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NEW DAY

Live Coverage of the George Zimmerman Trial

Aired July 12, 2013 - 08:30   ET

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


MARK O'MARA, DEFENSE ATTORNEY: (INAUDIBLE).

JUDGE DEBRA NELSON: Yes, please.

(END LIVE FEED)

CHRIS CUOMO, CNN ANCHOR: All right, so what's going on right now is that defense counsel wants to approach to discuss the judge is going through the business of making sure that the verdict form and the instructions are right. Defense counsel had something he wanted to discuss. They've approached the bench and dropped the mikes. And sometimes they will do that because discussions among the lawyers and the judge are not necessary for the jury's ears.

KATE BOLDUAN, CNN ANCHOR: And, Chris, you've been talking about -- I want to lay out for our viewers, it might sound mundane, the jury instructions in this kind of stack of paper that we're talking about, but it is so essential and such a key part of what the jury is even allowed to consider when they go back to deliberate. Let's walk through that.

CUOMO: Now, obviously, they happen in every one of these criminal trials.

BOLDUAN: Right.

CUOMO: But, they are very much what the jury will rely on. Very often in the jury room during deliberations, they're looking at the rules, the instructions, more than they're examining evidence because they're trying to figure out how what they've heard fits in to what they're supposed to do. And it can be very tricky for them. And in this particular set of instructions, now we also have Jeffrey Toobin joining us, who understands this stuff much better than I do.

Jeffrey, the idea that up front in this book of 20 some odd pages of instructions are all the different ways that they can find justifiable homicide, meaning George Zimmerman not guilty in this case. Explain that to us.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the issue in this case is not who done it. Everybody knows how Trayvon Martin died and who pulled the trigger. The issue is intent. What was in George Zimmerman's head when he pulled the trigger? Was he feeling a justifiable sense of threat? Was he defending himself? Or was he exercising negligence or something worse in committing a crime? That's the only issue in the case and the judge, I think, appropriately right up at the front of the instructions, tries to define those concepts of what's the appropriate level of intent for guilt and for not guilt.

CUOMO: Thank you very much for that, Jeff.

We're going to take a quick break now. The lawyers have finished their discussion. We will start hearing defense closings when we come back. And we got to see in the background different cutouts of Zimmerman and Trayvon Martin. One looked very big. One looked very small.

BOLDUAN: Was very small.

CUOMO: We'll see what the defense uses them to do when we come back.

(COMMERCIAL BREAK)

CUOMO: Welcome back to NEW DAY. Let's go live. Defense Council Mark O'Mara making his final closing argument. Let's listen in.

(BEGIN LIVE FEED)

MARK O'MARA, GEORGE ZIMMERMAN'S ATTORNEY: And without sounding, you know, too over the top about it. Sort of the citizens of Seminole County because you've taken on a responsibility that few people have the opportunity to or the obligation to. And even more so than most, because you may not know this, but most trials last a day or two. They don't last several weeks and it is very few trials, very few where there is enough of a concern that we have to sequester the jury. So you guys are giving us just not your attention during the day, but sort of your life, 24 hours a day, even more so in effect than we have. And I appreciate that on behalf of everyone who spoke about the whole system only works and it works with you. Strange in a way it sort of happens that we have a system that's been ongoing for a couple hundred years and we intentionally bring in people who know as little as possible about the system and tell them to make the most important decisions within it.

And that's what we've asked you to do. We -- and I have some fears I want to talk to you about in that regard because when we talked in jury selection and talked about sort of what this process is and how you have to come to us, I used the words like "unique." Strange even as far as the system that you're now involved in. We're used to it. We do it every day. Sort of like doctors with blood. You know, you just - you get used to it as just part of what you do. We deal with things like autopsy photographs and jury instructions and evidence and witnesses who may or may not remember things or maybe not tell the truth. A witness that come with biases.

And we come into my office and I look at that and I know exactly how to focus my inquiry because I'm a lawyer. I couldn't do it if I was in a hospital, but I can do it in a law office. And yet we ask you to come in and to take on all of our rules and all of our regulations and to apply them as though you've done it all your life. And my fear is that that's a very difficult task that we're asking you to do because the reason why it's difficult is, you're completely unused to it. You don't know how to apply a standard beyond a reasonable doubt. You just don't. You don't know how to wait until you go back in that room to have any thought or any impression about how this case has gone so far. It's impossible.

We're not really asking you to do that, but we sort of are because what we've said to you is, come from your homes, come from your jobs, sit with us for a month, get rid of, I guess, almost everything as to how you decide things in your life, except bring your common sense. We talked about that a lot. Leave that outside. Take on somewhat artificial, and by artificial I certainly don't mean inappropriate or improper and don't want to diminish it at all, but this sort of unusual standard that we're asking you to take on. And my fear is that you will default to what you're used to. You will default to the idea that you make decisions in a split second, like all of us do. That you can't help but have a first impression.

