>> i object to the court acquiring of mr. zimmerman as to his decision whether or not to testify. >> your objection is overruled. >> reporter: but after a tense exchange between judge debra nelson and zimmerman's lawyers, he made his choice. >> after consulting with counsel not to testify, your honor. >> reporter: there was also proof in court wednesday you can learn a lot from a dummy. during one of the most surreal moments in court, both sides straddled a foam dummy in attempts to illustrate the conflicting arguments as to what happened the night trayvon martin was killed. prosecuting attorney john guy argued that it could have been difficult for zimmerman to shoot at a 90 degree angle had trayvon martin been on top. >> would it be consistent the 90 degrees if trayvon martin was backing up and the defendant raised his gun and shot at 90 degrees? >> reporter: then defense attorney mark o'mara grabbed the dummy to support his argument.

>> the injuries on mr. zimmerman's back on his head consistent with someone doing this? >> reporter: and on the final day of testimony, george zimmerman's father, robert zimmerman returned to the stand to address the screams heard on the 911 tape. >> absolutely, it's my son, george. >> is that an opinion that you still have through today? >> certainly. >> reporter: in another important ruling, judge debra nelson will decide whether or not to grant the prosecution's request to apply lesser charges of manslaughter and aggravated assault. >> self-defense is self-defense to everything. there shouldn't be a second degree murder charge and shouldn't be any lessers. >> so, we are getting, wolf, to the beginning of the end of this case. you laid it out earlier and i'll cut through what is to be expected again. today at 1:00 p.m. we expect the jury to arrive here to hear closing arguments from the prosecution. that could take two hours. then tomorrow on friday, we expect to hear from the defense

attorneys. their closing arguments and then the prosecution, wolf, will have one hour for rebuttal. so, after that, it all goes over to the jury. >> and before it goes to the jury, the judge will have this, will have to deliver the instructions to the jury in this hearing that is about to begin right now, this procedure will be very, very significant whether or not lesser charges, as you point out, manslaughter, aggravated assault, can be considered. and it's significant because presumably if he's not convicted on second degree murder, the jury could decide he is guilty of manslaughter or aggravated assault and presumably the sentencing would be reduced as opposed to second degree murder. this could be seen as some sort of compromise. >> and you can tell, you can see that the prosecution, you know, this could be sort of a backstop. if this jury does not believe that the case warrants second degree murder then certainly aggravated assault. then manslaughter and those are considered, as well. wolf, i don't know if we can dip

into live video now, but you can see that judge debra nelson has taken to the courtroom. you can see the court is just about to start. and, again, we expect to hear some testy exchanges. this is important because the defense wants to focus in on the wording. what is told to this jury? what are they instructed to do when they go to make their decision? the defense team will focus in on justifiable homicide. keep in mind that stand your ground, a clause we've thrown around for a bit. stand your ground is just like one line in justifiable homicide in the statute here in florida. they want to focus on the wording. what is this jury told? how are they told to consider what is justifiable homicide? so, we expect them to get in the weeds on that here in the next hour or so with the prosecution. >> let's bring in mark as we wait judge debra nelson getting ready to begin this hearing. explain why the defense is

really resisting this notion of having these lesser charges considered? they want second degree murder or nothing. >> well, they could end up winning the battle and losing the war. in this situation, wolf. you've got a lesser included offenses, which if the jury comes back and they go, we have to come back with something, it's that kind of case. well, the penalties are still extremely severe. on a manslaughter charge, it might sound like less, but it ends up because a firearm was used, the penalty doubles from a 15-year maximum to 30-year maximum on aggravated assault in florida third degree felony but because a firearm is used in it, all of a sudden mandatory prison sentence imposed. you could end up thinking, remember one other thing, jurors are not told what the penalties are. they might think, well, we're going back and giving him a little slap on the hand and puts him to prison for many, many years. >> interesting. we just saw one of the criminal

