updated 7/12/2013 10:29:19 AM ET 2013-07-12T14:29:19

HARDBALL
July 11, 2013
Guests: Alex Ferrer, Joseph Haynes Davis, Midwin Charles, Sam Stein

MICHAEL SMERCONISH, GUEST HOST: Let the closing arguments begin.

Let`s play HARDBALL.

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

Leading off tonight: Closing arguments in the George Zimmerman trial
capping off a dramatic day in court, Bernie De La Rionda of the state
delivering an emotionally charged final appeal to the jury to find
Zimmerman guilty of second degree murder.

It tied together virtually all of the elements and arguments that we`ve
seen them present in this case, including Zimmerman`s infamous profanity-
laced phone call to police which occurred when he spotted and tracked
Martin, the testimony of Martin`s friend, Rachel Jeantel, saying Martin
told her that Zimmerman was following him, and numerous questions about
Zimmerman`s account of the events that night. Their conclusion, that
Zimmerman profiled Martin as a criminal and killed him with ill will and
hatred.

Earlier in the day, a series of contentious exchanges over jury
instructions took center stage, specifically, rulings on whether or not the
jury would be allowed to consider lesser charges. Zimmerman was charged
with second degree murder and is pleading not guilty, claiming self-
defense. But Judge Nelson ruled today that the jury can also consider the
lesser charge of manslaughter.

Defense attorney Don West objected numerous times to these rulings, so
many, in fact, that at one point, the judge basically threatened him with
contempt.

But tomorrow, it will be West and the defense`s team who will make their
final case, and jury deliberations could begin as early as tomorrow.

For the latest, let`s get to MSNBC`s Craig Melvin outside the Florida
courthouse. Craig, what was the vibe in the courtroom? And specifically,
were you able to get a read on the jurors as they listened?

CRAIG MELVIN, NBC CORRESPONDENT: You know what, Mike? That`s exactly what
we`re trying to do. We`ve got lots of eyes and ears inside the courtroom.
We`re told that the jury itself was pretty captivated during Mr. De La
Rionda`s presentation. At one point, there was only one or two jurors
actually taking notes. The rest of them were sitting, listening
attentively.

Also, we can tell you that George Zimmerman during the course of all of
that -- you know, for the most part, in the course of this trial, he`s been
fairly stoic, unemotional, at times expressionless, even. There was one
point during that two-hour, 15-minute presentation where he was looking
down. He hung his head, as well. But for the most part, he was again
today fairly stoic.

But again, the jury, of course, six women, five of whom have children, at
the end of the day, after all of the analysis, after all of the
pontificating, these, of course, will be the folks who actually decide
George Zimmerman`s fate. They seem to be -- seem to be very engaged. The
courtroom itself today, as full as it`s been at any point during this
trial. In fact, it was so full inside today that Judge Nelson actually had
to create some more space, Mike.

SMERCONISH: There`s confusion about how the verdict will be delivered once
there is a verdict. Can you shed light on that?

MELVIN: Yes, you know what? Let me clear that up because, in fact, we
just got some information in regarding that. Just to give you some
background, earlier today, we were told by law enforcement -- law
enforcement telling NBC News that they were going to request that Judge
Nelson hold the verdict when it was reached until a weekday. Again, out of
an abundance of caution, if you will. That`s what they indicated to us
they were going to do.

No word on whether Judge Nelson ever even got that request, but a short
time ago, the public information officer here at the court telling NBC News
that if a verdict is reached this weekend, that the court is going to have
the verdict read that day. They are not going to be holding the verdict
here in Sanford, Florida. We`re also told that we should get -- we should
get about a 60-minute heads-up before that verdict is shared.

SMERCONISH: Craig, thanks for the report, as always. We appreciate it.

MELVIN: Thank you, Mike.

SMERCONISH: For more on today`s proceedings, I`m joined by MSNBC legal
analyst Lisa Bloom, former Florida circuit court judge Alex Ferrer, and
criminal defense attorney Joseph Haynes Davis.

Gang, in his closing arguments, prosecutor Bernie De La Rionda drove home
one message to the jury, that Zimmerman profiled Martin as a criminal. And
this is part of his argument to the jury.

(BEGIN VIDEO CLIP)

BERNIE DE LA RIONDA, PROSECUTOR: This innocent 17-year-old kid was
profiled as a criminal. To quote the defendant -- and pardon my language -
- he was one of those (EXPLETIVE DELETED) that get away. Pardon my
language. He was one of those (EXPLETIVE DELETED) punks. He uttered it
under his breath. And that itself indicates ill wit and hatred because in
his mind, he already assumed certain things, that Trayvon Martin was a
(EXPLETIVE DELETED) punk, and he was (EXPLETIVE DELETED) and he wasn`t
going to get away this time.

(END VIDEO CLIP)

MATTHEWS: Mr. Davis, he spoke of criminal profiling, not racial profiling.
But is that really the unsaid word in that courtroom? Is that the
implication of what the prosecution is staying?

JOSEPH HAYNES DAVIS, CRIMINAL DEFENSE ATTORNEY: Well, as I said before,
counselor -- and thank you for having me again today -- that race is
immutable. I mean, we see it. You know, in fact, you see it as we look at
the television at the panel here today with the diversity that you have put
together for this esteemed panel to discuss this matter.

So the fact of the matter is, again, that race is immutable, and that is an
underlying matter, probably. I mean, you know, let`s be serious. It is.

