump, the
attorney that has been working very closely with the Martin family. He
said this is something that they were expecting, and again, this is
something that they continue to expect.

We should also note that the attorneys right now are standing by at the
courthouse. None of them have left. The family has not left. Don`t know
whether that`s a sign that they are anticipating a verdict tonight, or
whether it`s going to be something that comes this weekend.

We can tell you, though, that Judge Nelson has left it up to this jury to
decide how long they will deliberate every night, whether they will
continue to deliberate into the night.

We can also tell you that this verdict is going to be read fairly quickly.
In fact, we told at one point that the media would be given 60 minutes`
notice. At some point today, it was decided that would not necessarily be
the case. So a verdict could come down, and four or five minutes later,
we`ll be on the air bringing it to you.

We should also tell you here that three of the jurors, the alternate
jurors, E-54, E-13, E-28 -- they were dismissed just a few hours ago, and
they were sent home. They were the alternate jurors. They did not know at
the beginning of the proceedings, though, that they were going to be
alternate jurors.

And there was also a law enforcement press conference a short time ago. In
short, We will not tolerate law breaking. That was the headline from the
press conference that was held by the Seminole County sheriff`s department
here and the Seminole County Police Department.

I can tell you, I just walked over to where the demonstrators are. There`s
only about 20 of them right now, more cameras than there are protesters.
And Michael, court has also reconvened, as well.

SMERCONISH: And Craig, very quickly, I take it that none of those
alternates speaking to the media at this juncture.

MELVIN: None of the alternates are speaking to the media right now. In
fact, their identity will remained concealed for an undetermined period of
time by order of Judge Nelson.

SMERCONISH: Got it. All right. Thank you for a great report, as always,
Craig.

MELVIN: Thank you, Michael.

SMERCONISH: For analysis of today`s events, I`m joined by MSNBC legal
analyst Lisa Bloom, veteran prosecutor Paul Henderson, criminal defense
attorney Karen DeSoto and former prosecutor Tad Nelson. Welcome, all.

As defense attorney Mark O`Mara began his closing argument, he told the
jury that he would take on an additional burden for his client, actually
proving his innocence.

(BEGIN VIDEO CLIP)

MARK O`MARA, GEORGE ZIMMERMAN DEFENSE ATTORNEY: I would like you to do
(ph) whatever you can for my client`s benefit because, after all, that`s
what good defense attorneys do. But in this type of a case, we`re going to
do something that will probably upset or enrage defense attorneys anywhere
who are listening to this case because at the risk of confusing you, I`m
going to take a side trip for just a few minutes. And that side trip is
going to be I`m going to take on the obligation to prove to you that my
client is innocent.

(END VIDEO CLIP)

SMERCONISH: Karen DeSoto, you do defense work. Are you enraged about
that? How did it play out as a strategy?

KAREN DESOTO, CRIMINAL DEFENSE ATTORNEY: I think it`s a great strategy
because in a case where you have so much emotion going on, you know, so
many people have been so passionate about this, you have to try and dissect
that.

So you`re going to do that how? Of course, righteous indignation. You`re
going to say that your client is absolutely innocent because you want to
try, and you know, get them to listen to the instructions, set aside the
emotion and just really all-out fight for your client.

SMERCONISH: Tad, he`s saying, Look, I don`t have the burden. I feel so
strongly about the evidence in this case, I can assume their burden and
still win my case.

TAD NELSON, FORMER PROSECUTOR: Oh, it`s priceless, Michael. I mean, it`s
a great ploy. I don`t think he means it and I don`t think he thinks he`s
going to aggravate anybody or infuriate or whatever he said.

SMERCONISH: Of course not.

NELSON: But the reality is what he did, he said, Hey, my case is this
good, guys. Y`all listen to me. I`ve got such a great case, I don`t need
beyond a reasonable doubt, I can prove my guy innocent.

And you know, that`s pretty powerful stuff. I mean, he did a fabulous job.
And he`s got that Ward Cleaver feel to him, and they`re sitting there
listening to him and they`re wanting to believe him. And when he says
something like that, I`m sure they`re on the edge of their seat thinking,
God, Mr. O`Mara, we want to be with you. We want to be with you.

SMERCONISH: You know, Lisa Bloom, you`ve made the comment both here and
elsewhere -- I heard you say it on the "TODAY" show, as a matter of fact --
that the prosecution closing argument, a strong closing argument but a
little odd insofar as they asked questions without necessarily having the
answers to them.

And when I saw O`Mara doing that, I thought that he was seizing the mantle,
as you had defined it -- Hey, they`re not going to answer these things, I`m
going to answer them.

LISA BLOOM, NBC LEGAL ANALYST: This is a bizarro case, as Mark O`Mara
said. And it`s very odd to see the defense say, OK, I`m going to take on
the burden of proving innocence, although this is not the first time this
has happened in a high-profile case.

