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George Zimmerman on Trial; Prosecution Witness with Unexpected Notes; Testimony from Trayvon Martin's Mother; Violence Erupting in Egyptian Streets

Aired July 05, 2013 - 12:00   ET

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

(COMMERCIAL BREAK)

ASHLEIGH BANFIELD, CNN ANCHOR: Welcome back to the live coverage here in Sanford, Florida in the George Zimmerman second-degree murder trial. We've been saying all along that the prosecution's case in chief is coming to a close more than likely today. Prosecutors will rest, and more than likely today defense attorneys will ask that judge to rule and just shut this whole thing down. That's because they often say there isn't enough evidence, Judge, there isn't enough evidence that the prosecutors have put forth in their case to even give it to the jury. Let the jurors go home. Let's close this down.

Here's my guess. This is such a political case the judge will likely not do a summary rule from the bench. That's just my guess.

But I want to bring in some of our better attorneys on the case to really dig deep and dive deep into what just happened. And if this is the final witness, is this the powerful witness that the prosecutors would have wanted to end on or is it all of a sudden becoming a damaging witness for them.

Jeff Gold, you're a former prosecutor. I can't imagine what the prosecutors are going through right now watching their witness all of a sudden sweating and wiping his brow as they take his personal notes away and get copies and smile about it. Tell me what's going through this witness' mind and what's going through your mind as a prosecutor.

JEFF GOLD, FORMER PROSECUTOR: Well, first is to me. I mean I've heard question, why not put the mom on last because she had short testimony and it was emotional and brought us back to Trayvon Martin? But, instead, they put on an expert. And these experts always have issues because they want to testify, you know, as if they are lecturing, and they can't.

In this case, they want to make their own rules, which is to bring in their notes. And guess what's coming? The defense has an expert who has written the book on pathology. Vincent Demayo (ph). I mean, in comparison to what they're putting on last, this is the way they want to leave the jury? It's almost incredible to me.

I think he's doing a poor job and right now just the fact of the notes, regardless of whether there's anything in there damaging or not, the fact that they had a break because of it makes the state look bad on their last witness.

BANFIELD: Midwin Charles, I want you to jump in here please for me, let me know your thoughts about this. You are a tough defender, my friend. Would you not be a little delighted at this point to find some fresh new discovery that no one expected to come in?

MIDWIN CHARLES, CNN LEGAL ANALYST: Oh, I'd be doing a dance of joy. I mean, I have to ask this -- I wonder if this is Dr. Bao's first time at the rodeo. I mean how can he not know as a medical examiner, who probably has testified before in trials, that you cannot do this. That these kinds of notes are obviously discoverable, particularly if you refer to them on the stand. I mean, this is just -- And we've seen this before with the prosecution. They are not doing a good job of working with their witnesses and preparing them for trial and what the rules are. I am very surprised, very shocked. And this does not bode well at all for the prosecution. It really doesn't.

BANFIELD: So, Faith Jenkins, I ask you to do this a lot, throw on that former prosecutor hat when you were with the Manhattan DA and tell me, did you expect to see something like this from a medical examiner? Because I've got to be honest, in all the trials I've covered, and all the M.E.'s that I've heard testify, I have never heard so many I don't remember if I didn't write the notes. It just felt a little different.

FAITH JENKINS, ATTORNEY: Well, he's being very specific here. He does not want to testify about anything that he did not put in his report because what you find with medical professionals, medical examiner, they see so many different people, so many different patients that they often times don't remember people specifically. But he's being very careful. He does not want to assume or make any assumptions based on anything that's not in his notes. Well, then he pulls out his notes and the defense attorney finds out he hasn't seen these specific notes, and that's why you're having a break here.

But, at the end of the day, you see what Don West is doing. He is trying to get to a core issue in their strategy, in their defense here, which is to pick apart the preservation of the evidence. Was the evidence properly preserved? Is there an explanation as to why there isn't any DNA or blood on Trayvon Martin's hands given the level of violence George Zimmerman said occurred in the altercation between him and Trayvon Martin?

