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Live Coverage of the Zimmerman Trial; 911 Calls from Asiana Flight 214 Released

Aired July 11, 2013 - 12:00   ET

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


RICK MANTEI, PROSECUTOR: A-N-S-O-M (ph) versus state, which is 604, so it looks like it's 775 (ph), which is the Supreme Court of Florida case from 1992. And in that case, as set forth on page two of the court's decision, a third degree murder provision, section 782.04 in the court of statutes provides that the killing of a human being, while engaged in the commission of child abuse, constitutes murder in the third degree and is a felony in the second degree.

In that case, unfortunately, the state combined the instructions for both child abuse and child neglect, but otherwise that was the reason I believe that the conviction was reversed. But, obviously, the reason the case is there is to show that, yes, third degree murder premised upon an underlying conviction for child abuse is actually a rational or a listed offense in the state of Florida.

(END VIDEO CLIP)

ASHLEIGH BANFIELD, CNN ANCHOR: A child is someone under the age of 18, and Trayvon Martin was 17 when he died, hence this argument, but a last minute argument to try to get that lesser included of felony murder, that's a murder, that's a death that happens in the commission of a felony. The felony that's underlying here is child abuse. So, if you're surprised by that, you were probably not anywhere near as surprised as the defense attorney Don West who said he heard about this early this morning for the first time. In fact, here's how he argued that he was none too pleased with this in front of the judge.

(BEGIN VIDEO CLIP)

DON WEST, DEFENSE ATTORNEY: Oh, my God. Just when I thought this case couldn't get any more bizarre, the state is seeking third degree murder based on child abuse? Is the court going to give this any serious contention or consideration because, if so, we have a lot of talking to do.

We can start with Mr. Mantei dumped all of this on us sometime around 7:30 this morning. There was an e-mail, oh, by the way, we've changed our lesser included request from aggravated assault to third degree murder based on child abuse? And put 10 or 15 cases that obviously he has spent hours, if not days, if not in fact maybe more than a year plotting for this moment when he can spring it on us and the court.

Somewhere we wondered why the state would put this vague allegation in the information that Trayvon Martin was 17. No other charge of child abuse, no evidence of anything other than this statement that Trayvon Martin was a minor, 17 years old. First of all, I move to strike it as surplusage (ph), because it's not related to any element of the offense for which George Zimmerman is charged, nor related to any conceivable lesser included offense.

So I guess what's happened now since the time that the state filed its information in April, that they have been lying in wait, collecting all this loosely connected child abuse case law where two-year-olds have been shot by someone who was reckless with a gun, or some child exposed to horrible deprivation or abuse resulting in death, just so at this moment, on the day of closing arguments, we would have to deal with it. Well, I can say it's certainly consistent with the way this case has preceded since April, but it certainly just is disingenuous as well. This is outrageous. It's outrageous that the state would seek to do this at this time in this case.

Now, if the court wants to recess for several hours so we can research and review these cases, draft a memo of law, we can do that and we certainly are entitled to the opportunity to respond in a meaningful way. But it's just hard for me to imagine that the court could take this seriously. Certainly the court wasn't provided with the case law either, nor given any hint that this is where this was going to go.

(END VIDEO CLIP)

BANFIELD: Pretty amazing stuff. Danny Cevallos and Faith Jenkins are still with me.

Danny, you're a defense attorney and I am sure that you were probably watching in awe as Don Nelson (ph) was trying to argue to this court that if the defense theory is that George Zimmerman was undergoing a ground and pound, how possibly could there be a charge of child abuse when, in fact, their defendant was the one being abused. But this statute does allow for this, doesn't it?

DANNY CEVALLOS, DEFENSE ATTORNEY: Yes. I'm watching not so much with awe, but with just so much sympathy for the defense counsel. The idea that going through all of this preparation in this trial and all of a sudden having to defend on what is really a very different charge.

