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The Lead with Jake Tapper

Prosecution Argues Against Acquittal; Judge Rejects Acquittal Request

Aired July 05, 2013 - 16:30   ET

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

RICHARD MANTEI, PROSECUTOR: In considering the motion all facts introduced in evidence are considered admitted and all inferences and conclusions must be drawn in favor of the state. Then head note 4. A jury question is presented when the evidence is reasonably susceptible of two views, either that the defendant's action in shooting was justifiable self-defense or that such action evidences depraved mind without proper regard for life of the defendant.

The court said motion denied. So I go back to the fact that one first has to consider whether or not the state has satisfied the standard at this stage of trial as it relates to the defendant's state of mind. We believe we have, both through direct and circumstantial evidence even if the circumstantial evidence were considered alone.

Secondly, assuming that, the only hypothesis of innocence advanced or suggested is that the defendant acted with justifiable use of deadly force. That is certainly open to question, as is everything pretty much the defendant has said. So the state believes the motion should be denied.

I will close by saying that even if the court felt compelled to grant at this stage a motion as to second degree murder, there remains the necessarily lesser included offense of manslaughter as to which there is no requirement of showing ill will or anything like that and therefore the state believes that even if, and we're not saying you should because I think I've made the point, but even if at a minimum, we'd proceed forward on that, your honor.

MARK O'MARA, ZIMMERMAN'S DEFENSE LAWYER: I just want to make sure my rendition of the Jenkins facts are properly presented to the court. I did not suggest that Trayvon Martin said he was a gang member, did not say he suggested he had a Glock, did not say he suggested he was going to cap Mr. Jenkins.

And actually, these facts are more serious than what that victim did in the Jenkins case because in this case we do have some undeniable evidence of what Mr. Trayvon Martin did. Servazo, the victim in Jenkins, he hit him one time and threatened a bunch. In this case, we know the facts are so much more serious than that.

In this case they start out similar, Trayvon Martin sucker punched my client and there's nothing to contradict that and we have the injuries to suggest nothing else, but what my client said right after the fact before he knew there was an eyewitness to or not to it. But what Servazo didn't do in the Jenkins case that Trayvon Martin did in this case was continue the attack and continue the attack, and continue the attack, because Jenkins didn't allow that to happen.

Jenkins stabbed him to death with the second blow. My client waited an additional 40 seconds so the suggestion that the Jenkins facts are inconsequential, actually that they're more severe than the Zimmerman facts, is just ignorant of the fact or at least its application to the law. Similarly the state seems to ignore the reality of the Leasure case. Sometimes bad facts make bad law, but let's look at the Leasure case for a minute.

You may remember the case. It wasn't that long ago. It's a case where Miss Leasure stated to 911 three completely separate cases of the events of what happened, he shot himself, I shot him, I sat him in self-defense, the gun went off accidentally. If those are the type of inconsistencies that the state wants you to focus on, please do. If you want to fail to grant a judgment of acquittal in the Leasure case, you probably should butt facts in the Zimmerman case is much, much different.

What the state has done is ignore the fact, they want to ignore. What they told you is here's their direct evidence. What he said on the nonemergency call, not the way John Guy said, not the way Bernie De La Rionda says those facts. Unfortunately, Mr. Mantei decided not to address ill will, spite and hatred at all to you. In an offhand way each said if you're going to get rid of second degree, don't get rid of manslaughter.

But where is the state's case that even in the light most favorable to them, looking at all the evidence not just that what they wish to focus you on, but all of the evidence of how they get to ill will, spite and hatred. That he made up stories? Well, you have an opportunity to review the evidence. You sat through here with all of it just like we did and see whether or not those stories were made up, whether or not as Serino stated and Singleton stated, they were insignificant changes.

As a matter of fact, they were changing or developments, that they would expect the more time they question somebody. That's why John Good's half of a page statement went to a four-page statement, went to an eight-page statement, and went to a 50-page deposition. You know as well as I do, as well as the state does. That's why they can't come here and say to you he said he shot him in self-defense. He said the gun went off by itself.

There is none of that. Those inconsistencies are merely what happens when you tell a story two or three or four times to different officers after you've been through two traumatic events, getting the hell beat of you -- I'm sorry your honor. Getting beat up the way he did and then the trauma of having to shoot somebody to defend your life. We can minimize the trauma that George Zimmerman has gone through, but we really can't when we're going to compare what happened in his statement.