BANFIELD: Faith, you're a smart lawyer. You go right to the details and the devil's often in the details. And here's another issue when it comes to courtroom action. And Paul Callan, I want you to come in on this, and that is demeanor. Not just the demeanor of the witness answering questions, but demeanor --

JENKINS: Thank you.

BANFIELD: Of the attorneys asking those questions as well and the repartee between attorneys and witnesses and the judge. And there was something going down in that courtroom within the last hour that started to feel a little bit awkward. It was contentious and I want to get you to watch this tape, along with the audience, and then let me know, as a former prosecutor and as a defense attorney, whether you think it was good or bad for this case. Have a look.

(BEGIN VIDEO CLIP)

JUDGE DEBRA NELSON: And I've said this before, we have to allow the court reporter to take one person speaking down at a time. So if you will please, after your question, allow Dr. Bao to answer. Dr. Bao, after you have answered, wait for the next question.

UNIDENTIFIED MALE: OK. No problem.

NELSON: Thank you. You may proceed.

UNIDENTIFIED MALE: So, I just --

UNIDENTIFIED MALE: Why the --

(CROSS TALK)

NELSON: Wait. Again --

UNIDENTIFIED MALE: Let me just tell you why --

NELSON: Stop.

UNIDENTIFIED MALE: May I ask the questions, your honor.

UNIDENTIFIED MALE: Yes, I need to answer your first question.

NELSON: OK. Dr. Bao, please wait. There's another question. If he -- if he has not finished answering your first question --

UNIDENTIFIED MALE: Yes.

NELSON: He will be allowed to do so. So please wait for you question until he finishes his answer.

UNIDENTIFIED MALE: OK.

UNIDENTIFIED MALE: I tried.

UNIDENTIFIED MALE: Could -- could -- could we read the question back. Because I think it was a yes or no question.

UNIDENTIFIED MALE: I didn't explain to the jury why this happened. Why --

UNIDENTIFIED MALE: Your honor, may the witness be --

UNIDENTIFIED MALE: Why I cannot remember anything on the day of autopsy and other people can remember. So I did (INAUDIBLE) study and I tried many times myself two days -- a few days before your deposition, which is nine months after my autopsy. I came to my office --

UNIDENTIFIED MALE: Your honor.

UNIDENTIFIED MALE: Around 8:00 a.m. --

UNIDENTIFIED MALE: I'm sorry, this is not responsive to the question.

UNIDENTIFIED MALE: May I explain why I do not remember. I've put everything in front of me, the autopsy reports --

UNIDENTIFIED MALE: Your honor, would the --

UNIDENTIFIED MALE: The notes, the photos.

UNIDENTIFIED MALE: Would court please ask the question to respond to the question.

UNIDENTIFIED MALE: I try very hard. I cannot remember.

NELSON: OK. Once more, we cannot interrupt each other. Dr. Bao, are you finished with your -- with your answer?

UNIDENTIFIED MALE: I need to explain to the jury.

NELSON: OK, but you have. So are -- we're ready for the next question.

(END VIDEO CLIP)

BANFIELD: OK, so the devil's in the details. It sometimes is bedeviling to get those details. Paul Callan, that was uncomfortable. Don West came off as a little rough and gruff. But then this witness, Dr. Shiping Bao, came off as almost sweating (ph) getting the information out.

PAUL CALLAN, CNN LEGAL ANALYST: Well, Dr. Bao kind of saved West in the end. I feel West's pain because West thought he was going to be cross examining sort of a consument (ph) professional. A lot of these medical examiners are very brief and to the point and they're not very revealing.

Bao is testifying like he just fell off a turnip truck. He's talking about, well, let me refer to my notes on human memory. He's got some article in front of him about the human memory. And heaven only knows what's in his handwritten notes, which, by the way, might include something we call "Brady material." If there's material in those written notes that in some way help the defense exonerate Zimmerman, there's going to be a major uproar in this trial. And for him to have blurted out that he's got notes, and it sounds to me like there are probably a lot of notes, it's a big development.

