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George Zimmerman Trial; Expert: Try To Avoid It If You Can; Dennis Root, Olivia Bertalan Testify

Aired July 10, 2013 - 14:30   ET

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

(COMMERCIAL BREAK)

BRIANNA KEILAR, CNN ANCHOR: We are monitoring the Zimmerman trial. This is Dennis Root on the stand, a defense witness and expert in law enforcement as well as the use of force. Let's listen in.

DENNIS ROOT, PRIVATE INVESTIGATOR, LAW ENFORCEMENT TRAINER: -- that you're referring to really come into play based on what you're capable of doing, not simply because this event's happening, you have another option.

JOHN GUY, PROSECUTOR: Don't the options also depend on what the other person is doing, in this case, Trayvon Martin?

ROOT: Well, absolutely.

GUY: So your determination as to what Trayvon Martin was doing at the time he was shot came from him, right?

ROOT: That was one of the elements that I considered for that. But when you take the small portion of weight given to a statement and then you add in the other evidence that surrounds the event, the injuries and everything, to see if it corroborates to a point that it seems plausible.

That this exactly is what took place and everything lines up to say yes, based on what I see here physically, the injuries and so forth, this all makes sense. So the opinion is that based on what he told me in combination with all the other variables involved, that's how I formed my opinion.

GUY: Yes or no. Do you know what Trayvon Martin was doing at the moment he was shot?

ROOT: Yes.

GUY: You do?

ROOT: You're asking my opinion. Based on the information I was given the opportunity just like I could look at you and say, I don't know what Mr. Zimmerman was doing, I don't know what Mr. Martin was doing. If you're looking for me to say that I don't know if Trayvon Martin was doing this one specific thing, we're talking about the totality.

It's how I formed my opinion. You're asking me about what was he doing at that time. It appears clear through the evidence, if you want me to just surprise and say that, well, based on your perspective he wasn't doing this or George Zimmerman wasn't doing that.

GUY: I asked you a very simple question. Do you know what Trayvon Martin was doing at the moment he was shot?

ROOT: I personally was not there. So I cannot attest to specifically knowing exactly what Mr. Martin was doing at the time. I can only base my opinion on the totality of the evidence as I've learned it throughout my exploration of this case.

GUY: Which includes your perceptions or his perceptions as he told them to you, right? Didn't you say the defendant's perception is important?

ROOT: The perception of an individual involved in any conflict is what you have to take into consideration when making a force decision. So the perceptions, if I told you I had a perception that the jolly green giant was jumping on me, that would be ridiculous.

But if I was in this booth right behind here and said I had the perception that one of these wires were wrapped around my ankle, it was plausible. The perception is taking in the totality of the event as it unfolded to see if the perception that was related by Mr. Zimmerman was plausible.

GUY: Right. The perception as related by him.

ROOT: Absolutely, yes, sir.

GUY: And your conversation with him came about two or three months before his second-degree murder trial, right?

ROOT: Sure. That sounds about -- about accurate, yes, sir.

GUY: You were asked about testifying -- this isn't the only time you've ever worked in a criminal case, right, on behalf of a defendant, is it?

ROOT: No, sir.

GUY: You've been consulted on plenty of cases on behalf -- on behalf of defendants, right?

ROOT: You're going to have to qualify that a little bit more. In saying I've been in a bunch of cases on behalf of the defendant.

GUY: Have you ever been retained, hired, by a defense attorney in testify on behalf of or consult on behalf of a criminal defendant.

ROOT: A criminal defendant I believe retained -- it's in my curriculum vitae. I don't want to misspeak this. Twice, maybe, I think. One would have been I think the chambers case. The other one would have been where I consulted, didn't have to testify either by deposition or in trial, the name of the gentleman is escaping me. But it's toward the bottom of my CV. GUY: This is just the first time you've testified in front of a jury?

ROOT: Yes. In a criminal case in this way, it is the first time I've done this, yes.

GUY: And you mentioned the continuum of force. The force continuum, that applies to law enforcement officers, right?

ROOT: The force continuum is a con acceptable model, when you look at use of force, Florida state statute, that's a continuum. It's a systemic approach to the escalation and de-escalation of force. The use of words "continuum" came out of law enforcement, yes. The actual application of a concept is regardless whether you're in law enforcement, you're in the military or you're an individual on the streets Orlando. A continuum is still part of the conceptual variables when looking at a use of force event.

GUY: You were asked about getting punched in the nose. You don't know when George Zimmerman was punched in the nose during this confrontation, do you?

ROOT: No. He was punched during obviously repeatedly during the event. The exact time that injury to the nose was sustained, I cannot tell.

GUY: It may have not even been from a punch, right? At no time you say earlier it could have been when he hit it on something else?

ROOT: No. I never said that. I never said that George Zimmerman hit his face on anything.