But on the other hand, I think that Mr. De La Rionda is trying to get to
the emotions of that jury, to let them know that we have a minor who was
unarmed, who was shot and killed. And he is trying to bring out those
elements of the second degree murder statute of this state so that they are
able to look at that, and that -- and quite frankly, they should look at
that only in making their decision with their deliberations.

SMERCONISH: In other words, Judge Alex, what he`s trying to do is meet
that element of an evil intention, which is required for a second degree
murder conviction.

ALEX FERRER, FMR. FLORIDA CIRCUIT COURT JUDGE: Absolutely. That`s what
he`s trying to do. I don`t think he has enough. I`ve said that, well, for
quite a while now. To the extent that the mutterings which occur when he`s
in the car and when he`s getting out of the car could be considered enough
evil will or ill will, evil intent and spite, they`re so far removed from
the shooting.

And Florida law says the act that results in a death has to be motivated by
ill will, hatred, spite, evil intent. And there`s this big thing that
happens in the middle, and that`s that fight, that fight that lasts a
considerable amount of time, that there`s a lot of screaming about and
there`s a lot of dispute about who started it.

And the burden of proving who started it and the burden of proving the
issue of whether it`s not self-defense rests squarely with the prosecution.
It`s hard for them to get around that, but they`re working with what they
have.

SMERCONISH: Lisa, you have focused our attention on the actual physical --
the physicality of that -- that scrimmage, that fight at the end. And
here`s what I`m referring to in terms of how it came up today. In his
closing arguments, De La Rionda also brought up this potentially key detail
of the screams in the background of that neighbor`s 911 call which the
defense claims were Zimmerman. Watch this.

(BEGIN VIDEO CLIP)

DE LA RIONDA: While we`re on that subject, the defendant claims that he
was the only one yelling out there. So all the cries for help were only
him. You`ve got to decide whether it was him or whether it was Trayvon
Martin or whether it was both of them. It had to be one of them, or both.

But if he`s yelling and if he`s down and he`s got all this blood and he`s
swallowing the blood, how`s he able to do all that? And why is there a
consistent in terms of yells of, Help, help, help? Why isn`t it muffled
down? (INAUDIBLE)

(END VIDEO CLIP)

SMERCONISH: Lisa, I thought that was compelling. How was he able to cry
for help, as we`ve heard on that 911 tape time and again, if it was George
Zimmerman, if, in fact, Trayvon Martin had his hands over his mouth and
nose?

LISA BLOOM, NBC LEGAL ANALYST: Well, because it was intermittent. That`s
going to be the defense argument, that the hand was there and that perhaps
he got away, that this was a dynamic situation and it was a fight.

I don`t particularly care for this closing argument style of asking jurors
questions instead of giving the prosecution theory of the case. He says,
Maybe it was one person, maybe it was two people. You can decide that.

This is closing argument. It`s time for the prosecution to have a theory
of the case. It`s time for the prosecutor to tell the jury there`s one
person who was yelling. That was Trayvon Martin. That was the victim in
this case, you know, to really put it away.

His style was to raise so many questions, if I`m the defense attorney, I`m
going to stand up and say, You know why he asked you all these questions?
Because this is a case about reasonable doubt, and I bet you still have a
lot of questions. And if you go back into that jury room with all of those
questions, you have to return a defense verdict.

SMERCONISH: All right, how effective do you think the prosecution was on
the issue that you`ve been raising about access to the weapon and
inconsistencies you`ve pointed out about George Zimmerman`s testimony?

BLOOM: Well, I was glad they raised it for the first time in this trial in
closing argument that George Zimmerman said that on the reenactment video
that the gun was holstered inside his pants, behind him. And at last, that
videotape was showed to the jury in closing argument.

But there were so many missed opportunities in this trial. For example,
when they`re working with the dummy to show that`s where the gun was
holstered, if I`m the prosecutor, I`m going to drive this home. This is
not going to be a question I`m going to let the jury linger with. I`m
going to say directly to the jury, it was impossible for Trayvon Martin to
see the gun and to reach for the gun. And that`s the most critical issue
in this case because all of self-defense depends on that.

SMERCONISH: Judge Alex...

BLOOM: He didn`t do that.

SMERCONISH: Judge Alex, Lisa`s pretty critical of the overall presentation
by the prosecution. How did you see it?

FERRER: I didn`t think it had the power it needed to have. The
prosecution`s got a difficult case, and they needed to have a very powerful
closing. But I think, you know, we`re not done. The prosecution has
tomorrow, and I think Guy`s closing will be much more powerful.

But I totally agree that when you`re telling the jury -- when you`re giving
the jury questions, all you`re saying is -- the defense is going to get up
there and say, You know why they`re asking you questions? Because they
don`t know either.

Just like when they asked DiMaio, You don`t know who threw the first punch.
The natural reaction is, Neither do you. And that`s the problem with the
prosecution`s case.

SMERCONISH: Mr. Davis, there was another aspect of the closing that came
up time and again. De La Rionda raised this potential inconsistency with
Zimmerman`s testimony to police that Trayvon Martin was circling the car.
Here`s part of it.

(BEGIN VIDEO CLIP)

DE LA RIONDA: Just as important is the fact that he`s saying this man,
Trayvon Martin, is circling his car. So he`s in such dire straights or so
(ph) fear (ph) that he gets out of the car to go follow him? So he`s
either truthful in saying he`s circling the car, or he`s lying about it.
Either way, it shows that he`s not telling the truth.

