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Self-Defense or Murder?: The George Zimmerman Trial

Aired July 10, 2013 - 22:00   ET


ANDERSON COOPER, CNN ANCHOR: The wheels of justice shift into overdrive.

Good evening again. Welcome to another A.C. 360 special report, "Self-Defense or Murder?: The George Zimmerman trial," a trial racing down the home stretch.

As predicted, 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. The defense objected, seeking an all-or-nothing choice for jurors, who could get the case by Friday afternoon.

Defense attorney Mark O'Mara spoke today, saying the jury has what it needs to acquit in his opinion. He joins us exclusively tonight. We will talk as well with one of the Martin family attorneys and of course our legal panel. A full night ahead.

Let's get you up to date, what happened in court today.

Martin Savidge begins our coverage.


MARTIN SAVIDGE, CNN CORRESPONDENT (voice-over): It's been the question dominate thing 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 not to 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, ATTORNEY FOR GEORGE ZIMMERMAN: With all that in mind, and now being (INAUDIBLE) 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 nonconfrontational, lacking a warrior mentality. But it was a dummy that proved to be one of the strongest witnesses of the day.

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

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



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, the 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, FORMER ZIMMERMAN 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 after the break-in, but her testimony also painted a picture of a neighborhood on alert after previous crimes. Then came Zimmerman's father, who answered what has became a mantra for both the defense and the prosecution. Whose voice was screaming for help the night Martin died?


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: A lot going on today, including the high-stakes legal maneuvering and the question of lesser charges and the decision which one of our panel members lost his hat on over George Zimmerman testifying -- or I should say bet his hat.

So, let's bring them all in, legal analysts and former federal prosecutors 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."

He said he would eat his hat is Zimmerman took the stand.

You did not have to eat your hat, because you were right, he did not take the stand. I didn't see you pointing any money on this, though, Mark. Were you as sure as you claimed to be?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: I tried to put out there. I -- track money. I said 50-1 odds. I gave 100-1 odds. Toobin wouldn't take either of them.

COOPER: All right.

How significant, Mark, do you think it was that the prosecution brought out the dummy to exhibit? They essentially seemed to change their story. They seemed to kind of acknowledge, OK, well, they came up with an alternate theory in case that the jury did in fact believe that Trayvon Martin was on top. That's not what they were arguing when they started this trial.


In fact, McDreamy, the prosecutor, as my friend Sunny calls him, was the one who argued before hand that he was on top. Now McDreamy has got Trayvon on top, and the problem with this is, when you're talking about two different theories, and if they are both reasonable, they don't have to be equally reasonable, but both reasonable, and one points towards innocence, one towards guilt, the jury is instructed they must pick the one that points towards innocent and find the defendant not guilty.

This to me is the prosecution conceding reasonable doubt. In fact, it almost seems as if the prosecution is doing what defense lawyers do often, which is trying to stake out a possibility, because the evidence is so heavily weighted against them.

COOPER: I want to play more of what the prosecutor was doing with this dummy, which argues to Mark's point. Let's watch.


GUY: If this person, this mannequin were carrying a firearm on their waist, where would the gun be right now in relation to me?

UNIDENTIFIED MALE: It would be at your left inner thigh.

GUY: Right here, right?

UNIDENTIFIED MALE: Yes, if he was right-handed, it would be at your left inner thigh, yes, sir.

GUY: Right, underneath my leg.

UNIDENTIFIED MALE: Yes, inside your leg.

GUY: OK. Were you aware that the defendant described to his best friend that when he slid down, the defendant slid down, that Trayvon Martin was up around his armpits? Were you aware of that?

UNIDENTIFIED MALE: No, I have not heard that.

GUY: OK. Where would the gun be now?

UNIDENTIFIED MALE: Now the gun would be behind your left leg.