GUY: Could it have been caused by something other than a punch?

ROOT: In this event, I'm not aware of anything else that was present to have resulted in that injury.

GUY: You're not aware of the concrete?

ROOT: I do not believe that a facial contact of that nature with concrete, without seeing other types of abrasions to the face and the eye areas. Because when you're talking about a force significant enough to cause that damage to his nose, with an impact on a flat, hard surface, you're going to have continued roll over, which is going to increase injuries in some area around the face. It was pretty clear that the abrasions around the eyes or anything like that. I wouldn't recommend the position that concrete caused that nose thing.

GUY: Let me ask you this. You've been punched in the nose before, right, during a fight?

ROOT: Absolutely.

GUY: You didn't quit, did you?

ROOT: I didn't quit?

GUY: Did you keep fighting?

ROOT: No. I'm a fighter.

GUY: So you kept fighting?

ROOT: Absolutely. If you're a fighter, that's a whole purpose of entering into a fight is you fight.

GUY: And you've seen other people continue to fight after they've been hit in the nose, right?

ROOT: I have seen both. I've seen people that when they've been struck, it exits the fight right there. The fight continues, but they are not able to respond in any form or fashion. And then I've seen others. I mentioned earlier about the warrior mindset. Not everybody has that.

So when you look at an individual, if they're involved in a physical altercation and they don't have that internal fire to be involved in that way, they're not going to fight. When the fight starts, they're going to have that person that's just beaten.

Where conversely if you have somebody that's got the warrior mindset, and they're struck, they're going to return in like fashion. And then you have two individuals with the same mindset going about one another and you have tremendous damage to both persons because neither one of them is going to stop.

GUY: All right.

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GUY: So it's possible you can shoot somebody almost at any angle because we have arms and wrists and elbows, right?

ROOT: Anything's possible, yes.

GUY: You were asked a question, I think, before the lunch break about was it your opinion that George Zimmerman's perception of the threat had disappeared because Trayvon had run off? Is that what you said?

ROOT: I'm not sure I was very clear on that. When I listened to the call and I heard Mr. Zimmerman mentioning Mr. Martin in the recording where he was facing him, my perception of that call at that time, I sensed stress in his voice about the fact he was approaching him, looking at him, his hand was going toward his waistline.

As he left, that tension diminished. That, to me, also reinforced what I'm already heard from Mr. Pollack and saw from, again, reviewing the information in this case. He's not the confrontational one. He's not that I'm going to get on you type.

When Mr. Martin ran, basically he's running. There's no immediate threat to him. His perception is he's taken off running. So he gets out and that's where he is now trailing or following, I would say following the person, to see where they went. Because that's what he was doing for them.

GUY: Well, didn't you hear the defendant say I don't want to give up my phone number because I don't know where he is?

ROOT: Yes.

GUY: Doesn't that indicate to you that he still might be a little concerned about what's going on?

ROOT: Mr. Zimmerman?

GUY: Yes.

ROOT: Absolutely. I mean, when we look at it that way also when we're talking about timelines, if we're thinking about the "t" and he took off running to make it home, it's my understanding home wasn't that great a distance away. Considering his age, how come he wasn't able to make it the exact distance.

If he's still in the area, it's presenting a concern for Mr. Zimmerman because he's lost complete sight of him. He's visual acuity is minimal because of the darkness. You're looking at an individual that's walking back and he's uncertain as to whether or not he's actually still there so he doesn't want to give out his phone number.

GUY: Let me ask you one more question about the firearm. Are you aware that the defendant was trained by a federal marshal how to shoot?

ROOT: Yes.

GUY: You also said an interview is better if it's delayed?

ROOT: Mot all interviews. We're talking about the use of deadly force. It's a common practice to delay the interview because of the known memory loss issues and the extended time before you conduct a thorough investigative interview of a police officer.

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GUY: -- a warrior mindset or not?

ROOT: Based on the information I received from probably one of the most important persons I talked to in that regard was Mr. Pollack, the gym owner. His description of Mr. Zimmerman was not confrontational. Everything I've reviewed in this case would indicate the opposite.

He was not the type that had what we would refer to as a warrior mindset. That -- that inner fire that compels you to be a fighter, that compels you to be that person that you want to get in the ring to test your skills against another person.

GUY: Was there anything but for the gunshot the lack of injuries on Mr. Martin that helped you with that decision?

ROOT: Based on the injuries that I -- we've all seen on Mr. Zimmerman and the lack of injuries on Mr. Martin, I would take that as evidence that he didn't have any striking. Even though he's on the ground and in this tussle, he did not do anything of any significance that would have been able to even result in an injury to him. That would support again the same information I already derived from another source.

GUY: He didn't even land a strike, at least one that left a mark, did he?

UNIDENTIFIED MALE: I'm going to object to that as calling for speculation.

