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Prosecution Questions Gun-Shot Expert in Zimmerman Case.

Aired July 9, 2013 - 13:30   ET




SUZANNE MALVEAUX, CNN ANCHOR: We're keeping a close eye on the live trial. You see George Zimmerman sitting there. We understand the jury is being brought back from their lunch break.

The defense attorneys, Zimmerman's defense attorneys, they brought earlier today a forensic pathologist who will be taking the stand, continuing his testimony. He has expertise in gunshot wounds. This is Dr. Vincent Di Maio. He says his analysis of the autopsy photos as well as the firearms report backs up Zimmerman's side of the story. He says he believes it was Trayvon Martin who was on top of Zimmerman after that fight, leaning forward and threatening him.

I want you to listen to this from earlier this morning.


DR. VINCENT DI MAIO, FORENSIC PATHOLOGIST: If you lean over somebody, you will notice that the clothing tends to fall away from the chest. If, instead, you're lying on your back and somebody shoots you, the clothing is going to be against your chest. So the fact that we know 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.


MALVEAUX: I want to bring in our legal analysts to talk about what we've heard this morning, former prosecutor, Sunny Hostin, and criminal defense attorney, Mark Nejame, in Sanford, Florida.

Sunny, I want to start off with you because we've been watching all morning and hearing about the prosecution had his head in his hands and was shaking his hands like this was really damning for their case. First of all, is that true? Do you think that's the way the prosecution took his testimony? And secondly, how are the jurors responding to this?

SUNNY HOSTIN, CNN LEGAL ANALYST: I was in the courtroom and I didn't see the prosecutor's head in his hands. I didn't see that at all and I was looking at the table. The government prosecutors have been writing notes. I did see Bernie de la Rionda sort of scratch his head, but I didn't see despair from that side of the table at all. The jury is riveted. He had them at "hello." Suzanne, he had them at "hello."

MALVEAUX: All right. We're going to get back to you. He had them at "hello." Let's see what he's got after "hello."



BERNIE DE LA RIONDA, PROSECUTOR: We also share another thing in common.


Now, Doctor, you're not saying -- you're not testifying to what led up to the death?

DI MAIO: That's correct, sir.

DE LA RIONDA: You're not saying who attacked who, whether it was George Zimmerman who attacked Trayvon Martin or Trayvon Martin who attacked George Zimmerman? You can't say to that, correct?

DI MAIO: That's correct, sir.

DE LA RIONDA: You can't testify as to who threw the first punch thrown?

DI MAIO: That's correct, sir.

DE LA RIONDA: In fact, you can't testify whether there was a first punch throwing?

DI MAIO: That's correct, sir.

DE LA RIONDA: 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: That's correct, sir.

DE LA RIONDA: You're really testimony is only focusing on at the time of the actual shot, correct? Would that be accurate?

DI MAIO: That's correct, sir.

DE LA RIONDA: OK. And you're not stating here, are you, that everything George Zimmerman stated at the statement you saw, the reenactment is the complete gospel truth?

DI MAIO: That's correct, sir. I'm just stating the nature of the gunshot wound being consistent with his account of how he shot, right.

DE LA RIONDA: Were you aware, sir, that the defendant had given one, two, three, I believe at least four, maybe five statements prior to that one?

DI MAIO: I believe you had mentioned that to me, sir.

DE LA RIONDA: I think I mentioned that in your deposition, right?

DI MAIO: Yes, sir.

DE LA RIONDA: Is there a reason why you only focused on the reenactment as opposed to the original statement that he gave?

DI MAIO: Well, because I know what the reenactment said and he's holding to that account. What I'm saying is that what I did was I evaluated the objective evidence in regards to the account that's being presented here.


DE LA RIONDA: I apologize. Were you finished?

DI MAIO: No, no. That's fine.

DE LA RIONDA: OK. Let me know if I interrupt. I apologize. I also told the court reporter that I would be slow. If you can do the same thing, she needs to get everything down. When we're talking to each other, make sure we don't talk over each other.

DI MAIO: Yes, sir.

DE LA RIONDA: Am I correct in stating that you believe that the first statement is the most accurate statement?

DI MAIO: The first statement is usually more accurate than when given weeks or months later?


DI MAIO: Because you get that in depositions, you know.

DE LA RIONDA: I got you.

You mentioned your prior experience with the medical examiner, you were head of the medical examiner's office in that beautiful city, San Antonio.

DI MAIO: That's correct.

DE LA RIONDA: In fact, when you go to the Alamo right near there, you can go down and go actually to the water. You go down, what, about -- I don't know how deep, how far you go down. You go down somewhat.

