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The Defense Rests; Interview with Mark O'Mara; Interview with Daryl Parks

Aired July 10, 2013 - 20:00   ET


ANDERSON COOPER, CNN ANCHOR: Erin, thanks. Good evening, everyone.

We begin tonight with the Zimmerman Trial, and wow, that was fast. Fast and sometimes a little furious with the trial judge verbally pushing both sides hard, the defense rested today. The prosecution began its rebuttal. The schedule was set for closing arguments.

The prosecution asked the judge to allow jurors to consider lesser charges that could get the case by Friday afternoon. Now defense attorney Mark O'Mara spoke today saying the jury has what it needs to acquit.

He joins us exclusively tonight in the hour ahead. We'll talk as well with one of the Martin family attorneys and of course our legal panel, a very full night. Let's get you up to day on what happened in court today.

Martin Savidge begins our coverage.


MARTIN SAVIDGE, CNN CORRESPONDENT: It's been the question dominating this entire trial. Would George Zimmerman take the stand? And today Judge Debra Nelson asked him directly.



NELSON: And what is your decision, sir?

ZIMMERMAN: After consulting with counsel, not to testify your honor.

NELSON: Is it your decision to not testify in this case?

ZIMMERMAN: Yes, your honor.

NELSON: And are you making that decision freely and voluntarily?

ZIMMERMAN: Yes, your honor. SAVIDGE: And with that the defense rested.

MARK O'MARA, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: With all that in mind, now being entered into evidence, the defense would rest.

SAVIDGE: Much of the day was spent on a use of force consultant who testified based on his analysis, Zimmerman was non-confrontational lacking a warrior mentality, but it was a dummy that proved to be one of the strongest witnesses of the day.

It began when prosecutor John Guy grabbed a life-sized mannequin to show their version of events.

JOHN GUY, ASSISTANT STATE ATTORNEY: Do you recognize this as being a human-type figure, right?

Yes, sir.

GUY: OK. It's actually got a belly button, right?

ROOT: It surely does.

SAVIDGE: It was here the state seemed to concede Trayvon Martin could have been on top of George Zimmerman, suggesting he was pulling away at the time he was shot. Previously the prosecution argued Zimmerman was on top.

GUY: Would it be consistent that 90 degrees if Trayvon Martin had been backing up and the defendant raised his gun.

SAVIDGE: The demonstration brought jurors to their feet to get a better view realizing the potential impact defense attorney Mark O'Mara seized the prop for his own demonstration.

O'MARA: Were the injuries on Mr. Zimmerman's back of his head consistent with someone doing this on cement?

SAVIDGE: The defense concluded by calling two emotional witnesses. The first a young mother who described a home invasion in the same neighborhood where the shooting happened. When she had to lock herself in her infant son's room.

OLIVIA BERTALAN, ZIMMERMAN FORMER NEIGHBOR: I was locked in my son's bedroom and he was shaking the doorknob trying to get in. I was sitting there with a pair of rusty scissors and my son in one arm.

SAVIDGE: She was not only a character witness for the defense explaining how Zimmerman had counseled her but after the break-in. But her testimony also painted a picture of a neighborhood on alert after previous crimes and Zimmerman's father who answered what has become a mantra for both the defense and prosecution. Whose voice was screaming for help the night Martin died?

ROBERT ZIMMERMAN SR., GEORGE ZIMMERMAN'S FATHER: Absolutely, it's my son George. SAVIDGE: And in a move many court watchers anticipated, the prosecution asked the judge for lesser charges to be included, manslaughter and aggravated assault. The judge will make that decision Thursday, and whether Stand Your Ground will be included in the jury instructions.

Closing arguments are expected tomorrow, as well.

Martin Savidge, CNN, Sanford, Florida.


COOPER: Wow, a fascinating day in court. Let's bring in our panel. Legal analyst and former federal prosecutor Sunny Hostin and Jeffrey Toobin, also criminal defense attorneys, Danny Cevallos and Mark Geragos. Mark's latest book is "Mistrial: An Inside Look at How the Criminal Justice System Works and Sometimes Doesn't."

Mark, you've been saying for a long time, you'd eat your hat if George Zimmerman took the stand. You're not wearing a hat but I'm sure you are very pleased you're not going to have to do that.

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Well, I -- the one thing I'm not pleased about is I think I had raised the odds from 50 to 100 to 1, and nobody would take me up on it, and I'm a little disappointed. I could have made -- I could have made enough money to have bought Jeff's new paperback which I think came out yesterday.


COOPER: That's right. Thank you for the plug.

Jeff, we got to "Digital Dashboard" question tonight from Facebook. Dolores asks, how much of an impact will Zimmerman not taking the stand make on this trial.

I mean, there was nobody on our panel who ever thought really that there was a good chance of him taking the stand.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, this is one of the great questions that comes up in almost every criminal case is the judge instructs the jury to draw no inferences from the fact that the defense -- defendant didn't testify. He has an absolute right. The burden of proof is on the prosecution. But there is sometimes an expectation on the part of some jurors that a defendant gets on the witness stand and says, I didn't do it.

