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Legal View with Ashleigh Banfield

Michael Dunn in "Loud Music" Murder Trial

Aired February 10, 2014 - 12:00   ET

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

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, and welcome. We are in Jacksonville, Florida. We are live at the case of Michael Dunn. And you've been watching this for the last several days. This is day four of testimony in a case that has not only this community watching very closely, but the rest of America watching closely, as well, because, of course, there are so many parallels that bring us back to the memories of the Trayvon Martin case, and the stories of race and the stories of stand your ground. That may not be the official defense, but it is certainly the undertone at this courthouse today.

So as we look into what's been happening at the Duval County Courthouse, one of the most critical issues has been the testimony today, the medical examiner, who has been currently on the stand and talking about the specifics about how that young man died that night. The specifics matter because there are bullets, there are trajectory, there are markings on a van. There are the entry wounds into the actual young teenager's body. All of that being very specific to how this young man died and whether it can be corroborated with the story that the defendant is telling. The police and now obviously the court.

He's not denying that he shot and killed this young man. Jordan Davis is the dead teenager. A dead teenager who no one says had a weapon. At least no weapon was found in that car or at the site. But there is this argument that the site may not have been searched properly.

I want to bring in some of our best legal minds on this case because, you know what, the devil's in the details and these guys know the details. Paul Callan is joining me live from New York, and Joey Jackson also on the case with me. Mark O'Mara is also here. And, of course, we all remember Mark O'Mara as having defended George Zimmerman in the case that so many are saying really is happening in the shadow. This case is happening in the shadow of that very looming case, as well.

Let me start with you, Paul Callan, and I want to get your take on some of the evidence we've been hearing today and whether it's as earth-shattering or as memorable as some of the evidence we've heard so far.

PAUL CALLAN, CNN LEGAL ANALYST: Well, it's all important evidence in presenting a murder case. You've got to show what the cause of death is. We heard earlier this morning, evidence about how you fire a semiautomatic weapon to establish that there were separate trigger pulls each time this weapon was fired. The M.E.'s testimony was very important today because it showed the position of Jordan Davis as he was shot. And I think she was trying to establish he was in the vehicle, not outside the vehicle, trying to assault the defendant in the case. So an important day for the prosecution today.

BANFIELD: And, Joey Jackson, some of the evidence that the medical examiner is putting forward really talks about the positioning and how Jordan Davis may have been maneuvering as he was being shot and as some of those fatal shots were fired. Explain to me how you explain that to a jury, and how you make medicine real, real simple.

JOEY JACKSON, HLN LEGAL ANALYST: Well, you know what, Ashleigh, the first thing, of course, is whenever the medical examiner testifies, it really has a compelling effect, and it's a difficult day every day throughout a trial, all right, for the victim's family. But today is a particularly difficult day because you get into the details, and they get to learn, along with the jury, exactly what shots were fired at him, what shots entered in him, and how he actually died.

In addition to that, Ashleigh, of course, the medical examiner spoke to the issue of toxicology. And I think it's very relevant in this case that there were no drugs, no alcohol, nothing to speak of, prescription medication or anything else. And so no matter how complex you might get scientifically with the medical examiner, it boils down to something very simple.

And that is that a life was taken, a life was taken too soon of a young man weighing less than 145 pounds, 5'11", and it does not seem probable, based on the testimony, that he was exiting the vehicle to inflict any harm. So when the prosecution ultimately uses this, and what I believe is going to be a very powerful closing argument -- we're not there yet - I think they'll put all the pieces together and it will go to show, from the prosecution's perspective, and hopefully if you're the prosecution the jury's perspective, that this is murder in the first degree.

BANFIELD: Closing argument. I can't even believe you even brought that up, Joey Jackson, my goodness. This has not even been a week yet in this courthouse. And I remember thinking back to just how much time we were going to have to devote to the Zimmerman trial because there was so much evidence and so much discussion and so many weeks that we were in that courthouse and yet this one seems to be speeding by so much more, which is why I want to bring in Mark O'Mara.

MARK O'MARA, CNN LEGAL ANALYST: Hi.

BANFIELD: Because Mark O'Mara is the definite resource on this one.

You know, everyone has drawn the parallels between this case and your case when you defended George Zimmerman, and yet I like to say so close but yet so far.

