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Anderson Cooper 360 Degrees
Self-Defense or Murder?: The George Zimmerman Trial
Aired July 09, 2013 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN ANCHOR: Well, the trial was a sprint, but tonight it became a marathon, trench warfare in the courtroom.
Good evening again. Welcome to another A.C. 360 special report, "Self-Defense or Murder?: The George Zimmerman trial."
First, the heated battle that just ended at 9:56 p.m. Eastern time. Just minutes ago, the judge ordering a recess until tomorrow morning, Wednesday, the defense asking the judge to permit several key items into evidence, text messages and photos that would seem to paint Trayvon Martin as more potentially aggressive in the eyes of the jury.
Defense attorney Don West tonight making his pitch. Listen.
(BEGIN VIDEO CLIP)
DON WEST, ATTORNEY FOR GEORGE ZIMMERMAN: There are two main issues. One relates to several conversations by Mr. Martin attempting to acquire a firearm.
JUDGE DEBRA NELSON, 18TH CIRCUIT COURT OF FLORIDA: These are conversations that are audio conversations or are they written?
WEST: They are text messages that were obtained from his phone.
The crux of the matters that relate the fighting issue, that is the crux of this proffer. It's Mr. Martin's text messages about being in a fight, about the effects of that fight on him, that he got into a fight,, that he lost the first round, won the second and third round, bloodied the guy's nose, wasn't done with him yet.
A Facebook post from Mr. Martin's half-brother, Demetrius Martin, asking Trayvon Martin, "When you going to teach me how to fight"?
(END VIDEO CLIP)
COOPER: As I said just in last couple of minutes, right before court recessed, tensions got high inside the courtroom. The prosecution countered Mr. West there, saying that there's no way to tell -- and actually the judge also mentioned that there's no way to tell exactly when those text messages were sent or who may have sent them, who may have had access to Trayvon Martin's cell phone.
There's no evidence that it was Trayvon Martin himself, the judge said, sending those texts or sending those pictures, the prosecution saying no evidence of exactly when those pictures of Trayvon Martin, when a picture of a gun was taken, exactly who was in the photograph. Then the defense countered very vehemently.
And toward the end, as the judge recessed, the defense continued to talk tonight, saying that -- Don West saying he was exhausted and they could not keep up this pace. Now, earlier in these lengthy hearings in which the defense complained about the prosecution tactics, the two sides fought for and against allowing a defense- commissioned computer animated of the deadly struggle between Zimmerman and Martin.
Defense wants it in. The prosecution says it proves nothing and would prejudice the jury. The judge said she's going to weigh the arguments tonight, rule on it tomorrow, the text, the photos, all of it tomorrow, Wednesday. She will make her ruling. It's unclear whether tonight's slow-motion hearing will derail defense plans to rest its case tomorrow.
A lot to talk about tonight right now. Legal analysts and former federal prosecutors Sunny Hostin and Jeffrey Toobin join me, at the defense table, Danny Cevallos and Mark Geragos. Mark is co-author of "Mistrial: An Inside Look at How the Criminal Justice System Works, and Sometimes Doesn't." Also, forensic scientist Lawrence Kobilinsky of the John Jay College of Criminal Justice is here in Manhattan.
Mark, really some dramatic moments just in the last couple of minutes, the defense vehemently saying that the, prosecution that the state has basically -- has lied and hid evidence from them, not given over evidence that they had in a timely manner.
MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Well, and this has been their complaint all along. One of the reasons that Mark O'Mara was talking about that Don West was so upset early on and had done the knock-knock joke and everything else, they are bitterly complaining that the prosecution has been playing hide the ball all along, that they had not been turning over evidence that they should have turned over, that they had what's called a Brady obligation to turn over.
And I think it's finally boiled over as you get -- and I have had judges -- toward the end of a trial, judges want to get that trial moving. They see the light at the end of the tunnel. If they can get this case argued and to the jury by Friday afternoon, that is what she wants to do. So she's going to keep them late, and this is when tempers flare.
COOPER: I want to play something that occurred really just moments ago, Don West complaining about the state to the judge. Let's listen.
(BEGIN VIDEO CLIP)
NELSON: I'm not getting into this. Court is in recess. I will give my ruling in the morning. I will see you at 8:00 in the morning.
(CROSSTALK)
NELSON: Court is in recess.
It is 9:56.
(CROSSTALK)
NELSON: No, court is in recess. Thank you very much, with all due respect. We will see you at 8:00 in the morning.
(CROSSTALK)
NELSON: Well, at 8:00 in the morning, the issue is Mr. Donnelly, who may have violated -- or counsel has informed the court that you know that he violated the rule of sequestration. That's the second time today that I have heard that there's been a violation of the rule of sequestration by the witnesses.
I don't want to take that up at 9:00 and have the jury sit out there and wait like they did today. We will be in recess until 8:00 in the morning.
(CROSSTALK)
UNIDENTIFIED MALE: (OFF-MIKE)
NELSON: And so have I.
MARK O'MARA, ATTORNEY FOR GEORGE ZIMMERMAN: Not being able to prepare or get my witnesses gathered for tomorrow, and I can't do it tonight.
NELSON: I will see you at 8:00 in the morning.
