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Live Coverage of the George Zimmerman Trial

Aired July 11, 2013 - 11:00   ET


RICHARD MANTEI, PROSECUTOR: 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.

It doesn't have to -- it doesn't say -- Gibbs certainly doesn't say deadly force because, of course, Gibbs is itself a non-deadly force case in the first instance.

So the state's argument is the defense is arguing what is credible, not what is actual.


DON WEST, GEORGE ZIMMERMAN'S DEFENSE ATTORNEY: Let me point out, as a matter of law, following someone on foot or by car is not against the law.

You are absolutely allowed to do that if you want to, and especially if you want to tell the police where the person is.

That cannot be considered provocation under the law, just like, because you happen to have a concealed weapons permit and have a licensed firearm on your person, that cannot be considered actual force or the threat of force.

It, obviously, under Gibbs, and the reasonable construction of this issue, with our common sense, is force means force. Force means force, physical force, or the threat of physical force, not a gun that's properly concealed, and certainly not the lawful act of doing what you're allowed to do in this state, which is if you see somebody suspicious, by your own definition, frankly, whatever you think is suspicious is good enough under neighborhood watch or by any other measure and you call the police and you're asked to let you know if he does anything else and you follow the person in order to be able to tell the police where they went, by car, on foot, what have you.

That's not legal provocation, and it would be error, and frankly, promote miscarriage of justice if the state were allowed to argue that to this jury.

MANTEI: There is a separate instruction whether or not there's unlawful activity. We're not asking the court to instruction the jury that wearing a hoodie and walking in the rain is also lawful activity. There is a separate instruction altogether ...

NELSON: We're not there yet.

MANTEI: I understand. Here we're talking about whether or not the totality of the ...

NELSON: We're still under the 776.041.


NELSON: The defense doesn't want it. The state does. The court is not going to give it.

The next paragraph in the defense version starts with, "However before you can find George Zimmerman initially provoked," that's in the defense version. It's not in the state's version.

Do you want to talk about that?

MANTEI: My understanding is, from what I've heard before, is it's only there in the defense version.

NELSON: Because of 77 ...

MANTEI: Because of 774.041, so if the court is giving none of that, I would assume they don't want that in there either.

NELSON: OK, then we go to the next one. It's in the defense as, "You are further instructed merely following Trayvon Martin by car or on foot in order to report his location to the police is not sufficient for you to find that George Zimmerman provoked the use of force against himself by Trayvon Martin, and before George Zimmerman can be found to have initially provoked use of force against himself, George Zimmerman must have used actual force or the threat of force against Trayvon Martin."

MANTEI: I think that's the same issue.

NELSON: So all of that comes out, too. Is that correct?

WEST: It's all part of the extended.

NELSON: Just making sure we get everything here.


NELSON: The next one is the paragraph that says, "In deciding whether defendant, whether George Zimmerman was justified."

I don't see any differences in those paragraphs. Am I correct?


NELSON: That's acceptable to both sides?

UNIDENTIFIED MALE: So is the next paragraph. NELSON: Well, on the next paragraph, interestingly enough, both of you did not follow Tally and take out the comma, and cases have been reversed because of that infamous comma after the words, "including deadly force."

That comma should be removed based upon Tally versus State at 103 -- I'm sorry 106 Southern 3rd 1015. Do we agree?


NELSON: Do you agree, Mr. West?

WEST: The -- that would read, "Stand his ground and meet force with force." Omit the comma.

NELSON: No. That comma stays in.


NELSON: The "including deadly force," that comma comes out.

WEST: Sure. That's fine.

NELSON: Do both sides agree with that?

UNIDENTIFIED MALE: Yes, your honor.

NELSON: Do you agree that complies with Tally?


NELSON: So there's no other issues in that paragraph.

The next one in the state's -- in the defense version is ...


ASHLEIGH BANFIELD, ANCHOR, "CNN NEWSROOM": Welcome back, everyone, to our continuing live coverage of what is winding down now in the Trayvon Martin versus George Zimmerman -- really, Florida versus George Zimmerman case.

It's a second-degree murder case. The attorneys are haggling now over the language that will be read to the jury.