O'MARA: So very far away. They're really not very similar at all. Certainly a young black male lost his life and it was --

BANFIELD: That's very similar. O'MARA: No question.

BANFIELD: And so is the outcry.

O'MARA: And there's a white guy did the shooting. There's no question about that. I think that -- the only other similarity is Ms. Corey is prosecuting the case. Other than that, there are much more differences than there are similarities -

BANFIELD: And John Guy (ph).

O'MARA: And, of course, John -

BANFIELD: (INAUDIBLE).

O'MARA: Kevin Costner Guy (ph), yes, as well.

BANFIELD: Right, in that courtroom.

O'MARA: But the reality is, there are so many more differences because if you really look at it, no matter what your belief of the Zimmerman case is, there was an altercation that lasted 45 seconds. There were injuries to Mr. Zimmerman. They were screaming for help before there was the one fatal gunshot wound.

BANFIELD: And George Zimmerman stayed at the scene.

O'MARA: And he did. And he talked to the cops and he gave them the information and he did everything he was supposed to do. In this case we have literally the exact opposite. We have a distance between the two assailants, if that's what they were, Mr. Davis, Jordan Davis, and Mr. Dunn. We have seemingly an opportunity to leave, and not stand your ground, and that's retreat, and we'll talk about that.

BANFIELD: Can I just break in with a little bit of news? I'm just hearing wind (ph) from the courthouse behind me that the state's just rested its case. Wow.

O'MARA: Wow.

BANFIELD: Wow. I mean I'm a little floored. I didn't expect it was going to go on a whole lot longer than today and tomorrow perhaps, but it's here so quickly.

O'MARA: Well -

BANFIELD: What's your take on that?

O'MARA: Well, maybe they're doing what they should have done in the Zimmerman case.

BANFIELD: In fact, you know what, let's listen -

O'MARA: Sure.

BANFIELD: Just to hear what they're saying as they're closing here. UNIDENTIFIED MALE: So we'll resume at 1:30. Please do not discuss the case among yourselves or with others.

BANFIELD: You know I think we just -- we've lost the audio, sadly, from the courthouse feed, which happens on occasion. But, again, this is a little astounding.

O'MARA: Well, I will tell you that -

BANFIELD: Are we missing anything? Are we missing something?

O'MARA: Well, I think they may have learned a lesson from the Zimmerman case because you and I talked about this before, I was very surprised that they had put in the evidence of George Zimmerman's statements in their case and chief (ph). The very least, I thought that was a tactical mistake. They should have waited and forced us to make a decision about putting on Mr. Zimmerman. In this case, they know that they have to put Mr. Dunn on the stand. There's no way they can avoid putting Dunn on the stand.

BANFIELD: You think so. You do (ph).

O'MARA: Yes, I'm willing to say so.

BANFIELD: You heard it here first.

O'MARA: And they could be saving some information for rebuttal.

BANFIELD: For the rebuttal case. OK. Well, clearly, what we're going to be looking at later on today, and probably within the next hour, I would say, is the defense case to begin, if they decide to put on a case, that's all. I'm not saying they will (ph).

O'MARA: They're going to have to.

BANFIELD: So hold that thought for a moment, Mark, if you will.

And stick with us at the Duval County Courthouse. There's still a lot of action left in this case and still a lot of mystery left to be solved. Not the least of which the words of Michael Dunn himself, will we hear him on the stand? Will he explain this fear? Will he make it rational? Will he make it legitimate? Will he make it reasonable for the jurors?

And the other thing is, what about that gun? What about that evidence? That mysterious gun. Did you know there was a tripod in the car. A tripod that could have been the color, the shape, the look of a barrel of a gun. We're going to talk about that evidence after the break.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to the Duval County Courthouse in Jacksonville, Florida. It is a beautiful day here in northern Florida. I doubt that's what those in the courtroom are saying. The stakes are never higher than a first degree murder case, and that's what Michael Dunn is up against, as well as three attempted first degree murder charges, all because of the shooting of a young teenager in a car that followed an argument over loud music, loud rap music.

For his part, Michael Dunn says he thought he saw a weapon. He thought he saw the barrel of a shotgun. No gun was ever found, but the argument has been made perhaps it wasn't looked for well enough by the law enforcement officers. So that's part of the defense.

