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George Zimmerman Case Continues.

Aired July 5, 2013 - 11:30   ET


DON WEST, DEFENSE ATTORNEY: And in this instance, am I correct that Mr. Martin's body remained at the scene prior to it being transported by the delivery service for three hours?

SHIPING BAO, MEDICAL EXAMINER: I don't have that information.

WEST: I'm sorry, don't you have the notes from the investigator that went there?

BAO: I did not go there.

WEST: Right. Do you have the notes that she would have kept about her arrival time and the time --

BAO: Yeah, I do.

WEST: Her name is Tara Clark, correct? Tara Malfers, same person.

BAO: Yes.

WEST: What time did she get there?

BAO: In the narrative she wrote --


WEST: I don't want a narrative reading. Just tell me what time she indicated she got there.

BAO: This is not my writing. I just read it. It is not my evidence. It is not my opinion. It is other people's readings. I just tell you --

WEST: These are notes that Ms. Malfers would have made in connection with the work she did on behalf of your office.

BAO: Yes. It is not part of the autopsy report.

WEST: Correct. But you have access to the notes.

BAO: Right here. I will read them to you. I cannot remember the numbers.

WEST: Agreed.

BAO: Yes. WEST: The question precisely is what time did she get there.

BAO: Approximately 2144 hours means 9:00 p.m., 44 minutes.

WEST: Mm-hmm. The incident occurred around quarter after 7:00.

BAO: In the notes here, she said --


WEST: Well, you can use that as a frame of reference. There is lots of evidence the event occurred around quarter after 7:00.


BERNIE DE LA RIONDA, PROSECUTOR: The witness should be allowed to respond to the question.



WEST: Your Honor --


BAO: If you want to you can read the note.

WEST: The question is this --


BAO: It's not my note. Could be wrong. I'm under oath. If I give you wrong information it's perjury.

WEST: Yes.

BAO: Do you understand? I'm under the oath. I cannot give you wrong information. It is not my note.

WEST: Let me ask this question to try to clear that up. Assume for your answer.

BAO: Yes.

WEST: The event occurred around quarter after 7:00.

BAO: That's what you say. I don't know. I don't know the information. The time at the scene.

WEST: Yes. Please assume that the event occurred about a quarter after 7: 00.

BAO: OK. If you are right.

WEST: If there is any dispute in that, the jury can resolve that at some point.


WEST: Just as a rough time frame, quarter after 7:00 is when the event occurred -- correct? For our purposes.


BAO: I don't --

WEST: I'm not asking you to agree. Just to assume that's when the event occurred.

BAO: OK. You can assume that, yes.

WEST: Ms. Malfers arrived at the scene about two and a half hours later, correct?

BAO: I don't know. Again, I don't have that information. You cannot ask me yes or no question.

WEST: Based upon her notes that are part of your record.


WEST: She said she arrived at the scene at 2144.

BAO: Yes. Right here.

WEST: That's about quarter of 10:00.


WEST: That's about two and a half hours after the event which we have assumed for our purposes occurred at 7:15.

BAO: OK. It's not a yes or no. I just said OK.

WEST: In her notes she left at about ten minutes after 10: 00.

BAO: I don't see that on my note.

WEST: Do you have the note she made in connection with the case -- if I could approach the witness, please.

NELSON: You may.

WEST: Dr. Bao, I will direct your attention to this.

BAO: This is what I have. You may have a different thing.

WEST: That's the same.


WEST: Right here. BAO: OK.

WEST: Cleared the scene at approximately 2210.

BAO: Yes.

WEST: That's TSM, and that is ms. Milford.

BAO: Yes.

WEST: She left around 10n after 10:00.

BAO: Yes.

WEST: If we are assuming for the moment the event occurred around quarter after 7:00 it was just about three hours that Mr. Martin's body was at the scene.

BAO: Yes. OK.

WEST: At least to some degree, unprotected from the elements.

DE LA RIONDA: Objection.

BAO: I don't know.

DE LA RIONDA: There is no factual basis for that.


Please rephrase your question.

