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Judge Delays Ruling on Shooting Animation; Forensic Pathologist Testifies

Aired July 09, 2013 - 10:30   ET

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

WOLF BLITZER, CNN HOST, "THE SITUATION ROOM": Yes and she says, as you pointed out, she will make a -- continue this discussion, continue the debate between the prosecution and the defense after all the witnesses are called today, once they end it, usually around 5:00 p.m. Eastern, 6:00 p.m. Eastern. Whenever they do that, then they'll resume this discussion.

Just as yesterday, after the jurors left, they had a discussion about whether that marijuana use that Trayvon Martin apparently showed in his blood test as part of his autopsy, the toxicology report. She ruled last night after the jurors were out, that that would allow that to be admitted as evidence.

What's your take, Page, on this debate over this computerized animation? Sunny, you just heard her say she's surprised the judge is even considering it seriously.

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well Sunny is right that this type of evidence doesn't always come into a trial. In fact, it's fairly unusual that it comes into a criminal trial. It's more common in civil trials. You know a lot of people are probably wondering, why is the judge just now considering this? Why didn't it come up earlier?

The real reason is that the Judge has to wait to hear the evidence that's presented. You know if they tried to address this before the trial ever started she would not know the context, she would not know what evidence would be in the record to support the testimony of the defense witness in this case.

So it takes some time, it's an important issue, and she cannot make that ruling until she's heard the other evidence that was presented at trial.

BLITZER: Schumaker -- Daniel Schumaker, who created this re- enactment, Sunny, he says during his testimony, he's been qualified as an expert in these kinds of cases, only in California so far. He has not testified outside of California. Says he's worked on 59 criminal cases, 21 civil cases. Some of his work has been related to the defense of police officers in both civil and criminal cases.

That's why Mark O'Mara, you heard him make the case, that this -- this individual, this defense computer graphics expert, as he's described, you heard Mark O'Mara, the criminal defense attorney, make the case, let this guy testify. The judge has not yet ruled on this decision. It's important -- I don't know how important it would be, but it could be dramatic, Sunny, if the jurors, the six women on that jury, if they actually see this re-enactment, which presumably would be favorable to George Zimmerman's side of the story. If they were to see that, that could be more powerful than just hearing testimony from witnesses, saying one guy was on top, the other guy was on the bottom or whatever.

So this could be a real bonanza, potentially, if the judge decides to allow it to be admitted as evidence.

SUNNY HOSTIN, CNN LEGAL ANALYST: Yes it could be a game changer. I will tell you, that in civil cases, you do see this sort of accident reconstruction, and juries love it Wolf, they just love it. Because most people are visual learners we learn that when we are trying cases and so you want to use exhibits, you want to use demonstrative exhibits. You want to show people things, because it sort of engrains it in their memories.

And so that's why judges are really loathe to let it in, because you don't want to step into the province of the jury and have someone tell them what happened. They need to determine what happened. But if the defense gets this in, I've got to tell you, I mean this would be extremely, extremely powerful, because you would see a recreation, a re-enactment in, you know, real-time, almost in a computerized fashion.

And -- and I think it could be a complete game changer for the defense, which is why --

(CROSSTALK)

BLITZER: Yes.

HOSTIN: -- they're arguing so rigorously to get it in.

BLITZER: And a lot of the information that he used in this re- enactment, Page, I want to take a quick break, but a quick answer from you, came from the testimony from one of the eye witnesses John Good, who was actually there, who saw what was going on and he testified that it was Zimmerman on the bottom, Trayvon Martin on the top. And that's some of the basis for this computerized animation, if you will.

So it could be a potential game changer, if you will. Go ahead, make a quick point and then we'll take a break.

PATE: You know absolutely and especially since that evidence is coming from a state witness and the jury will remember that. So this is putting them into George Zimmerman's shoes and that is critical in a self-defense case.

BLITZER: All right. Stand by, guys.

