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Jury Can Consider Lesser Charge; Final Draft of Juror Documents; Closing Arguments to Start Soon; 911 Calls from Asiana Flight 214; Tsarnaev Pleads Not Guilty

Aired July 11, 2013 - 13:00   ET


SUZANNE MALVEAUX, CNN ANCHOR: Judge Debra Nelson this morning ruled that jurors can consider the lesser charge of manslaughter. She has yet to decide if the jury can consider third degree felony murder as well. Now, the judge likely will make that ruling in just a couple of minutes when the court returns from lunch break.

We're going to go live to Sanford, Florida, George Howell outside the courthouse. And, George, we watched all morning fireworks in the courtroom. The jury not there but defense attorney Don West not only battling the prosecutor but also the judge numerous times. What were the issues?

GEORGE HOWELL, CNN CORRESPONDENT: Well, we're dealing with these -- this hearing of the charging conference and then the jury instructions, basically deciding exactly what George Zimmerman could be charged with and what this jury will hear with regards to instructions from the judge about the rule of law, what to consider in this case.

So, here's the thing. You talk about those fireworks. There were definitely fireworks when it came to the basic instructions. The defense attorneys, they wanted to get in some sort of language talking about how it is (inaudible) by car or foot. But the judge said, you know, she is not going to include that. That's where we saw a bit of that testy exchange. But, yes, there were several things that happened. The judge basically said that she would not consider provocation, any language in provocation when it comes to the use of justifiable force, no language with regards to that.

Also, there is some question about circumstantial evidence. We're still unclear about exactly how that's going to be either applied or not applied when it comes to instructions. We're still waiting for some clarification on that.

But, again, as you mentioned, we have an idea of what the list could look like, the list for jurors to choose from. It could be guilty second degree murder, could be guilty manslaughter, guilty third degree felony murder, or not guilty. Suzanne, that's what these jurors may have to choose from. We're still waiting to hear that ruling on the third degree felony murder.

And, George, how are the jurors doing today? They -- They're going to be back in the courthouse at 1:00. That's, well, moments away actually in just a couple of minutes here. HOWELL: Right.

MALVEAUX: But they basically had the morning off?

HOWELL: They did have the morning off. I was in the courtroom earlier. And as you mentioned, they were not there for this particular hearing. But I can tell you this, when you go upstairs, you do get a sense that there is heightened law enforcement presence here, that they're just paying very close attention to everything that's happening around here. I can tell you walking the grounds a bit, you know, things are peaceful, not a lot happening out here. But you do get a sense that law -- sense that law enforcement, they're watching everything. They're looking outside the windows.

MALVEAUX: All right, George, the judge --

HOWELL: They're paying close attention to what's happening in the court room.

MALVEAUX: -- the judge has started to speak so let's listen in.

DEBRA NELSON, CIRCUIT JUDGE (live): So, I am not going to give that instruction. So, I have received your final draft so it's not so final yet. The change that would need to be made is on the lesser to take out the third-degree felony murder. And then, we can just excise out the charges and I don't have -- and you'll finalize the verdict form.

UNIDENTIFIED MALE: Yes, your honor, we will.

NELSON: I understand your argument but I --

UNIDENTIFIED MALE: I was only going to ask which part of shooting the child hadn't been established?

NELSON: Well, I just don't think that the intentional part of that is there for the child abuse charge, and it is not alleged in the information that way. And I just don't think that the evidence supports that. And if I'm on -- if I'm not sure about that, I am not going to charge the jury on it. And I think that to exercise caution, I'm going to deny that being set before the jury.

UNIDENTIFIED MALE: Well, understand, that since it's subjected to any error that's been established as reversible will be deemed waived. I hope that we at least protect the record in that regard.


Well, with that being done, are there any objections to the proposed final draft of the jury instructions? That would be changing the lesser included crimes to just allege manslaughter, taking out the charge on felony murder, the justifiable homicide after that, the possession of firearm and discharge causing death after that instruction, then there was a blank (INAUDIBLE) page. Then the next charge would be the manslaughter, justifiable use of deadly force, plea of not guilty, date of crime, venue, weighing the evidence, expert witnesses, George Zimmerman not testifying, George Zimmerman's statement, rules for deliberation, notes, cautionary instruction, verdict, submitting the case to the jury. Any objections other than what the state has already argued on any other objections from the state?

UNIDENTIFIED MALE: Other than what we said, no, your honor.

MALVEAUX: All right. We -- this case obviously having a number of twists and turns here. The judge's ruling, we just heard she is not going to instruct the jury for the third degree felony murder charge. I want to bring in our legal analyst to talk about what that decision means. First joining us here, Natalie Jackson, on set with me, an attorney with Trayvon Martin's family. Who is this a win for?

