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Continued Live Coverage of the Zimmerman Murder Trial; Reviewing Photographic Evidence

Aired July 10, 2013 - 15:30   ET

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

MARK O'MARA, GEORGE ZIMMERMAN'S ATTORNEY: Thirty-five, an aerial view of the Retreat at Twin Circle -- Twin Lakes, I'm sorry -- area of inquiry.

Thirty-six is a larger aerial photograph of the entire area of that portion of Sanford.

Thirty-seven is a large aerial of Retreat at Twin Lakes. And then 38 is a medical -- M.E. investigator's picture of the scene.

Then if it -- if admitted, then 39 would be the timeline we talked about.

There are two other loose ends. One is what we talked about with the judicial notice of the weather. We came up with a more accurate one for the 26th.

That's going to be substituted. And that's close to me, but not in my hands. And I'll get that to you as soon as we can.

JUDGE DEBRA NELSON, SEMINOLE COUNTY CIRCUIT JUDGE: Is that stipulated as a substitution for state's exhibit 213?

UNIDENTIFIED MALE: Yes.

NELSON: OK, as soon as you get it, Trish (ph), will you allow that to be substituted for the one you have?

O'MARA: And the next one would be the same exact type of exhibit for the 27th of February.

UNIDENTIFIED MALE: (Inaudible).

NELSON: Do you want that as composited state's 213, or do you want the other one ...

O'MARA: We planned them as separate so that we would not mess up the curve. So the substitution will be for the ...

NELSON: So we'll substitute 213 for the new one, and we'll make the second one for the February 27th, defense exhibit 40.

O'MARA: Yes, your honor.

And, your honor, the only other one was that there is an exhibit that, in order to move matters along, when Ms. Jeantel was being questioned, we used a very small portion of the CD to question her.

And we acknowledged it in court that we would present to the court that as its own just redaction or its own one portion of it.

So that hasn't been brought into evidence yet. That needs to be presented as well because we used that, as you might recall, to refresh her recollection as to what she said.

But we used the entire interview of her, which would not be appropriate to go back to the jury, just the one portion that was played. And we're going to get you that CD. And that's the last matter.

BERNIE DE LA RIONDA, PROSECUTION: My recollection is she was just able to either listen to it or something, but not in front of the jury.

NELSON: It wasn't played in front of the jury.

DE LA RIONDA: I don't think it was.

NELSON: The jury was sent out, and I said, since she -- it wasn't impeachment, so it wasn't played in front of the jury.

O'MARA: May I just have a moment, your honor?

NELSON: Yes, you may.

O'MARA: Just to be clear, my understanding was that the part that -- and I may just be wrong, and I apologize.

My understand is the part that was played was the portion of it that -- where she said, that could be Trayvon, that might be Trayvon, and those words.

And I believe the jury was present for ...

NELSON: OK, they weren't, but let's do -- if we could get the court reporter's notes from the date that Ms. Jeantel testified, it was two different dates.

I believe -- is it defense exhibit "D.D."? Is that how it was identified? Because I have that as a tape of Jeantel interview with the state attorney's office.

O'MARA: I believe it was, your honor.

NELSON: Is that "D.D."? It was not played in front of the jury, but we can verify it.

Is there any way to get ...

O'MARA: It looks as though there may be an issue. We'll have some time between now and the time the jury would get it. We'll take care of fixing it, and letting you know.

The only concern was that this is now in evidence as "D.D." and this ...

NELSON: Not in evidence. It's identified.

O'MARA: So this is just marked. I apologize.

NELSON: It's marked for identification purposes.

OK, were there any more of those house -- any more housekeeping matters?

O'MARA: We'll get you the weather information, and I think that's it, your honor.

NELSON: OK. Mr. Zimmerman, please stand up. I'll remind you, sir, that you're still under oath from when we had you sworn in earlier before the break.

Did you now have sufficient time to discuss with your attorneys whether or not you wanted to testify in this case?

GEORGE ZIMMERMAN, DEFENDANT: Yes, your honor.

NELSON: And I don't need to know what was said, but after those discussions, have you made a decision?

ZIMMERMAN: Yes, your honor.

NELSON: And what is your decision, sir?

