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THE LEAD WITH JAKE TAPPER

George Zimmerman Trial Continues; Tsarnaev Faces Bombing Victims

Aired July 10, 2013 - 16:00   ET

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


JAKE TAPPER, CNN ANCHOR: Good afternoon. This is Jake Tapper, and this is THE LEAD. You're watching live continuous coverage of the George Zimmerman murder trial, which has brought a renewed focus to issues of race, racial profiling and self-defense and captivated millions of Americans.

The court right now is in a sidebar. The defense wrapped up its case just moments ago, and we learned the answer to one looming question. Would George Zimmerman take the stand in his own defense? Let's listen to what happened when the judge asked Zimmerman about his intentions in court.

(BEGIN VIDEO CLIP)

JUDGE DEBRA NELSON, 18TH CIRCUIT COURT OF FLORIDA: Did you now have sufficient time to discuss with your attorneys whether or not you wanted to testify in this case?

GEORGE ZIMMERMAN, DEFENDANT: Yes, Your Honor.

NELSON: And I don't need to know what was said, but after those discussions, have you made a decision?

ZIMMERMAN: Yes, Your Honor.

NELSON: And what is your decision, sir?

ZIMMERMAN: After consulting with counsel, not to testify, Your Honor.

NELSON: OK. You understand that no matter what counsel says to you, it's still your decision? Do you understand that?

ZIMMERMAN: Yes, Your Honor.

NELSON: OK. And I need to know, is it your decision to not testify in this case?

ZIMMERMAN: Yes, Your Honor.

NELSON: And are you making that decision freely and voluntarily?

ZIMMERMAN: Yes, Your Honor.

NELSON: Has anybody promised you anything to get you to make that decision? ZIMMERMAN: No, Your Honor.

NELSON: Has anybody threatened you?

ZIMMERMAN: No, Your Honor.

NELSON: And this is clearly the decision that you yourself have made?

ZIMMERMAN: Yes, Your Honor.

NELSON: Thank you very much.

(END VIDEO CLIP)

TAPPER: Here with us today to break down the latest trial developments, criminal defense attorney Danny Cevallos, along with former state and federal prosecutor David Weinstein, and in Sanford, CNN legal correspondent Jean Casarez, who has been in the courtroom watching every minute of this case.

As I said, they are in sidebar right now, so let's start with the issue about whether or not George Zimmerman would testify.

David, I never thought he would take the stand. I don't understand why they kept leaving it out there teasing us that it was a possibility. Do you think this was a tactic by the defense team to throw off prosecutors?

DAVID WEINSTEIN, FORMER FEDERAL PROSECUTOR: In part, it was.

There was never a doubt in my mind either that he would testify. Why would he have to? He's already testified through the last almost three dozen witnesses who were on the stand. There's no reason for him to take the stand, but you know what? You never can tell when something might happen at the last minute, some witness says something. Maybe the last witness on the stand says something that completely puts a hole in where you were going.

That's when you finally make your final decision and you say you know what? Judge, I'm not going to testify. It also puts the prosecution a little bit off-guard. They don't know exactly when they're going to start. Are their witnesses ready for rebuttal? Do they have the people in place? If you catch them off-guard, you might pick up an advantage as well.

TAPPER: And would you have to if you were the prosecution in that case -- as you say, there's no reason he would need to testify. We have already had his videotaped testimony aired before the jury, audiotape. We have seen him recreate it, and so he's basically gotten all the benefits of testifying without being cross-examined by the prosecution.

Jean Casarez, right after Zimmerman said he would not testify, the defense pushed for an acquittal, which was denied. That's just following a standard procedure, I assume, but having spoken to them, do you think that they really actually thought they had a shot at an acquittal there?

JEAN CASAREZ, CNN CORRESPONDENT: No, I don't think so at all. But it is standard protocol. They're putting it on the record, which is extremely important.

But the issue about George Zimmerman testifying, as you know, it's his decision. And the attorneys can say everything they want, but if he wants to take the stand, he can take the stand. The judge started this yesterday, Jake, because she actually had him stand up outside the presence of the jury, and spoke to him, saying I'm not going to ask you now, but I'm going to be asking you if you want to testify and I'm going to ask you if it's freely and voluntary made, so you want to think about it.

And then she started questions him today and there were objections by Don West because I guess the attorney felt it was not appropriate. And then there was finally -- he said on advice of counsel, I will not be testifying. But she made sure she got out of him it was freely and voluntarily made on his part. Jake, I think he wanted to testify.

TAPPER: You think he wanted to testify? Why do you say that?

