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The Lead with Jake Tapper

Break-Ins in Zimmerman's Neighborhood; George Zimmerman's Father Testifies; Murder Versus Manslaughter

Aired July 10, 2013 - 16:30   ET

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

(COMMERCIAL BREAK)

JAKE TAPPER, CNN ANCHOR: Welcome back to THE LEAD. I'm Jake Tapper.

You're looking right now at live pictures from San Francisco. We're expecting any minute a press conference of members of the flight crew from inside the cockpit of that Asiana flight that crashed at San Francisco International Airport on Saturday. And as soon as they come to the microphones, we will go to them live. But let's get back to the Zimmerman trial with our panel, David Weinstein, Jean Casarez and Danny Cevallos.

One of George Zimmerman's former neighbors, Olivia Bertalan, earlier today testified about a break-in to her home in August 2011. One man arrested in the break-in was Emanuel Burgiss, the same man Zimmerman described in a call to police months later saying, he had seen Burgiss peering into the windows of his neighbors' home.

Listen to Bertalan describe her ordeal and the prosecution's interests in her social network activity.

The bite is not ready right now but in any case we had this moment that was -- that aired earlier today in which Bertalan was asked by the prosecution about the fact that she had -- we do have it now? OK. Now let's run it now. This moment with this attorney -- I mean, with this witness for the defense.

(BEGIN VIDEO CLIP)

OLIVIA BERTALAN, FORMER NEIGHBOR OF GEORGE ZIMMERMAN: They broke into my house. I heard some bangs downstairs. The dispatcher told me to grab any weapon I had, because I had my son in my arms, he's woken up, and just prepare to use it if I had to.

The guy was -- I was locked in my son's bedroom, and he was shaking the door knob trying to get in. I was sitting there with a pair of rusty scissors, with my son in one arm, and the police came and they ended up leaving.

JOHN GUY, ASSISTANT STATE ATTORNEY: You haven't tweeted about this trial?

BERTALAN: I don't believe so.

GUY: This week? BERTALAN: I don't believe so.

(END VIDEO CLIP)

TAPPER: Now it's unclear if Olivia Bertalan tweeted about the trial recently. She did post on June 25th, "The truth is coming out," and as the state indicated, she follows the defense attorney Mark O'Mara on Twitter as well as George Zimmerman's defense team.

Jean, but what were they trying to do by calling this witness?

JEAN CASAREZ, CNN LEGAL CORRESPONDENT: Well, this had already come into evidence because all of the 911 calls George had made and the prior break-ins in the community had come. And so I think they were trying to put her on because now it's relevant because let's look at the facts. This happened in the previous year, fall of 2011, the young African-American male was arrested in December 2011. He then became released -- again, he lived in the complex, by the way, then he was rearrested beginning of February.

So I find it interesting the defense put them on. Maybe they're trying to show that George was concerned that this person had been released again as he was initially, but it obviously shows crime in their neighborhood, not profiling.

TAPPER: Why do you say it doesn't show profiling? I mean, we know that George Zimmerman -- it's been introduced earlier that he had called in a number of times, saying that an African-American young man were suspiciously walking around the neighborhood. Do you think at all that this witness brought some of these racial and racial profiling issues to the surface?

CASAREZ: Well, I think that the defense wanted to try to show that it wasn't profiling because the crime that had been occurring in their subdivision had been of African-American young males. I mean, the jury has heard this before so this was just putting on a living, breathing example of what the jury has heard about.

TAPPER: Danny, let me put it to you. This witness had a very compelling story. I'm not exactly sure -- well, why don't you explain? Why do you think this witness was brought forward and do you think she was effective?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: It's pretty clear, to show awareness that there were other crimes in the neighborhood that would make someone have a heightened concerned about crime or burglary in the neighborhood. And when it comes to this race issue, George Zimmerman was probably absolutely profiling. Was he profiling someone who's African-American? Who knows?

But I'll tell you what he was profiling. He was profiling a young male. Because I'll tell you what, if it was an 82-year-old female that happened to be African-American, I doubt George Zimmerman would have called the police or anybody would have called the police if she was heading down the sidewalk looking into houses. The bottom line is George Zimmerman is probably profiling the same people, young males, that were in the area. I think that is what the defense -- that at least is the theory I think the defense is trying to put out there.

TAPPER: Right. I guess my question is, is there not a risk for the defense to put a witness like this out there, to so nakedly put an issue of, look, people in this neighborhood were -- white people on this neighborhood were scared of young black men? Because that could --

CEVALLOS: No.

TAPPER: -- in the minds of a juror, that could say oh, well clearly George Zimmerman was racially profiling and Trayvon Martin, who did nothing wrong other than go get some Skittles paid the price for it? Is that not a risk for the defense?

