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ANDERSON COOPER 360 DEGREES
George Zimmerman Murder Trial; Lesser Charge for Zimmerman?; Cleveland Kidnap Victims Speak Out; Asiana Flight Crash Due to Pilot Error
Aired July 09, 2013 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN ANCHOR: Talking to investigators a heroic flight attendant, the last person off the plane, she is talking to reporters about why there wasn't an immediate evacuation from the burning jumbo jet. And our Gary Tuchman who's inside a 777 simulator to experience what crew members may have seen, heard and felt as they approach -- as that approach went terribly and tragically wrong.
And later for the first time since their rescue, three young women are telling the world what they went through during about a decade in captivity in Cleveland.
We begin, though, tonight with the Zimmerman trial, moving fast but going late this evening. Defense and prosecution arguing for several hours now over a computer generated reenactment of the deadly struggle between George Zimmerman and Trayvon Martin.
The defense wants to enter it as evidence, the prosecution says it is not evidence, just a sophisticated illustration of the defense's version of events and therefore would be prejudicial.
These are live picture right now. The court still in session. As I said it's pretty late to be going tonight but the judge is trying to decide whether or not to allow this simulation, essentially this animation in. She's reconvening right now. Let's just listen in briefly.
JUDGE DEBRA NELSON, SEMINOLE COUNTY CIRCUIT COURT: I can just look at what it is that you're seeking to have introduced without having his testimony proffered and make that decision.
Is that what he's going to be called for? Is that he was able to obtain certain information, either text messages, videos or pictures off of Trayvon Martin --
COOPER: Well, this morning the judge said she would devote 45 minutes to arguments on it. It's now clear she was being a little optimistic on that. The arguments have been going back and forth between the defense and the prosecution. She said she's going to reconvene tomorrow.
In other ways, though, the trial has been a speedy one. The defense saying it plans to rest tomorrow but not before calling more witnesses to bolster its case that George Zimmerman while suffering a life- threatening beating while crying for help shot Trayvon Martin in self- defense.
Now in a moment our panel weighs in on whether the jury will agree but first let's give you a sense of exactly what happened today and Martin Savidge has to see.
MARTIN SAVIDGE, CNN CORRESPONDENT (voice-over): Famed pathologist Dr. Vincent Di Maio said the bullet hole in Trayvon Martin's clothing and body proved one of the defense's key points. That it was Martin who was on top of George Zimmerman as they struggled.
Di Maio, a gunshot expert, said he could tell it was Martin on top of Zimmerman because even though Zimmerman's gun was touching Martin's hoodie when he fired, the hoodie was not touching Martin's skin.
DR. VINCENT DI MAIO, FORENSIC PATHOLOGIST: The fact that we know that the clothing was two to four inches away is consistent with somebody leaning over the person doing the shooting, and that the clothing is two to four inches away from the person firing.
SAVIDGE: Di Maio also countered the medical examiner's testimony for the prosecution who previously said Martin could have survived and suffered up to 10 minutes after he was shot. Di Maio said shot in the heart, Martin would have been unconscious in 10 to 15 seconds.
DI MAIO: He's going to be dead within one to three minutes after being shot in this case.
SAVIDGE: Finally, Di Maio testified that Zimmerman's injuries also fit his account saying his review of photographs taken that night indicated Zimmerman's head had suffered at least six impacts against a hard surface.
UNIDENTIFIED MALE: Is this injury consistent with Mr. Zimmerman's head having impacted a sidewalk?
DI MAIO: Yes, sir.
SAVIDGE: The prosecution jumped on a key question that the defense expert couldn't answer.
BERNIE DE LA RIONDA, ASSISTANT STATE ATTORNEY: You're not testifying here as to who started what led up to the death of Trayvon Martin?
DI MAIO: That is correct sir.
DE LA RIONDA: And you're not saying as to who attacked who, whether it was George Zimmerman who attacked Trayvon Martin, or whether it was Trayvon Martin who attacked George Zimmerman. You can't say into that, correct?
DI MAIO: That's correct, sir.
DE LA RIONDA: In fact, you can't testify as to who threw the first punch? DI MAIO: That's correct, sir.
DE LA RIONDA: And you can't say whether it was Trayvon Martin defending himself or George Zimmerman defending himself, in terms of when this first started?
DI MAIO: When it first started, that's correct, sir.
SAVIDGE: Prosecutor Bernie de la Rionda got the witness to admit the defense was paying Di Maio $400 an hour for his expertise, but Di Maio said the case didn't require a lot of his time.
DI MAIO: Up to yesterday, $2400. This is not exactly a complicated case, forensically.
SAVIDGE: The state was also able to get the pathologist to say it's possible Trayvon Martin could have been trying to move away just before the shot was fired.
DE LA RIONDA: And at that point you don't know if Trayvon Martin was backing up, backing away in terms of providing an angle or whether he was going forward, you can't say?
DI MAIO: All I said was it's consistent with his account, Mr. Zimmerman's account, that's all.
DE LA RIONDA: But it's also consistent with Trayvon Martin pulling back in terms of providing the same angle?
DI MAIO: I told you that, too, yes, sir.