(CROSSTALK)
WEST: ... not physically able to keep up with this case much longer. It's 10:00 at night. We started this morning. We have had full days every day, weekends, depositions at night.
(END VIDEO CLIP)
COOPER: Jeff, earlier than this, and we will show that bite shortly, the defense saying the prosecution lied, hid evidence from them. The prosecution then returning saying that the defense should apologize to them. What do you make of what's going on there, Jeff?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, tensions are high in this courtroom.
At the end of a long trial, especially one that's been so physically demanding with these long days, this is fairly common. Look, the defense is doing very well here. They should be happy that this case is moving quickly. Yes, it's exhausting. Yes, they're tired. Yes, it's frustrating to have the judge force them to keep up this pace.
But the judge, I think, fundamentally is doing the defense a favor by keeping this thing going, and, remember, the judge is the jury's lawyer here. This jury is sequestered. They are stuck in hotel rooms away from their family. The judge wants to get them back to their families. I think the judge is doing a great job.
COOPER: Potentially explosive evidence about what may have been on a cell phone of Trayvon Martin is whether or not he sent these texts or photos. I want to play some of what this potential witness for the defense, Richard Connor, said what he found on Trayvon Martin's phone.
(BEGIN VIDEO CLIP)
RICHARD CONNOR, FORENSIC COMPUTER ANALYST: There are several text message exchanges where Mr. Martin was either trying to purchase or sell a handgun. And then there are several -- there's actually two copies of it, two separate pictures, one of the gun, handgun on a cable or something, and the other one where it's lifted off the table and is in somebody's hand.
(END VIDEO CLIP)
COOPER: There's also more testimony about texts about fighting, a fight that Trayvon Martin said he apparently in.
Sunny, he went on to detail that the text message exchanges were happening the week before Trayvon Martin was killed. Do you think this should be allowed in by the judge?
SUNNY HOSTIN, CNN LEGAL ANALYST: I don't think it's going to be allowed in, because the judge voiced her concerns very clearly.
She said, you know, these can't be properly authenticated. We don't know if Trayvon Martin sent it. We don't know if a friend sent them. She mentioned that a 7-year-old can sometimes break into a phone, knows the passwords, and send messages out. It's happened to me. My 7-year-old changed the code on my phone.
So I think in real life, trying to authenticate social media messages and messages on Facebook is very difficult. When you have the person whose phone it apparently belonged to dead, how do you properly authenticate it? I don't think it's coming in on that basis. And even if it's relevant, it's so prejudicial. It's not probative of anything.
I can't imagine that this kind of information is coming in. And I don't think that the defense should want it in. It's that trash the victim type of defense that is never successful. I agree with Jeff. This defense is doing very, very well. They should rest and let this go to the jury.
(CROSSTALK)
COOPER: But wait a minute.
(CROSSTALK)
COOPER: Let me counterargue that to Danny and, Danny, get your opinion, because what the defense is saying is, well, look, the prosecution, you know, went to great lengths to get evidence of George Zimmerman allegedly learning mixed martial arts and that was allowed in.
So if there are, in fact, texts from Trayvon Martin where he's talking about being in a three-round fight with somebody and that he won the fight and he wants to fight again, should that be allowed in, if that George Zimmerman mixed martial arts training was allowed in, Danny?
DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: It's fascinating that you bring this up, because, first of all, for defense attorneys everywhere, including Mr. Geragos, when you see that text messaging expert on the stand, it makes you cringe, because we have had so many clients who have been burned by what's on their cell phone.
It's interesting to see it on the other side, that evidence coming in. But it's still -- Sunny is absolutely right. It must be authenticated. That's a preliminary issue. Before we even reach whether or not it's probative or whether or not it's too prejudicial, we have to examine whether or not -- and this is a huge issue with digital evidence now.
In the old days when you took a quill with a feather on it and wrote something, it was pretty clear that Anderson authored it. Nowadays, with Facebook, photos, everything, it's more difficult to authenticate who may have written something, an e-mail. You have to use some real digital evidence.
A photograph, I mean, you may not know who took it or where it came from.
COOPER: But, Mark, the prosecution -- excuse me -- the defense is saying this stuff was kind of double encrypted.
(CROSSTALK)
GERAGOS: Right.
Anderson, what is so frustrating about this is that in courtrooms all across this country, if a prosecutor wanted this evidence in, the mother of the judge has not been born that is not going to let this stuff in.
I'm telling you, I have defended probably 100 cases where judges have let in stuff like this with 1000 percent less authentication than was offered here. The idea that somehow they need more authentication or she concocts this idea that maybe my 7-year-old broke into it, the classic judicial response to that is, oh, that goes to weight, not to admissibility.
Give me a break. She may be doing the defense a favor by not prolonging this. And, Sunny, there may be a point there in terms of you might not want to trash the victim, although that philosophy didn't work too well with Robert Blake's case. But in this case, they are so far ahead on points that they should probably -- and I think a lot of what's driving thing judge is she wants it over and she wants it over now and she wants it to that jury by Friday afternoon.
COOPER: Jeff, I saw you shaking your head.
TOOBIN: Well, I think Mark -- I actually think Mark is right about the first part. I don't think authenticity is much of an issue.