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

NELSON: OK. You understand that no matter what counsel says to you, it's still your decision. Do you understand that?

ZIMMERMAN: Yes, your honor.

NELSON: OK. And I need to know, is it your decision to not testify in this case?

ZIMMERMAN: Yes, your honor.

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

ZIMMERMAN: Yes, your honor.

NELSON: Has anybody promised you anything to get you to make that decision?

ZIMMERMAN: No, your honor.

NELSON: Has anybody threatened you?

ZIMMERMAN: No, your honor.

NELSON: And this is clearly the decision that you yourself have made?

ZIMMERMAN: Yes, your honor.

NELSON: Thank you very much.

Is the defense going to rest subject to any more evidence being entered?

O'MARA: That's correct, your honor. Thank you.

NELSON: Is the state going to have rebuttal evidence? Testimony?

UNIDENTIFIED MALE: Yes, your honor.

NELSON: And how many witnesses are you going to be calling for rebuttal?

UNIDENTIFIED MALE: At least two today, and one who is not available today, but should be available tomorrow, which we may not end up calling anyway.

NELSON: OK.

I still haven't seen the proposed jury instructions. It's my understanding that a copy has been provided to the defense and a copy has been provided to Mr. Zimmerman.

Is that correct, sir?

UNIDENTIFIED MALE: Yes, your honor.

NELSON: OK.

Can I please have a copy?

Are these two witnesses going to be lengthy?

UNIDENTIFIED MALE: I don't think so, your honor.

NELSON: Can we do a charge conference after we excuse the jury for the day?

UNIDENTIFIED MALE: I don't see a reason we can't.

O'MARA: We can start. We have some special jury instructions to prepare. We can at least get a feel. I think might now be the time for my -- me to review my judgment of acquittal?

NELSON: Right. And then you'll rest in front of the jury and we'll go forward.

O'MARA: Yes.

NELSON: OK. You may proceed.

UNIDENTIFIED MALE: May I have a seat, your honor?

NELSON: Yes. I'm sorry. Yes. O'MARA: I think, with the length of the presentation to you earlier, I'm going to certainly abbreviate and not readdress the arguments nor the case law that I addressed. I would certainly ask you to reconsider those.

I think that the factual basis, however, has changed somewhat. I'm not going to recount it because I know you were sitting here along with us during the whole time of hearing it.

But that the defense case has presented now evidence that I believe -- uncontroverted evidence that supports my client's contention that he acted in self-defense.

That includes, of course, the most recent witness, Mr. Root. It includes Dr. Di Maio and his expert testimony in regard to the gunshot, and also the other information concerning injuries that my client suffered.

We also have a number of voice witnesses, if you will, those witnesses who have come back and testified before this court that they had no issue whatsoever of affirming their position and belief and testimony under oath that it was my client who was screaming for help.

And, again, I don't want to belabor the point of the previous case law, but I think that you would need to decide at this point basically that there is -- that the state has excluded at this point in the trial a reasonable hypothesis of my client's innocence.

And now with the strength of the defense presentation that they have failed to do so, and I would ask the charges be dismissed in full.

NELSON: Response?

RICHARD MANTEI, PROSECUTOR: Thank you, your honor.

If anything, the state's position is that Dr. Di Maio certainly portrayed at least one alternative scenario where the defendant could have absolutely committed second-degree murder against Trayvon Martin, just by virtue of his answer to Mr. De La Rionda's questions, that being that Mr. Martin was attempting to pull back or disengage when he was shot and murdered by this defendant.

Moreover, to say that Mr. Root's testimony was uncontroverted is, I think, overstretching it, even more than Mr. Root did.

Certainly he was very eager to draw conclusions, but he also had to admit finally that he had absolutely no idea what exactly went on at the moment that this defendant shot and killed Trayvon Martin.

So we believe that, while the defense may have presented people to sort of enhance the dispute of facts and the inferences that can be arisen, in other words to make it perhaps even more disputed, that the state has certainly submitted sufficient evidence and will again continue to do so in rebuttal to indicate that both the facts and the inferences that can be drawn there from would support a jury verdict as to both murder and the lesser-included manslaughter. O'MARA: Very brief response, I would just ask that either the state or perhaps the court, if you're going to rule, identify the state's factual scenario, their theory of the case, anything for which there is -- that excludes a reasonable hypothesis of innocence of my client, now that they've finished their case and we've finished our case.