What you just missed during commercial break, critical, Don West, attorney for George Zimmerman, standing up and saying, "I heard on the media last night that if George Zimmerman is following Trayvon Martin, he's guilty of something. He is appealing to this judge to insist that there is language in the jury instructions that indicate that's just not part of the law.

The truth is, it isn't part of the law, but the jury needs to understand it according to this defense attorney. Let's listen.

WEST: The jury told by this court it's not illegal to follow somebody, especially if you're doing it to tell the police where this person went.

NELSON: Response?

MANTEI: As the state objects, we would note it's the first time I've ever heard unnamed media commentary cited as legal authority to the court.

I would submit that, while following itself might not be illegal, that following is one factor that the jury is free to consider in this case. It is something that evinces the defendant's state of mind.

It doesn't have to be illegal, and I don't think the instruction -- we want to talk about what confuses the jury. When the court starts telling them things like, it is not illegal to walk across the street. It is not illegal to walk home from 7-Eleven in the rain wearing a hoodie. It is not illegal to be armed with a pack of Skittles.

That tends to confuse the jury. It is also inappropriate for the court -- basically requested instruction is a demand for judicial notice of a fact in question in the case to be communicated and given the imprimatur of a jury instruction to the jury.

The state contends that that -- it is not legally proper to request it. We object to any format of this, tweaked or otherwise.

WEST: Ask the state to produce the Florida statute that makes it illegal to follow somebody.

NELSON: You're asking him to prove a negative, basically.

WEST: No --

NELSON: And so my question to me is show me a Florida statute that says this is the law in the state of Florida.

You're asking me to put in here, "is not unlawful activity, under Florida law."

You can argue that to the jury in the closing argument.

WEST: Judge, Detective Serino said so, in his testimony. Any law enforcement officer ...

NELSON: Well, as far as I know, I don't think that he drafted any of the legislation.

WEST: Mr. Mantei didn't say it was illegal to follow someone. He can't cite you. Criminal statutes are pretty precise, designed to put people on notice what's legal and isn't.

If it's illegal to follow somebody, 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.

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 the defense and it's error by not instructing the law -- this jury properly on the law.

NELSON: I understand. I've already ruled. 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, 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 would like -- I'm not disagreeing, I would like, though, to move in limine, at this time, with regard to Mr. De La Rionda or Mr. Guy or Mantei's anticipated closing argument to ask the court to order them not to suggest to the jury that following somebody on foot --

NELSON: Do you want me to get into getting a predetermined transcript of what each side intends to argue at closing argument and go through it and say what can and cannot be argued?

WEST: No, ma'am.

NELSON: You are free to argue that.

WEST: Just this. It would be an improper argument of the law if the state were allowed to suggest to this jury that it is unlawful for someone to follow another individual by car or on foot.

NELSON: I'm not going to address that issue.

WEST: And the state being allowed to make that argument would mislead the jury as to the law and would allow the jury to make a decision based upon an improper legal premise, because the state can't make that argument legally, and I'm moving in limine now for the court to preclude that specific argument, and I understand the court's ruling as to the instruction.

NELSON: Your motion in limine is denied.

The next portion of the instruction is a paragraph going off of the defendant's suggested instruction. It starts at, "In considering the issue."

There doesn't seem to be any objection or difference in that paragraph. Am I correct?

MANTEI: I don't think so, your honor. And the next one as well. NELSON: OK, then the next one is, "If in your consideration of the issue of self-defense." It's a three-line paragraph. There doesn't seem to be any differences.

Is there any objections to that paragraph?

MANTEI: Not from the state.

WEST: No. I think that's the standard language now.

NELSON: OK, thank you. And then the last one, it starts with, "However, if from the evidence." It's three lines.

Is there any objections from the state?

MANTEI: No, your honor.

NELSON: From the defense?

WEST: Agreed. That's the standard language.

NELSON: OK. So I think we have -- were there any other requested changes or additions to this instruction by the state?

MANTEI: As it relates to the justifiable use of deadly force?

NELSON: Correct.

MANTEI: Again, having already argued and simply relying again on the case of Johnson versus State, which is also in the packet regarding the provocation instruction, no, your honor.

NELSON: OK, any others being requested by the defense other than the ones I've already ruled on?

WEST: Within the justifiable use instruction?

NELSON: Yes, yes, sir.

WEST: No, your honor.