I agree that they could cross-examine about whether there was any proof that Trayvon Martin actually sent it. But I think the bigger issue here is, is this material relevant? There is no evidence at all that George Zimmerman knew that Trayvon Martin was looking to buy a gun or that he knew he had been in a fight. That would have been relevant, if George Zimmerman somehow knew that Trayvon Martin had a violent streak, if in fact he did.
But there's no evidence that George Zimmerman could have known of these text messages. So I don't see why it's relevant at all. I don't think they should allow this in evidence any under circumstances.
(CROSSTALK)
COOPER: We have to take a quick break. When we come back, though, I want to play one more exchange that the witness had about some of the texts that related to this alleged fight that Trayvon Martin allegedly sent a text about, and whether or not it was him.
It was a big day even before it went into overtime, including testimony from a leading pathologist that the defense hopes will undermine the credibility of the prosecution's medical experts. We will talk about that testimony and whether the trial is still heading to the homestretch.
Let us know what you think. Follow me on Twitter right now @AndersonCooper. And we will be right back.
(COMMERCIAL BREAK)
COOPER: Again, a big fight in the courtroom long into the night ending just before 10:00 Eastern time, just we went on air over text messages, photos, a computer reenactment of the Martin-Zimmerman struggle, as the defense sees it.
Now, at one point, defense attorney Don West lashing out at what he claims are dirty tactics by the state. Listen.
(BEGIN VIDEO CLIP)
WEST: It's simply unfair for Mr. Zimmerman not to be able to put on his defense because of the state's tactics.
It was a strategy, obviously, because they had it in January and kept it from us, made us spend 10, 20, 30, 100 hours digging it out, playing games with us, lying to this court. And now it's our fault? It's our fault? Denying Mr. Zimmerman the right to present this information violates both the Florida and United States Constitution. Thank you.
(END VIDEO CLIP) COOPER: The prosecution said he should apologize to the state for suggesting that they were lying. The judge said, look, let's not even get into this. We're done for the day, stormy end to a very long day.
There were plenty more developments today, including testimony from a high-powered witness for the defense.
Details now from Martin Savidge.
(BEGIN VIDEOTAPE)
MARTIN SAVIDGE, CNN CORRESPONDENT (voice-over): Famed pathologist Dr. Vincent Di Maio said the bullet hole in Trayvon Martin's clothing and body proved one of the defense's key points, that it was Martin who was on top of George Zimmerman as they struggled.
Di Maio, a gunshot expert, said he could tell it was Martin was on top on Zimmerman, because even though Zimmerman's gun was touching Martin's hoodie when he fired, the hoodie was not touching Martin's skin.
DR. VINCENT DI MAIO, FORENSIC PATHOLOGIST: The fact that we know that the clothing was two to four inches away is consistent with somebody leaning over the person doing the shooting and that the clothing is two to four inches away from the person firing.
SAVIDGE: Di Maio also countered the medical examiner's testimony for the prosecution, who previously said Martin could have survived and suffered up to 10 minutes after he was shot. Di Maio said, shot in the heart, Martin would have unconscious in 10 to 15 seconds.
DI MAIO: He's going to be dead within one to three minutes after being shot in this case.
SAVIDGE: Finally, Di Maio testified that Zimmerman's injuries also fit his account, saying his review of photographs taken that night indicated Zimmerman's head had suffered at least six impacts against a hard surface.
UNIDENTIFIED MALE: Is this injury consistent with Mr. Zimmerman's head having impacted a sidewalk?
DI MAIO: Yes.
SAVIDGE: The prosecution jumped on a key question that the defense expert couldn't answer.
BERNIE DE LA RIONDA, ASSISTANT STATE ATTORNEY: You're not testifying here as to who started what led up to the death of Trayvon Martin?
DI MAIO: That's correct, sir.
DE LA RIONDA: And you're not saying as to who attacked who, whether it was George Zimmerman who attacked Trayvon Martin or whether it was Trayvon Martin who attacked George Zimmerman? You can't say to that, correct?
DI MAIO: That's correct, sir.
DE LA RIONDA: In fact, you can't testify as to who threw the first punch.
DI MAIO: That's correct, sir.
DE LA RIONDA: And you can't say whether it was Trayvon Martin defending himself or George Zimmerman defending himself in terms of when this first started.
DI MAIO: When it first started, that's correct, sir.
SAVIDGE: Prosecutor Bernie de la Rionda got the witness to admit the defense was paying Di Maio $400 an hour for his expertise. But Di Maio said the case didn't require a lot of his time.
DI MAIO: Up to yesterday, $2,400. This is not exactly a complicated case forensically.
SAVIDGE: The state was able to get the pathologist to say it's possible Trayvon Martin could have been trying to move away just before the shot was fired.
DE LA RIONDA: And at that point, you don't know if Trayvon Martin was backing up, backing away, in terms of providing an angle or whether he was going forward, you can't say?
DI MAIO: All that I said was, it's consistent with his account, Mr. Zimmerman's account. That's all.
DE LA RIONDA: But it's also consistent with Trayvon Martin pulling back in terms of providing the same angle.
DI MAIO: I told you that, too, yes, sir.