NATALIE JACKSON, ATTORNEY: Definitely the defense. I think that in this case the judge -- they are -- she's usually going to side with the most caution with the defendant. He has the most rights as it pertains to this case and the trial as we get to this. But I don't know if it's so much of a big win because I think most people anticipated the case to be second degree murder with the lesser included of manslaughter.

MALVEAUX: Yes. And this particular charge, I mean, the judge didn't seem to think that it was really in line with what had actually happened because it entailed child abuse because he was 17 years old at the time that he was killed, Trayvon Martin.

JACKSON: Well, under Florida law, he is a child.


JACKSON: But I think she felt that this -- they just didn't have proven every element to her that she would consider the third degree felony murder as a -- as a charge for this case.

MALVEAUX: I want to bring in Mark NeJame, a criminal defense attorney. Mark, what do you make of her decision?

MARK NEJAME, CNN LEGAL ANALYST: It's the right legal decision. I think that if she'd let it, then it would have been reversible error. She looked at it. I think it was rather unexpected clearly by the defense and the state made an effort to get it in. That's their job to fit within the law then, you know, that's the way it plays. But the judge absolutely made the right decision. This would have been a real question to bring this in based upon the facts that -- as they have unfolded.

MALVEAUX: All right.

NEJAME: This was a category B lesser included offense, a category two. So, it's purely discretionary with the judge.

MALVEAUX: OK, let's listen in.

DON WEST, DEFENSE ATTORNEY: Zimmerman is charged with second degree murder in this case. NELSON: That's fine. OK.

WEST: Sure. That appears otherwise to be --

NELSON: Taking out the third degree felony murder, the rest of it --

WEST: Right.

NELSON: -- seems to be correct.

WEST: Yes, I think so.

NELSON: OK. Are there any other instructions being requested by the defense?

WEST: Pardon me?

NELSON: Are there any other instructions being requested by the defense?

WEST: (INAUDIBLE.) There is a couple of occasions where words are pluraled (ph) that should be singular, now that we've addressed the third-degree murder. So, I am sure the state can --

NELSON: The substance, we can change that. I am looking for really substantive changes.

WEST: Right.

NELSON: But thank you for pointing that out.

WEST: So, we're now addressing any other changes.

NELSON: Correct.

MALVEAUX: I want to bring Natalie Jackson back in who's sitting with us here and has been watching this. You brought up a good point here. You said, this is critic this, this process. It might seem tedious and somewhat even boring, but this, what is taking place in the court room now, is absolutely critical. Tell us why.

JACKSON: It is. Mark NeJame is absolutely right. Jury instructions, they are very important to the process and it's the most fertile ground for appealable error, for reversal error. The judge is going to make sure she gets this right to the T and that there's -- that there is exact as they can be, even down to the periods, the commas, as we hear the plurals, even down to that.

MALVEAUX: And tell us a little bit about this. I mean, you represent the family of Trayvon Martin. How have they been holding up through all of this? This has been quite an ordeal.

JACKSON: Yes. It's been a -- it's been a journey for them for a year and a half. This is a chance to get closure. We have told them all along that followed them all along that justice and equal justice is not about the outcome, it's the process and making sure that it's equal and fair for everyone. And I think that's the proper message that people should get from this case is that I think this judge has been very fair. I think her rulings have been exact. I think both --

MALVEAUX: All right, let's listen in.

NELSON: -- to review the -- (INAUDIBLE) the jury instructions with counsel?

GEORGE ZIMMERMAN: Yes, your honor.

NELSON: Are these instructions agreeable with you, sir?

ZIMMERMAN: Yes, your honor.

NELSON: OK. Thank you very much. Court will be in recess.

MALVEAUX: All right, they're taking a quick recess here before we will -- until about 1:35, I am just being told. We're going to take a quick break and we'll talk about the analysis on the other side.


MALVEAUX: We are following the George Zimmerman trial. I want to want bring in back our legal analysts. Natalie Jackson, she represents the Trayvon Martin family. Legal Analyst Mark NeJame, criminal defense attorney. And Natalie, I want to talk to you about this because you and I, we talked about this during the break, actually. There have been so many fights, if you will, or tense moments between Don West and this judge, Judge Nelson. How do you think this is playing out with the jurors? And you had an interesting perspective on this.

JACKSON: Yes. I think that -- I understand Don West's position because I have done criminal defense law and I know when you representing someone, you become very passionate about it. But I think what he has to worry about is that you have a jury full of women and they're watching the way he has treated this judge and the attitude that he's given this judge. So, I think he needs to watch that aspect just from the legal perspective of the jury, and if they think that he has been disrespectful to the judge. This is her courtroom. This is her domain.

MALVEAUX: Does it seem like an element of sexism? I mean, if you have the six women who are on the jurors and they're looking at this exchange, this dynamic between the two.

