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THE LEAD WITH JAKE TAPPER

Judge Admonishes Zimmerman Attorney; Dow Rockets to Record High; "We're Trying to Keep Her Alive"; Defense Closing Arguments Tomorrow

Aired July 11, 2013 - 16:30   ET

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


(BEGIN VIDEO CLIP)

BERNIE DE LA RIONDA, LEAD PROSECUTOR: In this man's eyes he was up to no good. He presumed something that was not true.

(END VIDEO CLIP)

JAKE TAPPER, CNN HOST: Tom, do you think that the prosecutor did enough there to connect the dots between what he says is profiling and the ultimate shooting death of Trayvon Martin? We know that really ultimately what matters legally here is whether or not the jury believes that George Zimmerman believed his life was in danger. At least for the murder two charge. Did he make that connection closely enough do you think?

TOM MESEREAU, CRIMINAL DEFENSE ATTORNEY: Well, I thought he did, but again I think he's going to do more of this in his rebuttal. He certainly pointed out Zimmerman's state of mind with respect to punks, with people in the neighborhood, crimes he felt people had got away with. I thought he did what he had to do and he used what he has available. I mean, obviously the judge has not allowed him to use the word "racial," but I think race is something that's in existence throughout this case, consciously and unconsciously, particularly in the minds of the jurors and I think he did what he could do right now.

TAPPER: Sunny, one of the interesting things about this presentation is that you had a very passionate prosecutor. He sounded angry. He sounded disgusted. He sounded -- sometimes he veered toward the histrionic. Do you think that he was going to do that no matter what or did he have to do that, Sunny, because we had day after day of witnesses testifying about what a great guy George Zimmerman is that, he needed to show that it was important to be angry at George Zimmerman because so few people had expressed that, in fact nobody really had expressed that except for him.

SUNNY HOSTIN, CNN LEGAL ANALYST: No, I don't think we saw theatre here. I don't think we saw Bernie De La Rionda trying to be someone who he is not. That is never effective. Prosecutors have to bring their own personalities into the courtroom. Bernie has been a very passionate etiquette from the very beginning. He is passionate when he cross-examines. He's passionate during his direct examination. So I think we saw who he really is as a person. He really cares about this case. He clearly believes in his case. I think it's effective because this is a second degree murder case and he did things that prosecutors are trained to do, like pointing at the defendant because if the prosecutor can't point at the defendant and lay responsibility on the defendant, you sure can't expect the jury to. So you saw some tools of the trade that you always see, but I don't think that there was theatre involved.

I think he was being who he is and, again, I thought that it was very effective from the looks on the jury's faces. He gave them a lot to think about and, again, the narrative here for the prosecution has to be what was in George Zimmerman's mind when he followed, targeted, profiled and ultimately shot Trayvon Martin and that is in front of this jury now. All the puzzle pieces have been put together for them.

TAPPER: All right, we're going to continue talking with our legal panel about today's events in the courtroom when we come back. We're going to take a very, very quick break. We're going to also address the back and forth between Defense Attorney Don West and the judge, Debra Nelson. Is West intentionally trying to rile her when we come back?

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. We're here going over the Zimmerman trial with our panel. Let's get back to it. A discussion on jury instructions doesn't necessarily sound like must-see TV, but there were in fact plenty of fireworks during today's hearing particularly from Zimmerman's defense attorney, Don West. We also saw a contentious exchange between Zimmerman's attorney and Judge Nelson from before.

Both of them have happened throughout this case especially this week. The most recent one happened when West asked the judge to include in the jury instructions that it is not illegal to follow someone. Take a look.

(BEGIN VIDEOTAPE)

DON WEST, ZIMMERMAN'S DEFENSE LAWYER: Criminal statutes are pretty precise. They're designed to put people on notice what's illegal and what isn't. So if it's illegal to follow somebody to tell the police where they're going, there better be a law against it, otherwise you can't say it's illegal to do that.

JUDGE DEBRA NELSON: You're repeating your argument. I've heard the argument from both sides. I am not giving that instruction.

WEST: We submit that's an integral part of our theory of defense and the court is in error by not instructing this jury properly on the law.

