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PoliticsNation, Monday, June 24th, 2013

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POLITICS NATION
June 24, 2013
Guests: Faith Jenkins; Lisa Bloom; Ken Padowitz, Marcia Clark, Jeffrey
Rosen



REV. AL SHARPTON, MSNBC ANCHOR: The jury heard testimony from four
eyewitnesses. Four witnesses, ending just moments ago. They were not
eyewitnesses. Let me correct myself. They were witnesses. The day
started with an opening statement from prosecutor John Guy that caught many
by surprise. He quoted George Zimmerman`s own words, including profanity
during a call to police the night of Trayvon Martin`s death. He quoted
Zimmerman to lay out the prosecution`s case.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Good morning.

JOHN GUY, PROSECUTOR: Good morning.

(Bleep) punks. These (bleep), they always get away. Those were the words
in that grown man`s mouth as he followed in the dark a 17-year-old boy who
he didn`t know. And excuse my language, but those were his words, not
mine. (bleep) punks. These (bleep), they always get away. Those were the
words in that defendant`s head just moments before he pressed that pistol
into Trayvon Martin`s chest and pulled the trigger.

And then as the smoke and the smell of that fatal gunshot rose into a rainy
Sunday Sanford night, Trayvon Martin, 21 days removed from his 16th year,
was face-down in wet grass, laboring through his final breaths on this
earth.

The truth about the murder of Trayvon Martin is going to come directly from
his mouth. From those hate-filled words that he used to describe a perfect
stranger, and from the lies that he told to the police to try to justify
his actions.

A 28-year-old grown man, somebody who wanted to be a police officer,
somebody who had called the police numerous times about crime in his
neighborhood, someone who had become the neighborhood watch captain, and
someone who believed, most importantly, that it was his right to rid his
neighborhood of anyone that he believed didn`t belong.

At the end of this trial, you will know in your head, in your heart, in
your stomach, that George Zimmerman did not shoot Trayvon Martin because he
had to. He shot him for the worst of all reasons, because he wanted to.

(END VIDEO CLIP)

SHARPTON: After a short break, it was the defense`s turn. Lawyer Don West
gave jurors an alternate version of events that night, that George
Zimmerman acted in self-defense.

(BEGIN VIDEO CLIP)

DON WEST, GEORGE ZIMMERMAN`S ATTORNEY: I think the evidence will show that
this is a sad case. That there are no monsters here. George Zimmerman is
not guilty of murder. He shot Trayvon Martin in self-defense after being
viciously attacked. And here is the evidence that will show you how and
why it happened the way it did.

George Zimmerman sees Trayvon Martin in a spot and he caught his attention,
caught George Zimmerman`s attention. Little did George Zimmerman know at
the time that in less than ten minutes from him first seeing Trayvon
Martin, that he, George Zimmerman, would be sucker punched in the face,
have his head pounded on concrete, and wind up shooting and tragically
killing Trayvon Martin.

(END VIDEO CLIP)

SHARPTON: The defense opening statement lasted two and a half hours. The
prosecution`s opening just 30 minutes. Two very different approaches today
as the jury began considering whether George Zimmerman is guilty of killing
Trayvon Martin.

Joining me now is former prosecutor Faith Jenkins, MSNBC legal analyst Lisa
bloom, and Florida defense attorney Ken Padowitz.

Thank you all for being here.

LISA BLOOM, MSNBC LEGAL ANALYST: Thank you.

KEN PADOWITZ, FORMER PROSECUTOR: Thanks for having me.

SHARPTON: Ken, you`ve made many opening arguments. What is your reaction
to today`s openings?

PADOWITZ: Well, I have to say, after 35 first degree murder trials I`ve
handled here in the state of Florida, I would describe the prosecutor`s
opening as simply brilliant. I thought it was a fantastic use of bringing
the jury, the six women sitting there listening to this prosecutor, out of
that court room and to the scene of the crime. He used, this prosecutor,
the words of George Zimmerman to do this.

And it was shocking, yes, but I think it was very effective in bringing
them to that crime scene, bringing them to the time period when this 17-
year-old was shot and killed. And I think he did it very, very
effectively. He described in great detail, using sights and sounds and
smells, to bring that jury out of that courtroom, that cold, sterile
environment, and to that scene of that horrific murder.

And I think he did a great job in painting that picture in a very
descriptive way. And really made the point that he wanted to as to what
this evidence actually is going to paint during the course of this trial.

