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A Dummy in the Courtroom; Continuing Coverage of the George Zimmerman Trial

Aired July 10, 2013 - 12:30   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: So here's what happened. A prosecutor decided to bring a dummy into the courtroom, a dummy that would appear as George Zimmerman lying prone on the sidewalk. And then the prosecutor got on top of that dummy, so as to signify Trayvon Martin.

Again, you're not hearing backwards. The prosecutor actually is starting to go with this theory that it was Trayvon Martin on top of George Zimmerman.

The science so far and the witnesses have been irrefutable. They now need to figure out how to get out of this.

Let's put up a comparative picture with how John Guy treated the dummy and to the right you see Mark O'Mara treating the dummy.

Mark O'Mara treats it differently than does John Guy. John Guy is pretending to be a retreating Trayvon Martin, meaning he's about to lean back and get away from George Zimmerman down below.

Mark O'Mara is beating that dummy into the ground. It's a very different use of the same prop. The styles are so different.

What's important is what each of them had to say as they did this. Let's start with John Guy, the prosecutor, and what he did to make this demonstration clear.

(BEGIN VIDEO CLIP)

DENNIS ROOT, PRIVATE INVESTIGATOR: In your 90-degree reference, I want to be very clear that I'm not trying to say that the manner which you're demonstrating visually right there with him raising his gun up and you sitting back, I don't know how you could get a 90-degree entry if you're sitting straight back like this.

JOHN GUY, PROSECUTOR: Well, I'm not sitting straight back. I'm just ...

ROOT: From my perspective is all I'm trying to say, sir, is it looks like you're vertically upright and the two of you form a 90.

GUY: Right.

ROOT: And if the two of you form a 90 where you're straight up and he brings a gun to bear, just based on the dynamics of his arm, there wouldn't be a way for it to go straight in. There has to be mutual movement to keep them in line.

GUY: Right. As in, if the defendant started to sit up, and Trayvon Martin was getting up, are you saying that there couldn't be a 90- degree angle?

ROOT: Am I saying there couldn't be a 90-degree angle with him in a half up position and you trying to get up?

GUY: Right.

ROOT: If the bodies become in-lined. In order -- from my understanding to maintain the entry, we're going to have to maintain some relativity between the two persons, right?

GUY: Right.

ROOT: So, the relativity, I can sit here and say the same thing, that, if I'm laying completely back and you're more forward, I can get a 90-degree entry.

If we're both coming up, you're asking me to bring a conclusion. The answer is absolutely yes. If he's getting up and he's getting up together, sure.

There's no way I can sit here and say that, no, you couldn't have two people that are maintaining alignment not have that entry.

GUY: And you were also provided the firearms report, right? And you learned that it was a contact wound with the clothing that Trayvon Martin had on?

ROOT: Yes, sir. The clothing.

GUY: But it wasn't a contact wound with his chest?

ROOT: Correct.

GUY: So that would be consistent with Trayvon Martin leaning over when he got shot?

ROOT: Yes, sir. Sure.

GUY: OK.

(END VIDEO CLIP)

BANFIELD: Can you repeat that?

OK, so here's the thing. We're trying to figure out if we can get the exact moment, which is so critical, of the transfer of the prop, because who knew whether Mark O'Mara, the defense attorney, knew that the prosecutors were going to bring in a demonstrative aid to do their cross-examination in the way of a dummy.

But Mark O'Mara seized upon it pretty darned quick and decided, all right, you're going to use the dummy? I'm going to use the dummy, and I'm going to show this jury exactly what I think went on and how physical this altercation was.

Again, all of this coming through this witness who is considered to be a use-of-force expert, Dennis Root.

Do we have that sound ready to go? Let's play it so you can see the difference in the manhandling of this dummy. Have a look.

(BEGIN VIDEO CLIP)

MARK O'MARA, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: So, George Zimmerman, Trayvon Martin, were the injuries on Mr. Zimmerman's back of his head consistent with someone doing this on cement?

ROOT: I don't think so.

O'MARA: How about this? How about somebody resisting the attempt, the injuries of the two lacerations? Could that have come from cement if somebody was resisting me pushing down like this?

ROOT: I believe so. I believe it was a culmination of downward force, whether it was from pushing or striking, and I know clearly by the injuries to his face and that would drive him back, his head striking hard into the concrete.

O'MARA: Would you expect, based upon your training and experience, that somebody getting their head struck on the cement would attempt to resist it happening?

ROOT: Of course. They would -- normal human instinct is to try to move away from the pain stimulus which would just create another gap and be driven back.

O'MARA: And would that occur not only the first time, but every subsequent time?