Tom Mesereau in the Michael Jackson sexual assault case in 2005, which I
covered, did exactly that. He won the case. He wrote articles in the
legal journals about it, and it`s been discussed among lawyers. And so
maybe that`s where Mark O`Mara got the idea, or maybe he came up with it on
his own.

But the bottom line is the judge instructs the jury at the end of all of
this that the prosecution has the burden beyond a reasonable doubt. Mark
O`Mara said that over and over again. So really, this is more of a -- I
don`t want to say a trick, but this is just sort of the rhetoric more than
anything else. He`s really not accepting that burden.

SMERCONISH: Paul Henderson, we saw two distinct styles in the
presentations today, one more staid and thoughtful and the other focusing
on the emotion. How did you judge the lawyering that we saw today?

PAUL HENDERSON, FMR. PROSECUTOR: I think we saw very good lawyering. We
saw very strong arguments presented on both sides. I thought the
prosecution did a really wonderful job of laying out the evidence, laying
out his case, and making an impassioned plea about what he thought the
evidence was.

I still feel like I would have liked to see a little more focus on the
self-defense issue and why it should fail, why it doesn`t work, why there
are inconsistencies, because I think the whole discussion about self-
defense is the linchpin to what the jury is deciding right now.

SMERCONISH: Karen, defense attorney Mark O`Mara was silent for four
minutes during his closing argument. He did this to demonstrate the amount
of time that he says Trayvon Martin had to get home...

DESOTO: Right.

SMERCONISH: ... after his first encounter with George Zimmerman. Let`s
listen to that explanation.

(BEGIN VIDEO CLIP)

GUY: ... common sense that tells you...

O`MARA: The person who decided that this was going to continue, that it
was going to become a violent event was the guy who didn`t go home when he
had the chance to. It was the guy who decided to lie in wait, I guess,
plan his move, it seems, decide what he was going to do.

And when the state told you that he had no decisions, they dared to tell
you that Trayvon Martin had no decisions, that my client planned this?
Really, four minutes! Four minutes of planning!

(END VIDEO CLIP)

SMERCONISH: Karen, that`s not original. I mean, I`ve been in cases where
time has been a factor and lawyers will sit there and watch that time go --
how effective do you think it was in this case?

DESOTO: It`s extremely effective because four minutes is a really long
time, especially for an argument or a tussle or just four minutes alone can
be a lifetime, especially in these cases where you have these self-defense
cases that are actually flip-flopping. It`s like a Shakespeare play. The
defendant and the victim are now turned topsy-turvy, and now as you`re
doing the self-defense, you`re trying to create your client as a victim.
So the four minutes is very powerful and very descriptive.

SMERCONISH: And Tad Nelson -- Tad, the point here was that Trayvon Martin
had plenty of time to go home, if, in fact, he were attempting to go home,
I think they said the distance of a football field. In rebuttal...

NELSON: Right.

SMERCONISH: In rebuttal, was John Guy sufficient in addressing this point?

NELSON: You know, absolutely. You know, I tip my hat to John Guy and to
Bernie De La Rionda, too. I mean, they did a fabulous job. They hit every
-- they crossed every T, they dotted every I. And he did. He answered
this question, but they answered it in a strange way. They answered it by
answering something else. They played a different ballgame. They never
really attacked the confrontation. They always changed the game.

They set the narrative. They set the narrative by saying that Zimmerman
was wrong when he got up that morning, when he put that gun on his waist,
when he decided he was going to go out. And they used these great words,
like kids, Skittles, profiling, watermelon (ph) tea. Every word they used
was setting their narrative, and that way, they never really had to talk
about the fact that Trayvon Martin started this fight. It was priceless.

I still think they have some major problems, but they did as good as they
could with the facts they had.

SMERCONISH: Lisa Bloom...

NELSON: They set the narrative from the beginning.

SMERCONISH: ... in the rebuttal argument, assistant state`s attorney John
Guy -- this is your issue, I think -- asked the jurors to apply common
sense to this case as he described what he said were inconsistencies in the
defense`s description of those events that he says could not physically
have occurred. Let`s watch.

(BEGIN VIDEO CLIP)

JOHN GUY, PROSECUTOR: ... common sense that tells you if Trayvon Martin
had been mounted on the defendant, as the defendant claims, when he went to
get his gun, he never could have got it. I don`t have to pull out that
mannequin again and sit on it. You remember. If you have to, do it in the
jury room. If he was up on his waist, his waist is covered by Trayvon
Martin`s legs. He couldn`t have got the gun. He couldn`t have! They
wanted a reason? It`s a physical impossibility!

(END VIDEO CLIP)

SMERCONISH: And then Guy bluntly characterized George Zimmerman`s state of
mind when he decided to shoot.

(BEGIN VIDEO CLIP)

GUY: The defendant didn`t shoot Trayvon Martin because he had to, he shot
him because he wanted to. That`s the bottom line.

(END VIDEO CLIP)

SMERCONISH: Lisa Bloom, you`ve been wondering when the prosecution would
address this issue of access or lack thereof to the weapon. How did they
do on that today?