SHARPTON: Faith, I see you nodding your head. Do you agree the prosecutor
won the first round, if we`re to call opening arguments the first round?

FAITH JENKINS, FORMER CRIMINAL PROSECUTOR: He was fantastic today. In
order for these jurors to believe in the message, they have to believe in
the messenger. John Guy stood in front of them, no notes, and he commanded
the entire room, the entire duration of his opening statements, unlike the
defense. He commanded authority. He had the emotion. He was direct,
concise, precise and compelling in everything he said. He was riveting.
And people literally hung on his every word. It was very, very effective.

SHARPTON: Now, Lisa, the prosecution described the first responders
following up what Faith said about the descriptions. The prosecution took
time to even in the 30 minutes to describe the first responders that were
trying to save Trayvon Martin`s life. Listen to this.

(BEGIN VIDEO CLIP)

GUY: The first two officers to Trayvon Martin`s body found him exactly
like that defendant left him. Face-down, his hands clutching his chest.

Sergeant Raymondo will explain the steps he took to save Trayvon Martin`s
life. And he will admit to you he didn`t exactly follow SOPs with the
police department, because they hold that if you are to try to give mouth-
to-mouth somebody that you go to your car first and you get a breathing
mask to separate your mouth from their mouth. Well, Sergeant Raymondo
realized there was no time for that. So he put his lips on Trayvon
Martin`s lips and tried to breathe life into him. And officer Ayala put
his palms on Trayvon Martin`s chest and tried to push life into him. But
it was too late. Trayvon Martin had already passed.

(END VIDEO CLIP)

SHARPTON: He described it in detail. Do you agree that the prosecutor was
doing as well as both Ken and Faith has indicated they would feel he has?

BLOOM: Well, on style, there is no question about it, that the
prosecutor`s passionate, short, succinct opening statement was better on
style than the defense`s bumbling, beyond bumbling and long-winded opening
statement was.

But this trial is not just about style. It`s about assistance as well.
And the defense took a long time going through the forensic evidence,
arguing the forensic evidence and the way most helpful to George Zimmerman.
And I think that`s what this case is going to come down to, forensics, both
on the prosecution side and on the defense side.

SHARPTON: Ken, the forensics. You have a conflict, it`s no surprise,
between what the prosecution said and what the defense in terms of even how
the one shot was fired, how close it was, how far it was, where it entered
the hoodie jacket that Mr. -- that Trayvon was wearing.

How important will what has been represented by the prosecutor and what
has been represented by the defense, how important will it be when the jury
finds out who is right under forensic evidence?

PADOWITZ: Well, that`s the fantastic thing about our jury system is we
take people from the community, these six is women will sit there and the
clashes from both sides, from the prosecution and the defense in the form
of testimony and physical evidence, that will form that dust cloud
figuratively over the jury, and then from that, they get to determine in
their own minds which gets great weight, which gets some weight, and which
evidence gets no weight at all. So that jury is going to have this very
difficult task of deciding which evidence is really something that they can
rely upon using their common sense and life experience?

And I have to tell you that, you know, they`re going to be listening very,
very carefully to what this evidence is in determining what they want to
give the most weight to.

SHARPTON: Faith, the defense definitely laid out a longer, more extend
kind of step by step, but not with the passion or the emotion of the
prosecutors. But he also had an unusual method of trying to connect with
the jury. Let me play this to you.

(BEGIN VIDEO CLIP)

WEST: Knock. Knock. Who`s there? George Zimmerman. George Zimmerman
who? All right, good. You`re on the jury. Nothing? That`s funny.

(END VIDEO CLIP)

SHARPTON: I mean, a joke in the middle of a murder, an awkward joke at
that? It didn`t seem to go over too well in the courtroom. And so much so
that he tried to patch things up and explain the unorthodox comment when he
came back. Listen. After break, he came back and tried to say this.

(BEGIN VIDEO CLIP)

WEST: No more bad jokes, I promise that. I`m convinced it was the deliver
delivery, though. I really thought that was sorry. I`m sorry if I
offended anyone about that.

My focus is on the detail. And if I have to sacrifice passion, it`s not
because I don`t feel passionate about this case. It`s been my life`s work
for the last year. But it`s because that`s not -- I don`t want that to get
in the way, even if it means it`s boring or somewhat technical. I want the
information before you that you may consider in evaluating the evidence.

