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tv   Anderson Cooper 360  CNN  July 10, 2013 1:00am-2:01am PDT

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zimmerman trial yet. who will mark o'mara calls a his last witness? anderson cooper starts now. the trial was a sprint but tonight it became a marathon. trench warfare in the courtroom. good evening. welcome to another "ac 360" special report "self-defense or murder, the george zimmerman trial." first, a heated battle that just ended at 9:56 p.m. eastern time. the judge ordering a recess until tomorrow morning, wednesday. the defense asking the judge to permit several key items into evidence, text messages and photos that would seem to paint trayvon martin as aggressive in the eyes of the jury. the defense attorney don west tonight making his pitch. listen. >> there are two main issues. one relates to several conversations by mr. martin attempting to acquire a firearm. >> these are conversations that are audio conversations or are they written? >> there are two main issues, one relates to several conversations by mr. martin attempting to acquire a firearm.
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>> these are conversations that are audio conversations? or are they written? >> they are text messages. >> okay. >> that were obtained from his phone. >> the crux of the matters that relate to the fighting issue, that is the crux of this proffer. it's mr. martin's text messages about being in a fight. about the effects of that fight on him. that he got into a fight, that he lost the first round, won the second and third round. bloodied the guy's nose. wasn't done with him yet. a facebook post from mr. martin's half brother, dimitrius martin asking trayvon martin, when are you going to teach me
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me how to fight. >> right before court recessed, tensions got high inside the courtroom. the prosecution counters mr. west saying that there's no way to tell, and actually, the judge mentioned that there's no way to tell exactly when those text messages were sent or who may have sent them. who may have access to trayvon martin's cell phone. there's no evidence that it was trayvon martin himself, the judge said, sending those texts or pictures. the prosecution saying no evidence of exactly when those pictures of trayvon martin, when a picture of a gun was taken, exactly who was in the photograph. then the defense countered, saying that he was exhausted and he could not keep up this pace. earlier in these lengthy hearing in which the defense complained about the prosecution tactics, the two sides complained and fought against a computer
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re-ena re-enactment. the judge said she's going to weigh the arguments tonight, rule tomorrow, the text, the photos, tomorrow and make her ruling. it's unclear whether tonight's hearing will derail defense plans to rest tomorrow. a lot to talk about tonight. sunny hostin and jeffrey toobin join me. on the defense table, danny savalos and mark geragos. mark has co-authored of "mistrial" inside work of how the court system works and sometimes doesn't. and dr. lawrence kobalanski is here. mark, some dramatic moments just in the last couple of minutes. the defense vehemently saying that the prosecution, that the state, has basically lied and hid evidence from them, not given over evidence that they had in a timely manner. >> well, this has been their complaint all along. one of the reasons that mark o'mara was talking about that don west was so upset early on and had done the knock knock joke and everything else, they
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are bitterly complaining that the prosecution has been playing hide the ball all along, that they had what's called a brady obligation to turn over evidence. and i think it's boiled over as you get -- and i've had judges towards the end of the trial, judges want to get that trial moving. they see the light at the end of the tunnel. if they can get this argued and to the jury by friday afternoon, that is what she wants to do. so she's going to keep them late and this is when tempers flare. >> i want to play something out of court really just moments ago, don west complaining about the state to the judge. let's listen. >> -- which i did not have. >> i'm not getting into this. court is in recess. i'll give my ruling in the morning. >> your honor -- >> court is in recess. >> it is 9:56. no, court is in recess. thank you very much, with all due respect, we'll see you at 8:00 in the morning. at 8:00 in the morning, the
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issue is mr. donnelly who may have violated or counsel has informed the court that he violated the rule of sequestration. that's the second time today that i've heard that there's been a violation of the rule of sequestration by the witnesses. i don't want to take that up at 9:00 and have the jury sit out there and wait like they did today. we will be in recess until 8:00 in the morning. [ inaudible ] >> so have i. >> not being able to prepare for it's 10:00 at night. we've had full days every day. weekends, depositions at night. >> jeff, earlier than this, we'll show that shortly, the defense saying the prosecution lied, hid evidence from them. the prosecution then returning saying that the defense should apologize to them. what do you make of what's going on there, jeff? >> you know, tensions are high in this courtroom. at the end of a long trial, especially one that's been so physically demanding with these long days, this is fairly common.