SAVIDGE: The last testimony of the day was from Zimmerman's former neighbor too ill to appear in person. Eloise Dilligard joined a growing list of witnesses who said she believes the voice screaming for help sounded like George Zimmerman.
ELOISE DILLIGARD, GEORGE ZIMMERMAN'S FORMER NEIGHBOR: Based on the fact that I've only heard George's voice and it's a light male voice, I would say that it was his.
MARK O'MARA, ZIMMERMAN DEFENSE ATTORNEY: And when you say you've heard him talk, tell us again, about how long you've known him?
DILLIGARD: By that time, it was two and a half years.
SAVIDGE: Perhaps the most powerful statement made in court today didn't take place on the stand, but when Mark O'Mara said the defense planned to rest, Wednesday.
Martin Savidge, CNN, Sanford, Florida.
COOPER: I want to dig deeper into all the day's events with our panel. Legal analyst and former federal prosecutor Sunny Hostin, former Los Angeles deputy district attorney Marsha Clark, her latest "Rachel Knight Legal Thriller" is titled "Killer Ambition." At the defense table, Danny Cevallos and Mark Geragos. Mark's latest book, "Mistrial: An Inside Look at How the Criminal Justice System Works," and sometimes doesn't.
Also forensic pathologist Lawrence Kobilinsky of the John J. College of Criminal Justice here in Manhattan.
Mark, first of all, just about that neighbor who testified, do you think anybody buys that? I mean, if some neighbor of mine testified about what my voice sounds like when I'm screaming, I mean, how would a neighbor know this?
MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: You know, there's a more cynical view as to why they played that neighbor's video in court today, and I'm not going to inflame what is already an anti- inflammatory situation. I -- no, I don't think anybody is saying this is the (INAUDIBLE) or the ultimate in terms of piece of evidence that they put on. I have to say that I'm a little cynical about this.
COOPER: Sunny, what about you? I mean, you -- how do you think it played in the courtroom? Did it make any sense to you?
SUNNY HOSTIN, CNN LEGAL ANALYST: Not really. I mean, it's sort of the law of diminishing returns now. When you first have George Zimmerman's mother and uncle, saying those are his cries for help on that tape. I think that's OK. I think even if you have some close friends saying, OK, you know, those were his cries. But now you've got everybody but, you know, the mailman saying those were his cries.
And I think the -- you know, the defense is in trouble now because what they -- what was very effective at one point now is sort of like a joke. Everyone in the courtroom -- in the courthouse kind of joking about it right now. So I think they've overstepped at this point.
COOPER: Marcia, we were talking about this I think it was just last night about the idea of kind of over trying this case. Do you think that's an example of over trying the case or do you think there are other motives here for bringing that person in?
MARCIA CLARK, FORMER L.A. DEPUTY DISTRICT ATTORNEY: Yes, you know, it's always a danger when you over play your hand and I think that they really played on this 911 call so heavily already and then piling on with this last witness, which, you know, you've already made the point and so has Mark. It's really kind of obvious what they did with this witness. And you can really -- you can very much alienate your jury.
If they see that you're playing your hand this way and manipulating them this way. So I'm not so sure it did them more good than harm. Yes, I'm not sure about that at all.
MORGAN: Let's talk about the medical examiner witness, the forensic witness for the defense, Dr. Di Maio. I want to play something that he said. He was clearly a much more confident witness than the medical examiner who testified for the prosecution about his notes in front of him, didn't seem to know much about the case, and seems to be changing his opinions.
I want to play some sound from what Dr. Di Maio said on the stand today.
(BEGIN VIDEO CLIP)
DE LA RIONDA: If you pulled my heart out now I could keep talking and just keep talking and talking and talking, for -- and just talking and talking and talking without a heart?
DI MAIO: That's right.
DE LA RIONDA: OK --
DE LA RIONDA: For about 15 seconds or so.
DI MAIO: Right. It's between 10 and 15 seconds. It's dependent on the oxygen supply to the head, and that's why some of the SWAT people will prefer shooting somebody in the head.
DE LA RIONDA: Right.
DI MAIO: If it's a situation where the person has like a gun on somebody else.
DE LA RIONDA: OK. Now even though my heart is gone, I would still feel some pain or would I not?
DI MAIO: Well, yes, you'd still feel pain.
(END VIDEO CLIP)
COOPER: Dr. Kobilinsky, is this true? I find this fascinating that you could actually live for 15 seconds or speak for 15 seconds with your heart ripped out?
LAWRENCE KOBILINSKY, FORENSIC SCIENTIST: Well, when the heart stops beating, you have clinical death. And you have a depletion of oxygen to the brain. But as Dr. Di Maio pointed out there is reserve of oxygen where the brain functions fairly well for about 15 or 20 seconds. Thereafter, cells start to die by about five or six minutes, the entire brain is dead and the brain waves go flat.
You really are dead legally and so I think what he said was very crucial because we know that George Zimmerman said that after he shot Trayvon Martin, Martin -- Trayvon Martin said, you got me. So he could speak and we also had to explain the reason why Trayvon Martin's arms were underneath kind of clutching at his chest. He had to be able to move, and so this would explain that.