Does something like this hurt the defense?

JENKINS: This was so beyond inappropriate, this is a murder trial where a
17-year-old teenager has been killed. I was stunned by it. I don`t think
O`Mara knew that this guy was going to get up and say that when he said it.

SHARPTON: O`Mara being his co-counsel for the defense, right?

JENKINS: He is co-counsel. I don`t think he knew because I think during
the break they had a discussion and after the break he came back and
apologize and he tried to give an explanation for it because it was so
inappropriate.

BLOOM: A discussion to put it mildly.

JENKINS: Right, to put it mildly. But he -- I think that they were so
taken aback by John Guy and his opening. And they wanted -- he wanted to
get up and change the mood and change the tone in the courtroom. So he
decides to tell a joke and it backfired completely.

SHARPTON: Lisa?

BLOOM: Yes. This was a very, very insensitive comment. Consider that
Trayvon Martin`s parents are sitting right there, and this is the first day
at trial.

SHARPTON: And you saw them wiping their eyes.

BLOOM: And you`re telling knock knock jokes? Are you kidding me? So, I`m
quite certain that at the lunch breaks behind closed doors the other
members of the team said you have to fix this. You really stepped in it.
You have to get back out there and apologize, and that`s what he did. And
to be fair, he did have another two and a half hours of his opening
statement where he did talk about the evidence.

SHARPTON: Now, Ken, how does that play in Florida?

PADOWITZ: Well, I`ll tell you how it plays in Florida. It`s as if I`m a
pilot flying a 747 and I get on the loudspeaker and I tell everyone on the
plane, hey, by the way, we just ran out of gas and we`re going to be crash
landing in the next few moments. Ha ha, it`s just a joke.

You know, what, a joke? This is going to be used in every law school in
the United States as what not to do in an opening statement in a trial of a
dead 17-year-old. You do not do this. This was not only insensitive, it
was just plain stupid.

And, you know, it`s easy to play Monday morning quarterback from a lawyer
sitting in front of a TV camera as opposed to a jury. But after 300 jury
trials, I can tell you I`ve never seen something so ridiculous in an
opening statement in a murder trial.

SHARPTON: Well, we`ll see how it affects down the road.

But, you know, the defense also tried, Ken, to keep the prosecutor from
saying certain words in their opening statement like profound or vigilante.
The defense lost that ruling. And here is what the prosecutor John Guy
told the jury.

(BEGIN VIDEO CLIP)

GUY: When he first saw Trayvon Martin, he didn`t see a kid from Miami
walking home from the 7-eleven. He profiled him. As someone who was to be
commit a crime in his neighborhood. He had just profiled, followed, and
murdered an unarmed teenager.

As he followed in the dark a 17-year-old boy who he didn`t know. He was
appointed the neighborhood watch coordinator. He was told do not be the
vigilante police. Don`t follow. Don`t confront.

(END VIDEO CLIP)

SHARPTON: How effective is that to a group of Florida women, all-women
jury. How effective is that, or ineffective is that in your opinion, Ken?

PADOWITZ: Well, I think it`s extremely effective. Trial lawyers are
artists in the courtroom. They use not paint, but they use words to paint
their picture. And he is using, this is prosecutor, a word that is highly
charged, especially amongst a women jury. Women -- as well as anyone can
understand being profiled. Women know what it`s like to be treated in the
workplace differently than a man. So I think those kind of words, those
$10 words I think are very powerful and really communicate to the jury
that, you know, a lot of different things that are important, the
prosecutor is trying to get here in making the argument to the jury.

SHARPTON: Lisa, the $10 words event effective?

BLOOM: I like the phrase $10 words. You know, I don`t know if it`s any
more effective with women than with men? Women jurors and men jurors tend
to decide things the same way. And I think ultimately it`s going to come
down to the forensic evidence. I was particularly moved today by the
prosecutor`s argument opening, for example, that George Zimmerman said that
Trayvon Martin had his hands over Zimmerman`s nose and mouth. Well, we
know that Zimmerman`s nose was bleeding, and yet there was no blood on
Trayvon Martin`s fingers nor on his fingernails nor on the cuffs of the two
shirts he was wearing. I thought that was powerful for the prosecution.