DI MAIO: It's about two levels down, you're on the river walk, right.

DE LA RIONDA: You mentioned when you worked there for 15, 20 years?

DI MAIO: 25 years and 10 months.

DE LA RIONDA: OK. Didn't mean to cut it short.

You mentioned, as a medical examiner, it was important for you, was it not, before you render an opinion, to make sure you understood all the facts, correct?

DI MAIO: Depends upon the case. Some cases you want more information. Some cases, it's not necessary. It depends on -- everything is personal.

DE LA RIONDA: I guess what I'm saying is when police bring you a case, the medical examiner, and obviously they bring you the body --

DI MAIO: Right.

DE LA RIONDA: -- and you're start doing the autopsy, you want to know what all the witnesses say. You don't want to pick one witness and say, OK, what did you say. You would want to know what everybody else said to make sure it was consistent with the evidence you saw, correct?

DI MAIO: In most cases, yes.

DE LA RIONDA: In this particular case, you just focused on the defendant's statement and I believe you said Mr. Good's statement, correct?

DI MAIO: I focused on the defendant's statement because that's -- as you pointed out earlier in your cross-examination, that's all that I'm concentrating on. I went to see if his statement was consistent with what I found and what was found as to the gunshot wounds? The rest I can't say.

DE LA RIONDA: Right, because you weren't provided with all the other statements of all the other witnesses, correct?

DI MAIO: But, again, I couldn't say -- I would have to disregard them in regards to the gunshot.


DI MAIO: Because the only one present there is Mr. Zimmerman. You have to go by what he's saying.

DE LA RIONDA: I respectfully beg to differ with you. There was another person there, wasn't there?

DI MAIO: There were a couple other witnesses.

DE LA RIONDA: No, I mean respectfully the other person there is not among us anymore?

DI MAIO: Right. Because he's the only one communicates. That's correct.

DE LA RIONDA: He can't speak because he's dead?

DI MAIO: Yeah.

DE LA RIONDA: OK. Were you aware, by the way, that the deceased, the victim in this case, Trayvon Martin, was on the phone with a lady?

DI MAIO: Yes, sir.

DE LA RIONDA: You didn't review her statement, did you?

DI MAIO: No, sir.

DE LA RIONDA: When you worked with the medical examiner's office as the chief medical examiner, you, in most cases, attempted to find out all the information before you came to an opinion?

DI MAIO: It depends on what the case is about. Often the information from the witnesses goes more towards the manner of death rather than the cause of death. In this case, there's no question of the manner of death.

DE LA RIONDA: So are you suggesting that in all the witnesses' testimony should be disregarded?

DI MAIO: For my purpose, not for the jury, but for my purposes, it's not important in my giving my opinion.

DE LA RIONDA: In terms of your limited opinion in terms of the gunshot wound itself in terms of how it possibly could have occurred?

DI MAIO: Right.

DE LA RIONDA: Is that correct?

DI MAIO: Right. The other statements are for the jury to evaluate, not for me.

DE LA RIONDA: OK. You're not saying that we should just disregard what led up to this, whether somebody was following or whether somebody was attacked? You're not saying that should be disregarded?

DI MAIO: That's not-- right. That's not what I'm doing. The rest of that is the jury. That's why they're sitting there.


DI MAIO: Right.

DE LA RIONDA: I didn't mean to imply that you were saying that. I want to make sure the record was clear.

DI MAIO: Oh, no, no. It's no problem.

DE LA RIONDA: Mr. West asked you a few -- what we refer to as hypotheticals, what if, assuming this fact -- and in order to give an opinion when somebody gives you a hypothetical, it has to be based on facts that are accurate and truthful, correct?

DI MAIO: A hypothetical doesn't have to be true.


DI MAIO: A hypothetical is just supposed this and this happened.

DE LA RIONDA: OK, so we would be speculating or potentially speculating?

DI MAIO: It's not even speculating. You're giving a presentation and asking what is this. It doesn't even get to the speculating.

DE LA RIONDA: OK. And you would agree that at least in the one statement that you relied that I think was either the fourth or fifth statement that Mr. Zimmerman had given, the reenactment, that Mr. Zimmerman has a self-interest, correct, when talking to the police?

DI MAIO: Yes, sir.

DE LA RIONDA: One could even argue he has a bias in not telling the truth?

DI MAIO: One could argue that. I think that's your argument.


Yes, sir.

DE LA RIONDA: You would also agree that if his statement doesn't match the evidence, then it's not the truth, correct?

DI MAIO: That's correct, sir.

DE LA RIONDA: I guess in your -- what you reviewed, you're aware, were you not, that the only person armed out there was George Zimmerman and not Trayvon Martin?