You know, West starts to look bad when he argues with the judge --

BANFIELD: Yes, and I -- yes, did you see the smile on Mark O'Mara face? I mean, honestly, when they took those notes back to the defense table and co-counsel started looking at them with him, wow, you could almost (INAUDIBLE) the words.

CALLAN: They're astounded by this. And I'll tell you, the other thing, we were talking about demeanor in the courtroom. I've been watching this sort of set-up. You know, O'Mara is like Gregory Peck in "To Kill a Mockingbird." He's sort of the nice, polite guy, although if you listen to his cross-examination, it's usually very probing and very revealing. West, on the other hand, is the tough guy. This is the good guy, bad guy routine. And West is the one who always has to take the flak from the judge because he's going in on some of the harder areas of the case. But the two of them together are presenting -- they're getting their points across to the jury, I think, and --

BANFIELD: Hey, Paul?

CALLAN: Yes.

BANFIELD: Exactly to that point, can I ask you something that I saw, and I don't know I have ever seen this before. I commented out loud in the room when I saw it. Mark O'Mara, who is very folksy and, you're right, he's very Gregory Peck like, but he stood up and wanted to ask Sybrina Fulton a cross-examination question right off the bat, but prefaced it with trying to say, I'm sorry for your loss. It's like -- it's this strategy that I have seen in every case. You always apologize to the mother of the victim first. And I have never seen it objected to. It was objected to and sustained. He wasn't even allowed to apologize and tell her that he was sorry for her loss. Did you find that odd?

CALLAN: Well, if I -- I didn't because the -- and you're right, usually prosecutors, they just let it go because, I mean, what's the point, you know? But the judge was right, it's an improper thing to say. Whether he's sorry or happy about what happened is not relevant to the case. The only thing that's relevant to the case is the evidence. So the judge's ruling is correct. And -- but you're right, usually when it's said, they just let it pass and they move on. A lot of things like that happen in trials.

BANFIELD: I've always heard it pass. You know, I have always heard that pass. It's a delicate moment in a courtroom. These are human beings we're dealing with and I have always let -- seen that let pass. So I was fascinated. But, listen, Judge Debra Nelson, there's no flies on her. She is on it. She's on every moment of this case and nothing gets past her, it seems.

Hold for a second, Paul Callan, if you will. We just talked about Sybrina Fulton, the mother of Trayvon Martin, and how she was cross examined and how she did on the stand. And coming up after the break, if you missed it, you're going to see it again. The mother of Trayvon Martin coming in we think as the penultimate witness in this case and how she managed as she was asked some of the most difficult questions she will ever be asked in her life. It's coming up right after this.

(COMMERCIAL BREAK)

BANFIELD: As it often does midday in Florida, in early July, the rain is coming down hard in Seminole County. You can see behind me as the mid-morning storms come in.

But let me tell you, it was -- it was a sad and very emotional moment in a courtroom as the mother of Trayvon Martin was called as the first witness of the day as the case in chief for the prosecution starts to wrap for a close. She walked through those doors. She walked up to the stand. She swore in. She took the stand. She's dressed beautifully. She had a demeanor that was so stoic. And then she had to answer the questions she knew were coming, but it doesn't make them any less difficult to take.

I want to play for you exactly how this played out this morning as the mother of Trayvon Martin had to identify the screams on a 911 call. Have a listen.

(BEGIN VIDEO CLIP)

BERNIE DE LA RIONDA, PROSECUTOR: While he was growing up, and while you were raising him, had you ever heard him crying or yelling?

SYBRINA FULTON, TRAYVON MARTIN'S MOTHER: Yes.

DE LA RIONDA: OK. I want to play a recording for you, ma'am.

911 OPERATOR: 911, do you need police, fire or medical?

UNIDENTIFIED FEMALE: Um, maybe both. I'm not sure. There's just someone screaming outside.

