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Jurors in the George Zimmerman Murder Trial Ask About the Definition of Manslaughter; Deliberations Continue
Aired July 13, 2013 - 18:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DON LEMON, CNN ANCHOR: Listen, I just want -- I can't update our viewers and I'm not going to tell you. Just a short time ago we got notice there was movement in the courtroom that attorneys on both sides were making their way to the courtroom. The attorneys came in as well as George Zimmerman. The defendant here and seated themselves in the courtroom. The jurors not in the courtroom yet. The judge came in, walked in. Judge Debra Nelson just a short time ago saying that the jurors have a question regarding manslaughter.
Jurors not in yet. Where does that put us, Sunny Hostin?
SUNNY HOSTIN, CNN LEGAL ANALYST: Well, you know, I think when you look at the research and you look at the stats about jury deliberations, what they usually do is go through the jury instructions page by page by page. They go in order, chronological order. They also go through the verdict form in chronological order.
If you are going through the jury instructions in chronological order as I have been doing, in order to get to manslaughter, you've got to get past second-degree murder and you've also got to get past quite frankly justifiable homicide, basically self defense. And so, one interpretation from the stats and one interpretation from the way jurors generally do things is they are past second-degree murder but would be past justifiable homicide and are to know manslaughter.
LEMON: OK. So, if you are, as we are at this moment where the jury has sent a note, right, that's what they do saying hey, listen, we have a question about manslaughter, if you are the prosecution, what are you thinking?
MARK NEJAME, CNN LEGAL ANALYST: You're hoping that they're really moving toward manslaughter. And the defense is hoping they're hung up on the issue of legally justifiable. And that is going to be the issue. That's going to be the debate. But you know, it sounds like there are really debates going on with the jurors. I mean, this is a very, very big question. It's not a procedural question. This is the essence of what most of us have thought the jurors were going to think about if there is going to be a conviction and that is manslaughter. So, they have clearly honed in on that either it is going to be manslaughter as they want to make sure that's what it is or its manslaughter versus an acquittal. I mean, that seems to be the indication.
HOSTIN: And I can tell you having been a prosecutor and tried cases with lesser included, when you try cases and really believe in your top count, you're upset that they may have moved past second-degree murder and they are on to manslaughter. While many would consider that a win for the government if they got this manslaughter conviction, I can tell you these seasoned prosecutors seem to believe deeply in their case and may be a bit disappointed this jury has passed second-degree murder.
NEJAME: I think if they get a manslaughter conviction they should be overjoyed. They took a very challenging case and did a terrific job if they are able to pull off a manslaughter. They should be overjoyed with that.
LEMON: I'm going to get everyone in here. But I want to get my prosecutors in here because they know what they're talking about when deals with this.
Holly Hughes, prosecutor, what do you think if you are the prosecution here?
HOLLY HUGHES, CRIMINAL DEFENSE ATTORNEY: Well, I agree with Sunny 100 percent. I think they have gotten past the second-degree murder charge, which is a little disappointing because if you listen to the content of what was John Guy was arguing in the final rebuttal close for the state, neither he nor Bernie De La Rionda really talked about manslaughter. It was almost as if they didn't want to admit to the jury it could be a possibility. They focused, they wanted that second-degree conviction. And the fact the jury has moved past it and is now considering the manslaughter charge I'm with Sunny. If I were a prosecutor I would be a little broken hearted right now.
LEMON: Paul Callan?
PAUL CALLAN, CNN LEGAL CONTRIBUTOR: I have to, although I am also a former homicide prosecutor, I got to side with Mark on this one. I think you can't read too much into the question. Because yes, they could be having a fight. Two of them could be saying this is a murder case and four of them could be saying it's a manslaughter case. And they are saying, well, let's have the judge explain manslaughter. And then they go back out and they have another debate about that. And then they turn to the self-defense issue.
So, it is really very hard to read these tea leaves. Certainly Sunny and Holly's analysis is totally logical. And by the way, I have seen that analysis be accurate in many cases as well. But I've also been surprised, often. I think it is premature based on one question for the jury to really make any sort of meaningful prognostication about what's happening in the case. Obviously, progress, substantial progress is being made by this jury because when they start asking questions, they've narrowed the issues. They're getting focused. They're going to try to make a decision. But I think concluding that it's manslaughter or murder or that all is lost to the defense is premature.
LEMON: All right. Stand by, everyone. You're in the CNN NEWSROOM. I'm Don Lemon live in Sanford, Florida where we are awaiting to hear from the judge.
The jury has a question about manslaughter. Let's listen in.
OK. Apparently the judge said the court is in recess for 30 minutes, in recess for 30 minutes. So, here we are at this juncture, just a short time ago, all the lawyers, George Zimmerman, there you see him now, exiting the courtroom with his defense team and you see also the court watchers and the reporters who are in there. Everyone exiting the courtroom. They entered just a short time ago. And all of the attorneys now exiting.
The judge came in and said the jury had a question about manslaughter. A question about manslaughter. So far today, they have been deliberating for nine hours. They deliberated about three and a half hours yesterday. So, it has been quite some time.
And here's what they do every day, right? Everyone exits. They give it a bit of a wait and then George Zimmerman and the family and everyone else exits once they clear the hallway, right?
HOSTIN: That's right. They do it each and every day.