COOPER: Jeff, is it wise for the prosecution to give an alternative view in the case the jury does believe that it was Trayvon Martin on top, as a lot of the evidence points to, or does this just make them seem confused?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I think they have to go where the evidence takes them, and the problem for the prosecution here is that basically all the evidence in the case says that Trayvon Martin was on top. And if you're arguing that Zimmerman was the aggressor, and initiated this confrontation, it's tough to argue if you concede that Trayvon Martin is on top.

It's not impossible. You can say that Zimmerman threw the first punch. You can say that Trayvon Martin was pulling away and that's when he was shot. You can construct a scenario where Zimmerman is the aggressor, even though he's on the bottom. But that's -- I think it's a tough sell.

COOPER: And, Sunny, that's not what the prosecution started out this trial doing.

SUNNY HOSTIN, CNN LEGAL ANALYST: I think everyone is really looking at this the wrong way.

First of all, not all the witnesses are saying that George Zimmerman was on the bottom and Trayvon Martin was on the top. There are several witnesses that say they saw something else, that they saw George Zimmerman on top. That's one thing. The other thing is I think you have to look at what the prosecution is really doing here, and what they're doing is not necessarily conceding that Trayvon Martin was on top.

They are basically pointing out that what George Zimmerman says happened could not have happened. That's what we saw in the courtroom. That was a demonstration that you saw John Guy do. And I think that's very, very effective. So to say that the government is somehow conceding something, I think really is misrepresenting what happened in the courtroom today.

COOPER: Danny, do you think that's how the jury...


DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Yes, I actually agree with Sunny on this point.


HOSTIN: You do? That's shocking.


CEVALLOS: Of course I agree with you, Sunny. That's how I know you're right.


CEVALLOS: With the prosecutors, if we asked them, why are you doing this, I don't think they would say they were conceding at all. I think they would say what Sunny is saying, is that, look, Zimmerman has a theory here, and we're refuting that particular theory. We're not offering an alternate theory.

I think that is what they would tell us. But ultimately it's how we perceive it, we the jurors, we the fact finder. So while it's equally tenable...


GERAGOS: This is what I don't understand. This is what I don't understand, Danny. And I get that. If they're trying to prove that this is not what happened, then why have they now gone through, I believe, the fourth witness where they basically demonstrated with Trayvon Martin on top and they're -- now come up with the theory that he's going back like this, as opposed to coming forward.

If that's what they're trying to do, and they think that is effective, save the tape.

CEVALLOS: Right, absolutely.

And the argument -- what they're using is the makes no sense argument. If he's standing here and the leg is here, it makes no sense the way George Zimmerman tells it. I think they're hoping the jury might go back into the jury room and shut the door and say, well, George Zimmerman's version just isn't credible. Therefore, disbelieve self-defense beyond a reasonable doubt. Look, it's a good bit of improv by a terrific prosecution team with what I think everyone would agree are some very difficult facts for the prosecution. They're doing a terrific job with what they have.

COOPER: Jeff, the fact that the prosecution now has asked for manslaughter and aggravated assault to be added to the second-degree charge for the jury to consider, a lot of people expected that. We talked about this on this panel. Do you think the judge is likely to allow that in?

TOOBIN: I do. I think this case certainly gives the possibility of manslaughter as a verdict.

I also think it's indicative of a certain lack of confidence in the prosecution's case, because if you're really confident, you want the jury to have an all-or-nothing choice, and it's the defense that is saying they want the all-or-nothing choice, they want the murder two or acquittal. And the compromise could be very bad for George Zimmerman, because as we have discussed several times on this program, a compromise verdict of manslaughter could leave him in prison for many, many years.

COOPER: Sunny, does having this lesser charge, does it make the closing argument for the prosecutor more difficult? Because if you're kind of throwing it out for the jury to decide what the charge is, doesn't that sort of make it more difficult for you to argue strenuously one way or another?

HOSTIN: No, not at all.

And prosecutors do it every single day, day in and day out. Asking for lesser includeds, I think all the panel will agree with me, is pro forma, it is standard, and the judge is going to give them the lesser includeds. So prosecutors are used to sort of arguing in the alternative.

