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Fireworks in Zimmerman Case Over Charges, Jury Instructions.

Aired July 11, 2013 - 11:30   ET



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

MANTEI: Yes, Your Honor.

NELSON: Defense?


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

MANTEI: Yes, Your Honor.

WEST: Agreed.

NELSON: OK. We have to talk about the felony murder, third degree. One of the -- one of the elements for felony murder or the child abuse, the child abuse portion of the felony murder --

MANTEI: Yes, Your Honor.

NELSON: -- is the intentionally. Having an initial issue with that. Child abuse requires the defendant to have committed an intentional act.


NELSON: That's not alleged in your information.

MANTEI: The shooting is an intentional act. It's the same intent required for second-degree murder. Second-degree murder requires the additional depraved mind element. But I don't think it's argued that this was an unintentional shooting. The question is whether it was justifiable, but not whether it was intentional.

NELSON: That's the issue that I'm going to be looking at. I will give Mr. West some time to do that.

The other -- was there any objections to the manslaughter instruction, as it is written?

WEST: No. NELSON: So the only one that I have to deal with and make a determination on is the felony third-degree murder. Can we then now look to the proposed verdict form?

WEST: Judge, to the third degree murder issue, judge, of course, the court pointed out, it's one of those historically category two, which means that it's discretionary, so long as the evidence --


NELSON: The state gets it if they want it, if the facts fit to it. It's not really a discretionary issue.

WEST: I disagree, but --

NELSON: OK. I'll cite you too. I think it's Johnson versus State.

WEST: In any event, I'll look at that.

NELSON: I want to make sure I give you the right citation.

WEST: But it's clear that the state must convince the court that the unique facts of this case --


NELSON: Of course. Always the facts have to fit into it. That's not the issue. The issue is whether or not, if the facts fit into it, do they get a second degree -- second category 2 instruction.

MANTEI: There is the state's proposed special jury instruction regarding the definition of great bodily harm as well.

NELSON: I'm sorry.

MANTEI: My understanding the defense objects to that in it's entirety and obviously, I don't intend to place it, if it is given, at the end, but we could discuss placement, if we wish, if the court is going to promote it.

NELSON: OK. Let's put it on the record to make sure. State's proposed special jury instruction number 1, defining great bodily harm, setting the authority of (INAUDIBLE) versus state, 847 Second 423, 5th DACE, 2003 (ph). Suggested instruction raised great bodily harm in the context of aggravated battery means great harm is distinguished from slight, trivial, minor or moderate harm and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery. That would be if the court was giving the instruction on the justifiable use of deadly force, that included the force of it being inflicted on the defendant, is that correct?

MANTEI: Well, I don't agree necessarily, just to that. I would agree that if the court is not going to give the issue about aggravated battery, that we might remove the phrase of "aggravated battery." However, even the requested instruction by the defense discusses the concept of in fear of imminent death or great bodily harm. So I think the definition and the concept behind Chesnaub and Coronato (ph) and Gordon and Owens and all these cases cited here is defining great bodily harm, so the jury has a frame of reference, whether the court gives the state's requested additional instruction or only the defendant's instruction.

NELSON: Let me see if I'm hearing what you say right. You take out in the context of aggravated battery --


NELSON: -- and then put it in the defendant's version of justifiable use of deadly force after the paragraph "a person is justified in using deadly force if he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself"?

MANTEI: That would be a reasonable location, yes, Your Honor.



ASHLEIGH BANFIELD, CNN ANCHOR: Welcome back. Live in Sanford, Florida, I'm Ashleigh Banfield, covering the George Zimmerman second- degree murder trial live.

I just want to reset the stage for you in case you're just joining, or even in case you've been listening. It can be very arcane and very difficult to understand the legalese that goes on, especially during jury instructions and what the statute says and how they will define it to this jury. Usually, it's boilerplate and a little bit boring. There's been nothing boring in this murder trial. It has all been electrified. Even jury instructions have been contentious and ugly, and it has brought them to anger, in fact.

Let me give you a quick idea what we have here. There has been fighting with the judge with Don West. Ad they're just going over technical stuff. You're not missing big arguments right now. But they have been arguing over fighting with the judge and arguing over arguing. That's part of this problem. They wanted to instruct on the definition of these different laws. Pardon me. I'm having a little issue with sound in my ear, so while I get that re-established.