JACKSON: It could, yes. And that's why he has to worry. I mean, there is a difference to some people and I think lay people don't understand the difference between being a passionate advocate and just being plain rude.

MALVEAUX: And Mark, weigh in if you will. Because I know the jurors were not actually in the courtroom today when some of those exchanges happened, but certainly there have been some tense moments between Don West and this judge. NEJAME: Yeah. And as Natalie says and, look, Natalie is a crackerjack excellent attorney and the family is well served by having Natalie on their team from the start. And her observations are astute. They're right on. The thing, though, is that most of this is all taking place outside the presence of the jury. Don West enjoys really a tremendous reputation here in central Florida. But the reality of this is you can tell that this judge and Don West, they have issues with each other. That's just palpable. But the presence in front of the jury, particularly after the first few days, you're seeing Mark O'Mara really take over all of the type of witnesses where you are wanting to make an impact. You are wanting to show a nice guy, you're wanting to be personable and I think they succeed with that. I think that if they kept Don West on because of the antagonism between him and the judge it could have gone exactly along the path that you all are talking about. But I think that they caught themselves. They reversed the direction they were going, and I think that you have seen the charm that Mark O'Mara has been pretty much exuding with the jury. He has been very much of a gentleman, kept it soft, kept it very, very even keeled without a lot of drama and a lot of theatrics and I think that probably plays well, particularly in a case like this where you have the death of a 17-year-old teenager.

MALVEAUX: All right. Mark, stay with us. Natalie, stay with us. I'm going to take a quick break. We'll do more analysis on the other side.



MALVEAUX: An Asiana Airlines 777 Flight 214 had just crash landed in San Francisco. While passengers, they were immediately on their phones trying to get help after that. You're actually going to hear some of the 911 calls made by people who walked out of that wreckage and amazingly surrounded by plane parts and fire, kept their cool. Listen.


UNIDENTIFIED MALE: Hi. Yeah. We just (inaudible) on the airline, and it looks like there is no cops coming by, not too many ambulances.

UNIDENTIFIED FEMALE: Yes. We know. We do have the ambulances and the fire department on the way.


UNIDENTIFIED FEMALE: Tell me, are there people that are trapped on the plane? I know some people have gotten off already.

UNIDENTIFIED MALE: I think the majority of people got off. I tried to stay back, but I think there are at least a handful of people behind me, people where everyone was telling us to get out.

UNIDENTIFIED FEMALE: But are they actually trapped or just that people haven't gone ... UNIDENTIFIED MALE: No, no, most people have gone down the slide. I think everyone - there are some people going into the plane now. And ...

UNIDENTIFIED FEMALE: Why are people going back into the plane?

UNIDENTIFIED MALE: The emergency crews.

UNIDENTIFIED FEMALE: Hi. We are at the San Francisco International Airport. And we just got in a plane crash. There are a lot of people that need help.



UNIDENTIFIED FEMALE: ... anyway that ambulances could be sent?

UNIDENTIFIED MALE: Are you with a lot of the ambulances over there?

UNIDENTIFIED FEMALE: No. They are not. We have people over here who weren't found, and they're burned really badly.

UNIDENTIFIED MALE: Where are you at?

UNIDENTIFIED FEMALE: We're out on the outskirts. We're not towards the airport itself. But we're more on the field where planes are landing.

UNIDENTIFIED FEMALE: Yes, I was on the plane. We have been 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.


MALVEAUX: Amazing calls, 307 people aboard that plane, two teenaged passengers, girls died, but more than 120 people actually walked away without a scratch. The relatives of those two Chinese girls who died, they were able to visit the scene of the crash landing. The Asiana Airlines source tells CNN that the girl's parents, they wanted to see where they died. Some of the other survivors were also taken in buses to the scene of the accident late Wednesday.

Head of the railway that owns that run-away train that slammed into a Canadian town now casting doubt on his own engineer's story, at least 20 people were killed, 30 others are missing after that train that with the tanks carrying crude oil exploded, burned in this small town, this is near the main border, the engineer said he set brakes on train before leaving it the night before. But the head of the railway now says, quote, it is questionable whether or not the engineer did what he actually said. The engineer has been suspended without pay, faces a criminal investigation.

And the new temporary government of Egypt thanked the United States today for what it calls American understanding of the events that are simply shaking that country. Millions of Egyptians have marched, demonstrated both for and against the military overthrow of Mohamed Morsy's presidency. So far no U.S. official including President Obama has voiced support for anybody to leave Egypt until a new election. But a U.S. State Department spokeswoman said yesterday that ousted President Morsy's rule was, quote, "not a democratic one." Public protests are quieter around Egypt today since the start of the religious holiday Ramadan.