JENKINS: And it`s clear from opening statements today that the state is
going to put in some of George Zimmerman`s statements, and they`re going to
use his own words against him, because they outlined lie after lie,
inconsistency after inconsistency in his statements. So they`re going to
put those forward. And they`re going to stay he has lied in the past. He
hasn`t been honest. How can you believe anything he is telling you now?

SHARPTON: Hold it right there, Faith, Lisa, and Ken. Please stay with me.

Lots more to talk about.

Ahead, why did George Zimmerman`s defense team try to knock Trayvon
Martin`s parents out of the courtroom? A surprising twist that caught many
by surprise.

And Supreme Court justice Clarence Thomas compares affirmative action to
segregation. Unbelievable. The big ruling on affirmative action today.
We`ll have the news.

And remember, I want to hear from you. Send me your e-mails. "Reply Al"
is coming.

Stay with us.

(COMMERCIAL BREAK)

SHARPTON: A strange moment in the Zimmerman trial today. Why did his
lawyers ask for Trayvon Martin`s parents to be out of the courtroom?
That`s next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SYBRINA FULTON, TRAYVON MARTIN`S MOTHER: I ask that you pray for me and my
family because I don`t want any other mother to have to experience what I`m
going through now.

(END VIDEO CLIP)

SHARPTON: That was Trayvon Martin`s mother, Sybrina Fulton, before court
began earlier today.

One of the big moments in today`s proceedings involved her and Trayvon
Martin`s father. Mr. Zimmerman`s attorney argued they should be removed
from court. George Zimmerman`s parents and wife had already been ordered
to leave the courtroom because they may be called as witnesses by the
prosecution. Mr. Zimmerman`s lawyers wanted Trayvon Martin`s parents out
too. But the judge said the victim`s family must be allowed to remain in
the courtroom if they choose.

(BEGIN VIDEO CLIP)

JUDGE DEBRA NELSON, SEMINOLE CIRCUIT COURT: As far as the victim`s parents
or next of kin, they are allowed in. But the defense has to show some
prejudice to keep them out.

(END VIDEO CLIP)

SHARPTON: Back with me are Faith Jenkins, Lisa Bloom, and Ken Padowitz.

Lisa, let me start with you. George Zimmerman`s parents will not be in the
court, but Trayvon`s parents will be in attendance. How important is that
fact?

BLOOM: Well, first of all, it`s a very interesting legal quirk. It used
to be victims` had almost no right in the American court room. But now, in
Florida, they do have rights. And they have the right to be present. And
parents of a minor have the right to be present for all aspects of a trial.
That`s why they get to stay.

Everybody else who is a witness has to be excluded from the courtroom until
the rule of sequestration, until they testify, and then they can come in.
And the defense is concerned about how that looks. The defense doesn`t
want the jury to say, Trayvon Martin`s family is there, but there is nobody
here on George Zimmerman`s side showing him support. So they were trying
to get Zimmerman`s family in. But the judge said no, they may be
witnesses. They`re excluded until they testify.

SHARPTON: Now Trayvon`s mother at one point when one of the 911 calls was
played actually had to leave the courtroom. Is this something that could
impact a jury and that the defense is concerned about those ladies on the
jury looking at a mother having to go through this?

JENKINS: There is no doubt those jurors see Trayvon Martin`s parents
sitting in that courtroom, and they know about the emotional impact that
that can have. Five of six of these jurors are mothers. It is going to
resonate with them when they hear that a 17-year-old kid with nothing but
candy and a phone was killed while walking home from a store. So it is
going to have an emotional impact. But the prosecutor knows that what they
have in this case. The biggest thing they have in this case is the emotion
of Trayvon Martin being killed.

SHARPTON: Ken, the parents in or out. How important is that? You try
cases in Florida.

PADOWITZ: Absolutely. Well, Lisa Bloom is correct. In Florida, victims`
families are allowed to be present. And it`s a public courtroom. So
anyone could be there, especially non-witnesses. But family members
especially are entitled to be in that courtroom. And the prosecutor wants
those parents there because they`re the physical embodiment of the victim,
of Trayvon Martin. They represent their son. And the jury every time they
look over at those parents, they`re going to think of Trayvon Martin. So,
the prosecutor definitely wants that.

But we have to keep in mind the jury is going to do their best to base
their verdict on the evidence in this case. And the fact that the parents
are in the courtroom or not is going to be a minor role. But really the
important stuff in this case is going to be evidence in the form of
testimony and other evidence that is presented before the jury during the
trial.