NELSON: OK. Then the next one that we have, the defense has another on one -- oh, you just included in your packet the state's proposed instruction on justifiable use, is that correct?

WEST: I did, just for comparison purposes.

NELSON: OK. Thank you.


BANFIELD: Live from Sanford, Florida. I'm Ashleigh Banfield reporting. Let me just say that usually during a trial, the jury instructions are the most boilerplate boring part of the litigation. Not today. This is hard fought. The wording, even down to the commas. This judge has just suggested that a comma, if a comma ends up actually overturning a verdict it wouldn't be good and they fought over a comma. Rich Mantei and Don West going at it. Every single word, every phrase, every part of this jury instruction, they want to be so accurate because so much of this has come down to the words spoken and the words argued. Let's continue to listen.


WEST: It's clear the law allows it. The Supreme Court could have easily said at any point in time you can't give it. If you give it, it's error. They haven't done that. What they've done instead, what has happened since, if you will, is that if the court thinks it's appropriate in a given case because of the somewhat unique circumstances of that case, it is entirely proper to give the instruction.

So, knowing that it is proper, in some cases, I'd like to speak for a moment about why it's proper in this case. Since, if the court gives it, it's not error. If the court denies it, it's probably not reversible error unless a review in court finds that in fact this is that case, the case where it's specific enough as applied that it should have been given. That's sort of the standard that we're looking at.

Here's why it's important in this case. First of all, in voir dire, Mr. De La Rionda made a big deal, a really big deal, about direct evidence and circumstantial evidence. Getting the jurors to agree and to understand and to basically say, okay, circumstantial evidence is just as good as direct evidence.

We know it's not actually. It's not as good as direct evidence unless it meets the conditions or the criteria set forth here in this special instruction that this jury would have to apply in this case. It must be -- the circumstances themselves have to be proved beyond a reasonable doubt. The jury needs to know that when you're comparing circumstantial evidence versus direct evidence. They need to know, from this court, that the circumstances must be consistent with guilt and inconsistent with innocence. Meaning, if they have a fact that's circumstantial, that tends to prove something that the state is claiming it supports or it could be interpreted as establishing a doubt or something that the defense claims exists, then the jury needs to know that if they have to decide how to interpret that piece of circumstantial evidence, that before they can use it against Mr. Zimmerman, they have to believe that it is only consistent with guilt and could not be consistent with innocence.

In other words, Mr. -- Mr. Zimmerman gets the benefit of that issue. Whether or not it's consistent with guilt or innocence, they must find it in that instance, consistent with innocence and give Mr. Zimmerman the benefit of it.

And, of course, that when you connect up the dots, if you will, when you pile on all of these circumstances, they must be so conclusive that it can only indicate proof beyond a reasonable doubt of the guilt. If the circumstances are susceptible of two reasonable constructions, one indicating guilt, the other innocence, you must accept that construction indicating evidence. Indeed of the circumstances of this case, which is all circumstantial, if you will, on the issue of intent. And, frankly, a lot of it is circumstantial on the core issue of self-defense. Even though Mr. Root said that George Zimmerman's conduct was objectively reasonable under the information that he had, the jury has to find, was his fear -- did he reasonably believe that he was facing imminent great bodily harm or death if he didn't respond with force?

They're going to have to get inside George Zimmerman's head. They're going to have to take what was going on in his head under those circumstances, apply it to their own common sense, to their own somewhat objective standard of what's reasonable and what isn't and come up with a decision based on circumstantial evidence, whether under those circumstances it was reasonable, after being hit in the nose, after having his head smashed on the concrete several times and being held down on his back, whether it was reasonable for him to have responded to that force in the manner he did.

So, there is no other instruction, I think, that's a as -- as specific, as poignant, as appropriate to help the jury define -- to help the jury analyze the evidence in this case than this particular instruction. It could not be said to confuse the jury. In fact, it gives them the guidance that they desperately need in a case just like this one. So, of course, while the court has discretion, the discretion should be exercised here to give this instruction. It's perfectly proper.


BANFIELD: Welcome back to the Seminole County criminal justice center and our live coverage here on CNN of the George Zimmerman second degree murder trial. To say it's in the homestretch is an understatement. The hard fought jury instructions going on right now not something you often see in any kind of criminal procedure. Let me bring in Mark Nejame, who is a renowned criminal defense attorney here in Florida. You and I have been sort of gob-smacked, I think is a fair way to describe come of the repartee between Don West and this judge. I think fair to say she's kind of had it and fair to say he's kind of had it?