CASAREZ: Yes. Just what I saw in the courtroom, what I saw that I haven't made the decision yet. Earlier today, George Zimmerman said to the judge I haven't made the decision yet if I'm going to testify. That tells me he wanted to.

TAPPER: Criminal defense attorney Danny Cevallos, prosecutors are now calling rebuttal witnesses, preparing to call rebuttal witnesses. Tell us about the first one that they're planning on calling, Adam Pollock. We know he was Zimmerman's former trainer for mixed martial arts. Where do you think the state is going with calling him forward?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: What they're trying to do is they're taking -- this mixed martial arts issue is fascinating, because the only reason we're discussing it is because one witness described it in his own words as being what he observed.

He likened it to mixed martial arts. And it just so happened that Zimmerman trained in mixed martial arts. The prosecution, this is one of their best facts they have in a case full of bad facts for the prosecution, so they're going to blow this up to mushroom cloud proportions, to the extent they can to develop the theory that Zimmerman was a vigilante, replete with kung fu fighting ability, and they're going to try to bring this out, that even though his trainer said he was a 0.5 out of 10, he was trained nonetheless.

TAPPER: And in fact, earlier today, we heard from a witness, Dennis Root, calling himself a use of force specialist. He talked about how he didn't think that George Zimmerman was very impressive at all in terms of his fighting ability.

I guess, David, my question for you, as a former prosecutor, is, they clearly now have had the defense offer witness after witness essentially calling George Zimmerman weak, a wimp, somebody who I guess they're suggesting would never start a fight, much less be able to hold his own in a fight. They presumably will call Pollock, the trainer, who was advertising Zimmerman, in terms of his -- he's trying to sell his gym as a place where people can go to learn to fight like George Zimmerman, I guess is the argument they're going to make. Right?

WEINSTEIN: Well, that's what they're going to try to do, but they need to be careful how they do it.

They want to stay away from information they should have brought out on cross-examination, his bias, the fact that he only did this and testified now so that he could promote himself as the guy that trained George Zimmerman, but quite frankly he didn't do a very good job, because George Zimmerman had to resort to deadly force after he was going his rear end kicked in the middle of this fight that we don't know who started, because based on the testimony that we have heard and based on the physical evidence that was discussed yesterday with ballistics expert, the real evidence that defense wants you to look at suggests that he was attacked and that he was getting his rear end kicked. And only then did he pull out the gun.

This is not Batman. He didn't know how to overpower his opponent. This is a guy who didn't do very well at Pollock's gym, so I don't know that the prosecution will be able to get the mileage they want out of this guy, because if I'm Pollock, I'm going to testify, I tried to train this guy, I taught him what I could teach him, but he was still not a very good fighter.

TAPPER: For viewers just tuning in right now, the court is in a 15- minute recess. We're hashing out some of the big moments of today's rather momentous arguments in the George Zimmerman murder trial.

I want to show a clip. The prosecution brought out a prop earlier today, a mannequin to represent George Zimmerman during the altercation. Both sides used this dummy to recreate their interpretations of the events that ended in George Zimmerman shooting and killing Trayvon Martin. Let's take a look. Roll that tape.

(BEGIN VIDEO CLIP)

JOHN GUY, PROSECUTOR: Were you aware that the defendant described to his best friend that when he slid down, the defendant slid down, that Trayvon Martin was up around his armpits? Were you aware of that?

UNIDENTIFIED MALE: No, I had not heard that. No, sir.

GUY: OK. Where would the gun be now?

UNIDENTIFIED MALE: No the gun would be behind your left leg.

MARK O'MARA, ATTORNEY FOR GEORGE ZIMMERMAN: Were the injuries on Mr. Zimmerman's back of his head consistent with someone doing this on cement?

UNIDENTIFIED MALE: I don't think so.

O'MARA: How about this? How about somebody resisting the attempt, the injuries -- the two lacerations, could that have come from cement, if somebody was resisting me pushing down like this?

UNIDENTIFIED MALE: I believe so.

(END VIDEO CLIP)

TAPPER: Jean, a lot of the use of the dummy was about the trajectory of the gun. Walk us through the points that you think the prosecution and defense were trying to make here.

CASAREZ: I think what the prosecution was trying to show right there was that they are trying to discredit George Zimmerman. If he in fact he did tell his good friends that the legs of Trayvon Martin were up above the hips, almost to the arm sockets, then how is George Zimmerman going to get the gun to shoot him?

We know he got the gun and he shot him, but that he's lying about where Trayvon Martin was in relation to his body. I think the points made on both sides will be extremely important, just as you said, the trajectory of the shot based on where the parties were, because the prosecution brought into focus on his this cross-examination that maybe Trayvon was trying to get away, was trying to stop the attack and get up from it all.

