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Judge And Lawyers Discuss Jury Instructions; Live Coverage of the George Zimmerman Trial

Aired July 11, 2013 - 10:00   ET

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

WOLF BLITZER, CNN ANCHOR: They're going through the formal instructions that the judge is eventually going to give to the jury after the closing arguments. This is very, very important, because the jury will consider either only second degree murder or lesser charges, aggravated assault, manslaughter. They're now going through some technical aspects on how the jury instructions should be written. So we're watching all of this.

I want to bring in our legal analysts to get a little background, a little perspective on what's going to happen over the next few hours. Later today the closing arguments will begin. Right now, they're discussing how to frame the instructions to the jury and what charges should be considered.

Page Pate is joining us right now, a criminal defense attorney. Paul Callan is joining us, CNN legal analyst and former prosecutor joining us as well. George Howell is covering this trial for us. Paul, let me start with you. This is -- sounds legal -- legalese and very technical, but potentially very significant if the judge decides the jury can consider these lesser charges.

PAUL CALLAN, CNN LEGAL ANALYST: It's very important, Wolf. It's kind of boring I think to lay people. On the other hand, this is really -- they're deciding the sheet of paper that the jury would have to check off guilty or not guilty, what the elements of the crimes are and it's really sort of -- they're working out a document in the end, is the most important document in the case.

There's something else that's going on here. They're laying a record for appeal because the defense is objecting to the lesser includes being charged. If they don't make those objections clear at this conference, they could waive their right to an appeal on certain rulings by the court. So it's important in that respect as well.

BLITZER: Page, if you were representing George Zimmerman, wouldn't you want the jury to consider lesser charges, presumably a lighter sentence than risking it all, going for second degree murder or nothing?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, sometimes you would want to do that, but in this case, absolutely not. I think the defense has tried an excellent case from start to finish. I think they know that it's going to be a stretch for the prosecution to even creditably argue that this should be a murder case at this point. So what I want from this judge as a defense lawyer simply to give the jury an up or down option on the murder charge, which is what he was indicted for. I think if that happens the prosecution will have a really tough time proving their case beyond a reasonable doubt.

BLITZER: Let me ask Paul, a lot of so-called experts I'm speaking with think the judge will eventually let the jury consider these lesser charges. You dare venture into that guessing game?

CALLAN: Yes, I'm at the very least think she will let a charge in for manslaughter and maybe even aggravated assault. In some respects a count like aggravated assault poses a bigger danger to Zimmerman than anything else. The murder case is -- I agree, it's very, very weak. It's unlikely you get a conviction there. Manslaughter remains a stretch as well. Would the jury compromise with aggravated assault or something lesser, which could still put him in jail for a period of time? I guess we're going back into court. Thanks.

BLITZER: Yes, let's go back to the judge.

(BEGIN LIVE FEED)

JUDGE DEBRA NELSON: We'll get to the point on the instruction.

RICHARD MANTEI, PROSECUTOR: The second degree murder, I believe, it was the same again, with the exception of the name change issue. The possession --

NELSON: Is that -- there are no changes being suggested to the charge of -- as it's written for second degree murder?

DON WEST, ZIMMERMAN'S DEFENSE LAWYER: That's correct.

NELSON: OK.

MANTEI: Same as to the possession of a firearm and discharge causing death page?

NELSON: There were no objections to that or additions being requested?

MANTEI: Your honor, if I understand the requested instruction, that's because of the mandatory minimum or enhancement as a result of the use of the firearm.

NELSON: That's my understanding.

MANTEI: Yes.

WEST: I think that's the standard instruction on that issue.

NELSON: So there's no objections to how that's written?

WEST: No.

NELSON: Thank you.

MANTEI: Now, we are at the point where there is the issue about lesser included crimes or attempts, your honor. I guess, I'll go ahead whenever the court's ready, submit that argument.

NELSON: I'm ready.