So I am joined by all the legal minds to try to figure out what is going on to run it down. Right now, the Zimmerman jury is in the 13th hour of deliberations. The six female jurors contemplating George Zimmerman's fate. They are taking their time to reach a verdict. The case has sparked really passionate debate on race in America, on gun laws. People across the nation have some very strong opinions here. But it all comes down really to the six women to decide whether George Zimmerman should go to prison for the shooting death of 17-year-old Trayvon Martin or walk away a free man.
Here are the options as they contemplate that question about manslaughter. These are the options. They can find him guilty of second-degree murder. They can find him guilty of manslaughter or a lesser charge. They can find him guilty or they can acquit him. And -- or not guilty I should say or they could acquit him. And the fourth option, jurors cannot agree and then it's a hung jury and it's a mistrial.
We are also getting startling developments, too, that involving Trayvon Martin's cell phone. We are going to get to that just a little bit later in that new information. I want to stick with this now. Can we take that down and come back live? I want to stick with the new information.
The jury has a question now about manslaughter and I have some folks around me here, I have Mark Nejame, I got Holly Hughes in Atlanta, I got Sunny Hostin here. I also have Paul Callan who is here, I got Faith Jenkins as well and George Howell who has been covering this trial.
Before I get to as my colleague Nancy Grace would say unleash the lawyers, I'm going to the reporter who has been covering this.
Let's go to George Howell.
George, take us inside that courtroom. You have been sitting there. When something like this happens, you've been in that courtroom. Take us inside the courtroom. What happens now?
GEORGE HOWELL, CNN CORRESPONDENT: Well, Don, look. You know, from being in the courtroom, from watching these jurors, they paid very close attention to all of the displays. They listened very closely to what the attorneys had to say. And now, they're looking at the wording. They are trying to figure out what is manslaughter.
And I want to read you the instructions. These are the instructions that the judge gave to the jurors before they left to start deliberations. I want to read this to you. This is what they're considering.
If you find George Zimmerman committed manslaughter and you find beyond a reasonable doubt that during the commission of the manslaughter George Zimmerman carried, displayed, used, threatened to use, or attempted to use a firearm you should check the appropriate box on the verdict form which is manslaughter. Those are the words they're looking into. That the basic instruction of manslaughter as it is explained here in the state of Florida. So now we see that they're trying to get some clarification on it.
And here's the other thing, Don. This jury, they do not know what, you know, the punishment is for manslaughter, the time behind bars. We know that it could be a minimum of ten years up to 30 years. It is described as a lesser charge. Is it possible the jury could say we're not going for second-degree murder. We'll go for the lesser charge of manslaughter, you know, a little less severe. Not necessarily in the state of Florida. Thirty years behind bars, minimum of ten and there is no parole in the state of Florida.
LEMON: All right. George Howell, thank you very much.
George, thank you.
Martin Savidge inside the courthouse. Martin is on the phone.
Martin, what do you know?
MARTIN SAVIDGE, CNN CORRESPONDENT (via phone): Well, Don, I made it closer as everyone. I think they have watched right there. It was the attorneys and everyone else that was called into the courtroom. That it was a question, of course, coming from the jury. But the question is pretty significant and that is they want clarification, I guess a stronger definition of what exactly manslaughter means at least from a legal definition. And that probably means a lot. I mean, I don't want to jump to any suppositions at this point. But it would seem that the jury is now focused on that particular aspect. Of course, we know inside the courtroom there were the attorneys for both sides and of course the prosecution and for the defense George Zimmerman was there with his family. We do not see Trayvon Martin's parents there but we certainly saw their legal team was there.
You know, much of that took place up at the bench with the discussion with the prosecution and defense attorneys talking to Judge Debra Nelson. And, as you know, from being in that courtroom, Don, when those conversations occur, they actually put a white noise through the speaker system in the court so the rest of us in there cannot over hear that conversation. But it was like the (INAUDIBLE) pretty serious as the attorneys want to be sure both sides kind of get a good definition for that jury. And that's probably why the judge said, all right. Give it 30 minutes to work on this and then we are going to meet again.
So it's significant but, you know, I'm not a legal expert so I don't want to read too much into it. But, they're focusing on manslaughter. It may say a lot.
LEMON: Yes. It is good not to speculate.
But Martin, I have to ask you. Did the jury ever enter the courtroom?
SAVIDGE: No. They did not. We didn't see them. This was a matter done with the jury still out in the deliberation room. So, we have not seen them at all. All we know and the way this process works is when they have a question they notify a bailiff outside the room where they're gathered and the bailiff will then notify the judge and the judge comes in and essentially notifies everyone in the court at the same time. It is done very much in public view, but the jury is not present.
LEMON: And Marty, we saw the family, George Zimmerman's family. We did not see the Martin family. And we saw obviously the attorneys for both sides here. Take us inside the courtroom. Who else was there?
SAVIDGE: Well, it was of course, all the media seating was packed because we have been hanging around this courtroom, this courthouse all day waiting for some development and this is the first key development. And it's looking like a fairly significant one. The public seating is pretty much empty because it just isn't available for people at this particular time. And then you had the attorneys, meaning for the defense and prosecution that were seated as they normally are at the front of the courtroom, Judge Nelson up on the bench there. But, it was, of course noticeably absent that you didn't have the jury. Not surprising because that is just the way it is going right now.
But it was quiet and it was nervous. You could tell that all the attorneys are very nervous, because this is a crucial question. This is a key time. Many have been watching and knowing how much time has gone by here and they're sort of -- there is sort of a sense that, you know, this jury has to be coming to some sort of decision or coming to some realization that they're not now.