Now, most murder exists in a continuum. If you kill somebody, we look at your intent, from I meant to do it, right on down to, oops, I wasn't paying attention. Felony murder exists in another realm. It's an unintentional killing. No killing was intended. However, because you chose to participate in one of the enumerated other felonies, burglary, arson, rape, robbery, kidnapping, any of those felonies our society says, well, if you're so dumb as to participate, we will charge you with murder for an unintentional killing. It's really a policy thing. It's not truly murder and that an intentional death resulted.

However, if you're defending against that, you need a lot of time and you need to prepare. Their closing argument, I guarantee, doesn't have one shred of defense as to felony murder.

BANFIELD: No.

CEVALLOS: And the prosecution is hoping they -

BANFIELD: No. In fact, good point.

CEVALLOS: Yes, I mean, they're not even going to address it. Meanwhile --

BANFIELD: I was just going to say, Danny, Danny - sorry, we have a delay between us and I apologize, but, you know, I think if you're watching, you can train your eyes on defense table, not right now, but when they're arguing. You can train your eyes on the defense table and Mark O'Mara, whose the lead counsel for the defense, is not present in the courtroom. Here is why. And it's only my guess. But I think it's a pretty good guess. He is very busy putting together the plan for closing arguments. And so that's a really tricky thing to all of a sudden have to spin around and add to.

So, Faith Jenkins, jump in here if you would. Do you think this is a great stretch for -- and you're a former prosecutor -- so is this a big stretch for prosecutors to ask this jury, after all of the evidence that we have heard, to all of a sudden start spinning around and saying, you know this is child abuse. After all, he's 17. Or do you think this is a really easy argument for them to make?

FAITH JENKINS, ATTORNEY: I think that they get their -- this was actually interesting because I hadn't thought about this third degree felony murder charge. But what they're arguing now is George Zimmerman was reckless with his gun and he killed a minor. And so this felony murder charge actually fits with the facts and so they can make an argument there in their closing arguments and that's what they want to do. The lawyers will sit down with these jury instructions, with the law that's going to be read to the jurors, and they craft their closing arguments using these instructions, using as many of the words as they can that the jurors will be instructed on in their closing arguments to make them more compelling to the jurors and to convince the jurors that the law should be decided in their favor.

So the prosecutor, by not telling the defense in advance before today, they've had probably more time to craft their closing arguments based on this possible charge that the judge is now considering.

BANFIELD: OK. So you have me a little confused and I'm going to go to break, but I've got to get Mark Nejame in on this very quickly because when you said that he was being reckless with his gun and therefore there was a minor who died, I thought the underlying felony had to be he was abusing a child and the child died, and that that's what this statute is based on.

MARK NEJAME, CNN LEGAL ANALYST: That's right.

BANFIELD: So recklessness of your gun doesn't count?

NEJAME: That goes to manslaughter.

BANFIELD: It doesn't go to this third degree felony murder?

NEJAME: The felony murder is - see, Florida doesn't -- BANFIELD: It's really complicated.

NEJAME: Florida does not distinguish whether you know or don't know how old the child is. So the mere fact that they're going to be claiming that it was child abuse, and then death ensued -

BANFIELD: Right. By the way -

NEJAME: Technically puts him in there.

BANFIELD: He said, I think he's somewhere in his 20s. That won't count? It doesn't matter how old you think they are, it matters how old they are?

NEJAME: Well, no. Nope, nope, nope. Got a fake ID and a fake birth certificate, you know, it's just like -

BANFIELD: (INAUDIBLE).

NEJAME: Yes, exactly. You're stuck with that. And I will tell you that this is an accepted category b lesser included offense. And I think that the defense has been caught off guard with this.

BANFIELD: You think?

NEJAME: Yes. Well, but the -

BANFIELD: He said, "oh, my God," in court.

NEJAME: But the point is (ph) right there. Now, I don't think that the state did a very good job of establishing that through their case, but we saw the state do a left turn two days ago. All of a sudden they're acknowledging, they changed their whole theory of prosecution. So they're preparing for this because they realize that their first shot -

BANFIELD: Didn't work out so well.

NEJAME: Secondary degree isn't working out. So now they're going ahead and throwing it at the end.