(END VIDEO CLIP)

SMERCONISH: Joseph Haynes Davis, how effective was that aspect of the
prosecutorial close?

DAVIS: Well, I think it`s very effective in the sense that -- and again,
I`ve mentioned this on the show before. I`m a concealed weapons holder, a
law-abiding gun owner here in the state of Florida. And when you are in a
situation like that, you have an opportunity to stay within your safe zone.
And that`s how I was trained in my training.

And I believe that in that instance, what the prosecutor is saying is that
if he`s in the car and someone`s circling your car, you have a chance on
the phone to say, Hey, look, he`s circling my car, and then drive away, or
move to another location where you can look to see where the signs are, the
signage is on the street, et cetera.

You are in your safe zone, so you don`t have to get out of the car. And I
think that that is what Mr. De La Rionda was possibly trying to get over to
the jury.

SMERCONISH: Lisa Bloom, Alex Ferrer and Joseph Haynes Davis are all
staying with us. And when we come back, we`ll take a closer look at the
often tense relationship between Judge Nelson and Zimmerman`s defense
attorney Don West.

This is HARDBALL, the place for politics.

(BEGIN VIDEO CLIP)

JUDGE DEBRA NELSON, FLORIDA CIRCUIT COURT: I`m asking your client -- your
client questions. Please, Mr. West.

DON WEST, ZIMMERMAN DEFENSE ATTORNEY: I object to the court inquiring of
Mr. Zimmerman as to his decision about whether or not to testify at this...

NELSON: Your objection is overruled!

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMERCONISH: Looks like New Yorkers are willing to give Eliot Spitzer a
second chance after all. A new poll by your New York station WNBC, along
with "The Wall Street Journal" and Marist, finds Spitzer out a 9-point lead
in the Democratic primary race for city comptroller. Now, tonight at
midnight is the deadline for Spitzer to turn in nearly 4,000 signatures to
city hall so that he can make the candidacy official.

We`ll be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

WEST: Your honor, we submit that`s an integral part of our theory of
defense and...

NELSON: And you can...

WEST: ... and the court commits error by not instructing the law -- this
jury properly on the law and...

NELSON: I understand. I`ve already ruled. And you have -- you
continually disagree with this court every time I make a ruling. I have
provided you on three separate occasions with the court`s professional
conduct in the courtroom, and included in that is, Do not continue to argue
with the court after we`ve ruled.

(END VIDEO CLIP)

SMERCONISH: Welcome back to HARDBALL. That was defense attorney Don West
and Judge Debra Nelson going back and forth earlier today in the latest of
what has been a series of tense exchanges throughout the trial.

And now, as the defense prepares its closing arguments, the question a lot
of people are asking is, could West`s apparently strained relationship with
the judge affect the trial?

We continue now with our panel, Lisa bloom, Alex Ferrer and Joseph Haynes
Davis.

Yesterday, Judge Nelson reminded George Zimmerman that he was not required
to testify. But when she asked whether he would like to, defense attorney
Don West cut in.

(BEGIN VIDEO CLIP)

NELSON: Mr. Zimmerman, have you made a decision to whether or not you want
to testify in this case?

GEORGE ZIMMERMAN, MURDER DEFENDANT: No, not at this time.

NELSON: OK. And when is it that -- how long do you think you need before
you make that decision?

WEST: Your honor, may we have an opportunity to speak? The case isn`t
concluded yet.

NELSON: I understand that. And I`ve asked Mr. Zimmerman if he needed more
time to talk to his attorneys, and if he does, I will afford it to him.
Mr. Zimmerman, how much more time do you think you`re going to need to
discuss this with your attorneys?

ZIMMERMAN: I assume it would depend on how long the recesses are, your
honor -- at the end of the day.

NELSON: OK. Well, if your attorneys have finished with two witnesses
before the end of the day, do you think that you would then know whether or
not you want to testify?

WEST: On Mr. Zimmerman`s behalf, that...

NELSON: I am asking your client -- your client questions. Please, Mr.
West.

WEST: I object to the court inquiring of Mr. Zimmerman as to his decision
about whether or not to testify at this...

NELSON: Your objection is overruled!

(END VIDEO CLIP)

SMERCONISH: Lisa Bloom, how much of this has played itself out in front of
the jury? For example, in that particular moment, the jury was not in that
courtroom. But there have been other instances where I`m sure they got the
vibe that all is not well between Judge Nelson and the defense counsel.

BLOOM: Right. This was not in front of the jury. And when he was talking
and talking and talking the other night and she got up and walked out of
the courtroom while he was talking, that was also not in front of the jury.
She has given some tough rulings on objections that he`s made in front of
the jury.

You know, I`m of two minds about it. Frankly, I like Don West a lot. I
think he`s an outstanding courtroom lawyer. He`s had some bad moments, the
knock-knock joke. But I`ve watched almost every minute of this trial, and
I think he`s really honed in on some details and shown high levels of
intelligence and aggressiveness for his client.

But bottom line is, right, when the judge is talking, you have to stop.
When the judge issues a ruling, you have to live with it. You don`t get to
keep arguing. And you certainly don`t get to object to things that the
judge is saying.

SMERCONISH: Judge Alex, here`s the moment that Lisa was referring to. On
Tuesday, Don West complained about the long hours and lack of time that the
defense team has had to go over evidence that it says the prosecution
withheld. Judge Nelson walked out of the courtroom.