I think in this case, since the jury has heard so much from George Zimmerman, whether it's these videotaped interviews with FOX News and the like, I think his failure to testify really works only to his benefit here because the jury has heard his side of the story from him but they haven't had a real cross-examination of him.

COOPER: Sunny, what stood out to you today in court? I -- watching them work with that dummy, that model, it was interesting from television. I'm wondering how it played in the courtroom. SUNNY HOSTIN, CNN LEGAL ANALYST: It played well in the courtroom. I mean, jurors love demonstrations. They love these sort of courtroom demonstrations and it was pretty powerful, especially with John Guy using it. I mean, I will tell you that a lot of the courtroom watchers are calling him prosecutor McDreamy. And so half of the jury stood up and looked over to see what he was doing.

And I think it went over extremely well. This witness was not a good witness for the defense. I'm not quite sure why they called him. They didn't really need to call this sort of pseudo use of force expert and the prosecution did a really good job of taking what was a defense witness and then turning him into a prosecution witness by doing this in courtroom demonstration. It was pretty effective.

COOPER: Danny, do you think it was effective for the prosecution?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Well, you have to balance the risk and the reward of calling every witness. And when you have a use of force expert, they are testifying as to what police officers call the continuum of force which divides force into these different layers.

The problem is even our own Supreme Court has said the appropriate response of force is a subjective thing. So you have to ask the question, what was the potential benefit? Do you have an expert saying that this use of force was proper? The downside was that the prosecution had the opportunity to cross examine this expert and inquire about certain things that may not have been appropriate uses of force.

So as with every witness, there is a risk and a reward and I can see critics saying that this may have been a bad witness for the defense, but the defense has made it clear from day one. They're going to meet all evidence head on with their own evidence. They're not going to leave anything to silence.

And I admire that approach. We can -- we can debate over whether it was a good call or a bad call but ultimately they have been consistent and you have to respect that.

COOPER: Jeff, Martin Savidge was saying in his piece that the prosecution is sort of now in that demonstration acknowledging well, maybe George Zimmerman was the one on the ground but Trayvon Martin could have been pulling away. Was that -- I mean, are they now changing their story?

TOOBIN: I think they have to. The evidence in this case is pretty much undisputed that Trayvon Martin was on top, and I think that's a big problem for the prosecution, because ultimately the issue here is who was the aggressor? And you can say OK, perhaps George Zimmerman threw the first punch, but it's pretty tough to argue that a guy who is under someone else is the aggressor.

Now, of course, the question remains, was it a legitimate use of force to shoot the person on top? But I think it's a very helpful fact for the prosecution that the evidence is now pretty clear that Trayvon Martin was on top of George Zimmerman.

COOPER: You mean helpful for the -- for the defense?

TOOBIN: Yes, I'm sorry, I meant for the defense.

COOPER: Mark, does it surprise you to hear the prosecution, or do you think it's a big problem for the prosecution that now all of a sudden today, on their final day, though, they're like well, maybe he was on top?

GERAGOS: I think it's a huge problem. In spite of having prosecutor McDreamy tell you exactly the opposite in his opening statement and then come back and now get on top and demonstrate that maybe he was going back, I'm going to reiterate what I said yesterday. When this case has completely inverted the burden of proof and what normally happens in a case, his -- when he says isn't it possible or isn't it consistent that he was pulling away, he's admitting that it's just as consistent or maybe it's reasonable that he wasn't.

That's the definition of reasonable doubt. The prosecutor just sat there and demonstrated for the jury well, you can believe what I just did or you can believe what the defense did, both are reasonable interpretations. If there is two reasonable interpretations, guess what, you must find for the defendant and find him not guilty.

So I don't -- I'm completely perplexed as to what they're argue after they've kind of taken this twofold approach.

COOPER: Right. Sunny, aren't they essentially saying we don't know what happened? I mean, they're saying, well --

HOSTIN: No, I don't --

COOPER: It could have been this, it could have been that?

HOSTIN: You know, I don't think so. And I think they were smart to give these alternate scenarios to these witnesses, asking well, what if Trayvon Martin was on top but leaning back trying to get away and George Zimmerman was then more aggressive, didn't exhaust all reasonable means to get away?

I thought that was effective. That doesn't necessarily mean you're conceding that Trayvon Martin was on top because remember there are two witnesses that are saying they saw George Zimmerman on top.

COOPER: But it does mean you don't know what happened?


COOPER: Whereas the defense is saying --

HOSTIN: Well, it does mean --

COOPER: -- we have a clearer idea of what happened and here's our video and our -- you know, our final presentation and our closing arguments. The prosecution has now admitted well, we don't really know what happened, but -- so here are a bunch of alternatives, let's see what sticks.