DI MAIO: Yes, sir.

DE LA RIONDA: OK. Were you aware that he wasn't just armed with a firearm but that he was armed with a flashlight?

DI MAIO: Yes, sir. Actually, there's a photograph of the flashlight in the scene photos.

DE LA RIONDA: May I approach to the witness, Your Honor?


DE LA RIONDA: This right here?

DI MAIO: Yes, sir.

DE LA RIONDA: Can this do some damage to somebody?



May I approach the witness, Your Honor?


DI MAIO: I thought it was one of those old, steel heavy things. I wouldn't consider it a really dangerous weapon.

DE LA RIONDA: You think it wouldn't cause bruising like that, real hard, and it wouldn't cause any bruising?

DI MAIO: I think it might cause a bruise but it's just not heavy enough to --


DI MAIO: -- to be of significance.

DE LA RIONDA: You were not provided with the statement of Jane Syderka (ph), who described George Zimmerman on top of the Trayvon Martin before the shooting?

DI MAIO: I was not provided with that statement, that's correct, sir.

DE LA RIONDA: You were not provided with the statement of Saleen (ph), were you?

DI MAIO: No, sir.

DE LA RIONDA: You mentioned you were provided with the statement of John Good. I think you stated originally an audio recorded statement and a written statement he gave, correct?

DI MAIO: Yes, sir.

DE LA RIONDA: Were you aware he gave also an additional sworn statement in which he describes not hearing this at all?


DI MAIO: No, sir. I don't think so.

DE LA RIONDA: Were you aware under oath that he stated he did not hear any -- (MAKING NOISE) -- on concrete at all?

DI MAIO: No, sir.

DE LA RIONDA: I want to go back a little bit about your C.V. and your qualifications that Mr. West talked about in terms of where you've been and that kind of stuff. You mentioned that -- I was curious. You mentioned something about shooting animals. Are we saying this experiment was done while the animal was alive?

DI MAIO: Following federal regulations, yes. What you have to do is the animals have to be kept in a federally approved area and then a veterinarian has to be present at the time of the experiments and the animals have to be anesthetized.

DE LA RIONDA: So then you --


DE LA RIONDA: You started shooting at them? Or how many shots -- how many times were they shot?

DI MAIO: I have to read the paper originally. But it was a test to determine whether the testing method used by firearms examiners was valid.

DE LA RIONDA: You determined it was, correct?

DI MAIO: Yes, sir. It was.

DE LA RIONDA: You also mentioned that you testified all over the world really, I guess, or part of the world?

DI MAIO: A couple of places.

DE LA RIONDA: You testified in criminal matters both for the government or the state and also for the defense, correct?

DI MAIO: Yes, sir.

DE LA RIONDA: In fact, you were asked about several cases you testified on behalf of. I think you testified in the -- you were nice enough to send me and Mr. West your list of your cases at least within the last five years since you've been in private practice.

Is it seven years?

DI MAIO: Six, going on seven now.

DE LA RIONDA: OK. I think you said over 50 times or so, or do you recall the number?

DI MAIO: I don't think I said a number I've testified. As I've pointed out, most of them are civil cases.

DE LA RIONDA: I think one of them you mentioned was the Drew Peterson case, right?

DI MAIO: That was a criminal case, yes.

DE LA RIONDA: Also, the Spector case, right?

DI MAIO: Yes, sir.

DE LA RIONDA: In both of those cases, you testified for the defense.


DE LA RIONDA: By the way, how much are you getting paid to come and testify here today? DI MAIO: Same thing I charge everybody, $400 an hour.


DE LA RIONDA: OK. How much total would that be, you've charged so far? I know you have to take a trip back. But --

DI MAIO: Up to yesterday, $2400. This is not exactly a complicated case forensically.

DE LA RIONDA: OK. You mentioned that -- I think you brought your notes with you, correct?


DE LA RIONDA: I guess most experts have their notes just if something is asked -- what do you do it for, to refresh your memory?

DI MAIO: No. Because if you get a whole bunch of papers and you are only interested in one fact, it's easier to put the fact down. That's all.

DE LA RIONDA: So they're like little cheat notes. I'm not saying anything improper.

DI MAIO: No. I know what you mean.

DE LA RIONDA: Like little bullet type things so you would be able to answer something or --

DI MAIO: Right, bullets.

DE LA RIONDA: I think you prepared a five or six page of notes that you provided to me this morning and to Mr. West?

DI MAIO: Yeah, five pages. Well, it's five pages but it's double space, double sized, so it's probably closer to 10 or eight, something like that.