SAVIDGE: The last testimony of the day was from Zimmerman's former neighbor, too ill to appear in person. Eloise Dilligard (ph) joined a growing list of witnesses who said she believes the voice screaming for help sounded like George Zimmerman.
ELOISE DILLIGARD, ZIMMERMAN'S NEIGHBOR: Based on the fact I have only heard George's voice and it's a light male voice, I would say that it was his.
O'MARA: And when you say you have heard him talk, tell us again about how long you have known him.
DILLIGARD: By that time, it was two-and-a-half years.
SAVIDGE: Perhaps the most powerful statement made in court today didn't take place on the stand, but when Mark O'Mara said the defense planned to rest Wednesday. Martin Savidge, CNN, Sanford, Florida.
(END VIDEOTAPE)
COOPER: Well, that may depend on what the judge rules tomorrow morning.
Let's bring back in our panel, Sunny Hostin, Jeffrey Toobin, Danny Cevallos, Mark Geragos and Lawrence Kobilinsky.
I want to talk about the forensic evidence in a moment.
Jeff, just -- we talked about this in the 8:00 hour. But you weren't there. That last witness that Martin Savidge talked about that the defense brought in by video, the neighbor who testified that was George Zimmerman's voice, does that have much credibility? How many neighbors know what you sound like when you're screaming?
TOOBIN: No, I can't imagine that will have any significant impact on the jury. But, boy, that expert who testified that Trayvon Martin was on top, that's a powerful witness. And at this point, I think it's going to be hard for the prosecution to argue that -- any way that George Zimmerman was on top. There's really almost no argument left.
And you saw that in the cross-examination that basically they were saying, well, even if he's on top, he might still be -- Zimmerman might have thrown the first punch. But I think the defense has really proved that Trayvon Martin was on top here. I think it's almost settled.
(CROSSTALK)
COOPER: Go ahead, Mark.
GERAGOS: And the interesting thing about that is look at what the prosecutor is saying. He's asking him, isn't it consistent that he could have, Trayvon Martin could have been pulling away? And the doctor says, and all I said is it was consistent that he was leaning in. The definition of reasonable doubt is if you have two theories, but one is consistent with guilt, one consistent for innocence, boom, you must adopt the one that goes towards innocence and find the defendant not guilty.
That's the definition of reasonable doubt.
COOPER: Dr. Kobilinsky, you were impressed with the testimony, especially when you compare it to the other medical examiner for the state.
DR. LAWRENCE KOBILINSKY, PROFESSOR OF FORENSIC SCIENCE, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: It was quite different.
Dr. Bao I think gave a very amateurish presentation, flip- flopping about certain facts. And I think all of these questions were cleared up by what I call textbook testimony today by Dr. Di Maio. He covered everything by both medical examiners, not only the distance between the muzzle of the gun and the clothing and the body. He also talked about time of death, consciousness and pain, and touched upon all the issues involving the trauma to the head.
COOPER: In fact, you mentioned this and I want to play this for our viewers who may not have seen the testimony, because George Zimmerman has said all along that Trayvon Martin actually spoke even after he was shot. So, is that each possible? There was testimony about that today, about what can happen even if your heart has been ripped out. Let's listen.
(BEGIN VIDEO CLIP)
DE LA RIONDA: If you pulled my heart out now, I could keep talking and just keep talking and talking and talking for -- and just talking and talking and talking without a heart?
DI MAIO: That's right.
DE LA RIONDA: OK, for about 15 seconds or so?
DI MAIO: Right. It's between 10 and 15 seconds. It's dependent on the oxygen supply to the head. And that's why some of the SWAT people will prefer shooting somebody in the head if it's situation where the person has like a gun on somebody else.
DE LA RIONDA: OK. Now, even though my heart is gone, I would still feel some pain or would I not?
DI MAIO: Oh, well, yes, you would still feel pain.
(END VIDEO CLIP)
COOPER: It's interesting. So, Dr. Kobilinsky, the reason that's important, and really more important for the defense is that it does seem to continue to make George Zimmerman's story plausible that Trayvon Martin spoke.
KOBILINSKY: I think all of the physical evidence that we heard about from Dr. Di Maio is consistent with the story that George Zimmerman told.
One of the things that medical examiners do is try to reconstruct the events. And his determination of distance between muzzle and hoodie, the hoodie garment and the body is very -- and the fact that Trayvon Martin was carrying this juice can in the pocket of the hoodie, you put that all together and it's very consistent with Trayvon Martin straddling over George Zimmerman, and George Zimmerman shooting with his right hand, with the bullet entering slightly to the left of midline and moving toward Trayvon Martin's right side, all very consistent with what George Zimmerman has told.
COOPER: And, Danny, the defense had argued strenuously to get the toxicology report in. We talked about this a lot. But then it didn't really come up. CEVALLOS: That was fascinating to me, because they really fought hard to get that in, and even now today we have been talking about text messages, not really expect -- of the marijuana.
It's a spectrum of different pieces of evidence that the defense wanted to get in. On one end of that spectrum on the relevant side is probably the marijuana, because it goes to someone's state of mind at the time that this happened. On the other end, you get into the text messages, which Jeffrey Toobin is absolutely right.
