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CNN NEWSROOM

George Zimmerman Case Continues.

Aired July 5, 2013 - 13:30   ET

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


(BEGIN VIDEO CLIP)

SYBRINA FULTON, MOTHER OF TRAYVON MARTIN: They were praying hands and they had pearls going through them.

BERNIE DE LA RIONDA, PROSECUTOR: Do you know where the other tattoo was?

FULTON: The other tattoo was on his left wrist. He had my name there.

(END VIDEO CLIP)

FREDRICKA WHITFIELD, CNN ANCHOR: Sunny and Mark, we're talking about five of the six jurors are mothers.

Sunny, it would seem the testimony from this mother would really touch the mothers who are on that jury panel.

SUNNY HOSTIN, CNN LEGAL ANALYST: Yeah. I would think so. From my vantage point in the courtroom that's what I saw. I will also say that when Javarhis Fulton testified they almost seemed more riveted by his testimony. They were staring at him. I've interviewed him before. He's very eloquent. He's a college student. As far from being a thug as one can imagine. I suspect that that comparison was also taking place in the jurors' minds. If this was Trayvon Martin's brother, who was Trayvon Martin?

WHITFIELD: Primary to Javarhis' testimony, he talked about the closeness of he and his brother. There was also a contentious issue that the defense attorney wanted to magnify. Explain what that was about and how that seemed to sit with -- OK, before we try to answer that question, let's go back to testimony. They are about to resume that testimony of Shiping Bao, who is the medical examiner. Again, jurors are not in the room.

Let's listen in.

DON WEST, DEFENSE ATTORNEY: Today, you said it would be one to 10 minutes.

DR. SHIPING BAO, MEDICAL EXAMINER: Yes.

WEST: Your opinion has changed between --

(CROSSTALK) BAO: Be changed.

DEBRA NELSON, CIRCUIT JUDGE: Let him finish his question before you give your answer.

(LAUGHTER)

BAO: (INAUDIBLE)

WEST: Your opinion has changed on that matter since your deposition last November until today, is that correct?

BAO: No, not here today. Until two or three weeks.

WEST: You've changed your opinion two to three weeks ago --

(CROSSTALK)

BAO: Three weeks ago.

WEST: Three weeks ago?

BAO: Yes.

WEST: About how long Trayvon Martin may have lived after sustaining the gunshot wound?

BAO: Yes.

WEST: Is that based upon additional research that you did?

BAO: Based on another autopsy I did in our office. We have a case very similar to Trayvon Martin's case three weeks ago. First, I need to explain to you what is opinion. Opinion can be changed. That's why you asked jury to be open minded, to have open mind, right. Opinion there's no truth or force just right or wrong. If you have new information, you have new experience, in you read a new book, you will change your opinion. If someone never change opinion, you can call mental retarded or you never learn, right.

WEST: The focus of my questioning now is you changed your opinion.

(CROSSTALK)

BAO: You surprised.

WEST: The reason you changed your opinion is because of case that you handled at the medical examiner's office?

BAO: Three weeks ago. Yeah.

WEST: Not additional research through textbooks or consultations with other experts?

BAO: No. WEST: Three weeks ago when you changed your opinion is when you decided that instead of one to three minutes it may have been one to 10 minutes that Trayvon Martin may have lived?

BAO: Yes.

WEST: Did you -- once you formed that opinion, did you make notes of it?

BAO: I did not make notes of it. I have notes on it.

WEST: Did you contact the --

(CROSSTALK)

BAO: Oh, no. I've have notes on it. I actually stay in my office.

WEST: Right. Did you contact the state attorney's office to tell them that you changed your important matter?

BAO: No, I did not.

WEST: When prior to today but after the November deposition have you spoken with or met with members of the state attorney's office?

BAO: Yes, we did.

WEST: Yes, when?

BAO: Yesterday.

WEST: Any time prior to your deposition -- I'm sorry. Any time after your deposition and prior to yesterday, did you meet with or talk with any member of the state attorney's office?

BAO: The only time we talked is to the secretary, Jennifer. We asked the time when I should come here to testify and I told Jennifer I need to meet with the lawyers, the attorney, if he want to present the photos because if he presented photoed I want to know what kind of photo he want to present so I need to prepare to explain the photos.

WEST: OK. You had that conversation with a staff member of the state attorney office.