Of course, they're going to argue that they have proven beyond a reasonable doubt second-degree murder. But then you just argue, even if you don't believe that, he's still guilty of manslaughter, he's still guilty of aggravated assault. And so they're going to well- versed in doing it.

And I have got to tell you, I think this gives the jury sort of a cornucopia of choices here. So to suggest that he's going to be acquitted given all those choices, I think is..


GERAGOS: I take real issue with this.

I think when the defense says we don't want a lesser -- after all, you're being accused of a crime. The state or the government has the burden of proof. I think when they say we're going to charge you with second-degree, they should be wedded to that. I agree with you that it's pro forma. I think it's outrageous that prosecutors can charge you with one thing, force you to go to a full jury trial, and then say here, OK, we didn't prove that case. Maybe we knew we were never going to prove that case, but, here, jury, you can go convict him of something else.


GERAGOS: ... bait and switch. I don't think that is fair. I don't think that is justice. Just because it happens all the time doesn't mean it's right.

COOPER: Jeff, what about that? This is essentially the government of the United States or the state of Florida going after somebody saying that they have committed second-degree murder, but then also saying maybe we're wrong about that, but it could be manslaughter as well, to argue Mark's point.

TOOBIN: No, I don't think there's anything unfair about that.

It's not a different crime than they were charged with. It is a lesser included offense. It is evidence that the jury could find beyond a reasonable doubt a crime that the defendant committed. This is not a game about which side can prove what. This is trying to determine whether someone...

GERAGOS: Yes, it is.

TOOBIN: ... committed a very serious crime.


COOPER: Let Jeff finish.

Finish your point.

TOOBIN: Well, it just -- if the jury can conclude that he committed a crime beyond a reasonable doubt, whether it's manslaughter or murder two, then he should be sentenced accordingly, because that's what the criminal justice system is supposed to determine, whether people committed crime.


GERAGOS: OK. Understand here, they put you on trial for second- degree murder. You're the one who is being accused of the crime and the government has the burden of proof.

What I'm saying is, I think it's fundamentally unfair for them to make you go all the way through the trial and then realize, hey, we couldn't prove what we made you do. And, by the way, your bail may have been $1 million, as opposed to $60,000, which it would have been for manslaughter, which, by the way, take a look at the bail schedule, that's what happens.

And now we have got to the end of this case, and we screwed up. So, therefore, we want you to be convicted of a lesser crime. I think it's... (CROSSTALK)

HOSTIN: It's not about screwing up.


GERAGOS: Well, clearly they screwed up because they didn't prove the case beyond a reasonable doubt. Or, ethically, a prosecutor is supposed to only bring charges if they believe they can prove it beyond a reasonable doubt.

That is the ethical duty of a prosecutor. What I'm saying is, if they don't believe it, which obviously they don't, because they want a lesser, that's unethical.

HOSTIN: It's not obvious, Mark, that they don't believe...


GERAGOS: Well, let them put their money where their mouth is.


HOSTIN: The law provides for lesser included offenses.

GERAGOS: And I say that should only be...


CEVALLOS: The common criticism of lesser includeds is this, is that there's no disincentive, there's governor, there's nothing to really prevent a prosecutor from overcharging and they have nothing but benefits from it.

Overcharging serves their purposes. It's strategically beneficial because part one is you can ask for lesser included offenses. The other part of it is that if you hit someone with a charge that's in the stratosphere, they're going to come around and you can bargain with them.

COOPER: They may settle, right.

CEVALLOS: Yes, so either on the bargaining stage...


GERAGOS: And they may end up pleading.


COOPER: Mark, final thought? Then we have to move on.

GERAGOS: Well, because -- and you force people to plead, because if they're facing something that's got a life with it, and they have to take -- or they're exposed to life and they want to take something less, they may end up pleading to something they're not guilty of. That's the problem with the system.

COOPER: All right. Let me know if you're following us on Twitter right now. Let me know. Let's talk about it on Twitter. See what you think about that. Is it fair for the state to be able to go for these lesser charges as well.