(BEGIN VIDEO CLIP)

NELSON: See you at 8:00 in the morning.

WEST: Judge, I`m not physically able to keep up this pace much longer.
It`s 10:00 o`clock at night. We started this morning. We`ve had full days
every day, weekends, depositions at night.

UNIDENTIFIED MALE: Thank you.

(END VIDEO CLIP)

SMERCONISH: Judge Alex, I`d love to hear your perspective as a Florida
former circuit court judge about what you see in that dynamic.

FERRER: These two clearly have either a history or an undercurrent of
tension. It`s been there since pretrial motions. They don`t appear to
like each other, and it bubbles to the surface.

I can understand the defense`s position on that argument there because it`s
10:00 o`clock at night, and there is case law that says if you keep the
lawyers too late during trial and they can`t adequately prepare, it can
result in a retrial of the case.

But there`s a tension there that I think -- that exchange we saw between
the judge and West about whether or not Zimmerman was going to testify --
that was one of them pressing each other`s buttons. Neither one of them
had to do what they were doing at that particular moment, but they
intentionally were. And I think that just shows the undercurrent that`s
existed through.

SMERCONISH: So, Mr. Davis, based on your experience, how important is this
in the eyes of the jurors? In the end, do they discount this or they take
their lead from the individual sitting there wearing a robe?

JOSEPH HAYNES DAVIS, CRIMINAL DEFENSE ATTORNEY: Well, as counsel has said,
most of this has happened out of the eyes of the jury.

When the jury comes back, both parties, my esteemed colleague Mr. West, who
I agree with counsel saying that he`s a very good attorney, he`s board
certified in this area, and Judge Nelson, when they come back, they put on
-- quote, unquote -- "their game faces," and the jury is likely to never
know.

If the jury is able to pick up some tension throughout the trial, I believe
that the jury`s intelligent enough to know that that is part and parcel to
this very, very important case that is being presented in front of them.

SMERCONISH: Well, here`s -- here`s what I`m wondering, Lisa.

I would argue that Don West got off to a bad start with Judge Nelson with
that knock-knock joke that he made in his opening statement.

Here`s a reminder.

(BEGIN VIDEO CLIP)

DON WEST, ATTORNEY FOR GEORGE Zimmerman: Knock-knock. Who is there?
George Zimmerman. George Zimmerman who? All right. Good. You`re on the
jury.

Nothing?

(LAUGHTER)

WEST: That`s funny.

(END VIDEO CLIP)

SMERCONISH: He was criticized and he later did apologize for making the
joke.

Lisa, any possibility that from the get-go she just looked at that and
said, like, what is this guy doing in my courtroom?

BLOOM: I don`t think so. It was definitely a false note, but throughout
the testimony, I think he`s done a great job of remaining calm, asking very
intelligent questions, sometimes tying the witnesses up on knots,
particularly turning a number of prosecution witnesses into defense
witnesses.

And, look, this is a murder trial. It`s not a tea party. It`s not about
getting the judge to like you. And on the judge`s side, it`s not about
getting the attorneys to like you. He`s trying to defend his client and
he`s also trying to make a record in the event that his client is convicted
that can be used on appeal.

And to do that, he`s got to say certain things in the courtroom, even if he
thinks he`s going to get some pushback from the judge. And she makes
reference to the rules of professional conduct. He`s not going to be
censured. He`s not going to get in any trouble. He hasn`t actually
crossed that line, I don`t think.

SMERCONISH: I think the four of us are saying that the lawyering has
pretty strong in this case thus far.

Judge Alex, evaluate the response from the bench. How has she done, from
your perspective?

FERRER: Well, I can see times when she gets testy the defense, but,
honestly, a lot of times, people say, well, she always rules against the
defense. A lot of times, that`s because the defense is doing something
wrong.

If you remember, in the Casey Anthony case, judge -- I don`t remember the
judge`s name -- he`s a friend of mine -- the judge in that case ruled
against the defense over and over and over again, but that`s because the
defense was wrong. And so it`s not a matter of balancing things out. I
think that she`s a conscientious judge. She`s a bright judge. She`s tried
to do the right thing. I have disagreed with some of her rulings, but I
don`t see anything that`s overt animus in the sense of affecting the case.

SMERCONISH: OK. A real quick answer, real quick answer from you. Have
you seen anything in this case thus far that you regard as possible
reversible error?

FERRER: Have I?

SMERCONISH: Yes.

FERRER: Well, I think there`s a question about the special jury
instruction that the defense requested on provocation. There`s a case law
in point on that issue. I think she should have given that special
instruction, and she didn`t. That could come back to haunt her.

SMERCONISH: Lisa Bloom, Alex Ferrer, Joseph Haynes Davis all staying with
us.

Coming up, more on the Zimmerman trial. The prosecution is done.
Tomorrow, it`s the defense`s turn. What is the best case that they can
make?

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL.

Defense attorney Don West began his case with the now infamous knock-knock
joke. Tomorrow, the defense hopes to close on a stronger note than it
began. Nearly a three-week trial is now over, and this afternoon`s closing
arguments by the prosecution, so defense attorney Mark O`Mara will now be
trying to convince the jury that George Zimmerman is not guilty of
murdering Trayvon Martin.