MANTEI: Thank you, your honor. The court characterized correctly that manslaughter is a category 1 lesser included offense. I have tendered to the court several cases and given counsel copies. The one I think relates directly to -- now I will focus on the manslaughter charge is State V Montgomery, a little more infamous from the Florida Supreme Court from 2010, which originally declared that the instruction for manslaughter was invalid.

However, it is on page 5 of that opinion that I think the most operative language begins, actually begins the bottom of page 4 under the heading lesser included offenses, and continues on page 5. But it makes very clear manslaughter is a category 1 lesser included offense of first-degree murder.

And what that means is delineated on page 5, a necessarily lesser included offense is as the name implies a lesser offense always included in the major offense. The trial judge has no discretion on whether to instruct the jury on a necessarily included offense once the judge determines the offense is a necessarily included offense, the instruction must be given.

Consequently, at Montgomery's trial for in that case, first-degree murder, but also here as to second degree murder, the trial court was instructed to instruct the jury on lesser included of manslaughter. In the next column, lesser included offense of manslaughter is one step removed from second degree murder.

The state's position is it's a category 1 and mandatory for a reason and the Florida Supreme Court has made it effective very recently and continues to be so. The state believes not only would it be error not to give it but the state is requesting it as well. As to that charge at least, I believe that the issue is very clear.

NELSON: Mr. West, you want to respond?

WEST: We already did to the extent this is a decision that Mr. Zimmerman has made knowingly and without any coercion or threat and his position is the state has charged him with second degree murder. They should be required to prove it, if they can. If they can't prove it, then that is the failing of the prosecution.

Had they wanted to charge him with manslaughter instead, because they think that's a better chance under their theory of prosecution whatever it may actually be, since we haven't heard it yet, they could do that, but we object. We want this to go to the jury on second degree murder only.

NELSON: Thank you. Based upon State vs. Montgomery 35 law weekly, the Supreme Court 204, also cited at 39 Southern 3rd 252, from 2010, the court will give the instruction on manslaughter as a category 1.

MANTEI: Thank you, your honor. The instruction as to manslaughter, I don't know that there is any quarrel with how that is worded because the position I think of the defense was that it shouldn't be given at all, so we could discuss that at this point if there are any objections to that.

NELSON: Given the court's ruling, are there any objections to the instruction provided by the state, other than the changing of the names to be in conformity?

MANTEI: The reason for my hesitation is I'm still trying to sort out the evolution of the instruction on manslaughter by act. Of course, the court is aware there are several ways that the state could claim manslaughter occurred. One of them is by culpable negligence, there's no suggestion --

NELSON: There's --

MANTEI: It's only by act. What gave me pause that I wanted to do some additional reach on is there is a case from the fifth district court of appeal, Shurose, that held and essential element of the crime of voluntary manslaughter, which is what manslaughter by act is, is an intent to kill.

I've been trying to sorting through that. I think maybe, since Shurose may be the Supreme Court has addressed the instruction and maybe that's addressed in Montgomery. I think maybe now that law has been -- the holding in shurose by the fifth district has now been addressed although not directly.

I don't find a reference to that case in any of the subsequent case law, but I do see that Montgomery from 2010, a Florida Supreme Court case, does specifically say that the intent for manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of, in this instance, Trayvon Martin.

So I want to be sure that we've got that precise language. If that's what the instruction says, then I suppose that we're past the holding in Shurose, even though by Sheppard Dicing, it's still considered controlling in this district unless the Supreme Court has said otherwise. That's my hesitation. I'm still trying to dig through that.

NELSON: Do you want us to come back to that one? Other than that, does the state's version of the instruction comport with the Supreme Court's required for manslaughter by act?

WEST: It seems to, yes.

NELSON: So the only issue we have is your determination that the Shurose case is covered by this instruction?

WEST: Yes.

NELSON: OK. We'll come back to that issue.

WEST: Thank you, Judge.

MANTEI: The other lesser included requested by the state, and I point out I included the next case, martin versus state, the 1977 decision of the Florida supreme court, simply as the reason -- and I think I disclosed this to counsel this morning, the reason for the abandonment of the request as to aggravated assault, I think the case makes it very clear, where the victim actually dies, the aggravated assault lesser may not be actually given.

