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Lisa Bloom Headshot

Yes, It Is About Race

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AP Photo/Jacksonville Sheriff's Office

We're in the midst of a series of high-profile trials of white Americans who fatally shot unarmed African Americans, which we are constantly told are not about race. Not only is this a losing strategy for the prosecution, but it's dishonest.

Michael Dunn, a 47-year-old software developer, shot and killed 17-year-old Jordan Davis, a black teenager he'd argued with about loud music emanating from Davis' car, parked in front of a Jacksonville, Fla., convenience store. Last month the jury hung on the top charge of murder for that killing (while convicting Dunn of attempted murder for firing into the fleeing vehicle). Dunn's retrial is set for May.

Interracial killings aren't necessarily racially motivated, but in this case Dunn, who is white, began the altercation by complaining about Davis' loud "rap crap," "thug" music. Are we to imagine that he would have had the same reaction to high-decibel Taylor Swift tunes? If any doubt remained, Dunn's series of letters from jail clarified his disturbing mindset.

After complaining about "how biased toward blacks the courts are" -- so biased that the jail was filled with African-American arrestees -- Dunn advocated killing more of them:

This jail is full of blacks and they all act like thugs. ... This may sound a bit radical but if more people would arm themselves and kill these ******* idiots when they're threatening you, eventually they may take the hint.

On another occasion he claimed not to be prejudiced but acknowledged that he had "no use" for some people:

I'm not really prejudiced against race, but I have no use for certain cultures. This gangster-rap, ghetto talking thug "culture" that certain segments of society flock to is intolerable.

Another written rant against blacks concluded with Dunn's straightforward acknowledgement of his own racism:

The more time I am exposed to these people, the more prejudiced against them I become.

In my experience as a practicing civil-rights lawyer since 1986, explicit racist writings like these are rare and valuable evidence. In a criminal trial, prosecution must prove the sometimes-difficult-to-prove element of intent, proving to the jury a negative or hostile mindset in the face of the defendant's more benign explanation. (Dunn claimed he shot only in self-defense, after Jordan Davis pointed a gun at him. No gun was ever found.) Yet, stunningly, none of these letters was introduced into evidence at his murder trial, even though Dunn's defense attorney put on a series of witnesses who testified as to his "gentle" and "peaceful" nature. This glaring omission meant the jury had no idea of Dunn's seething racial animus, not to mention his open enthusiasm for killing more African Americans. (While the judge initially ruled the letters inadmissible, once the defense "opened the door" to character evidence by calling its own witnesses, the state should have fought anew to show the jury his letters.)

As a result, the jurors "didn't even think about the race aspect of it," juror Creshuna Miles said. "Race was never a factor," the 21-year-old African-American woman said. How could that be? The jury was never presented with this relevant evidence.

State attorney Angela Corey personally tried the Dunn case and was also the special prosecutor who oversaw last year's trial of George Zimmerman. "This case has never been about race," Corey said at her press conference immediately after Zimmerman was acquitted for his fatal shooting of 17-year-old Trayvon Martin, a black teen who was carrying only candy and a fruit drink. "But Trayvon Martin was profiled," she continued, incomprehensibly. "And if race was one of the aspects in George Zimmerman's mind, then we believe we put out the proof necessary to show that Zimmerman did profile Trayvon Martin."

Actually, she didn't. To the contrary, in the Zimmerman trial, prosecutors abrogated their responsibility to argue the issue to the jury. They didn't even object to offensive racial stereotypes raised by the defense in that trial. Zimmerman's defense team called a young white woman to testify about two African-American burglars who'd robbed her six months before Trayvon Martin was shot. The prosecution should have leapt to their feet, objecting to the outrageous association of burglars with Trayvon Martin, who had no connection to them whatsoever. The defense called Trayvon Martin a "match" to the burglars, with skin color the basis for the match. Demonizing Trayvon Martin based on thieves with whom he shared nothing but blackness is the very definition of racism, but no one said so in the courtroom, not even the prosecutors whose job it was to advocate for the shooting victim.

