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JANE VELEZ-MITCHELL

Zimmerman Judge Hears Arguments to Include Recreation Animation

Aired July 9, 2013 - 19:00   ET

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


JANE VELEZ-MITCHELL, HOST: Jane Velez-Mitchell coming to you live from outside the courthouse, right behind me here in Sanford, Florida. Very, very hot Sanford, Florida. And there is a heated debate going on right now over this extraordinary animation that the defense wants the jurors to see.

And the animator, Daniel Schumaker, is on the stand right now. This is the kind of technology used to make movies like "Ironman," but this is no movie. This is a real-life tragedy.

Yes, this animator listened to the explanations and the observations of neighbors and George Zimmerman. But there`s one person he didn`t hear, Trayvon Martin, who`s dead and cannot contribute to this animation. Let`s go right back into court as this epic battle over whether or not this animation will come in continues.

DANIEL SCHUMAKER, ANIMATOR: ... that`s not in the video. You`re expecting something that wasn`t the purpose of the video.

RICH MANTEI, PROSECUTOR: It`s not there.

SCHUMAKER: The purpose of the video isn`t to examine the bullet trajectory and the location of the gun. The purpose of the video is to show relative positions from one person to the other and the position of Mr. Martin on top, where he had to be, consistent with Dr. Di Maio`s testimony, when the gun went off.

MANTEI: Would it shock you if Dr. Di Maio might have testified that there was another position possible for those two bodies?

SCHUMAKER: He mentioned that there was a variable of about two inches.

MANTEI: That`s it?

SCHUMAKER: Correct.

MANTEI: No further questions.

JUDGE DEBRA NELSON, PRESIDING OVER TRIAL: Any re-redirect?

UNIDENTIFIED MALE: No.

NELSON: May Mr. Schumaker be excused?

UNIDENTIFIED MALE: Yes, your honor.

NELSON: Thank you very much. You`re excused.

Any other witnesses from the defense?

UNIDENTIFIED MALE: No, your honor.

NELSON: Any witnesses from the state?

UNIDENTIFIED MALE: No, your honor.

NELSON: Let`s have arguments. This is from who?

UNIDENTIFIED FEMALE: The state.

MARK O`MARA, GEORGE ZIMMERMAN`s DEFENSE ATTORNEY: ... within a presentation under doubt-worthy (ph), you want that initial or are we talking about applicability to this case and this kind of relation now. It seems we`ve gone one to the other and maybe back.

NELSON: Yes, we have.

The state yesterday had indicated that it was not a Daubert issue and this morning indicated it was a Daubert issue. So I don`t know where the state stands as to the request regarding that.

MANTEI: As I put in the second supplemental motion this morning, I do believe that there needs to be a Daubert analysis or Daubert-Frye analysis, Frye, of course, now being such a (UNINTELLIGIBLE). We handle that (ph), as well as the Daubert analysis. Both of those have to apply to the testimony and the animation and so I`m asking for both.

O`MARA: One consideration with Frye, of course, is that is it generally accepted in the community. I don`t think there`s been any counter argument from the state that this is a type of animation new generation that the underlying foundation of this animation, which is the idea of taking data and incorporating it into an accident reconstruction or event reconstruction event has been admitted in court a lot. Has been in by this very witness has testified for the last 14 years in this. He`s never been disqualified as an expert upon his attempt to get it in.

I did -- I will acknowledge before that I did not present industry- wide evidence because honestly, I did not realize that it was going to be a contested issue today.

However, I think even this expert alone has presented that, in his industry, he stays up to the day-to-day or week-to-week information flow concerning the accuracy of the data and software that he uses. That he has been involved in the industry since `95. And for the past 14 years, he`s focused his inquiry and profession on this area. And that he`s presented many, many times. And again has never been excluded.

So to the extent of whether or not it is generally accepted, I would suggest that it is under this now new sort of downwardly to look at, but that is sort of a Pierce consideration as well. For the purpose of this inquiry, the court needs to look at it and say, even though it`s been generally accepted in the past, where this sits here today. It is sort of a Pierce (ph) generation, as well, will it help this jury in consideration.