ROOT: Whether it's a push or a strike, every time you drive a strike or push straight downward, the body goes until it hits an object that will stop it.

(END VIDEO CLIP)

BANFIELD: OK, so Paul Callan had said to me that he thought that this was a point where the defense might have actually been losing some steam.

Danny Cevallos, I want you to come in and tell me why I'm crazy. I actually thought this was a pretty darn good way of recapturing your redirect and making that your moment and your prop.

DANNY CEVALLOS, DEFENSE ATTORNEY: Sure. There's nothing as effective in some cases as taking the other party's prop and using it against them.

And a note on this concept of over-trying, I absolutely understand where Mr. Callan's coming from, but on the other side, every attorney knows that it's far -- that angst, that fear of sitting down and having not called a witness and having left something unsaid.

This defense has taken a very clear approach. They are going to meet every element absolutely head-on. They're going to call witnesses to refute it.

And, yes, I can understand how audience members might say this is a case of over-trying, but at least for attorneys, there's nothing quite like that fear of what did I leave empty?

And I think that's why attorneys tend to put on more evidence than maybe the observers would care to hear.

BANFIELD: All right. Hold that thought for a moment.

Again, I want to remind our viewers they're not missing anything behind me. It's a brief break in that courthouse.

Man, they worked late last night, until 10:00 at night, absolutely exhausted, and you could see. They were all frayed.

But they got a little later start this morning at 9:00 instead of 8:00, but nonetheless, they're hard at work again today, taking a brief break, grabbing some lunch, giving that jury a moment to breathe.

The Great Seal of the state of Florida is what we get to see when they're in those breaks, but the minute they move away from that Great Seal that you're seeing on your screen, we're going to get you back into live testimony.

During the break, I want you to think of something. If you're staring down the barrel of a gun, literally just right next to you, maybe a few feet away or closer, what are you doing to do?

Are you going to scream? Are you going to grab the gun? Because that's what came up in court.

We're going to show you why that mattered, after the break.

(COMMERCIAL BREAK)

BANFIELD: Before the break, I asked you a question. If you were staring down, and God forbid it happens to you, if you were staring down the barrel of a gun, what would you do?

I think a lot of us would run, but if we didn't have that opportunity, would you scream or would you grab it? Because that's exactly what was going on in this courtroom.

That question, that debate, that argument, it was coming from the prosecutor, John Guy, as he was cross-examining this witness, Dennis Root, the use-of-force expert.

And, of course, what this witness is trying to say is that, look, I'm a defense expert. I'm going to tell you George Zimmerman brought out the gun because Trayvon Martin had gone for it as opposed to he was -- Trayvon Martin was screaming or retreating or running.

Have a listen to how that went down between this prosecutor and this witness.

(BEGIN VIDEO CLIP)

GUY: If Trayvon Martin or anyone would have been in that situation and would have been aware of the defendant's gun, either seen it or felt it, would you expect them to scream for help?

ROOT: You're asking me if somebody -- if I'm beating the crud out of you, and I suddenly know you have a gun, would I expect me to be screaming for help?

GUY: Would that be unusual? (Inaudible)

ROOT: If I am -- you just said if I was Trayvon Martin in that situation and we take it to the place that we've gone with the physical evidence where I'm the aggressor, I'm on you and, suddenly I see you have a gun, my first instinct as the aggressor is not going to be to scream for help.

My first instinct as the aggressor, if I'm the one that's being the aggressor, is to go for the weapon that's going to help me continue my aggression, not prevent it from being implemented to stop me.

GUY: OK, my question was, it would be unusual for a person who saw someone that they were in combat with, with a firearm, would it be unusual for that person to yell for help in your experience?

ROOT: I want to make sure I'm clear because you just said, would it be unusual for a person involved in a combat situation to suddenly see a gun and scream for help?

Is that the question that you -- I want to make sure I'm very clear on -- because I don't want to -- I want to be careful in what I say with what you're asking.

GUY: I'm try to make it more simple. If a person sees a firearm, would it be unusual for them to yell for help?

ROOT: If an average individual saw a gun and it was pointed at them, I would say absolutely not.

Anybody looking down the barrel of a firearm, if you're able to vocalize something, would probably yell for help.

I mean, if you're looking down the barrel of a gun, you would -- I would hope if you're looking down the barrel of a gun, you'd be in fear for your life.

(END VIDEO CLIP)

BANFIELD: I'd be in fear for my life. I don't know what I'd do, though. I don't even know if I'd have the wherewithal to try to bat the gun, run, scream. I'm really not sure. But, Paul Callan, former prosecutor, I am loathe to ask a question I don't know the answer to, especially with somebody as formidable as you. But tell me again why you think this was a loser for the defense.