If you want to look what the is in the light most favorable to the state and say to them I'm going to rule that one in your favor, as we've said many times in this room, you can't do it in a vacuum. You can't look at it sand think little fact I'll put in your favor, goes on your side. You have to look at the totality of the circumstances and see whether or not the direct evidence that they say they have convinces you.

One piece of direct evidence that they've shown to you and I'm presuming they've shown you all of their direct evidence already and that Mr. Mantei just took an opportunity to present to you all of that direct evidence, which presents ill will, hatred, spite, they have my client dare to suggest that he was on drugs. It is not properly before this court as to the veracity of my client's understanding of how Mr. Martin may have been acting.

But you can certainly consider everything that you've heard with the way he said he was acting. So that's the second piece of direct evidence that my client thought he was on drugs. Then he said he wouldn't have done anything differently. He didn't do anything wrong. He contends that to the police officers in every statement he gave. He didn't do anything wrong. He contended that to Sean Hannity. I wouldn't have changed anything.

Now, does that mean -- maybe that's the callous indifference to human life and ill will, I shot him and I don't care. That's not what was said, it's not what was intended and that's an absurd suggestion that when he said I didn't do anything wrong, I wouldn't change anything with what I did, that that suggests that he, like any one of us, wouldn't have decided not to wake up that day or get in the car that afternoon or go to target that night.

That type of an absurdity suggestion by the state should not be considered as valid argument to you as to why this court should not grant the judgment of acquittal and you have said I would opine and I know that I have said whenever a tragedy happens that it's God's plan. Every time I've lost a loved one, that has either come through my lips or through my brain, that we have to think to something beyond ourselves to decide why something crazy, terrible, horrible happens.

If you actually believe that that is evidence of ill will, spite and hatred, if they're actually suggesting -- because after all, if they're going to compound inference upon inference, they got to take their pick. Either he is a wonderfully creative and perfect murderer who can come up with the best of plans in a split second but then three, six weeks later, whatever he says, he says something that is just from his heart and now that's ill will and hatred?

Give him credit one way or the other or just suggest that you know what he was, you know what he is? He's just a human being. Yes, he was going to school, decent grades, a book he may have read or not. The reality is he went through a traumatic time and he's trying to deal with it just like the Martin family is trying to deal with it. They have more of a loss.

My client carries his in life. They carry theirs through death. But the reality is you have to look at the direct evidence that the state presents to you to say have they prove I don't know their case to the extent that they should get the benefit of the JOA standard. So direct evidence, Rachel Jeantel, get off, yes, if that's at all credible, if that was at all credible, the way that was presented by Mr. Crump, the way it was presented by her and the way it was presented.

If that's the only word that I'll use rather than created after the inquiry with Miss Sybrina Fulton at the house and Mr. Bernie De La Rionda at the house, so be it. And then they say that Mora said something about pursuit. Sudyka never said anything about pursuit in my memory of the testimony and I was here for that. She said something down below.

No suggestion of pursuit, nothing like that. And of course, what she thought she heard was the child who she saw later as the one screaming or yelling. And then we have Bahador, we talked about that. There was no pursuit suggested by Bahador. She said she saw something, maybe somebody went from left to right. And I realized at this stage, the state gets the benefits of those inaccuracies so they can't just --

JAKE TAPPER, CNN HOST: We're going to take a very quick break and we'll come back with more of this trial live. Stay with us.

(COMMERCIAL BREAK0

TAPPER: We're back with CNN's live coverage of the George Zimmerman trial. We have Defense Attorney Mark O'Mara right now arguing in favor right now of an acquittal of their client. Let's listen in.

O'MARA: -- if I take every little thing and look at it in the state's favor, do they win? Not do I have to bend over backwards, do I have to ignore common sense to make this case go to the jury. If it was the standard as suggested by the state, there wasn't be an appellate case granting a JOA ever because under their standard, I'm presuming some indication of some set of facts that can support a jury deciding guilt.