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look, the defense is doing very well here. they should be happy that this case is moving quickly. yes, it's exhausting. yes, they're tired. yes, it's frustrating to have the judge force them to keep up this pace. but the judge, i think fundamentally is doing the defense a favor by keeping this thing going, and remember, the judge is the jury's lawyer here. this jury is sequestered. they are stuck in a hotel room away from their family. the judge wants to get them back to their families. i think the judge is doing a great job. >> potentially explosive evidence about what may have been on a cell phone of trayvon martin's, whether or not he actually sent these texts or these photos. i want to play what he said he found on trayvon martin's phone. >> there are several text message exchanges where mr. martin is potentially
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attempting to either purchase or sell a handgun. then there are several -- actually, there's two copies, two separate pictures, one of the handgun on a cable or something, and the other one where he slipped it off the table and it's in somebody's hand. >> there's more testimony about texts and fighting, a fight that trayvon martin apparently said he was in. sunny, he went on to detail the text messages were happening the week before trayvon martin was killed. do you think this should be allowed in by the judge? >> well, i don't think it's going to be allowed in because the judge voiced her concerns very clearly. she said, you know, these can't be properly authenticated. we don't know if trayvon martin sent them. she mentioned a 7-year-old can break into a phone and send messages out. it's happened to me. my 7-year-old changed the code on my phone. so i think in real life, trying to authenticate social media messages and messages on
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facebook is very difficult. when you have the person whose phone it belonged to dead, how do you properly authenticate it? i don't think it's coming in own that basis. and even if it's relevant, it's so prejudicial. it's not probative of anything. i can't imagine that this kind of information is coming in. and i don't think that the defense should want it in. it's that trash the victim type of defense that's never successful. i agree with jeff. this defense is doing very well. they should rest and let this go to the jury. >> wait a minute, let me kind of argue that to danny an get your opinion. what the defense is saying is well, look, the prosecution, you know, went to great lengths to get evidence of george zimmerman allegedly learning mixed martial arts and that was allowed in. so if there are, in fact, texts from trayvon martin where he's talking about being in a three-round fight with somebody and that he won the fight and he wants to fight again, should that be allowed in, if george zimmerman mixed martial arts training was allowed in, danny. >> you know, it's fascinating
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that you bring this up, because, first of all, for defense attorneys everywhere, including mr. geragos, when you see that text messaging expert on the stand, it makes you cringe, because we've had so many clients that have been burned by what's on their cell phone. it's interesting to see it on the other side. but sunny is right, it must be authenticated. that's a preliminary issue. before we reach whether or not it's probative or too prejudicial, we have to examine whether or not -- this is a huge issue with digital evidence. in the old days when you took a quill with a feather on it and wrote something, it's pretty clear that anderson authored it. nowadays, it's more difficult to authenticate who may have written something. e-mail. i mean you have to use some real digital evidence. a photograph, i mean, you may not know who took it or where it came from. >> mark, the defense is saying this stuff was kind of double encrypted. >> right. anderson, what is so frustrating about this is that in
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courtrooms, all across this country, if a prosecutor wanted this evidence in, the mother of the judge has not been born that is not going to let this stuff in. i'm telling you, i've defended probably 100 cases where judges have let in stuff like this with 1,000% less authentication than was offered here. the idea that somehow they need more authentication or she concocts this idea that maybe my 7-year-old broke into it, the classic judicial response to that is oh, that goes to weight, not to admissibility. give me a break. she may be doing the defense a favor by not prolonging this and sunny, there may be a point there in terms of you might not want to trash the victim, although that philosophy didn't work too well with robert blake's case. but in this case, they are so far ahead on points that they should probably -- and i think a lot of what's driving this judge
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is she wants it over and she wants it over now and she wants it to that jury friday afternoon. >> jeff, i saw you shaking your head. >> well, i think mark -- i actually think mark is right about the first part. i don't think authenticity is much of an issue. i agree that they can cross examine about whether there was any proof that trayvon martin actually sent it. but i think the bigger issue here is, is this material relevant? there is no evidence that george zimmerman knew that trayvon martin was looking to buy a gun or he knew he had been in a fight. that would have been relevant. if george zimmerman somehow knew that trayvon martin had a violent streak, if in fact he did. but there's no evidence that george zimmerman could have known of these text messages. so i don't see why it's relevant at all. i don't think they should allow this in evidence. >> we have to take a quick break. when we come back, i want to play one more exchange that the witness had about some of the texts that related to this alleged fight that trayvon martin allegedly sent a text about, whether or not it was him. it was a big day before it went into overtime, including
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testimony from a leading pathologist that the defense hopes will undermine the credibility of the prosecution's medical experts. we'll talk about that testimony. and whether the trial is heading into the homestretch. let us know what you think. follow me on twitter. we'll be right back. ust wanted u to eat more fiber. chewy, oatie, gooeyness... and fraudulence. i'm in deep, babe. you certainly are. [ male announcer ] fiber one.