In addition, Zimmerman had called the police about other suspicious people in his neighborhood multiple times in the six months prior to the Trayvon Martin shooting. All those recorded calls admitted into evidence -- 100 percent -- were about African Americans. Corey's team never argued this obvious racial profiling to the jury. As a result, the Zimmerman jurors who spoke to the press, just like the Dunn jurors, stated proudly that the case was not "about" race. One Zimmerman juror, known only as Maddy, said she noticed the racial profiling in Zimmerman's police calls but ignored it because she'd been told race was not part of the case.

While the Florida prosecutor's bungling of the race issue calls into question their competence in the Dunn and Zimmerman cases, others seek to keep race out of similar cases for the best of motives.

The parents of Renisha McBride, the 19-year-old unarmed Michigan woman killed by a homeowner whose door she'd knocked on after she crashed her car, asked the prosecutor not to focus on race in the case. Wayne County Prosecutor Kym Worthy agreed. In announcing charges filed against the white homeowner who responded to her knocking by shooting Ms. McBride in the face, Worthy insisted that race "would not be a factor" in the trial of Theodore Wafer, set for June.

McBride's parents and Worthy are African-American. One presumes they all want a fair trial based on the evidence, wanting neither an advantage nor a disadvantage based on skin color. Colorblindness is valued above our cultural aversion to "playing the race card" (as if anything about these trials is a game).

That laudable objective, however, clashes with the reality of white violence against African Americans, which too often results in minimal or no justice.

A mountain of social science data shows that whites in particular (but blacks too) are unreasonably suspicious of African Americans. These fears were likely at play in the 2013 shooting of Florida A&M football player Jonathan Ferrell, also black, unarmed and seeking help, arms up, after a car accident. (The trial of his killer, white police officer Randall Kerrick, has not yet been set.) When Wisconsin resident John Spooner fatally shot his 13-year-old black neighbor, Darius Simmons, he wrongly suspected Simmons of having robbed him days earlier. (Spooner, who is white, was convicted in July of last year of first-degree intentional homicide, as his own security video showed him going after the child without any pretense of self-defense.)

And so the body count rises, in cases that too often are very much about race, though the lawyers and participants are loath to say so. In split-second decisions about whether to shoot a perceived threat, research subjects shoot unarmed blacks more often than unarmed whites. Other subjects "see" a black face associated with a crime story where no race or picture was given. In one oft-cited study, blacks shoving whites are viewed as aggressive, but whites shoving blacks are not; they're more likely to be seen as just horsing around. Black faces are seen as hostile, whereas whites with the same expressions are not.

The blacks-are-criminals mindset (recall Zimmerman instantly concluding that Trayvon Martin was "a real suspicious guy") has dire consequences in self-defense cases where the reasonableness of the threat is a central issue for the jury. In some courts, judges' instructions are beginning to address this implicit racial bias issue, asking jurors to be aware of unexamined attitudes they may harbor, asking them to set them aside in their deliberations. Much more can be developed in this area to teach jurors to understand and actively turn off their implicit racial biases.

But at a minimum, where evidence of explicit racial bias exists -- like Dunn's odious jail writings -- it should be given to the jury. Otherwise panelists are left in the dark to founder on the issue of whether the defendant exhibited the hatred or ill will requisite for a finding of murder. Ducking the race issue entirely has not resulted in the convictions the state has sought in the Zimmerman and Dunn cases, because jurors were not given the full picture of the killer's mindset in the Dunn trial, and the prosecution did not push back against the defense's unfair association of Trayvon Martin with burglars in the Zimmerman case. Without evidence of racial animus, what remains are defense stories of fear and self-defense, which the Zimmerman jury bought and at least two Dunn jurors did as well, resulting in a mistrial.

Millions have taken to the streets in peaceful demonstrations, signed online petitions, spoken out on social media and closely followed these cases because the racial issues are painful and obvious. Why hide those issues from the jurors?

Lisa Bloom is an attorney, a legal analyst for NBC News and, and the bestselling author of Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It.