(CROSSTALK)

BAO: I always talk to her.

WEST: Yesterday, you met with Mr. De La Rionda?

BAO: Yes, yes, yesterday, July 4.

WEST: Was there anybody else present?

BAO: No.

WEST: Where was it?

BAO: Where or when?

WEST: Where?

BAO: In my office.

WEST: In Volusia County?

BAO: Yes.

WEST: Prior to that meeting you had not spoken to anyone about your anticipated testimony except with the legal staff, Jennifer?

BAO: I told him, nobody else.

WEST: Yesterday, when you meet did talk about your anticipated testimony for today?

BAO: Yes.

WEST: You met with him a half hour, 40 minutes, something like that?

BAO: I don't have any notes no recall how long.

WEST: What do you think?

BAO: It's my opinion, not fact.

WEST: What would your opinion be as to how long you met yesterday?

BAO: 40 minutes.

WEST: During that 40 minutes did you tell Mr. De La Rionda that you changed your opinion about how long Mr. Trayvon Martin lived?

BAO: I don't remember.

WEST: Do you have any notes?

BAO: I do not have any notes.

WEST: Do you think it was an important matter?

BAO: I think it's important.

WEST: Important enough to tell the lead prosecutor in this case you changed your opinion?

BAO: He's not my lawyer. I'm not his employee. I'm an independent voice.

WEST: Are you saying you don't remember whether or not you told him that your opinion changed --

(CROSSTALK) WEST: Please, let me finish the question.

BAO: OK.

WEST: Are you saying that you just don't remember whether you told Mr. De La Rionda yesterday in your meeting of about 40 minutes that your opinion concerning how long Trayvon Martin lived after the gunshot wound, that you didn't tell him that your opinion changed?

BAO: I don't remember. I did not write down I did or not.

I have two purpose when I met him --

(CROSSTALK)

NELSON: (INAUDIBLE)

BAO: Yeah. The reason I say I did not remember is because I did not write down. OK, I cannot answer you question, which I'm not sure. The purpose of the meeting was I wanted no what kind of photo he wanted me to present because I don't want a surprise. You give me photo. He may present a photo that's not my photo.

WEST: Specifically on that point --

BAO: Yes.

WEST: That's all I'm interested in right now --

BAO: Yes.

WEST: It's your testimony regarding whether you told Mr. De La Rionda that your opinion changed that Trayvon Martin may have lived from one to three minutes from one to 10 minutes that you don't remember whether you mentioned that or not?

BAO: Yes. I don't remember. That's not reason I meet him. I may said, I may not have said.

WEST: You may have said it. You may not have.

BAO: There's a difference between a fact and opinion.

WEST: Let's talk about something else then.

BAO: OK.

WEST: At your deposition last November, you acknowledged that Trayvon Martin had the active ingredient of marijuana THC in his ingredient?

BAO: Yes.

WEST: 1.5 nanograms per milliliter?

BAO: Yes.

WEST: And it was your opinion that level of marijuana would have no physical or mental emotional effect?

BAO: Yes.

WEST: That was your testimony in November?

BAO: Yes.

WEST: When you prepared your notes for your testimony today one of your notes indicates that since last November you've changed your mind on that subject?

BAO: Changed my opinion.

WEST: Changed your opinion.

BAO: Today's the fact, opinion, you cannot use terms, story or mind. I changed my opinion.

WEST: Last fall --

(CROSSTALK)

BAO: I have a right to change. Everybody change. I can change every hour. I don't see any problem.

WEST: Last fall, your opinion was the level of marijuana would have no physical or mental effect, correct?

BAO: Yes, at that time.

WEST: Now your opinion is it would indeed have at least some mental effect?

BAO: Could be. I said could be.

(CROSSTALK)

WEST: That's based upon additional research.

BAO: Yes. I spent hours and hours. I went to the library. I read papers and I tried to pull out my previous research, and I talked to other expert.

WEST: I'm sorry?

BAO: I talked to other expert.

WEST: Who did you talk with?

BAO: I talked to my previous friend in Washington State.

WEST: Who is that, please?

BAO: Dr. Brooks.

WEST: Pardon me? BAO: Brooks, B-R-O-O-K-S.

WEST: Is that the last name?

BAO: Yeah.

WEST: Is this person a toxicologist?