While the prosecution argued, they want to instruct this jury on third-degree murder, underline third-degree felony murder, with the underlying felony being child abuse, because Trayvon Martin was 17 years old. That elicited an eruption from Don West -- on your screen -- saying, "Are you kidding me? This came at us at 7:30 this morning. I'm not even prepared to argue this yet because it was sort of like a left hook, I didn't see this coming. This is a lot of research we have to do." That's part of the problem that's been happening in this courtroom.

The other issue is they wanted to define "great bodily harm" because if there's great bodily harm, we need to assess what harm did George Zimmerman actually suffer. Was it great bodily harm? Because in justifiable homicide, in this statute, you need to establish great bodily harm might have been imminent. They wanted to define, what was it? Cuts and bruises? Or something more significant, broken bones, broken nose, bleeding from the head, et cetera?

I want to bring in Mark Nejame quickly on this.

Because you have been in this courtroom with this judge, you have worked with her before. This is your state. You know the statute like the back of your hand. I look at him and he knows the answer to everything.

I have not seen such arguing going over commas, wording and actual statute and what the jury will be instructed as I have here. Highlights are what?

MARK NEJAME, CRIMINAL DEFENSE ATTORNEY & CNN LEGAL ANALYST: You got into the bruising issue. And that's what they're discussing now, what is bodily injury. The state is trying to say bruising does not constitute that. They're in this midst of that now.

But the big issue is, you heard Don West really arguing about two things, one, he lost about it, wanted, as indicated, it was not against the law for George Zimmerman to follow Trayvon Martin. The judge said, no. They can go ahead and claim that. That's part of where they're going with this whole thing.

BANFIELD: It's weird because, in closings, you're not allowed to instruct on the law.

NEJAME: It's going to be out there. Now, the defense has a real tactical issue. Do they object when it gets brought up during the course of the closing? Because that's a big part of the state's case and it didn't really get --

BANFIELD: By the way, during closings -- this is a little known fact -- not many times do you see objections. It's not considered to be a good thing to do. During Jodi Arias' closing, a dozen or so objections. Really strange.

NEJAME: That might speak to the entire profession. Less and less professionalism is given. It used to be that both sides, you put up the white flag at that point and you go ahead and let everybody make their arguments. But --


BANFIELD: Your colleague here, Don West, he is right now talking about the great bodily issue. Let's listen in and then get analysis afterwards.

WEST: For the court to deviate from the jury instructions with something specific that doesn't apply, that's not an accurate statement of the law or a definition that has been approved in self- defense cases. This is treading on very thin ice for this court, very thin ice for the court, under these circumstances, to instruct this jury on something that just isn't the law.

NELSON: Response?

MANTEI: I disagree. The standard jury instructions for any defense, self-defense, anything, there is no definition anywhere. That's the reason the courts have given it. Self-defense isn't sort of some special circumstance. The fact is the phrase "great bodily harm" is used in an instruction. Whether it's in the self-defense instruction or whether it's in connection with another instruction isn't the point. The point is the court said, and all these courts said, the standard jury instructions provide no definition of great bodily harm. And that's anywhere. That is the reason they approved the court giving the jury some guidance as to what that might be.

I will first point out that Mr. West is not correct that any doctor said injury X must have come from beating your head -- i think as he put it -- hit on the concrete or bashed on the concrete. What he said was, it is possible and consistent with that happening and consistent with getting struck by any hard object, including a fist.

WEST: No, that's not true.


NELSON: Please don't interrupt each other. But I'm going to interrupt.



NELSON: You have to take each of these proposed jury instructions and the special instructions being requested by either side and weave it into what the evidence shows so the jury can be instructed.

Your argument that you just provided to me has two different sides of the story that the jury can decide which one they believe. Whether the injuries were consistent or they were not consistent. The instruction that you're seeking to have entered is -- says that "great bodily harm is distinguished from slight, trivial, minor or moderate harm, and as such, does not include mere bruises as are likely to be inflicted in a simple assault and battery." The testimony before the court, whether the jury chooses to believe it or not -- that's their purview -- is that you don't have to have any injury to be in fear to the extent of the justifiable use of deadly force.

MANTEI: I agree with everything the court said. That's why the argument wasn't quite finished. What we're talking about here is the defendant's reasonableness of his fear. If his fear is only that he's going to get a fist beating, for example, that is -- that is something that the jury should know in relationship to the definition of great bodily harm.