BLOOM: Well, I have a different perspective than this prosecution team.
It`s not about who got the gun. We know that George Zimmerman got the gun
and shot it at Trayvon Martin. It`s about Trayvon Martin`s ability to see
the gun because the essence of the self-defense claim is that Trayvon saw
the gun, reached for the gun. At that point, George Zimmerman was in
threat of his life, took the gun out and shot him. If you can eliminate
Trayvon Martin seeing the gun, you can undercut the self-defense claim.

And you do that by showing in a most visual way possible, in the most
compelling way possible, for as long as possible during your closing
argument that the gun was holstered in a black holster inside the pants on
the back of George Zimmerman. You do that showing the video, frame by
frame, the 30 seconds of the video where he says that.

You put that holster on your body, in your pants. You lay down. You put
the dummy over you. I mean, you just really, you know, knock that point
out of the park.

I didn`t see the prosecution doing that. We know -- we know -- that George
Zimmerman got the gun. And we know that most of the time, his story was
Trayvon Martin reached for the gun. So I didn`t feel that they really
adequately addressed this point.

SMERCONISH: Lisa Bloom, Paul Henderson, Tad Nelson and Karen DeSoto, a
great panel, are all staying with us.

Coming up: The jury`s heard the arguments. They`ve been instructed on the
law. And now they have the case. Let`s get into what may sway them as
they deliberate the fate of George Zimmerman. And later, to the role that
race may play in the jury`s decision.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Tonight at 9:00 Eastern, be sure to join Lisa Bloom and Craig
Melvin for special coverage of the Zimmerman trial. That`s from 9:00 until
11:00 tonight right here on MSNBC.

HARDBALL back after this.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL. After nearly a month of courtroom
drama featuring testimony from 56 witnesses, it`s now up to the jury to
return a guilty or not guilty verdict in the trial of George Zimmerman,
their task not an enviable one since a man`s future is in their hands.

But just as important as the evidence that they`ve seen, the testimony that
they`ve heard, the laws that they`ve read, are the rules they must obey.
They have been provided with 27 pages of instructions to guide their
deliberations, which will be critical to the outcome of the case.

Remember, these jurors are six regular people. They`re not lawyers and
they`re certainly not criminal justice experts. As important as what the
law says is how they`re instructed to interpret it.

I spoke with the highly respected lawyer and Harvard law professor Alan
Dershowitz on my radio program earlier today. He had a very strong opinion
regarding a verdict in this case.

(BEGIN AUDIO CLIP)

ALAN DERSHOWITZ, HARVARD LAW SCHOOL: I feel that the prosecutor engaged in
serious prosecutorial misconduct.

This is legally a simple case. Reasonable doubt is written all over it.
If the judge had any guts, she would have directed a verdict of not guilty!
But of course, judges don`t do that, particularly elected judges don`t do
that.

(END AUDIO CLIP)

SMERCONISH: We`re rejoined by our panel, Lisa Bloom, Paul Henderson, Tad
Nelson, Karen DeSoto.

Paul, pretty strong words from Professor Dershowitz. He was addressing his
comments to the second degree murder charge, which he doesn`t think stands
any prospect of being a successful conviction.

How do you interpret that?

HENDERSON: Well, he`s speaking specifically to the intent. And I think
that that intent is inferred when you talk about the big picture of what`s
going on with this incident.

And again, you know, I understand what his perspective is as a defense
attorney talking about and focusing on the reasonable doubt standard. But
you know, I just keep reminding everyone, as I remind juries every time I
stand in front of them, we use that standard of reasonable doubt every
single time we get a criminal conviction and a defendant is held
accountable. So I`m not afraid of reasonable doubt here.

And in this situation, where we don`t have a lot of the information about
what exactly happened, we don`t have a lot of information about what
exactly happened because Zimmerman shot and killed the other person that
could tell us a version, and we`re left with a scattered version from
Zimmerman. And so I don`t think that he should be able to benefit from
that.

I think there`s enough information for us to infer intent. I do agree that
second degree is a really high standard for a case like this where there`s
so little clear information...

SMERCONISH: Well, let me ask Tad Nelson, if, in fact, the prosecution
overcharged -- special prosecutor Angela Cory, I think, was the individual
who made the decision to go for second degree murder. If that were
overcharging, does that help or hurt the manslaughter charge?

NELSON: Well, ultimately, I think it helps from a prosecutorial point of
view because in this case -- I mean, the guys -- the prosecution, they
argued great, and they seemed like they believed in their case. I`m sure
all six jurors are sitting there thinking, These two guys really believe in
their case.

So with that said, once you can`t give them the second degree murder,
you`ve really got to think, you know, What can I do with this manslaughter?
The bottom line is, Michael, we`ve got a 17-year-old dead. He`s a child
and he`s eating Skittles. And like they said a thousand times, he wasn`t
doing anything illegal.

So ultimately, that manslaughter, because they did shoot so high, is going
to give them the opportunity to have a comfortable little fallback. And
that`s scary for the defense. I promise you, that`s the thing that`s
scaring them to death right now.