SHARPTON: And that clearly, Lisa, was where the defense is going today
saying, I`m not going to deal with passion and emotion. I`m going give
evidence. Did he do that well? What were the stronger points for the
defense?

BLOOM: Well, like the jury, I`m interested in the forensic evidence too.
Most jurors really want to decide a case based on science. And I thought
the defense had a good answer. We`ll see if the evidence shows it. But
the defense`s answer as to why Trayvon Martin didn`t have blood on his
hands was because the hands weren`t properly bagged by the evidence
investigators according to the defense. Also, it was a rainy night. And
in general, the defense is going after the police, because as you will
recall, it was 44 days until the police ultimately brought charges against
George Zimmerman.

So, there was a lot of different things going on in the police department.
And I think the cross-examination of the police -- witnesses is going to be
interesting. O also thought the defense made a good point that Zimmerman
was very cooperative with the police. He answered all of their questions.
He submitted to all of their tests. He did not lawyer up right away.
Instead, he just sat with the police and told them what they asked of him.

SHARPTON: Faith, the prosecution claimed in the opening statement that Mr.
Zimmerman pressed the gun barrel into Trayvon Martin`s chest. But the
defense presented a conflicting theory. Watch this.

(BEGIN VIDEO CLIP)

WEST: As the hot gunpowder that is burning exits the muzzle o the gun, it
burns whatever it hits. It leaves marks. That means this irrefutably.
That the clothing Trayvon Martin was wearing was separated from his skin by
at least a certain amount, an inch or two or three. We have a contact
wound with -- or a contact with the fabric and not a contact with the skin.

So then you would say, I would think, how could that happen? Here`s how.
Just the way John good saw it. He saw Trayvon Martin straddling George
Zimmerman and leaning over him, hitting him or punching him or pushing him.
When you lean over, gravity pulls the fabric away. It separates, not like
this, but like this.

(END VIDEO CLIP)

SHARPTON: Faith, is that going to be something that is very helpful to
Zimmerman?

JENKINS: I thought that was a good point he made, because he talked about
the positioning and how Trayvon wore this sweatshirt. And it`s actually
conceivable that when Zimmerman put the gun up to him, it touched the
sweatshirt and not necessarily his body. It certainly contrasted the way
the prosecutor presented today this very the cold and callous manner the
way Zimmerman pulled the gun out, put it directly right up against his
chest and pulled the trigger. He is saying it didn`t happen that way. He
pulled it out. He had to shoot. He did what he had to do in the moment.

SHARPTON: Ken, does that follow a sequence of events that forensics will
decide whether or not whose theory is the accurate one?

PADOWITZ: Well, that`s an interesting question, because we can take
forensic evidence, and we can put a bunch of different spins or
perspectives on that evidence, and it`s going to be up to the jury to
decide which one is in fact correct, which one using their common sense and
experience makes sense, which scenario falls in line with not only that
evidence, but all the other evidence that they`re going to be hearing
during the course of the trial.

SHARPTON: Lisa, though, either theory, and we`ll see what happens, won`t
we, if we are on the defense side, have to, though, paint the picture that
this man had no alternative but to kill, not fight back, but to kill.

BLOOM: Yes.

SHARPTON: Let`s say you are losing the fight. Let`s say he was being hit.
You still got to establish to me why I had to kill you.

BLOOM: Yes. And the legal standard is he had to be in imminent danger of
great bodily harm or death. Add to that that George Zimmerman has given a
recorded statement that Trayvon Martin said you`re going to die tonight d
then some profanity. And that Trayvon Martin was reaching for the gun.
So, that`s the story they`re going to have to stick to. That`s the story
that the defense is going to have to sell to this jury, and they want all
of the forensics to be consistent with that.

SHARPTON: Faith Jenkins, Lisa Bloom and Ken Padowitz, we are certainly
going to be sticking with this story. Thanks for your time tonight.

BLOOM: Thank you.

SHARPTON: Still ahead, how each side today talked about the gun that was
used to kill Trayvon Martin. Very different arguments about why George
Zimmerman was armed.

Plus, the day`s other news, including a stunning claim from justice
Clarence Thomas in a key ruling over affirmative action.

Stay with us.

(COMMERCIAL BREAK)

SHARPTON: Day one in the Zimmerman murder trial, and already a key
argument, did George Zimmerman follow Trayvon Martin before he shot him?
We`ll talk about it next. Live with former prosecutor Marcia Clark. Stay
with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOHN GUY, PROSECUTOR: George Zimmerman did not shoot Trayvon Martin
because he had to.