Again, this question of manslaughter, it would seem they're coalescing on something. And manslaughter is certainly made the question at the moment.
LEMON: Very well put. This is a significant development. Martin Savidge, our reporter covering this from the very beginning. He is inside the courtroom and was there for this jury question.
Martin, stand by. We are going to get back to you as well as all of our experts here. I'm Don Lemon live in Sanford, Florida. Significant development to tell you about in the George Zimmerman trial. The jury has a significant question. They want to know about manslaughter. They want some clarification.
We are going to have a very short break. They will be back in court very shortly and we are going to take you back live inside the courtroom.
(COMMERCIAL BREAK)
LEMON: Don Lemon live here in Sanford, Florida. You are looking at live pictures now of the Seminole county courthouse where there has been a major development just a short time ago.
This is earlier. Just a short time ago, inside the courthouse, we saw George Zimmerman and all the attorneys enter the courthouse because there was a question by jurors concerning manslaughter. They need a clarification on manslaughter. That's according to Judge Debra Nelson.
Our Martin Savidge was inside the courthouse and said the attorneys appeared to be very serious. We could see that by looking at them whenever there was a shot up on the scene. Everyone is in the courtroom including George Zimmerman's family, Trayvon Martin's family not there but all of the court watchers and attorneys inside.
Are they considering manslaughter at this point? They certainly do have a question about it. And as our Martin Savidge said this is a significant question. It is a serious question, and it is a significant development.
What this means -- I'm going to our legal experts. And we have them -- a number of them. We got our Sunny Hostin who is standing by next to me. She is our legal analyst. We have Mark Nejame. He is here with me in Sanford, Florida as well, a former attorney. We also former prosecutor Faith Jenkins as well, prosecutor Holly Hughes, Brian Kabateck as well an attorney and former prosecutor, Paul Callan is a CNN legal analyst. And who else do we have? A number of folks here to talk about all of these developments.
What does manslaughter mean? What does he face and what do they have to prove for manslaughter?
HOSTIN: You know, well, he faces up to 30 years in prison and many people out here, Florida lawyers are telling me that means probably about 10 to 13 years if you look at the guidelines. To prove manslaughter and this is what the judge instructed them, they have to prove Trayvon Martin is dead. I think they, of course, they did that. They also have to prove George Zimmerman intentionally committed an act that caused the death of Trayvon Martin.
Now, you look at that, it's pretty simple. I'm curious as to what the jury needs clarification on because that does appear to be pretty simplistic. And it is what manslaughter is. It takes out the intent piece that was a big part of the trial, that depraved mind. It takes that off the table and they only have to prove, really, those two elements.
LEMON: What I else who else do we have here, I knew I was forgetting someone and I should have. It is Jeffrey Toobin who is CNN's legal analyst.
Jeffrey, this is a major development here. What do you make of it?
JEFFREY TOOBIN, CNN LEGAL ANALYST (via phone): Well, the jury is paying closer attention and this is obviously a very key issue in the case. And I think it's important to say that jury instructions are very confusing. They are written in legalese. Normal people have a hard time understanding them. So, it is not at all a surprise that jurors are asking for clarification of what these concepts mean. And this is a fairly common question from juries. Please explain the nature of a crime. And I think all of us who followed the trial suspected that manslaughter might well be a possible resolution of the case and, clearly, it is something the jury is considering.
LEMON: And I should point out that the judge said there would be a 30-minute recess. He did that about ten minutes ago, so in a couple minutes we should see the judge coming back in and we should get more clarification about exactly how they're going to proceed from here. These are the pictures of him coming back into court earlier.
Mr. Paul Callan, I haven't spoken to you since we had this particular issue. You heard what Jeffrey said. Jury instructions can be difficult for laymen to understand but this is an important development here.
PAUL CALLAN, CNN LEGAL CONTRIBUTOR: Yes. It is a very important development.
You know, I was looking at the charge that was given to the jury initially. And, you know, a lot of times when this question is asked all the judge does is read the legal charge back to the jury and send the jury back out because the judge is very much afraid that if she changes the wording a little bit it could get turned over by an appellate court. They have to be very precise in giving the law to the jury.
And by the way, the charges, I was looking them over with respect to manslaughter, are pretty vague. It's just about unlawfully taking a human life without proper justification. So I understand why this jury is saying now, we need more detail about that. What precisely do you mean by, you know, unlawfully or taking a human life without justification? It's a pretty vague charge that has been given to the jury on such an important issue.
LEMON: Former prosecutor Faith Jenkins, if you were part of the defense how would you be feeling?
FAITH JENKINS, FORMER CRIMINAL PROSECUTOR: I actually think I would be a little nervous because at this point, with this question coming out about manslaughter, that means at least one of these jurors is considering that as a possible alternative here in this case. And so, you can't make the presumption that this question applies to all six of the jurors but at least one of them in looking at the facts is considering manslaughter as a possible conclusion here for this case. So, I might be a little nervous at this point if I'm a defense attorney.
LEMON: Attorney Brian Kabateck, you know, I think that Sunny said it correctly. It's really out of your hands if you are an attorney right now. All you can do is just sort of sit back and wait to see what the judge says after this.