COOPER: So this really -- Danny, this really bolsters on the defense's case here. It verifies -- if you believe this witness -- what George Zimmerman's story is. DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Of course, and it's more than that. I mean, this is an example of a terrific expert. A terrific pathologist who what he does he uses imagery to drive really complex issues home. I mean, we're talking about some -- even though he says it's not a complex case and he's probably right from a forensic standpoint, talking about the operations of the heart and how it affects the brain and how long you can live.
He uses some very simple images. The idea of someone reaching into your heart and yanking it out. Even though none of us have seen that, except maybe in a movie, that we can imagine that and that drives it home. And I think this underscores the importance of having an expert that not only knows the science but able secondly to communicate it. If they can't communicate it, they're not worth what you pay them.
COOPER: Mark, you've used this guy on the stand in cases of your own. Does the jury -- you know, they got out on evidence today that he's paid, he's been paid so far some $2,000, $2400. Does the jury hold that against a witness like him?
GERAGOS: No, but I do because I've never gotten away with only paying him 2400 bucks.
I -- that is, I asked Marcia. I can't remember the last defense forensic expert who only charged $2400. I mean, it's shocking to me, number one. No, I don't think they hold it against him. And especially when you contrast it with the M.E. for the state who was, you know, I'm sure a very nice man but not the most effective communicator.
I think that the reason, it's not -- it's not the tail wagging of the dog. They are not effective because they are a superstar. They achieve superstar status because they are effective in the way they communicate to jurors and to lay people and that's what you want. I mean, the lawyers that are best, the people that are best in a courtroom are ones that can take what are seemingly complex concepts and distill them down.
GERAGOS: And he's clearly, one of those guy who can do it.
COOPER: We've got to take a quick break. Dr. Kobilinsky is going to be back again tonight on our 10:00 special, our hour-long special on the trial.
Everyone else, stick around. We're going to take you behind the scenes in the making of that computerized crime reenactment. The judge now saying she's going to wait until tomorrow to rule on whether or not that will be allowed in. The court is still in session, though.
Let us know what you think. Follow me on Twitter @Andersoncooper. I'll be tweeting tonight. And later, that horrific train wreck in Canada, breaking news, indications of possible, possible foul play.
COOPER: Again, the Zimmerman trial going into extra hours tonight. The defense fighting to enter a computer reenactment in the deadly Martin-Zimmerman confrontation into evidence. The prosecution saying it would prejudice the jury. The judge promising to rule on it tomorrow morning, on Wednesday morning. Now whatever the decision the video's technical sophistication is pretty remarkable. In fact it's straight out of Hollywood.
Details tonight from Randi Kaye.
RANDI KAYE, CNN CORRESPONDENT (voice-over): This is one picture of what might have happened in the moments before Trayvon Martin was killed. This 3-D computer animation of the confrontation between Trayvon Martin and George Zimmerman.
The reenactment video comes from animation expert Daniel Schumaker, a witness for the defense. Schumaker's company Contrast Forensics claims to be the only company in the United States with wireless motion capture technology for crime scene and accident reconstruction. He uses a motion capture suit to track the movements.
On the company's YouTube channel we found this reenactment from another case. Schumaker reconstructed a poor quality security camera video showing a pedestrian hit by a vehicle. See how his wireless motion capture suit records the person's movements at every location? He uses what's called accelerometers, 16 of them in fact, to get his most accurate recording of a person's movements in real time.
He used to use a tape measure then lasers to measure a crime scene. Now he creates a series of points at a scene, sometimes as many as 500, all in 3-D space. Schumaker says it's the most accurate reconstruction tool on the market.
DANIEL SCHUMAKER, ANIMATION EXPERT: The laser follows me around, so it only takes one person to operate.
KAYE: In court Schumaker told the judge how he created the model in this case and whether or not it matched the same conditions as the night Zimmerman killed Martin.
UNIDENTIFIED MALE: Talk to me about the conditions in which that was filmed, assume that for example it was filmed in the daytime.
UNIDENTIFIED MALE: OK. I assumed it wasn't raining?
UNIDENTIFIED MALE: Grass wasn't slick?
UNIDENTIFIED MALE: OK. There weren't these other items of physical evidence out there?
KAYE: Schumaker said he recreated the animation of the confrontation by simply recreating the witness statements that are not in dispute.
SCHUMAKER: The scenarios that can be created are consistent with testimony witnesses and evidence at the scene.
KAYE (on camera): Still, the prosecution argued against showing the animation to the jury claiming it's an inaccurate depiction of the confrontation. Schumaker's technology and others like it are also used by police agencies, even by the entertainment industry for animated movies like "Avatar."
SCHUMAKER: The suit that I have, it was used in "Avatar", "Iron Man", "X-Men", and they use it for creating movements of the characters in the movies, and it also is used in games, gaming like "Madison Football."
KAYE (voice-over): As we wait for the judge to rule on whether the animation can be shown to the jury, Schumaker says if it is rejected, it will be the first time in his 13 years doing this that his animations recreations were not allowed to be used.