They're having a little sidebar with Judge Debra Nelson. We expect the jurors to be coming back into the courtroom momentarily for the defense to start recalling or calling for the first time witnesses. Once the testimony resumes in this Zimmerman murder trial, we'll have live coverage here in the CNN NEWSROOM. Let's take a quick break. We'll be right back.

(COMMERCIAL BREAK)

BLITZER: All right. They're back in the courtroom. The Judge is there. They're bringing evidence out to show the jurors. They're going to resume testimony right now. We're watching what's going on. The jurors are being brought in, six women, all members of the jury, five of them mothers. They've brought some evidence, presumably from the -- from the lockers that they have sealed overnight, but they're going into that room to get some more.

You see Mark O'Mara there, bringing some more evidence out -- Charts, looks like other stuff. I don't know what they have, but we're watching. Maybe George Howell who has been covering this trial for us has a better sense.

It looks like a hoodie, it looks like that sweat shirt that they're bringing in right there, the very, very famous hoodie if you will. George, set the scene for us.

GEORGE HOWELL, CNN CORRESPONDENT: Right Wolf. So basically what we understand now, we could hear from Vincent Di Maio. He is a well- regarded forensic pathologist and he will testify, basically, on his theory of what happened on February 26th, 2012, exactly how this shooting, how all of the events played out.

Keep in mind, though, he has been restricted in some ways, basically that he cannot testify that George Zimmerman used justifiable force. He can't testify about justifiable force, but he will give an account that based on the defense's theory, his theory, of how all of this played out. And right now you know we're seeing some of that evidence.

We've seen the hoodie in this courtroom. We've seen the gun that George Zimmerman used in the courtroom, several other items of evidence. We could see those all return to the court room as we hear this theory play out.

BLITZER: All right. So let's go into the courtroom and let's see what's going on right now. Well, we just lost the audio from the courtroom, so they're waiting, presumably, for the jurors to come in. That's why, I guess, George Zimmerman is standing right now, together with Don West, one of his attorneys you see standing right next to George Zimmerman.

I think we've got the audio back from the courtroom, so let's listen in.

I think they're still waiting for the jurors to come into the courtroom and be seated. The Judge will have some admonitions to the jurors. The jurors standing there.

So let's bring in Page Pate, criminal defense attorney, as we wait. You know, we're going to see that hoodie, that famous hoodie, that -- that sweatshirt that Trayvon Martin was wearing the hood around his head. What does that suggest to you as a criminal -- as a criminal defense attorney, Page?

PATE: Well, it's a critical piece of evidence, Wolf, we've always known that from the beginning of the trial. At this point, though, the defense doesn't just get to ask prosecution witnesses questions, they get to present their own theory through their own expert, as to how the injuries may have occurred, how the death may have occurred, and obviously, the point is to help establish the self-defense claim.

BLITZER: That George Zimmerman acted in self-defense and that's why he shot and killed Trayvon Martin. But once again, explain why, what Trayvon Martin was wearing, specifically that sweatshirt with the hood over his head, why that would be so important. Why do they have to go through all of that?

PATE: Well, at this point, we can only speculate until we actually hear the witness testify, but I assume this witness is going to talk about the markings on the sweatshirt and other articles of clothing that Trayvon Martin was wearing, to show the trajectory, perhaps, of the bullet, to show the distance that Mr. Zimmerman's arm was at the time he pulled the trigger. All of those are critical issues in this case.

BLITZER: All right, the Judge is now talking to the six jurors. Let's listen in.

(BEGIN LIVE FEED)

DEBRA NELSON, PRESIDING JUDGE: Have any of you read or listened to any radio, television or newspapers about the case. No hands are being raised. Did any of you use any type of an electronic device to go on to the Internet to do independent research about the case, people, places, things or terminology? No hands are being raised. And finally did any of you read or create any e-mails, text messages, Twitters, tweets, blogs, or social networking pages about the case?

UNIDENTIFIED FEMALE: No your honor.

NELSON: No hands are being raised. Thank you very much. Mr. West call your next witness.

DON WEST, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: Thank you, your honor. Vincent Di Maio.