HOSTIN: No, I think what the prosecution, Anderson, is going to argue is we know that what George Zimmerman says happened, didn't happen. So you've got to now look at all of the other evidence because you've got to discount what he says happened.

GERAGOS: Except -- Sunny, except --

HOSTIN: Which is what they're doing.

GERAGOS: Except what they've done, what they've done is they have conceded over the course of the trial that what Zimmerman said happened is more likely than what they first said happened.

HOSTIN: I don't --

GERAGOS: It's almost as if --

HOSTIN: I don't think so.

GERAGOS: They have been educated because if they have been educated during the course of the trial.

HOSTIN: That's not right.

COOPER: Right. I mean, Danny, it is different --


GERAGOS: And every time --

COOPER: It is different than what they started out saying.

CEVALLOS: The prosecution has said Zimmerman was on top. Now they're saying if you don't believe us that Zimmerman was on top, here is a viable theory where Trayvon Martin is on top and then following almost immediately after Mark O'Mara sort of adds on to that with his own -- his own demonstration, which was a brilliant piece of improv, they probably had no idea where that was going and Mark O'Mara just took a chance, he took a calculated risk, and I think it worked out for him.

But alternate theories like that, when it's so fascinating that we finally have an alternate theory from the prosecution themselves.

COOPER: Right.

CEVALLOS: They have two mutually exclusive sort of theories and to echo Mark Geragos, ultimately the jury is going to be told, if you have two perfectly reasonable alternate theories, if it's 50/50 and it's coming from both the prosecution, then essentially you must, not may, you must acquit.

COOPER: Wow, all right, everyone --

GERAGOS: It doesn't have to be -- COOPER: Go ahead. Yes.

GERAGOS: It doesn't have to be 50/50. If it's a reasonable, doesn't have to be as reasonable. If it's reasonable, you must acquit.

COOPER: Everyone, stay there. We're going to pick up the conversation shortly.

Coming up next, though, we've been talking about Mark O'Mara. Defense attorney Mark O'Mara joins us. We're going to ask him why his client did not testify. Well, we all know the answer to that. Why he wants the jury to only consider the maximum charge against him, second-degree murder, not these lesser charges.

Also Martin family attorney Daryl Parks is joining us. I'll get his take on the day in court and the kind of job he believes and the family believes prosecutors have been doing.

As always, you can follow me on Twitter, let us know what you think at Anderson Cooper.

A lot more ahead. We'll be right back.


COOPER: Well, long before the trial defense attorney Mark O'Mara was fighting for George Zimmerman in the court of public opinion. Today following his client's wishes, he kept George Zimmerman off the stand. He pushed for an all or nothing second-degree murder charge for jurors to consider, no lesser offenses. It's a high stakes gamble. He also wrestled with a dummy, as we talked about before.

Any way you slice it a big day for Mark O'Mara who I spoke with just a short time ago.


COOPER: Mark, there seemed to be a bit of confusion early in the afternoon when the judge asked Mr. Zimmerman whether he would testify or not. He said he needed more time to decide. What finally made him decide not to? I mean, I assume for the last most of this trial you've known he's not going to testify.

O'MARA: No, actually that's not true. He was really considering testifying. He really wanted to talk to his jury and tell them what he did, why he did it and what he was facing when he made that decision to fire the shot.

I think the confusion was more of semantics than substance, though. Whenever that decision is made it's always with consultation of counsel and George wanted to include that information so that was just a little bit of confusion about really without a point.

COOPER: What finally convinced him not to do it? I mean, I assume your advice was not to do it? O'MARA: Yes, I mean, the way I looked at it, as I said to you before, I have to convince myself if the state has proven their case beyond a reasonable doubt before I will consider putting any defendant on the stand, any client. And I just don't think they presented it so there is no reason to put him on the stand realizing he's already given five or six or seven statements that the jury can now consider.

COOPER: The state now has asked for manslaughter and aggravated assault be included in the charges in addition to second-degree murder. A lot analysts I've been talked to expected that to happen. Why do you feel that's legally inappropriate?

O'MARA: Well, I don't think that the facts of the case support a manslaughter charge. I think the facts of this case support nothing but self-defense. If the jury doesn't buy self-defense and thinks that he acted in ill will, spite and hatred, then they should convict him on second-degree murder.

They're not going to because I think the evidence is overwhelming that he acted in self-defense. If that's the theory of the state's case, then manslaughter is not appropriate. Doesn't fit the facts of the case and I don't want this jury to have what they perceived to be some compromised verdict. They should look at the facts, look at the law, apply it and acquit him.

COOPER: What a lot of people watching this maybe don't realize is that aggravated assault carries the potential for life in prison because of the Florida gun statute, the same as if he was convicted of second-degree murder. Correct?

O'MARA: Potentially. According to how they charge it and what the jury comes back with but certainly the manslaughter charge is very serious, as well.