But then you have got to look at the trajectory of the shot and with the body fall where it did fall, because on that point, George Zimmerman is not in imminent fear of death.

TAPPER: Danny, one of the points that the prosecution seemed to make today was they seemed to be allowing that there was an alternate scenario where Trayvon Martin was on top.

They seemed to be conceding the point that there might be people on the jury who believe that Trayvon Martin was on top, and now they're saying, well, what could have happened is, he was on top, but then he was trying to get away, he was trying to back away. That seems to be a concession to the defense, don't you think?

CEVALLOS: It's a clever piece of improv.

Again, the prosecution has done a terrific job with what I think would be considered difficult facts. However, that jury, when they get into the room, they're essentially advancing the theory to this jury that first believe us that George Zimmerman was on top, fighting MMA style. If you don't believe that, move on to step two and believe that if Zimmerman was on the bottom, that the facts are as we say it.

I think if they can come up with two alternate theories, then we have already technically gotten to the definition of reasonable doubt, which says that if you find two theories equally tenable, that's reasonable doubt. The strange thing here is usually it doesn't come both from the prosecution.

TAPPER: Right, and the defense, exactly. That's what's so interesting about the prosecution.

I want to quickly go back to a point that the prosecution was just making before the court went into recess about trainer Adam Pollock promoting that he trained Zimmerman on his Web site.

We have a screen grab of that Web site, if we can put it up. If you see there, it says Zimmerman, and it talks about training George Zimmerman at Kokopelli's gym.

David, I know that you have said that this is a treacherous, risky issue for the prosecution to bring up, but you can see why they would, right? If George Zimmerman is weak as been portrayed by Pollock and others, then why would he be advertising that?

WEINSTEIN: Well, they should have done this yesterday during cross- examination.

(CROSSTALK)

TAPPER: Do you think that matters for the jury? Does the jury care about that? It's still information for them.

WEINSTEIN: It doesn't matter to the jury, but it matters to the judge when she decides if she's going to let it in now.

Their chance was to bring it in yesterday to show bias on his part to take make whatever point they had. They took a gambled risk by holding off and then doing it yesterday, because if you ask that question on cross-examination, on redirect, the defense will get to rehabilitate him, so now they figure, all right, we're going to ask it when we call him as our witness. We're going to ask it during our case, and we're going to ask it while we're asking the questions, so we're going to ask those questions today to show bias and to show that he made him out to be this great fighter.

Maybe a mistake in strategy on their part. If you're going to bring it out, bring it out yesterday while he's up there, while it's fresh in his mind. Show he's a biased witness. You did that already. You showed how he was being paid and how he came out and why he came out. Just keep moving on to that theme. Keep it going. Keep it going yesterday when he's a fresh witness.

Now potentially they call him as their first witness out of the box, the judge agrees with the defense and says, move on, ask him something else. They move on, ask him another question that draws an objection, and he gets to testify to virtually nothing. We will see what happens in the next couple minutes.

TAPPER: We're going to take a quick break. You're missing nothing at home because the court is in recess right now. When we come back, we will go back live to the courtroom. We will continue to talk with our legal experts about that seemingly contentious relationship between the judge and defense attorney Don West.

Plus, of course, we're following many other stories in the news as well. Survivors of the Boston terrorist attack face their alleged attacker for the first time today, as Dzhokhar Tsarnaev was arraigned in a federal courthouse. CNN was in the courtroom and we will give you all the details coming up.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper.

Zimmerman murder trial is expected to resume at any moment. It's been a long and contentious time in the courtroom, especially last night when Judge Debra Nelson and the lawyers, particularly defense attorney Don West squared off with the jury being excused hours before the prosecution and defense were left to argue over whether to allow the defense to submit Trayvon Martin's text messages and the 3-D that recreated the shooting.

Judge Nelson adjourned the court just before 10:00 p.m. And as she left the bench, Don West, the attorney, could not hold his tongue.

(BEGIN VIDEO CLIP)

DON WEST, ZIMMERMAN DEFENSE ATTORNEY: We're not physically able to keep up this pace much longer. It's 10:00 at night. We started this morning. We've had full days every day, weekends, depositions at night.

(END VIDEO CLIP)

TAPPER: That was just one in a series of tense moments between the lawyers and Judge Debra Nelson.

(BEGIN VIDEO CLIP)

JUDGE DEBRA NELSON, SEMINOLE COUNTY, FL: So how much longer do you think it's going to take?