911 OPERATOR: OK, what's the address that they're near?

UNIDENTIFIED FEMALE: 2011 (ph) Twin Trees Lane.

911 OPERATOR: Twin Trees Lane? Is this in the (INAUDIBLE) town homes in Sanford?

UNIDENTIFIED FEMALE: Yes.

911 OPERATOR: OK. And is it a male or female?

UNIDENTIFIED FEMALE: It sounds like a male.

911 OPERATOR: And you don't know why?

UNIDENTIFIED FEMALE: I don't know why. I think they're yelling help, but I don't know. Just send someone quick, please.

911 OPERATOR: Does he look hurt to you?

UNIDENTIFIED FEMALE: I can't see him. I don't want to go out there. I don't know what's going on.

UNIDENTIFIED MALE: (INAUDIBLE).

UNIDENTIFIED FEMALE: They're sending them.

911 OPERATOR: So you think he's yelling help?

UNIDENTIFIED FEMALE: Yes. All right, what is your --

UNIDENTIFIED MALE: (INAUDIBLE).

UNIDENTIFIED FEMALE: There's gunshots.

911 OPERATOR: You just heard gunshots?

UNIDENTIFIED FEMALE: Yes.

DE LA RIONDA: Ma'am, that screaming or yelling, do you recognize that?

FULTON: Yes.

DE LA RIONDA: And who do you recognize that to be, ma'am?

FULTON: Trayvon Benjamin Martin.

(END VIDEO CLIP)

BANFIELD: Cannot imagine what that would be like for a mother to have to recount the name of your deceased son. In fact, now dead almost, what, a year and four months by my count. She has had to live with this. She's had to live with the coverage of this and she's had to live with the notion that she is going to take the stand and have to testify and listen to that tape again.

Mark Nejame, you have covered so many trials in south Florida. You have been all over Florida, in fact. This is one for the record books. Everyone's watching. In fact, I think someone tweeted to us that they're gripped by this in France. They're gripped by all of it. She knows that she is under the microscope. She was so stoic. My question is, she's a mother of a dead teenager. Did the jury expect anything else from her? Did they expect devastation? Did they expect emotion? Did they expect the stoicism? Does any of that matter?

MARK NEJAME, CRIMINAL DEFENSE ATTORNEY: All this was discussed with the prosecutor. He has said be honest, be natural but be yourself. But, yes, I'm sure he guided her, navigated her as to what they wanted to impress the juries with. So, you know, whether they wanted her to be overly emotional or whether they wanted her to be the strong matriarch, I suspect there were some discussions about that.

But, remember, this is going to be counterbalanced because you're going to have George Zimmerman's family take the stand when the defense puts on its case and say that was George Zimmerman's voice. So I think that in a lot of ways this testimony, as well as George Zimmerman's testimony from his family, will be neutralized because it's anticipated that both sides will basically hear what they want to hear.

BANFIELD: Well, you know what? I want -- Faith, jump in on this.

Look, you and I have looked at these cases and we've seen parents get up on the stand. Here we have the mother of a teenager who was shot dead only having gone out for Skittles that night. Do we need to see the mother of George Zimmerman? Would it matter if it was just his father or his brother? Do we have to have another mother to say the same thing in order to neutralize that kind of testimony so that the defense can do what it needs to do for its client? JENKINS: Well, in these cases, what people usually say is the tie goes to the defense because any reasonable doubt, any doubt, will go to the defense. But here is why I think Trayvon Martin's mother and brother's testimony was important in this case.

If you believe George Zimmerman's story, you have to believe that Trayvon Martin who just turned 17-years-old was walking home with Skittles, taking Skittles to a 12-year-old, and decided to stop and essentially try to murder man on his way home.

So there's this narrative that they're trying to paint about him being some violent street kid who would do something like this, and then you see his family get up, college educated people, nice people, a mother trying to raise her son in the best way possible, and I think it completely contradicts that narrative and gives a face and a voice to Trayvon Martin.