I do think that, as to that, a sort of outward Pierce (ph) analysis together, is I think what needs to happen is that this court needs to be convinced that it`s accurate, and not that it`s perfect, but that it is an accurate depiction based upon the information available when it was created. It has been, of course, created and re-created several times with -- the most recent generation of it was, in fact, based on some trial testimony, because I foresee that an expert has not only the right but the obligation to make sure that their testimony that they`re going to present, in this case, basically the animation, uses the most up-to-date information available. It`s difficult for the state to argue based upon trial testimony and say he can`t have the trial testimony available to him. He mentioned consultation with counsel to make sure it is as accurate as it can be.

Within that context, we have taken away some of the frailties of the animation. And that is it`s no longer really an animation, but for the initial animation of the initial strike by Mr. Martin against Mr. Zimmerman, which came solely from his testimony, but all of that is in evidence, you know.

NELSON: Where is the testimony that Mr. Martin is left-handed, because that animation shows a left-handed punch?

O`MARA: The injuries to the right side of Mr. Zimmerman`s body, and he had testified he got struck by Mr. Martin. When he first looked up he got struck, and the injury was right here. That`s what it`s from.

To be honest with you, to the extent that a jury has to look at that and say, I think that that is absolutely the most reasonable assumption that they can make. Nobody said he was right-handed. I don`t care if he`s left-handed or right-handed. As to that fact, he hit him with the left hand, because that`s the area of the...

NELSON: Who testified as to that?

O`MARA: Mr. Zimmerman.

NELSON: He testified he got punched in the face.

O`MARA: And the injury -- sorry.

NELSON: He didn`t say from what hand.

O`MARA: That`s correct.

NELSON: Nobody testified that that injury came from a left-handed punch, and Sybrina Fulton testified that Trayvon Martin is right -- was right-handed. So I don`t have any testimony in the record to show that that was a left-handed punch.

O`MARA: May I give you...

NELSON: Yes, you may.

O`MARA: Dr. Rao testified -- I`m sorry. Dr. Rao testified, and she used her -- she gave us a graphic identification. And she also testified that the injury came across the nose -- we have to realize, of course, Mr. Zimmerman facing Mr. Martin. So, you know what I`m talking about, with the position. It was Dr. Rao who testified that the punch came in this way. She actually said it up, which we have confirmation of from Dr. Di Maio.

But she testified that the punch came in, and in fact from left to right, because it hit him right here. And she testified that the abrasion was on the inner right side of Mr. Zimmerman`s face, caused by the knuckle. So to the extent that you`re looking at evidence to support that, certainly, there`s no evidence to support anything else.

Ms. Fulton said, "My son is right-handed," but that means that might be you the hand you want to use first. I don`t know. But the specific evidence from the medical examiner, Dr. Rao, was that it came from the left side and hit Mr. Zimmerman on the right side of his face. So that is what is the basis for the left strike in that animation.

NELSON: So are you saying that nobody could ever hit somebody with the right hand and cause that injury coming from the left side?

O`MARA: I think that I`ll tell you what, yes. Now I don`t know if that means that the animation is invalid, but I`ll just have to get it this way, by asking Mr. Manchester (ph) to stand up for a second. If he can swing at me with his right hand, I suppose if I turn this way somehow it might come across. So yes -- so yes, it could be. But since we only have Mr. Zimmerman`s testimony that they were basically standing in front of each other, that he approached him from behind, Mr. Zimmerman turned to him. His testimony does say that, that he got hit. That testimony seems to me that they were face to face.

Could Mr. Zimmerman have turned all the way around this way, and Mr. Martin`s right hand got him like that? Yes, that`s a possibility. I think that the testimony would suggest, both when we look at Mr. Zimmerman`s testimony that he was basically face to face, and Dr. Rao`s testimony, that the more likely event was a left-hand throw.

NELSON: I didn`t hear her say more likely that it was a left-hand throw.

O`MARA: I just said that.

NELSON: You said her testimony.

O`MARA: I said with her testimony and then there was my words, it`s more likely a left-hand throw. So that was where that part of the animation was created.

So we have that part of the animation. And then we took out some of the more concerning parts of what is animation. Because after that part of the animation, really what it is, it`s still photos or still animations based upon specific testimony. And yes, that was modified based upon John Good saying, in his testimony, that it happened in certain relations to the 911 call. And Ms. Lauer`s call, that was placed into context to it. The main reason for that context is because we know that we have a reverse timing of when...

NELSON: Let`s talk about Ms. Lauer for a second. Because in my notes it does not indicate that she saw anything.

O`MARA: Of course she did not.