UNIDENTIFIED MALE: Raise your right hand, sir.

UNIDENTIFIED FEMALE: Do you swear the testimony presented will be the truth, the whole truth and nothing but the truth, so help you God?

VINCENT DI MAIO, FORENSIC PATHOLOGIST: I do.

NELSON: You may proceed.

WEST: Thank you, your honor. Good morning.

DI MAIO: Good morning.

WEST: If you would, please state your name.

DI MAIO: My name is Dr. Vincent J.M. Di Maio.

WEST: And would you spell your last name, please.

DI MAIO: Capital D, small i, a space, capital M-a-i-o.

WEST: Thank you, Dr. Di Maio. And what is your profession please?

DI MAIO: I'm a physician, presently employed in the private practice of forensic pathology.

WEST: Do you hold a degree in medicine?

DI MAIO: Yes sir. I obtained my M degree from the University of New York Downstate Medical Center back in 1965.

WEST: Dr. Di Maio would you please outline for the jury you're in the court your educational background, then, beginning at medical school?

DI MAIO: OK. As I said, I graduated medical school in 1965. I then did a one-year internship of pathology at Duke Hospital in Durham, North Carolina. From there, I did a three-year residency in anatomical and clinical pathology, at the State University, Downstate Medical Center Hospital. Following that, I did a one-year fellowship in forensic pathology at the office of the chief medical examiner for the State of Maryland.

After successfully completing the three residency programs, I took my specialty board exams and was certified as a specialist in the fields of anatomical pathology, clinical pathology and forensic pathology.

WEST: Is that board certification -- is that what you're referring to?

DI MAIO: Yes, a board certification means that you've successfully completed a number of years of training in a sub-specialty of medicine and then you have taken a written and practical exam and passed the exam. And then you are certified and you're recognized by other physicians as a specialist in these areas of medicine.

WEST: Dr. Di Maio, you mentioned anatomical, clinical, forensic pathology. Let's start first with what is pathology, and then maybe some more details about those other areas.

DI MAIO: Well, pathology is a branch of medicine concerned with the study and diagnosis of diseases. Anatomical pathologists generally work in hospitals. And they examine tissue that is removed from somebody. If you had a mole removed from your skin, you had a breast biopsy or some tissue, you know, from inside your body or part of an organ removed, this is examined by a pathologist, who then tells your physician, what the disease is, if it's there, the extent of the disease, and then he tells you what the diagnosis is. Pathologists are generally doctors' doctors. You won't contact them because your physician has contact with them. And that's an anatomical. The clinical pathologist is concerned with the laboratory studies done on patients in a hospital. If you've had a blood test, a urine test -- all of those are done in clinical pathology laboratories.

The forensic pathologist is concerned more with the application of the medical sciences to problems in the law. Most forensic pathologists function as medical examiners. That is, they determine the cause of death, what killed the person, and the manner of death, how it came about, in individuals who are thought of died of violence, such as accidents, suicides or homicides; or who have died suddenly and unexpectedly and the exact cause of death is not known.

At that time, they may elect to do an autopsy to make such determinations. And then based on the circumstances surrounding the death, the autopsy findings and tests done, they'll make a determination as to the cause of death, what killed you and manner of death, how it came about.

WEST: Let's talk for a moment about the professional physicians that you've held, following the training that you've outlined at this point.

DI MAIO: I'm sorry, but I'm having trouble hearing you. I apologize. My ears are getting a little less sensitive.

WEST: Let me touch this and see if it's -- I'm happy to speak up, Judge. I think I was hasting away but, of course, if Dr. Di Maio prefers some assistance --

NELSON: We can make it available, in case he needs some assistance.

NELSON: Sure.

WEST: Apparently, we don't have a P.A. system in the courtroom that amplifies my voice so I'll just try to be more careful to speak up.

DI MAIO: Yes, sir.

WEST: So following the training that you've outlined, would you please give us an idea, then, of the professional positions that you've held?

DI MAIO: Yes, sir.