BAO: You cannot ask me questions I don't know. If it is yes, it's wrong. If it's no, it's wrong.

WEST: Well, you know the hands weren't bagged, correct?

BAO: I did not see that.

WEST: Uh-huh. You know the body was at the scene for about three hours.

BAO: I don't know --


WEST: Based upon --


BAO: All I know, his body was at the scene for some period of time. I do not have timeline.

WEST: Wouldn't you have reviewed the notes of the investigator as part of your overall understanding of the event in anticipation and participation for the autopsy? BAO: No. Actually, it's not.

WEST: You don't have any idea what is supposed to have happened when you do the autopsy?

BAO: All I know was in the morning I did autopsy. He was shot. He's dead.

WEST: So you had no idea what anyone had said about what had happened the night before.

BAO: I told Mr. O'Mara I didn't have any.

WEST: Let me be rephrase. You did the autopsy without any knowledge having reviewed any information about what was supposed to have happened the night before.

BAO: I was told -- again, I don't have any recall. I don't have any memory of the day of autopsy. I cannot answer your any question about that. All I hear is the notes I have.

WEST: Let me be sure I understand.

BAO: Without notes I cannot tell you any fact. I cannot tell you any opinion without notes.

WEST: What you are saying to me today to the jury is that you have no memory.

BAO: Yes.

WEST: Of any of the events surrounding the autopsy itself.

BAO: Yes. I try very hard.

WEST: Is that true?

BAO: 100 percent true. I tried.

WEST: No. If you might let me ask --

BAO: Let me explain to you.


NELSON: Just one second, please.

DE LA RIONDA: Objection. He's not allowed to answer the question.

NELSON: We have to -- I have said this before. We have to allow the court reporter to take one person speaking down at a time. So if you will please, after your question, allow Dr. Bao to answer.

Dr. Bao, after you have uh answered, wait for the next question.

BAO: OK. NELSON: Thank you. You may proceed.

WEST: Thank you.


WEST: Let me tell you why --

NELSON: Again, stop.

WEST: May I ask a question, Your Honor?

BAO: I didn't answer your first question.

NELSON: Dr. Bao, please wait. There is another question. If he has not finished answering the first question, he will be allowed to do so. Please wait for your question until he finishes his answer.


WEST: Could we read the question back? I think it was a yes or no question.

BAO: I need to explain to the jury why this happened.


WEST: Your Honor, may the witness --

BAO: Why I cannot remember anything on the day of autopsy and other people can remember. So I did intensive study and I tried many times myself. A few days before your deposition which is nine months after my autopsy, I came to my office --

WEST: Your Honor. I'm sorry. This is not responsive to the question.

BAO: I explained why I did not remember. I put everything in front of me. The autopsy report --

WEST: Your Honor. Would the court please ask the witness --


BAO: I try very hard. I cannot remember.

NELSON: Once more. We cannot interrupt each other.

Dr. Bao, are you finished with your answer?

BAO: I need to explain to the jury.

NELSON: You have. Are you ready for the next question? OK? Please allow --

BAO: OK. NELSON: Mister --

BAO: I do not remember anything. Zero.



BAO: On the day of autopsy. I depend on my notes.

NELSON: We understand, sir. Please stop speaking so Mr. West can ask the next question.

BAO: OK, go ahead.

NELSON: Go ahead.

WEST: Understanding you have no memory of the events surrounding the autopsy, your testimony relies then upon your autopsy report.

BAO: Yes, the notes and photos.

WEST: Are the notes different than the report itself?

BAO: No different.

WEST: So the autopsy reports are the notes that you're talking about?

BAO: Yes.

WEST: So as we were starting a moment ago, let's talk about the procedure.

BAO: Yes.

WEST: At what point do you become -- this is generally now.

BAO: Yeah.

WEST: I know you don't remember this one.

BAO: Yes.

WEST: Generally at what point do you see the body?

BAO: Generally speaking, it is not a fact that every morning we have conference at 5:30 a.m., then we start to do autopsy. If it's homicide, as in this case, we check identification. We open the bag. We take photos.