COOPER: The judge also said you could not introduce your 3-D reenactment of the night Trayvon Martin died as evidence. You can use them in your closing statement. For you, is that the best-case scenario, you get to show the reenactment, get that in the jury's mind, the prosecution doesn't get to attack it on cross-examination?

O'MARA: Perfect answer, because yes, that's true. I don't believe that the animation needed to be in evidence for me to get it before the jury. I would like to have had it there but I know the state's concerns, I understand the court's ruling. And as long as it is there for me to show the jury what probably happened that night, which is what that animation shows, I'm OK with it.

COOPER: You said that you didn't introduce the THC levels found in Trayvon Martin's blood at least in part because the levels were so minimum -- minimal. You've known, though, how low the levels were all along so why did you fight so hard to be able to have it admitted?

O'MARA: Because I think that should have been our decision rather than the court's decision. I think when we have relevant admissible evidence it should be allowed in, then we make the decision as part of our defense strategy whether or not we're going to present it.

I don't think -- the court should have attempted to preempt us and at the end she didn't and then we make the decision, keeping in mind the substance of the evidence itself, how it may persuaded the jury, and also keeping in mind the sensitivities that we have had throughout this trial and also pretrial concerning Trayvon Martin's family and the sensitivities of what they are going through now.

So the decision was made it wasn't going to be probative enough for us to have to deal with the concerns surrounding it.

COOPER: How surprised were you that the judge didn't allow at least some of those text messages in?

O'MARA: Well, I respect the court's ruling. I was surprised because I think they we laid a proper evidentiary foundation to let in. I think it is completely relevant particularly when the statute says that the jury is to consider the relative physical abilities of both parties. They certainly have information concerning George Zimmerman's abilities and I think they should have had evidence, fairly conclusive evidence of Trayvon Martin's sensibilities or abilities physically and, you know, we respect the judge's ruling. We'll move forward from here.

COOPER: I want to play a little bit just for our viewers, yesterday it happened late in the evening in that kind of that marathon session where your co-counsel Don West basically was saying the state has lied at times and certainly been slow to give over evidence and in fact, not given over some evidence. Let's play that.


DON WEST, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: It's simply unfair for Mr. Zimmerman not to be able to put on his defense because of the state's tactics. It was a strategy, obviously, because they had it in January and kept it from us, made us spent 10, 20, 30, 100 hours digging it out, playing games with us, lying to this court and now it's our fault?


COOPER: A, how extensive -- I mean, if you agree with your co- counsel that the state has lied, how extensive do you think the lies are and are there other points of contention that you have with how the state handled the case?

O'MARA: Well, Anderson, I've complained to you a few times about the discovery problems that I've had. This is a case where I filed not one but six motions for sanctions against the state for discovery violations. I, in 30 years of practice, have never filed this sanctions violation request with the court. In this particular case and what frustrated Mr. West so much was that we now know from evidence from the whistleblower from the state attorney's office that they had evidence of these reports that were generated in the third week of January 2013. We didn't receive the information until June 4th. That type of discovery violation is significant, and it negatively impacted our way to get prepared for the trial, and I can understand and agree with Mr. West's frustration because we should not have to try this case by ambush.

COOPER: The closing arguments start tomorrow, you give yours on Friday. For you, what's the most important thing you need to convey to the jury? Have you already mapped out your closing argument?

O'MARA: The most important part I think is to make sure that this jury looks at this case and decides whether or not George acted in self-defense. I think there is overwhelming evidence that he did act in self-defense. There is little evidence that he didn't. And if the jury listens to the instructions given by the court, looks at the evidence and compares the two, not to do anything else, don't give us more than what we deserve, with the facts and the law, then they're going to conclude that George acted in self-defense.

My fear is that because of some bias or sympathy that they may get from the state's closing arguments where they try and bring up the expletives the way they yelled at him instead of the way George yelled at him, they sort of mentioned these loss of the 17-year-old, that the jury may consider a compromised verdict.

We don't want a compromised verdict just like we don't want a jury pardon. We want a verdict based upon the facts and the law and that's an acquittal.

COOPER: And have you already written it out or is that something you do just in the final hours?

O'MARA: I don't write it out. I know what I want to say. I just -- I'm not going to write things out. Hopefully I'll be able to communicate verbally what I want to because I'm just going to go up there and talk to them.

COOPER: Mark O'Mara, appreciate you joining us. Thanks.

O'MARA: Sure.


COOPER: Well, now let's hear from the other side. For the last week and a half Trayvon Martin's family has watched the state of Florida speak for them and their deceased son. The same goes for their own lawyers. They've had to watch others try a case that they themselves are so connected to.

Joining me now is Martin family attorney Daryl Parks.

Daryl, appreciate you joining us. What's your reaction -- to George Zimmerman's decision not to testify?

DARYL PARK, ATTORNEY FOR TRAYVON MARTIN'S FAMILY: Well, I think George realized that had he taken the stand, he would have had to face a very tough cross-examination but also he has sat there and saw the many different statements he's given presented in this case.