After I completed my training, I went into the army for two years. I was a major, assigned to the Armed Forces Institute of Pathology in Washington, D.C. It was on the Walter Reed Campus. For the first year, I was chief of the Medical Legal Section. For the second year, I was chief of the Wound Ballistic Section. Following this, I moved to Dallas, Texas, was a medical examiner there, from the summer of 1972 until the end of February in 1981.

In 1981, I became chief medical examiner of Bexar County, Texas. And for the transcriber Bexar is spelt B-E-X-A-R, the x is silent. So I was chief medical examiner there. The major city is San Antonio, which I'll give a plug. It's the seventh largest city in the United States and a beautiful place to live.

So I was chief medical examiner there from March 1st, 1981, until I retired, December the 31st, 2006. For 16 of the years I was there, I was also in charge of the crime laboratory. I then retired and I went into complete private practice of forensic pathologist, which I have been doing since then. I'm also the editor of the "American Journal of Forensic Medicine and Pathology", which is an international journal of forensic medicine. And I'm chairman of the Texas Forensic Science Commission, which is a state agency charged with, I guess you could say, monitoring the practices of crime labs in the state of Texas.

WEST: Dr. Di Maio, you did mention that you were the director of the Bexar County crime lab for about 16 years. Could you expand on that a little bit? What was your role, more specifically, and what did the lab do?

DI MAIO: Well, essentially, I established it. The police department had the crime lab, the county took over when I came there. It started out as just firearms and basic serology and document examination, and then we were one of the first laboratories west of the Mississippi to establish a DNA laboratory. And it just does the usual things, you know, drug identification, DNA, trace evidence.

WEST: Did some of that work include knowing how to package evidence that may have biological or perhaps DNA evidence?

DI MAIO: Well, yes. I mean, that -- but, usually, you just teach the forensic pathologists. They know that, even if they have no association with a crime laboratory; that you have to -- there's some techniques for handling trace evidence, you know, in collection, establishing a chain of evidence and packaging.

WEST: Is it well-known that there are certain requirements when you are packaging evidence that may contain biological samples, blood, other fluids that may have DNA that are wet?

DI MAIO: Yes sir, you have to dry out the material, and then package each item individually, in paper. Because if you don't let it dry out, and especially if you put it in plastic containers, the bacteria just love that and they begin multiplying, and then you get mold and it just stinks to high heaven, and everything deteriorates.

WEST: So that's something that's well-known in the forensic pathology community?

DI MAIO: Oh, yes, that's standard practice.

WEST: It's been well known for a while?

DI MAIO: Yes, I would say, about 30 years, that I know of.

WEST: Back to the work that you have done with the group that monitors forensic labs. I think you said you were involved -- DI MAIO: Oh, Texas Forensic Science Commission.

WEST: Yes, what is that work and what does that involve insofar as you and other pathologists?

DI MAIO: OK, essentially, it's a government agency and if there are problems, somebody thinks there's a problem with a climb laboratory, either an individual in it or the whole laboratory, whether their techniques or whether there's -- that somebody in the lab is doing something wrong, then it's reported to the state agency, and then we investigate it and then issue a report. Actually, most of the problems with the laboratories are actually reported by the laboratory themselves, because they don't -- they want the tests to be done proper. So they -- more than half of our investigations are laboratories reporting themselves, that there's something wrong with them.

WEST: In addition to the professional positions that you've had and talked about, have you also had academic appointments?

DI MAIO: Yes, with the University of Texas system, I started out as an assistant -- yes, assistant professor, then associate professor, and then I ended up as a full professor before I retired.

WEST: And in what subject matter, please?

DI MAIO: Pathology, specifically, forensic pathology.

WEST: Have you, in addition to your day-to-day work as a medical examiner, and your work at the university as a professor in pathology, have you published any books or articles, scientific articles, in the area of pathology?