JUDGE NELSON: I understand. I've already ruled and you have -- you continually disagree with this court every time I make a ruling. I have provided you on three separate occasions with the court's professional conduct in the courtroom and included in that is do not continue to argue with the court after we've ruled. If I have made a mistake in this case, you will appeal. If there is a conviction, it will get appealed to a higher court and they can review it to determine whether or not I made a mistake. This is my ruling on this issue. You are free to communicate that to the jury in your closing argument. I am not instructing them on that. Moving on to the next --

WEST: I'm not disagreeing.

(END VIDEOTAPE)

TAPPER: That is some frosty stuff. Let's bring in our legal panel, Sunny Hostin, Linda Kenney Baden and Tom Mesereau. Linda, I'll start with you. We've been talking all week about these combative exchanges between these two. But today do you think West was actually trying to achieve something here by picking this fight?

LINDA KENNEY BADEN, CRIMINAL DEFENSE ATTORNEY: Yes, I do, Jake, actually. He's a seasoned trial lawyer, yes, he's tired and yes, he's represented the client. But let me tell you, if I argued like that to a federal judge, these two wrists I have would be in handcuffs right now. Sometimes an attorney can go and I don't know whether he is doing this, but it's possible. I've seen attorneys do it to bait the judge, to get them to say something that can be appealed later, that can be objectionable later.

And I think there's a possibility he could have doing that. I don't know that for a fact. You have to walk a thin line when the judge says I've given you the rules of professional conduct three times, you do not argue with the judge, you represent your judge, you say I take exception and you sit down.

TAPPER: Tom Mesereau, how was it for the judge to mention that the defense could appeal if she made a mistake in her ruling. I am certainly not as experienced as you, but I've never heard a judge say anything like that.

MESEREAU: I have. Not often but I certainly have. You want to be professional in court. You want to show respect for the court. I think you get a lot more when you show respect than when you battle judges. Nevertheless, this is a very, very capable, experienced defense attorney. He wants to make a complete record for appeal. He wants the record to show he vigorously objected to certain things should he have to explain them on appeal.

I think he's a good lawyer. I don't think he meant anything personal. Did he go a little too far at times? Perhaps. I wouldn't do that but that doesn't necessarily mean it want effective. Let's face it. At the end of the day, he was successful in having the judge agree with the defense and not giving the second lesser offense instruction. So let's give him a little bit of credit. He is a good lawyer. He's prepared, he's passionate and he's doing a great job for his client I think.

TAPPER: Sunny, analysts earlier in the day said that the prosecution might have been pushing it a little. The prosecution tried to get another charge in, third degree felony murder charged by child abuse. The judge ultimately ruled against allowing this lesser charge in. Obviously they were introducing other charges such as manslaughter just in case the jury was ready to convict but not on murder two. Were you surprised with this child abuse charge they were proposing?

HOSTIN: Yes. I was in the courtroom when Prosecutor Mantei sort of put that on the table and I think there was a collective gasp from the lawyers that were in the courtroom. It was pretty shocking. It was a stretch, but I read the law and there was evidence to support it. All you had to prove was there was an intentional act to harm a child and a child is defined as anyone under the age of 18.

We all know Trayvon Martin was 17 years old, apparently just turned 17 maybe 20 days before. I got to tell you, it was supported by the law and it was a stretch. And Don West's reaction to it was even more theatrical. He stood up and he was just incredulous. He couldn't believe it. He was caught pretty flat-footed by the prosecution's request.

I think we thought they were going to ask for maybe aggravated assault but I want to mention that Mantei is sort of this prosecutor who is clearly the legal nerd on the panel and most prosecutors have someone like that on their cases. You have a person who does a lot of the legal research, can argue the law, is very, very smart and can make these kinds of nuanced arguments.

I've had those people on my cases, I've been that person on cases and that's what he's there to do. He's there to sort of push the legal envelope and that's what he was doing this morning.

TAPPER: Tom, by proposing this veritable smorgasbord of lesser included charges, how much do you think the prosecution was showing that they're worried they will not be able to get the jury to convict on second degree murder?

MESEREAU: I think they are showing their hand. I think they know as well as all of us that second degree murder is a stretch. We've seen many instances by over charging you end up helping the defense because you lose credibility when you over charge. In the Conrad Murray case, the Jackson family and many Michael Jackson fans wanted second degree murder. I did not.