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the courtroom ending just before we went on air over text messages, photos, a computer re-enactment of the zimmerman-martin struggle. at one point, defense attorney don west lashing out. listen. >> it's simply up fair for mr. zimmerman not to be able to put on his defense because of the state's tactics. it was a strategy obviously, because they had it in january and kept it from us, made us spend, 10, 20, 30, 100 hours digging it out, playing games with us, lying to this court and now it's our fault?
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it's our fault? denying mr. zimmerman the right to present this information violate both the florida and united states constitution. thank you. >> the prosecution said he should apologize to the state for suggesting that they were lying. the judge said, look, let's not even get into this, we're done for the day. there were more developments, including testimony from a high powered witness for the defense. details from marten savage. >> reporter: famed pathologist dr. vincent demayo said the bullet hole in trayvon martin's clothing and body, said it proved that martin was on top. of george zimmerman as they struggled. demayo a gunshot expert said he could tell it was martin on top of zimmerman because even though zimmerman's gun was touching the hoody, the hoody was not touching martin's skin. >> in fact, we know that the clothing was two to four inches away is consistent with somebody leaning over the person doing
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the shooting and that the clothing is two to four inches away from the person firing. >> reporter: he also countered the medical examiner's testimony from the prosecution who said martin could have survived and suffered up to ten minutes. after he was shot. di maio said shot in the heart, martin would have unconscious in 10 to 15 seconds. >> he's going to be dead within one to three minutes after being shot in this case. >> reporter: finally, di maio testified that zimmerman's injuries indicate his head suffered at least six impacts against a hard surface. >> is this injury consistent with mr. zimmerman's head having impacted a sidewalk? >> yes. >> reporter: the prosecution jumped on a key question that the defense expert couldn't answer. >> you're not testifying here as to who started what led up to the death of trayvon martin? >> that's correct, sir.
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>> and you're not saying as to who attacked who, whether it was george zimmerman who attacked trayvon martin or whether it was trayvon martin who attacked george zimmerman, you can't say, correct? >> that's correct, sir. >> in fact, you can't testify as to who threw the first punch? >> that's correct, sir. >> and you can't say whether it was trayvon martin defending himself or george zimmerman defending himself in terms of when this first started. >> when it first started, that's correct, sir. >> reporter: prosecutor bernie de la rionda got the witness to admit the defense was paying di maio $400 an hour for his expertise. but demayo said the case didn't require a lot of his time. >> up to yesterday, $2,400.