If I were to walk in today, let's say, and I just, as an example, walked in like this, just walked in the courtroom as a lawyer, you would just have an impression. What in God's name is he doing with his sunglasses on and who does he think he is? What's with the pinky ring? I put that on because, well, obviously, this case has gotten some publicity, I became known as some pinky ring wearing attorney. It's actually my dad's high school ring. It's never been on my pinky, but that's all it takes is an impression. And we look at people and we keep that with us.

So, you might have an impression of George Zimmerman. Stand up for a second. You may have an impression of him because he's sitting at the defense table. And that maybe, as we talked about, he's not just a citizen accused (ph), but maybe he is a defendant. Maybe he has something he has to defend. Maybe, in fact, that because the state attorney's office has decided to charge him, he must have done something wrong. And maybe that's the impression that you have.

Unfortunately, we're not going to ask you not to have impressions. That's absurd. My fear, as I was telling you about it, is that if that allows you to sort of diminish or minimalize your task that you've taken on here, that it works against my client, because when we -- even when we talk about things like common sense, we want you to use your common sense. Be careful with your common sense. And I know it's a dangerous thing to say. Be careful with your common sense because common sense is the way we run our everyday lives. The way we make those snap decisions that we have to make every day. In order to work, in order to live, in order to deal with our children and our parents. I mentioned, as an example, driving today. You guys didn't drive today, but we did. You know, you presume people are going to drive in the lane and not just cut you off. It's these assumptions that we make. The problem with it --

NELSON: Excuse me. I am so sorry (INAUDIBLE).

O'MARA: That's OK.

NELSON: I - (INAUDIBLE).

O'MARA: Oh, how nice. Well, --

NELSON: I'm sorry.

O'MARA: That's OK. I appreciate you noticing.

NELSON: Thank you. And I'm sorry to interrupt.

O'MARA: No, no, no. No problem at all. (INAUDIBLE) -- we'll wait now because it may have to be restarted, but I'm just going to chat (INAUDIBLE).

My concern is that it may, in fact, work against my client because if you start using those same processes that we're used to every day and just look at things and make a decision and move on, that suddenly and unintentionally you're going to minimize or diminish the standard that has to be applied in this case. And I'm afraid of that for this reason. If you do that, not only is it going to go against my client, and I don't want that, but any verdict you come up with is going to be sort of a compromised verdict. A verdict that's not based upon the standards that you agreed to -- and I'm not blaming you for not doing it -- that you agreed to and that is the only way that this system really works.

We talked about the difference in civil cases, in criminal cases in jury selection. We talked about the fact that if this was a civil case, you would go back in the jury room and say, well, you know, the state wants money and this guy's (INAUDIBLE) a little more than half. You know, 51 percent or whatever it might be. And then that's the standard. And we talked, but I think that's probably the standard we use in everyday lives. Everything but those most important decisions.

Even when the decision is made to move out of state. To come down to Florida. To move your life here. We talked about maybe that's a decision which is sort of similar to beyond a reasonable doubt. I don't know about that. I think that you make a decision like that, you weigh the consequences, you weigh the possibilities, but you never are certain. You never look at a situation like that and say, I've addressed to resolve variables and all variables are resolved in favor of this.

What you basically do is you look at it, it's an opportunity or an alternative or a necessity, you figure it out, you weigh what you can weigh, you accept what you have to accept and then you make the decision. I would argue to you, I would submit to you that that's not what you can do here today. I think that what you have to do is be absolutely vigilant, diligent in looking at this case and deciding it with the standard foreign to you but one that you have to take on.

Now, that doesn't mean that you have to go back there and wrestle over whether or not Officer Romando (ph), does he have medals on the right side of his chest when he was testifying or the left side of his chest? That stuff doesn't matter. What -- but what does matter are those significant issues of whether or not the state has proven their case. And on those essential elements and those essential facts, you have to look at that because my fear, Mr. Zimmerman's fear, is failing to do that, you will do some of what the state has asked you to do. They asked you to do it in (INAUDIBLE). We talked about assumptions, (INAUDIBLE) jury selection.

They asked you to do it in opening when they yelled those words that you know weren't yelled. They asked you to do it throughout the entirety of their case. So far, they even asked you to do it in closing.

And don't you -- you are not a premise. The Judge is going to tell you with the lawyers, you heard "beyond a reasonable doubt" instructions before and I'm going to spend some time on it, again, to the extent that my argument or insight or presentation differs from what the court tells you. Listen to what the court tells you.