SMERCONISH: O`Mara also outlined the statute for self-defense, which is
the backbone of the defense`s case.

(BEGIN VIDEO CLIP)

O`MARA: No injuries necessary to respond with deadly force, not a cut on a
finger. The statute is clear, reasonable fear of bodily harm. Captain
Carter told you, Whoa, you can get reasonable fear of bodily harm when
you`re already getting your butt beat. That`s certainly an indication.
But do you need a cut on your finger? No.

(END VIDEO CLIP)

SMERCONISH: OK. I think this is really important. In their instructions,
the jury has been given guidance on the legal grounds of self-defense, and
this is what they have been told.

"A person is justified in using deadly force if he reasonably believes that
such force is necessary to prevent imminent death or great bodily harm to
himself. " The danger facing George Zimmerman need not have been actual.
Based upon appearances, George Zimmerman must have actually believed that
the danger was real."

Karen Desoto, apply that standard to this case.

DESOTO: Well, you know, the whole idea of reasonableness in this case is
really what this hinges in.

The defense spent a large amount of time in their closing talking about
self-defense, because if you may believe that self-defense might have been
applicable, then you have to find in favor of George Zimmerman. So it`s
extremely crucial.

And so now I would have hoped that there would have been more of an
instruction on what reasonableness is, a little bit more of a definition,
because it`s so crucial in this case. So if they go back there and they do
exactly what the defense wants them to do, which is before they even look
at it, you know, do we believe that self-defense may have been applicable
here and then we can stop -- and that`s so much important with the lesser
included offense because we know that it`s an all-inclusive offense.

If you have it in the one, you would assume that you have it in the other,
unless of course we have one of those cases where we`re going to
compromise, the jurors are going to compromise.

SMERCONISH: So, Lisa Bloom, if George Zimmerman`s rendition of this is
accurate, the issue becomes did he reasonably believe, as he was in that
altercation and having his head slammed on the concrete -- and note that I
said if they accept his version of it -- did he reasonably believe that he
faced imminent death or a threat of great bodily harm?

BLOOM: This is where it`s important for attorneys to listen to each other
in closing arguments.

Mark O`Mara conceded in his closing argument that George Zimmerman
exaggerated his injuries...

HENDERSON: Yes.

BLOOM: ... that he wasn`t banged head to the concrete a couple of dozen
times, as he said, that maybe it was just a couple times. He exaggerated.
He was panicked.

That`s a theme the defense has put forward throughout this trial. I would
have loved to seen the prosecutor pounce on that. That is not a reasonable
person. That is not -- another one of the jury instructions talks about a
reasonably cautious and prudent person. A person who`s panicking is not
reasonably cautious and prudent.

That means we no longer have self-defense. We have at minimum
manslaughter, because we know to a certainty that George Zimmerman
intentionally shot Trayvon Martin.

SMERCONISH: And you make reference to the O`Mara closing argument. Here
it is.

In his closing argument, defense attorney Mark O`Mara made this point to
the jury. It`s the prosecution`s job to connect the dots and not yours.

(BEGIN VIDEO CLIP)

O`MARA: How many what-ifs have you heard from the state in this case? And
they don`t -- I don`t think anyway -- they don`t get to ask you that. I
don`t think they get to say to you, what do you think? No, no, no. No,
no, no. What have I proven to you? What have I convinced you beyond a
reasonable doubt occurred in this case so much so that you have don`t have
any reasonable doubt as to those issues that I presented to you?

They are supposed to use words like certainty and definite and without
question, beyond a reasonable doubt, no other explanation.

(END VIDEO CLIP)

SMERCONISH: Paul Henderson, is he on to something here? Was the
prosecution deficient insofar as they asked open-ended questions without
having a consistent theory of their own in their case?

HENDERSON: Well, it depends on the lens that you use.

I thought they did an effective job of raising some pointed questions. I
would have liked to see more questions directed at the challenges to the
defense`s case and more questions posed that directly challenged the
version that the defense was trying to sell.

Just like Lisa said earlier, I pointed that out too and was taking notes
when they started talking about the exaggerations because that opens the
door to have a conversation about the imperfect self-defense, and why the
self-defense failed.

And I would have liked to see a presentation from the prosecution that
focused on that and pointed the jury in that direction and gave them the
answer, not just asked the questions, because I think asking questions is
effective. But what`s also effective is if you raise the question and give
them the answer so that they know and you follow the path that leads you to
a guilty verdict.

SMERCONISH: Thank you for excellent commentary, Lisa Bloom, Tad Nelson,
and Karen Desoto.

Up next, how race has affected the Zimmerman trial both in and out of the
courtroom.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL.

Something unusual happened in the very last hour of this nearly three-week
trial. Prosecutor John Guy, giving his closing argument, explicitly
brought up a subject and a word that has been almost entirely absent since
the start: race. Let`s take a look.