NELSON: I find this definition akin to what I've just stricken from the defense request that they want me to instruct them that the Florida law is it's not illegal to follow somebody. I find this akin to that. So I understand your argument. You have it all on the record. I've cited the cases that you cited to me in support of them. They're on the record. Unless you have further argument about that, I'm ready to rule.

MANTEI: Well, especially, the only further argument I'll make on it this, especially since I believe we should include the aggravated battery sections as relates before, especially since, I think those should also be included, most certainly this definition should be included.

NELSON: I've already struck those, so that's not an issue.


NELSON: OK. The court is not going to give that special instruction.

So is there any other special instructions being requested by the state? Additions, omissions, anything?

MANTEI: The only -- again, the only other one was the provocation instruction under Johnson, where, because there's evidence in the record that Johnson may have initially provoked, that should be given. But those were the two that I think the state was requesting here, and then the aggravated battery definition.


MANTEI: That was it.


BANFIELD: Welcome back to Sanford, Florida. I'm Ashleigh Banfield, recording live at the Seminole County Justice Center. That has been a very busy place the last few weeks. And we're in the homestretch of the second-degree murder trial against George Zimmerman. The judge in this case, Debra Nelson, is looking over case law right now.

A good opportunity to get to Danny Cevallos and Faith Jenkins.

Danny, I want you to comment for me, if you will, right now, over how critical in a case jury instructions are. Honestly, when you hear them being read in a courtroom, they're so technical, they sound so eloquently worded, like a legislature put them together. Oftentimes I wonder if they're lost on the jury and yet they're battling tooth and nail for every word.

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: No. I think they're critical. Here's why. When the attorneys give their closing argument, I think jurors take a little -- they understand, look, they're obviously biased. This is the adversarial system. The lawyers have an opinion and are giving us their argument. But the last words they hear are going to be from that judge, the person sitting up in the black robe, a foot higher than everybody, instructing them on the law. If an attorney can get in the jury instructions that the attorney wants, they've effectively grafted their own final argument, their own closing into the jury instructions. So it's critical. Even though you're absolutely right, it's often glossed over and done very quickly, it's of critical importance because the judge will be instructing the jury what the law is and who do you respect in that room more than the judge?

BANFIELD: It takes about -- every case, every jurisdiction is different. It takes upwards of about 20 minutes to read those jury instructions after the closings and the judge does it. She reads those instructions, right to the jury.

In some jurisdictions, Faith, you are not allow, as a juror, to take a copy of those jury instructions back into the deliberation room with you. You are somehow supposed to, through osmosis, have that in your DNA, as you go over all the evidence and absorb all those closing arguments as well.

How many times have you litigated in a courtroom as a prosecutor have you had an issue where a jury has come back and said, what was that law part again? Can you define that thing again for us?

FAITH JENKINS, CRIMINAL DEFENSE ATTORNEY: Right. As a prosecutor, I always knew it was a problem if the jury came back and wanted to know what's the definition of reasonable doubt again.


JENKINS: That's the one question you don't want the jury to come back and ask when you are prosecuting a case.


JENKINS: But you're right. These jurors, and as you can see, now, some lesser included may be included here, so they're going to have a lot to consider, not only the statute itself but the definitions, the definition of every word. "Great bodily harm," you just heard the prosecutor ask the judge about a definition there. That's a lot to recall and a lot to remember for the jurors.

BANFIELD: It is a huge amount. It is so technical. Let's not forget, these people are in that courtroom, maybe for the first time, some of them may have done jury duty before. Some are walking in for the first time and hearing the language and they may not have heard the word "sustained" before when it comes to the objections.

So when we come back -- we're going to go back into the live testimony. But when we come back we'll talk about the reasonable doubt issue and the definition of reasonable doubt. You don't get an instruction on that and you don't get a definition. It is in here.

Let's listen to Don West in his back and forth to the judge.

WEST: The order of the possible verdicts is also incorrect.


WEST: So I want -- I would like the court to address this, and that is that manslaughter is a category 1. Third-degree murder is a category two. So the logical choice would be if the court is going to give those lessers, that the first one be murder, the second one be manslaughter, and the third one be third-degree murder. NELSON: OK.

Is there any objection to that by the state?

MANTEI: We're good. That's fine.


MANTEI: The only issue with that is we then have to repeat because the firearm findings for each of the murder counts are different than the firearm findings for manslaughter because of the 1020 life language. Now you're getting --

WEST: The 1020 life doesn't apply to third-degree murder.

MANTEI: It does.