For the first time attorneys for the Colorado mass shooting suspect James Holmes, they are now admitting that he carried out that deadly attack. "The Denver Post" says Holmes' defense team made the admission in a court filing. His attorney says that Holmes was having a psychotic episode when he killed a dozen people last year at that theater shooting in Aurora. It happened during the premiere of the Batman movie "Dark Knight Rises." Well, Holmes faces a variety of charges including murder and prosecutors are seeking the death penalty. Holmes has pleaded not guilty by reason of insanity. His trial is expected to take place next year.

It was emotional day in court, the arraignment, this is the Boston bombing suspect Dzhokhar Tsarnaev pleaded not guilty to all the recounts against him including murdering four people and wounding more than 200 others. The hearing was packed with dozens of survivors as well as family members. Our Deborah Feyerick was inside the courthouse.


DEBORAH FEYERICK, CNN CORRESPONDENT: Under heavy guard, armed security, and police divers searching the harbor outside the courthouse, 19-year-old Dzhokhar Tsarnaev was arraigned Wednesday as police outside lined up to honor slain MIT officer Sean Collier, inside some 30 victims and family members sat shoulder to shoulder watching, listening, and for mom Liz Norden, hoping for any sign of remorse.

LIZ NORDEN, VICTIM'S MOTHER: No remorse. Like he smirked at the people in the courtroom.

FEYERICK: Speaking in a thick Russian accent, Tsarnaev pleaded not guilty to 30 charges against him including a use of a weapon of mass destruction to kill people. Tsarnaev's two sisters sob when they saw their brother. His feet were shackled, his hand was in the cast, and it appeared he had suffered the nerve damage to his face. He looked back at his sisters and smiled repeatedly, seeming to ignore both the judge and the seriousness of the situation. Norden whose two sons each lost a leg during the attack, had a hard time watching the women.

NORDEN: And it bothered me when they cried. I want them to come to my house and see what my boys go through every day and see how we feel.

FEYERICK: The hearing took less than ten minutes. Tsarnaev returned to prison where he will celebrate his 20th birthday this month. Deborah Feyerick, CNN, Boston.


MALVEAUX: And rescue on the tracks, cameras catching this moment, it is amazing, a man in a wheelchair tumbles onto the subway tracks. We're going to show you that dramatic rescue up ahead and also, keeping a live eye there, the Zimmerman trial, you see the little small box, closing arguments set to begin in about ten minutes. We'll be right back.


MALVEAUX: We are ten minutes away. We're going to bring you live coverage of George Zimmerman murder trial, closing arguments set to begin just moments away. It is going to be uninterrupted without any breaks. We're going to bring that to you moment by moment as soon as it starts. We're also watching stocks soaring on Wall Street, Dow testing record territory right now, within that - wow, up 137 just after the opening bell this morning. Dow Jones industrial average climbed to above 15,456 points. That puts it above its record closing high that was set back in May. We're going to see where it finishes up today. Pretty good news there.

And country singer superstar Randy Travis still very ill today, definitely not out of the woods. It was just hours after Travis was reportedly showing some improvement his publicist says he suffered a stroke. Had to have surgery to ease the pressure on his brain. Randy Travis has been in a Texas hospital since Sunday with a serious heart condition. He is just 54 years old.

This is something you are not going to want to see heading your way. Watch this. That's right. This is amateur video, this is a funnel cloud in Lawrence County, Pennsylvania, just unbelievable, Greg Houston and his parents, they were actually in their car on a highway when Greg spotted that funnel cloud. His mother says it was much closer than it actually looks in the video. Luckily they were able to speed away. And funnel cloud actually moved on.

And this car is being swept away in a river of mud. Look at that. An area, this is just south of Colorado Springs, already devastated by fire, well, now, dealing with this, these mud slides. The driver of that car reportedly not injured. Just one inch of water fell on charred land. But it was not -- it was actually enough to close many of the roads, the mud left anything in its path covered and stuck as you see those vehicles there. We also have - this is amazing story. Dramatic pictures to show you, this is Washington, D.C. subway station, the system there, you see that man in a wheelchair apparently rolling forward to get a closer look at the sign when he went over the edge, right on to the tracks. Well, this happened in one of the busiest stations. I know this station well. This man just inches from the electrified third rail, the train likely to arrive in just moments and Army specialist jumps to help him out. Check it out.


VOICE OF SPEC. MICHAEL MENCHACA, U.S. ARMY: I just jumped down there and started helping him out and started pulling, trying to pick him up and I realized he is still seat belt strapped to this wheelchair and every second felt like 30 seconds.


MALVEAUX: Two others ran in to help as well lifting the wheelchair out. You see the man is recovering, the soldier says, you know, he is not a hero, he just did the right thing. Congratulations to him.