Chances are we won`t see another knock-knock joke. How strong is the
defense`s case and what are the strongest points from the prosecution that
he will have to rebut?

We continue now with our panel of Lisa Bloom, Alex Ferrer, and Joseph
Haynes Davis. And we`re joined by criminal defense attorney Midwin
Charles.

All right, Midwin Charles, you are the defense attorney and tomorrow is
your day. What is most important for you to get across?

You know what? I`m not hearing Midwin Charles.

So, Lisa Bloom, you need to answer that question. You`re tomorrow`s
defense attorney. What are you going to do?

BLOOM: Well, first of all, I would start by saying that the prosecution
asked you a lot of questions in opening statement, and since they don`t
have the answers, you don`t have the answers. That`s reasonable doubt. I
really don`t even have to go on, but I will go on.

George Zimmerman told his story over and over again. Why? Why didn`t he
lawyer up? Because he had nothing to hide. And, sure, there are some
minor inconsistencies in his story. That`s to be expected any time a
traumatized person tells the same story over and over and over again in
detail.

But the central story never changed, that he killed in self-defense. That
story matches up with all the medical and scientific evidence. That is
testimony of Dr. Vincent Di Maio. And it has never been refuted in this
case.

The prosecution has the burden of proof to show you that this was not a
self-defense killing beyond a reasonable doubt. The prosecution has come
far away from getting that point across.

SMERCONISH: Midwin Charles, what did you see? If you`re the defense
lawyer, what did you see in the prosecution argument today that you need to
make sure you address?

MIDWIN CHARLES, CRIMINAL DEFENSE ATTORNEY: If I`m the defense lawyer, I
focus on the fact that it was all the questions that the state threw out.

I mean, if I were -- if I were the defense attorney, I would have my legal
intern go home tonight and go through all the number of questions that they
asked during their closing argument, which is not what you`re supposed to
do as a prosecutor. You`re supposed to say with certainty exactly how it
happened. How did the fight start? Who threw the first punch?

All we know for certain is how the fight ended. And that is one of the
biggest problems with today`s closing argument for the prosecution.

SMERCONISH: Judge Alex, I was a little surprised that the prosecutor, who
is going to get rebuttal time, did not focus more on the distinctions
between second-degree murder and manslaughter. They`re critical.

And let`s run through them both. To prove second-degree murder, the state
has to prove beyond a reasonable doubt that the defendant acted with a
depraved mind, without regard for human life, and that the act was done
from ill will, hatred, spite, or an evil intent.

They do not have to prove that there was intent to cause death, although
that is not really being debated in this case. Zimmerman is not contesting
that he shot Trayvon Martin.

To prove manslaughter, on the other hand, which is the lesser offense, they
have to prove the killing of a human being by the act, procurement or
culpable negligence of another, and that the act was not excusable, which
is another way of saying that it was not self-defense.

How are those definitions going to be utilized by the defense tomorrow and
then in the rebuttal by the prosecution?

FERRER: Well, let me clarify something. I don`t believe they`re going
under culpable negligence manslaughter.

And that`s because Florida has two different types, culpable negligence and
manslaughter by act. Culpable negligence is basically a higher level of
negligence. And they can`t proceed under that under the law, because it is
not what`s alleged in the information as an intentional crime. It`s not
alleged to be a negligent act.

Manslaughter by act basically is an unjustifiable killing. So what they`re
going to do is say this isn`t self-defense, and if it is not self-defense,
then it is by definition an unjustifiable killing and it is by definition
manslaughter.

And it all comes down to the jury deciding whether or not George Zimmerman
felt in fear of his life or serious bodily injury and whether that fear was
reasonable. If they say, then it`s self-defense and he`s acquitted. If
they say no, then it`s an unjustifiable killing and it`s manslaughter by
act.

SMERCONISH: Mr. Davis, I expected to hear from the prosecution today, and
maybe I will hear it in rebuttal, that part of the argument where he says
we believe we have proven beyond a reasonable doubt second-degree murder.

However, ladies and gentlemen, if you conclude otherwise, then you have
certainly got to find that manslaughter has been proven in this case.

Do you think that he went a little soft in that? And is he leaving
something in the tank, he the prosecutor, for his rebuttal time?

DAVIS: Well, most certainly, he may have missed the mark on that, as you
just alluded to, counsel, but it`s quite possible that they might need that
to bring it home, as they say, in rebuttal time.

They have their theory of the case. They are seasoned prosecutors. We are
all here discussing them in the Monday-morning quarterback mode for the
purposes of this show and so forth. But I would like to think that they
know what they are doing, and they`re going to do the job, as will Mr. West
and Mr. O`Mara, because they are all charged with the duty to act
professionally in the way that they are acting.

SMERCONISH: Midwin Charles, who makes the closing argument for the
defense? It was Don West who made the opening statement. He and Mark
O`Mara having been sharing responsibilities. How do you think they have
divvied up that responsibility?

CHARLES: I don`t know.

I say they go with the guy who did the opening. I think that was one of
the best openings that I saw.

SMERCONISH: Despite the joke.

CHARLES: Exactly.

(LAUGHTER)

CHARLES: Despite the joke, despite the joke.

I`m not sure. I think, between West and O`Mara, perhaps the jury may have
picked up on that undercurrent that they have with -- that he has with the
judge. So, I don`t know. Maybe Mark O`Mara might be the best person, but
I think Don West has been a consistent person in terms of the witnesses.
He has done a very good job of being able to turn state`s witnesses into
actual defense witnesses.