BAO: He's a biologist. He's one of the best of low-dose radiation effect in the world. I work with him for many years.

WEST: You consulted with Dr. Brooks about the issue of toxicology?

BAO: Yes.

WEST: And among other literature that you studies --

(CROSSTALK)

WEST: -- did you review studies where research was done on the intoxicating effects or the impairment effects of marijuana at various levels?

BAO: Yes, I believe.

WEST: Can you tell us today what studies you consulted that led to your change of opinion --

(CROSSTALK)

NELSON: -- a limited hearing is a Richardson hearing. So please keep on topic for that.

WEST: All right, let me focus you then on that.

BAO: OK.

WEST: When did you change your mind about the significance of the THC levels of Trayvon Martin's blood?

BAO: I don't remember exactly the time. Could be in last 60 days. When we decide to have this trial I tried to prepare for this testimony. Not every case will go to trial.

WEST: You're saying that sometime in the last 60 days is when you changed your opinion on the effects of the marijuana?

BAO: Yes.

WEST: Did you mention that to Mr. De La Rionda yesterday when you met with him for about 40 minutes?

BAO: No. I did not mention I changed my opinion. I just said marijuana tox report is part of the autopsy report. We should talk about it. I said I should report to the jury the toxicology report. I did that every time in the previous case. He said we may not talk about it because of some issue in the court (INAUDIBLE).

WEST: Did you tell him that your opinion had changed?

BAO: I did not tell him.

WEST: Did you tell him your opinion changed about the significance of the THC level?

BAO: I did not.

WEST: Why not?

BAO: Because he said we will not talk about it.

NELSON: The issue is not why. The issue is did he tell him. This is a Richardson hearing and I'd like to stay focused on that issue at this time.

WEST: Yes, of course.

Was there any conversation with Mr. De La Rionda about anything related to marijuana and the research you had done?

BAO: No, I did not. He didn't want to talk about it. I said I need to not just marijuana but toxicology report because toxicology report is part of the autopsy report. Jury need to know. It's their right to know. We cannot skip that.

WEST: Was there anybody present during your conversation yesterday with Mr. De La Rionda?

BAO: No.

WEST: Had you spoken to my staff member, lawyer, investigators, paralegal where the notion of marijuana came up?

BAO: No.

WEST: Yesterday was the only time you spoke with Mr. De La Rionda or anyone on behalf in connection with this case after your deposition of last November?

BAO: He's the only one I know in the state attorney office other than the secretary or investigators. He's the only attorney I talk to.

WEST: You didn't tell her anything about changing your opinion on the marijuana issue?

BAO: No, no. I don't think she can understand that.

WEST: Thank you, your honor.

NELSON: Thank you.

Any there witness -- other witnesses that you wish to call in regards to a Richardson hearing? Are there any other witnesses you wish to call in regards to the Richardson hearing?

WEST: Yes. No witnesses but I do have a couple of follow-up questions just to be clear.

BAO: OK.

WEST: I may have clouded the issue.

BAO: Yes.

WEST: Until three weeks ago, your opinion was that Trayvon Martin would have lived one to three minutes?

BAO: Yes.

WEST: Based upon the case in the medical examiner's office, you now believe it was one to 10 minutes?

BAO: Yes.

WEST: As to the marijuana, in last November you believed that there would be no physical or mental effect by the marijuana?

BAO: Yes.

WEST: Today, you believe there would be?

BAO: Not today. Not just today. In the last 60 days when I tried to prepare this testimony.

WEST: Right.

(CROSSTALK)

WEST: For the last 60 days, you have believed that there is some significance to the level of marijuana and it could have --

(CROSSTALK)

NELSON: Let's stick to the Richardson issue. The Richardson issue is that information was made known to the state attorney's office and if they failed to pass the information onto you. Do you have any other questions regarding that issue of Dr. Bao?

WEST: Your honor, with the court's permission, I'd like to expand this just a little bit because the admissibility issue is --

(CROSSTALK)

NELSON: I'm not on that issue at this time. For the third time, we're talking about the Richardson violations and whether or not there was one. This is a Richardson hearing. Do you have any other testimony you want to elicit on that or any other witnesses that you wish to call on that issue? WEST: No ma'am.

NELSON: OK.

Does state have any other witnesses you wish to call?