COOPER: Is the Martin family disappointed they won't get to hear Zimmerman cross-examined in an open court or is it something -- or is it somewhat maybe of a relief that they don't have to go through that hearing it?

PARKS: Well, it's -- I don't think either way on that one, Anderson. They -- they believe that, you know, had he taken the stand he would have said the same things he has said before, however, I think that he made a decision based on the fact that he would be cross-examined on the many inconsistencies that he has said in the course of this case.

COOPER: The state, as you know, has asked for manslaughter and aggravated assault to be included in the charges read to the jury in addition to second-degree murder. Does the Martin family -- do you have an opinion on that? I mean, if he was convicted of a -- of a lesser charge, he could still do just about the same amount of time because of mandatory gun sentencing.

PARKS: Well, all along, they have always just wanted whatever the law required in this situation in terms of his punishment, so they have not pushed for one or the other. As you point out, the criminal punishment will be about the same at the end of the day in terms of it being something that goes between 25 and life.

COOPER: So they're not so focused on whether it's second-degree murder or manslaughter charge?

PARKS: No, you have to remember, this has just been an emotional time and as you heard from the father, Tracy Martin, on the stand, he and the mother just traumatized and I can tell you the last two days have been tough because now the whole endurance of all of this is wearing on them.

So they just want to see him punished and to pay his debt for taking Trayvon's life. They are still just in a point of disbelief of having lost their son.

COOPER: I don't know if you've talked to Tracy Martin about his own testimony, about how he felt it went because, you know, there were two police officers on the stand who were testifying that he had initially said he couldn't identify his son's voice. Tracy Martin on the stand said categorically that's not the case. What I said was, you know, I wasn't sure but now that I listened to it, I am sure.

How did you feel he did on the stand?

PARKS: He did good. Let's back up a second and think about what he heard. We heard Tracy Martin say that he backed away and we heard the detectives -- what he said was under his breath Tracy Martin mumbled something and that he interpreted what Tracy Martin said as a no. The fact that he said that he interpreted makes it clear that it was somewhat not clear but also, Serino said that Singleton was not there. So there is issues there in terms of what he said, but most importantly, though, we must remember he had heard a series of 911 calls and at the end he heard this gun shot. That was the final thing that took his son's life. So in terms of whose voice it was, that wasn't his focus. His focus was on that gunshot and that gunshot is the climax of that tape, not the voice that you hear.

COOPER: Mark O'Mara says he's convinced that the state has not proved their case beyond a reasonable doubt of second-degree murder. Are you convinced that the state has proved second-degree murder beyond a reasonable doubt?

PARKS: I think they either have it or they're very close and I think that's why the law allows the lesser included offenses, so at this point, all we want is justice and so we believe we're very close to getting that justice.

COOPER: Daryl Parks, appreciate your time tonight. Thank you.

We got a lot more to get to with our panel, including the dynamic between the lawyers in the Zimmerman case and the no non-sense judge, Debra Nelson.

Also ahead tonight, an exclusive interview with the former Sanford Police chief Bill Lee. You may remember he lost his job amid public anger over the fact that Zimmerman wasn't arrested right away. What he's saying now about how he handled the case coming up.


COOPER: Throughout the trial, Judge Debra Nelson has shown when it comes to her courtroom, she's strict and no non-sense. It was on display late last night as well as throughout today. Take a look at some of these exchanges, a few examples of the tight ship that she runs.


JUDGE DEBRA NELSON: Please don't go off focus here.


NELSON: Don't no, no, me, either. Let's stop this right now. I have told counsel before, first of all, nobody talks over the other. The court reporter can only take one person down at a time. I will have not any speaking objections in the courtroom.

UNIDENTIFIED MALE: I would like to make a speaking objection.

NELSON: You can't make an objection to your own question. Turn down the volume. Is there another phone we can call into that is a land line without pop-ups of people calling? Hang up the phone.

NELSON: Get to your point. I told you when we're at the bench I don't like these, you know, you do this I'm going to do this argument.

DON WEST, ZIMMERMAN'S DEFENSE LAWYER: I'll speak on Mr. Zimmerman's behalf.

NELSON: I'm asking 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 --

NELSON: Your objection is over ruled. And so have I.

WEST: I'm physically unable to keep up this pace much longer. It's 10:00 at night. We started this morning. We had full days every day, weekends, depositions at night.


COOPER: And she walked out with that. With us again, CNN legal analyst and former federal prosecutor, Sunny Hostin and CNN's senior legal analyst, Jeffrey Toobin, criminal defense attorneys Danny Cevallos and Mark Geragos. So Sunny, you've been there. You've watched this judge in action since (inaudible) been aimed at the defense. Do you get a sense they are on thin ice or things happen with a high profile case? There were a lot of people under pressure.

SUNNY HOSTIN, CNN LEGAL ANALYST: Listen, this happens in a courtroom. The judge has to take control this is a dream judge for a case like this. She's kept a tight ship with really skilled aggressive attorneys. If she didn't take charge, do you know what this trial would have looked like? It would have been a circus.