SMERCONISH: But, you know, Lisa, I think that they have clearly -- and I
said to you a couple of nights ago -- divvied this up good cop/bad cop kind
of thing.

When there`s heavy lifting to be done, it`s Don West. And I`m not
lessening the role that Mark O`Mara has played, but he`s the softer sell
kind of a guy. And I`m wondering if it won`t be him tomorrow who delivers
the closing argument for the defense.

BLOOM: I`m interested to hear that take from you. I don`t -- I don`t have
that impression. I think that they`re both outstanding attorneys.

We do -- we have heard that Mark O`Mara is doing the closing arguments.
That`s why he was out of the courtroom for a portion of the hearing today,
because he was preparing his closing. I think he is an extraordinarily
effective advocate in that courtroom, Mark O`Mara is. He`s the one who`s
been the most physical.

He`s the one that has been demonstrating with his own body, lying on the
ground, moving things around. Both of them can stay very, very calm in the
heat of battle just making their points one after another very
meticulously.

I have got to tell you, if law students are watching, you want to watch
Mark O`Mara`s closing argument. You want to watch both of these defense
attorneys throughout the trial. I thought they were at the top of their
game.

(CROSSTALK)

SMERCONISH: Lisa, did you find it unusual -- and it was about this time
last night -- that`s why it stands out in my mind -- that Mark O`Mara had a
press conference after they had rested their case and before he delivered a
closing argument?

BLOOM: Yes.

(CROSSTALK)

BLOOM: That is unusual.

(CROSSTALK)

BLOOM: The media strategy is a completely different topic. I don`t like
that he put his client on "Hannity." That was one of the biggest blunders,
because that`s when he said that the killing of Trayvon Martin was God`s
plan. And that`s clearly come back to bite him.

I don`t like that Mark O`Mara is doing nightly press conferences. But he
has the right to do it, and he`s doing it.

SMERCONISH: Lisa Bloom, thank you.

Alex Ferrer, Joseph Haynes Davis, and Midwin Charles, we appreciate all of
you.

CHARLES: Thank you.

SMERCONISH: Up next: Science fiction meets science fact.

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)

AMANDA DRURY, CNBC CORRESPONDENT: I`m Mandy Drury with your CNBC "Market
Wrap."

Well, the Dow soaring 169 points, the S&P up by 22, and the Nasdaq jumping
57, at record highs for the S&P and the Dow. Well, these big gains come
after Fed Chairman Ben Bernanke said yesterday the Central Bank would
continue its economic stimulus efforts for the foreseeable future.

Jobless claims rose unexpectedly, though, to a two-month high last week, up
by 16,000. And Microsoft shares are up after it announced a restructuring
that included the president of its Microsoft Office division retiring.

And that`s it from CNBC. We are first in business worldwide -- now it`s
back over to HARDBALL.

SMERCONISH: Back to HARDBALL. Now for the "Sideshow."

Believe it or not, it`s been a big week in Washington for science fiction
fans. But let`s start with some science fact. On Monday, two House
Democrats introduced bill HR-2617, otherwise known as the Apollo Lunar
Landing Legacy Act, which is intended to establish a national park on the
moon. The so-called moon bill has little chance of being enacted, but it`s
received a lot of attention and some mockery in the press over the last
several days.

It may not be a great leap or even a small step toward colonizing the moon
or creating a secret Death Star in space, but it has delighted some sci-fi
fans nonetheless.

Now, on to the science fiction part of the week. As fate would have it,
two days later, President Obama awarded George Lucas the National Medal of
Arts and Humanities. While he didn`t mention any future lunar ambitions in
his speech, he did diverge from his prepared remarks to reflect on the
legacy of "Star Wars."

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: I remember when I first saw
"Star Wars."

(LAUGHTER)

OBAMA: There`s a whole generation that thinks special effects always look
like they do today, but it used to be you would see like the string on the
little model spaceships.

(LAUGHTER)

OBAMA: Anyway, I`m being led astray.

(END VIDEO CLIP)

SMERCONISH: Much like the moon bill in Congress, Lucas` original idea for
"Star Wars" was met with skepticism at first, but he got it done with a mix
of good storytelling and innovative special effects.

So, that got us thinking may the moon bill supporters could repackage their
bill in a format more familiar to "Star Wars" fans in Congress.

And here`s what that might look like, enhanced with our own special
effects.

(VIDEO CLIP PLAYS)

SMERCONISH: Well, that`s just a taste. The entire bill would probably
take another five minutes.

Next up, it`s a lesson that many in Washington have learned the hard way.
You never cross the Clintons. But teen pop idol Justin Bieber got himself
in hot water when he did just that. TMZ released a video that appears to
show the wayward youth cursing out a photograph of President Clinton.

But the juvenile showed contrition today, apologizing to the former
president in a phone conversation, and then tweeting, "Thanks for taking
the time to talk, Mr. President. Your words meant a lot, #greatguy." "E
Online" reports that the forgiving former president had just one piece of
advice to Bieber: don`t trust friends who leak videos to TMZ.

Up next, our series "The Unkindest Cut", and how Congress` across-the-board
spending cuts aren`t hurting in Washington, but outside the Beltway. It`s
a very different story.

This is HARDBALL, the place for politics.

