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CNN NEWSROOM

Live Coverage of the George Zimmerman Trial

Aired July 11, 2013 - 10:30   ET

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


DEBRA NELSON, SEMINOLE COUNTY, CIRCUIT COURT: Well in all due respect to that statement, the court hasn't been provided a lot of things that have been requested to have hearings that the court has had up until late in the evening, until the last minute or I requested of it, so that in and of itself is not an argument and I don't want to go there.

So let's go onto the argument about this instruction.

DON WEST, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: I'm not prepared to make an argument. This was just e-mailed to me, buried in the set of instructions that the state's obviously been working on for months and months and months, just to spring it on everyone at the last minute.

Mr. Mantei has this fully formed organized argument based upon all this case law that I guarantee you he didn't come up with between yesterday when they wanted aggravated assault and this morning when they now want third degree murder based on child abuse. Really? This court is sitting right there apparently approving of this.

NELSON: That's not -- that's not proper argument.

WEST: It's not fair to me. It's not fair to Mr. Zimmerman or Mr. O'Mara or the court for this to happen like this right now. I need time to sort this out if the court is going to give any consideration to this remarkable, remarkable suggestion by the state that somehow third degree murder, based upon, what, an 827, chapter 827 and chapter 39 violation of the child abuse statutes could somehow, when Trayvon Martin is shot straddling George Zimmerman, pummeling him, that somehow George Zimmerman was engaged in child abuse?

NELSON: The Supreme Court's jury instructions that are online and in the rules of criminal procedure books indicates that the offense charge of second degree murder, a Category 1, is manslaughter. A Category 2 is third degree felony murder, vehicular homicide, non- homicide lesser would be an attempt, culpable negligence, aggravated battery, aggravated assault, battery and assault. These are part of the jury instructions that have been known to this court since I've been on the bench. So the --

(CROSSTALK)

WEST: Would the court ever for a second think --

NELSON: I'm not finished speaking. Please.

WEST: I'm sorry. I apologize. NELSON: Thank you. The -- the possibility of a Category 2 is known to counsel at the beginning of the trial.

WEST: Your honor, in the same way, we would expect vehicular homicide be offered?

NELSON: But the evidence doesn't support that and the state's argument is at first yesterday, when they provided the court with the possible lesser and one of them was aggravated assault, I didn't have any information available to me that led me to believe that that would be a charge that would be given, because the facts did not support an aggravated assault lesser included offense.

WEST: Yes.

NELSON: Their argument today is that the facts support a third degree felony murder with the underlying enumerated felony being child abuse. That is permissible under the statute. If you need -- I'm not going to -- I'm not going to give you hours. You have -- I don't know how many lawyers you have working with you on this case --

WEST: I have -- well --

NELSON: Well you have four in the courtroom and I know there's a room downstairs full of people.

WEST: Miss Truitt is a lawyer and Mr. O'Mara is a lawyer. That's who we have as lawyers on this case. Everyone else is a volunteer, an intern who has really done remarkable work but we can't rely on non- lawyers to do the kind of work that's necessary right now.

Judge, this was a trick. Doesn't the court realize this was a trick by the state?

NELSON: My -- my intention right now is to get through the rest of the jury instructions, because if we had any arguments about the others, I would like to get them resolved. We will come back to this one. I understand your argument. We will come back to this one.

RICHARD MANTEI, PROSECUTOR: The state also proposed I think (inaudible) instruct as to justifiable and excusable homicide, just as we do with second degree murder with respect to third degree murder and the manslaughter so that has also been included.

The next, I guess, area of discussion moves to the justifiable use of deadly force instruction.

NELSON: Ok. I'm there. I have both in front of me.

WEST: At the court's request, I did attempt to incorporate much of the proposed language from the current proposal being considered by the Supreme Court's jury instruction.

NELSON: Just a second, Mr. West, are you caught up to the justifiable use of deadly force?

WEST: No.

NELSON: Ok let me know when you've got it in front of you.

WEST: We're skipping over the proposed lesser included of third degree murder based on child abuse?

NELSON: Yes, yes, we are. We're now onto the justifiable use of deadly force instruction.

WEST: I object. I object to the instruction that the state proposes and I have prepared an alternate instruction. I think the court probably -- probably has.