It sounded like this was a pretty good moment, a pretty good witness for the defense and actually that it backfired. Some of those questions backfired on John Guy.

CALLAN: I think it's a loser for the defense because they were way ahead coming into yesterday, overwhelmingly ahead, and now they put a witness on the stand and they allowed the prosecutor to do a detailed cross-examination.

And bear in mind one thing, the prosecutor is not necessarily wed to one theory of what went down. Trayvon Martin is dead. He can't articulate what really happened.

They're only advocating one -- two theories, really. They're saying Trayvon Martin was killed by a bullet fired by Zimmerman, and Zimmerman is lying about how it happened.

And through the use of the dummy, even though they are using different positioning and through the cross-examination of this witness, they're leaving a seed with a jury that Zimmerman's story just doesn't make physical sense.

And they're going to say in the end, if Zimmerman's lying about one thing, he's lying about the self-defense claim and this is a murder case.

So that's how they're going to try to use this cross-examination, even though, and you're absolutely right, and Mark is absolutely right, and Danny is as well, there are -- this supports a lot of what the defense claims are.

But the jury is looking for an excuse here. If they want to compromise and they want to say, well, maybe this didn't happen this way, now they have the tools to reach that conclusion.

BANFIELD: That I get. That I always get. When a jury doesn't quite know what to do, they feel like they should do something but not the whole ball of wax and they look for those compromise lessers. That I get.

What I don't get, and here is why I think I can argue with you this way, I'm not a lawyer. I'm a juror. I'm actually the guy who doesn't get these legal aspects when you say the prosecutor is not wed to one theory.

I'm sorry, but if you tell me one argument and then mid-trial you start changing it to something else, as a juror, I'm going to be a little pissed off. Legally, you're not wed to one theory.

CALLAN: Ashleigh, in that jury room, OK, the biggest fear here that the defense has is that when they are debating, the jurors, should we convict or not, they're going to throw out the murder count. I don't think there's any possibility of that.

But they may be saying, well, you know, he was a young boy. He was only 17. He was in his own eighborhood. He died. We can't just let this guy go. And somebody else is going to say, well you know something, remember that expert who said that Trayvon Martin might have been trying to get away, did he really have to fire that shot when Trayvon Martin was trying to get away?

BANFIELD: Good point. Good point.

CALLAN: That would give them a reason to support and vote guilty if they're looking for an excuse. Remember, this is a horrible case on the facts for the prosecution. They are grasping at straws to come up with something to present. And you know what happened, the defense handed them a gift today because there are lots of nuggets in this testimony.

BANFIELD: Well, this is why you're the lawyer.

CALLAN: OK.

BANFIELD: This is why you're the lawyer and I don't get it. But I'm a -- I think I'm a good juror because I do wonder when a prosecutor starts changing the theory and saying, well, then if you don't think it happened this way, then how about this way, then I start to get a little annoyed by that. I want you to stick to your facts and stick to your charge and stick to your argument and tell me why I need to believe it. Again, that's me and that's me only. And I'm a proud serving juror of the United States of America.

I have to squeeze in a very quick break, but everybody, you're not going to believe this, Jean Casarez, who is such an astute court watcher because she's a lawyer and because she's covered a few thousands trials, was able to watch the jury. And they're the one that matter here. She watched the jury as those demonstrations went on.

Jean, after the break, I want you to tell our viewers how they responded because they are the only ones in this entire story who count, coming up in a moment.

(COMMERCIAL BREAK)

BANFIELD: Live in Sanford, Florida. I'm Ashleigh Banfield, reporting on the second-degree murder trial of George Zimmerman. And it is winding down. This was the day that we thought the defense might actually rest its case. They went until 10:00 last night, though, and, man, was it a pitched battle in that courtroom. I don't know if they're going to be able to rest the case today. But if they do, you can bet your bottom dollar we may actually have this case to the jury by Friday. It's incredible how quickly it's gone, even though it's been three weeks and I'm not a sequestered juror.

Jean Casarez is live, back with us. She's come out from the courtroom to report on everything we don't see. Jean, the viewers, me, the crew here at CNN, we are riveted to our TV screens. We are watching every moment of testimony. And yet we miss so much by not being in there. How did the jury react to the demonstrations with this dummy?

JEAN CASAREZ, CNN LEGAL CORRESPONDENT: First of all, Ashleigh, the demonstration was so close to the jury box. I mean it was right there. It was so close that the jurors in the second row had to stand up to peer over so they could see. But it was right there and they were able to see it. And they were riveted. I mean this -- if you're getting a little tired before lunch, this wakes you up real fast because there were the demonstrations. And when the defense attorney started to reach for the dummy, it was like, oh, no, we're going to do it again.