So you want your judge to, you know, really take control of the courtroom. I will say when she walked out last night, I thought perhaps was a little over the line, but all and all, I've been watching her and she's been consistent. She's been fair. I think she's been a great judge.

COOPER: Jeff, if the lesser charges are allowed in by the judge or added by the judge for the jury to consider, does that make it harder for the jury or give them an out and make it easier?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the defense is worried, as you learned, in your interview that the compromise verdict would be something that might be appealing to some of them. The defense wanted a high stakes, high risk, high reward strategy, all of nothing, second-degree murder or acquittal. The middle ground does give the defense an option and I think one reason the defense is pushing so hard for this lesser included offense is because the case has not gone in as well as they have expected and the reason the defense doesn't want it, is they want an up or down vote on second- degree murder or he walks.

COOPER: And also the defense doesn't want it because as we pointed out last night and earlier tonight, some of these charges, lesser charges could still get equal amount of jail time --

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: When I was a federal prosecutor, we would always ask for an aiding and abetting charge, a lesser charge. The jury would think, aiding and abetting, it's much less. Under federal law, aiding and abetting carries exactly the same penalties.

COOPER: Danny -- and in Florida you have these gun -- mandatory gun sentences.

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: This is the fascinating part is that the jury is going to -- they are going to look at the lesser charges without knowing that there maybe what we call mandomins, mandatory minimums, that are different in every state. But when it comes to guns more and more lots of mandomin and what the jury may not be aware of it is that a manslaughter conviction could land him in jail for a substantial --

COOPER: I didn't realize this brandishing a gun in Florida gives you ten years mandatory.

CEVALLOS: In Florida, classifieds on whether you show, demonstrate, several states have similar statutes, but the important thing to know is with the mandatory minimums, people are going to spend a lot more time than the statutory proscribed years.

COOPER: Mark O'Mara said George Zimmerman wanted to testify. I mean, lawyers always say that. I don't know if that's really true or not, but do you often have clients who want to testify and you have to say look, it makes no sense to testify or do clients say look, you're the lawyer, you figure it out.

GERAGOS: I have one case that I can think of in particular where we had rested and the client insisted he would take the stand. I actually went into chambers with the client without the prosecutor there, said it was over my objections, I basically quote a friend of mine, Ben Brothman, who had a similar situation. You paint a Picasso and then your client comes up and decides to urinate on it.

I know him a lot and I cleaned up the sentence in a little joke in there. The client in that case took the stand, was convicted and the jurors came out and were interviewed and said until he took the stand we weren't going to convict.


GERAGOS: That's the crazy thing about this business. When you're a criminal defense lawyer, your dream is to try your case within the prosecution's case and get out your theory and every witness you put on, your gut is wrenching that that witness is going to destroy everything that you've done before it, and the worst person to put on is your client, because remember, the client generally has -- does not have the skill set to go up against an experienced prosecutor.

When they are in custody have been awakened at 3:00 in the morning, given a piece of sandwich and a rotten apple and sit in a holding cell. They come out of the cement holding cell and come up against somebody sleeping in their bed and their wife kissed them on the lips and had a Starbucks on the way to court. It's an uneven situation and why would you put somebody torturing them in that situation? COOPER: All right, one of the things the prosecution will likely bring up during their closing argument is the fact that George Zimmerman account of the specifics the night he shot Trayvon Martin have changed overtime. The question is though, did Zimmerman deliberately manipulate details or has his memory suffered because of the hysterical amnesia phenomenon that can sometimes affect people during traumatic events? One witness for the defense testified to this today. The question is, is it real? Randi Kaye reports.


RANDI KAYE, CNN INVESTIGATIVE CORRESPONDENT (voice-over): George Zimmerman has a problem, consistency or lack thereof. First he told police Trayvon Martin jumped out of the bushes, but in this re- enactment, less than 24 hours later, there was no mention of bushes. Zimmerman had once said martin confronted him, using an expletive asking what is your problem, homey? That version was later changed.

Then there is Zimmerman's recorded statement saying after she shot Martin he spread the teenager's arms. Police evidence and photographs show martin was found face down with his arms under his body. Was Zimmerman charging the story to help his case or could it be memory loss? A phenomenon called hysterical amnesia. Forensic psychiatrist Mark Rubenstein has treated hundreds of patients who suffered from this.

MARK RUBENSTEIN, FORENSIC PSYCHIATRIST: It's caused by the release of certain chemicals in the brain when one is facing a psychologically traumatic event and attempts to protect oneself by the release of these chemicals. The person so affected is not going to remember either an entire episode or chunks of an episode.

KAYE: With hysterical amnesia acute stress prevents the brain from storing new memories. In court Wednesday, Private Investor Dennis Root testified for the defense about this.