DI MAIO: Yes, I've published 88 articles in peer review journals, I think 13 book chapters, and then I've published four books. The first book was "Gunshot Wounds", which I wrote myself. And it's been published in English, French, and Spanish. Then I wrote a book called "Forensic Pathology", with my father, who was chief medical examiner of New York City, and he's deceased now. And then the third book was a handbook of forensic pathology, which I wrote with one of my colleagues, Dr. Susanna Dana (ph). And the fourth book is on what's called "Excited Delirium Syndrome", which I wrote -- well, I'm the junior author of that book. The senior author of that book is my wife, who's a forensic nurse. So we wrote that book on excited delirium syndrome. That's the last one we've written.

WEST: Let's talk for a moment about your work in gunshots, that was, I think you said, the first book that you wrote, and has it been updated over time?

DI MAIO: There's been two additions published and the third addition is going to the publishers in at week or two. This week kind of delayed it. But it's going in about two weeks, the third edition.

WEST: Would you describe for the jury, generally, the purpose or the focus of that book, if it isn't otherwise self-explanatory by its title.

DI MAIO: What it basically is -- the book starts out instructing people about firearms and then it talks about firearms, wounds in general, and rifle wounds, and handguns and shotguns. Mentions things, how to do an autopsy, how to collect evidence, and what you can do with the analysis.

WEST: When you say, gunshot wounds, are you talking about how a pathologist, could, by looking at a gunshot wound, learn such things as the distance, perhaps, from which the shot was fired?

DI MAIO: Right. Whether it's contact or near contact or loose contact or distant wound, range, nature of the weapon, you can tell by the wound in many cases, things like that and how to describe it and how to document it.

WEST: Has that been the sort of work that you've been doing yourself, virtually your entire career?

DI MAIO: Yes, I have a very strong interest in gunshot wounds.

WEST: You also mentioned, Dr. Di Maio, that you've written, I think you said 13 chapters. I take that that means in other people's books than your own.

DI MAIO: That's correct, sir.

WEST: And how does that work? How would you come to write a chapter that someone else would include in one of their books?

DI MAIO: They solicit me to write a chapter. And say, would you please write a chapter on this and that in other books.

WEST: Are some of those books a more comprehensive look at forensic pathology, than maybe what you wrote yourself in your gunshot wound book?

DI MAIO: Well, I don't think so. Usually, it depends. The chapters are not all on gunshot wounds. Some of them are on excited delirium or other things, nursing -- investigation of nursing home deaths and such.

WEST: About how many of those chapters, if you recall, that you wrote for other people's books, involve gunshot wounds?

DI MAIO: I think about seven.

WEST: You also mentioned that you have authored or participated in about 88 peer-reviewed articles. Would you explain to the jury what is a peer-reviewed article?

DI MAIO: Essentially, it's a scientific article that is submitted to a journal and when the journal receives the article, they send it out for other people to review, to essentially give their opinion on whether it should be published or not. So it's reviewed by other people. Then it comes back to the main editor, and then the editor decides whether to publish or not.

WEST: Peers mean other pathologists?

DI MAIO: Other pathologists, right.

WEST: And if the article is, indeed, published, does that make it available to other pathologists, other researchers, who may want to refer to it in work they're doing, or to perhaps educate themselves as to the body of research out there in a particular subject area?

DI MAIO: It is. We have kind of like a central -- used to be, you looked in the library, but now you go on the computers and you can get into a medical library, and they'll have the articles listed and usually nowadays, you can actually review the article on the computer. But these are -- essentially, it's a library so all these things are listed in certain indexes for positions.

WEST: About how many of the articles that you have participated in writing involved gunshot wounds?

DI MAIO: I think something like 35, 37, something like that.

WEST: Over the entire span of your career, you're talking about the peer review articles, the books, the chapters, and the research that you've done yourself? These events, these writings, were developed over the time that you've worked as a forensic pathologist.

DI MAIO: Right, over 40 years.

WEST: You mentioned that you had worked in Bexar County, as the medical examiner, from 1981 until the end of 2006. During that time, did you routinely perform autopsies?

DI MAIO: Yes, I performed about 9,000 autopsies and then I reviewed, of the autopsies that we've done under my jurisdiction.