NELSON: Well, there are some differences and I know that there are additions in the defense. The state was just informing me that they have incorporated some of your suggestions. And that's where we are on that instruction at this time.

WEST: Ok.

MANTEI: As it relates to that instruction, your honor, the first line really isn't in dispute with the exception the name change, that being at issue in this case is whether George Zimmerman acted in self- defense.

The next difference is in the next sentence. It is a defense to Mr. West has said --

WEST: I'd like to argue my own instruction rather than having Mr. Mantei --

NELSON: I see what the differences are.

WEST: Sure.

NELSON: The difference in what the lesser included offenses are.

MANTEI: Correct. I don't have an objection to the phraseology in the defense's proposed instruction such that it would read it is a defense to the crime of second degree murder and to the lesser included offense, whether we make that offense or offenses of manslaughter or manslaughter and third degree murder, I guess that's to be determined. But the way it is phrased is not objectionable to the state.

Deadly force, that line appears to be the same. The next marked difference is that the state's proposal is to include the two paragraphs suggested for section 782.02 being the use of deadly force is justifiable and it used to read only but the current proposal omits the word "only" so this state proposal also omits the word "only" from the standard instructions.

So it reads use of deadly force is justifiable if the defendant reasonably believed that the force was necessary. That entire paragraph as well as the next paragraph, which defines aggravated battery, which is, as I understand it, the enumerated violent felony or forcible felony that the defense is alleged was being perpetrated upon the defendant.

NELSON: Is that correct?

WEST: I'm not clear what Mr. Mantei is referring to now.

NELSON: If you were to look at the state's suggested instruction, the third paragraph down, so we're talking about the third and fourth paragraph, it requires for the justifiable use of deadly force, for the -- for the defendant to prevent imminent bodily death or imminent death or great bodily harm to himself while an attempt to commit some type of enumerated defense upon him.

WEST: We're not asking for that instruction. We don't think that it's the issue in our case. I've drafted an instruction I think specifically addresses the legal issue before the jury and properly sets out the standard that the jury should apply.

(CROSSTALK)

NELSON: So let me -- let me just make sure I have this correct. That the defense is not wanting an enumerated felony upon him by the victim in order to have justifiable use of force?

WEST: That's right.

NELSON: Ok if that's what they want, that's what I'm going to do.

MANTEI: Well, if I could be heard on that?

NELSON: Yes, you may.

MANTEI: The standard instruction, both the current and the proposed indicate that that is actually a required instruction because it is essentially the -- if you look at the statutory citation, 782.02 that is the definition of justifiable use of deadly force in the Florida statutes.

The next paragraph simply defines the force of a felony. So in order to be entitled --

(CROSSTALK)

NELSON: Yes what section are you saying? I've got the 3.6 F justifiable use of deadly force, the one that's being considered by the Florida Supreme Court.

MANTEI: Correct. There is a -- if you look at the italicized, give the applicable 782.02 Florida statutes, the use of deadly force is justifiable. It is that section. When you --

NELSON: But it says give, if applicable.

MANTEI: Correct in 782.02 is entitled. This is the statute under homicide, it is justifiable use of deadly force. That is what section 782.02 is. And my argument is this is a homicide case and therefore that is mandatory. That is -- the reason it's referenced in the standard instruction, it's a homicide and therefore if they're seeking a request on justified deadly force.

NELSON: If you look at the italicized part on page 2.

MANTEI: Yes.

NELSON: It says define applicable felony the defendant alleges victim attempted to commit.

MANTEI: Yes.

NELSON: And they're saying they're not alleging any.

MANTEI: If they're not alleging that, then my position would be they're not entitled to justifiable use of deadly force instruction because unless the victim was doing that we don't have this situation.

So if they don't want to allege that Trayvon Martin was committing any forcible felony upon the defendant, then what they're -- my argument would be what they're telling the court is they don't believe this is justifiable use of deadly force. I didn't take it for a second that's their argument. That's the reason I put this language in here.

NELSON: Response.

WEST: Yes. The state is seeking this instruction as part of a larger scheme, another trick that the state is seeking --

(CROSSTALK)

NELSON: I don't want to hear the word "trick" anymore in regards to these arguments, please.