BANFIELD: Yes, but you saw the difference, right? We've got a split screen up right now, Jean Casarez, showing your viewers the difference of the demeanor between John Guy (ph), the prosecutor on the left, and Mark O'Mara, the defense attorney who was on the right hand side of your screen, down on the well, on the floor of the well in the courtroom assaulting, I mean assaulting this dummy, slamming its head against the door. That had to be a pretty profound effect on the jury.

CASAREZ: It was. And, you know, Ashleigh, this case has now becomes forensic. Forensics and George Zimmerman or forensics versus George Zimmerman. Because if Trayvon Martin was withdrawing, how far up was he? Was George Zimmerman able to get up too, to then touch the mussel to the clothing. Would Trayvon Martin fall the way he fell if he was upright?

BANFIELD: So, Jean, when you told me that the second row, which is, if I recall correctly, as I've counted out the jurors, we have the six jurors and we have three alternates. There are five in the back row, four in the front row. The male -- the sole male juror sits in the center of that back row and he's quite a tall - I mean he's taller, I mean certainly relative to the women. They all stood up. I also noticed that the defense attorneys had to stand up at defense table to watch the demonstration of the prosecutor. They had to know the dummy was in the court and they had to know this was coming, right?

CASAREZ: I think Mark O'Mara may have just absolutely adlibbed this. Found an opportunity, asked to use the dummy because that's what he did. Where's that dummy? Can I use that? And then, boom, he went with his demonstration. But you're right, and don't forget the gallery, because everybody was straining to try to see from the gallery, which was a little bit more difficult.

BANFIELD: Yes. Wow. But the camera angle was just perfect for this. It's just - you know, you cannot -

CASAREZ: Yes.

BANFIELD: Get a better comparison between direct and cross than these two images on your screen right now.

I have to squeeze in a quick break right now. Jean, stand by. I want to get my lawyers to all stand by. Two minutes from now we're going to come back. We're going to assess just how this day is going because, don't forget, the days are numbered. The defense doesn't have much more time to make some points in its case. Back after this.

(COMMERCIAL BREAK)

BANFIELD: Back live in Sanford, Florida. You're not missing any testimony right now. They're on a brief break but they're coming back soon into this courtroom. In the meantime, perfect opportunity for the score card, the whip around, to find out just how far these two parties have come today. I want to start with Mark Nejame here live with me, renowned criminal defense attorney in Florida.

Best point scored today, worst point lost today?

MARK NEJAME, CRIMINAL DEFENSE ATTORNEY: The state - the guy ended up doing a terrific cross-examination and then made a fatal mistake, one question too many, let the defense go ahead and give a complete narrative of George Zimmerman's testimony without George Zimmerman, once again, not having to take the stand.

BANFIELD: And slamming that dummy's head into the ground.

NEJAME: Boom.

BANFIELD: Danny Cevallos, come in with me and tell me how you think it's gone so far today and if there's a point that stood out.

DANNY CEVALLOS, DEFENSE ATTORNEY: Yes, well, balancing risk and reward of this witness, he talks about the force continuum. Is that really helpful? It's been challenged before. What was the benefit based on the risk? He opened himself up to cross, but boy did the defense come back strong.

BANFIELD: All right, Paul Callan, the wise man, come on in your former prosecutor and let me know what you think.

CALLAN: Ray of hope for the prosecution today. One of their better moments. I disagree with my colleagues very much. I think that an alternative theory has been put out there that will give the jury the ability to compromise, maybe come back with a manslaughter conviction. Trayvon Martin was leaning back and trying to escape when he was shot to death. So I think bad day for the defense today.

BANFIELD: All right, Jean Casarez, wrap it up for me. Tell me where we're going. When we come back from break, what's going to happen?

CASAREZ: We are close to the end, all right, but first of all, the defense fought hard for the toxicology reports to come in. They're not going to let this case end, I don't think, without putting a toxicologist on the stand to show that active ingredient in marijuana was in the system of Trayvon Martin. And then do they end on that or a person we haven't seen in that courtroom Ashleigh is the father of George Zimmerman. He was a magistrate judge for his career, along with being in the military. Could they end on him?

BANFIELD: Wow. That - that's what I'm waiting on, Jean Casarez. Thank you for that. And thank you to all my guests and thank you, as well, for watching today. CNN continues its live coverage here in Sanford, Florida, the George Zimmerman murder trial, right after the break.

(COMMERCIAL BREAK)