NELSON: I don't think that the evidence or the charging information support aggravated assault.

MANTEI: I have abandoned that in its entirety, but want to put the case on the record. The next requested lesser is the third degree felony murder. As indicated in the state's proposal, and I believe that in comportment with the standard jury instructions, felony murder thread degree the state has to prove three elements.

One the victim is dead and two, it occurred as a sequence of and while the defendant was engaged in a commencement of a no non-enumerated felony and three, the defendant was the person who actually killed the victim. The non-enumerated felony in this case is child abuse.

Obviously the information alleges the defendant shot and killed the victim, the victim was under the age of 18 and child abuse, must be, according to the third degree felony murder instruction, defined. I have defined the elements of child abuse in the felony murder instruction.

And I've also included what I believe is required under the child abuse instruction, which is when the child abuse is premised upon physical injury, that there is a required reference to chapter 39 to define what that physical injury right mean under the Florida statutes. That definition has been likewise included.

The case law upon which I would rely begins, I think, in the stack that's been provided, with her Hermanson, H-E-R-M-A-N-S-O-N for the state. 604 southern 2nd 775, which is a supreme court Florida case from 1992.

In that case, as set forth on page 2, of the court's decision, the third degree murder provision of section 782.04 Florida statutes provides the killing of a human being while engaged in the commission of child abuse cuts constituents murder in the third degree and on that case the state combine instructions for child abuse and child neglect.

Otherwise, that was the reason. I believe that the conviction was reversed. But obviously, the reason the case is there is to show that, yes, third degree murder premised upon an underlying conviction for child abuse is actually a rational or listed offense in the state of Florida. The next case to do with that situation is the C-A-L-L-I-N-E Sesh from the fifth direct court of appeal from 2000.

In that case, the child abuse was committed by waving a gun around and the gun going off and the child being injured. In this case, the court said, and I'm reading from the second column. It's a one page opinion. The statutory offense of child abuse is no longer limited to actual physical or mental injury inflicted on a child. It now includes any intentional act that could reasonably be expected in physical or mental injury to a child.

Further down, the court indicates what they found in that case, and they described it as irrational, hostile and reckless behavior by an excited or agitated person unfortunately often resulted in shoots perhaps were not intended. All it would have taken was slight finger pressure to cause the gun to fire had he stumbled or lost his balance or mother instead of grabbing the child, tried to disarm him.

A bullet released and ricocheting about the nursery was a definitely possibility in this scenario. In our view, these undisputed facts and inferences arising there from were sufficient to place the child in a zone of reasonably expected physical danger. I couple that with the other case in the state's packet of Johnson -- I'm sorry -- of Garrett versus State, which is 978 southern 2nd 214.

That this is fifth district case from 2008 where we talk about the trial judge supplementing the standard jury instruction which does not provide the definition of physical injury for child abuse. In that case -- and if the court looks at chapter 39, there is a -- something like 60 different possible types that might need to be included, depending on the allegations.

In that case, the court included the definition to include asphyxiation, suffocation or drowning. But the court goes on to say it is the responsibility of the court to correctly and intelligently instruct the jury on the essential material of this crime. So that this is reason for definition of physical injury being provided taken from chapter 39, which has the child abuse instruction requires, is mandatory to define the type of physical injury pursuant to chapter 39.

The next case is Sheridan, S-H-E-R-I-D-A-N, which is 799 southern 2nd 223. Second district court from 2001 and here again, we have third degree murder, premised up upon -- premised upon being a lesser included offense. In that case, it was a first-degree murder charge but it was third degree murder and then underlying offense committed by Sheridan was a non-enumerated felony.

In that case, at the time, it was aggravated battery, aggravated battery is now an enumerated felony. The defense counsel argued third degree murder instruction should be given and was proper. The trial judge was inclined to give it, but ultimately did not and the appeal court said the trial judge's first inclination was correct.