So much ground to cover. Let's take a quick break. I want to talk to you about the judge, Debra Nelson, how she's been running a very tight ship. We are going to show you some of the choice moments, the exchanges she's had particularly with the defense in this case. We will be right back.


COOPER: Hey. Welcome back.

When Judge Debra Nelson got the case last summer, a "Miami Herald" profile described her as -- quote -- "a no-nonsense judge who keeps lawyers on their toes."

She certainly has done that, pushing both sides to keep things moving and sometimes to just be quiet. Here's a small sample just from today as defense attorney Don West tried and failed to have the last word.



NELSON: Have you made a decision, sir, as to whether or not you want to testify in this case?

DON WEST, ATTORNEY FOR GEORGE ZIMMERMAN: Your Honor, I object to that question.

NELSON: OK. Overruled.

Have you made a decision as to whether or not you want to testify in the case?

WEST: I object to that question. I think that's...


NELSON: Overruled. The court is entitled to inquire of Mr. Zimmerman's determination as to whether or not he wants to testify.

WEST: On Mr. Zimmerman's behalf...


NELSON: I am 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 overruled.


COOPER: All right, let's go back to our panel, Sunny Hostin, Jeffrey Toobin, Danny Cevallos, and Mark Geragos.

Sunny, is this the kind of thing that happens in court all the time?

HOSTIN: It really does. You get some judges that don't like you. It's happened to me. You get judges that do like you.

And it's a high-pressure situation. They are duking it out in the courtroom. They're working really long hours. It's very, very stressful. And so I think these kinds of exchanges happen. I will tell you, I think the judge maybe went a little too far when she walked out when Don West was speaking.

But it was late at night, and she's got to keep control of her courtroom, which certainly is what she's doing, because, if she didn't doing it, they would run all over her. They're very aggressive attorneys, much like all the men on this panel. And she's got to be able to take control, just like I do.

GERAGOS: Unlike poor, timid Sunny, that poor little wallflower Sunny.


CEVALLOS: It's true. If you have ever been in a nice guy judge courtroom, it's nice to be in front of a judge that's very civil. However, those are the courtrooms that tend to take about an extra three hours to get through their list.


CEVALLOS: There's something to be said for an efficient judge, and she's absolutely this, absolutely. She's a very efficient judge. There are judges I think are terrific to be around, but I better not make any afternoon appointments if I have a listing there in the morning.

COOPER: Jeff, do you agree with it?

TOOBIN: The key fact about this case is that the jury is sequestered. These are ordinary citizens stuck in a hotel room where they can't see their family, they can't communicate with anyone. And this judge does not want them, in effect, in prison for any longer than they have to. That's why she sat on weekends. That's why she sat until 10:00 last night.

I mean, that's excellent judging, as far as I'm concerned. And also, by the way, she made two very good rulings today. She kept out this ridiculous high-tech cartoon that the defense wanted to play as evidence.

HOSTIN: That's right.

TOOBIN: And she kept out Trayvon Martin's text messages, which suggested some sort of improper behavior on his part, which I thought was completely irrelevant.

COOPER: And her point on those text messages was you couldn't prove one way or another who actually sent the text. Even if it's Trayvon Martin's phone, somebody else could have been using his phone. That was her argument or some of the questions she raised about it.

Mark, you agree, though, that -- do you agree that this ruling by the judge to not allow what Jeff calls this high-tech cartoon into the trial, as opposed to just -- it's going to be allowed into the closing arguments by the defense, but not into the trial, so it can't actually be cross-examined.

GERAGOS: Well, and I think that's the proper ruling. I said last night I thought she was going to let it into the closing.

And, frankly, he's better off having it in the closing, because -- he being Mark O'Mara, because then you're not going to have the person who made this up have to concede point after point where this doesn't fit with the prosecution's theory. You get to put that animated feature, if you will, on in the closing argument. It's going to be played, un-cross-examined and the jury will watch it.