NELSON: And Mr. Schumaker is testifying that the testimony at the "T" or the figures at the "T" is based upon her -- I don`t know if it`s the first illustration or whatever, but based upon Ms. Lauer`s testimony, she`s never said that she saw anything.

O`MARA: She said she heard.

NELSON: But hearing and seeing and the animation is presented by Mr. Schumaker, he said based upon her testimony. We all only know what she heard and none of us know what she saw.

VELEZ-MITCHELL: And the judge asking some very tough, very good questions. How can you present an objective portrait, an animation when you`re listening to people who have biases and who are seeing different things, conflicting things?

What will the judge decide? I`m on pins and needles. I think you are, too. We`re going to take a short break. We`re going to be back with more live testimony from Sanford, Florida. Stay right there.

(COMMERCIAL BREAK)

VELEZ-MITCHELL: An extraordinary battle in the courtroom right behind me. I`m here live in Sanford, Florida, and they`re battling over this extraordinary animation, the kind of technology you see in movies like "Ironman." But in this case, the defense wants to use it to show what happened; at least what they say happened.

But the judge is asking, well, how can you say when there`s at least half a dozen neighbors who saw and heard different things and have different opinions about what they saw, an objective truth in an animation of what really happened? Let`s go back into the courtroom to hear what the judge decides. This is live.

O`MARA: May I approach?

NELSON: Please, thank you.

O`MARA: So that`s the trial testimony that...

NELSON: Can I keep this up here so I can refer back to it? Thank you.

O`MARA: So in any case, that was -- you`re right, she did not see anything, and yes, in that sense, the particular placement is an estimate on voice.

But I think in her cross-examination, when I cross-examined her, she was more specific that it happened in the area of the "T" intersection. And is it four feet away, six feet away? That is a frailty of the animation based upon nonvisual testimony.

So the other question is -- on this Daubert-Pierce matter is it accurate? We`re talking about that now. The other accuracies of it were limited by -- we used John Good`s specific recollection, as to his testifying at the trial to sort of three different positions. That`s where we got it from. Where he said first they were sort of vertical. Then they were sort of -- he got the words parallel and on top of the pathway. And then they were further down. And that`s where one, two and three come from directly. And then he left. And we kept in them in that position, because there is no other evidence to support changes.

Could they have jumped up, gone to their feet and run back in the same position? I guess so. But there was no evidence to support anything but what John Good last saw, so we kept it static.

And then the positioning was changed slightly and only -- I think from more like this, which was the mounted position that we saw before, to more like this because of Dr. Di Maio`s anticipated testimony that the shot went in, that the gravity effect of the shirt and the tear in the shirt having gone down made sense.

Again, I`ll argue -- I argued to you yesterday, when we were talking about this, could it be like this? Yes, now we know from Dr. Di Maio`s testimony, it might be like this. But that, as the bodies go up, then the cam (ph) pulls it more straight down. And so yes, it billowed, which means it`s more like this. Is it an estimation within that context? I acknowledge that. But at least Dr. Di Maio`s testimony invested the angle much more so because of the gravitation effect on the cam (ph).

That`s quite honestly it for the animation, as far as whether or not it`s accurate, because that`s a premise whether or not it would assist the trier of fact. And I would suggest that, with all the information that we have in this case, and with the various witnesses, none of whom are direct witnesses, except for Mr. Good, but all of whom have almost a vantage point, changes to offer to it, that an attempt by the defense to present that in a way that does, in fact, support the defense presentation of what happened, and we have now presented an enormous amount of information to support that that animation is accurate and will help the trier of fact in presenting the way the defense says the case happened and support the facts that it would, in fact, assist the trier of fact in trying to get an understanding and graphic understanding as to how the situation unfolded that night and how things may have ended. So to the extent that Pierce requires that, I think the...

NELSON: The distinction in Pierce is that the state, whether it`s the state or defense is not the distinction. It is that the state intended to introduce that into evidence, and the court ruled that it would be demonstrative only. And it seemed to make a difference in the analysis that the court did based upon that, because it did not go back to the jury as evidence in the case that was used for demonstrative to put the expert in their testimony.

O`MARA: I agree that`s what the Pierce court did. I did not find that the Pierce court outlined an exclusion for it becoming evidence. Just as the state has entered into evidence their timeline.

If it is accurate, it would assist the prior facts this court has already, in this case, allowed a presentation to be presented by the state in putting together various facts in a graphic way that I presume that they believe assists the trier of fact.