UNIDENTFIED MALE: I'm going to ballpark it at 45 minutes.

NELSON: Forty-five minutes? No. Mr. Schumacher has been standing almost an hour. I thought that when you wanted him to stay on that podium, it was going to be a short presentation.

(INAUDIBLE)

NELSON: And so have I.

(END VIDEO CLIP)

TAPPER: I want to bring in our legal team.

Danny, I know that Don West used to be a DJ in Philadelphia before he became this legal giant. You could see flashes of that temperament of a DJ more so than the temperament of a attorney in a courtroom.

Do you think West overstepped with the way he spoke to the judge last night? DANNY CEVALLOS, ATTORNEY: No, not all. I mean, it's an adversarial process. The judge understands that and the attorneys understand it. And you have to understand, each of these attorneys is so immersed in this case in a any ruling adverse to them seems like a gross miscarriage of justice, at least in our own minds.

So psychologically, you have to understand, after this much time, their fatigue, just like anybody else -- and they believed they're being truly wronged. And I have faith that judges as adversarial as it gets between judge and counsel, that judges, everyone, the litigants, understand that it's just part of the adversarial process.

TAPPER: Jean, how would you, as somebody who's in the courtroom, how would you describe the atmosphere in the courtroom between these lawyers and Judge Nelson? Is the relationship with Don West and Judge Nelson more prickly than her relationship with other lawyers?

JEAN CASAREZ, CNN LEGAL CORRESPONDENT: With the defense. I have seen her be very nice to the prosecution. I mean, I was here at the hearings before the trial even began. But to the defense, it has been very, very adversarial.

And last night, I've got to tell you, the precursor to those words was that it was obvious the judge was not going to allow in the texts and the Facebook comments on fighting and guns in regard to Trayvon Martin. It was obvious you could see what she said from the bench.

And the defense is very upset because in April, they asked in open court if the prosecution had any information about Trayvon Martin that they had not handed over. The prosecution said no. And that may be very rightly so.

Well, in fact, and it's a long story, but their head IT person was called to the stand in a hearing right before trial began to say he had prepared over a 900-page report on the contents of Trayvon Martin's phone in January 2013. He was concerned, because he didn't think the defense had gone it. He got a lawyer, because he thought he could be charged with something because he had prepared that report. The defense did not get that report. They got it on the eve of trial.

And so, they have not been able to fully find the people that Trayvon Martin was communicating with about fighting and winning, and not winning around. And they're frustrated, because if they have that foundation, they probably would have gotten in some of the fighting.

TAPPER: Right. There's claims on text messages and Facebook about fighting. Not evidence of actual fighting. Could be a teenage boy bragging, could be a teenage boy recounting what he actually went through.

The court is in recess right now. We're going to take another quick break, but before we do, David Weinstein, as a former prosecutor, walk us through, for those of us who are not attorneys or not part of the criminal justice system, walk us through a typical murder trial.

Is it grueling? Are there late nights, weekends, depositions at all hours? Or is this case special?

DAVID WEINSTEIN, FORMER STATE AND FEDERAL PROSECUTOR: Well, Jake, it is special, but this case is like any other murder case that I've been involved with. You're talking about somebody's life here, the defendant's life before they're on trial, and the life of the victim. You're going to go all out.

The day does not begin when you walk into the courtroom at 9:00, and it doesn't end when you're done at 5:00. You're hustling witnesses. You're doing your research. You've been taking depositions. You've been getting your act together. You're getting the chance to put your case forward.

It's hard on both sides. Prosecution has the burden of proof, beyond a reasonable doubt. You want to present the case to the jury that's perfect in every single way. Issues come up in the middle of trial.

When everybody goes to lunch, you go back to the office. You go back to your office, you do some recess, you find out if the ruling was correct, if you can get that extra piece of evidence to come in. If it turns out there's another piece of evidence that you want to look or you want to talk about, you turn it over to the defense, the defense is doing the same thing on the other side.

There's a lot that goes on that doesn't occur inside that courtroom. In every murder case, it's a long haul, you put in long hours, and I think that it just showed last night. Don sort of was at the end of his rope.

TAPPER: Right.

WEINSTEIN: It was a long day. And he -- you know, if he had to do it over again, he would have made that comment to Mark O'Mara at the side. He would have said, she's killing me, Mark, I need to get a rest here.

TAPPER: Right.

WEINSTEIN: But you know what, we're all human, and it just came out and she snapped right back at him.

And she wasn't done for the day yet, either. She's had to go back to her chamber. She's got to review all the evidence she just heard, she's got to look at the case law. She's got to decide whether she's letting the animation in and she's letting those text messages in.