defense attorneys don west inside having a little chat with judge debra nelson. mark o'mara is not going to be apparently in the courtroom today because he's gearing up for his closing argument as that will take place tomorrow morning before the jury. he expects his closing argument to continue for three hours. i assume he wants to gear up for that, prepare that closing argument. mark, are you surprised that he decided not to come into the courtroom to hear the state's closing argument this afternoon? maybe he'll be there this afternoon. he's not there for the hearing this morning. >> i would expect him to be there this afternoon. he needs to be there this afternoon because no matter how much he prepares, still be things that he will have to respond to in the first phase of the prosecutor's closing argument. remember, they're likely going to go for two hours for the first part and gets sandwiched in for his full three hours or

however long he takes and then they have the right to close it. they'll do another hour. he'll definitely need to hear what they're saying so he can respond appropriately. i think we'll expect to see him back for their closing argument. >> and maybe george, if george is still with us, a quick question, george. because i want to go through the timeline and -- mark hold on for this point, as well. the state will give the closing argument this afternoon starting at 1:00. the arguments now on whether or not the lesser charges should be used and then the jury will be dismissed. we expect the prosecution to continue their closing argument for about two hours. let's say. the jury will be dismissed for the day and come back tomorrow morning, friday morning and hear the defense deliver the closing argument that probably will start around 9:00 a.m., although that's not 100% set in concrete. we expect mark o'mara to go for three hours apat that point, the prosecution will have another hour or so and the prosecution will get the last word.

the judge will then spend 20 minutes to half an hour giving instructions to the jury friday late afternoon. at some point the jury will then begin its deliberation. george, saturday, sunday, the jury is going to consider. let's say they come up with a decision saturday afternoon or sunday afternoon. will they then call the trial back into session to announce what the jury has decided or will they wait until monday? >> you know, wolf, and i think you said it just a minute ago. it's hard to tell. it is highly possible, you know, that they could be called to announce that decision over the weekend. we have yet to see. you know, this judge doesn't really explain a ahehead of tim what is going to happen. even when she talked to the jury, i'm always cautious telling you what to expect because things change. these things are possible. we also, wolf, have some insight into what will happen when the defense gives its closing arguments. you remember that computer

animation and that reenactment of the crime scene. that is possibly going to be used in the closing arguments for the defense. remember, that judge debra nelson said it can't be used as evidence. the jury can't take it back to the jury room and they can't touch it or see it play out there, but she says it can be used as a tool, a demonstrative tool and that seems to be, from what we understand, what could happen when the defense gives its closing arguments. to let this jury see how the defense team believes this played out and, in the animation, i believe we have video of that. but in the animation, you see, you know, figures that are supposed to be trayvon martin that are supposed to be george zimmerman in a struggle. that's what the defense team wants this jury to see as they walk away to make their decision. >> the judge has just recessed this hearing for a half an hour apparently to give both sides a little bit more time to prepare their aurnrguments. not a huge surprise, mark, is it? >> no, not at all. it's getting ready to come to an

end. she is going to let everybody ready themselves. it is appropriate and complex issues and some of the most important issues some of the most uninteresting things. but they couldn't be more important in the case because they really will navigate what's going to be told to the jury and it's going to direct them as to what their deliberations should be considering. so, it couldn't be a more important matter concerning the charge, you know, preparation for the charge to the jury. >> explain one thing to me, mark. you're an expert in florida law. done a lot of criminal trials down there. is it true that the six women on the jury will not know the possible sentencing guidelines for these three respective charges, second degree murder, manslaughter, aggravated assault? they will assume lesser charges and reduced sentencing, but they won't know specifically, the judge will not tell them what kind of sentencing requirements could be imposed, if george zimmerman is convicted on one of the lesser charges. is that true, they won't know

the sentencing guidelines? >> that's exactly right, wolf. that is the greatest fear of the defense right now that some sort of compromised verdict will come in. what's all the more amazing about this is that the jury could actually come back with manslaughter in which there is no mandatory minimum sentence on that because manslaughter is not one of the enumerated offenses to go ahead and have the 10-20 life kick in. come back with what is even a lesser charge with aggravated assault with a firearm. get a lesser charge than you could potentially get with a manslaughter charge. the biggest fear of the defense and they're going to be, you'll hear it in their closing argument. they're going to be doing everything to make that jury know, self-defense is a defense for any and all charges whether it's a lesser or not. self-defense cures all and that's what they're focusing on. a compromised verdict would, in