I would ask that be articulated in some form or fashion either by the state's, you can make a ruling or by the court in your ruling, that actually suggests that legally this judgment of acquittal should not be granted.

NELSON: Thank you.

The court has sat here and listened to all the witnesses. I think I have previously said how many witnesses had testified both on behalf of the state and the defense, and have listened to the arguments both at the end of the close of the state's case and now at the close of the defense case.

And the court's decision is the same, that there is substantial evidence, both direct and circumstantial, to allow this charge to go to the jury.

So we need to bring the jury back in. You need to rest in front of the jury, and the state be prepared to call your first rebuttal witness.

Are we ready to bring the jury in?

O'MARA: Is there any chance of finding out who the rebuttal witnesses are so we can see if there are discovery issues or ...

NELSON: And then we have to at some point in time deal with the Mr. Donnelly issue. We could do that after we've talked about it.

Who's the witness you're going to call next?

UNIDENTIFIED MALE: The first one will be Adam Pollack.

NELSON: Right. And can you tell us who the second one is going to be?

UNIDENTIFIED MALE: David Lee.

NELSON: David?

UNIDENTIFIED MALE: Lee.

NELSON: Thank you.

O'MARA: Your honor, they had a third.

NELSON: They didn't know if they were going to call that person tomorrow or not.

UNIDENTIFIED MALE: I have to ascertain his certain availability, your honor.

NELSON: When you find out tonight, would you please e-mail the defense and let them know so they can be prepared for that in the morning.

UNIDENTIFIED MALE: Yes, your honor.

NELSON: Thank you.

O'MARA: I know the state understands that they are bound in true rebuttal. Mr. Pollack testified before. I want to make certain this is not just a re-examination of him, but it is truly a rebuttal to some particular fact that we presented in this case.

NELSON: If it's not, you're free to object and then I'll rule.

O'MARA: Yes, your honor.

NELSON: Are we ready to bring the jury in?

O'MARA: The defense is, your honor.

DE LA RIONDA: Yes, your honor.

NELSON: OK, you need to, again, rest on the record in front of the jury, I mean. Please bring the jury in.

ASHLEIGH BANFIELD, ANCHOR, "CNN NEWSROOM": And there you have it.

Boy, oh, boy, that was lightning fast. We just went speeding through the last defense witnesses. We had a judgment of acquittal request, denied, not surprising.

Although I will say, sometimes it happens. Believe it or not. Sometimes you go through the whole thing and you get a judgment of acquittal. It never goes to a jury.

This one's going to the jury. In fact, that's what's happening right now. In deference to this jury, the entire court and the defendant, everyone stands. Jury will filter in and we are moving right along.

We're going right into the rebuttal case. We had the state's case in chief. We had the defense case. And now we get the rebuttal case.

At least two witnesses, the prosecution has said it will call, likely today. Maybe one tomorrow, but maybe not.

We may have closings tomorrow. This jury actually could have the case by midday, if the closings are quick.

I've seen closings that are a half an hour. I've seen closings that are four, six even. I think this judge will probably put a limit on things.

Mark Nejame, I want you to jump in with me because you know this judge better than me, better than Darren Kavinoky, better than Ryan Smith. And we're all analyzing this at this moment.

I didn't expect that we'd be in the rebuttal case so quickly, but we are.

MARK NEJAME, CNN LEGAL ANALYST: It's going to be quick. I thought it might be longer. I thought maybe four hours or so.

So they're moving through this. They're going to call two, maybe three, and that's it. We go into jury charges, and you're going to hear closing arguments.

I suspect the closing arguments will be a couple hours apiece. First will be the state, then the defense. Then the state will be able to do cleanup.

BANFIELD: Jury instructions will be critical in all of this. There's going to be that charge conference. And the charge conference is where the lawyers for both parties go into judge's chambers, I'm assuming it's judge's chambers here like in most jurisdictions. And they say here's what we want the jury to look at.