I think it's a wonderful way to break up a closing argument, which sometimes may go on too long.

CEVALLOS: This is an example of zealous advocacy.

Mark O'Mara in his interview earlier with you, even -- you could hear it in his voice. I don't think he ever thought it would come in as substantive evidence. But, again, that is the adversarial process. He shoots for the moon and he gets somewhere in the middle, which is what he wanted. If he had gotten it in as substantive evidence, wahoo, good for him. It would be tremendously compelling.

Now he's in a place where he would like to be anyway. We saw that with the THC too. That was admitted. They didn't even use it. But Mark O'Mara said, look, we want to be the ones to decide whether we can introduce evidence or not. That's our decision to make, again, zealous advocacy. He got it in. He fought for it to get it and then ultimately, tactically, he made a decision, we're not going to use it.

HOSTIN: Let's remember something, though, about the cartoon. The prosecution did not object to the defense using it in closing arguments as a demonstrative aid. That tells me, as a former prosecutor, they think that that evidence -- that aid is good for them as well.

So I'm convinced that in rebuttal, when John "McDreamy" Guy gets in front of that jury, he's going to use that cartoon to the state's advantage. Let's save the tape, Mark, because that's what's going to happen.

CEVALLOS: We don't use tape name anymore, do we?


GERAGOS: I don't know. Aren't we digitized?

COOPER: Yes, we are.

CEVALLOS: It's on my iPod.


COOPER: Sunny, how do you think they're going to use -- how do you think the state is going to use that to their benefit?

HOSTIN: Yes, one example that was glaring to me when we saw little snippets of it in the courtroom is the cartoon basically has Trayvon Martin approaching George Zimmerman and slugging at him with his left hand.

All the testimony is that Trayvon Martin is right-handed. Right there, that is a significant, significant inconsistency that doesn't make sense. We all know that we have dominant hands. And I can't imagine that that's going to be lost on the jury. And that's just one tiny example.


GERAGOS: You know what's amazing, Sunny?

HOSTIN: Yes, Mark Geragos?

GERAGOS: What's amazing is that you use the rhetoric of calling it a cartoon, as if you're already diminishing it. It's not a recreation.

HOSTIN: It's a cartoon. It's an "Avatar" cartoon.


GERAGOS: It's a cartoon. The cartoon makes it a pejorative when you use that language that way.

I think it couldn't be better for the defense to put it up there and say this is one reasonable possibility of what happened. And, by the way, if there's a reasonable possibility that this is the way it happened, you must find the defendant not guilty.

HOSTIN: It's going to be shredded by the prosecution. It's going to be shredded.


COOPER: We have got to leave it there. And just for the record, I think it was Jeff Toobin who first used the term cartoon, just for the record.

TOOBIN: Thank you.


COOPER: We will pick up the conversation shortly.

Coming up next, a 360 exclusive. I will talk to defense attorney Mark O'Mara about what we have all been talking about tonight, why his client did not testify and why he wants the jury to consider the maximum charge against him, second-degree murder, and nothing else.

Also, you will hear from the Martin family attorney Daryl Parks, his take on the day in the court and the kind of job he thinks the prosecutors have been doing.

We will be right back.


COOPER: Hey. Welcome back.

Long before the trial, defense attorney Mark O'Mara was fighting for George Zimmerman in the court of public opinion. And today, following his client's wishes, he kept George Zimmerman off the stand. And as we have been reporting and debating and second-guessing, he pushed for an all-or-nothing second-degree murder charge for jurors to consider, no lesser offenses.

We will see if the judge -- what she actually agrees to do tomorrow. Also today in court, as you saw, he wrestled with that dummy that the prosecutor brought in. It was a big day for Mark O'Mara.

I spoke to him 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 have known he's not going to testify.

O'MARA: 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 with counsel. and George wanted to include that information. So that was just a little bit of confusion about that point.

COOPER: What finally convinced him not to do it? I mean, I assume your advice was not to do it.