What we look at is what was in George Zimmerman's mind at the time of, not just general history about Trayvon Martin. And of course, on the silly end is the fact that he had gold teeth or whether or not he had gold teeth. But certainly stuff that goes to his state of mind, THC, marijuana, tends to be more probative. But then we move out to things like text messages, and things that can't even be authenticated, and things that we know Zimmerman was not aware of, and we move from probative and probably way more prejudicial.
(CROSSTALK)
COOPER: Prejudicial.
All right, we have to take a quick break. We will dig deeper into what the prosecution and defense have been arguing about a lot today. What you're seeing, which we don't know whether or not the jury is going to see this yet, a defense computer reenactment of the Zimmerman-Martin struggle. We will show it to you next. We will show you the technology that went into it. We will be right back.
(COMMERCIAL BREAK)
COOPER: A reminder: Day 12 of the trial will begin first thing in the morning with a ruling on that computer reenactment video the defense wants to put before the jury.
Now, whatever the decision, the video's technical sophistication is pretty remarkable, as our Randi Kaye shows in this behind-the- scenes look.
(BEGIN VIDEOTAPE)
RANDI KAYE, CNN ANCHOR (voice-over): This is one picture of what might have happened in the moments before Trayvon Martin was killed, this 3-D computer animation of the confrontation between Trayvon Martin and George Zimmerman.
The reenactment video comes from animation expert Daniel Schumaker, a witness for the defense. Schumaker's company, Contrast Forensics, claims to be the only company in the United States with wireless motion capture technology for crime scene and accident reconstruction. He uses a motion capture suit to track the movements.
On the company's YouTube channel, we found this re-enactment from another case. Schumaker reconstructed a poor-quality security camera video showing a pedestrian hit by a vehicle. See how his wireless motion-capture suit records the person's movement at every location? He uses what's called accelerometers, 16 of them, in fact, to get his most accurate recording of a person's movements in real time.
He used to use a tape measure, then lasers to measure a crime scene. Now he creates a series of points at a scene, sometimes as many as 500, all in 3-D space. Schumaker says it's the most accurate reconstruction tool on the market.
DANIEL SCHUMAKER, ANIMATION EXPERT: The laser follows me around, so it only takes one person to operate.
KAYE: In court, Schumaker told the judge how he created the model in this case and whether or not it matched the same conditions as the night Zimmerman killed Martin.
RICH MANTEI, PROSECUTOR: Talk to me about the conditions in which that was filmed. I assume it, for example, was filmed in the daytime.
SCHUMAKER: Correct.
MANTEI: I assume it wasn't raining.
SCHUMAKER: Correct.
MANTEI: The glass wasn't slick.
SCHUMAKER: Correct.
MANTEI: There weren't these other items of physical evidence out there.
SCHUMAKER: Correct.
KAYE: Schumaker said he created the animation of the confrontation by simply re-creating the witness statements that are not in dispute.
SCHUMAKER: The scenarios that can be created are consistent with testimony, witnesses and evidence at the scene.
KAYE (on camera): Still, the prosecution argued against showing the animation to the jury, claiming it's an inaccurate depiction of the confrontation.
Schumaker's technology and others like it are also used by police agencies, even by the entertainment industry for animated movies like "Avatar."
SCHUMAKER: The suit that I have, it was used in "Avatar," "Ironman," "X-Men," and they use it for creating movements of characters in movies, and it also is used in games -- gaming, like Mets (ph) and football.
KAYE (voice-over): As we wait for the judge to rule whether the animation can be shown to the jury, Schumaker says if it is rejected, it be the first time in 13 years doing this that his animation re- creations were not allowed to be used.
Randi Kaye, CNN, New York.
(END VIDEOTAPE)
COOPER: With me again, CNN legal analyst and former federal prosecutor Sunny Hostin; CNN senior legal analyst Jeffrey Toobin; criminal defense attorneys Danny Cevallos and Mark Geragos; and forensic scientist Lawrence Kobilinsky from the John Jay College of Criminal Justice.
Sunny, the argument was fascinating over this animation. It went close to, like, five hours in court today. There's no other point of contention that's lasted this long. How crucial do you think this is for the defense? Why are both sides so dug in on this?
SUNNY HOSTIN, CNN LEGAL ANALYST: Look, this is a movie about the defense's theory of the case. Of course they want it in, Anderson. Juries love animation. They love demonstrations. This would be a bonanza for the defense.
But this isn't coming in. I mean, this is a criminal trial. The standard is very high for this type of evidence to come in. I mean, this is not a movie. This is not "Avatar." This is not "Ironman." The judge doesn't care that this, you know, type of suit was used in Hollywood. This is Seminole County. This is Sanford, Florida. This is not going to happen.
I've got to tell you, I was in the courtroom sort of watching it. It was like watching a movie. But this is not coming in.
COOPER: And Danny, it's only as good as the data points that are used to actually make it. And those are all in dispute.
DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Exactly. The technology is fascinating. The CGI element of it. I mean, relating it to "Ironman," these are all spectacular movies.
However, it is -- it's only as good as the data that you feed into it. And the prosecution's motion that they filed, they identified several problems, which I think are relevant. I mean, he's reconstructing where people were based on such things as where a spent shell casing was found. And he's -- you can see from the animation itself that it shows an initial punch. I don't know that that's been -- that's an undisputed showing Trayvon Martin...