NEJAME: It could be. She could do it -- we don't know how she's going to do it.

But, yes, it's likely going to be in her chambers. But she could do it in open court.

And, you know, the one thing I didn't hear, though, is the marijuana.

BANFIELD: Didn't hear it. Done. He rested.

NEJAME: But I don't know if it's in the reports that are stipulated to and they just didn't make a big deal about it.

BANFIELD: I think we should find that out.

There's an evidentiary issue going on right now. Let's listen in.

O'MARA: ... 38 and there's potential of a 39.

NELSON: Yes.

O'MARA: And then some other judicial notice matters concerning whether that we'll address to the court.

But with all that in mind, now being entered into evidence, the defense would rest.

NELSON: Thank you very much. Does state have any rebuttal?

MANTEI: Yes, your honor. We call Adam Pollack.

BANFIELD: Those big doors, the rebuttal case for the prosecution, is Adam Pollack. He's the gym owner, the personal trainer, the guy who knows a lot about MMA. He was the guy who actually trained George Zimmerman. We heard from him earlier this week, if I'm not mistaken, unless it was last week. The days are going by pretty fast.

But he testified to the softness, the -- he was so guarded in the way he worded it. What did he say? He's soft, he's unfit, he's fat. That's what this gym owner said about George Zimmerman.

Yes, he lost between 50 and 80 pounds. Yes, he did well getting in shape. But, no, he wasn't a fighter. No, he wasn't good.

And it was really embarrassing, but you know what? Those are the ugly words you want to hear when you're a murder defendant.

And as they get ready to bring this witness up onto the stand to begin the rebuttal case, Ryan Smith, remind me. A rebuttal case has to be narrow, doesn't it? Within the scope of everything that the defense already did.

RYAN SMITH, ATTORNEY AND ANCHOR, HLN "AFTER DARK": Right. It's got to be rebutting the witnesses, the evidence, the defense already brought up, so it can't be beyond that. It's got to stick within that.

So this particular witness coming up, it's got to be rebutting his testimony. Can't bring up a lot of new stuff or things that he didn't offer.

So I expect them to really attack the idea that he said George Zimmerman came in sometimes six hours a week, but only registered a one in terms of his fighting ability even though he took these MMA lessons. One would think he had a lot more skill.

BANFIELD: And a point-five. On a scale of one to 10, a point-five in terms of overall fitness.

All right, I want to jump in because Rich Mantei is going to start the questioning. And I definitely want to catch this before we miss any, so let's listen.

NELSON: You may inquire.

MANTEI: Thank you, your honor.

Mr. Pollack, just to remind the jury, you were the defendant's trainer at Kokopelli's Gym? Is that right?

ADAM POLLACK, WITNESS: Yes, sir.

MANTEI: And are you now marketing the training that you gave to George Zimmerman on your website?

POLLACK: I'm sorry.

MANTEI: Are you now marketing the training that you gave to George Zimmerman on your website?

POLLACK: Absolutely not.

MANTEI: No.

POLLACK: What's actually going on ...

O'MARA: May I object, your honor, if I might? That's improper rebuttal testimony, seemingly impeachment.

NELSON: OK. Well, we need to have argument about that. Approach the bench.

BANFIELD: OK. I believe about -- I think about 30 seconds ago I asked Ryan Smith if the rebuttal questioning needs to be within the scope of the defense case.

And right out of the gate, Ryan Smith, was that beyond the scope of the direct examination? Wow.

SMITH: It was a little bit, but they're still keeping it within the idea that he was his trainer, so they're questioning him on that.

And you heard the big information right there, that the prosecution is alleging that he's marketing the fact that he trained George Zimmerman on his website. That's a problem.

BANFIELD: So, Darren Kavinoky, the answer was quickly -- I mean, it was no, no, and then objection, and now sidebar.

Why would the prosecutor be able to do that if there was no issue of marketing George Zimmerman on your website in the defense case?

DARREN KAVINOKY, CRIMINAL DEFENSE ATTORNEY: Yeah. I'm just waiting to hear the words. He's a palooka! You know? Zimmerman took a dive!

It's ultimately -- it could be something to deal with his credibility. It could be very relevant to his bias in the case or how he's using this to garner his own fame, and therefore provide some information that would be helpful to the defense.