BANFIELD: There's other theory - there's other theories about that as well, but we can't get into that right now.

I'm going to squeeze in a quick break. All the while, if you see the small screen on your big screen, it's the great seal of the state of Florida, which means they're still in a break. You're not missing any of the testimony. You're not missing any of the arguments right now. Clearly testimony is over. But there is still a lot more to come because they are still fighting tooth and nail over whether this is going to get in, third degree felony murder, child abuse based on that underlying felony. And this judge is so no nonsense. Boy, that's an understatement. When we come back after the break, you're going to see some of the highlights from the bench. Judge Debra Nelson (INAUDIBLE) coming up.

(COMMERCIAL BREAK)

BANFIELD: Welcome back. Live in Sanford, Florida, I'm Ashleigh Banfield.

We are waiting the attorneys to return to this courtroom to continue battling out just what this jury is going to hear before they actually have to take this case and deliberate. What they're going to hear in terms of their instructions as to the law in the state of Florida and as to how it applies to this particular case. And it is critical stuff.

So while they're in a brief break and you're not missing any of the arguments, this is a great opportunity to introduce you a little bit more, deep dive into who this no nonsense by the book judge is. If you've been watching her, you probably know it already. But the George Zimmerman judge in this murder trial has been described by a lot of people, in fact lawyers who are in her courtroom, people who have watched her work, she's been described as one tough cookie essentially.

I want to give you a quick look at Judge Debra Nelson's background. She's 59 years old. She is a graduate of South Texas College of Law and she began her career in Broward County here in Florida. She was appointed a judge in 1999 by then Governor Jeb Bush. She has a reputation for being hard working and also she has a reputation for imposing long prison sentences.

And she is not the least bit afraid of any attorneys who walks through her courtroom either. In fact, I have to show you something that happened just this morning in this courtroom when Don West, the defense attorney in the case, was objecting to what the prosecution just brought up. I mean by 7:30 this morning he was hearing about it and after 9:00 he was having to actually argue this in court. It was this request to have a lesser included of third degree murder with an underlying felony - a felony murder with an underlying felony of child abuse. He was livid about this. and here's how she responded.

(BEGIN VIDEO CLIP)

DON WEST, GEORGE ZIMMERMAN'S ATTORNEY: The state is seeking this instruction as part of a larger scheme, another trick that the state is seeking because --

JUDGE DEBRA NELSON, SEMINOLE COUNTY CIRCUIT COURT: I - I don't want to hear the word "trick" anymore in regard to these arguments, please.

WEST: All right. Well, we don't want that instruction. We're not claiming aggravated battery specifically that 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've provided is exactly the law, and it's the instruction that is 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 is necessary to prevent imminent death or great bodily harm to himself. That's the only issue.

NELSON: And then that section goes on to say, while resisting an attempt to commit, parentheses, applicable felony upon him or in any dwelling in which he was present.

WEST: Well, he wasn't in his house.

NELSON: So it's either the applicable felony or in his house. That's the use of --

WEST: No.

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

WEST: No, we disagree.

NELSON: Well then give me case law that says that that's the 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.

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 -- I am I am sorry, the forcible felony.

In this instance, the state claims aggravated battery, or the imminent commission of aggravated battery against himself. It is an alternative. It is not required.

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.

(END VIDEO CLIP)

BANFIELD: There you go.

Look, this is hard work. She is the boss. She can say things like, don't use the word "trick" in my courtroom again. I don't like that language, and I don't like that tone and she has done that before.

And this just fell on the heels of something that happened yesterday that was alarming as well. Usually you hear a judge ask a defendant one time, are you going to testify? Are you sure you don't want to testify? Have you conferred with your attorneys whether you want to testify or not? And it is over and it happens quickly.

Not yesterday. It happened four times. This judge asked George Zimmerman four different times about testifying, and often, his attorney was trying to get in there to say I need to confer somewhat.

She was having none of that. Look how this all played out.

(BEGIN VIDEO CLIP)

NELSON: Have you made a decision, sir, as to whether or not you want to testify ...