Randi Kaye, CNN, New York.
COOPER: Well, this obviously is going to be a very important ruling for the defense and the prosecution. Let's go back to our panel, Sunny Hostin, Marcia Clark, Danny Cevallos, and Mark Geragos.
Just -- any of the four of you, do any of you believe this judge is going to admit this into evidence? OK.
CLARK: The resounding silence.
COOPER: All right. Marcia Clark, why not? Just too prejudicial and too -- I mean, too Hollywood basically?
CLARK: No, not too Hollywood, Anderson. You have to have a certain level of accuracy and recreation of the actual conditions. So as was pointed out in some of the questioning, it wasn't raining, it wasn't nighttime, you didn't have certain other physical pieces of evidence in your scene that were present at the time.
In order to make this relevant and in order to make it more probative that prejudicial as we say in the law, you have to show that kind of accuracy and he doesn't have it. I'm surprised he said he's never been refused admission of this kind of reenactment before but it may be because he has not offered it in a criminal case before. And a criminal case standard is pretty high.
CLARK: And I don't think he's going to make it.
COOPER: Danny, you think that's the case? That he hasn't -- because I mean, in this video, you see Trayvon Martin hitting George Zimmerman first. There's -- that's -- I mean, that's George Zimmerman's side of the story.
CEVALLOS: Exactly. What they're trying to do is admit this as substantive evidence so it has to be meet a higher bar. Now we can talk about "Iron Man" suits and video games, and I would agree that if these two parties, Trayvon and Zimmerman, have been wearing these suits at the time of the incident, then I think this would probably be an admissible video, but that's the problem.
It's the underlying data that's being fed into this super computer.
CEVALLOS: What is that data? Well, it's based on statements. I mean, the data coming in is probably questionable. That's really what the prosecution's argument is. I mean, if it was merely just a demonstrative exhibit, the standard is much lower. But overall, I mean, yes, the science is good, the technology is good, but that's only good for "Iron Man." It's not good if the underlying data doesn't support or demonstrate accurately what happened.
COOPER: Are you surprised, Mark, that it has gotten this far in terms of the judge giving so much, you know, to each side to discuss this and now she's going to wait until tomorrow to rule on this?
GERAGOS: No, not at all. I agree or hate to sound like an echo chamber here, but my guess is, and I'm sure I'll get an e-mail from this gentleman tonight, but my guess is that he's always had one of these in a civil case where you're fighting over money. And this is not a civil case, obviously. Having said that, I've seen and I've actually been on the receiving end in the L.A. County DA's office where they've had some not quite animated but murder cases where they've had somebody throwing, for instance, a watermelon in their backyard to try to demonstrate how the murder took place, and that has been admissible.
I think the reason the judge actually is struggling with this is there is a good or some case law which would suggest that when the defense has a theory, and they've got a recreation of it, that they can get that in, and the problem is, is how they have recreated it here, and I think that's what she's struggling with.
I think her honor is struggling with the idea of well, even if he's basing it on what George Zimmerman's account is, is the way that they've done it true to it like a hypothetical question so to speak, or is this really taking some liberties? And she doesn't want to be in a position where in the unlikely event that they get a conviction, that this goes up on appeal and some justice on the Court of Appeal rules, hey, you should have let that in. That was an important piece of defense evidence and therefore we're going to reverse a -- this unlikely conviction.
COOPER: Sunny, they're also arguing and still arguing right now, the court is still in session, this is still being discussed, about some texts or tweets apparently in which Trayvon Martin had seemed to have a conversation indicating he knew how to fight or had been in fights. The prosecution is saying look, this is prejudicial. You know, basically trying to tarnish the -- you know, the memory of Trayvon Martin. The defense is saying no, this goes to whether or not he knew how to fight, he knew how to throw a punch?
HOSTIN: Yes. I've got to tell you, first of all, I mean, this is like the marathon hearing day. Because they've been at this for quite some time, and I'm sure everyone is exhausted. This is an issue that has been sort of looming over this trial for awhile. We heard about at pretrial about these text messages, these pictures of Trayvon Martin holding a gun, perhaps -- conducting some sort of transaction to buy a gun.
You know, I don't know that this type of evidence comes in. I mean, if the judge gave any indication of where she was leaning pretrial, she said pretrial, no, no, no, you're not going to talk about this in opening. This is not coming in. Now they're revisiting it at the end of their case. Of course, they would like to get this information in. But I think it's -- first of all, it's not relevant. Even if it's relevant, it's so -- it's more prejudicial than probative and it's just speculative.
HOSTIN: So I -- I don't think it was going to come in.
GERAGOS: Sunny, I was --
HOSTIN: Yes, Mark? Yes, Mark?
GERAGOS: I didn't hear -- I didn't hear the arguments. Did the defense -- did the defense argue for this admission that once the prosecution brought up the MMA fighting from the records, that this puts that onto the table? Was that the defense argument?