No, not in a circumstantial evidence case and if this is not 100 percent, I suggest it's at least 98 percent circumstantial evidence. The other evidence is, yes, he was there. Great and, yes, he shot him. There's no question about that. That's direct evidence. But as to the issues that count, was he justified in doing it, self-defense. Where's the direct evidence that it wasn't, ill will, spite, hatred. Where's the direct evidence that it was? There isn't any. And we're on the circumstantial evidence standard and we've talked about that now maybe a touch too long.

I'm glad that Mr. Mantei suggested as well that injuries are not necessary. We all know that as well. Witnesses may or may not know that. It is only Mr. Zimmerman's fear of great bodily injury that allows him to act in self-defense. And if in fact, there is an evidence, a presentation, that has come before this court to support that reasonable hypothesis of innocence, that George Zimmerman reasonably believed he had to act in self-defense, then the judgment of acquittal should be granted.

The reason why is that there is absolutely no evidence, which could be taken in the light most favorable to the state that at the time he shot -- there's been no evidence whatsoever to suggest that under the law that he was the initial aggressor. They want to say that, but they know they have absolutely no evidence to say that. They want to and they will at closing, I presume, should we get to that but there's absolutely no evidence to support that.

So if that's not true and we also know even if it was true, the scream for help would have done away with that. But the real focus is at the time he got that gun and shot, was his fear of great bodily injury reasonable? I defer to Captain Carter, again, and I defer to your common sense. Those injuries were not stopping. Every one of those individually could be great bodily injury. Did he survive the attack without great bodily injury?

Yes, I think he probably did. I wasn't kidding when I asked Dr. Rao what about the next one? That wasn't just some sneaky little question to have. That's really the question of the case. It's not the question of what he survived. It's a question of it wasn't going to stop. Yes, if Tim Smith had been 30 seconds, 45 seconds, a minute and a half earlier, it wouldn't have happened.

But he didn't know that. All he knew was that Trayvon Martin wasn't stopping in the attack after 45 seconds of George Zimmerman screaming. And in fact the state has absolutely nothing to deny that reasonable hypothesis of innocence. And if it's true, then the case law says even at JOA, it has to be granted. Now, the other part about common sense is I can't say to you and therefore the state can't say to you here's a possibility.

We know we have this argument here and he gets shot. Here's another one not supported by any evidence whatsoever, nothing to support that, but let's just say that George was holding on to his -- with one hand he had the shirt and Trayvon Martin was trying to pull back, he was at that precise moment, which is the state's position.

He was receding from the attack, pulling away and Mr. Zimmerman just decided not to let him go with one arm and with the other arm decided are you kidding? Is that actually the state's case that they want you to buy into and say that denies a reasonable --

TAPPER: We're going to take another quick break. We'll be right back with more from the George Zimmerman trial.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. If you're watching and waiting to hear what the judge is going to rule on the defense motion for an acquittal. You will hear that the judge has decided to deny that motion. So the defense will be able to present their case. They will be told to present their case. So right now, we are waiting for the jury to come into the room so that the prosecution can formally rest.

While we wait for that, for the jury to come in, let's analyze these latest developments with Attorney Cheney Mason who defended Casey Anthony, Marcia Clark, who was, of course, the lead prosecutor for the O.J. Simpson murder trial and she is also the author of the book "Killer Ambition," and joining us as well, Jelani Cobb, contributing writer for the newyorker.com. A quick whip around, we'll start with you, Jelani. Did you expect, is it pretty customary for the defense to make a motion for acquittal? It seemed obvious the judge was going to deny that motion.

JELANI COBB, CONTRIBUTING WRITER, NEWYORKER.COM: Bear in mind, I'm a history professor at the University of Connecticut. I'm not a legal expert, but as my understanding is that this is a common tactic. One thing I couldn't get past was this fundamental question, the paradox of at the heart of this case, was Trayvon Martin a member of that community? When we talk about George Zimmerman's role in being a protector, of being a kind of neighborhood watch person, did he have a responsibility to protect Trayvon Martin?

Did it ever occur to him that this might be someone who was worthy of protection? And so I think those are things that when the defense presented their argument, it really didn't seem to give any idea that Trayvon Martin might have been an innocent victim here.

TAPPER: Interesting. Marcia Clark, how standard is it for the defense to make a motion to acquit after the prosecution presents its case?