(BEGIN VIDEO CLIP)

JOHN GUY, FLORIDA DISTRICT ATTORNEY: This case is not about race. It`s
about right and wrong. It`s that simple. And let me suggest to you how
you know that for sure.

Ask yourselves, all things being equal, if the roles were reversed and it
was 28-year-old George Zimmerman walking home in the rain, with a hoodie on
to protect himself from the rain, walking through that neighborhood, and a
17-year-old driving around in a car who called the police, who had hate in
their heart, hate in their mouth, hate in their actions, and if it was
Trayvon Martin who had shot and killed George Zimmerman, what would your
verdict be?

That`s how you know it`s not about race.

(END VIDEO CLIP)

SMERCONISH: In some ways, it`s remarkable that up until now race hadn`t
been discussed more inside the courtroom, since from the beginning so much
of this case in the public discourse at least centered around the topic.

But Judge Debra Nelson ruled in pretrial hearings that prosecutors couldn`t
say George Zimmerman racially profiled Trayvon Martin, only that he
profiled Martin. In other words, as we so today in the closing, race
became more about subtext to the legal case than an explicit focus.

Still, the question remains, what role, if any, will race play in the
jury`s verdict?

TheGrio`s Joy Reid is an MSNBC contributor.

Joy, why do you think in the rebuttal the prosecutor felt it necessary to
make that statement to the jury, where race hadn`t been spoken of in the
courtroom up until then?

JOY REID, MSNBC CONTRIBUTOR: Well, Michael, because I do think that race
has been the hidden subtext, as you said, in the trial all the way along.

And I think the prosecution felt at some point they had to address it. And
you did have Mark O`Mara in his closing say that he was going to sort of
talk about the racial issue. I don`t really see that he necessarily did
that. So I think John Guy took the opportunity to put it on the table.

And, look, when you have a jury with five white women on it, one of the
things that you want to do is give them that gimme. We know that you`re
not making this decision based on race. But the next thing he did was to
set up an explicit racial question, which is if the races of these two
people were reversed and it was Trayvon marten who had shot George
Zimmerman as Zimmerman was walking through that community, what would your
verdict be?

(CROSSTALK)

SMERCONISH: OK. In other words -- I like your analysis. In other words,
this is the prosecutor saying, look, I`m going to address the elephant in
the room.

REID: Right.

SMERCONISH: We haven`t talked about it, but we know this is on your mind.
And, therefore, put in a role reversal here, we`d still be here and we`d be
prosecuting this case.

REID: And right. And it`s giving jurors the benefit of the doubt that
they can set race aside, even though everyone knows, including you have to
presume the jurors know, race is an incredibly strong subtext in everything
about this case, from the way Rachel Jeantel was perceived to the reason
why George Zimmerman would have thought that Trayvon Martin was suspicious
in the first place, the fact that the defense put on a witness show said
that black young males had been in the neighborhood committing robberies.

This was a subtext there anyway. And it was -- I guess the prosecution
felt it was time they addressed it.

SMERCONISH: In his closing today, defense attorney Mark O`Mara argued that
it was strong to assume Zimmerman had any kind of ill will toward Martin
based on race.

(BEGIN VIDEO CLIP)

O`MARA: They will show you, by the alarm calls, by the burglaries, the
home invasion that Ms. Bertalan suffered through, and they will show I
think if you look at this that, in that community, there was a rash of
people burglarizing homes.

And you know what else it`s going to show you? It`s going to show you that
a lot of the people who were arrested for it, the only people who were
found and arrested were young black males.

I`m going to talk about race in a little bit too, what they`re going to
show. And the reason why I mention that now, because we talked about
assumptions and what you sort of bring into your world, listen to the
calls. Anger? Frustration? Hatred? Ill will? Spite? Get out here and
get these guys. I hate these young black males. Whatever the absurdity is
they want you to get from that, listen to the calls.

(END VIDEO CLIP)

SMERCONISH: Joy, as an African-American female, when you hear profiling,
are you thinking racial profiling?

I ask because Judge Nelson said from the get-go, you can talk about
criminal profiling. You can use the P-word, but you cannot talk about
racial profiling. Does that semantic difference even matter? Do most of
us think racial profiling when he hear the P-word?

REID: Immediately.

And as the mother of young black male sons, that is immediately what I
think of. And then Mark O`Mara has in very subtle ways introduced sort of
the profile of, hey, jurors, wouldn`t you be nervous about this person too?
That grainy photograph of Trayvon Martin in the 7/Eleven, that`s not to
show Trayvon Martin`s height. That`s meant to show Trayvon Martin as scary
and sinister and somebody that you, madam juror, would also feel nervous
about, putting on the witness -- remember, it was the defense that did it,
that put on a witness who said her home had been broken into.

Who did it? Young black male. The pattern, the fact pattern that Mark
O`Mara wanted to point to, young black males breaking into homes, the
suspicious behavior, he even at one point during -- I don`t know if whether
it was with the jury in the room, but talked about like a jimmy, like,
found under one of the windows in the community, sort of implying, well,
maybe Trayvon Martin could have been up to no good.