DENNIS ROOT, PRIVATE INVESTIGATION: Their perceptual distortion because of the high-stress event, it alters the manner in which they interpret the information that they are receiving. That's a natural human response for everything.

KAYE: If any of this sounds familiar it's because hysterical amnesia was also a key topic in the Jodi Arias trial. She killed her ex-boyfriend by stabbing him nearly 30 times, slicing his throat and shooting him in the face, yet Arias says she doesn't remember doing any of that.

UNIDENTIFIED MALE: Do you have any memory of slashing Mr. Alexander's throat?


KAYE: The jury didn't buy it and found her guilty of murder. James Holmes who is accused of shooting up an Aurora, Colorado movie theatre last year, may also have experienced amnesia. He says he doesn't remember killing 12 and wounding 58 and is said to have asked jailers why he was behind bars. Last month, he pleaded not guilty by reason of insanity and remember staff Sergeant Robert Bails, the U.S. soldier accused of killing 16 Afghan civilians last year? He claimed at first he didn't remember the rampage and later admitted to it.

RUBINSTEIN: It's really a defense mechanism so that the person doesn't experience firsthand or can't we recall experiencing the horror going on at the time.


KAYE: With hysterical amnesia, a person doesn't snap out of it. Our expert calls that Hollywood amnesia. It doesn't work that way in real life. Though in some cases bits and pieces of memories do return and that's what George Zimmerman's defense team would have you believe happened to him. The prosecution would simply call it lying. Randi kaye, CNN, New York.

COOPER: Coming up, an exclusive interview with Bill Lee. He is the ex-police chief who lost his job over his handling of the George Zimmerman case. He says whether he feels like he got thrown under the bus or not, next.


COOPER: Regardless what the verdict turns out to be, the George Zimmerman already has changed lives and not just for the families involved. The Sanford police chief lost his job in the wake of the initial investigation and was forced to step down amid angry criticism that Zimmerman wasn't arrested right away. CNN's George Howell got an exclusive interview with former chief, Bill Lee.


GEORGE HOWELL, CNN CORRESPONDENT: Are you saying this was the result of political pressure, that you lost your job.

BILL LEE, FORMER POLICE CHIEF, SANFORD, FLORIDA: I believe it was political pressure and the fact I upheld my oath.

HOWELL (voice-over): Sanford, Florida, a town caught in a racially charged death investigation. Neighborhood watch Captain George Zimmerman admitted to shooting and killing unarmed teenager, 17-year-old Trayvon Martin and at the time, Bill Lee was the police chief.

LEE: We were investigating the death of Trayvon Martin, which was a tragedy. You know, it -- we wanted to find out what truly happened and seek justice.

HOWELL: Lee says the investigation started that night. They took George Zimmerman into custody for questioning, but he claimed self-defense and the Sanford Police Department let him go.

(on camera): Your lead investigator, Chris Serino, suggested manslaughter on that initial police report. Why is it that, you know, for 40 plus days George Zimmerman walked a freeman? LEE: The laws of the state of Florida and the constitution require you to have probable cause to arrest someone. That the evidence and the testimony that we had didn't get us to probable cause, you know, if we had people that were witnesses that could tell us that the self-defense claim or the way George Zimmerman said things happened, that contradicted that then we certainly may have probable cause.

HOWELL (voice-over): Martin's parents hired Benjamin Crump, a skilled civil rights lawyer and his persistent demands that George Zimmerman be arrested lit the fire of a national uproar. People traveled to Sanford to march.

(on camera): Talk to me about that outside influence. There were civil rights leaders that came to town and protests and, you know, people see this situation differently, but there is a segment of people who said from the beginning at this case that, you know, had George Zimmerman been black, he would have been arrested. He would have been behind bars. What do you say about that suggestion from people?

LEE: The Sanford Police Department conducted an unbiased and professional investigation. Race did not come into play for the Sanford Police Department.

HOWELL (voice-over): But the calls for an arrest grew louder and Lee says city officials and the city manager, his then boss felt the heat.

(on camera): When you look back at what happened, was there a lot of pressure on you to make an arrest?

LEE: There was pressure applied. You know, city manager asked several times during the process, well, can an arrest be made now? And I think that was just from not understanding the criminal justice process. It was related to me that they just wanted an arrest. They didn't care if it got dismissed later. You don't do that.

HOWELL: In a statement, City Manager Norton Bonaparte tells CNN, quote, "Lee told me he took an oath of office and could not make an arrest. Once he told me I don't recall ever asking him about arresting him.

(on camera): Is it fair to say the investigative process in a way got hijacked?

LEE: Yes, in a number of ways.

HOWELL (voice-over): After lee announced he wouldn't bring charges against Zimmerman, police passed the case onto the state attorney's office. The governor then assigned to case to special prosecutor, Angela Correy, who charged George Zimmerman with second degree murder.

LEE: That investigation was taken away from us. We weren't able to complete it, and it was transferred to another district or a different state attorney. So, you know -- and that outside influence changed the course of the way the criminal justice process should work.