WEST: May I interrupt a moment to ask you a more precise question?

BAO: I apologize.


NELSON: Now we have three people -- and now I'm speaking so it's four people speaking at a time.

Please state your objection

DE LA RIONDA: My objection is the doctor not being allowed to answer the question.

BAO: It's OK. It's my job.

WEST: And my objection is he's not being responsive to the question and I would like to ask a specific question.

NELSON: Wait for your next question.


NELSON: Thank you.

BAO: Thank you.

WEST: As part of the autopsy protocol, generally speaking at what point do you see the body? Is it as soon as the bag is opened, after the body has been undressed and the clothing collected, after the initial photographs are taken, after the finger nails are scraped? At what point do you see the body?

BAO: As soon as bag is opened. Sometimes I open. Sometimes technician opens. Sometimes we open it together. As soon as we open the bag we see the body.

WEST: In your autopsy report, you say the body is viewed unclothed.

BAO: Yes.


BAO: That's the autopsy report.

WEST: Right. In the report you say, this is your report.

BAO: Yes.

WEST: The body is viewed unclothed.

BAO: After remove the clothes. Then body is unclothed.

WEST: My question is, so are you testifying that you saw Mr. Martin's body fully clothed or did you see the body after your technicians unclothed the body and prepared the body for autopsy?

BAO: I was there the whole time. The body received in the plastic bag. We opened the bag. We removed the clothes. The autopsy report starts from without clothes. I do not describe the clothes.

WEST: How do you know you did that in this case then?

BAO: I don't know. I do that every case. WEST: That's your regular protocol.

BAO: That's my opinion. Not a fact.

WEST: Let's talk about what happens then.

BAO: Yes.

WEST: The bag is opened.

BAO: Yes.

WEST: Then I assume the body is removed from the bag.

BAO: Yes. Or the bag is removed from the body.

WEST: All right. And the body is then clothed.

BAO: Yes.

WEST: And then photographed?

BAO: Yes. Photographed before we remove them.

WEST: Do you take those photographs?

BAO: Normally I do not.

WEST: Do you know who took them in this case?

BAO: Either Ben Dalton or Priscilla.

WEST: Those would be the photos taken of Mr. Martin's clothed body, correct?

BAO: Yes.

WEST: After those photographs are taken, what happens next?

BAO: Ben Dalton would remove the clothes.

WEST: Where would you be during this?

BAO: I look at them. I don't recall what I did at this time. Generally speaking, I could look at the hand, look at the face.

WEST: But you don't know if you did in this case.

BAO: No. I don't remember.

WEST: It's possible then that Mr. Dalton would do his assignment, and that is he would remove the clothing.

BAO: Yeah. That's his job. He was trained to do that. I have full confidence he did it right.

WEST: Mm-hmm. So you don't know if you witnessed any of that. You just know --

BAO: I was there. I should be there.

WEST: Mm-hmm.

BAO: I believe without fact. It is my opinion I should be there.

WEST: I agree. You should have been there.

BAO: Yes.

WEST: So you're not sure if you were. You believe you were.

BAO: Yes.

WEST: Then did you -- do you know what happens to the clothing at the point that it is removed from the body?

BAO: Say again?

WEST: Yes.

BAO: Can you repeat the question?

WEST: What happens to the clothing when it is removed from the body?

BAO: We will pack them and put it in the paper bag and give it to the police department.

WEST: Is that what happened in this case?

BAO: It should be.

WEST: Did it?

BAO: It should be. I told you. I don't remember anything. I need to explain to you why I remember. Other people remember. Very exactly happened two years ago. My brain is not too bad. I didn't remember.

WEST: Your Honor, may I ask the specific question and elicit a specific answer?

BAO: You're asking me the question. I don't know.

WEST: Yes. What I want to know in this case, was the clothing removed and packaged in paper bags.

BAO: I don't know. But it should be.

WEST: It should have been.

BAO: Yes.

WEST: And you knew that the sweatshirt was damp.

BAO: I saw from the photo. All my memory is no memory.