O'MARA: Yes. The way I look 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 would consider putting any defendant on the stand. And I just don't think that they presented it, so there was 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 that manslaughter and aggravated assault be included in the charges in addition to second-degree murder. A lot of analysts I've been talking 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, they should convict him of 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. It doesn't fit the facts of the case, and I don't want this jury to have what they perceive to be some compromised verdict. They should look at the facts, look at the law, apply it, and acquit them.

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. It's on 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 jurors' 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. Along with it is there for me to show the jury what probably happened that night.

COOPER: You said 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, and 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 persuade 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're going through right 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 relayed a proper evidentiary foundation to let it 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, really 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 from 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, DEFENSE ATTORNEY FOR G. ZIMMERMAN: It's simply unfair for Mr. Zimmerman not to be able to put on his defense because of the state's tactics. It was strategy, obviously, because they had it in January and kept it from us. Made us spend 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 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. In 30 years of practice, I've never filed a sanction violation request with the court.

In this particular case, and what frustrated Mr. West so much, was that we now know with 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 4. That type of discovery violation is significant, and it negatively impacted our way to get prepared for the trial. And I can understand with 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 point, 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's overwhelming evidence that he did act in self-defense. There's very 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 than 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 them, instead of the way George yelled them, and they sort of mention the loss of a 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 in 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 anything out. Hopefully, I'll be able to communicate verbally what I want to, because I'm just going to get up there and talk to them.

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

O'MARA: Sure.


COOPER: I would definitely need to write it out.

Now 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 lawyers. They have to watch others try the case that they themselves are so connected to.

Earlier tonight, I spoke with Martin family attorney Daryl Parks.


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

DARYL PARKS, 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 something -- is it somewhat maybe of a relief that they don't have to go through that, hearing it?

PARKS: Well, 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 had 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 had 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 -- if he was convicted of a lesser charge, he could still do just about the same amount of time because of the mandatory gun sentencing.

PARKS: Well, all along, they've 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 -- 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 a manslaughter charge?

PARKS: No. You have to remember this has just been an emotional time. As you just heard from the father, Tracy Martin on the stand, he and the mother are 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 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 I wasn't sure, but now that I've 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 we heard. We heard Tracy Martin say that he backed away, and we heard Detective Serino back away. What he said was, under his breath Tracy Martin murmured something and that he interpreted what Tracy Martin said as a no.

The fact that he said that he interpreted it makes it clear that it was somewhat unclear. But also, Serino said that Singleton was not there. So there's some issues there in terms of what he said.

But most importantly, though, we must remember that he had heard a series of 911 calls, and at the end he heard this gunshot 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 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.

PARKS: Thank you.


COOPER: A few moments ago, you heard Mark O'Mara say that a lesser charge for Zimmerman is simply not legally appropriate. We've been debating the issue all night. The question is, does his reason for opposing it actually make any legal sense? I'll talk to the panel about his justification, next.


COOPER: Welcome back. Before the defense rested today, a former neighbor of George Zimmerman's took the stand and talked about being the target of a home invasion. This happened about six months before Trayvon Martin was killed. The neighbor said she discussed the break- in with Zimmerman about 20 times and he was very helpful. Here she is on the stand today describing the incident.


OLIVIA BERTALAN, FORMER NEIGHBOR OF GEORGE G. ZIMMERMAN: I saw two young African-American guys were ringing my doorbell repeatedly and kept on looking up at the window. And I called the police. They broke into my house. I heard some bangs downstairs. The dispatcher told me to grab any weapon I had, because I had my son in my arms. He had woken up. And just prepare to use it if I had to.

The guy was -- I was locked in my son's bedroom, and he was shaking the doorknob, trying to get in. I was standing there with a pair of rusty scissors and my son in one arm. And the police came, and they ended up leaving.


COOPER: Let's go back now to our panel: Sunny Hostin, Jeff Toobin, Danny Cevallos, and Mark Geragos. Sunny, what do you think the point of that witness was? I mean, was it simply to show that George Zimmerman, in the defense's opinion, is a concerned guy who looked out for his neighbors and that there was a track record of break-ins in this neighborhood?