VELEZ-MITCHELL: Which way is the judge leaning: to let the animation in or deny it? I don`t know. We`re going to take a very short break. Back with more live testimony. We`re live in Sanford, Florida. Stay right there.

(COMMERCIAL BREAK)

VELEZ-MITCHELL: The prosecutor making a passionate plea right now: Do not let this animation in. Let`s go back into court and listen. What will the judge do? It`s live.

MANTEI: ... is the first case in the stack I`ve given you, a 2013 decision from the United States district court, eastern district of New York that essentially I want to refer the court to is the second page of that opinion beginning at 10-03, where they set out the sort of Daubert factors. There are a number of them. They are neither exhaustive or necessarily all-inclusive.

However, the ones that have been designated are, No. 1, whether the theory or technique has been or can be tested. Two, whether it has been subjected to peer review and publication. Three, the technique`s known or potential rate of error, and the existence and maintenance of standards controlling the technique`s operation. Four, whether a particular technique of theory has gained general acceptance in the realm of the scientific community. And I would further posit that then there becomes a question of whether the methodology is either proper for this case or properly applied to this case.

In other words, the relationship, the technique, the methods which have been established to be reliable and then the qualifications of the expert in question.

For starters, no witness -- or nobody, actually, include this witness, if I understood his testimony correctly, he`s never testified before in a criminal courtroom about exactly the sort of thing he is attempting to testify about here. He has at times put things together or consulted with attorneys, but this is the first time ever with these motion-capture suits in conjunction with the other things that he did that he is attempting, even he attempting to use. And nobody else in his entire industry does what -- exactly what he does with the same methodology and same equipment.

Now, we can quibble about whether or not all this is just the new generation, because that`s not what the witness said. What the witness said was, "I`ve never actually testified under circumstances like these before about circumstances like this before; nor do I believe, since I`m the only one who does any of this, that anybody else has." Kind of (UNINTELLIGIBLE).

Secondly, as it relates to this, I`m going to refer to the next page of the Valencia (ph) opinion, where they go on to quote some additional cases, but the very beginning, top left hand of that column, they give you a quote from G.E. versus Burnham (ph)...

VELEZ-MITCHELL: Prosecutor Mantei saying, "Please, Judge, do not let this animation in. It is biased."

Of course, supporters of George Zimmerman say, "Hey, the jurors weren`t allowed to go to the crime scene, so maybe it`s fair."

We`re going to take a short break. Back with more live testimony. What will the judge decide? She could make a decision any second now. Stay right there.

(COMMERCIAL BREAK)

VELEZ-MITCHELL: Back live. It seems like the judge is just about to make her decision on this animation. Will it come in as the defense wants? The prosecutor saying, "Please, no, it`s unfair." Let`s go back into the courtroom.

MANTEI: ... part of the closing argument, if that`s the kind of demonstrative thing we`re talking about, but I think my objection to it being demonstrative is -- one of the foundational issues in that regard is, is it necessary for the witness to have to explain their opinion? And the only witnesses who would need it have already testified and didn`t need it.

What we`re now talking about, I guess, if we`re talking about, for example, the idea that Mr. Schumaker would come in here and use this as demonstrative and explain his own testimony. His own testimony is only a function of what he`s been told by the lawyers and everything else.

There is nothing that would be required for the witness` testimony to be explained by this. It would simply be a reinterpretation of what has already gone before by that witness.

That would be inappropriate from the state`s perspective. That`s not the purpose of a demonstrative exhibit. So that`s the long answer to the court`s short question. But I think I made that decision clear -- demonstrative meaning exactly what? If it`s used by counsel`s closing argument, different story and different analysis altogether. We`re talking about a witness and that`s Mr. Shumaker coming up claiming the same and telling everybody what he thinks it means -- yes, (inaudible). And I think some of them are (inaudible) later. But he wouldn`t have to and it`s not substantive evidence to meet every one of the (inaudible). I`ll agree with that.

DEBRA NELSON, PRESIDING JUDGE: Go ahead.

MANTEI: There has been no testimony offered or presented so far as would be the defense`s burden about the known or potential rate of error, the maintenance of standards, anything about peer review.

What we`ve heard is that they use it for the movies -- great. This is a murder trial. This isn`t "Casablanca". And we`re not talking about - - this isn`t "Ironman". It`s one thing to say "I`m going to strap suits on people and create a complete work of fiction." And it`s another to say entirely "I`m going to create something that while in his fiction I`m saying is a representation of a certain perception of reality." Those are two very different things.