COOPER: Yes, the -- what the argument that was just made, and I know, Sunny, you're outside the courtroom because you've been on the show, but while we've been discussing, I just got this as a tweet, one of the arguments the defense is making, I don't know whether they specifically reference the MMA thing but they said that the state -- that it's not about reputation. It's about physical capabilities, about Martin's knowledge of fighting, knew what it was like to fight from the bottom, and apparently there have been a tweet from somebody saying to Martin -- to Trayvon Martin, when are you going to teach me to fight? Defense saying, well, that's indication that that he knew how to fight and was, you know, had been discussing -- (CROSSTALK)
GERAGOS: Right. See, I can see -- I can see where the defense would be arguing, look, there's been testimony about somebody on top, MMA style, or pound and ground and things of that nature and that the prosecution got in the references in the records to MMA fighting, which then caused that, you know, the trainer to come in yesterday, and that would be -- she may struggle -- her honor may struggle with this and she may do a Solomon-like thing that a lot of judges do. She may eliminate the animation and say, OK, I'm going to take that away but I'm going to let you have the tweets.
COOPER: All right. Everybody, stay with us.
Just ahead, we're going to examine the charge against George Zimmerman. Obviously, you know, he's charged with second-degree murder but there is another option. Prosecutors could ask the jury to consider a lesser charge that could still put him behind bars for decades if he's convicted. We'll talk about the likelihood of that.
Also, investigators interviewed the pilot from the Asiana Airlines crash for two days. The latest on what they found out including what the plane was flying way too slowly. We know it was flying too slowly. We're going to try to figure out why that was, coming up.
COOPER: Well, there's been a lot of talk about whether George Zimmerman was overcharged when the decision came that he would face second-degree murder in the Trayvon Martin shooting. The prosecution still has the option to go for a lesser charge if they asked the judge and she allows it. Because of a statute in Florida, Zimmerman, if -- if he is convicted of a lesser charge, he'd still face decades in jail.
Ashleigh Banfield investigates.
JUDGE DEBRA NELSON, SEMINOLE COUNTY CIRCUIT COURT We're on the record, case number 12CF10838, State Versus George Zimmerman.
ASHLEIGH BANFIELD, CNN CORRESPONDENT (voice-over): The prosecution wants to see George Zimmerman behind bars for the rest of his life, but to do so, they need to get a second-degree murder conviction. And to do that, prosecution must prove beyond a reasonable doubt that Zimmerman intended to kill Trayvon Martin out of hatred.
JOHN GUY, ASSISTANT STATE PROSECUTOR: Trayvon Martin was murdered in the back of two sets of townhomes. There's no street lighting back there. There's no pole lights. There were one or two porch lights on.
DON WEST, ZIMMERMAN'S ATTORNEY: George Zimmerman is not guilty of murder. He shot Trayvon Martin in self-defense after being viciously attacked. BANFIELD: But if the prosecutors see their case slipping away, there is another option that could still put Zimmerman behind bars for years. If requested and allowed by the judge, the prosecutors can ask the jury to consider lesser charges like aggravated assault, which still carries the potential for decades in prison due to a Florida state statute called the 10-20 life law. It's dubbed the use a gun and you're done law after a popular PSA campaign that newly-elected Jeb Bush championed and signed into law back in 1999.
It basically means with certain crimes in the state of Florida, if you use a gun you face enhanced time in prison or mandatory minimum sentences like ten years for showing a gun, 20 years for firing it, and 25 to life if you injure or kill someone.
Now, California is the only other state to have this specific law but a lot of states have something called gun enhancement laws on the books. They basically bump up the maximum time but you might spend in prison. The critics say the rules just don't leave room for interpretation and they argue that a judge is better equipped to use his or her discretion when assigning prison time, than say a legislature is.
BERNIE DE LA RIONDA, STATE PROSECUTOR: You would expect the blood in the sweatshirt, correct?
BANFIELD: As for the Zimmerman case, many legal experts say the prosecutors may have to include those lesser charges for the jury to consider maybe like manslaughter, which in this case carries a maximum sentence of 15 years, unless, of course, a gun is used, and then that time is doubled. In the end, the prosecution's level of confidence will likely determine just what charges they will go after.
Ashley Banfield, CNN. Florida.
COOPER: Our panel joins us again.
CNN legal analyst and former federal prosecutor Sunny Hostin, former L.A. deputy district attorney Marcia Clark, criminal defense attorney Danny Cevallos and Mark Geragos.
So Sunny, based on how the trial has gone so far, what do you think the chances are that the jury will be instructed if in an opt is for a lesser charge?
SUNNY HOSTIN, CNN LEGAL ANALYST: Well, I think there is no question the jury will be charged on second degree and -- second degree murder and manslaughter. I mean, that's a lesser included offense. And the way I read the statute, it has to be done. And I suspect that the government is going to request it. There is evidence to support manslaughter. So, this jury will have a choice of what to convict George Zimmerman on, if they convict him at all.
COOPER: And Marcia, that's how it goes. It's up to the jury. They can go for second-degree murder or they can go for manslaughter. It's not one or the other?
CLARK: Exactly. And Anderson, yes, it's very, very common. I mean, manslaughter is what's called a lesser included offense within second- degree murder and it's a rare case when the manslaughter instruction is not give when you have a murder -- when you have a murder charge like this and the jury makes the call.