And, of course, the other issue is, what about the gun? Does it even matter? And what about the gun that was fired. There was a gun fired at scene at the hands of Michael Dunn. It's not disputed. He says he grabbed his .9 millimeter out of the glove box and shot in self- defense 10 times. Think about squeezing off 10 shots, over six pounds of pressure on each of those shots. And as you think about it, how about listen to the expert who testified this morning. She was a firearms expert with the Florida Department of Law Enforcement who spoke specifically to that issue, firing off those shots. Have a listen.

(BEGIN VIDEO CLIP)

ANGELA COREY, FLORIDA STATE ATTORNEY: So if 10 shots had been fired from this specific pistol, does that mean with each shot it's 6.25 pounds to pull that trigger?

UNIDENTIFIED FEMALE: Again, yes, approximately.

COREY: And does that differ from a fully automatic weapon where you pull the trigger once and its shots just keep going.

UNIDENTIFIED FEMALE: That's correct, yes.

COREY: So does this take a conscience effort of the shooter to have that second bullet come out?

UNIDENTIFIED FEMALE: I would say so. You have to - you have to activate your finger each time.

COREY: OK. And a third bullet?

UNIDENTIFIED FEMALE: Yes, for each - for each fire you have to pull that trigger.

COREY: All the way up to 10 bullets?

UNIDENTIFIED FEMALE: Yes, however many are fired.

(END VIDEO CLIP)

BANFIELD: Ten shots. That's really tough for someone who doesn't fire a gun. But for other people who do fire guns and maybe people who've been victims of crime, they might understand it a little bit better. But it is a big job for a defense attorney to try to explain how that can be defensible in a court of law.

I want to bring back Joey Jackson and Paul Callan.

And, Joey, just speak to that for a moment, if you will, three groups of shots. A first set, second set, third set and at least a big six- second pause in between. At this point, a lot of witnesses saying there were shots being fired at a fleeing vehicle. Go at it. Have at it. Be the defense attorney. Explain to me how you can make sense of that.

JACKSON: Sure. Well, the first thing, Ashleigh, let's point out what the prosecution was doing with the firearms expert. When they spoke to the issue of the six pounds of pressure that you mentioned, the prosecution is attempting to show that this is purposeful, meaningful, malicious activity.

Now, for the rebuttal for the defense, what the defense has to do in rebutting that is saying that there was no other alternative. There was no option. This, in his mind, was something that he had to do. Of course, it's a difficult argument to make. And that goes along the line of whether or not he misperceived the tripod in the car or misperceived or identified perhaps a gun that the defense was trying to argue in testimony last week, did you search, speaking to the police officers, the lot that they went to across the street?

Oh, you did, but it was four days later. Could you not have searched it more thoroughly at that time, you know, closer in time, and did they ditch a weapon? If they're able to make the argument, the defense that is, Ashleigh, that there was a weapon here and reasonably it could be foreseen that Mr. Dunn perceived himself under attack, certainly it buttresses their case. But as I mentioned, it's a very difficult argument to successfully make.

BANFIELD: Paul Callan, explain to me why -- and maybe this is just me, but I assumed the moment I heard there was a tripod in that red SUV, a tripod could very easily resemble what it is Mr. Dunn claims he thought he saw, the barrel of a gun.

In fact, I watched his interrogation tape where he talked about seeing the side -- more of the side of the barrel of a shotgun.

To me, as a defense attorney, I would think that you might actually seize upon that and really highlight it. Is that something we're likely to hear in this defense case?

CALLAN: Oh, I absolutely think you're right on that, Ashleigh.

Obviously, the whole defense here is self defense, and you remember, Dunn's statement to the police was that at first, he thought it was a gun. And then he described it as some kind of a --- well, he wasn't clear really, as to what it was.

But the -- when you bring the tripod into the picture, then now you've got a solid argument that he may have thought this tripod was a gun, or maybe somebody in the car was trying to make it look like a gun.

And I'll add one other thing that I thought was interesting that came up during the morning testimony with the expert on ballistics.

Remember, the defense attorney asked a lot of questions about do automatic weapons -- semiautomatic weapons, rather -- sound different from other kinds of weapons, and he was talking about specific weapons involved, allegedly, in this case.

He seems to be leaving the idea out there that there was a different sound of the shots, and maybe more than one gun was fired.

So, he's thrown that into the mix, as well, to suggest that his client had good reason to be in fear of his life.