fact, be a great victory for the prosecuti prosecution. >> and it's up to the judge and only the judge to impose a sentence. the jury will either convict or acquit, but the judge, mark, will make the final decision on what kind of sentence. is that right? >> that's right. no recommendation, unless it's a death penalty case. no recommendation from a jury. their soul job is to come in and either determine guilt or not guilty. with that if it's a guilty verdict on any count, then it is up to the judge for sentencing. may i say one other point? i'm sorry, wolf. i'm sorry. the judge has no discretion as far as minimum as it relates to certain minimum mandatory sentences. there, that's the discretion taken from her. certain offenses, she has to give the minimum. >> mark nejame and george howell standing by with us. the judge is taking a half hour

recess to let the lawyers prepare a little more for the argument as whether or not lesser charges should be allowed to be considered by the jury in the george zimmerman murder trial. we'll have a lot more coverage, live coverage once they resume. other important news we're following, including an area south of colorado springs already devastated by fire and now dealing with a new and messy problem. mudslides. cars being swept away in a river of mud. this incredible video was shot in manitou springs. the driver of that car was not injured. one inch of water fell on charred lands. the mud left anything in its path covered and stuck. our meteorologist chad myers is joining us now. he's got more on what's going on. the images, the pictures pretty devastating, chad. >> yeah. this is what happens, wolf, when you get an area that has burned. that is what they have there in colorado. many, many millions of acres that have burned recently. when it rains on top of that

land and that's we're talking about a mountain, that land has no more root system. the trees, the grasses and everything that used to allow the water to run off is all gone. just dirt there. when the dirt becomes so saturated, it just begins to run off as a mudslide. here's what happened yesterday. thunderstorms and will happen again today. thunderstorms developed along the ridges of the mountain here and that thunderstorm activity caused rain to come down. as the rain fell in the same place for a very long time, it got into the canyons and, eventually, down through and eventually down into the plains. well, the canyon was the problem. all that water and all of that mud had to go down through and what do you put in the canyon? that's where you put the roads because the easiest place to build a road. that's exactly what those drivers got into yesterday and there's not a question in my mind that this couldn't happen again today. need to be very careful. those flash floods happen. if you want to go back and look at a textbook case.

the big texas canyon flood. many years ago not anything to do with a mudslide or a fire but all to do with almost ten inches of rainfall falling in estes park all coming down the same canyon, wolf. >> very fright nothing if you're driving along that area. chad, thanks very much. frantic call for help on asiana flight 214 calling 911 moments after their plane crash landed in san francisco. comes as the relatives of those two teenage girls killed in that crash make a very somber trip. a private moment touring the site where those two 16 year olds died. and we're learning more about what was going on in the cockpit during those final minutes and seconds of the flight. including changes to the flight path and the altitude. > plus, one of the pilots says he was temporarily blinded by a flash of light the same time the pilots noticed the plane was

flying too low and too slow. miguel marquez joining us from san francisco with more. a lot of talk about pilot error, but officials, investigators say it's still too early to formally come up with that conclusion. >> oh, certainly. it will be a good year. probably 18 months before theirs able to say anything definitive. but a lot of factors in that we can talk about in a second. but san francisco airport now getting ready to reopen that runway 28 left. they're doing a lot of work to get that done or at least beginning that work to get it done. it will take some time. all of that as we're learning a lot more about this investigation. >> i just got in a plane crash and a lot of people that need help. >> we have people over here who weren't found and they're burned really badly. >> reporter: a chilling description of the traumatic scene as passengers escaped the burning aircraft in a desperate plea for emergency medical

assistance. >> on the ground, 20 minutes, a half hour. there are people laying on the tarmac with critical injuries, head injuries. we're almost losing one here. we're trying to keep her alive. >> reporter: overnight, a somber moment on an airport runway. family members of the two girls viz that crash scene. 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. "we are putting in our best effort," she says "to recover from this accident." many crediting the heroic action of the flight crew for saving so many lives. investigators now say that three flight attendants were ejected from the plane still in their seats and the fourth injured by an emergency slide deployed