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this is not exactly a complicated case. >> reporter: the state was able to get the pathologist to say it's possible trayvon martin could have been trying to move away just before the shot was fired. >> at that point, you don't know if trayvon martin was backing up in terms of providing an angle or whether he was going forward, you can't say? >> all i said was, it's consistent with his account, mr. zimmerman's account, that's all. >> but it's also consistent with trayvon martin pulling back in terms of providing the same angle? >> i told you that, too. >> reporter: the last testimony of the day was from zimmerman's former neighbor, too ill to appear in person. eloise joined witnesses when she believed the voice screaming for help sounded like george zimmerman. >> based on the fact that i've only heard george's voice and it's a white male voice, i would say that it's his. >> when you say you've heard him talk, tell us again about how long you have known him. >> by that time, it was 2 1/2 years. >> reporter: perhaps the most powerful statement made in court today didn't take place on the
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stand, but when mark o'mara said the defense planned to rest wednesday. martin savidge, cnn, sanford, florida. >> well, that may depend on how theup rules tomorrow morning. let's bring back in our panel. jeff, just -- we talked about this in the 8:00 hour. that last witness that martin savidge talked about that the defense brought in by video, the neighbor that testified that was george zimmerman's voice, does that have much credibility? how many neighbors know what you sound like when you're screaming? >> no, i can't imagine that will have any significant impact on the jury. but boy, that expert who testified that trayvon martin was on top, that's a powerful witness. and at this point, i think it's going to be hard for the prosecution to argue that any way that george zimmerman was on top. there's really almost no argument left. and you saw that in the
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cross-examination that basically they were saying even if he's on top, he might still be -- zimmerman might have thrown the first punch. but i think the defense has really proved that trayvon martin was on top here. i think it's almost settled. >> dr. -- go ahead, mark. >> and the interesting thing about that is look at what the prosecutor is saying. he's asking him, isn't it consistent that he should have -- trayvon martin could have been pulling away. and the doctor says, and all i said is it was consistent that he was leaning in. the definition of reasonable doubt is if you have two theories but one is consistent with guilt, one consistent for innocence, boom, you must adopt the one that goes towards innocence and find the defendant not guilty. that's the definition of reasonable doubt. >> dr. kobilinsky, you were
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impressed with the testimony, especially when you compare it to the other medical examiner for the state? >> it was quite different. dr. bao gave a very amateurish presentation, flip-flopping on certain facts. i think all these questions were cleared up by what i call textbook testimony today by dr. di maio. he covered everything by both medical examiners, not only the distance between the muzzle of the gun and the clothing and the body. he also talked about time of death, consciousness and pain, and touched upon all the issues involving the trauma to the head. >> you mention this and i want to play this for the viewers who may not have seen the testimony. george zimmerman said all along that trayvon martin spoke even after he was shot. is that each possible? there was testimony about that today, even if your heart has been ripped out. let's listen. >> if you pulled my heart out now i could keep talking and talking and talking?
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and just talking and talking without a heart? >> that's right. >> okay. 15 seconds or so? >> right. it's between 10 and 15 seconds, it's dependent on oxygen supply to the head that's why some of the s.w.a.t. people will prefer shooting somebody in the head if it's situation where the person has a gun on somebody else. >> even though my heart is gone, i would feel some pain or would i not? >> oh, well, yeah, you would still feel pain. >> it's interesting. dr. kobilinsky, the reason that's important, and even more important for the defense, is that it does seem to continue to make george zimmerman's story plausible that trayvon martin spoke. >> i think all of the physical evidence that we heard about from dr. di maio is consistent
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with the story that george zimmerman told. one of the things that medical examiners do is try to reconstruct the events and his determination of distance between muzzle and hoody, the hoody garment and the body is -- and the fact that the -- trayvon martin was carrying this juice can in the pocket of the hoody, you put that all together and it's very consistent with trayvon martin straddling over george zimmerman and george zimmerman shooting with his right hand with the bullet entering slightly to the left of midline and moving toward trayvon martin's right side. all very consistent with what george zimmerman has told. >> and danny, the defense argued strenuously to get the toxicology report in, we talked about this a lot, but then it didn't come up? >> that was fascinating to me, because they fought hard to get that in, and even now today we've been talking about text messages. it's a spectrum of different
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pieces of evidence that the defense wanted to get in. on one end is probably the marijuana, because it goes to someone's state of mind at the time this happened. on the other end, you get into the text messages. which jeffrey toobin is absolutely right, what we look at is what was in george zimmerman's mind at the time of, not just general history of trayvon martin. of course, on the silly end is the fact that he had gold teeth. but stuff that goes to his state of mind, marijuana, tends to be more probative. but then we move out to text messages and things that can't even be authenticated, and things we know that zimmerman was not aware of, and we move from probative and probably way more prejudicial. >> we have to take a quick break. we'll dig deeper into what they've been arguing about today. which you're seeing which we don't know whether or not the jury is going to see this yet, a defense computer re-enactment of the zimmerman-martin struggle. we'll show you next and show you the technology that went into it. we'll be right back. wish i saw mine more often,
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day 12 of the trial will begin first thing in the morning, with a ruling on that computer reenactment the defense wants to put forward. the sophistication is pretty remarkable as our randi kaye shows in this behind the scenes look. >> reporter: this is one picture of what might have happened in the moments before trayvon martin was killed. this 3-d computer animation of the confrontation between trayvon martin and george zimmerman. the reenactment video comes from animation expert daniel shoe maker, a witness for the defense.