DE LA RIONDA: No, Your Honor. But I'll be glad to show counsel my question on this issue -- and he can read it and he can answer it back. I'll be glad to share that with the court.

NELSON: You can --

DE LA RIONDA: May I approach?

NELSON: What issue are you talking about?

DE LA RIONDA: The one to 10 minutes. You can look at the answer I've prepared that I thought he was going to say at the bottom of that.

NELSON: OK, and that says one to three minutes.

DE LA RIONDA: Yes.

NELSON: OK, the court, after hearing testimony, finds there's no Richardson violation.

Are you ready to cross examine the Dr. Bao and bring the jury in?

WEST: I would like, yes, but, I would like to question Bao about his opinion regarding the intoxicating effects of marijuana?

NELSON: Very briefly.

WEST: Before the jury. We've already addressed the hearing.

NELSON: NO, I've made my ruling. The information I've heard at this time, my ruling stands.

WEST: Your Honor, this is new information, please.

(CROSSTALK)

NELSON: I understand. You can ask him whatever you want but not in the presence of the jury.

WEST: All right. Thank you.

Regarding the intoxicating effects of marijuana in Trayvon Martin's system, it's now your opinion based upon additional research, consulting with other experts, that, indeed, there was some mental or physical defect by the level of marijuana that was this Mr. Martin's system?

BAO: That's your opinion. My opinion is marijuana could have the effect or some effect.

NELSON: (INAUDIBLE)

BAO: No effect or some effect. He asked my opinion, then you say instead of your opinion, ask me yes or no. I cannot do that.

(CROSSTALK)

WEST: Your opinion is, not mine, your opinion is that there could be no effect or there could be some effect?

BAO: Yes.

WEST: You can't tell exactly how much?

BAO: I cannot.

WEST: That's the inversion.

NELSON: OK, thank you.

Based upon that, my prior ruling on the toxicology issue and the state's motion in Limenie (ph), which the court granted, remains. That's the court's order.

Are we ready to bring the jury in to finish or to do your cross examination of Dr. Bao?

WEST: Your Honor, yes, I would like to talk about notes marked as an exhibit in the record.

NELSON: You'll have to give a copy. I gave him back his copy. I don't have a copy.

WEST: Would the court ask the witness to make his notes available? Mine have my notes all over them.

BAO: (INAUDIBLE)

WEST: You do at some point before we finish, that's all.

NELSON: That's fine.

WEST: Sure.

NELSON: OK. Let's go ahead and bring the jury in.

WHITFIELD: OK. We were just watching there this Richardson hearing. It was a technicality that the attorneys wanted to resolve, whether the state refused to admit evidence which is, by way of that medical examiner changing his opinion. But the judge just ruled on that. No violation.

We're going to take a short break as they bring in the jurors to resume testimony of the medical examiner. Right back after this.

(COMMERCIAL BREAK)

WHITFIELD: All right. I'm Fredricka Whitfield. Welcome back.

Resumption of the George Zimmerman trial. You're looking at live pictures of the defense attorney, Don West, and the defendant there, George Zimmerman. The jurors are being brought back into the room. There was a technicality that had to be argued while the jurors were out of the room. Then they'll resume testimony, cross-examination of the medical examiner, Shiping Bao.

Let's listen in now as Don West approaching the microphone.

WEST: We've had an opportunity now to take a look at your notes, and you have them back.

BAO: Yes.

WEST: If you would please, if any of your answers in my questioning or Mr. De La Rionda's follow-up require you to refresh your memory with your notes, would you please tell us?

BAO: What do you mean? Refresh my notes?

WEST: What I'm saying is this. If at any point in the questioning you use your notes to refresh your memory or that you are relying on your notes instead of having a memory, would you please let us know?

BAO: OK.

WEST: OK. I think before lunch, we were talking about the basic protocol used in conducting an autopsy.

BAO: Yes.

WEST: At the medical examiner's office. And you were saying that the clothing is removed item by item and packaged.

BAO: Yes.

WEST: And there would be a chain of custody started. Correct?

BAO: Yes.

WEST: So the person who packaged the clothing would indicate on the packaging that they received it and they would actually initial or sign the packaging.

BAO: Yes, generally speaking.

WEST: And then through whosever hands those packages or that evidence may have traveled, would also sign to indicate the chain of custody?

BAO: Yes.