COOPER: But Marcia, you think that in the summation by the prosecution, that once they are allowed to give their version of events and kind of tie all the pieces together, you think they may still be able to make a second-degree murder case?
CLARK: It can happen, Anderson. I mean, we feel the way we feel. But remember that, you know, it is an ongoing moving thing. Minute by minute we dissect what happened the day before and the hour before. But what we forgot are many of the inconsistent statements, Rachel Jeantel's testimony. There is a great deal that the prosecution has shown, but had been forgotten because we have been so focus on what's has been happening, you know up to the minute, when the prosecutor actually stands up and puts it together, you may see a very much more compelling picture more indicative of second-degree murder than manslaughter. That's possible.
COOPER: Mark, from the defense prospective, Mark, does it make all that much difference? Because I mean, as we just saw on the piece of the jury, acquit Zimmerman on second-degree murder but convict him of a lesser charge, some on those lesser charges in Florida carried present terms comparable to murder conviction.
GERAGOS: You know, it is ironic I suppose, because a lot of case is it's the defense who wants the lesser included and presumably because you have a lesser punishment. Here in California, remember how this works. What is explained to the jury is first you have to decide the murder charge. If you find not guilty on the murder, then you work down to the manslaughter, basically, the difference between the two is whether or not there is malice. So all of this talk about ill will and the level and intent and everything else is for the jury to decide. If they can't find malice, then they work down.
The irony as a I said though, is normally the defense would want the lesser because it's punishable by a much less or it doesn't have what is the L next to it for life. But here, you have that. So, the defense is going to be in the position of saying no, we want all or nothing. The judge is going to give the lesser included. It's a no- brainer, so to speak, and then it is going to be up to the jury to decide whether once they make the decision, if they find not guilty on the murder, then they have to move to the manslaughter, find not guilty there, and then boom --
GERAGOS: You're done.
COOPER: Danny, what school of thought are you on? Because do you believe that it's a mistake for the prosecutor to overcharge, if that -- if it turns out second-degree murder isn't what they go for, or do you think that's a smart thing for the prosecutors to do --
CEVALLOS: I don't think it's a mistake. And since I'm not a prosecutor, I can't speak to it. But I think there many critics who say that this is routine practice, to overcharge. But then you overcharge, you also hold yourself to a higher burden. Commentators said the same thing about the Casey Anthony case. And I think it is these cases that people perceived as overcharge. There is the chance by gambling and over charging you may sour a jury to that lesser included offense that you could have gotten away with the first time.
Now, critics of what is perceive is overcharging say that it's a tool. If you overcharge, then you can get the defendant to come to the table and say look, if your knees are rattling about second-degree murder, let's talk manslaughter, let's talk aggravated assault. And if your client is in, in custody that is, that usually softens them up and maybe they are more willing to think about it after a few months.
COOPER: All right, Sunny Hostin, Marcia Clark, Danny Cevellos, Mark Geragos, thanks very much.
Quick reminder tonight and every night of the trial at 10:00 p.m. eastern, a full hour of the day in court, what to expect in the case, self-defense or murder, the George Zimmerman trial and AC 360 Special Report starts at 10:00, about an hour and 23 minutes from now.
Up next, what federal investigators are focusing on trying to determine the cause of the Asiana airways crash and also the heroism, one of the flight attendant who worried only about her passengers.
Plus, breaking news tonight, police said they have found evidence, a criminal act may be connected to that runaway train that derailed and exploded in Canada. At least 15 people are dead, dozens more are still missing. More on that ahead.
COOPER: Breaking news tonight in Canada. Investigators say there is evidence of criminal tampering aboard a train that derailed and exploded over the weekend. But police in Quebec have not revealed what the evidence is.
Now, earlier they were checking to see if the brakes were disabled. No one was at the controls at the time of the accident. The runaway train was loaded with crude oil when it derailed, burst into an inferno that wiped out part of a town. At least 15 people were killed, 35 others are still missing. The railway company said today that firefighters may have shutdown an engine that powers the brakes when the fire broke out aboard the train before it derailed.
In San Francisco tonight, investigators appear to be making progress in determining what caused that Asiana airways jet to crash on Saturday kill two passenger? Now, late this afternoon, the head of the National Transportation Safety board released new details on the investigation. The pilot actually in the driver's seat was still training to fly the Boeing 777 aircraft, although two experienced pilots were in the cockpit with him. The key points to investigation, the speed of the jet, operation of the instruments and pilot performance.
And the latest tonight from Dan Simon.
DAN SIMON, CNN CORRESPONDENT (voice-over): Investigators gathering perhaps the most crucial evidence in the investigation, in depth interviews with the pilots of the plane.
DEBORAH HERSMAN, DIRECTOR, NATIONAL TRANSPORTATION SAFETY BOARD: All of the crew members have been very cooperative and very forthright with our team.
SIMON: It's clear the plane was flying too slowly. Three seconds before the crash it was coming in a just 103 knots, it needed to be at 137 knots in order to land safely.