WEST: OK. So in other words, you know from your training and experience as a medical examiner that if clothing is wet.

BAO: Mm-hmm.

WEST: It needs to be packaged in paper bags.

BAO: Yes.

WEST: If it is -- if plastic bags are used --


BAO: Before we package them we let them dry a little bit.

WEST: Did that happen in this case?

BAO: Again, I do not know.

WEST: So the procedure would have been to dry the clothing and pack it in paper.

BAO: Yes.

WEST: You don't know what happened here.

BAO: I cannot tell you anything beyond my note.

WEST: You know from the photograph of the sweatshirt.

BAO: Yes.

WEST: The hooded sweatshirt that it looks wet.

BAO: Yes.

WEST: So it would be inappropriate and a violation of protocol to take a wet sweatshirt and seal it in a plastic bag?

BAO: There are no plastic bag other than plastic bag carrying the body.

WEST: So in other words that you would never in your lab take a wet piece of clothing that's potentially evidence and seal it in a plastic bag.

BAO: If anybody does that, he'll be gone next day. He'll be fired because this very classic concept for us to use paper bags. This is rule.

WEST: It's a no-brainer.

BAO: Yes. Everybody do that. I have confidence they do that.

WEST: All right. So the clothing is removed and packaged as appropriate.

BAO: Yes.

WEST: That would include shoes.

BAO: Yes.

WEST: You saw shoes in the photo.

BAO: Yes. I saw shoes.

WEST: Do you know where the shoes are by any chance?

BAO: Now?

WEST: Mm-hmm.

BAO: I have no idea where it is now. When a body comes in, shoes is on feet.

WEST: The photograph that you saw here today showed the shoes.

BAO: Yes.

WEST: You believe those are the shoes that Mr. Martin was wearing when his body was presented to you.

BAO: Before I come here, I spend hundreds, hundreds of hours reviewing the photos, review my notes. All the things I tell you today is based on my notes. It's new memory. Not the old memory on the day of autopsy.

WEST: Are you --


BAO: I don't believe anybody can remember anything two years ago.

WEST: Mm-hmm.

BAO: I did research about that. Memory could be false memory, old, confused memory, recent --


WEST: Are you reading from something now?

BAO: Yeah, yeah. I typed that myself.

WEST: May I see what you are referring to?

May I approach the witness, please?

NELSON: You may.

BAO: Because I was puzzled by that. I could not remember and other people can.

WEST: May the witness not answer until I have had a chance to review it.


WEST: Show me what you are looking at.

BAO: For this testimony, I told you I spent hundreds of hours. I typed down potential answers to your potential questions. These are my notes.

WEST: May I see them?

BAO: I would rather you do not see. These are my notes. Nobody saw that before.

NELSON: Dr. Bao, if you are going to be reading from your notes, both attorneys are entitled to see what you are reading from.


NELSON: So please allow.

You may approach the witness.

BAO: This one.

WEST: All of the notes you prepared in anticipation after your testimony today.

BAO: OK. So you will return to me as soon as possible.

WEST: Yes.



WEST: Perhaps, it could be convenient if we made a copy for counsel. I could continue questioning.

NELSON: You have people behind you. You can make a copy if you wish.

BAO: Can I get a copy. It's my notes. I typed myself. Nobody read them before.

NELSON: OK. These are not the actual report that you rendered?

BAO: No. It's my personal note. I use my own time in the evening, weekend. I type notes.

NELSON: If counsel would like to take them and sit down and look over them you may do so and return them to Dr. Bao.


ASHLEIGH BANFIELD, CNN ANCHOR: Live in Sanford, Florida, I'm Ashleigh Banfield. Something big just happened in the courtroom. It may not seem like it but what you're seeing on your screen is the medical examiner who performed the autopsy and is referring to some notes. The notes are in question because they were notes taken during autopsy and notes written at another time, his personal private notes. He brought them into a court of law. If you bring them into a court of law and you start referring to them, guess who gets to look at them? Everybody. That's why it's quiet in this courtroom right now.