MARK NEJAME, CRIMINAL DEFENSE ATTORNEY: Yeah, there's no love lost between these two. I don't know I would describe it as gob-smacked. But --

BANFIELD: I have. Here's why. Because some of these rulings, especially in the motion in limine (ph), and by the way that was in common parlance, that was an effort by the defense to say, judge, you cannot allow the prosecution to get up there during closing and appeal to this jury that it's illegal to follow someone. She said, sit down, effectively.

NEJAME: I agree with the defense on this, in that the state has made much to do about the following. Well, the following occurred but, you know, they basically conceded by their -- when they were straddling these dummies that Trayvon Martin was in fact on top. So this whole depraved mind that he was following him and all that -- BANFIELD: Hatred, depraved mind --

NEJAME: They've almost conceded they're seeking a lesser included for negligence, for basically over reaction by George Zimmerman and this should end up being --

BANFIELD: Culpable.


BANFIELD: Is that recklessness?

NEJAME: Yes. They've almost conceded that. This whole depraved mind, this issue about stalking him and following him and these racial undertones and seeing a black kid in the neighborhood wearing a hoodie and all these things, you know, that's really not what we're hearing anymore. They changed midstream. Not even midstream, about 90 percent down the trial.

BANFIELD: So effective in a closing to include it.

NEJAME: Very -- when you read the blogs, go to my Twitter or Facebook. What do you hear? That he followed him. If he had never gotten out of the car, if he had never followed him. That represents the public. These jurors represent the public. A lot of people are locking on to it.

BANFIELD: You just hit the nail on the head. There's the public, there's the cable analysts. There's the yelling and the screaming and there's the law. And the law states in Florida and probably most of the other 49 states it is not illegal to follow. Period.

NEJAME: Period.

BANFIELD: So to instruct a jury -- any time you instruct a jury on the law in closings is not allowed. If you try to object as a defense attorney, it looks bad.

NEJAME: It looks bad. You try not to interrupt each other's closings. There's no love lost for these two sides. They're brass knuckles, bloody knuckles and fighting each other on everything and there will be interruptions if one side doesn't like what's being said in closing. With that said, the challenge now the defense has got, when the state brings it up and they go, judge it's not against -- she doesn't allow speaking objections. Then, if she overrules the objection, then you've really highlighted the area and it looks even worse for the defense.

BANFIELD: And it's like a team sport. People get very angry. I want to go back into this live proceeding, Judge Debra Nelson, who by the way, love her or hate her, she rules this court with an iron fist and she has kept this process moving. I will remind you about O.J. Simpson's case took over nine months and Judge Ito may not have kept that court moving with the iron fist that this judge does, so again, love her or hate her, it's moving and that's important.

All right, so she's now instructing on some expert witnesses. Let's listen.


NELSON: There is no objection to that instruction being given. Is that the same today?

MANTEI: It is from the state.

NELSON: Mr. West, you don't have to keep jumping up and down. You can remain seated.

WEST: Thank you.

NELSON: You're welcome.

WEST: I just caught something here, whether we're going to personalize these instructions, too?

NELSON: All of them. Every single thing will be conformative.

WEST: Yes. No objection.

NELSON: Rules for deliberation. Yesterday, there was an indication there was no objections to this instruction. Does that remain the same today?

WEST: Yes, your honor.

MANTEI: Your honor, if I may as to the substitution of the names, do you want that in the title, too, the defendant's statements to the title you want that to say George Zimmerman's statements?


MANTEI: Yes, your honor.

NELSON: Thank you.

The instruction on notes, the indication yesterday there was no objection. Does that remain the same?

MANTEI: Yes, your honor.

NELSON: Cautionary instructions, no objection yesterday, does that remain the same?

WEST: Yes, your honor.

NELSON: Verdict. No objection yesterday, does that remain the same?

MANTEI: Yes, your honor.

NELSON: Defense?

WEST: Yes. That's fine.

NELSON: Submitting the case to the jury, no objections yesterday, does that remain the same?

MANTEI: Yes, your honor.

WEST: Agreed.