COOPER: In this animation, it's Trayvon Martin throwing the first punch. But you can't prove that.
CEVALLOS: Absolutely. So when it comes to demonstrative evidence, there's less of a burden. But where here you're trying to admit something as substantive evidence of what happened, Florida courts are very clear: It must be a fair and accurate representation, and the data must be of the kind reasonably relied upon.
That's the problem. The technology is fascinating. The data fed in, probably not.
COOPER: Jeff, you don't believe it's going to get let in, do you?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, you know, I don't understand why the judge took so long. I think it's crazy to think this could be relevant evidence. This is a high-tech cartoon. That's what this is.
And the idea, it's like, "We're going to show you a movie that says our client is innocent." I mean, that's ridiculous. You can't do that. I mean, this is -- this is, you know, their version of the facts, which is what should argue to the jury. But they can't put this cartoon on and say that people -- like this is somehow evidence. It's just all made up.
COOPER: Mark, you've used recreations like this before. Do you find them effective?
MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Well, look, I'm going to tell you what cracks me up about this, and I could be speculating, but the reason that this judge took so long is because, if this had been the prosecution wanting to get in something like this, she probably would have allowed it. Because there are a lot of judges...
HOSTIN: Come on, Mark.
GERAGOS: I've had cases, Sunny, real murder cases I tried, where he prosecutors have put on tapes of somebody in their backyard throwing watermelons as if that's evidence.
HOSTIN: But an "Avatar"-like cartoon movie?
COOPER: Mark, somebody -- you were representing somebody killing somebody with a watermelon?
GERAGOS: No. That the watermelon was the person that was thrown. Killing a watermelon -- killing a watermelon is still not a crime in California.
COOPER: OK. All right.
GERAGOS: The problem with this is, and what she may end up ruling is, OK, you can't bring it in, as Jeff calls it, substantive evidence, which means, you know, for the jury to hear before they've rested. But she may end up saying, "If you want to show this in the closing, that's fine." It's argumentative. It's an argument. You want to use that instead of a Power Point, use it instead of a Power Point. The jury will see it, maybe be cautioned that it's not evidence. But certainly I can see where this gets let in and the jury sees it in the closing argument.
COOPER: Dr. Kobilinsky, do you...
TOOBIN: That's very different. That's very different. That sounds fair to me. COOPER: Let it be -- what sounds fair to you, Jeff?
TOOBIN: Well, that you let them use it in closing arguments, because closing argument is an argument. This is our version of the facts; this is what we think happened. But not that it's somehow some scientific recreation.
COOPER: Right.
TOOBIN: That's absurd.
COOPER: Dr. Kobilinsky, you said that this had been used in the past and backfired.
DR. LAWRENCE KOBILINSKY, FORENSIC SCIENTIST: The FBI has a graphics unit that creates things of this sort to be used in the courtroom. And the point is a picture is worth 1,000 words. And if this were to be used in closing arguments, it would be one of the last things the jury sees, and it certainly would have tremendous impact. So I think it might even be strategically better for the defense if it were presented at closing arguments.
COOPER: In closing arguments. All right. Everyone, stick around. Just ahead, we're going to examine the charge against George Zimmerman. As you know, he's charged with second-degree murder, but even if he gets convicted of a lesser charge, it could still put him behind bars for decades. Details on that ahead.
(COMMERCIAL BREAK)
COOPER: There's been a lot to talk about whether George Zimmerman was overcharged when the decision came that he would face second-degree murder in the Trayvon Martin shooting. But the jury could always convict him of a lesser charge, and because of a statute in Florida, even with a lesser charge, he still could face decades in jail. Ashleigh Banfield explains.
(BEGIN VIDEOTAPE)
JUDGE DEBRA NELSON, PRESIDING OVER THE CASE: We're on the record, Case No. 12CS1083A, State versus George Zimmerman.
ASHLEIGH BANFIELD, CNN CORRESPONDENT/ANCHOR (voice-over): The prosecution wants to see George Zimmerman behind bars for the rest of his life. But to do so, they need to get a second-degree murder conviction. And to do that, the prosecution must prove beyond a reasonable doubt that Zimmerman intended to kill Trayvon Martin out of hatred.
JOHN GUY, PROSECUTOR: Trayvon Martin was murdered. In the back of two sets of town homes, there's no street lighting back there. There's no pole lights. There were one or two porch lights on.
DON WEST, ZIMMERMAN'S DEFENSE ATTORNEY: George Zimmerman is not guilty of murder. He shot Trayvon Martin in self-defense after being viciously attacked. BANFIELD: But if the prosecutors see their case slipping away, there is another option that could still put Zimmerman behind bars for years. If requested, and allowed by the judge, the prosecutors can ask the jury to consider lesser charges, like aggravated assault, which still carries the potential for decades in prison, due to a Florida state statute called the 10-20 life law. It's dubbed the "use a gun and you're done" law after a popular PSA campaign that newly- elected Governor Jeb Bush championed and signed into law back in 1999.