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his company claims to be the only company in the united states with wireless motion capture technology for crime scene and accident reconstruction. he uses a motion capture suit to track the movements. on the company's youtube channel, we found this re-enactment from another case. he reconstructed a poor quality security camera video showing a pedestrian hit by a vehicle. see how his wireless motion capture suit records the person's movement at every location? he uses 16 excelerometers. to get his most accurate recording of a person's movements in realtime. he used to use a tape measure then lasers for a crime scene. now he creates points in a scene, all in 3-d space. he says it's the most accurate reconstruction tool on the market. >> the laser follows me around, so it only takes one person to operate. >> reporter: in court, he told the judge how he created the
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model in this case and whether or not it matched the same conditions as the night zimmerman killed martin. >> talk to me about the conditions which that was filmed. i assume it was filmed in the daytime? >> correct. >> i assume it wasn't raining. >> correct. >> the grass wasn't slick? >> correct. >> there weren't these other items of physical evidence out there? >> correct. >> reporter: schumaker said he created the animation of the confrontation by simply re-creating the witness' statements that are not in dispute. >> the scenarios that can be created are consistent with testimony, witnesses and evidence at the scene. >> reporter: still, the prosecution argued against showing the animation to the jury, claiming it's an inaccurate depiction of the confrontation. schumaker's technology are also
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used by other industries, even companies like movies "avatar." >> the suit that i have, it was used in avatar, "x-men" and they use it for creating movement of characters in the movies and it's used in gaming. like matson football. >> reporter: as we wait for the judge to rule whether the animation can be shop to the jury, schumaker says if it is rejects, it will be the first time in 13 years in doing this, that his re-creations were not allowed to be used. randi kaye, cnn, kroshg. >> with me again, sunny hostin. jeffrey toobin. danny savalos and mark geragos. sunny, the argument was fascinating. over this animation went close to like five hours in court today. there's no other point of contention that's lasted this long. where are both sides so dug in on this?
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>> look, this is a movie about the defense's theory of the case. of course, they want it in, anderson. juries love animation. they love demonstrations. this would be a bonanza for the defense. but this isn't coming in. i mean, this is a criminal trial. the standard is very high for this type of evidence to come in. i mean, this is not a movie. this is not "avatar." this is not "iron man." the judge doesn't care that this type of suit was used in hollywood. this is seminole county. this is sanford, florida. this is not going to happen. i've got to tell you, i was in the courtroom sort of watching it, it was like watching a movie, but this is not coming in. >> danny, it's only as good as the data points used to make it. and those are all in dispute. >> exactly. the technology is fascinating. the cgi element of it, relating it to "ironman," these are spectacular movies, however, it's only as good as the data you feed into it.