BRAIN KABATECK, ATTORNEY: All the lawyers are going through the same thing as reading tea leaves trying to figure out exactly what is going on inside that jury room. You get a question like this. I think my natural inclination, my feeling when I see this is they've gone through second-degree murder, they're past that. They are on to manslaughter. But it could be one juror who's causing a problem or has a lot of questions and they want the question to get to the judge. I've had situations before where a question comes out that I think I'm ruined on. My case is down the tubes. And then I find out later from the jury after they come back, you know, that was just one person have one question. We had to get that question answered to get through that and continue our deliberations. It could be that.
But I think the real problem here is you can't really reinstruct the jury. And Paul said it right. These instructions are the foundational bedrock of appeals if something goes wrong. So, we are going to have to keep on these instructions. My guess is she'll tell the jury to go back and read the instructions again. She may give some words of encouragement to them. I suspect she is probably trying to read the law right now, review the law and see what's there. But, I think that it is awful difficult to read a lot into this. We can read something into it but not a lot.
LEMON: All right. Stand by everyone.
I want tell our viewers at home we are awaiting the jury to come back in, the judge, the attorneys, George Zimmerman, the family to come back into the courtroom. The jury has a question about manslaughter. The judge ordered a recess a short time ago but they should be coming back at any moment. We are going to take a quick break. You are not going to miss any of it.
Live from the courthouse in Sanford, Florida for the George Zimmerman trial moments away.
(COMMERCIAL BREAK)
LEMON: Don lemon live in Sanford, Florida. You are looking at the Seminole county courthouse. These are live pictures. And we just got word a short time ago that the jury had a question as it comes to manslaughter. Everyone convened into the courtroom. They spoke with the judge for a bit. Then the judge said we'll take a recess for about 30 minutes. That happened 15 or 20 minutes ago. And we will get our reporter on the phone just shortly who is in the courtroom to break it all down for us. But again, this is a significant development in this particular case. And according to some of our experts here they say that it means they may be beyond second-degree murder here. It is not for sure but it shows you where they are or they might be in deliberating this trial and the fate of George Zimmerman.
So joining me is Jeff Gold. He is a former prosecutor. Paul Callan is CNN legal analyst. Brian Kabateck is a former prosecutor as well, Holly Hughes, former prosecutor as well. Mark Nejame will join me shortly so will Sunny Hostin and then also Jennifer Friedman -- Faith Jenkins excuse me joins me and then Jeffrey Toobin who is our legal analyst joins me on the phone.
Jeff, as we await the jury, the judge at least, the attorneys, George Zimmerman to come back into court, where do you think this puts us? What does it all mean?
TOOBIN: Well, the judge has a tough decision to do right now because the safe choice is simply to repeat what she said before about the definition of manslaughter. That would certainly not create a problem on appeal if George Zimmerman is convicted. However, if she really wants to help the jury, she has to try to translate the jury instructions from legalese into English. And that becomes a perilous endeavor because appeals courts take jury instructions particularly at this stage of the case very seriously. So, I think the judge is going to have to walk the line between simply repeating herself and trying to help the jury in a way that might lead them to reach a verdict soon.
LEMON: OK.
And as I said our reporter would join us shortly inside the courtroom and that is Martin Savidge who has been covering this trial from the very beginning. And martin was present when they convened a short time ago and when the judge said that they will take a short recess and then come back in.
Marty, what's happening now? Martin Savidge?
SAVIDGE: I'm with you.
LEMON: Martin, you're live now. Take us inside the courtroom. We're waiting. It is probably what, ten more minutes we have to wait? Ten, 15 minutes?
SAVIDGE: Yes. We're just outside of courtroom 5-d and we're anticipating it is about five more minutes. I haven't seen major participants, family members and attorneys going in. So right, now you can imagine the difficulty and the finesse they are probably working on each side trying to craft that answer for the jurors because it will be crucial.
LEMON: Marty, I am going to -- it is a bit tough to hear you. You can jump in any time. But I want to -- I want to bring in Holly Hughes here.
Marty, stand by. If you have to go in, go back in. Holly Hughes, let's talk about proving manslaughter, if we can put up the definition here.
Let's talk about what you have to prove when it comes to manslaughter and the possibility that George Zimmerman faces, the killing of a human being by the act, procurement or culpable negligence of another without lawful justification and in cases in which such killing shall not be excusable homicide or murder.
What does that mean?
HOLLY HUGHES, CRIMINAL DEFENSE ATTORNEY: Right. Basically, someone has to be dead, which the state has proved beyond a reasonable doubt. You know, there is, unfortunately, a dead young man here. And what George Zimmerman did in causing that death -- and, again, no mystery. He admitted he is responsible for causing the death.
All those statements he made, I pulled out my gun. I shot him. What the jury needs to decide is was it justifiable, which means do they believe the self-defense claim advanced by the defense team here?
It is very simple because, again, you don't need that criminal intent that you need with second degree where you are looking for a depraved mind. You just have to intend the act that resulted in death.
So if you intended to pull the trigger -- and it is pretty clear from Zimmerman's statements, yes. I pulled out my gun. I shot him. What I did was a deliberate act -- the jury now needs to decide whether self-defense is a viable defense to that.
Bear in mind, in Florida, Don, they're also going to look at, was this with a weapon or a firearm? And that changes the sentencing guidelines because the sentencing guidelines will run 10 to 30 and that could be if it was just regular manslaughter that could be probated.
But when they say it was done with a gun, which is very clear, this offense was committed with a gun, it changes it from that possibility of probation. The judge is going to have to give at least a 10-year prison sentence. So that's going to be what we call a mandatory minimum if they find, yes, this was manslaughter with a weapon or a firearm.
