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THE LEAD WITH JAKE TAPPER

George Zimmerman Trial Continues

Aired July 5, 2013 - 16:00   ET

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


JAKE TAPPER, CNN ANCHOR: You're watching our live continuous coverage of the George Zimmerman trial, which has brought a renewed focus to issues of race, racial profiling and self-defense and captivated the country.

The defense right now is asking for an acquittal before the prosecution is set to rest. This has been perhaps the toughest day of testimony yet to watch in the courtroom. Both Trayvon Martin's mother and brother took the stand, as well the medical examiner who performed Martin's autopsy.

We're following every moment for you. Let's take a listen.

(JOINED IN PROGRESS)

RICHARD MANTEI, PROSECUTOR: -- spite, or evil intent.

Pointing a loaded gun at the victim and firing it is an act of imminently dangerous to another and evincing a depraved mind regardless of human life. Pointing a loaded weapon at their direction, at their head, at their heart and pulling the trigger is, in fact, by itself evidence that you have ill will towards your target.

There's really no question of that. Shooting someone in the heart is by itself on its face evidence of ill will. Now, the defendant raises a defense saying, I was justified in doing so, but he's certainly not saying that at the time he pulls that gun, points it at Trayvon Martin's heart and squeezes the trigger and puts a hollow point through him that he had some kind of benevolent intention.

There's only one reason you squeeze the trigger at someone's heart and that's because you mean to kill them or you don't care. So the first issue is, is there evidence in this case of intent and spite and evil will? I submit Gibbs (ph) makes it very clear that even just given the gunshot, there's evidence of that.

But let's talk that there's plenty more. We will talk about -- and I will briefly reference the Walker (ph) case, which I will point out is absolutely not a self-defense case. It's a whodunit case. And so when Mr. O'Mara says it's the law of the land in the analysis of a case like this, I disagree. It's not, because it's not a self-defense case.

It has zero application to at least half of his argument. But for starters, the court said this is not a purely circumstantial evidence case. Neither is this one. Evidence of this defendant's ill will towards Trayvon Martin, in particular, Mr. O'Mara cast it as it's usually people who know each other.

Well, the problem is, this defendant thought he knew he thought he knew. He thought he knew Trayvon Martin as one of these (EXPLETIVE DELETED) that get away. He thought he did -- had enough in his heart to stop his trip to the grocery store, if that's in fact where he was going, to follow Trayvon Martin as he walked through the neighborhood in his car, to get out of his car in the rain, follow him and then, as the witnesses made clear, pursue him and make contact with him and grab him.

He had enough in his heart to do all that. So we will talk about first the direct evidence, the direct evidence -- and even the Walker case (INAUDIBLE) this -- the defendant's confession, a defendant's statement is direct evidence of his state of mind.

This defendant's statements go a long way towards telling us what that was. I have already mentioned his conversation to Mr. Noffke in the nonemergency call. But we go further than that. What other things has he said about this? And I will ask the clerk in advance if I can have state's Exhibit 210, please.

He talks about -- the first description is he thinks he's on drugs and he's suspicious because he's walking in the neighborhood. He also says that he would do nothing differently and this is all part of God's plan. And I don't even need Exhibit 210. I will tell the court what it says.

The first line of the first homework assignment he wrote for Professor Carter indicates the reason he wants to be a law enforcement officer -- in that case, I think it was a U.S. Marshal -- because he wants to hunt fugitives and make sure they don't get away.

That -- those are direct statements of this defendant. That's not circumstantial evidence. The defense can argue as to how they ought to be interpreted, but they are in fact direct evidence. You move from that to the statements by Rachel Jeantel and Ms. Bahadoor, Ms. Mora, and Ms. Surdyka, that all indicate that there was some pursuit that took place. And one does not follow somebody wishing them well.

One does not grab them or confront them or ask them what they are doing here because you like them, but because you have some kind of ill will, some kind of spite, some kind of bad feeling towards them. The central question, as it relates to that -- and I will further point out that at least Ms. Jeantel says she heard the defendant in this case tell the defendant to get off.

The only hypothesis of innocence as it relates to all this is in fact justifiable use of self-defense. They are not even pretending that this defendant did not kill Trayvon Martin. So the only hypothesis of innocence that they offer is that.

So I have covered what I believe is the direct evidence of this defendant's guilt as to his state of mind. I will now talk about the circumstantial evidence. You know, there's the idea that he thought enough of his neighborhood watch program to trumpet it, to walk around and be proud about it. And that's fine, well, and good, but the one time he actually comes in contact with someone, he doesn't bother to say, I'm with the neighborhood watch.

Every time he's on the phone with the police, it's, I'm out with the neighborhood watch. I'm with the neighborhood watch. The one time he's not, he doesn't bother. He follows even after -- and it's contrary to the training for the neighborhood watch. There was an argument, I guess, or there will be an argument about whether he was told not to follow and what his perception of that was.