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and the prosecution's motion that they filed, they identified several problems which i think are relevant. he's reconstructing where people were based on such things as where a spent shell casing was found. you can see from the animation itself that it shows an initial punch. i don't know that's undisputed showing trayvon martin throw the first punch. >> right, the animation of trayvon martin throwing the first punch, but you can't prove that? >> absolutely. so when it comes to demonstrative evidence, there's less of a burden. but where here you're trying to admit substantive to that evidence of what happened. but florida courts are clear, it must be a fair and accurate representation and the data must be of the kind reasonably relied upon. that's the problem. the technology is fascinating. the data fed in, probably not. >> jeff, you don't believe it's going to get let in, do you? >> well, you know, i don't understand why the judge took so long. i think it's crazy to think this could be relevant evidence. this is a high-tech cartoon. that's what this is. and the idea, like we're going to show you a movie that says our client is innocent.
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i mean, that's ridiculous, you can't do that. i mean, this is -- you know, their version of the facts, which is what they should argue to the jury. but they can't put this cartoon on and say that people -- like this is somehow evidence. it's just all made up. >> mark, you've used re-creations like this before. do you find them effective? >> look, i'm going to tell you what cracks me up about this, and i could be speculating, but the reason that this judge took so long is because if this had been the prosecution wanting to get in something like this, she probably would have allowed it. >> oh, come on, mark. >> because there are a lot of judges -- i've had cases, sunny, real murder cases, where prosecutors have put on tapes of somebody in their backyard throwing watermelons as if that's evidence. >> but an avatar-like cartoon movie?
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>> you were representing somebody in a case with a water melon? >> well, no, that the watermelon was the person that was thrown. killing a watermelon is still not a crime in california. the problem with this is, and what she may end up ruling is, okay, you can't bring it in as jeff calls it, substantive evidence for the jury to hear before they've rested. but she may end up saying if you want to show this in the closing, that's fine. it's argumentative. it's an argument. you want to use it instead of a power point, the jury may see it, be cautioned that it's not evidence. but certainly, i can see where this gets let in and the jury sees it in the closing argument. >> dr. kobilinsky -- >> that's very different. that sounds fair to me. >> let it -- what sounds fair to you, jeff? >> well, that let him use it in closing arguments, because closing argument is an argument. this is our version of the
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facts, this is what we think that happened. but not that it's some scientific re-creation. >> dr. kobilinsky, you said this has been used in the past and backfired? >> the fbi has a graphics unit that creates things of this sort to be used in the courtroom. the point is a picture is worth 1,000 words. if this were to be used in closing arguments, it would be one of the last things the jury sees, and it certainly would have tremendous impact. so i think it might be strategically better for the defense if it were presented at closing arguments. >> all right, everyone stay. just ahead, we're going to examine the charge against george zimmerman. as you know, he's charged with second degree murder, but even if he gets convicted of a lesser charge, it still could put him behind bars for decades, details straight ahead. announcer: you're on the right track
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there's been a lot to talk about whether george zimmerman was overcharged when the decision came he would face second degree murder in the trayvon martin shooting. but because of a statute in florida, even with a lesser charge, he still could face decades in jail. ashleigh banfield explains. >> we're on the record. case number 12 cf-1383a. state versus george zimmerman. >> reporter: the prosecution wants to see george zimmerman behind bars for the rest of his life. but to do so, they need to get a second degree murder conviction. and to do that, the prosecution must prove beyond a reasonable doubt that zimmerman intended to kill trayvon martin out of hatred. >> trayvon martin was murdered. in the back of two sets of town homes, there's no street lighting back there. there's no pole lights. there were one or two porch lights on. >> george zimmerman is not guilty of murder.
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he shot trayvon martin in self-defense after being viciously attacked. >> reporter: but if the prosecutors see their case slipping away, there is another option that could still put zimmerman behind bars for years. if requested, and allowed by the judge, the prosecutors can ask the jury to consider lesser charges, like aggravated assault, which still carries the potential for decades in prison, due to a florida state statute called the 10-20 life law. it's dubbed the "use a gun and you're done" law after a popular pfa campaign that newly elected governor jeb bush championed and signed into law back in 1999. it means that with certain crimes in the state of florida, if you use a gun, you'll face enhanced time in prison or mandatory minimum sentences. like ten years for showing a gun.