inside the cabin and fight fires as passengers escaped. 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, 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. >> he did talk to us about the approach in landing. he relayed that to us but it was a temporary issue. >> reporter: airports and airline officials eager to get back to full operations as arrangements are made to move the charred remains of flight 214. now, on those 911 calls, officials here say, look, there was a huge triage operation at the plane itself. it was some time before they realized there were other victims much farther down the

tarmac near the sea wall there. so so, it did take some time for those individuals to get help. also the ambulances. why they had a lot of ambulances in this situation stayed away from the plane buzz ecause if t plane exploded they didn't want the ambulances to go up, as well. wolf? >> miguel marquez on the scene for us in san francisco, we'll stand by for new developments today. thank you. meanwhile, good news for your 401(k) this morning. markets are set to surge at the open and may even reach some record highs after the fed chief ben bernanke indicated that the government's massive stimulus program isn't going anywhere. alison kosik is following all the latest moves from the new york stock exchange. a little upbeat attitude on the floor today, i take it, alison. >> the bulls getting ready to make a run of it in 12 minutes. the dow set to rise 130 points at the open. if that happens, it would push the dow actually back into

record territory. something that happened for the first time back in may and this is all thanks, as you said, remarks from ben bernanke. he spoke at an economic conference last night and what he said is monetary policy would remain highly accommodative for the foreseeable future. translation. it means the open $85 billion in stimulus money that is pouring into the financial system that is likely to keep flowing. really what helped the stock market reach the record highs that we've seen. he also said that interest rates would stay at record lows. that essentially made it more affordable for americans to take out car loans and mortgages. now, there have been worries about the fed pulling back on stimulus, sooner rather than later. what these comments essentially do is help alleviate some of those concerns. wolf, not all great news, though. oil prices also in the mix today. they're dipping a bit today, but are up 10% over the past month. so, you can expect that to filter to the gas pump soon. wolf? >> what was the phrase you used? highly accommodative?

>> it essentially means that these accommodative policies where the fed is pouring this $85 billion into the economy, that's pushing bond rates low and essentially pushing investors to the best investment in town that's stocks and that's creating the wealth effect in the stock market and keeping interest rates low. it encourages businesses and consumers to borrow money and where businesses are concerned, it encourages them to especially borrow money with the expectation that hopefully they would expand and hire so that that would eventually filter through to the job market, wolf. >> a phrase like that could have a huge impact and people making a lot of money in the stock market as a result of highly accommodative by ben bernanke. thanks very much, alison. we're also keeping a close eye on the developments in the george zimmerman murder trial. prosecution and defense attorneys are getting ready this morning to argue over whether or

not the jury could consider lesser charges. manslaughter, aggravated assault charges. something the prosecution wants and the defense does not want that. we'll take a quick break and get back to the court. they're in recess right now. but judge debra nelson is expected to bring them back soon. edward snowden could soon be on his way to venezuela. his flight to asylum, though, could be rather risky. we're going to hear what it could cost, as well. mine was earned in djibouti, africa. 2004. vietnam in 1972. [ all ] fort benning, georgia in 1999. [ male announcer ] usaa auto insurance is often handed down from generation to generation. because it offers a superior level of protection and because usaa's commitment to serve military members, veterans, and their families is without equal. begin your legacy, get an auto insurance quote. usaa. we know what it means to serve.