SUNNY HOSTIN, CNN LEGAL ANALYST: You know, I have to say I was so very confused by this witness, because in my view, she sort of reinforced the fact that George Zimmerman was this wannabe cop, and that when he saw Trayvon Martin, he had in his mind that Trayvon Martin was a criminal, was just like the African-American teens that had broken into this woman's house. And she also said that she had spoken to George Zimmerman about 20 times about it.

So I've got to tell you, I don't understand why the defense put this witness on. Quite frankly, I don't understand why the defense put any other witnesses on after Di Maio. He was a terrific witness for them.

COOPER: I want -- I want Danny to respond, but I just want to show a little bit more of her testimony today.


O'MARA: When Mr. Zimmerman came to you to talk to you about having been victimized by a home invasion, did you consider that strange?


O'MARA: Were you appreciative of his efforts to help you out?


O'MARA: Tell me about that.

BERTALAN: We were terrified when this happened. I was just appreciative that he was offering his hand and told me that I could spend time with his wife if I needed to go somewhere during the day, because I was so afraid.

O'MARA: Did he bring to you a lock to help you with the sliding glass door?

BERTALAN: Yes, he did.

O'MARA: Did you consider that weird or unusual or strange?

BERTALAN: No, I was very appreciative.


COOPER: So Danny, Sunny said she thought it made him seem like a wannabe cop. What do you see?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Maybe, but I have to respectfully disagree with Sunny here. Here's a little test you can take it -- you can take it at home. It goes a little like this. Anderson, if I tell you a story that men, young men are looking in the windows of your neighborhood, peering around, breaking in; there have been burglaries, if you hear that story, is your first response, well, as long as there aren't any wannabe cops in the neighborhood; or option two, is it what are we going to do about the young men who are breaking into houses in our neighborhood?

Remember this jury. You have a jury of women who are probably almost entirely women who are a lot, probably, like this witness, and their chief concern isn't going to be, hey, man, is a wannabe cop profiling in my neighborhood, or oh, my God, I have children, and there are people breaking into houses in my neighborhood? What do we call? Call the Marines.

COOPER: It is interesting, Jeff...

HOSTIN: I have children, then maybe I shouldn't let them walk. I have children, and maybe I shouldn't let them walk around in the rain for a candy run, because they'll get gunned down. You know, I don't understand your argument, Danny.

CEVALLOS: I don't think they're thinking that. I don't think these mothers are thinking that. I think their chief concern is there's burglaries in my neighborhood. What do we do now?

COOPER: Jeff, do you think this made George Zimmerman more likable, less likable?

JEFF TOOBIN, CNN LEGAL ANALYST: You know, I think it's -- what's puzzling to me about this testimony is that it's at the very end of the case, right? These jurors already think something about George Zimmerman. They have formed an opinion about him.

What's so interesting about this testimony is that it will reinforce whatever they already think: that he's a wannabe cop, that he's nuts, that he's out to get black people. Or that he's a concerned citizen who works, you know, with his neighbors to try to stop crime in the neighborhood.

I mean, there is nothing that makes you insane if you work == if you're a Neighborhood Watch people -- person. There are lots of people in this country who do Neighborhood Watch work. Most of them, fortunately, don't wind up killing innocent people out on the street. But the idea of working in the neighborhood does not make you, like, a crazy wannabe cop.

COOPER: And the last witness was George Zimmerman's father, testifying about the 911 call with someone yelling for help on it. Let's just quickly play that.


ROBERT ZIMMERMAN SR., GEORGE ZIMMERMAN'S FATHER: They provided me headphones, and they reminded me I was still under oath and would I listen to? I said, "Yes, I'll listen to it." And then they asked me did I recognize the voice.

O'MARA: And what did you tell them?

R. ZIMMERMAN: I told them, "Absolutely. It's my son, George."

O'MARA: Is that an opinion that you still have through today?