WEST: Well we don't want that instruction. We're not claiming aggravated battery specifically so as the jury would be instructed on the elements of aggravated battery. The state wants the -- a, the court to come up with a definition of aggravated battery and it can't get that until it gets -- convinces the court to include that Mr. Zimmerman is claiming that Trayvon Martin was committing an aggravated battery.

This instruction that I provided is exactly the law and it's the instruction that's in the standard that relates to chapter 776. That's the justifiable use of force chapter and that's the language that we used in our instruction because that's the issue.

In fact, Judge, it's the only issue in the case. It's always been the only issue in the case. And that is, that a person is justified in using deadly force if he reasonably believes that such force I necessary to prevent imminent death or great bodily harm to himself. That's the only issue.

NELSON: Then that section goes on to say while resisting an attempt to commit (inaudible) applicable felony upon him or any dwelling in which he was present.

WEST: He wasn't in his house. NELSON: So it's either the applicable felony or in his house.

WEST: No.

NELSON: That's the use of -- that's the justifiable use of deadly force.

WEST: No. We disagree.

NELSON: Well, then get me case law that says that that's a wrong interpretation.

WEST: Look under the standard instructions, the standard instructions actually, I have both. I have the proposed ones as well that the court directed us to. The court is looking at the wrong part of the instruction, as is Mr. Mantei. Give, if applicable under 776.012 and 776.031. A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself -- that's one.

Or the imminent commission of felony battery or -- I'm sorry, the applicable forcible felony. In this instance, the state claims aggravated battery or the imminent commission of aggravated battery against himself. It's an alternative. It's not required. And we're not asking for it. We're asking for exactly what happened in this case, and that is that George Zimmerman was resisting reasonably imminent death or great bodily harm, as this proposed instruction reads and in fact frankly as the old one did, too.

NELSON: These proposed instructions are rather lengthy and they give a lot of alternatives. The very first one says to read in all cases. Then there after, it says, give a or b as applicable. Also, there is some instructions to give only if there is evidence of what is seeking to be defined.

MANTEI: The basis for the 776.412 instruction is chapter 776.012 which the court just read and the court read it correctly, that it requires, one, justified in the use of deadly force doesn't have the duty to retreat if one --

NELSON: 776.012 -- I'm looking at the instruction.

MANTEI: Well the -- but -- I'm saying the instruction refers you to the statute. I'm reading the statute.

NELSON: Ok.

MANTEI: The statute says a person is justified in using force to accept deadly force against another when to the extent the person reasonably believes such conduct is necessary to defend himself or herself. However a person is justified in the use of deadly force and does not have a duty to retreat if, one, reasonably believes it's necessary to prevent imminent death or great bodily harm to himself or herself or to prevent the commission of a forcible felony or under another set of circumstances.

NELSON: They're or.

MANTEI: Sorry?

NELSON: They're or.

MANTEI: Yes.

NELSON: They're alternative.

MANTEI: Yes. That is the 012 instruction. The justifiable use of -- the justifiable homicide instruction is what I have written here, which is the 782.02 which I have yet to hear why that is not applicable. Justifiable use of force is required to be given. It is certainly applicable. I don't dispute necessarily that Mr. West's 776.012 might also be applicable, in fact, I include it later. What he's asserting is it's the only thing that's applicable and that is where he and I part company.

NELSON: Ok. That's an issue. What about the rest of the instruction?

MANTEI: The rest of the instruction, beginning with the line "however the use of deadly force is not justifiable if you find" the defense has inserted the phrase "beyond a reasonable doubt".

NELSON: Ok. You're going too fast for me.

MANTEI: I'm sorry. It's the line that begins "However --

NELSON: What page? Ok.

MANTEI: -- the use of deadly force is not justifiable if you find" the defense has inserted the phrase "beyond a reasonable doubt" at that point.

NELSON: Ok. I see that. What is the purpose of that?

MANTEI: I assume it is simply to restate what is said at the very last paragraph on the next page, "convinced beyond a reasonable doubt." It is simply a second place to say it. If they want it there, we'll put it there, too. That's fine.

NELSON: Ok. So that's not an argument. What is the next --

WEST: There's a larger issue here though.

NELSON: They're not arguing with it being in there so we don't need to go there.