JUDGE NELSON: Sustained.

GUY: How about any evidence gathered from this event that suggested that Trayvon Martin did have a warrior mentality or mindset?

UNIDENTIFIED MALE: I'm going to object to that as beyond the scope and in violation of an earlier motion.

GUY: My response?

JUDGE NELSON: Sustained as to the violation.

MARK O'MARA, ZIMMERMAN'S DEFENSE LAWYER: The door was opened, your honor. It was this prosecutor that asked that very question. I'm just asking him to focus --

JUDGE NELSON: You've already asked your questions about that.

O'MARA: I'm now asking about Mr. Martin, not Mr. Zimmerman any longer.

JUDGE NELSON: My objection -- my ruling remains sustained.

O'MARA: Yes, your honor.

GUY: Is there any evidence in the case that you've looked at that would suggest that even through the 45 seconds worth of screaming, that the attack stopped?

UNIDENTIFIED MALE: Judge, I'm going to object to that as calling for speculation.

JUDGE NELSON: He asked him if he's aware of any evidence. I'll allow it.

ROOT: No. I saw nothing that would indicate that to me.

GUY: Thank you. Nothing further, your honor.

JUDGE NELSON: OK, thank you. May Mr. Root be excused?

O'MARA: Subject to recall, your honor.

JUDGE NELSON: Thank you very much, sir.

O'MARA: May we approach on the issue of recall for a moment?

JUDGE NELSON: We can address that later, but I will tell him he's subject to being recalled. Then we'll address the issue about being recalled later. You're excused from the courtroom today, but you're subject to being recalled. Please call your next witness.

O'MARA: May I just have a moment?

JUDGE NELSON: Yes.

KEILAR: Let's go ahead and bring in CNN legal analyst, Sunny Hostin, watching this trial in Sanford, Florida. Sunny, many days, including when prosecution witnesses were on the stand, it really looked like the defense seemed to be having a better day. But looking at today, and even just the body language Of Mark O'Mara, they don't seem to be quite as confident. This defense witness doesn't seem to have served George Zimmerman's case particularly well.

SUNNY HOSTIN, CNN LEGAL ANALYST: Yes. This was a mistake by this defense. And let me make it clear, the defense has been doing a really good job. These are excellent attorneys. No question about that. But sometimes when you're in the thick of it, you can't really see the forest for the trees.

You just can't see. You lose somewhat of a sense of how well you are doing and this witness just didn't need to be called. I don't know that he added anything for the defense and the prosecution did such an effective job of cross examining the witness, he came off as being biased. He came off as being very speculative.

KEILAR: Sunny, I'm so sorry to interrupt you. There is a new defense witness on the stand that we want to listen in on.

OLIVIA BERTALAN, ZIMMERMAN'S FORMER NEIGHBOR: -- t-a-l-a-n.

O'MARA: And at one point back in February of actually early 2012, did you live in the retreat at Twin Lakes area?

BERTALAN: Yes.

O'MARA: Have you since moved out.

BERTALAN: Yes, I have.

O'MARA: Are you married?

BERTALAN: Yes, I am.

O'MARA: Do you have any children?

BERTALAN: Two.

O'MARA: Their ages?

BERTALAN: Two and a half, and 4 months. O'MARA: OK. Going back, then, to when you still lived at retreat view circle, did an event happen at your residence where a crime was committed?

BERTALAN: Yes.

O'MARA: Could you explain to the jury what happened with that?

BERTALAN: I was home on a Wednesday with my son. He was, I think, 9 months at the time and I heard someone ring my doorbell repeatedly. So I went to check upstairs because I didn't have a peephole. And I saw two young African-American guys ring my doorbell repeatedly and they kept on looking up at the window.

I called my mom because I didn't know what to do. They left. Then after a while, I went back upstairs to check one more time and they were walking in front of my house. One came towards my house and I called -- I was on the phone with my mom at the time. I started crying. 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 prepared to use it if I had to. The guy was it -- I was locked in my son's bedroom.

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 and the police came and they ended up leaving.

O'MARA: Do you recall approximately when this happened?

BERTALAN: August 3rd of 2011.

O'MARA: And did you then take a place of refuge or hiding while this was occurring?

BERTALAN: Yes, I did.

O'MARA: Where did you go to hide?

BERTALAN: My son's upstairs bedroom.

O'MARA: In the closet?

BERTALAN: I wasn't in the closet. I was in the far corner because the closet was closer to the door. She said to get away -- as far away from the door as possible.

O'MARA: Did you have your son with you during that time?

BERTALAN: Yes, I did.

O'MARA: When -- did the people who were downstairs at some point, did they leave the house?

BERTALAN: Yes. I guess they escaped before the cops got there. O'MARA: Did they take any items with them?

BERTALAN: Yes, they did.

O'MARA: What did they take?