BANFIELD: And just quickly if you would, Joey Jackson, when you sort of think of these jurors, they're not experts. They don't spend their days in courthouses like both of you do and everybody else involved in this jurisprudence.

They're just average people who are learning this stuff for the first time, and they have guts. They have gut reactions.

And overall, do you think that their gut reaction is going to be able to be assuaged by some of these details as we move among?

I know that's the big battle in every case, but there is overwhelming stuff here that doesn't pass the smell test for a lot of people.

JACKSON: It's a wonderful question, Ashleigh, and you know, the more you do it, quite frankly, the more confused you get as to what jurors are hanging their hats upon.

But it comes down to -- whether you're in court every day or you're not in court, it comes down to reasonable people, everyday life experience and common sense.

And briefly on that issue, to go back to what Paul Callan was speaking of about, hey, maybe there was more than one gun, because a firearms expert could not identify particular bullets.

But, if that were the case, should there not have been on the side of Mr. Dunn, somewhere where there would be evidence shots fired the other way around?

So from a defense attorney's perspective, you can make whatever argument you want, but if it does not resonate with reasonable people, because, Ashleigh, it does not pass the smell test, then the argument becomes problematic.

BANFIELD: And reasonable is so important. What's reasonable to one person may be completely irrational to another. That's why juries are so fascinating.

And we've got 10 men and six women and four races represented in this jury. Jury selection mired in secrecy. Maybe that's because of what happened in the Zimmerman case.

But I'll tell you what. Someone who's in that courtroom is going to come out and speak with me next about what this jury is like, how they're reacting to some of the evidence they've seen and what they think that might mean as we move ahead in this case.

Live from the Duval County courthouse, Sunny Hostin, coming up, will join me next, live from the courtroom, probably making her way out as we speak.

Back in a moment.

(COMMERCIAL BREAK)

BANFIELD: Welcome back to the Duval County courthouse in Jacksonville, Florida. I'm Ashleigh Banfield. This is LEGAL VIEW.

We're at the location of the Michael Dunn trial. A lot of people hearing this, another trial about race and a young kid who is dead, because of someone who was afraid or at least that's as the story goes. A lot of facts being thrown around in that courtroom.

We're not even halfway through this case at this point. The prosecution did just rest moments ago, so we're expecting the defense case to get under way.

And there are 16 people in that courtroom who matter most, who truly matter most, as it is always the case, the jurors. Yes, there are 16. That's because there are alternates and no one knows who the alternates are.

I can tell you the makeup of the 16, though, and this is critical. We have 10 women -- I said 10 men earlier on. It's 10 women and six men.

Ten of the jurors are white, three of them are African-American, two of them are Asian and one person is described as both white and Hispanic. So that's the racial makeup, if that matters at all, and many say it does.

But what about their attentiveness and what they're like in court and how they're taking all of this information in?

Sunny Hostin, our CNN legal correspondent and analyst, has been in that courtroom and joins me live now, able to come out during a quick break.

Tell me everything. How does it feel? What does it seem when you watch them? Are they fascinated, are they interested, are they upset? Tell me the descriptions.

SUNNY HOSTIN, CNN LEGAL ANALYST: Ashleigh, I think you're asking me about the jury. They are riveted. They are fascinated by this case.

I will tell you, during the medical examiner's testimony in particular, they looked very disturbed, as oftentimes a jury is, when they are seeing that kind of evidence.

They're looking at the photos of Jordan Davis, lying, of course, nude on the examination table. And this medical examiner is actually quite good in terms of just breaking it down, making it very accessible for this jury.

What I would like to point out in terms of the jury, which was fascinating to me, be one of the jurors, an Asian female, and I had the opportunity to sort of observe her during this testimony. She is a doctor, Ashleigh. She is a doctor, and out of all of the jurors, she was sort of chewing gum, which tells you, she is used to hearing this type of evidence and seeing this type of subject matter.

Also, what's very interesting and different, I think, from the Zimmerman trial is that there are three black female jurors. They're quite young, I had the opportunity to observe them, and none of them have children.

But get this, Ashleigh. They are also some part of the medical field. There is a nursing student, an occupational therapist, and then on the other side, a telecom specialist.

So, these are jurors by my assessment that seem to be very analytical. So, they're really taking in all of this evidence, and it was a really fascinating day.