If it results in death it can indeed be third degree murder and the defendant is entitled to such an instruction to the jury and onto the next page after corroboration in that ca case -- after citation in that case. We find the failure to give the instruction to have been reversible error. The next case is j-a-k-u-v-o-w-s-k-I, which is a second district court of appeal decision from 1986.

Again, here we have a third degree felony murder. In that case, the victim was 6 years old, based on underlying felony of child abuse. And in that case, the defendant was charged both with second degree murder and third degree murder. After deliberation, the court apparently, under JOA as to second agreeing murder and after deliberations the jury convicted of third degree murder based on the underlying child abuse.

And then the next is Spaignolia versus state, a much more recent decision, which is from June 28th of this year, from the fifth district court of appeal S-P- S-P-A-G-N-O-L-O. Once again, this is a case where the victim in this case was a child. The child was killed in a homicide fashion. And in this case, the verdict form included a finding or a possible finding for murder in the third degree.

In this case, of course, the problem was that the court conflated and the state purportedly asked for conflation of the abuse and neglect language. The state is not requesting that here, abuse only. I'm reading from page 3 of the opinion in Florida 23 of the statutes which is child abuse, a definition of child abuse is one intentional fizzle.

But the court went on to say and I'm reading from infliction of injury on a child and two, act that could reasonably be expected to result in physical injury of a child or active encouragement of another person. Obviously, there's no factual support for that third one so it has been omitted in this case.

Over in the right hand column we continue under head notes 3, 4 and 5, the court quotes another case which I will get to in a moment, but quoting state V S-I-G-L-E-R. They indicate a conviction for third degree requires an underlying felony and jury determination of existence of such felony.

That is why the state has proposed and we think it's required, to define the elements of child abuse, and also to indicate that the state's burden is to prove that underlying felony beyond a reasonable doubt, which is exactly the way the instruction reads. The next case is A-L-F-I-E-R-I, which is a fourth district court of appeal case from 1998. That stands for again simply the proposition under head note 3.

Here again, we're talking about third degree felony murder in any felony murder prosecution the state must prove the underlying felony beyond a reasonable doubt. Don't have to necessarily charge it although I submit the information contains the requisite requirements, but we have to establish it. That is the reason the instruction language is given.

Finally, F-A-Y-S-O-N versus state, which is 684 southern 2nd 270, a 1996 decision from the first district court of appeal. I'm reading from page 2 of that copy, head note 2. The facts in that case, they describe the similarity to another case called Gonzalez. G-O-N-Z-A-L- E-Z. Argue that the convictions of the lesser included offense of third degree felony murder and attempted felony murder were inconsistent. The court went on to say that, no, and I'm reading from the second column --

(END LIVE FEED)

BLITZER: That's Rich Mantei, one of the prosecutors reviewing a lot of case history why he believes third degree felony murder charge should be added, should be considered by this jury in addition to the second degree murder charge. The judge earlier rules manslaughter will be allowed to be consider by the jury. The state earlier said aggravated assault. They longer wanted that to be included.

Let's get some quick analysis. Paul and Page Pate are still with us. Explain the third degree murder charge they want to be considered in addition to the second degree murder charge.

CALLAN: I have to say they're thinking outside the box, the prosecutors. Felony murder is when you're not intending to kill somebody, let's say you're robbing a store and three people involved, one guy is in the getaway car. Unbeknownst to him, somebody inside the store opens fire and kills somebody.

Under the felony murder rule, the driver of the car in a lot of states can be held as guilty as the person who fired the shot. What they're saying here is, even if he didn't intend to kill Trayvon Martin, he was committing the act of child abuse, apparently, by engaging in this physical conflict with him, and Trayvon Martin died during that conflict.

So it's a type of felony murder, which would be subject very, very, very, stiff penalties under Florida law. And it's a really unusual request, I think, to be making on this fact pattern. I'd be very surprised if the judge goes along with it.

BLITZER: Page, you hear Rich Mantei, the prosecutor saying because trayvon martin was 17 years old, under 18, there was third degree felony murder charge available because of what he described as child abuse. He's making that case right now.