So there`s been nothing submitted as it relates to whether or not this -- these things satisfy those prongs. Further, I`ll continue in the opinion over to page six of the court`s opinion. And it`s under head note eight. Again, they begin quoting another Supreme Court case, Kumho Tire 520 -- that`s K-U-M-H-O. "The reliability of the expert`s methodology in reaching his conclusions must be evaluated against specific facts issues, not generalized theories." Down further on the bottom of that page, "In other words, simplifications that are permissible to recreate a collision may not be appropriate to recreate for example a non-impact rollover. The reasonableness in general of using a specific methodology does not mean that using the methodology is reasonable to draw a conclusion regarding a particular matter to which the expert testimony was directly relevant. Validation as to process of making sure that despite the simplifications that have been made the model is still accurate and predicts the way the object is trying to simulate (inaudible)."

Never a more clear illustration of that than, for example, the very beginning of this video where the evidence in actual testimony is that A, Trayvon Martin is right handed where the witness is apparently under the impression that he`s in fact left-handed. Again just going to the -- we want to talk about the frailties. This is getting to be so frail it needs traction.

The idea that you assume based upon the location of an injury on the body that it was struck with a certain thing in a certain manner is an invalid and unwarranted assumption based on the evidence. It is not hard for a right handed person to punch someone on the left side of their nose. It requires a half-step, a side step, a turning of the head -- any number of things. But to sit here and say that it is a punch with the left hand, to depict it graphically and say "it is my expert opinion that this is how it happened" without a foundation in the evidence is exactly what they`re talking about when we talk about a lack of validation and the lack of the ability to apply the generalized methodology that we use to make movies to the particular facts in this case.

NELSON: But that`s not a methodology issue, that`s a fact issue. That`s applying the facts to -- putting the facts into the computer.

MANTEI: And more importantly, creating a result once you have input those facts.

NELSON: It`s the inputting of the facts that`s the issue. It`s not the -- the computer is going to do whatever you tell it to do. So if you tell it to do a, b, c, you`re going to get that result. If you tell it to do d, e, f, you`re going to get a different result.

MANTEI: And if your methodology is to make assumptions that aren`t warranted by the evidence, then that is the problem.

NELSON: But that`s not the computer, that`s the assumptions being made, the input into the computer.

MANTEI: Agreed.

NELSON: Thank you.

MANTEI: That is a large problem here, as well.

Moving to page eight, again, peer review. There`s been no testimony about that. Page nine, error rates -- unknown, cannot be determined. No testimony about it. Nothing involved in this case.

Moving to page 13, the next factor -- reliability and relevance. They`re talking in here about a particular expert, one of several that were discussed in this case, and I`m going to refer to the right hand column beginning with the first paragraph. In this case, that expert --

(END VIDEO CLIP)

VELEZ-MITCHELL: Should this be allowed in just as a demonstration, not to assert the facts of the matter? The judge about to make her decision.

We are live -- a very short break then back with what we hope is a huge decision any second. We`re live.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

VELEZ-MITCHELL: Is this animation they are battling over realistic? One thing I`ve noticed, where are Trayvon Martin`s Skittles? I don`t see them. He was holding them at the time, reportedly.

All right. Let`s go back into court -- the judge about to make her decision. It`s a big one.

(BEGIN VIDEO CLIP)

MANTEI: The idea that you don`t have to be exact is correct. I`m not saying that essentially if we don`t have a contemporaneous movie made of the incident in this case, that nothing could be advanced as a demonstrative aid for example. I look forward (ph) to whether it can be substantive evidence, but that`s not really the standard. The idea is, if what you`ve got is not accurate enough -- and in this case it`s not -- it`s not enough to simply say I`m generally in the vicinity. I`m in some proximity.

They are -- the figures in this case and the positions of the case and the positions -- such things as their hips and the length of space between them such that whether firing a gun is possible, those are all intentional assumptions, and all intentional things placed into that animation. They were done with a purpose, and they`re not necessarily accurate or based on any actual testimony. The problem is that their arguments masquerading as evidence.

The next case is the Salvatore case -- that`s S-A-L-V-A-T-O-R-E -- and I`m particularly talking page five of that opinion, and here again, we`re talking about attempted video accident reconstruction. In this case, they talk about the witness themselves, talking about there`s -- I believe it`s note seven there in the left hand column. In regard to simulation, the witness in that case, Cusumano -- C-U-S-U-M-A-N-O would not be qualified to provide a video attempting to reconstruct the accident. He`s not an accident reconstruction expert or a biomechanics expert, holds no degree in engineering, not qualified to provide an opinion as to the accident of reconstruction.