WEST: Your honor, I object.

NELSON: OK. Overruled.

Have you made a decision as to whether or not you want to testify in the case?

WEST: I object to that question.

NELSON: Overruled. The court is entitled to inquire if Mr. Zimmerman's determination as to whether or not he wants to testify.

Mr. Zimmerman, have you made a decision as to whether or not you want to testify in this case?

GEORGE ZIMMERMAN, DEFENDANT: No, not at this time.

NELSON: OK. And when is it that -- how long do you think you need before you make that decision?

WEST: Your honor, may we have an opportunity to speak? The case hasn't concluded yet.

NELSON: I understand that. And I have asked Mr. Zimmerman if he needed more time to talk to his attorneys, and if he does, I will afford it to him.

Mr. Zimmerman, how much more time do you think you need to discuss this with your attorneys?

ZIMMERMAN: I assumed it will depend on how long the recesses are, your honor. The end of the day.

NELSON: If your attorneys have finished with two witnesses before the end of the day, do you think you would then know whether or not you want to testify?

WEST: Your honor, on Mr. Zimmerman's behalf ...

NELSON: I am asking your client questions. Please, Mr. West.

WEST: I object to the court inquiring of Mr. Zimmerman as to his decision about whether or not to testify.

NELSON: Your objection is overruled.

(END VIDEO CLIP)

BANFIELD: Bam! Your objection is overruled, no nonsense and tough.

And this followed on the heels of what happened the night before that, and it was pretty amazing.

It was 10:00 at night. You do not often see court going until on 10:00 at night. This session was marathon.

They were discussing the issue of the cell phone texts and photographs. That's Trayvon Martin's cell phone.

They were discussing the issue of THC found in Trayvon Martin's blood, and they were also discussing the issue of that animation that was so hard fought over and ruled against ultimately.

But before all of that, and all of the fighting until 10:00 at night, those lawyers started getting angry and perhaps the angriest of them all was the judge. Look how it played out.

(BEGIN VIDEO CLIP)

JOHN GUY, PROSECUTOR: I would offer him the opportunity right now to apologize to me for suggesting that I stood by silently with information that I did not have.

NELSON: I am not getting into this. Court is in recess. I will give my ruling in the morning. I will see you at 8:00 in the morning.

WEST: Your honor, may I ...

NELSON: Court is in recess.

WEST: It is 10:00 at night.

NELSON: 9:56. Court is in recess. Thank you very much.

With all due respect, we'll see you at 8:00 in the morning.

WEST: I am not physically able to go at this pace longer. It is 10:00 at night. We started this morning. We have had full days every day, weekends, depositions at night.

(END VIDEO CLIP)

BANFIELD: It's just been unbelievable. I don't think I have ever seen a judge literally walking off the bench while an attorney is beseeching her for more time.

This has been so serious and so unbelievable at times, probably why it's been so gripping, that and the case itself. Look, we are in this break, so are you seeing the great seal on your small screen, but we're awaiting the return of these attorneys and the continuation of this hard-fought battle over jury instructions. You're not going to miss a moment of it.

When we come back after the break, I've got something else I have to show you, and this is other news that's been breaking throughout this day.

There is a before and after image of Lac-Megantic in Quebec, Canada. That's the place that was virtually incinerated after an explosion just a few days ago, dozens of people losing their lives.

It is a remarkable story. We have an update for you after the break.

(COMMERCIAL BREAK)

BANFIELD: Welcome back. Live in Sanford Florida, I am Ashleigh Banfield reporting at the Criminal Justice Center in Seminole County.

We're awaiting the return of the attorneys in the courtroom. They're still fighting over the wording of the jury instructions and one critical instruction, whether this jury is allowed to consider the lesser-included charge of third-degree felony murder, child abuse being the underlying felony.

It is a huge, huge blow to the defense in this case if this happens. They're trying so hard to get that excluded, and they said it was a shock this morning and heard about it for the first time.

The great seal is on your screen. We'll you go live into the courtroom the minute me come back and the jurors ready to file back in, too.