So why was the plane so slow? Initially views of the flight data recorders don't appear to show any mechanical problems with the aircraft before the crash. The pilots told NTSB investigators they set the auto throttle to maintain descent speed. Investigators will now determine if it was set properly.
HERSMAN: We are now going to be looking at flight data recorder information to validate parameters associated with the auto pilot and automation, things like the auto throttles. We need to work to understand what the different modes are, what can be selected and what the crew understood.
SIMON: What the crew told investigators they did understand too late was that the aircraft was way too low and slow.
HERSMAN: We have a flying pilot, and we have two other pilots that are in the cockpit and they have a monitoring function. One of the very critical things that needs to be monitored on an approach to landing is speed, and so we need to understand what was going on in the cockpit and also what was going on with the aircraft.
SIMON: The Asiana flight crew was in the tested for drugs and alcohol after the crash as a U.S. flight crew would have been. The NTSB also confirmed that at least one emergency chute inflated inside the plane. The CEO of Asiana airlines said he does not believe the plane it's such was faulty but did not suggest the pilots were at fault, either.
The NTSB will interview the entire Asiana crew, including the flight attendants who are credited with helping to save lives after the crash. The NTSB confirmed that two flight attendants were ejected right after the first impact.
Flight attendant Yoon Hye Lee was the last person to leave the aircraft and reportedly carried injured passengers, some twice her size on her back to safety, everyone though she herself had a fractured tailbone. Police says she didn't even realized her injury until everyone was safety off the plane.
(END VIDEOTAPE) COOPER: And Dan Simon joins us.
Now, that's incredible about this flight attendant. I understand she revealed some information about a conversation she had with the pilot immediately after the crash. What did she say?
SIMON: That's exactly right. You know, this is a veteran flight attendant. She had been with the airline for nearly two decades. So, the plane has just crashed. She then goes to the cockpit doors, knocks on the door to see if the pilots were OK. She then asks if she should begin the evacuation procedures and she is initially told no, which is very puzzling and of course, that's going to be part of the investigation. You certainly wouldn't want to have those passengers on the plane a moment longer than they have to be.
COOPER: It's awesome what she did. Dan Simon, thanks.
The investigation into what cause the crash is meticulous, obviously. It will be a long time before the NTSB reaches a conclusion. But tonight, we want to get an idea of what it was like inside the cockpit as the crew approaching San Francisco airport on Saturday.
Gary Tuchman takes a look.
GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): We are flying into San Francisco international airport.
KAREEM FAHMI, CALIFORNIA AIRWAYS: So here we are approaching the runway 28 left like the Asiana flight 214 crew was doing.
TUCHMAN: We're flying on a flight simulator at a California airways training facility in Hayward, California.
FAHMI: We're coming in here, just like the Asiana did at 137 knots this is exactly what their view out the window would have looked like that day flying the 777.
TUCHMAN: Instructor Kareem Fahmi is in the captain seat. At a certain point right about here, the pilot disconnects the auto pilot. This is quite a common because it allows the crew to continue to maintain proficiency in actually flying the airplane as opposed to auto pilot operations.
TUCHMAN: But it can be done. You can land without doing anything?
FAHMI: Absolutely. If you wanted to, you can this airplane would land itself and stop without you touching a button.
TUCHMAN: An electronic guide slope system that a system landing that was out of commission at runway 28 left when the plane crashed. But on a perfectly clear day, four lights on the side of the a runway give the guidance you need. When two are red and two are white, your altitude is perfect. FAHMI: If I see all red, it means I'm too low. If I see all white, it means I'm too high. If I see that I'm going to correct that immediately. And addition to that, you as my co-pilot, will correct me by announcing that your either too low or too high.
TUCHMAN: We continue to dissent. We're now about to land on the runway where the accident happened.
FAHMI: We're slightly slow and slightly low so I'm going to correct right here by adding a little power, there we go and now we have our two reds and two whites.
TUCHMAN: I see the wall the pilot hit but we are not going to hit that.
FAHMI: That's right. We're coming in nicely. We are now slightly high but will reduce and compensate. As we come down, we begin to bring the nose of the airplane back and we touchdown.
TUCHMAN: A successful and typical landing. Now, it's time for a much different landing.
FAHMI: Well now the airplane is a little low. In addition, look at the air speed. The air speed is dropping below the target value.
TUCHMAN: We're dropping rapidly under 137 knots or 157 miles per hour, the target speed of the 777 landing, but we now know, the Asiana flight that crash was going around 40 miles per hour slower at that point and for some reason, didn't speed up.
FAHMI: Right now is my chance to correct the problem by adding full power. I'm very low, and I have right now I really should be aborting the landing and going around.
TUCHMAN: You have a lot of time to do it.
FAHMI: I have a lot of time right here to fix the problem and avoid the crash.
TUCHMAN: And I have a lot of time to help you?
FAHMI: Yes., you do.
TUCHMAN: And now we are 103, the same speed --
FAHMI: the same speed and yet now, it's too late. I add power but boom, we hit the seawall and.
TUCHMAN: It crashed.
FAHMI: And we crashed and now we spin all the way around and very bad things happen. So as you see, I had plenty of time to abort the landing and go around and try again in a more safe fashion.