DON WEST, GEORGE ZIMMERMAN`S ATTORNEY: George Zimmerman is not guilty of
murder.

GUY: He shot him for the worst of all reasons, because he wanted to.

WEST: He shot Trayvon Martin in self-defense after being viciously
attacked.

(END VIDEO CLIP)

SHARPTON: More than a year after the death of Trayvon Martin, the day that
so many people called for is here. Opening statements today in the trial
of George Zimmerman.

Joining me now is former prosecutor Marcia Clark and author of "Killer
Ambition." Marcia, so much anticipation for this trial. What did you make
of these opening statements?

MARCIA CLARK, FORMER PROSECUTOR: Well, I do see both sides delivered their
strongest punch. The prosecution came out swinging by quoting from George
Zimmerman`s 911 tapes, and the language that he used, I can`t use it on the
air, but f-ing, a-holes, is that close enough? I don`t know if that was
safe, indicating a mind-set by George Zimmerman showing that he was already
inclined to think the worst of Trayvon Martin from the first time he saw
him and called the police.

On the other hand, the defense was able to bring out and did bring out in
great detail the manner in which George Zimmerman suffered injuries and the
fact that it was possible that the voice we heard on the 911 tape screaming
for help could have been George Zimmerman`s given the nature of the
injuries that we eventually saw. So both sides came out swinging with
their most strong points. And even though the defense did unfortunately
tell a knock knock joke in the beginning that fell rather flat, I think the
jury was able to get past that and ultimately focus on the evidence. So
far, we`ll see what they actually turn up in the way of evidence.

SHARPTON: How important opening statements at trials in your judgment?

CLARK: You know, it`s a really good question, Reverend. I think they`re
good as road maps. But every judge makes it really clear that what the
lawyers say is not evidence. We can get up and say, everything we want
about what we intend to prove, and if we don`t prove it, it`s not proven.
That means it`s not evidence and our statements are not evidence. That
said we have seen that lawyers` opening evidence can be something that the
jury improperly relies upon and actually does consider as the evidence.

I point to Casey Anthony as an example of that in which she claimed that he
would prove that there was molestation by her father, and that the baby was
found in the pool. He didn`t prove any of that. And yet the jurors came
out talking about their suspicions about the father and about the baby
having possibly drowned. So, opening statements can be very telling.

SHARPTON: Now, they did get to some evidence today, both the prosecution
and defense are laying out two very different arguments about whether
George Zimmerman actually followed Trayvon Martin. Listen to this.

(BEGIN VIDEO CLIP)

GUY: Tell the officer to just call me and I`ll tell him where I am.
Because George Zimmerman was not going back to the mailboxes, and he wasn`t
going back to his car. He was going after Trayvon Martin.

WEST: There has been a lot of publicity, some of you may have even heard
it, that George Zimmerman was in his car and was told not to follow Trayvon
Martin and he did anyway. That is absolutely untrue.

(END VIDEO CLIP)

SHARPTON: Now what happens as we go forward with these two theories? One
will have to establish with the jury evidence to back up their theory on
this as opposed to the other, I would imagine.

CLARK: That`s right. And this is where the rubber meets the road. At the
end of the day, it`s going to come down to what happened in those crucial
moments. Number one, did George Zimmerman really follow Trayvon Martin?
We do have evidence on the prosecution side that is the girlfriend who was
on the phone with him at the time, and she will be a witness. And to the
extent she is a credible witness, she establishes because she will report
that Trayvon Martin said, why are you following me?

So that indicates he was being followed. But even after he has been
followed, then what happens? And what George Zimmerman claims so far from
what we`ve heard is that Trayvon Martin eventually turned on him and
attacked him. And that`s why he is claiming self-defense. But George
Zimmerman himself is going to have to sell that defense. He is going to
have to take the witness stand and establish that he was following or was
not following Trayvon Martin, but that Trayvon eventually turned on him,
because there is no other evidence to establish that, not completely. So
ultimately, the evidence is going to have to back both sides` claims about
what happened in those crucial moments.

SHARPTON: So you are saying that George Zimmerman is going to have to
testify to establish this self-defense, because last week his Attorney
O`Mara said he has not determined whether Zimmerman will testify. You`re
saying that that testimony is needed to establish self-defense?