It basically means that, with certain crimes in the state of Florida, if you use a gun, you'll face enhanced time in prison or mandatory minimum sentences. Like ten years for showing a gun, 20 years for firing it and 25 to life if you injure or kill someone.
California is the only other state to have this specific law. But a lot of other states have something called gun enhancement laws on the books. They basically bump up the maximum time that you might spend in prison. The critics say the rules just don't leave room for interpretation, and they argue that a judge is better equipped to use his or her discretion when assigning prison time than, say, a legislature is.
BERNIE DE LA RIONDE, PROSECUTOR: You would expect the blood in the sweatshirt, correct?
BANFIELD: As for the Zimmerman case, many legal experts say the prosecutors may have to include those lesser charges for the jury to consider. Maybe like manslaughter, which in this case carries a maximum sentence of 15 years. Unless, of course, a gun is used, and then that time is doubled.
In the end, the prosecution's level of confidence will likely determine just what charges they'll go after.
Ashleigh Banfield, CNN, Florida.
(END VIDEOTAPE)
COOPER: With me again, our panel: Sunny Hostin, Jeffrey Toobin, Danny Cevallos, Mark Geragos, and Dr. Lawrence Kobilinsky.
Sunny, I think you may be right now the only person on the panel who believes or would argue that the state has proved second-degree murder beyond a reasonable doubt. But if you were prosecuting this case, would you still request for the jury to be able to consider a lesser charge?
HOSTIN: Oh, no question about it. I mean, you want the jury to have options, because it's something that prosecutors do, Anderson, all the time. And so I can tell you that they're going to ask for the lesser included, and they're going to get it from the judge. Because there's evidence that could support a manslaughter conviction.
I do think, though, that the judge agrees with me. The judge ruled that there was enough evidence of second-degree murder to go to the jury. And there is enough evidence. And I think, you know, what you have to consider is the prosecution has this case and presents the case in pieces of a puzzle, almost without the benefit of having the box cover to the puzzle. In closing argument, they're going to make -- they're going to put all those pieces together for the jury and make the picture very evident.
And so, you know, we're saying now, well, there's no evidence of second-degree murder. That's just not true. And I know Mark Geragos is over there giggling, because I can hear him in my ear. But it's true. There is enough evidence...
GERAGOS: Well, Sunny, what I was giggling about is this idea...
HOSTIN: Yes, Mark Geragos?
GERAGOS: ... that the judge agreed with you that there was enough to go to the jury. You know, as I said last night...
HOSTIN: She did.
GERAGOS: ... the only standard for getting past a motion for acquittal is, is the defendant breathing? Because if the defendant's breathing, it goes. I mean, how often have you ever seen some -- a judge grant a motion for acquittal? Maybe five times in 30 years I've seen it. So give me a break. That's not happening.
Now, as far as the prosecutor asking for a lesser, if you're a prosecutor and you honestly believe that you will have a second-degree and you proved it, then -- and you're going to be honest about it, then why are you going to ask for a lesser?
HOSTIN: Come on, Mark, you know you always ask for a lesser.
GERAGOS: Why, why? Why would you ask for a lesser if you -- Look, just because prosecutors always overcharge doesn't mean that that's right or that that's just. If you bring a charge, you're supposed to -- isn't the definition for a prosecutor to be that you brought the charge because you thought you could bring it beyond a reasonable doubt.
HOSTIN: That's right. But...
COOPER: Well, Jeff...
GERAGOS: If you don't believe that -- if you don't believe that, offer him a manslaughter...
COOPER: Jeff, as a former prosecutor, don't prosecutors do this all the time in order to maybe get the person to the bargaining table?
TOOBIN: Sometimes they do. I mean, I think Mark, as usual, has a somewhat unduly cynical view of what prosecutors do.
HOSTIN: Yes.
TOOBIN: But the evidence here... GERAGOS: A typical view of how prosecutors are.
TOOBIN: I know, I know. But -- but the evidence here really does support a manslaughter charge. You know, this -- it's always seemed better to me as a manslaughter case than a murder case. And I think prosecutors are completely within their rights to say, "This is an option," presented to the jury.
I think it's somewhat awkward making the argument to the jury, you know, to argue in the alternative. But just in the interest of justice, I think this is an option that should be available to the jury, because the evidence is potentially supportive of that.
CEVALLOS: Now, this brings up another controversial issue. It brings up a controversial issue. Is that, remember, this jury, when they go to deliberate, they're only going to be asked to determine whether or not manslaughter or second-degree murder exists. They will not consider punishment. They do not consider sentencing. They're not involved in sentencing. And that's really compelling. Because with these mandatory -- these mandatory minimums, the jury may not be aware that manslaughter, while it's a lesser included offense, is going to carry some very serious time.
Economists have said that these mandatory minimums may be the only way of stopping gun violence. It's not more restrictive gun laws, it's these mandatory minimums. But it takes discretion away from judges in formulating sentencing and the jury, of course, will have no idea that that's what -- that's what he's exposed to.
KOBILINSKY: Regardless of what the charge is, the prosecution needs to prove every element in their scenario. And I think that, at this point, there are still gaping holes. I think there will have to be an acquittal regardless of whether there will be a manslaughter charge.
COOPER: We'll see. Everyone stick around. Up next, final thoughts on what we can expect in court tomorrow. Will the defense finally rest tomorrow? We'll be right back.