And Ryan is exactly right. This has got to be like a funnel. We're narrowing our scope here.

BANFIELD: And what about the optics of all of this, Mark Nejame? You're about to start your final word, and let's not forget, the state gets a rebuttal case because the state bears the burden here.

The state is the one that has to do all the work. They bear the entire burden of proving that George Zimmerman was not defending himself, was not acting out of self-defense.

So they get the final word in this criminal process. What are they talking about up at sidebar? Right out of the gate, the optics can't be lost on the jury.

NEJAME: Yeah. The defense is simply claiming that this is all about bias. This is just going to try to show bias. This has already been touched on, covered. This is not anything new. This is not true rebuttal.

And the state is trying to get it in through the back door, claiming it's an extension and they are, in fact, rebutting what he previously said.

And we all know, though, that if they get it in, it's going to be trying to show that he's got some sort of economic bias which tends to influence his testimony because, if he makes money off of Zimmerman by promoting that he was his trainer, then, of course, any time you have a financial influence, it's going to have ...

BANFIELD: That sounds fair. That sounds fair to me. That doesn't sound beyond the scope.

Where am I missing something, Ryan? I don't feel like if he's now marketing "I'm George Zimmerman's trainer" that shouldn't come in as a rebuttal to the defense witness who said I was his trainer and he stunk.

SMITH: I don't know. You know, it's a tough call, and that's why the judge is going to hash this out.

In some ways, yeah, maybe it is a little bit beyond the scope. Maybe it does go a little bit beyond it.

But Darren brought up the point about credibility. He got up there and he talked about his experience with George Zimmerman. Maybe you can try to draw this in, back door it a little bit.

I think Mark makes a great argument, but that back-door argument may work.

KAVINOKY: And the question, Ashleigh, is going to be when did he do this marketing?

Is this something that the prosecution or either side, frankly, reasonably should have known beforehand, then it's not rebuttal.

Just because you missed the opportunity the first go-around, doesn't make it rebuttal this time.

BANFIELD: Thank you. That was what I wanted -- you have every right to object and cross-examine during that, you know, case-in-chief for the defense.

Hey, guys, while they're in this break and they're dealing with it, it's taking a little longer than we expected.

Let me squeeze in a quick break, so that when we come back, we're back in live testimony.

Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: All right. I want to bring you some breaking news while you're in sidebar. You're not missing any testimony in the George Zimmerman murder trial, still in sidebar dealing with this first rebuttal witness.

But here's the breaking news. It comes to us via Boston, because the suspect in the marathon bombing, Dzhokhar Tsarnaev, has pleaded not guilty to all of the 30 charges that he's currently facing. I say currently because there can always be more.

He pleaded not guilty, but not before he looked back in the courtroom at the victims who were present. He looked back before he entered his not guilty plea.

You will probably remember that 17 of the charges that he is facing are very, very serious. They include the possibility of the death penalty.

That's a strange notion because there is no death penalty in manage Massachusetts, but this is a federal case. There's not been a death penalty executed in Massachusetts in 66 years, but this is a federal case.

Tsarnaev has been out of sight for 11 weeks, because he's been holding basically his own in a - prison hospital trying to get better from the night you surrendered, climbing out of a boat after a bloody gunfight.

He suffered very serious wounds to his neck and legs. He was unable to speak, unable to sit up, and slowly, he has been able to convalesce in that hospital.

Just in case you're wondering some of the charges are that he's facing -- killing four people in the bombing, and then also an MIT campus police officer during the manhunt after the bombing.

He's also charged with using a weapon of mass destruction, and a serious charge of bombing a public place. Those are the ones that carry with them the death penalty.

The people in the courtroom, that was a quiet moment because the victims' families were invited to be in that courtroom today, along with the people who were wounded in the attack. It would have been the first time they would have come face-to-face with Dzhokhar Tsarnaev.

Of course, they will never come face-to-face with his brother who is also accused in those same crimes because he's dead. He died the night that Dzhokhar Tsarnaev was found. Actually, I think a couple of nights before.

I beg your pardon. Dzhokhar Tsarnaev was on the run after his brother was killed, and then was found in that boat.