And I think that is just as important as her testimony about who she believed was screaming on that call.

BANFIELD: And, Paul Callan, when we come back after the break, I'm going to put you to the test as a prosecutor and a defense attorney.

I know that you were watching and waiting to see if there would be cross-examination of this grieving mother, if it could be delicate, if it would be pointed.

You're going to see some of the cross-examination of Sybrina Fulton in just a moment, and then you'll hear what our experts say about whether it made any difference in this case.

Back in a moment, live from Sanford, Florida.

(COMMERCIAL BREAK)

BANFIELD: I'm Ashleigh Banfield, reporting live at the Zimmerman murder trial in Sanford, Florida, and you're not missing a moment of testimony. They're on a brief break in this courtroom, the great seal on display to indicate to us mikes are down.

It doesn't mean that the work has ended, though. There's a lot going on right now, and if you missed some of this incredible testimony this morning, I have it for you.

Even if you saw it, when you see it a second time, you may catch something you didn't notice before. It's the benefit of being in the courtroom. You catch so much more of it than watching it on television.

This is the cross-examination of Sybrina Fulton. Sybrina Fulton is Trayvon Martin's mother, and cross-examining a grieving mother who has lost her teenage son is a delicate dance to be certain.

So here is Mark O'Mara, and you can see how the two of them almost, almost get into it. Have a look.

(BEGIN VIDEO CLIP)

MARK O'MARA, GEORGE ZIMMERMAN'S ATTORNEY: You certainly hope, as a mom -- you certainly hope that your son, Trayvon Martin, would not have done anything that would have led to his own death, correct?

FULTON: What I hope for is that this would have never happened and he would still be here. That's my hope.

O'MARA: Absolutely.

And now, dealing with the reality that he's no longer here, it is certainly your hope as a mom, hold out hope as long as you can, that Trayvon Martin was in no way responsible for his own death, correct?

FULTON: I don't believe he was.

O'MARA: I know. And that's the hope that you continue, correct?

FULTON: I don't understand what you're trying to ask me.

(END VIDEO CLIP)

BANFIELD: Paul Callan, I want you to step in here for a moment and help me get into the mind of Mark O'Mara. What was he trying to establish there, and did he make any headway?

CALLAN: What he clearly was trying to establish was that she would know that if she testifies a certain way it would help prove the case for the prosecution. It would help prove that her son acted in self- defense, and he's trying to get her to admit that.

I think it's a foolish approach for him to take. And I will tell you a lot of times defense attorneys really ask almost no questions of the grieving mother of a victim. He's chosen to put a few points on the board, and I think he made a big mistake here.

The focus should have been only on the tape and her testimony this was the sound of her son's voice. And I think he did a good job in that area, but when he veered off into this area, I think O'Mara made a mistake, and I don't think it was effective.

BANFIELD: Well, and Sybrina Fulton for certain was able to hold her own, without question, and it did feel a little awkward at one point, I have to be honest with you, because again, it's a grieving mother. You've got to be so careful.

Mark Nejame, there was one moment before that, however, where the cross-examination of this mother instead went to the facts of how she ultimately listened to the tape the very first time. This is critical because there was a room of almost, I think, a dozen people, attorneys, the city manager, the mayor at one point, police officers, her ex-husband. There were a lot of people in the room all at one point as they played that tape for her for the very first time. And there's been testimony up until now that sometimes group-listen is not the most effective listening. NEJAME: Of course because it's not an independent, neutral evaluation. You get swept away by the emotion or what people expect you to say or want you to say or they will help navigate you. So clearly there can be a bias attached to anybody who's put in those type of circumstances, and I think that's exactly what they were going for.

BANFIELD: So if that's what they were going for, I could tell by the questions that were being asked by Mark O'Mara. And how did everyone respond to you? And, again, she held her own. They didn't tell me. So it felt like Sybrina Fulton either knew what was coming or was just really clear about her memory that you can talk about group-listen all you want, I listened and that was it.