CEVALLOS: Look at -- it's everything is a risk, but look at -- consider yourself as a jury, think about it. You've just heard evidence that in your neighborhood people are breaking into the homes. Is your first question, well, what color are they? It doesn't matter. The fear of having your home invaded is greater than any subtle race issue. At least I think that's what the defense is banking on.

They're banking on the idea that people are more interested in safety in their home than they are interested in thinking about racial profiling. I think that's the gamble they're taking. I don't think it's that risky a proposition. And I think it was a decent idea.

TAPPER: And David Weinstein, as a prosecutor, I want to play devil's advocate with you. One of the things that this witness whose home was broken into in a very dramatic and terrifying way, where she was hiding with her baby in the baby's room, holding some rusty scissors while the person -- I forget his name, Burgiss, tried to break into the room even not just the house but the room.

Does that not -- is that not a risk for the prosecution in the sense that now the jurors think, well, this is a dangerous neighborhood and they need neighborhood watch people to be out there patrolling?

DAVID WEINSTEIN, FORMER STATE AND FEDERAL PROSECUTOR: The cross on this should have been very short and very succinct. You live in the neighborhood, you know George, you followed the defense attorneys on Twitter, you have a bias, you're here to testify for George.

She was an excellent witness for the defense. What did she show? She showed George was a good neighbor. She showed the six women sitting in the box who are just like her who would be just as terrified if they were sitting in their house, that George, the good neighbor, was out there looking for people.

I completely agree with what was just said. This was a good call for the defense, prosecution spent too much time on cross to let her tell her story again. She helped set the stage for George not having any ill will, evil intent, hatred, spite. He wasn't profiling any particular category of people unless you were a burglar breaking into a house and caused a young lady to be so fearful that she hid in her house with her baby with a rusty pair of scissors. Good gamble on the part of the defense, good witness to call late in the game. Really making good points for the defense on this one.

TAPPER: The final witness to take the stand for the defense, before the defense rested just a short time ago was George Zimmerman's own father. He was asked about that 911 call that we've heard so much about during this trial, and whether or not he recognized the voice, heard calling for help in the background. Let's play some of that.

(BEGIN VIDEO CLIP)

ROBERT ZIMMERMAN SR., FATHER OF GEORGE ZIMMERMAN: Then they asked me, did I recognize the voice?

MARK O'MARA, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: And what did you tell them?

ZIMMERMAN: I told them absolutely, it's my son George.

O'MARA: Is that an opinion that you still have through today?

ZIMMERMAN: Surely.

(END VIDEO CLIP)

TAPPER: Danny, was there a strategy to making Robert Zimmerman Sr. the very last witness for the defense?

CEVALLOS: Well, I can't look into their minds, but I would think it's that, number one, he's credentialed -- he's a productive member of society. I believe he's a district -- district court judge or a municipal judge. He is -- he's well spoken, he's articulate, and he's the father of George Zimmerman.

Now the other side of that coin is there may be bias. I have to believe there were somewhat better witnesses they could have closed with since he had so many really fascinating friends with really incredible pedigrees, combat medics, air marshals, but look, it's a -- it's a choice they made and it's probably -- they probably had the reasons for it, but those are the pluses and the minuses of calling dad as their last witness.

TAPPER: David, how effective do you think the father's testimony was that? Isn't what he said what one would expect him to say?

WEINSTEIN: Absolutely, but you know what? Let's compare that to the victim's mother. When they called Sybrina Fulton, how effective was her testimony? We all know that she was going to say that it was her son's voice that she heard on there. We expected her to say that, we knew she was going to say that. She would have been a great witness as their last witness, not the last witness the prosecution call, the medical examiner, who turned out to be much more beneficial to the defense became very cross with the people who are examining him, and really didn't allow the prosecution to go out with a bang. The defense did it the way you should do it. We're telling a story. As trial lawyers, as people in the courtroom, we want to captivate the attention of those jurors in the box, and how do we close? We close with this emotional witness.

There may have been other witnesses who could testify, but they closed with the man, as Danny said, a magistrate judge, he has credentials in the community. We expected him to say it was George's voice. He did. We humanized again George Zimmerman as the defense by not putting him on the stand, by letting somebody else testify for him. I thought it was a good way to end their presentation.

TAPPER: All right. We're going to come right back. Take a quick break. Judge Nelson has announced that closing arguments in the Zimmerman case will begin tomorrow. We are following other news. You're looking right there at live photographs from San Francisco where the flight crew from that airline that crashed in San Francisco over the weekend will come and talk to reporters.