PATE: He has to first prove the underlying felony, prove there was actual child abuse that occurred in this case. I agree with Paul, it's a stretch here, I don't think the judge would give it. A lot of people are wondering why at this point are we trying to figure out what we are charging George Zimmerman with? The fact is the law allow as lesser included offense like manslaughter to be instructed to the jury when there's evidence to support it and the charging document supports it. I understand manslaughter. I think felony murder is a stretch.

BLITZER: Were you surprised the state dropped their request for aggravated assault to be considered, which a lesser charge obviously as well?

PATE: I know the state wanted that but if you read the cases, the law was not there to support it. It's a totally different offense. It involves someone assaulting another person without the intent to kill. I don't think there's any question when George Zimmerman pulled the gun, he intended to shoot and kill Trayvon Martin.

BLITZER: Let's go back to the prosecutor, Rich Mantei, making the case, that these lesser charges should be considered by the jury.

(BEGIN LIVE FEED)

MANTEI: So, your honor, the state believes that the law and the facts demonstrated here-in would permit the instruction on third degree felony murder so long as it is compliant with the requirements that, A, the underlying felony be alleged, B, that the jury is instructed on its elements, C, that the jury is told that it needs to be found beyond a reasonable doubt and, four, there is also a definition of the type of physical injury being alleged.

In this case, the state has alleged it means death, permanent or temporary disfigurement of any bodily part the statutory definition under chapter 39. That is the basis for the state's request in this case. In other words, second degree murder requires as indicated in the case law, a depraved mind. Third degree felony murder does not require that.

It simply requires that the victim be under the age of 18 and be subjected to what constitutes child abuse. And deadly force applies as any other, no dispute about that. That is the reason for the basis of the state's requested instruction.

NELSON: Thank you. Mr. West.

WEST: Just when I thought this case couldn't get any more bizarre. The state is seeking third degree murder based on child abuse? Is the court going to give this any serious contention or consideration, because if so, we have a lot of talking to do. We can start with Mr. Mantei dumped all of this on us sometime around 7:30 this morning.

There was an e-mail, by the way, we've changed our lesser included request from aggravated assault to third degree murder, based on child abuse? And put 10 or 15 cases that obviously he has spent hours, if not days, if not in fact maybe more than a year plot ting, for this moment, when he can spring it on us and the court.

Somewhere we wondered why the state would put this vague allegation in the information that Trayvon Martin was 17. No other charge of child abuse, no evidence of anything other than this statement that Trayvon Martin was a minor, 17 years old. First of all, I move to strike it as surplusage, because it's not related to any element of the offense for which George Zimmerman is charged, nor related to any conceivable lesser included offense.

So, I guess what's happened now, since the time that the state filed its information in April, that they've been lying in wait, collecting all this, loosely connected child abuse case law, where 2 year-olds have been shot by someone who is reckless with a gun, or some child exposed to horrible deprivation or abuse resulting in death, just so at this moment, on the day of closing arguments, we would have to deal with it.

Well, I can say it's certainly consistent with the way this case has proceeded since April, but it certainly is just as disingenuous as well. This is outrageous. It's outrageous the state would seek to do this at this time in this case. Now, if the court wants to recess for several hours so we can research and review these cases, draft a memo of law, we can do that, and we certainly are entitled to the opportunity to respond in a meaningful way.

But it's just hard for me to imagine that the court could take this seriously. Certainly, the court wasn't provided with the case law either, nor given any hint that this is where this was going to go.

NELSON: In all due respect to that statement, the court hasn't been provided a lot of things that have been requested to have hearings that the court has had up until late in the evening, until the last minute or I requested of it, so that in and of itself is not an argument and I don't want to go there. Let's go onto the argument about this instruction.

WEST: I'm not prepared to make an argument. This was just e-mailed to me, buried in the set of instructions that the state's obviously been working on for month and months, just to spring it on everyone at the last minute. Mr. Mantei has this fully formed organized argument based upon all this case that I guarantee you he didn't come with between yesterday when they wanted aggravated assault and this morning when they now want third degree murder based on child abuse. Really? This court is sitting right there apparently approving of this.