I will say this case is moving very, very quickly, and we haven't heard from Michael Dunn, so it seems like the state learned a pretty big lesson from the Zimmerman trial.

They didn't put in any of his statements, so I suspect that in the defense case, if they are trying to show self defense, and I'm sure that Mark O'Mara can weigh in on this, that he's going to have to take the stand.

BANFIELD: And Mark has said that. He has said, without question, this case is screaming for the defendant's own words, because this is a different case.

There's so much that isn't like the Zimmerman case, and while it does on its surface seem like it, the devil is always in the details.

Sunny Hostin, thank you for that.

Also, since you just mentioned the fact there are several of these jurors with a medical background, I want to play for you something that the medical examiner said this morning in testimony.

Her name is Stacey Simons, and is she spoke specifically about the fatal gunshot. For some jurors, that can bring you to tears when you're talking about a 17-year-old. For others, it's very clinical.

Have a listen.

(BEGIN VIDEO CLIP)

STACEY SIMONS, JACKSONVILLE MEDICAL EXAMINER: Over here, it perforated the right lung and continued on behind the heart, and in front of the spinal column to perforate the aorta.

The aorta is the large artery that carries all the blood from the heart to the body.

UNIDENTIFIED FEMALE: With this bullet going through Jordan Davis' body at the angle you have just explained to this jury, damaging all of the internal portions of his body that you have just explained, have been fatal all by itself to Jordan Davis?

SIMONS: Yes, it would.

(END VIDEO CLIP)

BANFIELD: Easy for a medical examiner to speak so clinically about something so devastating. I mean, we're talking about a kid dying.

For some jurors, it's difficult. For others, it's not. And that's why, among many reasons, jury selection is so critical.

Some people say cases are won or lost in jury selection alone, and there's one man who makes it a pretty big part of his profession, actually, to be an expert in that area.

Richard Gabriel joins me live from Los Angeles. As a jury consultant, I'm fascinated to hear your take on what you think these attorneys were thinking when they went in, especially with the Zimmerman case not even a year out in and looming large.

RICHARD GABRIEL, JURY CONSULTANT: Well, Ashleigh, I think as you have talked about, there are three main components that I think both sides are looking for. I would call them the fear factor, forensics and guns.

And in terms of jurors, it's really their attitudes and their personalities that you're looking for in jury selection.

You're trying to find out whether a juror is going to look at this case and see these youths as a threat, therefore, thinking Michael Dunn is reasonable in his fear of them.

They're going to take a look at that forensics, whether they clinically look at the angle of the gunshots to see if that makes sense, and fundamentally how they feel about guns, self defense and stand your ground.

BANFIELD: So there is only one thing I would dispute here, and that is that in the many, many years that I've been doing this job, I would say that that's spot-on.

But since Zimmerman and a couple other cases like it, and certainly since O.J. Simpson, I actually feel like race is just critical, period.

You're not allowed to strike because of race, but you know what, it's critical in jury selection, and attorneys get around it in all sorts of ways.

You don't think that race is critical, like number one critical, in cases like this now?

GABRIEL: I do, but I don't think for the obvious reasons. I think race is an issue, because it's whether those young black women on this jury will take a look at it from Michael Dunn's -- not necessarily Michael Dunn's perspective, but saying I know kids like this. I know they're up to no good, and I know they can be threatening, and I know kids who will ditch a gun like that.

Or whether they're going to say, here's another example of a white man just making an assumption about that.

And that's where you have to really look at where these -- where race is the matter, what their experience is, and who they're going to hold it against from that experience.

BANFIELD: And so the experience and the life experience is what I'm getting at here. It's not your color, it's your life.

And why I say that is because one man's reasonability is different than the man or woman next to him.

And isn't that now so critical in American jurisprudence, your life is going to determine whether you believe that defendant to be reasonable or not?

Because in your world, that was entirely reasonable or in your world, that was ridiculous.

GABRIEL: Ashleigh, it's everything.

People's life experiences and their belief systems, their attitudes, their opinions, their values, is everything, and also their personalities, whether they're emotional, whether they're going to really identify with the tragic death of Jordan Davis, or whether they're going to be able to look at it more clinically.

These are the factors that I look at, that most experienced people look at, that really determine how jurors come to a verdict in the case.