We know the pilots made critical errors in the final seconds before that San Francisco crash. One question we'll address when we come back after the break, could those mistakes be blamed on the deferential Korean culture? It's an uncomfortable line of inquiry and that's coming up.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD in our continuing coverage of the George Zimmerman murder trial. I'm Jake Tapper. The jury has been released for the day. We've learned that the defense could rest its case as early as tomorrow. So the question remains has the defense done enough to save George Zimmerman from a second-degree murder conviction and even if he does beat the murder rap, could he still get jail time?

Let's go back to our live panel, Linda Kenny Baden defended Casey Anthony and Phil Specter, and CNN legal expert Sunny Hostin and Jean Casarez, both have been in court monitoring the Zimmerman trial. Linda, let's start with the second degree murder charge. In order to prove that, prosecutors have to show that George Zimmerman acted with a depraved mind when he shot Trayvon Martin, what if anything have they done to show evidence of a depraved mind?

LINDA KENNY BADEN, FORMER PROSECUTOR: About as much to show that I have a depraved mind, Jake. That charge is not going to fly. Yes, there could be ill will and some spite of how Trayvon Martin was described. That's not a murder two conviction in this case. George Zimmerman didn't go out to hunt someone down because of ill will, spite, because of the race or any other reason. He got into a situation that someone was killed. In my opinion at most this is manslaughter or aggravated battery.

TAPPER: Jean Casarez, what has the defense done to debunk the murder two charge?

JEAN CASAREZ, CNN LEGAL CORRESPONDENT: I think they've played and replayed the nonemergency 911 call talking and using all the words that the prosecution is using to show the hatred and ill spite. In the state of Florida, a mandatory lesser included is manslaughter. So it's not discretionary. Manslaughter will go to the jury in this case.

TAPPER: So in other words, the jury will automatically be considering manslaughter, whether or not the prosecutor wants them to?

CASAREZ: Yes, correct, by statute.

TAPPER: And the manslaughter charge focuses on intelligence. In other words, Zimmerman's own actions --

CASAREZ: Culpable negligence.

TAPPER: His own actions, his own decisions led to Martin's death. Sunny, what's the key to a manslaughter conviction? How does that happen?

SUNNY HOSTIN, CNN LEGAL ANALYST: You know, I think the key to it is that it takes that depraved mind off the table so you don't have to explain what was going on in George Zimmerman's mind. All you have to really prove is that he intentionally committed an act that led to Trayvon Martin's death and that Trayvon Martin is dead.

So I think most people thought when this case first came up that there was going to be a manslaughter -- indictment on manslaughter because really that is the easier charge to prove, it's always difficult, Jake, as a prosecutor to try to prove an intent crime, a second degree murder crime because you've got to get into the person's head, but I disagree with Linda.

I don't think that we at this point can say the jury will never convict a second degree murder because there is evidence of ill will, spite, hatred using George Zimmerman's very words. So that's still very much on the table. But as Jean said, they're going to also get manslaughter.

And so to suggest that, you know, this case is over and that there isn't going to be a second degree murder conviction, there is not going to be any conviction, I think that's pushing it a bit.

TAPPER: Let's take a look at another piece of testimony from today. George Zimmerman told police that after he shot Trayvon Martin in the chest at close range, Martin put his hands up and said "you got me." The question of course is that medically possible to say that after you've received this lethal wound? Here's what forensic pathologist, Dr. Vincent De Maio, had to say about the human body's ability to not only survive, but fully function after the heart shuts down.

(BEGIN VIDEO CLIP)

DR. VINCENT DE MAIO, FORENSIC PATHOLOGIST: Even if I right now reached across, put my hand through your chest, grabbed your heart and ripped it out, you could stand there and talk to me for 10 to 15 seconds or walk over to me because the thing that's controlling your movement and ability to speak is the brain. And that has a reserve supply of 10 to 15 seconds. Now, that's minimum. That assumes no blood is going to the brain.

(END VIDEO CLIP)

TAPPER: Linda, that's a rather fantastic description of how the brain controls the body more than the heart does. I don't know if I personally find it all that credible, but do you think that that testimony lends credibility to the notion that George Zimmerman did not overdramatize what happened after the shooting?

BADEN: Well, after you get the shock value of thinking about that, which I do think it was a terrible example to say, it is true that you can talk for about 10 seconds after you've been shot. You do have that reserve. That's possible. I think we took it a little bit longer was the fact that Trayvon somehow on the ground could lift himself up and get his arms under his body. I don't think that's possible and I don't think the jury is going to believe it. They're going to use their common sense, but you can say not you got me, maybe you shot me, which would indicate that Trayvon knew there was a gun and that's good for the prosecution.