And I explained to family members and to fans. I said, look, if you do that you're going to help the defense. Involuntary manslaughter is the appropriate charge. The prosecutors won't look like they're bullying the defendant, like they're overcharging and misusing their power.

And I think you may see a mistake in this case by charging second degree murder. Clearly they wanted lesser included because they want a conviction and they may not be that confident that second degree murder will fly.

TAPPER: Interesting. While we're going to still talk about more of this, we're going to take a quick break. Tomorrow is a critically important day for George Zimmerman and for the parents of Trayvon Martin. We'll take a look with our panel at what is in store.

Plus of course we're following other news. Every day we're learning more about that deadly plane crash in San Francisco. We now have the 911 tapes from the crash, the pleas for help seconds after the plane went down. That's coming right up.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper. In the "Money Lead" today, they are fattening up your 401(k) as the bell sounds on Wall Street. The Dow reaching yet another milestone rocketing to a new all-time high today. The Dow added 169 points to close at 15,461. The S&P 500 also broke a record, up 1.4 percent and the Nasdaq had its best close since the year 2000. All this fuelled by Fed Head Ben Bernanke's comments that the Federal Reserve would keep pumping stimulus into the economy for the foreseeable future.

Our "World Lead" now, we are now hearing the 911 calls from one of the most chaotic and frightening situations in recent memory from the seconds after Asiana Flight 214 clipped the seawall, crumbling and tumbling to a stop on the edge of the bay at San Francisco International Airport with the tail breaking off. Flight attendants literally pouring out of the back and the fuselage catching fire. These are the chilling descriptions and cries for help from the scene.

(BEGIN VIDEO CLIP)

UNIDENTIFIED CALLER: Yes, we were hiking on a trail outside of Pacifica and we just heard a giant explosion and I'm with a couple other hikers and they saw that an airplane had crashed right there.

UNIDENTIFIED CALLER: I just was in a plane crash and there a lot of people who need help.

UNIDENTIFIED CALLER: We have people over here who weren't found and they're burned really badly.

UNIDENTIFIED CALLER: We have someone here, we're trying to keep her alive.

UNIDENTIFIED DISPATCHER: Do you need help?

UNIDENTIFIED CALLER: Yes. We just got in a plane crash. There are a bunch of people who still need help and there are not enough medics who need help. There is a woman out here on the street, on the runway, who is pretty much burned very severely on the head and we don't know what to do.

(END VIDEO CLIP)

TAPPER: People feeling helpless and frustrated, seeing fellow passengers suffering. The crash claimed the lives of two 16-year-old girls from China who are coming to the United States for a church camp. Their families visited the crash site yesterday. But stunning the other 305 people on board did survive. Some are still hospitalized and in critical condition. The NTSB is now looking at the autopilot and the actual pilots who were flying the plane whether they had enough experience to be flying the 777.

Today we learned something new about the man who admits being the mastermind of the 9/11 terror attacks. This is so random. It's almost hard to believe. An Associated Press report said when Khaled Sheik Mohamed was in a secret CIA prison about ten years ago, he asked if he could design a vacuum cleaner.

Apparently he wanted to put his engineering degree to good use. This is a man who had been sleep deprived and water boarded 183 times. The CIA reportedly let him design the vacuum cleaner to help keep him sane, they explained. So he could maybe give more information or maybe stand trial one day. KSM is at Gitmo now and said to be in good health. It's not clear what happened to that vacuum cleaner blueprint.

Coming up, what can we expect to hear tomorrow from the George Zimmerman defense? We'll look ahead with our legal experts next.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper. We're back with our panel and we'll get their final thoughts on the Zimmerman murder trial in a moment. But let's go to another key moment in the trial that we referenced earlier in the show when Prosecutor Bernie De La Rionda pulled out the murder weapon and used it to show what he calls a major loophole in George Zimmerman's story.

(BEGIN VIDEO CLIP)

RIONDA: One of the things that he does, he demonstrates to the police where he had the gun and it wasn't right here in the front. It was towards the back and it was hidden and he'll demonstrate to the police out there where it was. Look at the gun. Look at the size of this gun. How did the victim see that in the darkness?