LEMON: OK. Holly, stand by. I'm going to go back to Jeffrey Toobin.
And, Jeffrey, you're looking on the screen -- this is a maximum sentence, 30 years in prison. Holly talked a bit about what the sentence would be as well.
The jurors don't know this, Jeffrey Toobin.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Don, I didn't quite hear that. Can you ask again?
LEMON: The jurors are not made aware of the sentencing guidelines for manslaughter before they deliberate. TOOBIN: No, they are, in fact, not aware of anything regarding sentencing. This is something that varies a lot by state. Texas juries do sentencing themselves.
But Florida is like most states, where jurors have absolutely nothing to do with sentencing. Their decisions, of course, have enormous implications and they may think that manslaughter has a substantially lower sentence than second-degree murder; if they think that, they're wrong. But by all -- and certainly my guess is they have no idea what sentences go with any of these crimes.
LEMON: OK.
Everybody pause here. We're going to get to a break. But we want to say this. At any moment now, at any moment -- we heard from our Martin Savidge. They're expecting less than five minutes. We'll be back in plenty of time. And if the judge comes back, we'll get out of this breaking, you're going to -- we're going to bring it to you live. A significant development, the jury has a serious question here.
We'll take you live inside the courtroom for the George Zimmerman trial in just moments.
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(COMMERCIAL BREAK)
LEMON: All right. Breaking news here on CNN. There you see George Zimmerman, walking back into the courtroom here at the Seminole County Courthouse in Florida. These are live pictures.
Just a short time ago the jury sent a note to the judge, saying that they had a question regarding manslaughter. They needed some clarification. They needed some clarification regarding manslaughter.
Everyone convened in the courtroom including, of course, all the attorneys, George Zimmerman, his family, the reporters and the prosecution as well. The judge came in and said the jury had a question concerning manslaughter. They needed clarification.
Everyone approached the bench, the attorneys at least. And after about 5-10 minutes or so at the bench, they chatted there. The judge said that she would take a recess for about 30 minutes and present the information and try to figure out exactly what the jury needed and then they would convene.
So it appears that they are in the process of doing that now. I am joined now by Jeff Bolt, who is a former prosecutor; by Paul Callan, who is our legal analyst; by our Jeffrey Toobin, who is our legal analyst here; Brian Kabateck is also an attorney; Holly Hughes is a former prosecutor as well.
And these are live pictures, again, of them coming into the courtroom.
And then Faith Jenkins is a former prosecutor as well.
So there you have everyone in this courthouse now.
To Brian Kabateck, Brian, a moment like this for an attorney, what are you doing?
What are you thinking?
BRIAN KABATECK, ATTORNEY: You're nervous. It's pretty electric. You wonder what's going to happen. You've poured months and months into this trial. You've been in trial for days and days. You are on the edge of your chair.
I tell you, I hate waiting on jury more than anything else in practicing law. You want to see what the judge is going to do. Your every little move in this from this moment on makes differences. It can make a huge difference on appeal. It can make a difference what the jury gets, what information they get, if there are further instructions, if you even agree to further instructions.
So your heart is racing. Your blood pressure is up. And you just want to see what is going to happen next.
LEMON: Holly, take us inside the mind of a prosecutor.
HUGHES: Well, right now they are just on pins and needles. They are a little bit nervous that that second degree is probably off the table. And I know everybody says you can't speculate on what they're doing, but common sense tells us since the top charge was second degree, that they have probably already gone through that and they have decided either it doesn't apply or maybe there are one or two jurors who think maybe it is manslaughter and they're looking for a little clarification.
But if I'm a prosecutor, I am a little bit nervous. I thought I gave a great closing, an impassioned plea to the jury to do the right thing and bring back justice, and here we are, Don, 13 hours later, looking for clarification on the lesser included charge.
So you've got to be thinking, what is going on in the mind of that jury? And is this a last ditch effort for them to return any kind of conviction?
LEMON: Faith Jenkins, is there a ray of hope, maybe an odd term, for anyone, for any side in this prosecution or the defense?
FAITH JENKINS, CNN LEGAL ANALYST: In this jury question? Well, the thing is you don't know what the division is among the jurors. There could be jurors who have made up their mind about second degree and others who want manslaughter, and so they're asking for clarification on the definition or on the statute itself.
So when you have a question like this, it's just really hard to tell because you don't know what the division is among the jurors. The question could apply to all six of them or it could apply to one. Five jurors could already have made up their mind about second degree versus one who is holding out.
So that's why it is really hard to try to assume and presume what the jurors are thinking with this question.
LEMON: Listen, Paul, everyone is armchair quarterbacking right now. But you have done this for a number -- and probably sat and been in the same situation many times as a legal analyst here on CNN and elsewhere.
Where do you think this puts the prosecution and the defense on this particular case with George Zimmerman right now?
PAUL CALLAN, CNN LEGAL ANALYST: Well, it's a case that has such enormous importance and public interest and I think this was a well- tried case. And by the way, it's far from over. You know, I'd like to think we're coming up on a really exciting moment and something big is going to happen, but this might be as exciting as watching paint dry when the judge just reads the instructions back on manslaughter.
And then they can go out and start deliberating again and we could be here for another two days or we could be here for another hour. That is what makes this stuff exciting. You don't know what a jury is going to do.
And I think the point you raised a little bit earlier is really the point that is the most interesting one, which is the jury here could be looking at manslaughter, saying you know something, this is not murder but he took a life and we have to find him guilty of something.