She didn't go to bed at 10:30. She was probably up until 11:30, 12:00, just like everybody else.

TAPPER: We're going to take a quick break. When we come back, we're going to hop into the courtroom in Boston, where Dzhokhar Tsarnaev, thought (ph) to be and accused of being responsible for the Boston marathon terrorist attacks, entered a plea of not guilty. We'll talk to someone who was inside the courtroom, when we take a break. We'll be right back with that.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper.

We'll go right back to the courtroom where George Zimmerman is being tried for murder. But right now, the lawyers are talking over some procedural matters, so we're going to get you up to date with some of the other breaking news stories going on this hour.

In national news, Dzhokhar Tsarnaev is pleading not guilty. It's the first time we have seen Tsarnaev come face-to-face with any victims and their families. And it's the first time they have seen the accused Boston bomber with their own eyes.

The surviving suspect was arraigned today in the U.S. district court of Boston in his first public appearance since he and his brother Tamerlan allegedly killed three people and injured 260 in a terrorist attack on the finish line of the Boston marathon and then killed a police officer while on the run.

The court house was packed today with victims and their families, all watching as Tsarnaev pleaded not guilty to 30 counts in relation to the attack.

CNN's Deb Feyerick is live outside the courtroom in Boston.

Deb, the things we can't see, because there are no cameras in that courtroom, tell us about Tsarnaev's body language. How does he look now?

DEB FEYERICK, CNN NATIONAL CORRESPONDENT: You know, his body language was really quite fascinating. He's much taller than he appears. He's over six feet tall. He was wearing an orange prison jumpsuit. His hair was long. It appears he suffered some sort of nerve damage to part of his face. His hand was in a cast, his feet were shackled, his hands were not, until the end of the proceedings.

But as he walked in, one of the women who was sitting in his section wearing a white headscarf actually sobbed, she gasped audibly, and that's when he looked straight in her direction, and smiled. But he seemed disinterested, almost as if he didn't care. He was fidgeting, the judge was talking to him. He kept looking back at the women who had come there for him, sort of them, a baby that one of them was holding was cooing.

And then when he stood to answer the charges against him, 30 charges, including conspiracy to use weapon of mass destruction, he pled not guilty to each of the charges. What's so interesting about this, Jake, is that he actually had a very distinctive Russian accent. And when I spoke to his wrestling coach who happened to be here with the number of people he wrestled, they said -- they were flabbergasted because he never had such a distinctive accent when they knew him, when he was going to high school here with them.

And the coach said, you know, he came to see whether, in fact, there was any of the old Dzhokhar Tsarnaev, the Tsarnaev that they knew. And he said he just couldn't see it. He was fidgeting. He looked disinterested. He was slumping.

There was no sense of really the seriousness of what was going on inside the courtroom, Jake.

TAPPER: But, Deb, we can't confirm it, but there was someone there who looked like Katherine Russell, Dzhokhar Tsarnaev's sister-in-law, the widow of his older brother Tamerlan. Did you see her?

FEYERICK: We saw two women, two younger women who looked -- we know he's got two younger sisters here in the United States. There seems to be some sort of a family resemblance between the two of them we saw. We did not see Katherine Russell. You know, whether her lawyers would have told her to stay away from the courthouse, you know, she's still in play.

So, what I mean about that is they're just trying to keep her quiet, keep her away from things, let the attention drift over to Joe Tsarnaev, because, you know, until prosecutors say you're off the hook, you're really not. So, whether she was in the court, we did not see her.

But the victims who were there, 30 of them, 30 victims and their families, one woman had crutches. They were sitting there, they were shifting, one of the them, you know, kept wiping what looked like tears from her eyes.

So, very dramatic and what's so interesting, Jake, is that, you know, this was a packed courtroom. There had to be at least 100 people in that court.

And in the moments before he walked in, it was so quiet, nobody was speaking, nobody shifted, nobody talked, the only thing you heard was the newborn that was held by one of the Tsarnaev women who were in the row reserved for his family, Jake.

TAPPER: All right. Deb Feyerick, outside the courthouse in Boston, Massachusetts, where Dzhokhar Tsarnaev, the only surviving accused terrorist for the Boston marathon attacks, pleaded not guilty to all 30 charges today.

When we come back, we're going to take you back to the other courtroom that we're keeping an eye on, which is in Florida -- Sanford, Florida, where George Zimmerman is being tried for murder, second degree murder.

We'll be right back in the courtroom after this quick break.

NELSON: About the Zimmerman trial, and the Zimmerman --

(COMMERCIAL BREAK)