The defendant wrote in his written statement that the dispatcher told him not to follow. His understanding was exactly that. We will talk about some of his claims in brief. But he lies about kind of his whereabouts. Mr. O'Mara said that there's nothing to contradict the idea that he went right from the T. back to his car. There's two minutes of blank time in those phone records where this defendant is apparently wandering about the neighborhood.

There's two minutes he can't account for. If he's to be believed that he's hit when he says he's hit, the phone records prove that he had plenty of time to cover whatever distance he was and he says he never got more than 100 feet from his truck.

Number two, he keeps changing the meeting location for the police. I mean, that is circumstantial evidence that he's got something else in mind. He wants the police to meet him at the clubhouse. No, OK, go back from the clubhouse, just meet me at my truck instead. OK. Never mind altogether. Just call me when you get here. I'm not going to meet you. You find me.

That's not evidence that he is interested in getting the police right away, nor is getting out of his car in the first place evidence that he is interested in meeting the police there. What it is, is evidence, circumstantial at least, that he was going to ensure because the police there have always been too slow to catch these guys who always get away, they have always been too slow, and he's going to make sure that this time something stops him from getting away.

The one other time that somebody got caught had nothing to do with him. It had to do with the Stucco (ph) guy who followed and identified and thereby caught the burglar, and the defendant knew it. The inconsistencies in the defendant's own statements are hardly minor.

I think, viewed in favor of the state, which the court is required to do, and construed in the light most favorable to the state, there's evidence of somebody who can't figure out which lie he's already told, so he tells a new one. He jumped out of the bushes. No, he didn't jump out of the bushes. He was right there where you are standing in the video walk-through. No, he's not right there where you are standing.

He actually, after I hung up the phone and turned around to walk back to my truck, he was walking towards me. He says all three of those things. They can't all possibly be true. I will submit probably none of them are true, but the bottom line is, he keeps contradicting himself and not just in the minor fashion.

He claims that he knows all of his neighbors, but I don't know yet of a neighbor who testified that they actually knew who he was before the shooting. And despite the fact that he's been the neighborhood watch chairperson, that he's lived there for years, that he claims to know all his neighbors and goes about parking enforcement, he doesn't know the name of the three streets in his neighborhood?

He doesn't know that as he's doing his video walk-through, over his shoulder is the address that he claims he couldn't see? Those are not minor things. Those are evidence of someone who is intentionally obfuscating.

And let me put it this way. There are two people involved here. One of them is dead and one of them is a liar. That is a circumstance that this court ought to consider, and it's a reason that the jury ought to consider.

So between the direct evidence and the circumstantial evidence of his ill will, Your Honor, I will now go towards what the cases have to say about that.

The only hypothesis of innocence, as I have said, is that the defendant was engaging in self-defense. Included in the -- included in the packets that I have given Your Honor, the second case I believe in order is Melehan -- M-E-L-E-H-A-N -- which is the Fourth District Court of Appeal decision from June 6 of last year.

And essentially at the -- I believe it's on page 11 of the court's copy. The court sets out the law as it relates to this sort of motion.

"Moving for judgment of acquittal, the defendant admits the facts in evidence in every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence."

Even if this were a circumstantial evidence case, which again the state argues it's not, there are circumstances, but it's not purely a circumstantial case and therefore the special burden, as it were, doesn't apply. But even in a circumstantial evidence case, the state must present evidence that conflicts with the defendant's hypothesis of innocence, but the state is not required to completely disapprove it.

Further, I have provided the court with a case of Shearod -- S-H-E-A- R-O-D -- vs. State, which is a Second District Court of Appeal opinion 992, 2nd 900. It's from 2008. And I believe I saw this in the packet Mr. O'Mara handed me, too.

But on page six -- I'm sorry. I think it's page six of the court's copy, page five of the opinion, again, the court reiterates this. "Unless there's no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law, the trial court should not grant this motion. The existence of contradictory, conflicting testimony or evidence does not warrant a judgment of acquittal, because the weight of the evidence and the witnesses' credibility are questions solely for the jury. Where there is room for a difference of opinion between reasonable men as to the proof of facts from which the ultimate fact is sought to be established, the force of such conflicting testimony should not be determined on a motion for a judgment of acquittal."

And, finally, Your Honor, I have also provided Thompson vs. State, 944 700 2nd 546, another Fourth District Court of Appeal case, this one from 2006. And beginning on page five of this copy, again, in the secondhand column, they talk about the generalized burden and they say this.

"When moving for judgment of acquittal based on the insufficiency of the evidence, the defendant admits not only the facts introduced in evidence, admits, but also every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence.

So, Your Honor, as to whether the state has met its burden at this stage regarding the defendant's intent and state of mind, I submit that both through direct and circumstantial evidence, that has certainly been done.