So let's find him guilty of manslaughter, not knowing that he could get 30 years in prison for manslaughter, as much time as he would spend in prison probably on the murder count. And the jury does not know that because we have a system that says the jury is here to decide the facts and the judge is the one and the legislature in enacting the law determines the sentence.
So it's really kind of a strange concept. I think most people think, God, the jury must know what the guy is going to get if he gets convicted of manslaughter, but they don't. They just decide the facts.
LEMON: As we await the judge to come back and we're hearing the judge is going to come back at any moment now here in the court to answer, to respond to that question the jurors have about manslaughter, so Jeff Gold, Paul brings up a very good point here.
Six women on this jury and they may be thinking what he said and you and I -- no Jeff Gold. OK.
So, Paul, I'll put the question to you. Six women on this jury. They may be thinking what you're thinking and there is a reason that there are six women, most of them mothers, on this particular jury.
CALLAN: Well, there is a reason and I think the reason is that I think prosecutors wanted women on the jury.
LEMON: (Inaudible) jury selection -- right. We don't want to profile women, but you kind of -- that is what you do in jury selection, right? You pick people for certain reasons. CALLAN: Well, you do. I think, you know, of course the law presumes everybody is equal and that everybody is treated the same. But of course in reality, different people view situations through their life experiences and women in particular may view violence and the threat of violence in a way that is different than men.
And I think prosecutors in this case felt that women would be especially sensitive to a 17-year-old kid being pursued by a stranger and killed and be sympathetic to that position, more maybe than a man would be. And that certainly factored into their decision in putting so many women on the jury.
It's very unusual by the way. And I've been trying cases for a lot of years, I've tried a lot of murder cases. I have never seen a case, a criminal case of this seriousness with only one gender on the entire jury. And it is unusual because it's a six-person jury, which is another thing that's very rare in a murder case.
So we are really witnessing something that is very, very unusual here. And these women, they're bright women, they're bright professional women. You look at their backgrounds. They are really an extraordinary jury and hopefully they are evaluating the evidence carefully and they'll bring their life experience and reach the right conclusion.
LEMON: So, Jeffrey Toobin, I am coming to you next. But I want to tell our viewers that they should stand by because at any moment now Judge Deborah Nelson will enter the courtroom and go toward the bench and talk about -- and there she is. Let's listen in.
JUDGE DEBORAH NELSON, ZIMMERMAN TRIAL: Back on the record.
Who are these right there?
UNIDENTIFIED FEMALE: (Inaudible).
NELSON: All of them? OK.
UNIDENTIFIED MALE: Your Honor, having discussed the matter with Mr. O'Mara, I believe we have almost an agreement as to our suggestion for the next point in the process.
NELSON: OK. Let me hear the almost agreement.
UNIDENTIFIED MALE: I provided the court with four cases I believe and there is also reference to a rule of criminal procedure 3.410, essentially as I understand the case law, the rule was modified and it is now discretionary with the court to ask the jury for further clarification of their inquiry pretty much on that level of request.
There is a more recent case, Hazuri -- H-A-Z-U-R-I -- versus State where the request was for a generalized read-back. The Supreme Court of Florida held that the court should have asked which portions of the testimony the jury wanted read back.
McGirth, I think -- M-C-G-I-R-T-H -- versus State, which is a 48 Southern 3rd, 2010 case, I believe, is probably the most descriptive, that's a Florida Supreme Court case as well, and there is a section in that that discusses the trial court in that case.
The jury asked whether it could have a discussion with the court regarding the jury instruction on principles, and the court responded that it could not engage in a general discussion with the jury, but would be willing to address any specific question the jury might have.
And I think that obviously it is within the court's discretion to do that, but I think that that should be, at least at this point, the extent of any communication would be simply, "Ladies and gentlemen if you have a more specific question there is a possibility we can answer it," or something like that.
UNIDENTIFIED MALE: It sounds like an agreement. I think that a couple of cases -- and I don't know if you have all these.
NELSON: Well, if you have some kind of an agreement, can you tell me what kind of response?
I left the jury question in my chambers, but I can write out a response on a separate sheet of paper.
(CROSSTALK)
UNIDENTIFIED MALE: It seems like those cases, including Haygord, the very recent court -- Florida Supreme Court case of about three months ago -- H-A-Y-G-O-R-D -- versus State 109, 730-735 (ph) and Diaz -- D- I-A-Z -- it might have been decided by the State 957 7th 2nd 104 (ph), Diaz is significant to the extent that if references Perriman -- P-E- R-R-I-M-A-N -- Florida Supreme Court case out of 1999 731 7th 2nd 1243 (ph) -- it says that where there are questions of law, the court can ask for -- can get clarification on their confusion and then can actually answer specific questions of law with a sort of straightforward quick answer.
I think the step is, let's find out their clarification.
(CROSSTALK)
NELSON: So give me the wording of what you can agree on and what to send back to the jury. I'll go ahead and send that to them and then we'll wait to see how they respond. So what types -- ?
UNIDENTIFIED MALE: I'll suggest one. Could -- ?
UNIDENTIFIED MALE: Either that or we could just work -- if you give us five minutes we could probably come up with a written one ourselves.
NELSON: Do you have a sheet of paper?
UNIDENTIFIED MALE: Yes, your honor.
NELSON: OK. If you can agree to one, that's great. And if not, I'll try to help you word it. UNIDENTIFIED MALE: Great. (Inaudible) -- did you get the state's cases?