Now, I have heard that this witness has testified that he has done reconstruction and been accepted as such as before. The bottom line is he`s a graphic designer skilled at manipulating software and making movies, but actual reconstruction of events within a crime scene as opposed to reconstructing the parameters and static elements within a crime scene, I would submit are two very different things. Most significantly I`ll point out to court that when this witness has testified before, what he said was, I do things like I analogize bullet trajectories where I can take that medical (inaudible) and extrapolate the positions and figures from those exact things. Not I put people in positions based on surmises of experts or other witnesses.

Down towards the bottom of that column in the last paragraph, there`s a higher threshold permissibility of visual demonstrations that attempting to recreate an accident, because they are significantly more likely to confuse the jury than depictions which merely illustrate principles forming an expert`s opinion. Again, the expert opinion referenced in this video are not those of Mr. Shoemaker, they are -- if anybody -- the only expert opinion is that of Dr. Di Maio, who didn`t need it, didn`t talk about it, didn`t reference it, testified without it.

And then continuing in the upper portion of the next column, thus for demonstrative evidence closely resembling the actual incidents, courts generally require the proponent to establish that the demonstration shares substantial similarity with the accident conditions, by contrast if a demonstration does not appear to recreate the accident, wherefore it generally does not require a foundational (inaudible) of similarity to the accident conditions.

This is being purported at least to be a recreation of this crime scene, or the events taking place within this crime scene. That being said, the higher standard applies. And if we accept the higher standard applying, the conditions aren`t close -- anywhere near close enough. We`ll start with the obvious, the lighting. We`ll start with the more obvious, the depiction of visual positions, not based on any eyewitness testimony but based on a 20-minute phone conversation with another witness who sort of described his general theory about how it must have happened. That`s not a substantial similarity with the actual conditions.

The idea that we have no idea how we go from the T, 40 feet down so we`ll just throw an arrow down there doesn`t explain or doesn`t say that this is a substantial similar condition. What it says is, I don`t know. And that`s really where it ought to stop.

Further, even as it relates to Dr. Di Maio`s testimony, his opinion as he testified today was that at the moment of the gunshot, he believed the defendant`s statement was consistent with what he understood the physical evidence to be.

VELEZ-MITCHELL: I said "Where are the Skittles" and somebody said there`s something in the animation of Trayvon Martin. Where`s the rain? Others say if you look closely, you can see it drizzle. But the lighting the prosecution says is off. Is this a fair portrayal of what happened or is it slanted toward the defense?

A short break and then were coming back. This is live. What will the judge decide? It`s fascinating and it`s a huge, huge issue for this trial. Stay right there. We`re back in a moment.

(COMMERCIAL BREAK)

VELEZ-MITCHELL: The judge grilling the lawyers as she is about to decide whether to let this crucial defense animation in. Let`s go back in the court. I think she`s going to decide any second now. We`re live in Sanford.

MARK O`MARA, DEFENSE ATTORNEY: We have (inaudible) prints around the courtroom to give an idea --

NELSON: But the jury is not taking that back with them into the jury room to play over and over and over again and as how a reconstruction of what happened.

O`MARA: So they do have the state`s compilation exhibit that they put into evidence, which is their timeline on top of their timeline, on top of phone calls and what not. So they`ve taken, they`ve distilled down --

NELSON: But they did not interject animation figures into that timeline as to what was happening with the two individuals during those calls.

O`MARA: Certainly, this is an animation depicting what happened during those two individuals based upon John Good`s specific positioning of those people --

NELSON: Well it`s more than that. The animation is depicting a lot more than that -- based upon Mr. Shumaker`s common sense, based upon an assumption that Trayvon Martin hit Mr. Zimmerman with his left hand, based upon a phone conversation with Dr. Di Maio that was not necessarily his testimony in court. So it does a lot more than that.

Dr. Di Maio testified that the position of Trayvon Martin could have been at different angles. He could have been leaning down or he could have been pulling back. That`s my recollection of the testimony. So I need you to respond to it.