CLARK: I`m saying, yes. No, he does not have to testify. That`s correct.
Legally speaking he can elect not to. He can elect to rest on the people`s
evidence. They don`t need to present anything. It`s not the defense
burden to present any evidence at all that said, I don`t see how he is
going to be able to sell a claim of self-defense to this jury given the
fact that he was armed, Trayvon Martin was not armed.

There is evidence to establish that he was following Trayvon Martin, that
the police told him not to look after, not to follow Trayvon Martin, and
that he did so. And unless he takes the stand or has some other kind of
compelling witness, and perhaps he does, we don`t know. But unless there
is some witness that shows Trayvon Martin actually attacking him, he is
going to have to take the stand and establish that fact.

SHARPTON: Marcia Clark, thanks for your time tonight.

CLARK: Thank you.

SHARPTON: Still ahead, Clarence Thomas compares affirmative action to
segregation. And remembering the moment 18 years ago tonight when Nelson
Mandela used sports to unite South Africa and heal the wounds of apartheid.

(COMMERCIAL BREAK)

SHARPTON: Eighteen years ago tonight, the world saw a game unite a nation.
South Africa`s national rugby team, the Springboks hosted New Zealand in
the final game of the Rugby World Cup. Just over a year after apartheid
had ended, the Springboks, who had only one nonwhite player were seen by
many black South Africans as representative of discrimination that they had
faced under apartheid. But Nelson Mandela just one year after becoming
South Africa`s first black president embraced the team as symbol of
national unity.

(BEGIN VIDEO CLIP)

NELSON MANDELA, FORMER SOUTH AFRICAN PRESIDENT: There is a real
possibility if we review our decision and accept that the Springbok for
Rugby as our symbol, we will unite the country.

(END VIDEO CLIP)

SHARPTON: The Springboks would win an overtime victory, with President
Mandela personally congratulating the team and its captain. President
Mandela`s relationship with the team`s captain would become the basis of
the 2009 film "Invictus" starring Morgan Freeman and Matt Damon.

(BEGIN VIDEO CLIP)

MORGAN FREEMAN, ACTOR: We need inspiration, Francois, because in order to
build our nation, we must all exceed our own expectations.

(END VIDEO CLIP)

SHARPTON: President Mandela`s appearance at the game has since been called
one of the greatest moments in sports history. Tonight President Mandela
is in critical condition. We`ll keep his words in our hearts as we send
his family our prayers.

(COMMERCIAL BREAK)

SHARPTON: Today the Supreme Court issued its long-awaited ruling on
affirmative action. But the courtside stepped a major decision and instead
sent the case back to a lower court for review. By opting not to make a
lasting decision o affirmative action, the court kept alive, at least for
now, the use of race to achieve diversity in college admissions. The only
dissenting opinion came from Liberal Justice Ruth Bader Ginsburg.

While Justice Elena Kagan recused herself from the vote. But Justice
Clarence Thomas issued a concurring opinion saying that affirmative action
should be abolished entirely. For now affirmative action is secure. But
what will the effect of this ruling be further down the line?

Joining me now is Jeffrey Rosen, law professor at George Washington
University and legal affairs editor at the new republic. Thank you for
coming back on the show.

JEFFREY ROSEN, PROFESSOR, GEORGE WASHINGTON UNIVERSITY: It`s a pleasure to
be here always.

SHARPTON: What is your reaction to the court`s decision today?

ROSEN: It was a great surprise. Like lots of people, I expected the court
to divide along ideological grounds and possibly to strike down or
dramatically narrow the possibility of affirmative action. But they didn`t
do that. They sent the case back to the lower courts. And in that sense,
it really is a tribute to Chief Justice John Roberts effort to get narrow
decisions that can attract liberal and conservative support. It was a
great thing that they did not overturn the Grutter case which allows
educational diversity...

SHARPTON: Right.

ROSEN: -- to be concurring interest in these cases. And, you know, we`ll
see what happens in the future. But it`s important to say, this is a good
decision for affirmative action.

SHARPTON: So for now, is affirmative action safe?

ROSEN: It is safe for now. It`s not to say it`s going to be safe next
year when the court hears a case about whether the voters of Michigan are
allowed to ban affirmative action.

SHARPTON: Right.