NELSON: I do have the state's cases. I do have Perriman. I do have Diaz. I do have -- I don't have the one that's from three months ago.
UNIDENTIFIED MALE: Haygord.
NELSON: Haygord.
OK. While you're working on the wording, I will review the case.
LEMON: OK. As they contemplate -- as they contemplate here, I'm going to bring in our legal analyst, Sunny Hostin.
And so, Sunny, you hear they're talking about different case law, Perriman, those sorts of things, different precedent here.
So you can figure out what the hangup is here, right?
SUNNY HOSTIN, CNN LEGAL ANALYST: Yes. And what the defense wants to go back to the jury and what the prosecution wants.
Generally in a case like this, a jury asking for clarification, the prosecution wants to give a lot of information, the defense not so much. The defense wants them to still struggle with it.
And so I think that's a little bit of a back-and-forth that you usually see.
What is very interesting about this team is -- and every prosecution team has sort of the legal nerd on the team that will describe things. Manti (ph), this prosecutor that you see to the left of your screen, is that guy.
LEMON: OK. Let's listen. The judge is speaking.
UNIDENTIFIED MALE: Thank you.
And once again --
(CROSSTALK)
NELSON: The court reporter might have had it (ph), because I read it.
You could come up here and --
June (ph) --
UNIDENTIFIED MALE: I remember it to be something like can we get a clarification on the instruction of manslaughter?
(CROSSTALK)
NELSON: You could get it specifically if you'll ask -- if you'll come up here and read what was read into the record, if you would like. UNIDENTIFIED MALE: Thank you, Your Honor.
LEMON: Go ahead, Sunny. Continue.
HOSTIN: And so he is the guy on this team that --
LEMON: Manti.
HOSTIN: -- Manti --
LEMON: (Inaudible) Manti.
HOSTIN: -- that has been tasked to sort of figure out the law and be that liaison with the court.
LEMON: OK.
So now they're just sort of doing just -- this is procedural what they're doing, right?
HOSTIN: Right. Because the judge has to get it right. This would be a ripe area for appeal, if she sent something back to the jury that she shouldn't send back. They've asked for clarification of manslaughter. That's a pretty vague question actually. I mean, clarification of what? Which word, which term?
And so that's what they're going through. I will tell you, having been an appellate lawyer for a couple of years with the U.S. Attorney's office, this, you see this on appeal; you see jury instructions on appeal. And so this judge has to be very, very careful and that is why she asked for the 30-some odd minutes to be able to figure it out, to figure out the case law because you can't make a mistake here.
It is a lot of legal wonkery, if that is a term, but it is very, very important.
LEMON: OK. And I'm just looking over particular notes here. This is basically what we got. I'm looking over the jury instructions.
And you have the same jury instruction as to what they have to prove.
And I don't believe -- I believe in situations like this, we can't update the viewer enough because people are probably tuning in wondering what is going on here.
And if you are, the jury has a question regarding manslaughter in this particular case. The court convened just a short time ago, just about -- probably about 45 minutes ago, or maybe an hour ago. Right? About an hour ago.
And the judge said, hey. They've got a question. And she gave a 30- minute recess and then came back and now they're trying to figure out exactly how much information to give to the jury to clarify their question regarding manslaughter.
HOSTIN: No question about it.
LEMON: And the thinking here is that they're asking about manslaughter is that possibly they're beyond the second-degree murder. That -- we're not sure about that, but as a prosecutor, you are thinking as a former prosecutor --
HOSTIN: That is what it tells me, because I have the jury instructions in front of me and usually jurors don't skip around. They go in chronological order, 27 pages? Well, manslaughter is in the middle of this. Second-degree murder is first and justifiable homicide, that self-defense charge, is also part of second-degree murder.
So that tells me, you know, this jury may be past second-degree murder. They may also be past self-defense.
Why that is a problem for the defense is they made it clear, this judge made it clear that self-defense is a complete defense to both second-degree murder and manslaughter.
If the jury believes self-defense why even ask for a clarification of manslaughter? Because self-defense is a complete defense to it. See what I'm saying?
LEMON: Say that again. Say that again.
HOSTIN: Self-defense is a complete defense to second-degree murder and manslaughter. In these jury instructions, they would have already gone through the self-defense exercise.
And so if they are past second-degree murder and self-defense, and now they are on to manslaughter, it is quite possible that they have already disregarded George Zimmerman's claims of self-defense.
And that's -- and I would be concerned about that if I were the defense team on here because that is what their whole case is about.
LEMON: What do you say, if we can get back, first the definition of what manslaughter is, as it pertains to the State of Florida. Put that up and then I'll read it from there. And then after that we'll talk about what they have to prove for manslaughter, because the bar --
HOSTIN: Is lower.
LEMON: -- is lower than it is for murder, for second-degree murder.
Here is the definition. And you want to read it, read it.
The killing of a human being by the act, procurement or culpable negligence of another, without lawful justification and in cases in which such killing shall not be excusable homicide or murder.
HOSTIN: And now, that looks very difficult. But in front of them, the jury also has what the government has to prove. And if you look at that -- and I think we also have that, if that can be put up, the prosecution only has to prove two things.
One, Trayvon Martin is dead. We all know that.
Two, George Zimmerman intentionally committed an act or acts that caused the death of Martin.
There is nothing about state of mind. There is nothing about depraved mind. It's only about whether or not this was an intentional act.