So back here in Sanford, Florida, again, the gripping top story, that the United States has been watching for two-and-a-half weeks now, if not a year and a half, quite frankly, the riveting case of George Zimmerman and whether in fact he'll be convicted of second-degree murder of Trayvon Martin, an unarmed teenager, 17-years-old who was out on a rainy night wearing a hoodie and buying Skittles and a watermelon iced tea drink.

So the question here is -- that they're going to have to determine is, what have we seen in this courtroom? Not what we have seen in the media for a year and a half. What has been presented in front of us?

One of the issues that they have been going over just within the last 10 minutes has been some of the evidence.

State's evidence, I think it was 30 through -- or rather, defense evidence 30 through 38, pictures of George Zimmerman's head that they want entered into evidence and also pictures of Trayvon Martin at the 7-Eleven where he bought those goodies just before he was gunned down, also some picture of the Twin Lakes area, aerial shots, blown-up shots and where it is in relation to Sanford.

And there was something else that was really intriguing, a seven-foot- long poster board of a timeline. It's a defense timeline, and the prosecution wanted a chance to go over it. And those are the evidentiary issues that we were dealing with before.

Things move so quickly, I didn't even have a chance to ask my guests about the final witness in the defense case, George Zimmerman's father, who was long expected to make an appearance in this courtroom.

He has been a sequestered witness, not able to be in the courtroom for the entire duration because you can't appear in that courtroom and listen to testimony. It might actually jade your own testimony.

There he was. He walked in. He wasn't in that courtroom, but, what, three or four minutes.

Mark, I expected to hear more from the father of the accused, the defendant, and it was just as simple as this. Whose voice was it on the tape?

NEJAME: Yeah, and I think that the defense was looking to salvage something relatively strong at the end.

This to me was rather uneventful after we've heard about seven other people say that it was, in fact, George Zimmerman.

BANFIELD: Yes, but it's the dad.

NEJAME: It's his dad, and it shows that he's a son. And it shows that he's got family, and it humanizes him all the more, but it still was the best the defense could do.

BANFIELD: So real quickly, Darren Kavinoky, we expected to hear some witness come along, after a very hard-fought battle, introduce some evidence that there was very small levels of THC in the system of Trayvon Martin the night he was killed, and nothing, nothing.

KAVINOKY: Right. Well, and as Mark pointed out earlier, if it's in the subpoenaed records, we may still hear that in argument, but I see that as a real double-edged sword. In my experience, people that consume THC are far more likely to be passive, perhaps going for a little munchie time, some Skittles and a fruit drink, not likely to be violent.

And so it doesn't really get the defense where they want to go. And, frankly, I think it may end up backfiring on them if they choose to go there.

BANFIELD: Yeah, you can't beat up a 17-year-old kid constantly, I get it. That's what the strategy is so often for a defense attorney. You've got to beat up a victim to save your client.

But, Ryan Smith, I want you to come in on this. Had they brought that up, there could have been a lot of people on that nine-person jury, saying really? Trace amounts? Barely any THC, and you're telling me that could make a guy violent?

That could make the defense attorneys looking like they're kicking a guy while he's not just down, he's dead.

SMITH: Exactly. And it's a fine line the defense has to toe, right? They're defending George Zimmerman, and understandably they have to attack the victim because the claim is self-defense, but is this what you choose?

Because you're talking about trace amounts. There are so many different arguments that come up in that.

First of all, had he had any? Secondly, when did he have it, and thirdly, how would it even impact that night?

And you put on the idea that you're dirtying up the victim, which I don't think is necessary in his particular case.

So they had to tread a fine line with that. Again, I understand the fact that it still can come in.

I think at this point they want to stay away from it. They ended with Robert Zimmerman, Sr. They'll leave it at that.

BANFIELD: Powerful enough.

We are butting up against the top of the hour. I want to thank all of you for joining me today. It's been great to have your analysis right at this key moment as the case really starts to taper to a close.

We're still in sidebar. You're not missing any of the live testimony, but I'm going to hand over the reins now of our live coverage of the George Zimmerman murder trial to the very capable Jake Tapper, whose program begins right now.