In fact, the only hypothesis of innocence put forward is the notion of justifiable use of deadly force. And so I'm going to move to that. I think the facts testified to by the eyewitnesses who saw the defendant and the victim struggling together upright and at one point a pursuit involved, coupled with the inconsistencies and the expressions about the defendant's own attitude more than create a substantial question for the jury in that regard.

As to self-defense, whether or not the use of force particularly in this case, the use of deadly force is justified, the state has the burden to discuss here and I'm going to -- I'm going to refer the court to two cases in particular in this regard.

The first is Leasure versus State -- that's L-E-A-S-U-R-E -- 105 southern 3rd 5. That is the second D.C. opinion from October of last year.

Beginning on page 10 I believe of the court's copy, under headnote 3, outline column 3, where they discuss the motion for judgment of acquittal as to self-defense. The court says this and briefly the factual scenario is this -- at trial Leasure raised two separate arguments in support of her more motion for judgment of acquittal. She asserted both of those that the defendant is asserting here, that the state failed to prove that she acted with a requisite intent and also that the state failed to overcome her allegations of self- defense.

When a defendant claims self-defense, the court said she bears the initial burden of presenting a prima facie case of self-defense.

Again, I'm going to assume for purposes of this argument that the court is satisfied they have done so because if they haven't, school is out already. I believe that it is a fair inference in this case that the defendant started this or that at a very minimum, that Trayvon Martin had as much right to defend himself as this defendant claims he did.

But I'll get back to that notion in a minute. But where a defendant claims self-defense, the state has to rebut it. But the state has to do so in a following manner. State may present such evidence through rebuttal witnesses or by inference in its case in chief.

Moving across to the next column, Leasure argued the state failed to meet its burden because there were no eyewitnesses to contradict Leasure's testimony and the medical evidence did not contradict her testimony. She argues her inconsistent statements to the police were nothing more than the use of extremely poor judgment after she panicked. This is sounding exceedingly familiar.

However, even when there are no other witnesses to the events besides the defendant and in this case there weren't, even Mr. Good was long gone before the shot took place, a jury is not required to accept the defendant's testimony in support of her self-defense theory as true. Instead, it must consider the probability or improbability of the defendant's credibility in light of the circumstances established by other evidence. Numerous inconsistent statements to the 911 operator and then to the detectives cast significant doubt on her assertions that she had a reasonable fear of death or great bodily harm. So let's talk about that.

I will also go on to note that on page 11 of this court's opinion under headnote 4, there is a lengthy discussion of the standard as to the judgment of acquittal for the malice or the intent prong. And the law appears to be virtually identical but I want to draw back to one thing, the bottom of that page and moving on to the next page.

Circumstantial evidence standard does not require the jury to believe the defendant's version of the facts if the state produces conflicting testimony. Even when a defendant's theory of events is not clearly contradicted by direct evidence, a judgment of acquittal is not required. A common sense view of the circumstantial evidence might lead the jury to disbelieve the defendant's theory.

They go on to cite some other cases of the same nature. And again, they cite Rasley, R-A-S-L-E-Y, versus state, first DCA case from 2004.

And over in the second column on page 13, the middle paragraph, "We reject Leasure's argument that this was merely a case of an impulsive overreaction to an attack or injury."

The bottom of that page, "A common sense view of Leasure's conflicting stories and the physical evidence that conflicted with her contentions when considered together with the evidence of motive could leave the jury to disbelief Leasure's self-defense theory."

I'm going to discuss why I think that, as opposed to the Jenkins case, this case is by far more at least in a legal sense and certainly as it relates to the nature of the arguments far more close.

The defendant was armed, fully loaded with hollow point bullets, the victim was not. The defendant outweighs Trayvon Martin by 40 or more pounds. In fact, he even said to the detectives he didn't even think Trayvon Martin was armed.

The defendant (AUDIO BREAK)

JAKE TAPPER, CNN ANCHOR: We're going to take a quick break. And when we come back --

MANTEI: -- he's operating contrary to his training, he's operating contrary to the suggestions of the police. According to the testimony of at least some of the witnesses, the defendant initiated that confrontation. There was running. There was a chase. There was an upright struggle.

The defendant was seen atop the victim by a number of people. John Good saw the victim on top the defendant. It doesn't mean the positions didn't get switched, that there wasn't a rolling struggle. But none of that justifies granting a judgment of acquittal. The defendant is the one with the MMA training.

The dependant's injuries have at a minimum by him been significantly exaggerated.

He was caught in a number of inconsistent statements and I'm sure the court noticed some. But let me put it this way. This defendant has been now exposed as having gone weeks after this incident in the company of his attorney on a nationally televised program in front of millions of people and told a flat out lie, a big one, about whether he even knew about the nickname for the self-defense law in the state of Florida.