(COMMERCIAL BREAK)

SMERCONISH: Here`s a tidbit of Hillary Clinton news that maybe be as
significant as anything we have heard so far. Top aides from the Obama
campaign are joining up with the Ready for Hillary PAC, the group that`s
promoting a presidential campaign by the former secretary of state. The
firm is called 270 Strategies and it`s run by the top two field aides from
the Obama campaign. And the news is being seen as a sign that Obama world
is embracing a potential Clinton candidacy in 2016.

We`ll be right back.

(COMMERCIAL BREAK)

SMERCONISH: Welcome back to HARDBALL.

We`ve been shining a light on the people and organizations hurt most by the
across the board, arbitrary spending cuts known as the sequester, in a
series segment that we called "The Unkindest Cut."

In "The Huffington Post," reporter Sam Stein has been doing the same
things. This week, one of the programs that he focused on was Head Start.

As you can see from these headlines, the cuts that are affecting people
across the country -- in Ohio, Minnesota, Alabama, and New York state. In
Washington, Defense Secretary Chuck Hagel outlined the damaging effects
these sequestered cuts will have in his area, national security. In a
letter to Senators Carl Levin and James Inhofe of the Senate Armed Services
Committee, he wrote, "If the cuts continue, the department will have to
make sharp cuts with far-reaching consequences, including limiting combat
power, reducing readiness and undermining the national security interests
of the United States."

The defense secretary carries a lot of clout, but who`s the equivalent
advocate for the disenfranchised who depend on programs like Meals on
Wheels and Head Start?

Sam Stein covers politics for "The Huffington Post."

Joan Walsh is an MSNBC political analyst and editor at large for "Salon."

Sam, as I read your piece, I was thinking to myself that the pain was so
scattered that politically speaking, maybe that`s a reason for a lack of
mobilization thus far. Small groups are what you document who are feeling
significant pain, but there doesn`t seem to be anything or anybody tying
them all together.

SAM STEIN, THE HUFFINGTON POST: Yes, you have a very valid point. There
is an organization in Washington, D.C. called NDD, which advocates on
behalf of those group affected by the non-defense discretionary cuts by
sequestration. But you`re right, I think the pain is so scattered that
we`re not really seeing a mobilized effort to get these cuts replaced.

The other problem that`s happening is a lot of these groups, including Head
Start organizations, are doing everything they can do backload all of the
pain. And by that, they`re putting off the suffering, and making sure that
parents in the system stay in the system and they`re making sure and
they`re ensuring that parents who want to get in the system don`t get into
the system. And that helps those people who are dependent on these
programs, but has a perverse political effect as well, which is that the
pain and suffering is less visible to the lawmakers who would actually have
the authority to get these cuts reversed.

And so --

SMERCONISH: And, Joan Walsh, I think in the country, there`s the
impression that we gave a sequester and nobody came. That we heard these
stories of all that was going to unfold -- but people really haven`t seen
evidence. I mean, beyond Sam`s work and beyond what Chris has been doing
here on HARDBALL, I don`t know that the media has been making the case for
the fact that it`s real.

JOAN WALSH, SALON.COM: No. And you see a lot of kind of savvy journalists
saying, oh, nothing happened, and it`s not a big deal, and liberals lied or
liberals exaggerated, but the face of the cuts are very real. And so, I
just want to congratulate Sam for doing a great job, because none of us do
that kind of journalism often enough. And he makes it vivid.

But, you know, Head Start has never been fully funded. Head Start only
served half or less half of the eligible kids, Michael. So it`s never had
effective lobbying -- never had effective advocacy.

And Sam is also right in that what they are doing is serving the kids
already in the pipeline, and God bless them for that, that`s the right
thing to do. But, you know, you don`t necessarily hear the outcry for
somebody who didn`t get something, as opposed to somebody who got kicked
out of something, or got something taken away.

SMERCONISH: Well, Sam, let me ask you, what about the prospect of Chuck
Hagel becoming a champion indirectly for the social programs that you`ve
written effectively about? In other words, how could the Congress restore
some of the funding for the Defense Department, for the Pentagon, without
also addressing these shortcomings?

STEIN: It`s a great question. The only time that Congress has acted has
been when the pain has been acute to them. And, by that, I mean, the FAA
furloughs that happened, which were causing flight delays. Also, the meat
inspectors got their furloughs canceled as well.

But you haven`t had that suffering that sort of acute suffering that has
been so big and vivid that it`s compelled people to act. And, again, part
of the reason is that a lot of the stuff is going to be felt 10 years down
the road.

I was at a meeting the other day with a bunch of academic researchers, who
were talking about this, about the affect that grant money reductions are
going to have in their field. And they said, yes, we have the technology
right now where if you have a heart attack, we can fix that. But if you
want heart therapies that will prolong your life for 20 years, we`re
developing those.

And without the grant money from the government, we`re never going to have
those drugs developed. So, that`s the type of effect that we`re talking
about in sequestration, stuff that happens 10, 15, 20 years down of the
road.

SMERCONISH: Joan Walsh, has there been a failure on the left to champion
these issues?

WALSH: I`d like to see more coming from the White House. I think it`s a
great idea, Michael. I`d love to see Secretary Hagel include some Head
Start funding and make the case that our children are a national security
issue and what we`re doing to our children makes us less safe down the
line.

But, you know, there hasn`t been nearly a enough attention paid to this.
And I think that once they took the FAA -- once they let people fly again,
the lawmakers could fly again safely and on time, all of the urgency went
away. And it`s really quite disappointing and quite tragic.