R. ZIMMERMAN: Certainly.


COOPER: So Mark, George Zimmerman's mother, the uncle, a lot of friends all testified it was his voice earlier. Why save this one to the last?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Well, because of his stature, because of his background and everything else.

Look, I'm not quite as puzzled as everybody else on this panel as to why they put that woman on the stand. In fact, if I have to explain to you why they put this nice, young, white woman, who had a break-in with a black boy and then she complained to George Zimmerman, if I have to explain that to the panel, then I need to turn the channel and go over to the Hysterical Ladies Network. Because this is a no-brainer. It's clear what the defense is doing here.

I mean, hello, guys, what are we talking about here? Why do you think they saved her to last?

Jeff is completely right: they've already made up their mind. This woman was nothing more than a prop so when they go back into that jury room, they can say, "Yes, but what about her?" whenever somebody may make the argument that he's a wannabe cop.

HOSTIN: Do you think women are that unsophisticated? You think women are that unsophisticated...

GERAGOS: No, I don't think they're that unsophisticated.

HOSTIN: ... that they can't see past that?


GERAGOS: ... are not. Sunny, I didn't say that. I wish you'd listen to me. All I said is, when you say it's puzzling, it's hardly puzzling. It's -- you know why they did this.

COOPER: We've got to take a quick break. OK, Jeff. Yes, OK.

TOOBIN: The Hysterical Ladies Network, which one is that? Is that on my...


COOPER: Maybe that one is not on your cable package, Jeff.

TOOBIN: It's not. I've got to start paying extra.

COOPER: Yes. Ixnay on the HLN-ay.

Stick around. We're going to get the final thoughts about closing arguments starting tomorrow. We'll be right back.


COOPER: And we're back with our panel. Just a few seconds left. Some final thoughts. Sunny, prosecution begins closing arguments tomorrow afternoon. What is crucial for them to accomplish?

HOSTIN: I think they have to put all those puzzle pieces together, Anderson, and show the picture to the jury. I think they have to hone in on the inconsistencies and show the jury that George Zimmerman's version of events could not -- could not have happened.

COOPER: And Sunny, do you still believe they can get a second- degree murder conviction?

HOSTIN: I do. I do. I know I'm the lone wolf out there on this panel, but I do.

COOPER: All right. Jeff Toobin?

TOOBIN: Yes, I think the prosecution has to deal with this question of who was on top. I think that's very -- that's a really hard problem for them. And the idea of what happened here. I mean, give us a complete picture of what happened when, who did what to whom in a way that's consistent with the evidence. And I think that's a really tough assignment, considering how contradictory the evidence is.

COOPER: Mark, does it surprise you to hear that Mark O'Mara says he doesn't write out his closing arguments before?

GERAGOS: No, it doesn't at all. I don't write out my closing arguments. I may take notes.

COOPER: That's like Nik Wallenda going without a net. I mean...

GERAGOS: No. You've got to -- one of the things you do with a closing argument is you live -- first of all, you live the case. I mean, you're into that trial, 24-7; you dream about it. You get up there, you've rehearsed it in your own mind. And when you get up there, you talk from your heart. And I will tell you, it's...

HOSTIN: I don't write mine out either.

GERAGOS: ... amazing that Sunny believes -- it's amazing Sunny believes it will be a second-degree. Because you interviewed -- what was his name, Parks? -- Mr. Parks.

COOPER: Yes, Daryl Parks.

GERAGOS: Mr. Parks, the lawyer, said he didn't think they'd make second-degree.

COOPER: All right. We're totally out of time. Danny, your comment? Do you think they can get a lesser charge?

CEVALLOS: It's possible but get your popcorn ready. Closing arguments, my favorite part of the trial.

COOPER: Really?

CEVALLOS: Best show.

COOPER: All right.


COOPER: All right. Randi -- that's right. Thanks very much, everybody, for watching this special edition. Join us again tomorrow night, 8 p.m. for AC 360, then 10 p.m. Eastern for more on the Zimmerman trial.