DE LA RIONDA: I think you also mentioned as part of your review of this case -- obviously, you couldn't be there when the autopsy was done -- so you reviewed the autopsy report, correct?


DE LA RIONDA: Your opinion is in part derived from reviewing Dr. Bao's medical examiner report?

DI MAIO: That's correct.

DE LA RIONDA: In terms of the photographs that were taken but in terms the findings, shot to the heart, correct?

DI MAIO: Right, sir.

DE LA RIONDA: There's no dispute about that. The victim in this case, Trayvon Martin, was shot in the heart?

DI MAIO: That's correct, sir.

DE LA RIONDA: Did I understand you correctly that if you came over here and you pulled my heart out that I could sit there and walk and talk for, how long?

DI MAIO: 10 to 15 seconds, yes.

DE LA RIONDA: OK. 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: About 15 seconds or so?

DI MAIO: Right. That's between 10 and 15 seconds dependent on oxygen supply to the head. That is why some of the SWAT people will prefer shooting somebody in the head if it is a situation where the person has like a gun on somebody else. OK.

DE LA RIONDA: Even though my heart is gone, I would still feel pain or would I not?

DI MAIO: Yeah. You would still feel pain.

DE LA RIONDA: I think you stated that in this case you believe it was 12 to 15 -- or, what did you say, 10 to 15 seconds or 5 to --

DI MAIO: No. What I said is I can't say.


DI MAIO: All I can say is that the minimum amount of time would be between 10 and 15 seconds.

DE LA RIONDA: You said the maximum would be up to three minutes? Did I get that right?

DI MAIO: I said that in all medical probability, the individual would have no cardiac function after -- I said one to three minutes. So three minutes is the outside.

DE LA RIONDA: And by the way, you are not here to testify as to, while this was going on, who was yelling for help, whether it was the victim or George Zimmerman? You can't say, right?

DI MAIO: No, sir. I am not testifying to that.

DE LA RIONDA: You can't testify as to one of the statements that George Zimmerman said where he said he pulled the gun from his holster and shot. You can't say that that happened that way, correct?

DI MAIO: You mean that he pulled the gun out of the holster?

DE LA RIONDA: Yes, sir.

DI MAIO: Right. I can just say that the entries are consistent with how he shot him but not where he got the gun from.

DE LA RIONDA: Right. In terms of the shot being to the chest?

DI MAIO: Right.

DE LA RIONDA: But in terms of how he claims that he grabbed the gun while the other person is kneeling over him or straddling him, how he managed to somehow get the gun out and shoot the other person, you can't say that happened that way or not?

DI MAIO: No. Because -- because you can't tell that by any scientific method.

DE LA RIONDA: But George Zimmerman said it happened that way. That doesn't mean it is true, right?

DI MAIO: As I said, sir, I can't testify to it, so that's it.

DE LA RIONDA: What happens if it was just physically impossible to do what he said happened?

DI MAIO: I would say it.

DE LA RIONDA: But you didn't get a chance to review that and you are not here to testify about whether he took the gun out of the holster the way he did or not?

DI MAIO: Right. Because it is outside my ability to make a conclusion like that.

DE LA RIONDA: OK. You are here focusing on the gun and how close it was to the skin or to the sweatshirt, correct?

DI MAIO: That's correct.

DE LA RIONDA: That is the bottom line.

DI MAIO: In regards to Mr. Martin, that is, yes.


Is it not true, sir, that one possibility, as you stated, is Mr. Martin was over George Zimmerman, the defendant, and he was like this, right? George Zimmerman was on the ground and Mr. Martin is like this on top of him.

DI MAIO: Some way over him. I don't know what angle it is.

DE LA RIONDA: Is it this angle?

DI MAIO: I can't tell you. The reason is is because if you put your hand out, since it rotates, if someone was over horizontally, you could shoot that way. If they are at an angle, you could shoot that way, and you could still get the path. All I can say is consistent with him being over.

DE LA RIONDA: It can be consistent that they were facing each other standing up.

MALVEAUX: Dr. Vincent Di Maio being cross-examined by the prosecution. We are going to take a quick break and then we'll bring it right back to you on the other side.


MALVEAUX: Let's go back live into the courtroom. Dr. Vincent Di Maio is still on the stand on the cross.

DI MAIO: -- the back of the head with the tree branch.

DE LA RIONDA: Or as you he bumped into it?

DI MAIO: Where? The face or the back of the head?

DE LA RIONDA: Either one.

DI MAIO: The problem with tree branches are if you hit it in the face, they're rough and you would expect an abrasion.

DE LA RIONDA: Didn't he have an abrasion on the face?