SMERCONISH: Sam, give us the cliff notes version anecdotally of something
that you`ve seen in your reporting thus far, that people who haven`t read
your work would understand.

STEIN: Oh, God, there is so much of it. Public defenders, for instance,
are one of the things that no one really knows about. Public defenders
play a huge role.

I talked to a bunch of public defenders who are now going without
investigators for their defense work. Can you imagine a lawyer without an
investigator to do his or her work? It`s not really a defense.

We`re doing an article now on stream gauges which around the country help
us prepare for flood awareness and flooding. There are about 80 stream
gauges that are un-operational because of sequestration. So, imagine if
you`re in a community that is prone to flooding and doesn`t have a stream
gauge, that`s a really frightening aspect.

So, these things are happening all across the country, it`s just no one has
put them comprehensively together to say this is what`s taking $85 million
out of the economy looks like.

SMERCONISH: And is the worst still to come? In other words, I heard you
say --

STEIN: Oh, yes.

SMERCONISH: -- that they have been back-loading some of the impact of
this. And I assume that`s because they hope there will be a political fix
that will forestall those cuts. Is the worse --

STEIN: Oh, yes, that was the idea going into. They`re going to back-load
everything, because, of course, Congress would act three months in when
they realized how bad it was. But, again, like I said, there was a
perverse outcome to that, which is that Congress then sort of ignored it.
They assumed it wasn`t that big of a deal.

WALSH: Sam has got a great anecdote, too, of a -- I think it`s Kansas
congressman telling this poor Head Start mom that what she really needs to
do is get money from rich people. This is a federal program. This is one
of our few federal programs to help poor children, and now she is supposed
to go fundraise, in addition to raising her child and getting child care
and going to work. She`s supposed to go to rich people to get this money.

STEIN: There is a good quote of the story. Several hours after our report
came out, that mother and her 13 other colleagues in the Head Start program
were accepted into the public school program. Again, people in the system
are being taken care of.

They`re being accommodated. But the waiting list to get into Head Start
now is astronomically larger. And that program will never reopen, and the
teachers who are part of that program will never get their jobs back.

SMERCONISH: Sam, we just have 20 seconds left. Who is on top of this?
Who is championing this cause, if anyone? Who are you looking to for
leadership?

STEIN: Well, you know, obviously there is members in the Congress who are
out there. Chris Van Hollen, for instance, Rosa DeLauro on Head Start, for
instance. And, ironically, if you get members of Congress back in their
districts, they will all bemoan sequestration and the cuts they have had.
Even the most fiscally conservative ones will say this was a dumb idea.

SMERCONISH: Got it. Sam Stein --

(CROSSTALK)

STEIN: It`s always been finding a solution that doesn`t involve
(INAUDIBLE) from them.

SMERCONISH: Thank you, Sam. Thank you, Sam Stein. Thank you, Joan Walsh.
And thank you to the viewers who tweeted us with their examples of how
these cuts are hurting them.

Chris W, for example, tweets, "I work at Oasis Youth Center in Tacoma,
Washington. We provide key services to LGBT youth, 14 to 24. Our funding
has been slashed."

And we want to hear from more of you about how Congress cuts are affecting
you. Tweet us with the #unkindestcut, or go to our Facebook page,
Facebook.com/hardball.

We`ll be right back after this.

(COMMERCIAL BREAK)

SMERCONISH: Let me finish tonight with this:

Yesterday, as we discussed on the program, the Washington D.C. City Council
has voted to impose a higher minimum wage on large retailers -- retailers
with corporate sales of $1 billion or more and operating in spaces 75,000
square feet or larger. But it`s really all about Walmart.

So, where the federal minimum wage is $7.25, and where Washington D.C. has
its own minimum wage of $8.25, now, Walmart will need to pay a super
minimum wage of $12.50. And Walmart is saying that if this is signed into
law, Walmart will stop construction on planned stores in the District.

In the U.S., the average wage for a full-time hourly, Wal-Mart associate is
about $12.57, according to the company. That`s about $25,000 a year at 40
hours a week, or just above the federal poverty level of $23,050 for a
family of four. But many part-time workers at the company make little more
than the minimum wage.

Proponents say that where Walmart reported a net income of $17 billion in
sales of $470 billion in its most recent fiscal year, it could afford to
pay better wages.

I don`t find that persuasive. Walmart`s ability to pay a super minimum
wage is no more justification for paying it than would be allowing an
unsuccessful business to pay less than a minimum wage.

I get that Walmart, started by an American entrepreneur, Sam Walton, has
grown so large as to make it very difficult for today`s entrepreneurs to
compete against it.

But the business was born in a competitive marketplace, and that`s the same
environment -- not the halls of government -- in which Walmart should have
to justify its continued success.

If consumers believe that Walmart destroys more jobs than it creates, or
that Walmart causes its own employees to require public assistance, or
makes it impossible for mom and pop businesses to compete on Main Street,
they should vote with their wallets. Walmart is nothing without the
consumers who support it.

But the solution is not for government to single out an American business,
any American business, for punitive treatment.

D.C. Mayor Vincent Gray should use his power and veto the bill.

I personally don`t like the way these box stores homogenize all of our
hometowns. When each has a Walmart, a Rite Aid, a McDonalds and Starbucks,
they lose their individual identity. But the market should sort that out.

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.
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