NEJAME: I think that she did a very good job of not giving the defense really anything. The key, though, that the defense was seeking is that if, in fact, it turned out that it was not his voice that would turn the whole case around because I believe the defense feels rather confident that they're going to be able to establish through the series of events they've been putting together through cross and that they'll open up on direct that, in fact, it was George Zimmerman's voice is where they're heading with that.

BANFIELD: So, I say again, the devil is in the details and sometimes it's bedeviling to get the details.

Faith Jenkins, I could see Mark O'Mara trying very, very hard to get that point across with this witness, again, a grieving mother. She wasn't necessarily answering the questions he wanted to and maybe any other witness you could hammer down. You could slam them over and over to try to get an answer. But at some point, you have to decide. You know, this isn't going to good. This is not going to be good, in the end, to be seen doing this.

JENKINS: Right. And there are argument that Mark O'Mara's going to make in his closing statements about Trayvon Martin's mother's testimony. And he's going to argue, obviously, this is his mother, she's grieving, but there's some bias there. She wants to believe that this is her son.

But you make those arguments during closing statements. You don't cross-examine the grieving mother while she's on the witness stand and make those points then while she's on the witness stand because it makes you look like you're being incredibly insensitive.

So that's where I would draw the line. If I were a defense attorney trying to get points here, or trying to make a point, I would do it in closing statements, not with this witness while she's on the stand.

BANFIELD: Yeah, sometimes you just have to cut your losses. Any case that involves a grieving mother when you need to cross examine, you really need to evaluate whether it's worth it to go after the points you need to score or whether you do more damage in the effort.

OK, hold that thought for a moment for our viewers who have only seen bits and pieces of Sybrina Fulton's testimony. Again, this is supposed to be one of the biggest witnesses in the prosecution's case here. She testified very briefly, but it was critical. And after the break, you're going to hear her testimony in full.

We're also going to take you to Egypt. We're going to take you there live because there are people literally dying in the streets. There's a former president who is on lockdown somewhere, under arrest somewhere and no one knows where.

We're going to take you live around the world and back into this courtroom in just a moment.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to Sanford, Florida. I'm Ashleigh Banfield, reporting live at the trial of George Zimmerman, and they're on a brief break in this courtroom, so you're not missing any testimony. In fact, we're going to play you some of the testimony you may have missed this morning.

But first, I want to get you to Egypt. Things are developing very quickly and very fast and furiously as well. Tear gas is starting to fly in the streets. A reporter has already been hits by parts of shotgun fire, if you can believe it. And these are the images already starting to evolve in the streets of Egypt.

Our Ian Lee is standing by. He is hopefully within a safe distance. Ian, I'm not sure if you're within the crowds or if you're above the crowds, but when the tear gas starts to fly, it becomes very difficult to report. Are you with us?

IAN LEE, CNN INTERNATIONAL CORRESPONDENT: Well, that's exactly right, and what we're watching -- I'm safe right now, but what we're watching are clashes around Cairo earlier today.

One place near the Republican Guard's office headquarters and that is the guard responsible for protecting the president and actually as you can hear behind me, we've had these sort of helicopters and airplanes buzzing us all day. The military is definitely showing force right now that they are in control of country.

But what I was talking about earlier, we've had clashes. Two people have been killed in those clashes.This is a -- we've seen larger numbers in previous days, but what's disconcerting about these numbers is this is between protesters and security forces.

In the past few days it's been between the opposition and protesters and supporters of the former president, but now we have the security forces now clashing with protesters, an escalation of what we've been seeing.

BANFIELD: And I just saw behind you even as you were talking about it, about a half dozen of those military helicopters. Has there been any ordnance from those helicopters? Are they firing from the sky or is that just strictly what she said, a show of force from the military?

LEE: It's definitely a show of force. We haven't seen any of the helicopters (inaudible) people.