DI MAIO: No. He doesn't have abrasions.

DE LA RIONDA: What did he have on the --

DI MAIO: That is a contusion. The skin, if the skin is smooth and shiny. An abrasion is a scrape.

DE LA RIONDA: Did he have any abrasions at all?

DI MAIO: Yes, he did. He had --


DE LA RIONDA: No, no. Finish, please. I interrupted you.

DI MAIO: He had a small abrasion on the right side of the nose. And then he had impact-type abrasions on the right area of the temple, the left temple. And on the back, he had the two lacerations.

DE LA RIONDA: I am struggling with you, we're wrestling and all that, and I push you and you hit the tree, couldn't that happen that way?

DI MAIO: From the front?

DE LA RIONDA: From the back, whatever.

DI MAIO: Well, you would have to have a tree branch there, and I didn't see any.

DE LA RIONDA: You didn't?

DI MAIO: But wait a minute. The other thing is if you just bump your head -- wood gives. Originally, police officers carried wooden batons. The reason they carried the wooden batons is they are much less dangerous than metal things. Metal doesn't give. Wood gives. If you hit someone hard enough on the back of the head, yes, you are going to get a laceration.

DE LA RIONDA: I try to simplify things as best as I can, and when it comes to medical stuff -- do you do any gardening?

DI MAIO: My wife does.

DE LA RIONDA: I do gardening. I have a bald head. If I don't wear a ball cap sometimes I come up and I'll hit my head and there will be a bruise or something.


DE LA RIONDA: -- branches. Isn't that possible?

DI MAIO: Yes. An abrasion. I said there were abrasions back here. But what I'm saying is -- whatever.


Now I have lost my train of thought.

DE LA RIONDA: You weren't aware -- and I am showing you, Dr. Di Maio, there were trees back there. At some point, even the defendant acknowledges there was a struggle of some type near those trees.

DI MAIO: My understanding what you were saying was the trees were on the ground, not --

DE LA RIONDA: Oh, I apologize. I'm talking about --


DI MAIO: I saw the pictures and I saw the vertical trees.

DE LA RIONDA: Thank you, Your Honor. I think I'll -- so that's a possibility, correct? At least some of the bruising or contusions?

DI MAIO: You could have one of the injuries from bumping against a tree. That is correct.

DE LA RIONDA: And also some of the injuries that you described to the defendant, George Zimmerman, could be from rolling around on the concrete and hitting the concrete as struggling and fighting.

DI MAIO: Impact on the concrete. That's what I'm saying.

DE LA RIONDA: Right. I mean, that is consistent with what you are saying, impacting the concrete. Is that correct?

DI MAIO: Yes, sir.

DE LA RIONDA: I was curious what you mentioned about Trayvon Martin that you mentioned that you described the injury to his left hand. What did you call it? A --


DI MAIO: An abrasion.


DI MAIO: An abrasion.

DE LA RIONDA: You were agreeing with that assessment, correct?

DI MAIO: Well, he called it, so I have to go with it.

DE LA RIONDA: You saw the photograph, didn't you?

DI MAIO: Yeah. I'm not sure if I did or not.

DE LA RIONDA: OK. Let's assume -- I can show it to you if you want.

DI MAIO: Go ahead. I'm listening to you.

DE LA RIONDA: Assuming that is an abrasion, you believe there may be additional injuries under his knuckles, I think you said?

DI MAIO: No. Those are two separate questions.


DI MAIO: One question was whether it is an abrasion. I can't disagree with the individual who did the autopsy. The next question was if you punch somebody, will you get bruises on your knuckles. And my answer was yes and no.

DE LA RIONDA: You might and might not.

DI MAIO: You might or you might not. If you really suspect something, they should have made a cup into the hand and then examined underneath.

DE LA RIONDA: And I gather, if the person is alive, you're not going to say, hey, let me cut all your knuckles.

DI MAIO: The person is alive, you sit there and wait a day or so, and then you will know whether there is heavy hemorrhage.

DE LA RIONDA: Did you say sometimes you can hit something and not have any hemorrhaging at all?

DI MAIO: Right. What I'm saying is you can get it or you cannot. If you have it and you live a couple of days, you will be able to see it. But the thing is, if it is not there, it is not important.

DE LA RIONDA: I think -- let me understand what you are saying. You can hit somebody and not leave bruising on your knuckles, correct?

DI MAIO: That's correct, sir.

DE LA RIONDA: In other words, George Zimmerman could have hit Trayvon Martin and not left bruising on his knuckles.

DI MAIO: That's correct, sir.

DE LA RIONDA: You were asked a bunch of questions and I think you were shown some photographs.