WEST: Well, I included this language as a mirror of the change --

NELSON: They're not objecting.

WEST: But I am. In the sense --

NELSON: You don't want it included in what you put in yours? WEST: No. I put "beyond a reasonable doubt" in there and the state agrees, so we're past that.

NELSON: Ok.

WEST: I included this whole section, which is based upon Mr. Zimmerman initially provoking the use of force against him.

NELSON: I don't think they have an objection to the section.

WEST: No. I do. But I included it --

NELSON: Well then, why did you put it in your instructions?

WEST: For discussion because --

NELSON: Ok.

WEST: -- because it only becomes relevant if indeed there is substantial evidence to establish that Mr. Zimmerman provoked the use of force against him, as defined by law. And I think the state should be required to articulate the facts in this case upon which it would claim and argue that Mr. Zimmerman provoked the use of force against him. And if they can't do that, they shouldn't be able to argue it and the jury doesn't need to deal with it.

So this, in some ways, can be a misleading instruction, not applicable to the facts unless the state can articulate to the court's satisfaction that there's some construction of these facts that could establish beyond a reasonable doubt, by this jury, that George Zimmerman provoked the use of force against himself under the prevailing case law that defines what provoked legally means.

NELSON: Ok. Respond.

MANTEI: Certainly. Obviously we're talking about facts and reasonable inferences there from. The facts that would support and the inferences there from that would support whether or not the defendant provoked this is that number one, the defendant followed the victim. He admitted that actually. Number two, obviously, the testimony of some of the witnesses -- number one, Miss Bahador (ph) who hears the pursuit; number two, Miss Jeantel who hears the defendant involved in an interaction with a person who he tells to get off, tells Miss Jeantel he is following me, he's doing this, he's coming up again. She hears a scuffle, a struggle, some physical conduct. I believe Mr. Dika (ph) saw the defendant on top of the victim and she said before the gunshot. I understand that's a point of contention and a point of dispute. It is still a fact in front of this jury and they can draw reasonable inferences from it.

So when you combine the known facts that this defendant is the one at least under a certain construction of facts and inferences there from who initiated the confrontation -- that is provocation. It is not just mere words, as I think is going to be the argument. It is apparent that there is a physical accosting. There is a close to close quarters. The defense's version, obviously, I think, we've gotten pretty clear is that, no, the defendant isn't the one who initiated this or provoked it, it is rather the victim who provoked it. I think the facts testified to leave both inferences equally valid. There are facts to support both and that is the reason I think the instruction should be given to the jury.

They're free to argue, that, no, what the defendant did either does not constitute provocation or the victim did all the provocation. But I think the facts, as testified to by the eye and ear witnesses as well as the defendant's own statements. And let me add to the fact that when you add on top of that, that the defendant's own statements, some of them have been shown to be materially, a, inconsistent with one another, and b, false, that those are inferences the jury could make that the defendant provoked this initial encounter.

I'm sorry. We had that argument sort of at the JOA.

WEST: The court didn't address that argument in the JOA. And I don't know if the court intends to draft an order specifying why the state, in the court's opinion, had met its burden.

However, what Mr. Mantei just said isn't the law. Not even close to the law. And it's not factually supported by the witnesses that he claims now he can use to support this notion of provocation. Celine Bahador, if the court will recall, for the first time ever, came up with this story in court there was some sort of vague movement from left to right, which would suggest in some sort of vague way that people, not necessarily Trayvon Martin or George Zimmerman, but somehow people she thinks might have moved in a direction toward this -- in the direction of the T -- and we know where her house is. It's the third one down. That's as close as she ever got. She said for the first time ever in court after she met with Mr. de la Rionda the night before. That was pretty clear in the record that she had no clear evidence to offer at all other than this sense that she sensed movement or shadows or something.

So let's assume even -- we can't even assume that's true because it makes no sense compared with the other evidence in the case, that Jayne Syrdyka's (ph) evidence would support provoking. Jayne Syrdyka could not have see what she claims to have to seen. It's physically impossible and that's been established by medical testimony, by ballistics testimony.