So, I think that race is a subtext even in the defense arguments. It`s
just that the defense doesn`t want to make it explicit. And the
prosecution I think at the end had to at least put it on the table.

SMERCONISH: You mentioned a photograph being utilized by the defense in
this case.

And I took note of the fact. I was watching a feed where you could
partially see evidence that was being shown to the jury. And there was a
photograph of Trayvon Martin that was shown in the closing argument by Mark
O`Mara in which he looked bare-chested from the waist up. This was not one
of the crime scene photographs. I don`t know if you know what I`m talking
about.

REID: I do.

SMERCONISH: but I was thinking what you were just saying as I watched that
photograph. Any reaction from you?

REID: Yes, absolutely.

And that was the photo where he had sort of a gold takeaway grill that a
lot of teenagers put in.

SMERCONISH: Correct.

REID: And it sort of was to present him as not a teenager but as a thug,
essentially.

And those two photographs were paired together. I saw the same feed you
did. And right next to each other was this grainy, gray figure in a
hoodie, standing and sort of looking really much bigger than the guy behind
the counter at the 7/Eleven, paired with this photo of him with a bare
chest, the grill.

This is meant to say this wasn`t a boy walking home. This was somebody
that any reasonable person would have been afraid of. This was a guy
capable of attacking George Zimmerman and trying to kill him. That is what
Mark O`Mara was doing. Race is layered all over that.

SMERCONISH: Let`s bring in NBC`s Kerry Sanders outside the courthouse in
Sanford, Florida -- Kerry.

KERRY SANDERS, NBC CORRESPONDENT: I think one of the things to point out
here, as we`re listening to what Joy is talking about, and you`re asking
questions about why it was so late in this particular case that this issue
came up, don`t forget that, during the jury selection, the members of this
jury live in this community.

And five of the six said in open court that they had some understanding,
some knowledge about what had happened here. They knew a little bit about
the protests. And so one juror, the one from Chicago with eight kids, said
that she was just too busy and didn`t know much about it.

But the others were aware of it. The question the judge asked in the whole
process of selecting this jury was, could they set aside any preconceived
notions, any preconceived thoughts about what they believed that they knew
and only accept what they hear in the court as the facts for the
determination here?

So while this is a question that is perhaps good for discussion, I imagine
the jurors have been wondering themselves why they only heard it today.
Now, where are things currently going on in the courthouse? The jury is in
their room. They`re in there alone. There`s a bailiff outside.

And they`re going through their deliberations. Because they have asked a
question, it`s clear that they have now selected a foreperson, a forewoman,
because this is a six-member female jury. And so they are now going
through the process. They have requested already one thing. And that is a
list of the evidence with numbers so that they can sort of sort through
that, and I assume maybe go to the next step of actually requesting pieces
of evidence either to be displayed back in the courtroom or transcripts
that they can review.

Inside the courthouse, you have up on the fifth floor Trayvon Martin`s
family. And they`re in one of the attorney-client rooms that are set aside
outside most courthouses in this country, and they`re in there with their
attorneys, Ben Crump, Daryl Parks, and some of their family members.

You also have George Zimmerman with his family and his defense attorneys
also in the courtroom also on the fifth floor in another portion of the
fifth floor in another one of those rooms. And then you have the
prosecution team led by Angela Corey, who you haven`t seen a whole lot of,
but she`s the one who brought the charges, the one who charged.

And she is there. And everybody is waiting. And so when and if the jury
were to come back, let`s say today, with a verdict, it will happen quickly.
Everybody will be told, assemble in the courtroom. It`s not going to be
like they initially thought where they would send out a tweet and give
everybody an hour. They will just move quickly.

SMERCONISH: Kerry, thanks for setting...

SANDERS: But how long will the jury stay here?

OK. Go ahead.

SMERCONISH: I was going to say thanks for setting the stage so well. We
appreciate your report.

SANDERS: Good.

SMERCONISH: Joy Reid, thank you.

Back with the very latest, as the jury in the George Zimmerman trial
continues its deliberations.

And a reminder. You can listen to my radio program every weekday mornings
at 9:00 Eastern on SiriusXM`s POTUS Channel 124.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

(NEWSBREAK)

MICHAEL SMERCONISH, GUEST HOST: Welcome back to HARDBALL.

We`re rejoined by our panel, Lisa Bloom, Paul Henderson, Tad Nelson and
Karen Desoto.

Paul, something that surprised me today was the lack of argument by either
side, differentiating in their closings between second degree murder and
manslaughter. I really think that`s an important part of the case, and yet
both seemed to stay away from it.

What`s your read on that?

PAUL HENDERSON, FORMER PROSECUTOR: Well, to me, I wanted to hear more on
those differentiations, because I think they all focus on the same thing.
Obviously, the issue with the second degree murder is the intent. But
beyond that, I think the bigger issue is the self-defense.