Now, I will say I think where it gets a bit difficult, when you look further along these jury instructions, it said that George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act.
Now, perhaps the jury is tussling and wrangling with what is negligence, because if it is just purely negligence without intent, they have to find him not guilty. And that may be what is holding them up.
LEMON: OK. So then so what is it, witnesses, we -- do we have the graphic that says, that gives us the four things that the jury is tasked with, those four things?
HOSTIN: The verdict form.
LEMON: -- the verdict form, which is manslaughter.
HOSTIN: Second-degree murder.
LEMON: -- second-degree murder, manslaughter, and which is -- but it says or a lesser charge. Not guilty or hung jury/mistrial.
Now what is it, when you say he's guilty of manslaughter or a lesser charge. So they -- can they go below manslaughter?
HOSTIN: No, they cannot. They have only been charged with second- degree murder, or charged to consider second-degree murder or manslaughter. Manslaughter is a lesser included of second-degree murder.
LEMON: OK. (Inaudible).
HOSTIN: So they only get to look at those two things. And again, jurors, Don, usually go in chronological order down the verdicts.
NELSON: Mr. Zimmerman, the proposed answer to the -- you heard the jury's question, correct?
GEORGE ZIMMERMAN, FORMER NEIGHBORHOOD WATCH OFFICER: Yes, your honor.
NELSON: OK. The proposed answer that has been agreed upon by both your counsel and the state is as follows: the court cannot engage in general discussions but may be able to address a specific question regarding clarification of the instructions regarding manslaughter. If you have a specific question, please submit it.
Is that acceptable to you, sir? ZIMMERMAN: Yes, Your Honor.
NELSON: Acceptable to the state?
UNIDENTIFIED MALE: Yes, Your Honor.
NELSON: Acceptable to counsel for the defense?
UNIDENTIFIED MALE: Yes, Your Honor.
NELSON: Thank you. I'll rewrite it so it is one handwriting instead of two and we'll have you review it. You may be seated.
UNIDENTIFIED MALE: At that point do you intend then to bring them into the courtroom or present it by written note?
NELSON: I was just going to give it in writing to them so they can --
UNIDENTIFIED MALE: Acceptable to us, Your Honor, to do it that way.
NELSON: All right. That way they can reread it over and over again instead of me just reading it once and...
LEMON: As they continue on with more procedural things there, so our legal analyst Jeffrey Toobin joins us now.
So Jeffrey, you heard the judge, what they have come to an agreement upon is if you have a specific question about manslaughter, please present your specific question and we will attend to that question.
So now what?
TOOBIN: Well, I think this was a very prudent, smart resolution. You could see that the defense and prosecution agreed and we'll see what the jury does, because they may throw up their hands and say, well, we don't want to pursue this any further.
Or they may come back with a more specific question about what the definition of manslaughter is.
You know, the questions can be very detailed. They can ask -- a very common jury question is can you tell us, explain the definition of reasonable doubt. That often comes up.
They can ask about one element of the crime or -- rather than another. But I think giving the jury the chance to be more specific is a good way to keep the trial moving, but also not risk having it overturned on appeal.
LEMON: So basically, Sunny Hostin, as you have been saying all along, Jeffrey Toobin has been saying the same thing all along. Let's listen.
NELSON: -- but may be able to address a specific question regarding clarification of the instructions regarding manslaughter. If you have a specific question, please submit. UNIDENTIFIED MALE: Yes, Your Honor.
UNIDENTIFIED MALE: Yes, Your Honor.
NELSON: OK. This will be given by the deputies to the jurors.
Just so you know, they have ordered dinner. If counsel wants to have an hour to go to dinner, you may do so.
UNIDENTIFIED MALE: (Inaudible) Your Honor, it we may want to be on standby for five or 10 minutes in case they come right back with a question.
NELSON: OK. That's a good idea. We'll go ahead and do that.
Let's be on standby for about 15 minutes in case they have a response to that.
The court is in recess.
LEMON: OK. So here we go. You've heard Judge Deborah Nelson. She wants everybody to stand by for about 15 minutes, she said, so that the deputy in the courtroom can present this to the jurors.
And here is what she said. That note, of course -- let me update you just in case you're just joining us.
The jurors had a question -- has a question about manslaughter.
And what the lawyers have come to an agreement -- and the judge -- is that they cannot address general -- they cannot do a general discussion about manslaughter, but they can address a specific question or specific questions about manslaughter and if the jury has a question or questions about that, they need to present that to the court and then they will address those specific questions or question.
So -- and also we learned some new information. The jury has ordered dinner and so they said if you want to go away for an hour and take an hour break, then you can do so.
But give me 15 minutes to hear what the jury has to say. And then I'll get back to you.
Sunny Hostin?
HOSTIN: And that is significant. The reason that it's significant is they are not ready to go home. Remember, yesterday at about 6 o'clock they were ready to throw in the towel and start fresh at 9:00 am.
Now they're saying, you know what? We've ordered dinner. We're digging in and we could then continue deliberations through the evening. And that says a lot, because if they weren't close to a verdict or if they weren't in need of further deliberation, they would go home.
But they feel that they are at a point where they are not ready to give up. And so they've ordered dinner and they're going to continue deliberating through dinner. And that is significant. That gives us some insight into where they are at. And I think Judge Nelson did a really great job in answering this question, as Jeff said, because they weren't specific enough in their questions.
LEMON: All right. The reason I'm looking at my watch is because I want to reset for our viewers.