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20 years for firing it and 25 to life if you injure or kill someone. california is the only other state to have this specific law. but a lot of other states have something called gun enhancement laws. on the books. they basically bump up the maximum time that you might spend in prison. but critics say the rules just don't leave room for interpretation, and they argue that a judge is better equipped to use his or her discretion when assigning prison time than, say, a legislature is. >> you would expect blood on the sweater shirt, correct? >> reporter: as for the zimmerman case, many legal experts say the prosecutors may have to include those lesser charges for the jury to consider. maybe like manslaughter, which in this case carries a maximum sentence of 15 years. unless, of course, a gun is used. and then that time is doubled. in the end, the prosecution's
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level of confidence will likely determine just what charges they'll go after. ashleigh banfield, cnn, florida. >> well, with me again, out panel, sunny hostin, jeffrey toobin, dr. kobilinsky, mark geragos. sunny, i think you may be right now would argue that the state has proved second degree murder beyond a reasonable doubt. but if you were prosecuting this case, would you still request for the jury to be able to consider a lesser charge? >> oh, no question about it. you want the jury to have options, because it's something that prosecutors do, anderson, all the time. and so i can tell you that they're going to ask for the lesser included and they're going to get it from the judge. because they have evidence that could support a manslaughter conviction. i do think, though, that the judge agrees with me. the judge ruled there was enough evidence of second degree murder to go to the jury. and there is enough evidence. what you have to consider is the prosecution has this case in pieces of a puzzle, almost without the benefit of having the box cover to the puzzle. in closing argument, they'll put
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those pieces together for the jury and make the picture very evident. and so, you know, we're saying now, well, there's no evidence of second degree murder. that's just not true. i know mark geragos is over there giggling, because i can hear him in my ear. but it's true. there isn't. >> sunny, what i was giggling about is this idea -- >> yes, mark geragos? >> -- that the judge agreed with you that there was enough to go to the jury. >> she did. >> the only standard for getting past a motion for acquittal is the defendant breathing. if the defendant's breathing, it goes. i mean, how often have you ever seen a judge grant a motion for acquittal? maybe five times in 30 years i've seen it. so give me a break. that's not happening. as far as the prosecutor asking for a lesser, if you're a prosecutor and you honestly believe that you will have a second degree and you proved it, and you're going to be honest about it, why are you going to ask for a lesser? >> come on, mark, you always ask for a lesser.
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>> why, why would you ask for a lesser? just because prosecutors always overcharge doesn't mean that that's right or that's just. if you bring a charge, you're supposed to -- isn't the definition or a prosecutor to be that you brought the charge because you thought you could bring it beyond a reasonable doubt. >> that's right. >> you don't believe that. >> then offer it. >> jeff, as a former prosecutor, don't prosecutors do this all the time in order to maybe get the person to the bargaining table? >> sometimes they do. i think, mark, as usual, has somewhat a cynical view of what prosecutors do. the evidence here really does support a manslaughter charge. you know, this -- it's always seemed better to me as a manslaughter case than a murder case. and i think prosecutors are
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completely within their rights to say this is an option presented to the jury. i think it's somewhat awkward making the argument to the jury, to argue in the alternative. but just in the interest of justice, i think this is an option that should be available to the jury because the evidence is potentially supportive of that. >> now, this brings up another controversial issue. this brings up a controversial issue, it's that, remember, this jury, when they go to deliberate, they're only going to be asked to determine whether or not manslaughter or second degree murder exists. they will not consider punishment. they do not consider sentencing. they're not involved in sentencing. and that's really compelling because with these mandatory minimums, the jury may not be aware that the manslaughter, while lesser included is going to cause more time.
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because with these mandatory minimums, the jury may not be aware that manslaughter is a lesser included offense. economists have said that these mandatory minimums may be the only way of stopping gun violence. it's not more restrictive gun laws, it's these mandatory minimums. but it takes discretion away from judges in formulating sentencing and the jury, of course, will have no idea that that's what will happen. >> regardless of what the charge is, the prosecution needs to prove every element in their scenario. i think at this point, there are still gaping holes. i think there will have to be an acquittal regardless of when there will be a manslaughter charge. >> stick around. up next, final thoughts what we can expect tomorrow. will the defense rest tomorrow? we'll be right back.