And I really wish both of the parties had spent more time articulating why
the self-defense either is successful or why it fails, because in this
case, there`s just so many different ways to interpret that self defense.
I believe that that`s the real legal issue, and that`s what I believe the
jury is in that room now trying to discuss and trying to figure out,
whether or not there`s a real self-defense and then where that failure or
success fits in between those two charges.

SMERCONISH: Tad Nelson, I think a difficult aspect for the prosecution`s
case for second degree is that evil intention.

TAD NELSON, FORMER PROSECUTOR: Right.

SMERCONISH: And that`s why they spent so much time, as you know, on F-ing
punks and A-Hs and so forth.

NELSON: Right.

SMERCONISH: So that`s why we didn`t hear from the prosecutors in the
closing, look, we think we`ve established the elements of second degree
murder, here they are, is that language which shows that evil intention
that he had. But if, ladies and gentlemen, you don`t find those elements
have been met, here`s the standard for manslaughter. And, of course, we`ve
met this burden -- something like that.

You`re the prosecutor. Talk to me on that issue.

NELSON: Well, you know, I don`t really take umbrage with them not really
explaining it that much. You know, I think they went out of their way.
They used, you know, the F-ing punks and the things they said, and they
tried to, you know, raise the level of intensity in the courtroom, tried to
make it more racial, more provocative.

But the reality of it is, the only difference between the two charges is
the dark heart, the hatred and all that. That`s such a minor part of it.
Other than that, they pretty much read verbatim.

And if you don`t think you can get the top one -- I mean, that`s why it`s
there. They`re going to keep pushing. They`re going to keep pushing. And
they`re going to keep pushing.

And they`re looking for that comfort level of falling back on this
compromised verdict. It`s what they`re pushing for. But like you said,
they`re going to keep bringing those words up because the words is their
narrative. And they`re creating their entire narrative to set the bar very
low for themselves.

I thought it was great what they did. They had a horrible, horrible set of
facts.

SMERCONISH: Right. I mean, you got to play the cards that you`ve been
dealt. We all know that as attorneys.

Karen Desoto, there was an interesting contrast I thought in style between
the prosecution, which was more emotional in their approach than the
defense, which was more stoic and workman like. And by way of example,
assistant state attorney John Guy appeared to become emotional when he
talked about not being able to call Trayvon Martin to the stand.

(BEGIN VIDEO CLIP)

JOHN GUY, PROSECUTOR: The bottom line is who is responsible for Trayvon
Martin lying on that ground? Trayvon Martin didn`t kill himself. And
who`s responsible for the state not being able to ask Trayvon Martin to
step forward so I could put my hand on his shoulder? God, I`d love to do
that. Who`s responsible for that?

(END VIDEO CLIP)

SMERCONISH: Karen Desoto, "God, I`d love to do that." React to that.

KAREN DESOTO, CRIMINAL DEFENSE ATTORNEY: Well, listen, the prosecutor had
so many questions -- there were so many pieces of the puzzle missing, you
have to play on the emotions. That`s what you have to do. The defense is,
of course, going to play the law because that`s more favorable to George
Zimmerman.

Of course, I have to tell you that in a state that prosecutes 12 year olds
as an adult, it was kind of interesting to see a prosecutor call a 17 year
old a child time and time again. I think he said, I don`t know, how many
times -- that the use of that emotional word, he was a child, he was a
child, he was a child.

You know, I think that was a little bit much. I felt like that was
overacting. I don`t -- I don`t think that getting emotional about
something, calling somebody a child who`s 17 and just keep on repeating it,
it seems a little odd.

SMERCONISH: Well, of course, the day before, they attempted to get a jury
instruction on third degree -- felony murder, third degree murder on child
abuse.

DESOTO: Right.

SMERCONISH: Hey, stick with us. Lisa Bloom, Paul Henderson, Tad Nelson
and Karen Desoto -- please remain where you are. Back in just a moment as
the Zimmerman jury continues its deliberations.

(COMMERCIAL BREAK)

SMERCONISH: You know you`ve been covering the Zimmerman trial too long
when your name makes it onto a local billboard. And that`s exactly what
happened outside one restaurant in Sanford, Florida. Here`s the sign
outside of Mel`s Family Diner. It features NBC`s own Kerry Sanders,
apparently he`s known around town simply as "Kerry, the NBC guy." The
restaurant is famous for its good humored staff who wear t-shirts that say
kiss my grits and it`s frequented by another TV personality, Larry, the
cable guy.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL.

We`re back with Lisa Bloom, Paul Henderson, Tad Nelson, and Karen Desoto.

Lisa Bloom, by the end of the case, had the prosecution pretty much
conceded that it was Trayvon Martin who was on top?

LISA BLOOM, NBC NEWS LEGAL ANALYST: I think they did. Unfortunately, I
got really tired of seeing the prosecution playing out the same scenario as
the defense. You know, at one point, the defense had that dummy, and they
used it very effectively to demonstrate what they say happened in the fight
with Trayvon Martin on the top, George Zimmerman on the bottom. There is
Mark O`Mara pounding and giving a very powerful visual representation to
the jury. I can`t emphasize how important I think visual representations
are to a jury.