If I get too far afield one of the -- either the judge or the state will remind me but within that context, it's a very, very difficult standard. It is one we have to look at it and be very vigilant to make sure that when you're looking at this case, you're not making assumptions that help you decide the case.

Assumptions presume a lack of evidence because if you have to presume something, you don't know it. And if you don't know it, it hasn't been proven. And if it hasn't been proven as the instruction tells you, it's just not there. And you can't consider it. You can't fill in the gaps. You can't connect the dots to the state attorney's office in this case. You're not allowed to.

So, I'll give you a couple of examples. They're not utterly significant, but I'll give you a couple of examples. What do you know about George Zimmerman? Well, use your memory, but you know he went to college. You know he's in neighborhood watch and he lived there for a couple years.

I think you know he's married because we mentioned his wife's name, I believe. You know that his mom and dad are still around because they testified.

But you don't know a lot more about him than that. I mean there are a few more things. You'll remember them and I'm not going to have a complete review of all the evidence, but you don't know a lot about him. To the extent that there are questions or issues that you don't know about George Zimmerman, we're done with the evidence. You're not getting any more information from the state attorney's office to prove their case against George Zimmerman. Don't assume it. Don't presume it, don't connect dots and don't fill in the blanks with anything.

I'm not saying you'll be sinister during that. I'm just saying that no matter what it is, you can't do it. That's when we say to you, this case is to be decided on the evidence presented in court, it sounds sort of grandiose almost. Well, of course, we're going to base on the evidence in the case, there is nothing else.

Well the problem with it is that if you're not careful, as we do in our everyday lives, you will connect the dots when you're not supposed to. You will fill in the gaps when you're not supposed to. You will make those assumptions. Some of which the state actually asked you to do in the closing. You will do that because you know it's natural. It is very natural. But not in a criminal courtroom it is not only unnatural, it is inappropriate.

What do you know about Trayvon Martin? Not much either. But you're not supposed to. What happened that day is what happened that day. But what I don't think you should do is fill in any gaps, at all. Connect any dots for him either for any fact put on by any witness.

If the decision was made by the state not to present additional evidence to you, do not presume. Do not assume and do not give anybody the benefit of any doubt except for George Zimmerman because, one, you said you would. And two, that's the only way whatever verdict you come up with is going to be just and that's going to be fair.

So one filter, be careful. Address my fear, if you would, by just being careful. Just making sure that when you're back there talking and somebody says, well, you know, he's sort of this or really think that -- that one other of you just says, I hear you, sort of thinking it, too. I can't do it.

Let's just take that thought, that very natural extrapolation and put it to the side. And you might say to yourself, since it's the state who carries the burden alone, you know something, that's what the state didn't give us. That's what they didn't show to us.

So, let's look at the jury instructions and see if it matters. Does it matter where Officer Romando (ph) is wearing his medals? No. But if it's a significant issue, it's something that you need to consider and decide in a case of whether or not George Zimmerman committed second degree murder, then sit back and say, I have to look at the instructions.

And the instructions say that reasonable doubt can come from lack of evidence as well as it can come from a conflict in the evidence. The reason why we tell you and you're instructed by the court that George Zimmerman need not prove anything is precisely that reason.

Again, a strained system; those anyone with children know that you want to get them separated and you want to get the story from both sides. And that's the only way to figure it out.

And then to know who stole the cookies and who gave the cookie to the other one to cover up the crime or whatever it might be, you get an idea because you get them both. So why does he have that benefit? Why does he come before you and say you know what decided not to testify and then you get to sit back and go, wait a minute. My assumption is I want to hear from him.

Now, this case, obviously, is different than others because you heard from him. Time and time and time again. You've heard from him telling you what happened that night. But you know what even if we didn't put on a statement, you still would have to go back there and say, I'm not considering that.

Why -- why do we take away that common sense, presumption of finding out all the information that we can about a case? Because we've already talked about it, you want to take away somebody's liberty they got to prove the case. The burden is on the state. And it goes back a long, long way. I've got a quote to talk to you about -- a couple of them, actually. John Adams 1770 when we sort of started this experiment a couple hundred years ago. God I guess it's 250 now. "It's more importance that innocence be protected than the guilty be punished." Now, if I stop there, it sort of sounds like I'm asking you to let my guilty client go. I'm not. He's not guilty of anything, but protecting his own life. But the quote continues. "For guilt and crimes that are so frequent in this world that they cannot all be punished. But, if innocence itself is brought to the bar and condemned, perhaps to die, then the citizens say whether I do good or whether I do evil is immaterial. For innocence itself is no protection. And if such an idea as that were to take hold in the mind of the citizens, then it would be the end of security whatsoever."