NELSON: It does, too.


NELSON: It even applies to aggravated assault.


WEST: Well, I will have to --


NELSON: It does apply. You will just have to put it in a way that would make sense. But the court's ruling will be the charges the first, and then the special finding by the jury.

Before we recess for lunch, let me give you a schedule thing. Yesterday, Mr. West, you indicated -- or I don't know if it was Mr. O'Mara, I am getting into a housekeeping issue -- you had sought to introduce into evidence defense exhibit DD, and that was the portion of a tape played in front of Ms. Jeantel, and the court had indicated that my notes reflected that was played outside the presence of the jury. And I asked the court reporter to check her notes and the e- mail that I got back was, "In cross-examination, immediately after lunch Mr. West asked questions regarding the, quote, "You want that too," end quote, part of the type, and that was played to Ms. Jeantel outside the presence of the jury. When the jury was brought back into the courtroom, Mr. West used the transcript to question her on that issue." So the court will not be admitting DD into evidence that was not played in front of the jury.

As far as scheduling purposes goes Mr. -- I know the jury is supposed to be back at 1:00. I know that Mr. De La Rionda wants to get the jury instructions settled before he does closing argument. I'm going to say that we'll be in recess until 1:00. I will take up the second- degree murder argument and, thereafter, Mr. De La Rionda will be giving some moments to get his -- but that would be the only thing he has to plug into the closing argument. And we'll start closing arguments for the state this afternoon. MANTEI: The third-degree murder argument, Your Honor?

NELSON: The third-degree, I am sorry. Manslaughter will be given.



BANFIELD: I am Ashleigh Banfield, reporting live in Sanford, Florida. You're not missing any testimony. The great seal of the state of Florida is what the camera is trained on in the courtroom. Judge Debra Nelson decided they need a brief break, and that maybe an understatement. They have been at it since 9:00 this morning. So far, it is hour upon hour of hard-fought battling over the language of what this jury is going to hear in what is typically kind of boilerplate jury instructions. Not this time around. Every single word counts. Every word matters.

I want to bring in Mark Nejame, renowned criminal defense attorney, here in Florida.

So we came in this morning, expecting to have a jury instruction for second-degree murder. That's what is charged. What was that issue where the lesser? I probably mistakenly thought manslaughter was an automatic lesser included under second-degree murder. But they fought over it.

NEJAME: I think it was the futile effort. They needed to make a record. It is a necessary included category-one offense. It was going to go in there. Instead, the defense tried to make an argument the state hasn't made any suggestion or shown any facts that would allow it to be justified. It's going to fall on deaf ears.

BANFIELD: And it is in?

NEJAME: It is in.

Right now, the jury is going to consider second-degree murder against George Zimmerman and manslaughter, which, by the way, is a small joke when you have a gun involved in the crime here in Florida. There's a 1020 life law.

NEJAME: No, no. On the manslaughter, it takes you from a second- degree felony of 15-year mandatory minimum to -- excuse me, a 15 year maximum to a 30 year, so now the exposure, because the firearm would be found to be used, would take that manslaughter to a 30-year possible sentence.


BANFIELD: And the firearm. The firearm put it into the category of 1020 life law, correct.

NEJAME: The category of an elevated offense, second-degree felony to a first-degree felony. What they fight over takes it to the 1020 life, and that's the third-degree felony murder. BANFIELD: I'm glad you brought that up.

Here is what was such a bombshell, not just to us listening in the television land, but also it seems that at 7:30 this morning before court was under way to the defense attorney, that is the prosecutors in this case intend to request another increaser included, third- degree murder, felony murder, with an underlying felony of child abuse. If that is surprising, here is how the prosecutor, Rich Mantei, argued it in front of this judge.


MANTEI: -- the felony, in this case, alleged as child abuse. Obviously the information alleges that the defendant shot and killed the victim, that the victim was under the age of 18. And child abuse must be according to the third-degree felony murder instruction defined. I have defined the elements of child abuse in the felony- murder instruction. And I have also included what I believe is required under the child abuse instruction, which is when the child abuse is premised upon physical injury, there is a required reference to chapter 39 to define what that physical injury may mean under the Florida statutes. That definition has been likewise included.

In case law on which I would rely, begins, I think, in the stack that's been provided, with Hermanson -- that's H-E-R-M-A-N-S-O-N -- versus State, which is 604, 7 Second, 775, which is the Supreme Court of 1992.