She says that at the time the shot was fired she was looking out the window and immediately after the shot she saw George Zimmerman stand up and Trayvon Martin lying face down. We know that just couldn't have happened -- that she's wrong. Whatever she thinks she saw, she got it wrong. No matter how well intended she is, she got it wrong, because Trayvon Martin undeniably was shot in the front, not in the back. That's not evidence worthy of any consideration by anybody on what happened at the time of the shot.

She didn't see the confrontation initially. She didn't see George Zimmerman be struck in the nose by Trayvon Martin or anything else connected with that. She heard some voices. And she made gross inaccurate assumptions, based upon hearing those voices, but she saw nothing by her own testimony that would establish George Zimmerman provoked the contact between him and Trayvon Martin.

And let's not forget, Judge, that when Trayvon Martin was known to have been running away from George Zimmerman, George Zimmerman was still in his car. Miss Jeantel corroborated that at the time the second to last call disconnected was when she told Trayvon Martin to run and he did because the next time she talked with him he told her that he had lost the man.

The reconnect time was about 20 seconds. And then they stayed on the phone for the next three or three and a half minutes. In the meantime, George Zimmerman is on the phone for a good bit of that time with the police. So, what we know from that, in and of itself, is that Trayvon Martin had two or three minutes to get home, to get home 348 feet. He had two or three or maybe four minutes to do that, and chose not to. He decided either to go home and come back or that he decided to hang around and wait for George Zimmerman to get off the phone so he could confront George Zimmerman and ask him whatever he said, why are you following me or, man, what's your problem? Whatever that was he said, he's the one that initiated it.

That's clear from Miss Jeantel and frankly any other evidence in this case. We know that happened from the physical evidence as well as the circumstantial evidence we know is just as good as direct evidence, according to Mr. de la Rionda. That's established clearly.

There was no pursuit. You heard the call. Mr. Zimmerman said, when he was told we don't need you to do that, ok. He was on the phone for another what minute or so? We know where the event took place. It started at the T. George Zimmerman's flashlight was found right there, the one he had in his hand on his way back to the car, in the direction of the car, thinking that the police were going to arrive any minute.

It is outrageous to suggest that there is sufficient evidence to offer to this jury that George Zimmerman provoked this incident, because what the law requires, in order to have provoked this incident, is proof that there was the use of force, the actual use of force or the threatened use of force. Walking up to somebody, following somebody is not enough to get you to the legal definition of provoke.

That's the Gibbs case, it's absolutely clear where the court committed reversible error by not saying that, if you will, in its instructions. Mr. Mantei knows that case. There's no legal issue as that's what provoked means. For him to say that George Zimmerman followed Trayvon Martin is a legally supportable basis to claim that he provoked the violence that Trayvon Martin used against him is disingenuous and legally incorrect. He knows that. And he knows better than that, to try to convince the court.

So I have the Gibbs case law. The court knows how that works and the state has not offered a compelling argument, supported with facts or the law, why the court should introduce this issue to the jury to make them even consider that George Zimmerman may have provoked this. MANTEI: Gibbs, of course, is a justifiable use of non-deadly force case. But the only language that the Gibbs court said should be included rather than the full paragraph is force or threat of force under the facts of that case. Before I get there, let me just point out that the entire thing I've just heard is we don't think the witness was credible or we don't think that the jury should draw a certain inference, but Mr. West hasn't said yet, that those aren't the facts that are before the jury and that the inference is not permissible.

I understand he doesn't think they're the right ones, but that's not a reason not to give an instruction. The instruction is what are facts before the jury and what are, at least some, reasonable inferences to draw from them, when a person admits following another individual, when someone hears the individual who's being followed say, let go, get off, is running away from and in fear of this other person who is following, when there is a sound and evidence physically of a physical struggle between them, there is evidence that the defendant is the provoker, especially when he admits he was following both on wheel and on foot.

Again, we sort of hashed that out at the JOA, I had thought, but there is evidence and inferences from the evidence. I understand Mr. West doesn't think of any of it is credible or right. Respectfully that's up to the jury, not Mr. West. The issue is, I think, the provocation language should be included. The only issue I hear is whether or not it also ought to, on top of the issue of provocation include the phrase "force" or "threat of force". And again, carrying a firearm or grabbing or accosting to the point that someone hears "let go" and a physical struggle, that is evidence of force or threat of force.