I have a quote in my office that talks about that in a different way from the 1700s (inaudible) where my family came from Ireland. I was there to visit, but never went there but it also talked about, this is not a death penalty case but that was a death penalty where they were talking about a guy going to the gallows and the question was, condemning somebody and not being absolutely certain as to your decision and sending him to the gallows is not because he was guilty, but because maybe he was innocent and maybe he just didn't know.

So, that's why we have a system that puts so much of a burden properly on the state attorney's office in this case. To make sure that we don't cut any corners and we don't make any assumptions. And this is a complement here because Thomas Jefferson talked about you guys 200 years ago as well when he said "I consider trial by jury as the only anchor ever yet imagined by man by which government can be held to the principles of its Constitution."

That's you guys. He didn't, I think he was talking about jurors in general, but it applies to you, as well because we talked about living the Constitution. Well, planned or not, you guys are it. You are living the Constitution. And we'll go over a little bit of it, but I talked to you about it already.

This is a solemn matter. We don't take this lightly whether it's through jokes or kidding around and you see us smiling at each other or whatever. This is a serious, serious matter for Mr. Zimmerman. This is utterly serious matter for you. And I don't say that to scold you into acting a certain way, but just to make sure that we don't do what the state has asked you to do on a couple of occasions now.

You know what, you guys figure it out. If you look at assumption, what about this? It's interesting in a case like this because I call this case the bizarro case in my practice because it sometimes seems like it is turned upside down to me. Not saying you should agree with that but just a perspective that I've had in this case.

How many "could have beens" have you heard from the state in this case? How many "what ifs" have you heard from the state in this case? Well, they don't -- I don't think anyway -- they don't get to ask you that. I don't think they get to say to you, what do you think? No, no, no. No, no, no. What have I proven to you? What have I convinced you beyond a reasonable doubt occurred in this case so much so that you don't have any reasonable doubt as to those issues that I presented to you? They are supposed to use words like "certainty" and "definite" and without question "beyond a reasonable doubt". No other explanation. These are the words and phrases of good prosecutors. I used to be one. I know. I've used them.

What aren't good words of good prosecutors are "maybe", "what if", "I hope so", "you figure it out", "could have been" because those are the assumptions that please do not make. Do not cheapen your role in this case by doing anything less than holding them to the burden that they said in the beginning of the case they would gladly accept and prove to you.

You know, the upside down nature of it is that is what defense attorneys do, if you really think about it. Do you want to know some of the underbelly of criminal defense work? We're the ones who live in "could have beens" and "what ifs". Well you know what, here's reasonable doubt. What if, blah, blah, blah. Or you know what it could have been, it could have been that it happened this way and that could have been that reasonable hypothesis of innocence. We'll talk about that in a second. Actually not a second, it's going to be sometime this hour, I hope.

It's could have been. That's where defense attorneys learn to practice and words that they learn to bring to a jury. I'm not going to do any of that with you today.

I want you to know exactly what happened that night. I don't want you to presume anything. I would like you to presume anything you can to my client's benefit. Because after all, that's what great defense attorneys do.

But in this type of a case, we're going to do something that will probably (AUDIO GAP) enrage defense attorneys anywhere who are listening to this case. Of course, at the risk of confusing you, I'm going to take a side trip for just a few minutes. And that side trip is going to be, I'm going to take on the obligation to prove to you that my client is innocent. Something I absolutely do not have to do. It is the opposite.

And let's talk about what I mean about that because, as you know, the state carries the burden. I'm going to say that probably another dozen times before we're done.

We love our charts. So I have a couple of charts for you. First I have this chart. This tells you what reasonable doubt is. At least it is my argument as to what reasonable doubt is. Your honor, I will block your view of the jury.

DEBRA NELSON, PRESIDING JUDGE3: That's fine, go ahead.

O'MARA: Yes, well, if this doesn't fix itself. That might work, thank you. Thanks very much, I appreciate that. Going to use that for something else, I think. Thank you. Graphic understanding of what reasonable doubt is. And if it's wrong, Mr. Guy's getting up and talk to you when I'm done and let him and point out where it's wrong and then you can make that decision.

This is what we've talked about. What might happen and how convinced you might be. Easy, not guilty -- (inaudible) like your lesson likely. I think you can get the point. I could read through it and ask you to nod your heads in agreement for each one. But the reality is until you get to the idea the concept of guilt beyond a reasonable doubt, then you don't get it.

What happens if you don't get here? What stays in place? It's not a civics exam, but that presumption of innocence that we talked about never dissipates, ever. The presumption of innocence never dissipates until the state proves the case beyond a reasonable doubt which really makes sense.