(END VIDEO CLIP)

TAPPER: Linda, what can the defense do to answer Bernie De La Rionda's question when they have their closing arguments tomorrow?

BADEN: Well, Jake, what they're going to do what they've done so effectively in this try is what I call moving the goalpost. They made it trial about who threw the first punch, not about the actual facts of the case that shows you a 17-year-old is dead. I expect Mark O'Mara will continue that and say it's the state's burden to prove to you that Trayvon Martin was not the aggressor and they can't do that and the reason they can't do that is because the poor young man is dead. That's what I expect to happen. I have to tell you I'm not sure it's going to be effective against a manslaughter charge. That's will be the issue the jury will grapple with ultimately.

TAPPER: Sunny, you were in the courtroom when the prosecutor was doing this with the gun. Did you notice any reaction from the jury during that particular moment?

HOSTIN: I will tell you that they certainly followed his every movement, and that was interesting to me. Often times during the trial they looked at the person asking the questions but they also looked at the defendant, they looked down at their notes. But this time every movement was tracked by this jury. What was also fascinating, Jake, is when the prosecution played the re-enactment that George Zimmerman did with law enforcement. They were watching that and taking notes as the state sort of went through the inconsistencies and I hadn't seen them do that in that manner.

TAPPER: We only have a few minutes left. I want to get some final thoughts from you all as the defense presents its closing arguments tomorrow. Tom, let's remind our viewers how the defense started their case last month. This is the interesting way it started.

(BEGIN VIDEO CLIP)

WEST: Knock, knock. Who's there? George Zimmerman. George Zimmerman who? All right, good, you're on the jury. Nothing? That's funny.

(END VIDEO CLIP)

TAPPER: I think it's fair to say that that probably was not the best start in a legal case, Tom. But generally speaking and let's remove that knock, knock joke from it all, how do you think the defense has done and how much farther do they need to go in order to cross the finish line and get him acquitted?

MESEREAU: They've done an excellent job, these are very, very good lawyers. They have talent, they have experience. They have insight. I think they've done an excellent job. They've called every type of witness they thought they needed to call to cover their bases. Their experts, I thought particularly Dr. Di Maio did an excellent job. I think they're very close to an acquittal.

I agree manslaughter might be a problem for them, which is why they've tried so vigorously to prevent an instruction on that charge. They've tried to emphasize where self-defense begins. I think they're wrong but they're emphasizing when these two get into some type of altercation and they're trying to minimize the effect or the impact of what George Zimmerman did to reach the point where they had an altercation.

I think they're going to say he brings the responsibility of bringing a gun to the situation, disobeying the police, disobeying the homeowner's association. They've done a very good job and they're close to an acquittal.

TAPPER: Do you think he's going to be acquitted or found guilty of perhaps manslaughter?

MESEREAU: I think there's a possibility of manslaughter because of the way this thing began and because of what I just said. Zimmerman chose to bring a gun with him. Zimmerman chose to ignore the police. Zimmerman has been caught in some inconsistencies, but because the defense has done such a good job hereby could be acquitted.

TAPPER: Linda, do you think Zimmerman ultimately made the right move by not testifying or do you think the defense did a good job by not having him testify?

BADEN: He made the right decision. If they had not played his statements from the beginning, Zimmerman would have had to take stand and they would have gotten everything in. We'll see if it was a good decision for them to put the statements in and force George Zimmerman not to testify.

TAPPER: Sunny Hostin, final thoughts?

HOSTIN: I think the defense has enough for a second degree conviction. Will they convict? I'm not sure. I'm waiting to see what the defense will do in closing because they are very skilled. I think they're going to show that re-enactment cartoon and I'm looking forward to tomorrow to see some really good lawyering.

TAPPER: All right, Sunny, Linda, Tom, thank you so much. That's it for THE LEAD. I'm Jake Tapper. I now turn you over to Wolf Blitzer in "THE SITUATION ROOM." We will see you tomorrow at 4:00 p.m. Eastern, 1:00 p.m. Pacific here on CNN.

WOLF BLITZER, CNN HOST: Jake, thanks very much.