O`MARA: Dr. Di Maio`s testimony was in response to them saying it could have been pulling back and George Zimmerman pulling his shirt. The doctor said no that would pull the shirt to one side and then the bullet markings wouldn`t match up. I don`t think the doctor gave the alternative suggestion that is now being propounded by the state.

NELSON: I think Mr. De la Rionda had asked him given the fact that Mr. Martin`s sweatshirt or hoodie may have been wet and the fact that he had a full can of, I don`t know how many ounces in his pocket, may determine the position of his body at the time of the shot.

O`MARA: I think Dr. Di Maio`s response was it has to be leaning over because it has to be pulled away two to four inches. Then Mr. De La Rionda then said to him well, could it be such that he was trying to back away and George Zimmerman grabbed his shirt with one hand and shot him. Dr. Di Maio`s response was that would by nature pull the shirt towards one side then if he shot and released the shirt, the holes wouldn`t match up anymore.

So I think Dr. Di Maio specifically countered the suggestion by the state that there was pulling back with a holding on to the hand. I don`t want to be arguing his testimony -- to answer your question and why it might be substantive evidence as opposed to just being demonstrative evidence I would suggest at the absolutely minimum it would be a demonstrative tool to be used by me to present the evidence just like I can get up there and draw something myself. I think that`s not to presume too much from the court but I think that`s a given that I could be able to use it in evidence, demonstrative evidence like this in a closing argument.

But whether or not it gets into substantive evidence, is as I said before, what it has taken is a distillation of known facts and all of those known facts may be contested, he could contest that it is a left-hand shot. That`s fine. That doesn`t mean that the presentation -- just like we can contest any expert. They could have brought in their animation expert. They could have brought in Dr. Rous (ph) indeed to say it may have happened some other way. Let`s not forget Dr. Rous`s animation had she had one would have been one, two, three four. That`s what her animation would have been. Specifically contested by -- I would suggest as to what happened but her testimony was her presentation.

NELSON: But that doesn`t go back to the jury room to be played over and over again. That`s what I`m grappling with. The difference being that whatever the witnesses testify to and there`s an instruction to the jury about the believability of the witnesses, they can believe some, all or none of their testimony. And they discuss that.

But to have an animation that goes back to the jury room that they can play over and over and over again like they can the 911 call, that they can the reenactment and those other things gives a certain weight to something that this court is not particularly certain that comports with the evidence presented at the trial.

O`MARA: I understand the court`s concern. I do think that it`s a proper distillation of certain pieces of evidence that in of themselves unassailed by contradictory testimony.

NELSON: Do you have any case law to provide me?

O`MARA: No, your honor. I rely on Pierce (ph). I will cite back to the court some of the portions of this case presented by the state just to say once you determine that it is in fact substantially similar -- and that`s the only determination that needs to be made as far as the admissibility of the evidence -- that it is substantially similar to the evidence that has been presented then it is admissible. That`s about two of the cases. Valente is one --

NELSON: Both sides are basically agreeing that Pierce is the only case in the state of Florida that relates to computer animation, is that correct?

MANTEI: I did provide another one General Motors versus Porritt -- P- O-R-R-I-T-T. I will agree that Pierce is the only criminal case.

NELSON: Ok. And does the defense agree with that?

O`MARA: Yes, your honor.

NELSON: All right. When I look at the Pierce case they proffered the computer animation as demonstrative exhibit to help Detective Babcock explain his opinion to the jury and also as substantive evidence. In this trial court ruled that the computer animation --

VELEZ-MITCHELL: All right -- a very short break. The judge on the verge of making her ruling. Stay right there. We`re back live in Sanford, Florida in just a moment.

(COMMERCIAL BREAK)

VELEZ-MITCHELL: All right. Court still going on. I want to go to Kelly Saindon, former prosecutor in Chicago. It sounds like the judge is saying she`s going to review the arguments from both sides and withhold a decision until later. What say you?

KELLY SAINDON, FORMER PROSECUTOR: I say that you`re right. I think that she`s making the right decision. And I think if she does let it in it`s going to be with so many warnings and bells and whistles that the jury is going to have to think it`s a fictional account.

VELEZ-MITCHELL: Yes. And it`s absolutely fascinating because some of the supporters of George Zimmerman say the jury didn`t get a chance to go down to the crime scene and see it for themselves so this is a way of making up for that. But the fact is nobody knows what happened. That`s the essence of the case, is that nobody know what happened between these two. There`s two different explanations. This video shows one. We`re monitoring the situation.

Nancy Grace is up next.

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