ROSEN: It certainly doesn`t even mean that this program at the University
of Texas will survive when it goes back to the lower court and the judges
take another look at it. But what it does mean is the universities across
the country can still use affirmative action as a way of achieving
educational diversity.

SHARPTON: Now saying that, and we`re going to talk in a minute about the
Michigan case, because that comes up in the next calendar in September, I
believe. But Justice Clarence Thomas, he came out. He concurred, but he
came out with a written opinion where he actually compared affirmative
action to segregation. He wrote, and I`m quoting from his writings, the
university`s professed good intentions cannot excuse its outright racial
discrimination anymore than such intentions justified the now denounced
arguments of slave holders and segregationist. Judge Clarence Thomas
compared people that support affirmative action to slave holders and
segregationists, Jeff.

ROSEN: He did. It`s a remarkable opinion, and it`s not the first time he
has made this comparison. In previous decisions he said I believe there is
a moral and constitutional equivalent between the arguments for affirmative
action and the arguments for slavery and segregation. What does he mean by
this? He says that the segregationists also said that segregation was good
for African-Americans, would avoid racial tension, would prepare African-
Americans to be leaders.

And he said these are just the same arguments people are making for
affirmative action today. He said slave holders said that slavery was a
positive good that would civilize African-Americans. Well, it`s a very
jarring, striking analogy. And Justice John Paul Stevens has completely
rejected the idea that there is a moral and constitutional equivalence
between affirmative action and slavery and segregation.

SHARPTON: Well, not only did he make that statement, since you talk about
the past, Clarence Thomas in the past has said things about affirmative
action. In 1983, when he was the chairman of equal employment opportunity
commission, in a speech to his staff, Clarence Thomas said that the laws of
affirmative action were of, quote, "Paramount importance to him." But for
them, God only knows where I would be today. These laws and the proper
application are all that stand between the first 17 years of my life and
the second 17 years.

Here is a man who benefitted from affirmative action, praised it, said how
it changed his life, and now he is comparing it to slave holders and
segregationists.

ROSEN: No doubt about it. And what is so striking about Justice Thomas`s
evolution on this question, he has never denied benefiting for affirmative
action. But increasingly, in his autobiography for example and his recent
judicial opinions he have said, it wasn`t worth it because I was
stigmatized. People can`t tell whether I did it on my own or not.

SHARPTON: I think affirmative action answers people being stigmatized
where they were excluded by race. That was government law. And you need
to undo government law with government law. It was the law that blacks
couldn`t go certain places. Jeffrey Rosen, good to have you on the show.
Thank you for your time tonight.

ROSEN: Thank you. As always, a real pleasure.

SHARPTON: We`re right back with "Reply Al." Remember, friend or foe, I
want to know.

(COMMERCIAL BREAK)

SHARPTON: It`s time for "Reply Al." Sharon writes, "Can someone please
identify the park ranger who stood to the left of Martin Luther King, Jr.
when he gave the I have a Dream Speech"?

Well, Sharon, that`s a tough one. But reports suggest that ranger was
Gordon Gundrum. He was 25 at the time, assigned to protect Dr. King.
Gundrum recalled the speech years later saying, quote, "He started
speaking. And it was amazing. It was transformed from a type of perhaps
festival type of atmosphere to almost religious. What he did that day I
felt was very close to God."

We`ll do our part to remember that historic day too. This morning, I
joined Martin Luther King III to announce our national action to realize
the dream.

(BEGIN VIDEO CLIP)

MARTIN LUTHER KING III, CEO, KING CENTER: I do believe that we will one
day realize the dream that our father envisioned for our nation. This is
not just a nostalgia visit, that this is not a commemoration but a
continuation and a call to action.

(END VIDEO CLIP)

SHARPTON: On Saturday, August 24th, we will take action and march to
commemorate 50 years since the original march on Washington. We`ll take
action to keep Dr. King`s dream moving forward. As we say, it`s not just a
commemoration but a continuation. Where are we going as a country 50 years
from now? Fifty years ago, black, white, Latino, others marched together
and got the `64 civil rights bill, the `65 voting rights bill.

We must continue the progress toward this nation coming together and living
up to the principles that our Dr. Kings and others gave their lives for.
We must make the dream a reality, not just rhetoric.

We want to answer your questions. So e-mail me, askrev@msnbc.com.
Remember, friend or foe, I want to know. Thanks for watching. I`m Al
Sharpton. "HARDBALL" starts right now.


END


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