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the judge debra nelson in the george zimmerman trial called a little recess. it's expected to resume in about 10, 15 minutes or 20 minutes. the arguments that both sides want to make on whether or not

lesser charges should be allowed to be considered by the jury. that is going to be significant. later today the closing arguments portion of this trial begins. live coverage of all of this coming up, including this hour. stand by. other news we're following right now, including the nsa leaker edward snowden. his best option for asylum appears to be venezuela, that according to the journalist glenn greenwald that published snowden's leaked material. but it's not clear if he offered anyone's acceptance of asylum and still believed to be in moscow's airport. if he is headed to venezuela, it could be rather tricky. cnn's phil black explains why. >> reporter: the recent flight from moscow to south america was effectively a dry run for edward snowden. even though the plane was denied entry into french and spanish air space on only the suspicion that snowden was on board. spent 13 hours grounded in

austria. snowden has no easy way of escaping moscow for a friendly south american country. the most obvious flight is havana option. a direct flight to cuba that snowden was booked on weeks ago, but didn't take. that usually cuts through america's eastern states. would it be allowed to follow that path if snowden was on board? could the united states force a commercial passenger aircraft to land? president obama says he won't use the military. >> no, i'm not going to be scrambling jets to get a 29-year-old hacker. >> reporter: but if snowden finds little comfort in those words, he would then need to look at other options. most of them much longer, complex and expensive, involving private aircraft and the cooperation of multiple countries that are prepared to defy the united states. he could try hopping from one sympathetic nation to the next

through the middle east and africa before making the final jump to south america. or there's the long way via the arctic and the atlantic. a risky ocean journey that would be a real struggle for most aircraft on one tank of fuel. phil black, cnn, moscow. also, we're keeping a close eye, as i said, in the developments in the george zimmerman murder trial. the prosecution and defense attorneys are arguing over whether or not the jury should be allowed to consider manslaughter and aggravated assault charges in addition to the second degree murder charge. something the prosecution wants the defense does not want that. they're getting ready for a hearing. it's about ready to resume. we'll go back to the court in a minute. [ ship horn blows ] no, no, no! stop! humans. one day we're coming up with the theory of relativity, the next... not so much. but that's okay -- you're covered with great ideas like optional better car replacement from liberty mutual insurance.

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getting ready to resume. they're in a little recess. first, a quick check of some of the other top stories we're following. we could be into another incredible day on wall street. markets could set new highs, at least potentially after the feds reassurance that the massive stimulus program will, in fact, stay in place for now. joining me now, cnn's alison kosik is at the new york stock exchange and "your money" anchor christine romans also in new york. alison, for you, they could break another record today, couldn't they? >> very much so, wolf. opening bell will ring in about 30 seconds at this point. the expectation that the bulls will charge out of the starting gate, pushing the dow back to record territory. the number we're keeping our eye

on 15409. but last time it reached that 15409 number it was back in may. this is all comments from ben bernanke. said the stimulus punch bowl is going to stay on the table. the main factor that has propped up stocks and this stimulus is an $85 billion a month effort where tresh rebonds pushing investors because it's pushing interest rates lower. it's been a real roast roller c ride for stocks and what will happen when the bowl is pulled away from the table. also want to quickly mention weekly jobless claims we found out this morning that they jumped by 16,000 last week to 360,000, but, keep in mind, kind of a quirky week. the data may be skewed because of the july 4th holiday and temporary layoffs because of school getting out.

with the green arrows, not bothering investors too much but something to keep an eye on as we see stocks move back towards that record. wolf? >> already up 92 points. 15,409. that's the key number. christine, let's talk a little bit about that. let's watch that number. be interesting if it goes above 15409 in the next, in the next few seconds or minutes. look at how quickly it has gone up. there it is -- >> it will need to close above there. >> i know, but, still, pretty impressive. look at how quickly it opened above another 122 points up right now. it's gone above that 15,409. >> i'll tell you something so interesting, something called the taper tantrum when markets got upset because they thought the fed chief was going to stop or slow down next year all the stimulus that alison pointed out into the economy. the fed chief shushed that taper tantrum and moving quite nicely

and higher here. cnn money survey of money managers and investment managers and pros and a consensus found by the end of the year they think the s&p 500 will end up 14%. right now, heading into today's session, the s&p 500 up 15.88%. that could suggest by the end of the year, lower volatility and lower moves. we don't know what happens or what is going to happen in the stock market for sure. you only know after the closing bell rings how it is going to end. but still an awful lot to get through for the u.s. economy. here what is going right, wolf. housing market is healing. back to precrisis levels. still work to go, but that is great news. a labor market situation that is slowly healing. and we see that data week after week after week. and a u.s. economy that is growing, not great at 2.5% or so, but still the best gain in town, better than europe, which is in recession and better than a lot of other places that are