MARCIA CLARK, FORMER O.J. SIMPSON LEAD PROSECUTOR: They do it in every case. Jake, it's absolutely pro forma. I don't think I can remember a felony or even a misdemeanor where there wasn't some motion made to dismiss before the case was submitted to the defense or to the jury. It's very common. There was clearly enough evidence to get the case to the jury and it's no surprise whatsoever that she denied the motion.

TAPPER: Cheney Mason, did you think there was ever going to be a chance that the prosecution at this point in the trial would actually downgrade the charges from second degree murder to manslaughter, which of course many observers have said there is a greater chance of George Zimmerman being found guilty of manslaughter, a lesser charge?

CHENEY MASON, CRIMINAL DEFENSE ATTORNEY: They wouldn't do it voluntarily. The fact of the matter is it is a necessarily included lesser offense and the jury will be instructed in the law to prove second degree murder and manslaughter. Of course, the state, they're hanging on to the second degree. I don't know. That will ultimately be obviously a decision of the jury. I want to tell you about that judgment of acquittal, though.

It's not just automatic, as Marcia said. It's required if you're ever going to challenge the sufficiency of the evidence. If you lose the case and want to appeal it and say there was insufficient evidence, if you had failed to make a motion for judgment of acquittal, then you waive that ability to appeal it. So it is, indeed, as she said in every case.

TAPPER: All right, let's listen in.

CLARK: That is not correct, Jake. That is not correct. That is not correct. You never waive your right to attack the sufficiency of the evidence. The defense is always allowed on appeal to attack the sufficiency of the evidence regardless of what happens at trial.

TAPPER: We'll hash that out in a minute. Right now, I want to listen in as the first witness for the defense has just been sworn in and she is about to testify. Let's listen in. While we're waiting for the attorneys to begin, what at this stage in this case has struck you as significant?

COBB: Well, I think everything that happened today struck me as really significant. And both on the emotional side of this conversation and on the actual evidence side of the conversation as well.

O'MARA: State your name.

GLADY'S ZIMMERMAN, GEORGE ZIMMERMAN'S MOTHER: Gladys Zimmerman.

TAPPER: This is George Zimmerman's mother testifying. We're going to listen in.

O'MARA: Central Florida.

ZIMMERMAN: Central Florida.

O'MARA: How long you have lived in Central Florida?

ZIMMERMAN: Six years.

O'MARA: And of course, you know George Zimmerman, correct?

ZIMMERMAN: Yes, sir.

O'MARA: And tell me how -- tell the jury how you know him.

ZIMMERMAN: He's my son.

O'MARA: And do you have other children?

ZIMMERMAN: Yes, sir.

O'MARA: Their names?

ZIMMERMAN: Robert, John Zimmerman, Jr., Grace Zimmerman.

O'MARA: And of course, you know why we're here. Your son is facing a second degree murder charge right now, correct?

ZIMMERMAN: Yes, sir.

O'MARA: I want to talk to you and have you listen to a tape. I'm going to limit my questions to you today to just a couple regarding the tape. To premise that, have you listened to a tape that has the 911 phone call with screams in the back of it?

ZIMMERMAN: Yes, sir.

O'MARA: If I might, your honor, I'd like to play this. I'm going to let you listen to this one time through and I want to ask you if you know whose voice it is. Tell me if I want to listen to it a second time or if not. OK?

ZIMMERMAN: Yes, sir.

O'MARA: As I begin that, I'm going to presume you were around with George most of his life, correct, as he grew up as a child?

ZIMMERMAN: Yes, sir.

O'MARA: Had an opportunity to hear him in all different voices, laughing, screaming, yelling, crying?

ZIMMERMAN: Yes, sir.

O'MARA: Do you think that you have enough knowledge of his voice that you would be able to tell his voice if you were to hear it?

ZIMMERMAN: Yes, sir.

O'MARA: If I might, your honor.

(BEGIN AUDIOTAPE)

DISPATCHER: 911, do you need police or medical?

CALLER: Maybe both. I'm not sure. There's someone screaming outside.

DISPATCHER: What's the address?

CALLER: It's 1211 Twin Trees --

DISPATCHER: Is it in Sanford?

CALLER: Yes.

DISPATCHER: OK, is it a male or female?

CALLER: It sounds like a male.

DISPATCHER: And you don't know why?

CALLER: I don't know why. I don't know. Send someone quick.