HOWELL: After only 10 months on the job, lee was temporarily suspended and later fired by the city manager.

(on camera): There was political pressure on one hand. Would you agree?

LEE: Sure.

HOWELL: There were outside influences on the other?

LEE: Yes.

HOWELL: Did you get a fair shake?

LEE: I don't think so. I upheld my oath. You know, I upheld, you know, my oath to abide by the laws of the state of Florida and the constitution, and I'm happy that at the end of the day I can walk away with my integrity.

HOWELL: One of our legal analyst today said, you know, Bill Lee, Chief Bill Lee really got thrown under the bus would you agree?

LEE: Yes.


COOPER: George Howell joins us now. Did the chief tell you whether or not he's watching the trial closely?

HOWELL: Anderson, he is watching every bit of this trial. You'll remember that he himself testified in this case, and he says when you look at his then officers, what they said on the stand, it coming out in court that they did their job to the letter and though unpopular at the time. Lee says that he upheld his oath. The difference, though here is that lee lost his job.

COOPER: One of the key pieces of evidence is that 911 audio where you heard someone screaming, calling out for help. Lee actually didn't want that released, right?

HOWELL: He told me about that. He did not want that audio released. Here is the thing, when it was played for Trayvon Martin's family at city hall with the major, with the city manager there. Lee says that should have been done differently. It shouldn't have been played with the full group there. In fact, it should have been played individually for each person to hear it accept prettily so they wouldn't be bias with other people around them. So he was against that from the start.

COOPER: Interesting. George Howell, fascinating interview. Thanks very much.

Up next, a court hearing for the alleged Boston bomber who appeared to disregard the proceedings. Our Deb Feyerick was actually in the courtroom. We'll hear from her in a moment.


COOPER: Arraignment today in federal court in Boston for Dzhokhar Tsarnaev who along with his brother allegedly set off bombs that turned the Boston marathon into a scene of death and destruction back in April. He faces 30 counts including four counts of murder and pleaded not guilty to all of them.

Today was Tsarnaev's first public appearance since his arrest. Deborah Feyerick was inside the courtroom. She joins us now. It must have been fascinating to be there. What was it like inside the courtroom?

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: It was fascinating because this courtroom was completely packed. People sitting shoulder to shoulder, and within a couple minutes before he walked into that courtroom, nobody said anything. It was completely silent. There were 30 victims and victim's family members sitting in the court when Tsarnaev entered, he didn't look at them.

He immediately made eye contact with two women sitting in the Tsarnaev family row. One of them was holding a child with her, small child, an infant, actually, and when he saw them, he immediately smiled and the two women began to sob. I mean, they were visibly distressed and during this court proceeding. He was looking around. He kept touching his face.

He was fidgeting and ignoring what was going on. The judge was speaking to him. He didn't look at her. As the charges were read, he did stand up and said not guilty to each of those charges and said it, Anderson, in a Russian accent. After court, I ran into a couple of his wrestling buddies from high school and they said they were stunned.

He never had a Russian accent and came to court because they wanted to see if this was the same guy. They said it wasn't, between the Russian accent and moving and it wasn't the same guy.

COOPER: I wonder the idea behind the Russian accent. Deb Feyerick, thanks very much. Fascinating. Let's get caught up on some of the other stories we're following tonight. Randi Kaye has the 360 news and business bulletin -- Randi.

KAYE: Anderson, federal investigators say the cockpit crew of Asiana Airlines first told the cabin crew not to evacuate passengers after the jet crashed in San Francisco. An evacuation order was given only after a flight attendant reported seeing fire outside the aircraft.

The engineer of that runaway Canadian train that derailed and burst into an inferno has been suspended and the train's owner said he doubts the engineer's claim that he set 11 hand brakes before the cars derailed, 20 people killed, 30 still missing now.

Wall Street ended its four-day rally. The Dow dropped 9 points as investors weighed the minutes of the June meeting where the job market needs to improve before they would be ready to slow down the stimulus program.

New questions about diet soda, a review of published studies found it may be worse than regular soda. Artificial sweeteners may help satisfy sweet cravings, but the body may crave more sweets, which could lead to weight gain. A beverage group, Anderson, dismiss that report.

COOPER: Randi, thanks very much. We'll be right back.


COOPER: That's all for this hour of 360. A reminder, as we've been doing throughout the Zimmerman trial, we'll see you again one hour from now, a special edition of 360, "Self-Defense or Murder, the George Zimmerman Trial." The defense obviously rested today. Closing arguments begin tomorrow. There are lots to talk about. Our panel will be back, our legal experts as well as an exclusive with Defense Attorney Mark O'Mara on his decision to pursue the strategy with the jury of second-degree murder or nothing. Again, that's an hour from now at 10:00 p.m. Eastern and a regular edition of "360" at 11:00 p.m. with the day's other top stories. "PIERS MORGAN LIVE" is next.