BERTALAN: My camera, our laptop. They tried to get our TV. It was unhooked. But he had it hooked up to our computer so they couldn't get it off. I think there was something else. I can't remember what it was, definitely our camera and my laptop.

O'MARA: At some point, then, one of those people -- at least one of those people were arrested and found and arrested and charged with that crime?

BERTALAN: Yes.

O'MARA: And do you know what happened? Do you know the person's name?

BERTALAN: His name was Emanuel Burgess.

O'MARA: And is that the reason why you moved from that area?

BERTALAN: Yes.

O'MARA: Nothing further, your honor.

JUDGE NELSON: Thank you.

GUY: Miss Bertalan, good afternoon. You had some contact with George Zimmerman after that event, did you not?

BERTALAN: I did.

GUY: OK.

O'MARA: Judge, outside the scope of direct.

GUY: Judge, it's -- it's the basis of her testimony, I believe.

O'MARA: I would ask to proffer it at the bench.

JUDGE NELSON: We can't proffer it at the bench. Ladies and gentlemen, if you'd please put your notebooks down by the chairs. I'll have the deputy take you outside the courtroom.

KEILAR: Now the jury is about to be excused here for a moment in the George Zimmerman trial. We are going to get a quick break in and we'll explain everything that just happened right after the break.

(COMMERCIAL BREAK)

KEILAR: The jury has been sent out of the courtroom in the George Zimmerman trial. We are watching testimony by a defense witness, Olivia Bertalan, the mother of two small kids who live in the community where Trayvon Martin was shot by George Zimmerman.

She is describing -- has described a home invasion that happened while she was in her house several months before the -- before Trayvon Martin was killed. And she is describing the conversation that she had with George zimmerman right after that incident.

Now, while we are waiting for the jury to come back in, Tanya Miller, one of our legal experts here, defense attorney, former prosecutor, who does this help?

It's interesting. Because they're trying to sort of get her to talk about how she had this conversation with George Zimmerman. How initially the suspect wasn't caught. Why is the prosecution trying to bring this out of this witness? Who seems very credible?

TANYA MILLER, CRIMINAL DEFENSE ATTORNEY: Right. I think it cuts both ways. What you see the prosecutor trying to do with this witness is, is show that, one, George Zimmerman was acting sort of like a cop when he comes to her house, questions her about the incident, gets a description of the perpetrators.

And, two, it's more likely that George Zimmerman would have viewed Trayvon Martin as one of those bad guys on that night and more likely to have been aggressive toward him.

KEILAR: Now, it also seems though, Eleanor Odom, that this is a witness who is effective at maybe describing the fear that some people in the neighborhood had of crime that they were experiencing. Is it effective?

ELEANOR ODOM, PROSECUTOR: I think she's being very effective and very credible. It does describe that fear, but it also portrays George Zimmerman as a bit of a vigilante. Going out there, looking for trouble. If he's out there and he's looking for trouble, and he killed Trayvon Martin during that mindset then he's guilty.

KEILAR: Because his mindset is very key to this, sort of the state of mind that he was in leading up to shooting Trayvon Martin.

MILLER: Absolutely.

ODOM: That's what it all comes down to is what was in his mind and that's for the six jurors to decide.

KEILAR: And to be clear, George Zimmerman has said that he got out of his car to look at a street sign. That has been his official story. That he wasn't -- and we've heard many witnesses testify that they don't believe he had ill will. What the prosecution is trying to draw out of this witness, who is for the defense.

This sort of the opposite, that he had this vigilante mindset. You think that's very effective? You think jurors will say -- actually, you know what? Hold on just a moment. Testimony beginning again with Olivia Bertalan. Let's listen.

GUY: That day did you get a visit from a man named George Zimmerman? BERTALAN: I did.

GUY: Is he the gentleman seated to my left at the end of the table.

BERTALAN: Yes.

GUY: He used to live in your neighborhood, right? He used to live in your neighborhood?

BERTALAN: Sorry, yes.

GUY: He actually came to your house, that day, correct?

BERTALAN: Correct.

GUY: I need you to speak up.

BERTALAN: Sorry.

GUY: He talked to you, the reason he came to your house, he didn't know you, right?

BERTALAN: Right.

GUY: He came to you because you had been a victim of something, right?

BERTALAN: Yes.

GUY: And you described for him what had happened to you that afternoon?

BERTALAN: Yes.

GUY: And you described to him the people that had victimized you, right?

BERTALAN: Yes.

GUY: And you described the number of people?

BERTALAN: Yes.

GUY: How many did you tell him?

BERTALAN: Two.

GUY: Did you describe the sex of the people?

BERTALAN: Yes.

GUY: And what was that?

BERTALAN: Male.

GUY: Did you describe the race of the people? BERTALAN: Yes.

GUY: What was that?

BERTALAN: African-American.