07/25/2013 06:04 pm ET Updated Sep 24, 2013

Through the Looking Glass

The prosecution didn't understand what they faced when they prosecuted George Zimmerman. Please don't misunderstand me; I am not saying they were incompetent. Far from it. They are just used to being on the side of the case where the prejudices work for them.

As our country is trying to have a conversation about race, and as the divide in perspective on this case continues to reflect our own racial attitudes -- conscious and unconscious -- I thought it might be useful to point out the main reason the prosecution did not get a conviction. They couldn't see, and they didn't know they couldn't see.

As a criminal defense attorney I am used to being on the side representing the person who is viewed as "dangerous." To pretend that race isn't a part of that is foolish. When I am standing next to a young man of color in a courtroom there already is a perception that he is guilty, that dark is dangerous. And prosecutors usually have that bias advantage in a courtroom in addition to the fact that presuming innocence is counter-intuitive anyway, as most people think the police wouldn't have arrested someone who wasn't guilty.

In this case, though, the prosecution did not understand that they needed to select a jury that would be willing to have a conversation about the role of race in this case. The jurors that have spoken thus far have said it was never mentioned.

The prosecution also over-charged the case. An honest view of the evidence by the prosecution should have resulted in a charge of manslaughter, not murder. A finding of manslaughter could have encompassed the fear that Mr. Zimmerman felt. The fact that there was mutual combat could simply have been conceded, and the question for the jury then would have been whether his subsequent actions were reasonable. However, in order to win a murder conviction, the prosecution was forced to elect to take on everything about George Zimmerman. They could not and did not concede any facts that they knew would be presented in support of a self-defense theory. They tried to make the 911 calls into evidence that Zimmerman was looking to kill someone, and of course they could not prove that. They chose to prosecute George Zimmerman the way they ordinarily would present a criminal defendant -- a defendant who appeared more like someone they were used to prosecuting -- as inherently dangerous.

Was Zimmerman frightened? Sure. Was he attacked also? Probably yes. But was his judgment reasonable? Not really. Did he need to react to a physical tussle with a gun? Most likely not.

The prosecution could have used the 911 call and Mr. Zimmerman's subsequent behavior (like continuing to follow Trayvon Martin) to show that Zimmerman was not acting reasonably, that his judgment was affected by bias, and that he did way more than he needed to in order to simply protect himself. The prosecution could not see this because of a culture where overcharging often results in plea bargains. This is the result of an over-reliance on general pro-police and prosecution bias, as well as the usual jury condemnation of those deemed "dangerous" by most juries.

They could not see, and they didn't know it.