coping will, still, the hangover of the financial crisis. that's why you have this combination, potent computatibi. >> fed chief that spoke of exuberance. >> irrational exuberance. >> that's right. we don't want to get into irrational exuberance right now. thanks, guys, very, very much. we'll keep a close eye on what's going on. 144 points up just minutes after the opening bell. also keeping a close eye on the latest developments in the george zimmerman murder trial. prosecution and defense attorneys are arguing over whether or not the jury should be allowed to consider manslaughter an aggravated assault charges. something the prosecution wants and the defense does not want that. we'll hear the argument as and we'll be live in the courtroom. stay with us. the great outdoors, and a great deal.

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minutes once the trial resumes. they're in a brief recess right now. first, some politics and not police work that is what has been driving the george zimmerman case, according to the man who initially led the investigation in its early stages. bill lee said it was politics that ultimately cost him his job as sanford, florida's police chief. he sat down for an exclusive interview with cnn's george howell. >> saying this was the result of political pressure that you lost your job? >> i believe it was political pressure and the fact that i upheld my oath. >> reporter: sanford, florida, a town caught in a decisive, racially charged death investigation. neighborhood watch captain george zimmerman admitted to shooting and killing unarmed teenager, 17-year-old trayvon martin. and at the time, bill lee was the police chief. >> we were investigating the death of trayvon martin, which was a tragedy. you know, we wanted to find out

what truly happened and seek justice. >> reporter: lee says the investigation started that night. they took george zimmerman into custody for questioning and he claimed self-defense and the sanford police department let him go. your lead investigator suggested manslaughter on that initial police report. why is it for 40 plus days george zimmerman walked a free man? >> the laws of the state of florida and the constitution require you to have probable cause to arrest someone. the evidence and the testimony that we had didn't get us to probable cause. if we had people that were witnesses that could tell us that the self-defense claim or the way george zimmerman said things happened that cont contradicted that, then we certainly may have probable cause. >> reporter: martin's parents hired benjamin crump, a skilled

civil rights lawyer and his persistent demands that george zimmerman be arrested lit an uproar. people traveled to sanford to march. talk to me just a bit about that outside influence. because at the time, you remember, there were a lot of civil rights leaders that came to town. a lot of protests and, you know, people see this situation differently, but there is a segment of people who said from the beginning at this case that, you know, had george zimmerman been black he would have been arrested and been behind bars. what do you say about that suggestion from people? >> the sanford police department conducted an unbias, professional investigation and race did not come into play for the sanford police department. >> reporter: but the calls for an arrest grew louder and lee says city officials and the city manager, his then boss, felt the heat when you look back at what

happened was there a lot of pressure on you to make an arrest? >> there was pressure applied. the city manager asked several times during the process, can an arrest be made now? i think that was just from not understanding the criminal justice process. it was related to me that they just wanted an arrest. they didn't care if he got dismissed later. you don't do that. >> reporter: in a statement, city man ajure tells cnn, "lee told me he took an oath of office and could not make an arrest. once he told me, i don't recall asking him about arresting him." is it fair to say that the investigative process, in a way, got hijacked? >> yes. in a number of ways. >> reporter: not bringing charges against zimmerman, police passed the case to state attorney's office and the case assigned the case to angela cory

who charged george zimmerman with second degree murder. >> that investigation was taken away from us. we weren't able to complete it. and it was another district or a different state attorney. so, in that outside influence changed the course of the way the criminal justice system work. >> reporter: after only ten months on the job, lee was temporarily suspended and later fired by the city manager. there was political pressure on one hand, would you agree? >> sure. >> reporter: there were outside influences on the other? >> yes. >> reporter: did you get a fair shake? >> i don't think so. i upheld my oath. i upheld my oath to abide by the laws of the state of florida and the constitution and i'm happy that at the end of the day i can walk away with my integrity.