Mark Nejame, this is a critical moment and this is massive strategy. There was a giant grin on the face of the defense attorney. What could possibly be in those notes that could serve to either impeach this witness or damage his testimony?

MARK NEJAME, CNN LEGAL ANALYST: You can tell by looking at it he's very nervous. That's the examiner.

BANFIELD: He didn't want anyone taking them.

NEJAME: He didn't want anyone taking them.

BANFIELD: He protested three times, those are personal.

NEJAME: Here's the issue. You can bring them in, but once you're on the stand and refer to your notes, it's only appropriate the attorneys are able to look at that. That's what they did. A critical mistake, if the state did not know this ahead of time and did not question him ahead of time as to what he was bringing in. What could be in there? He could have discussions with the prosecutor, some things that are inconsistent with his in-court testimony. Who knows?

But I think we're going back, so let's pick it back up.

BANFIELD: Don West is back up and will re-question him about the notes. Let's listen.



BAO: It's my note.

WEST: I'm going to ask the court for a copy of these. I'm going to want to have an opportunity to review them more carefully and have an opportunity to question Dr. Bao specifically about them. I need a little time to do that. I can proffer why, but I need that time. I think the rules provide anything that a witness uses --


NELSON: This is a speaking argument. We can do that outside the presence of the jury. Ladies and gentlemen, we'll break for lunch at this time. Please put your note pads face down. We'll be back at 1:00 p.m. During the lunch hour, do not discuss this case amongst yourself or with anybody else. Do not read or listen to any radio, television or newspaper reports about this case. Do not use any type of an electronic device to get on the Internet to do independent research about the case, people, places, things or events. Do not read or create any e-mails, text messages, twitters, tweets or blogs.

Do you all understand these instructions and will abide by them?


NELSON: OK. Thank you very much. Please put your notepads down and follow a deputy back into the jury room.

BANFIELD: Judge Debra Nelson letting this jury go for lunch a little bit earlier than usual. Nine members of this jury. There are six who will determine guilt or innocence. Three who are alternates.

It cannot be underrated how important this moment is. That's a nervous witness whose personal notes are about to be photocopied.

Let's listen for a moment.

NELSON: I understand your concern about the notes. What I'm going to do is ask that the clerk make a copy of the notes.

The attorneys will be directed that the notes are not to be shared with anybody else. After they are finished with their questioning your notes will be destroyed. Their copy of your notes will be destroyed. If you give it to the clerk she'll make a copy and provide it to both sides with the confidentiality order that the court has entered previously many this case. As soon as you get your originals back you can go to lunch and be back at 1:00 p.m. You're not to discuss your testimony with anyone because you're still considered to be on the stand.

Thank you.

Court will be in recess.


BANFIELD: The great seal of the state of Florida will come into view which signifies Judge Debra Nelson is also going to lunch. The mics will get killed. There's work ongoing in front of that seal now.

Mark Nejame, I want to bring you back in for this moment. I don't understand how the copy of the personal notes that that medical examiner made is not being entered into evidence. It will be destroyed after everyone gets to refer to it. What's going on?

NEJAME: It's going to have to be entered into evidence at least under seal for appellate review in case of conviction. I agree with the defense's motion. I've used it myself in times. The biggest mistake law enforcement makes is they will bring their personal notes to the stand and they will reference them, and it's fair game.

BANFIELD: These were things never in discovery. No one knows what was said.

NEJAME: Until they were discovered for the first time in review.

BANFIELD: If there are non-experts out there, there could be personal notes in there about make discussions about prosecutors.

I have to fit in a quick break. You'll find out a lot more about the significance of this. We're back after this live.


BANFIELD: Welcome back to the live coverage here in Sanford, Florida in the George Zimmerman second-degree murder trial. We've been saying all along that the prosecution's case in chief is coming to a close more than likely today. Prosecutors will rest, and more than likely today defense attorneys will ask that judge to rule and just shut this whole thing down. That's because they often say there isn't enough evidence, Judge, there isn't enough evidence that the prosecutors have put forth in their case to even give it --