In the meantime, other news, a shocking look at the before and after pictures of just how devastating that Canadian train derailment and explosion was.

Take a look at the screen. On the left, the downtown of Lac-Megantic before the accident, and on the right, the utter devastation.

The officials there, and I will use their word, they called it a "crematorium." Not a single building in the downtown is left. Flattened and burned, every one of them.

Today the town learned it will be getting $25 million from the province of Quebec to help with the reconstruction efforts.

It is going to be a very long time before this town is anywhere close to getting back to normal, if ever, because the death toll is the real story here.

It has now risen to 20, but 30 people are still missing, and police are having to admit at this point they are more than likely dead after that disaster. Another big story we're following as well, the United States is starting to sound a little bit more cautious when it comes to sending new military aid to Egypt because the Pentagon says it is reviewing all aid arrangements with Cairo.

Of course, all of this is in light of last week's ouster of the President Mohamed Morsy. The United States is still tentatively planning to send Egypt four F-16 aircraft by the end of next month.

A Pentagon official says it could be affected if they declare Morsy's ouster officially a coup. So far it is language they're not prepared to use.

Also making headlines, incredible tape, frantic voices from the passengers arriving aboard the Asiana jumbo jet, 911 calls that came pouring in after the Boeing 777 crash landed at San Francisco airport.

The people aboard and the witnesses who saw this outside the plane can be heard pleading for help. It's unbelievable.

Here's CNN's Miguel Marquez.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: We just got in a plane crash. There are a lot of people that need help.

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

MIGUEL MARQUEZ, CNN CORRESPONDENT: A chilling description of the traumatic scene as passengers escape the burning aircraft in a desperate plea for emergency medical assistance.

UNIDENTIFIED FEMALE: We've been down on the ground, I don't know, 20 minutes, a half hour.

There are people laying on the tarmac with critical injuries, head injuries. We're almost losing a woman here. We're trying to keep her alive.

MARQUEZ: And overnight, a somber moment on an airport runway, family members of the two girls who died and others who were injured on Asiana Flight 214 visit the crash scene.

And for the first time, six members of the Asiana flight crew make a stand of solidarity with six of their colleagues still in the hospital. Emotion and anguish is written in their faces.

YOON HYE LEE, ASIANA FLIGHT ATTENDANT (via translator): We are putting in our best efforts, she says, to recover from this accident.

MARQUEZ: Many crediting the heroic actions of the flight crew for saving so many lives.

Investigators now say three flight attendants were ejected from the plane still in their seats, a fourth injured by an emergency slide that deployed inside the cabin.

They also pulled out extinguishers and fought fires as passengers escaped.

Investigators now say it took a minute and a half for that evacuation to begin.

This, as we are learning more about the investigation itself, NTSB saying two-and-a-half minutes before impact, there were several changes to auto-pilot and auto-throttle modes.

What's still not clear is whether the pilots themselves were making those changes.

The pilot of the aircraft also told investigators at 500 feet he was temporarily blinded by a light.

DEBORAH HERSMAN, NTSB CHAIRWOMAN: He did talk to us about the approach and landing. He relayed that to us, but it was a temporary issue.

MARQUEZ: Airport and airline officials eager to get back to full operations as arrangements are made to move the charred remains of Flight 214.

Miguel Marquez, CNN, San Francisco.

(END VIDEOTAPE)

BANFIELD: Imagine all of those planes coming in and landing and all those planes taking off and seeing that carcass on the runway. It's got to be pretty foreboding for all the passengers going through SFO.

When we come back after the break, I want you to be thinking about something for the next couple of minutes, and that is, where were you on the 27th of June?

If you think back, it was the day that Edward Snowden, the leaker -- it was the day he flew from Hong Kong to Russia. Seems like a very long time ago, doesn't it? Because we've had such a big story with him ever since.

That's the day this jury had to start their sequestration. Now you might start to understand how long they've been away from their families.

That jury is getting ready to come back in this courtroom in about 29 minutes. Who are they? Because they are about to become extraordinarily important.

After the break.