He's demonstrated that he has no apparent compunction about doing something like that. I'm not sure why any jury should be presumed to have to take his word about anything. And the only person who offers any evidence that the victim in this case who ended up with a bullet in his heart was the initial aggressor in any shape, form or fashion, is the guy who went on Sean Hannity and lied.

He certainly has the knowledge or the ability or the access to the materials in the background to construct the lie, if in fact he saw fit. This is not some rube, some guy who has never been exposed to any of this. This is a person who has been studying this for years. The physical evidence is certainly inconsistent with his hypothesis of innocence, the position of the victim's body, the absence of DNA and fingerprints, the idea that somehow that he was smothered and his nose was pinched with this horrific bleeding injury, not leaving a trace anywhere?

There is, of course, the matter of who was screaming. At least two people have said that's Trayvon Martin. A third has said it sounded like a boy's voice and the defendant of course in his recorded statement said that doesn't sound like me. Spin that how you want to. That's what he said.

And then, of course, there's the common sense matter of the fact that the screams stopped when the gunshot got fired.

The physical evidence of the wound itself and the hole both through the hoodie of Trayvon Martin and through his body or into his body, it's been sort of suggested or argued, I think, at several points throughout this case that it shows that the victim was leaning over the defendant when the shot got fired. And I guess he would have everybody believe that that is a possibility, that is equally consistent with the idea that Trayvon Martin was pulling away at the time the gun got fired and that it wasn't some Arizona ice tea can dragging his hoodie out, but it was his body pulling it back.

In either event, again, certainly, open to a jury question as it relates to that. It is as consistent with the victim defending himself as it is with the defendant and his version.

There is this supposedly horrific struggle during which the defendant claims at various points in time he sustained out of 30 punches, 25 slams of his head to the concrete, all this screaming going on, his hand fighting and everything else, the straddling and yet the murder wound is a single, perfectly straight, perfectly calibrated shot straight through the heart. The defendant is either the luckiest, most level headed cool marksman in the world or something else is going on here.

There is -- John Good is relied upon in great part by the defense and expectedly so. But even he says I never actually saw or even heard any blows really land. Nobody heard 50 screams.

I think there's a significant reason for the jury to question that even assuming that the defendant shot Trayvon Martin in some form of self-defense, that doesn't end the inquiry. And I know -- I think it's been oversimplified. Professor Carter alluded to this.

No, the standard is whether it was reasonable that he feared imminent death or great bodily harm. Now, the defense has an argument that they have advanced that says that's it, but that's certainly not the only argument. It's not the law. It's not the instruction.

The instruction is was his action reasonable. And given what we now know about the defendant's version and how much credibility he has, the defendant's attitude and history and what he felt and thought and the actual extent of the injuries, which again the law -- it is true that the law says you don't actually have to have injuries but why exaggerate? Why make into something that they really aren't.

So, the question is whether he was reasonable in using that level of force, particularly if you believe the defense's theory that, well, he knew the police were going to be right there.

So the one final inconsistency I'll point out as to whether or not this was self-defense is as it relates to the defendant's account to his best friend. When you think about it, the defendant swore that he was attempting to scoot or move or somehow get off the sidewalk at the time that he claims Trayvon Martin was above him with his knees to the defendant's armpits. And yet at that same time according to the defendant, Trayvon Martin noticed the defendant's firearm and went for it. And the defendant, nonetheless, was able to grab it, pull it out and as he demonstrated, fire it into his heart.

I think that's a pretty big physical impossibility. I think everybody with common sense already realizes that.

So the central question, Your Honor, is really which one of these individuals was most defending themselves. That is a question the jury should answer. I want to say something about the Jenkins (ph) case because Mr. O'Mara characterized that as, quote, "one of the most instructive cases" and, quote, "the facts are close."

Here are the facts: witnesses describe Mr. Serazo (ph), that's the victim, as furious and a wild man. Mr. Jenkins testified that Mr. Serazo was acting like a lunatic. Mr. Serazo claimed that he was a gang member and he would come back to the mobile home park with 20 guns and silencers and kill everybody.

One witness testified he heard Mr. Serazo yelling, "I'm going to kill you and you're a dead man." And other witness heard Mr. Serazo threatened to burn down Mr. Jenkins' trailer. Mr. Serazo claimed that he had a Glock with which he was going to cut (ph) Mr. Jenkins. Mr. Serazo then clinched his fist and charged at Mr. Jenkins again.

Those facts are not close.

One of the final cases I cited to your honor is the case of Hoffman versus state, and I think I even saw this in the defendant's pocket (ph) as well. The court cited -- this is the 5th District Court of Appeal, cited the familiar standard that have already gone through several times, under head notes 1, 2 and 3. A motion for judgment of acquittal must be denied unless there is no legally sufficient evidence on which a trier of fact can base a verdict of guilt.