TUCHMAN: An inexplicable accident to this flight instructor and so many others. (END VIDEOTAPE)
COOPER: Gary joins us now from San Francisco. It is interesting to see how much time they would have had to actually correct the problem with those lights blinking telling them that, you know, things weren't going right, as well as the instrumentation. How often the pilots use auto pilot to actually land a plane?
TUCHMAN: Very common, Anderson. Most modern passenger jets, they have auto pilot that can land a plane itself and it is actually mandated that if the weather is bad, bad visual flight rules and they can't see, (INAUDIBLE), that they have to use the auto pilot.
I have a friend who currently flies the 777 and he says when there is visual flying, he always lands the plane himself. But if he wanted to, he could put the information in the computer, he could sit back and he could just watch the plane land and watch the plane stop.
Gary, appreciate it. Thanks very much.
Up next, he wore a cowboy hat and got pulled over by a traffic police officer. These are just two of the shocking revelations about Osama bin Laden's life on the run revealed in a new report to tell you about.
Also ahead, you are going to hear from the women kidnapped, held captive in Cleveland. They are breaking the silence on their own terms.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I'm getting stronger each day and having my privacy has helped immensely.
(END VIDEO CLIP)
COOPER: Well, for the first time we're hearing from the women abducted and held captive in a house for nine, ten and one case 11 years. It is unimaginable horror, obviously, the captivity and abuse they suffered at hands of Ariel Castro who allegedly beat, raped and starved them. Castro now faces 329 counts. As for his alleged victim as they address the world for the first time since the rescue two months ago, their faces are brave, their words full of gratitude.
Pamela Brown reports.
PAMELA BROWN, CNN CORRESPONDENT (voice-over): In a four-minute You Tube video, Amanda Berry, Gina Dejesus and Michelle Knight are speaking publicly for the first time to say simply, thanks. AMANDA BERRY, KIDNAPPING VICTIM: I want to thank everyone that helped me and my family through this entire ordeal. Everyone who has been that has support us has been a blessing to have a such an outpouring of love and kindness.
GINA DEJESUS, KIDNAPPING VICTIM: I would say thank you for the support.
MICHELLE KNIGHT, KIDNAPPING VICTIM: Thank you everyone for your love, support and donations, which helped me build a brand-new life.
BROWN: More than a million dollars has been donated to the courage fund to help the women heal after a decade of alleged abuse and captivity by Ariel Castro. Castro is charged with beating, raping, and starving them, even forcing the miscarriage of a baby he fathered, yet in the video made last week, the women seem upbeat, not bitter.
BERRY: I'm getting stronger each day and having my privacy helps immensely. I ask that everyone continues to respect our privacy and give us time to have a normal life.
KNIGHT: Be positive, it's important to give than to receive. Thank you for all your prayers.
BROWN: Michelle Knight held the longest appeared to suffer the worst abuse. Here she hints at the pain of the ordeal and what she learned from it.
KNIGHT: I just want everyone to know I'm doing just fine. I may have been through held and back, but I am strong enough to walk through hell with a smile on my face and with my head held high. I will not let this situation define who I am. I will define the situation. I don't want to be consumed by ha hatred. With that being said, we need to take a leap of faith and know god is in control. We've been hurt by people, but we need to rely on God as being the judge.
BROWN: They were once known as silent victims, now Amanda Berry, Gina Dejesus and Michelle Knight want the world to know they have a voice and have reclaimed their lives.
KNIGHT: I'm looking forward to my new life. Thank you.
BROWN: Pamela Brown, CNN. New York.
COOPER: We wish them the best.
Let's get caught up on other stories we're following.
Randi Kaye is here with the 360 news and business bulletin -- Randi.
RANDI KAYE, CNN CORRESPONDENT: Osama bin Laden liked to wear a cowboy hat while working in his garden in Pakistan to avoid being identified by satellite and he was not recognized when police pulled over his car because he had shaved his famous beard. These details are listed in a report by a Pakistani commission looking into the U.S. raid that led to his death.
Mixed reports to say about the status of Edward Snowden, a Russian lawmaker tweeted the NSA leaker hold up in Mascow's airport accepted asylum in Venezuela, but later retracted that message. And Wikileaks, which is assisting Snowden, said he's not yet accepted asylum in Venezuela.
And great news for lovers of Twinkies, they are back, back in store shelves beginning Monday with a shelf life of 45 days, nearly twice as long as before. Twinkies production ceased in November when hostess went out of business. But Anderson, the company has been bought by new owners and you know, Twinkie lovers are breathing in sigh of relief.
COOPER: How did they -- I'm not sure how they boosted the life of the Twinkie?
KAYE: They are going to freeze them, actually.
KAYE: Yes. I guess some fans told them they like them to be frozen so they can have them back.
COOPER: OK. There you go, maybe. Thanks. We'll be right back.
COOPER: Ran out of time for "The Ridiculist" tonight. We will see you again one hour from now at 10:00 p.m. Eastern in our special hour- long edition of 360 and the George Zimmerman trial.
"PIERS MORGAN LIVE" starts now.