(COMMERCIAL BREAK)
COOPER: Some quick final thoughts from the panel now about what we can expect in court tomorrow. It was a wild day today. Mark Geragos, how do you think the judge is going to rule, based on all the arguments that were made?
GERAGOS: I think the judge is going to tell them that they can put use of video in the closing, and I think she's going to allow in some of the material, but not all of the material that came from the various things, the phones and the social media. But I think you'll see -- but I think the jury will see this video in the closing argument.
COOPER: Sunny Hostin, what are you expecting tomorrow?
HOSTIN: I think Mark Geragos is dreaming. None of it is coming in. I think there was every indication that she had a problem with the authenticity of all the text messages, and the "Avatar" cartoon is not coming in either.
COOPER: Jeff Toobin.
TOOBIN: I think she should exclude both: the text messages and the video. But she's been very receptive to arguments about relevance. And I think she may let in both.
COOPER: Danny Cevallos, what do you think? And also, do you think the defense will actually rest tomorrow?
CEVALLOS: I don't think so. With the delay today and just because things never happen on schedule, I doubt it. I think some of the evidence comes in.
And here's a tease. We've got to deal with Donnelly, the sequestered witness, who may or may not have been in the courtroom. It looks like from the video he was. Witnesses aren't supposed to be in the courtroom at the same time. That's actually collusion.
COOPER: So what happens?
CEVALLOS: There are several remedies. You can either -- you can either tell the jury to disregard that witness's testimony. One of the most drastic remedies is the dreaded "M," just like Mr. Geragos's book, "Mistrial."
GERAGOS: Love that plug.
COOPER: Right.
TOOBIN: You've got to be kidding.
COOPER: Jeff, you wanted to mention an oath, as well?
TOOBIN: Right, "The Oath."
(CROSSTALK)
GERAGOS: To plug that book.
TOOBIN: Thank you. Just came out in paperback, by the way.
COOPER: Yes. Jeff, do you think the defense is going to rest tomorrow? Do you think this thing is ending tomorrow?
TOOBIN: I do. I think the judge has had it. They're going to start at 8 in the morning, which means it's going to be a long trial day. This judge is desperate to get this case to the jury, let these jurors return to their normal lives. I think it's over tonight.
COOPER: All right. Sunny Hostin, Jeff Toobin, Danny Cevallos, Mark Geragos, Lawrence Kobilinsky, thanks.
We're following other stories now. Randi Kaye has a "360 Bulletin" -- Randi.
KAYE: Anderson, investigators have questioned the four pilots aboard the Asiana Airways jet that crashed in San Francisco. They were said to be cooperative and realized the jet's airspeed was too close as it approached the airport. They were not tested for drugs or alcohol.
Now to Canada. A criminal investigation is under way into the runway train that crashed and burned over the weekend. Police has evidence the train was tampered with. Fifteen people were killed. Thirty-five people are still missing.
Osama bin Laden liked to wear a cowboy hat while working in his garden in Pakistan to avoid being detected, it turns out, by satellite. And he wasn't recognized when police pulled over his car, because he had shaved his famous beard. These details are listed in a report by a Pakistani commission looking into the U.S. raid that led to his death.
The three Cleveland women abducted and held captive for years are now speaking publicly for the very first time since their release. In a YouTube video, Amanda Berry, Gina DeJesus and Michelle Knight offered thanks to everyone who had supported them.
(BEGIN VIDEO CLIP)
AMANDA BERRY, KIDNAPPING SURVIVOR: First and foremost, I want everyone to know how happy I am to be home with my family and my friends. It's been unbelievable. I want to thank everyone who has helped me and my family through this entire ordeal. Everyone who has been there to support us. It's been a blessing to have an outpouring of love and kindness.
I'm getting stronger each day, and having my privacy has helped immensely. I ask that everyone continues to respect our privacy and give us time to live a normal life.
(END VIDEO CLIP)
KAYE: They were kidnapped and abused, allegedly at the hands of Ariel Castro, who now faces 329 counts.
And in business news, great news for lovers of Twinkies. They're back on store shelves beginning Monday with a shelf life of 45 days, nearly twice as long as before. Twinkies production ceased in November, you may recall, when Hostess went out of business. But the company has been bought by some new owners.
I know you're excited about that.
COOPER: Yes. I still -- I don't understand how they've extended the shelf life.
KAYE: Magic. I don't know. Deep science.
COOPER: Yes. KAYE: They're really looking into this.
COOPER: Dr. Kobilinsky, any ideas?
KAYE: There you go.
KOBILINSKY: Preservatives.
KAYE: They're going to love that.
COOPER: Dr. Lawrence Kobilinsky, John Jay College. All right.
Randi, thank you.
That does it for this special edition of 360. Join us again tomorrow night, 8 p.m. for a regular edition of AC 360 and 10 p.m. for more on the George Zimmerman trial. And stick around. Just in a couple minutes, we're going to have another edition of "AC 360" with all the day's top stories. The Zimmerman trial; of course, more from the three young women in Cleveland who were held captive, allegedly, by Ariel Castro for so long. Also the latest on the investigation into that airline crash this weekend. We'll be right back.