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some quick final thoughts from the panel now about what we can expect tomorrow. mark geragos? how do you think the judge is going to rule on this after all the arguments made tonight? >> i think the judge is going to tell them that they can put use of video in the closing, and i think she's going to allow in some of the material, but not all of the material that came from the various things, the phones and the social media. but i think the jury will see this video in the closing argument. >> sunny hostin, what are you expecting tomorrow? >> i think mark geragos is dreaming. none of it is coming in. i think there was every indication that she had a problem with the authenticity of all the text messages and the "avatar" cartoon is not coming in either. >> jeff toobin?
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>> she should exclude the video and the text messages. but she's been very receptive to arguments about relevance. she may let in both. >> danny cevallos, what are you thinking? do you think the defense will rest tomorrow? >> i don't think so. with the delay today and just because things never happen on schedule, i doubt it. some of the evidence comes in. and here's a tease. we've got to deal with donnelly, the sequestered witness who may or may not have been in the courtroom. witnesses aren't supposed to be in the courtroom at the same time. that's potential collusion. >> what happens? >> you can either tell the jury to disregard that witness' testimony. one of the most drastic remedies, the dreaded "m," just like mr. geragos' book -- "mistrial." >> love that plug. >> jeff, you wanted to mention the oath, as well? >> right, the oath. >> jeff, do you think the defense is going to rest tomorrow? do you think this is ending
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tomorrow? >> i do. i think the judge has had it. they're going to start at 8:00 in the morning, which means it's going to be a long trial day. this judge is desperate to get this case to the jury and let these jurors return to their normal lives. i think it's over tomorrow. >> all right. thank you. randi kaye has a "360" bulletin. anderson, investigators have questioned the four pilots aboard the asiana airways jet that crashed in san francisco. they were said to be cooperative and realized the jet speed was too close. as it approached the airport. they were not tested for drugs or alcohol. now to canada. a criminal investigation is under way into the runway train that crashed and burned over the weekend. police say they have evidence the train was tampered with. 15 people were killed. 35 people are still missing. osama bin laden liked to wear a cowboy hat while working in his garden in pakistan to
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avoid being identified, it turns out, by satellite. and he wasn't recognized when police pulled over his car because he had shaved his famous beard. these details are listed in a report issued by a pakistani commission looking into the raid that led to his death. the three cleveland women abducted and held captive for years are now speaking publicly for the very first time since their release. in a youtube video, the three offered thanks to everyone who had supported them. >> first and foremost, i want everyone to know how happy i am to be home with my family and friends. it's been unbelievable. i want to thank everyone who has helped me and my family through this entire ordeal. everyone who has been there to support us, it's been a blessing to have an outpouring of love and kindness. i'm getting stronger each day. and having my privacy has helped immensely. i ask that everyone continue to respect our privacy and give us time to have a normal life.
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>> they were kidnapped and abused allegedly at the hands of ariel castro who faces 329 counts. and in business news, great news for lovers of twinkies. they're back in stores beginning monday with a shelf life of 45 days. nearly twice as long as before. twinkies production ceased in november, you may recall, when hostess went out of business, but the company has been bought by new owners. i know you're excited about that. >> i don't know how they extended the shelf life. >> i don't know. magic. deep science. they're really looking into this. >> dr. kobilinsky, any ideas? >> preservatives. >> they're going to love that. randi, thank you. that does it for this special edition of "360." we'll be back at 10:00 eastern tonight for another in-depth floor at the george zimmerman trial. "early start" begins right now. have a great day.
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was this a recipe for disaster? the pilot in training, the co-pilot teaching for the very first time. new information on the san francisco jetliner crash. death toll rising, at least 15 dead now. dozens more missing after a train explodes in canada. whats this just an accident? or could something criminal be at play? and man versus shark. diving in for a wrestling match. so what was this guy thinking? you're going to have to see it to believe it. there is some amazing video. i assure you we will show that to you. >> i cannot wait. i'm sure