TAPPER: We're going to take a very quick break and come back with our panel talking about the George Zimmerman murder case. The big question of course coming up, should Trayvon Martin's past drug use be allowed in the trial? The judge ruled the toxicology would be permitted. We'll take discussion on that and look ahead to tomorrow's testimony coming up. Stay with us.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper. The jury has been dismissed for the day, but we're still talking about the George Zimmerman murder trial. I want to bring the panel for some final thoughts in today's testimony in the murder trial. Linda Kenny Baden, who defended Casey Anthony and Phil Specter and of course, CNN legal expert, Jean Casarez, who has been in the courtroom today monitoring the crowd.

Jean, after the jury was dismissed yesterday, Judge Debra Nelson ruled that the defense can submit evidence of Trayvon Martin's marijuana use. Martin's toxicology report showed he had THC in his blood, the active ingredient for marijuana. But we didn't hear anything about Trayvon Martin's past drug use today. Were you surprised?

CASAREZ: I was. I was waiting for the toxicologist because I believe that's who they would call to testify about this. It not over yet and so I do think they will call him. And the reason it was allowed and truly it because of Florida case law. And Florida case law, if it is relevant, it can be reversible error. If there is a conviction, on appeal it can be reversed if not allowed in. It makes common sense and they'll want the jury to hear it.

TAPPER: Linda, let's talk about Trayvon Martin's marijuana use as potential evidence. Chemically it can cause paranoia, but it can also cause passive displays. I'm wondering how would this be used to prove in any way that George Zimmerman was the victim of Trayvon Martin, could it not cut either way?

BADEN: Yes, and you know what, you're dealing now in the modern culture. Let's face it. Most of the jurors have kids. Many of our children have used marijuana. There are medical marijuana clinics. People with glaucoma have used medical marijuana. So you may offend jurors by suggesting because Trayvon had a small amount of marijuana in his system that he would be aggressive. I also think the reason they didn't do it with Dr. De Maio is because the blood was drawn from the wrong location. It was drawn from the heart. There would be an increased elevation from the heart blood. The doctor would say the levels were incorrect because of that.

TAPPER: Jean, the report says Zimmerman was on two medications the night of the shooting, one for insomnia. Do you think that should be admissible? Do you think the prosecution will fight for it now that the THC in Trayvon Martin has been ruled admissible?

CASAREZ: They might. They might. I think at this point the prosecution if it had been deemed relevant, I think it could have come in due to the physician's assistant. She did testify, though, that he was seeing a psychologist.

TAPPER: Linda, give us some final thoughts. You've been in the hot seat before in some very high profile cases. If you were the defense, what would you do to wrap up this case? We're hearing now that they might rest as early as tomorrow.

BADEN: I would call George Zimmerman's father, who was a judge, who was a veteran and I would have him again reiterate that he thought the voice on the tape was his son and I would leave it at that. I would not leave George Zimmerman to the stand.

TAPPER: And, Jean, what do you think we can expect tomorrow?

CASAREZ: I would think a psychologist and they are having a hearing as we speak to see if a defense animation can come before the jury as to what actually happened outside at the T area and the expert who is testifying right now has state of the art software like what is used in the movies, Avitar. He's applied it now to crime scenes and is making a name for himself nationally.

TAPPER: Jean, you've been in the courtroom. Tell us what you're seeing from the jury because we don't obviously get to see them. How are they reacting to the testimony?

CASAREZ: Today what I'm seeing is that they're taking notes, they're looking up, they're taking notes, totally focused to Dr. De Maio's testimony. Very focused, never drifting at all. So he made it so basic so you really could understand it clearly. They are relying one way or the other on what he testified to today.

TAPPER: Linda, if you were in this trial, what would you be looking to right now when it comes to the jury? How would you be trying to read their responses?

BADEN: That is the worst thing can you possibly do because you never know what they're thinking. When you enter the well, if they look at you, if they smile, if they stand when you stand, they you think you have an in with them but you never, never, never know.

TAPPER: Sybrina Fulton, Linda, Trayvon Martin's mother left shortly before they showed more photos before the autopsy. Seeing the mother walk out, that must have an impact on the jury.

BADEN: No matter what the result, this case is a tragedy. A mother has lost her son. She was an incredible witness. In my opinion for the prosecution, she was their best witness. She was stoic and yet she had emotion. I don't know how to explain it. But she seemed so real and this death of her son was real to her. So she was the best witness for the prosecution and no matter what the result, our hearts have to go out to her.

TAPPER: And that's right, it is absolutely a real tragedy what happened here. Make sure to follow me on Twitter @jaketapper and also @theleadcnn. Check out our show page at cnn.com/the lead for video blogs and extras. That's it for THE LEAD. I'm Jake Tapper. I turn you over to Wolf Blitzer in "THE SITUATION ROOM."