WEST: In this instance, you don't remember specifically if you were present when Mr. Martin's clothing was removed and packaged?

BAO: Normally, I should be there. WEST: Of course. But you don't specifically remember --

(CROSSTALK)

BAO: No. I told you I do not remember anything --

(CROSSTALK)

BAO: -- on the day of autopsy.

WEST: But you have a procedure whereby the clothing is removed by one of the assistants, provided to another, who then photographs it and packages it, correct?

BAO: Yes.

WEST: And you have no reason to think that wasn't done in this case?

BAO: Yes. Right.

WEST: And then once the clothing is removed and on its way to being photographed and packaged, you then do a preliminary inspection of the body?

BAO: Yes.

WEST: And at what point in the sequence are the fingernail scrapings done?

BAO: I do not recall. It's autopsy technician's job to scraping of fingernails.

WEST: This case -- well, generally speaking, you don't do that?

BAO: No. I never do that, actually.

WEST: So it's always a technician?

BAO: Yes.

WEST: And do you know which technician in this case did that?

BAO: I believe it's Ben Dalton.

WEST: And is there a specific procedure that's used for that?

BAO: I do not -- I do not know. They were trained to do this job. It's their responsibility. I have confidence on them they did right thing.

WEST: But you don't know in this case whether he did it right or not?

BAO: I do not.

WEST: And is it the practice of your lab to use one of the little wooden sticks for all five fingers on each hand? BAO: Yes.

WEST: Why is that?

BAO: I did not -- I did not write the protocol. I don't know.

WEST: Do you know who did write the protocol?

BAO: I don't know either.

WEST: Is that OK with you that they use one stick for all five fingers?

BAO: That's not my job. I will not worry about it.

WEST: Would you agree that if you use one stick for all five fingers, there's no way to identify which finger may have had the biological evidence of interest?

BAO: Yeah. You cannot if you just use one for all five fingers, then you have no ability to identify which one.

WEST: And how would you know, in fact, that in the process of making the scrapings, that some of the biological material that you couldn't see didn't actually wipe off instead of being accumulated with each finger?

DE LA RIONDA: Objection as to speculation.

NELSON: Sustained. He testified he doesn't.

BAO: Yeah. I never did that job. I have no experience about that stuff. So you can ask them.

WEST: You wouldn't be able to say, then, whether or not it was done correctly or incorrectly?

BAO: I have no experience. I have no fact. I have no opinion.

WEST: Do you know, in fact, that each of the five fingers were scraped on each hand?

BAO: I hope so.

WEST: Of course. But do you know?

BAO: I do not. I told you I don't remember anything on the day of autopsy.

WEST: Does the protocol require all five fingers to be scraped?

BAO: I never read that protocol.

WEST: You can't tell me, then, I take it when Trayvon Martin's fingernails looked like?

BAO: I look at Trayvon Martin's body everywhere, everything.

WEST: Can you tell me what his fingernails looked like? And by that I mean, were they long? Were they short? Were they cut off below the tip of the finger?

BAO: I -- I told you, I don't remember. If I find something significant to my attention, I will write it down. Anything I did not write down, I believe is not significant.

WEST: Right. So in other words, if it was significant to you, you wrote it down.

BAO: Yes.

WEST: If it wasn't significant, you didn't.

BAO: Yes.

WEST: But if you missed something, it wouldn't be there.

DE LA RIONDA: Objection.

BAO: I will not miss anything. It's my job to not miss anything. I shouldn't miss anything.

WEST: Could you show me -- first of all, can you tell me what Trayvon Martin's fingernails looked like?

BAO: I do not remember.

WEST: Can you tell me whether or not the act of scraping them is likely to be successful because they were long or short?

BAO: I did not do that. I told you, I don't have memory. I do not have any fact. I have no opinion.

WEST: So if I were to show you a picture of Trayvon Martin's fingernails, you wouldn't know whether or not they looked the same that day?

BAO: The fingernail has to connect to Trayvon's head for me even to identify.

WEST: I'm talking about the condition. What the fingernails looked like. If I showed you a picture, that wouldn't do you any good because you have no memory?

BAO: Yes.

WEST: Is that correct?

BAO: I do not have any memory. I told you before, I told you right now, I do not remember anything.

WEST: Part of the protocol also includes fingernail clippings, correct? BAO: It's not my protocol. It's not my job. It's technician job. They are --