And then after that, John Guy got on top and did essentially the same
thing. I understand what he was trying to do. He was trying to make the
point that even under the defense`s scenario, certain things were
impossible. That`s good.

But then I would additionally stand that dummy up and demonstrate the two
men, side by side, how that could have happened. I would have had George
Zimmerman on top, as several neighbors testified that they saw. He failed
to do that.

And so, the jury goes into deliberations with only really one scenario in
mind, the scenario put forward by George Zimmerman.

And as Mark O`Mara pointed out in his closing argument, the prosecution
never offered an alternative hypothesis, much less proved it beyond a
reasonable doubt.

SMERCONISH: Well, I share your perspective. And that`s why I asked the
question. And I feel somewhat the same way relative to the voice
identification in the background on the 911 call, because although the
prosecution was still making assertions by the closing, it seemed they
pretty much waved the white flag on that too.

Lisa, do you disagree with me in that respect?

BLOOM: I think they did, and also on race. Remember that burglary victim
who testified towards the end of the trial.

SMERCONISH: Yes.

BLOOM: Very nice looking young woman who said an African-American male had
broken into her home and she was in the closet with her baby, and she was
so scared.

What happened to the cross-examination of her? I would have asked her, was
it Trayvon Martin who robbed you?

UNIDENTIFIED MALE: Exactly.

BLOOM: Did Trayvon Martin break into your home? Are you saying that
Trayvon Martin is a burglar or a criminal? Well, of course not.

Then, why are we hearing about this? Why are we hearing about another
African-American male? Is that to say that they`re all criminals? That
it`s reasonable to suspect one walk do you think the street because of what
another one did?

That is the very definition of racial profiling.

SMERCONISH: Lisa Bloom, Paul Henderson, Tad Nelson, and Karen Desoto are
sticking around. We`ll be back in just a moment.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL.

We`re back with Lisa Bloom, Paul Henderson, Tad Nelson, and Karen Desoto.

Paul, I am frustrated by those that I perceive as rooting for a particular
outcome in this case. Maybe human nature, I personally have been rooting
for a fair fight. I feel this has been a real good trial. I`ve watched
most of it. And both sides have been ably represented by counsel.

Certainly you know what I`m talking about, though. Just anecdotally in all
of our communities, it seems that`s the way people are interpreting it.

Your thoughts?

HENDERSON: I`m getting a lot of calls as well from community, particularly
in the African-American community. I mean, people have a visceral reaction
when they hear the facts about this case. And I think that`s why there is
so much pressure, there is so much attention, and there is so much focus on
this case, because a lot of people feel this case means something to them
personally.

This is exactly why when I was talking earlier, I wish that we heard a
little bit more about the race issue in the closing. I feel like we had
more tools in our tool box to use that would have helped this jury decide
things.

And we can`t be afraid of the race issue because I think the race issue has
a lot to do with how this case unfolded. I think race has a lot to do with
how this case will be decided. And I think race will have a lot to do with
what people take away from this case regardless of the results from this
jury.

SMERCONISH: Well, let me --

HENDERSON: And they`re going to be talking about it along time.

SMERCONISH: Karen, let me be clear. I`m not talk about only the African-
American community. Pretty much when people call my radio program and I
can discern their race, I almost always know what they`re about to say
about this case. It applies to whites as well.

DESOTO: Right. It`s a shame, because, you know, at the end of the day,
you know, you have to say to yourself that the state of Florida really has
a tremendous amount of liability in these cases. I mean, there is a lot of
racial division.

But, you know, the liability for giving George Zimmerman a concealed weapon
I think is one of the elephants in the room here. I mean, all of this
emotion -- you`re handing out guns like M&M`s and you`re giving them to
people who are not military, they`re not police, and then you expect that
these kind of incidents aren`t going to happen. That`s the liability.

The liability here rests with the state of Florida.

SMERCONISH: Tad, the system gets beat up. We only have 30 seconds left.
But in this case, from what I`ve seen thus far, what did Churchill say
about democracy in the worst system of government except for all the
others.

You could say the jury system is the worst method of conflict resolution
except for all the others.

NELSON: Absolutely. You know, speaking the last point, I`m down here in
Texas. I`ve never shot a handgun. I`m probably one of the few down here.

But it is so sad what has happened with race creeping into our judicial
system, and our entire environment here. Even the people that have talked
on your show the last couple of days, all the shows, by and large, the
African-Americans will tell you that it looks like it should be a guilty
verdict --

SMERCONISH: I got it. You know what?

NELSON: With very few exceptions.

SMERCONISH: And whites are the other way.

NELSON: It`s crazy.

SMERCONISH: Thank you, Lisa Bloom. Thank you, Paul Henderson, Tad Nelson
and Karen Desoto.

That`s HARDBALL for now. Thanks for being with us.

"POLITICS NATION" with Al Sharpton starts right now.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

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