>> reporter: one of our legal analysts today said that chief bill lee really got thrown under the bus. would you agree? >> yes. >> george is with us. good interview, george. his decision at this critical moment to speak out to you, explain a little bit more about why he decided this is the time he wants to explain his version of what happened. >> wolf, absolutely. if you look at what happened just the other day. you saw people on the stand and we've seen several people on the stand so far. let's go back and look. the lead investigator. we've seen chris serino and we've seen norton, the city manager here of sanford talking about that 911 tape the day the city decided to take what bill lee says was police evidence, release it to the public and also hold a meeting so that trayvon martin's family could hear that audiotape at city hall in the mayor's office.

that's something that lee says that he never would have allowed. in fact, he suggested he advised against it. that's why he's talking out now. it seems like given what's come out in court where you heard norton talking about the decision to play that audiotape and also talking about whether or not he received instruction from his police chief about whether it's a good idea to play that tape. now is the time, he says, to come out and talk about his side of the story. his version of events. and why he decided, you know, playing that audiotape was a bad idea. but also about that investigative process. he wanted to make the point that when you look at everything that has come out through the court, his investigators did their job. he did his job. but, again, the difference is he lost his job. >> because he says of politics, which interfered in that investigation. and he makes that point in the interview with you. george, don't go away. we're keeping a close eye on the

latest developments in the george zimmerman murder trial. prosecution and defense attorneys they are getting ready in a few minutes to argue over whether or not the jury will be allowed to consider lesser charges. lesser than the second degree murder charge, including manslaughter and aggravated assault. something the prosecution wants the defense does not. in the end judge debra nelson will make that ruling whether or not lesser charges will be considered by the jury. we'll take a quick break and get back into the courtroom when we come back. i missed a payment. aw, shoot. shoot! this is bad. no! we're good! this is your first time missing a payment. and you've got the it card, so we won't hike up your apr for paying late. that's great! it is great! thank you. at discover, we treat you like you'd treat you. get the it card with late payment forgiveness. your next trip is calling you. saying, "dan, schedule a 5 o'clock meeting at a hilton garden inn." or "dan"... hey, dad.

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we're watching two big stories this morning here in the "cnn newsroom." we're keeping our eye on the george zimmerman trial. in the meantime, attorneys are getting ready to spar over possible lesser charges that the jury might consider. they're on a break right now. the recess still continuing for a few more minutes. we'll go back to the courtroom live in a couple of minutes. on wall street, meanwhile, the markets shooting up nearly 150 points right at the open bell this morning. stretching into record territory as the fed chief reassures investors that the stimulus program isn't going anywhere. we're watching the markets up right now 138 points. it's been more than a week since egypt's military removed president mohamed morsi from

power. we still don't know where he's being detained. the interim government, however, is releasing a few details about morsi. carl penhaul is joining us from cairo with the latest. what do we know about the former egyptian president? >> wolf, those details are still very scant. we're hear aing both from the foreign ministry and the briefings we had over the past few days with thejipgz mi egypt military. they say mr. morsi is being treated well and in good condition. they are not giving more details than that. what they have said is so far he has not been charged for any crimes and very much they're trying to characterize this as mr. morsi being held for his own protection. but a week and a half into this military coup, a president and a man who is democratically

elected president not charged with any crimes and being held because i put it to the spokesman of the national salvation from one of the main coalitions that backed this military coup have you been allowed to see mr. morsi. have you been able to check that his rights are being preserved. the spokesman for the national front said we haven't seen him at all. so, here, there doesn't seem to be any civilian oversight in the action of the military and certainly as far as we know, mr. morsi continues to be under military custody in an undisclosed location, wolf. >> we're also getting word, karl, from the pentagon from our sources there that the u.s. is still planning on delivering to egypt, to the egyptian air force another four f-16 fighter jets in the course of this summer. that is at least the tentative plan. i assume that the interim government, especially the military, will be pleased that

military hardware is continuing to flow from the united states to egypt during this sensitive period. >> well, certainly, the egyptian military with that $1.5 billion of aid each year certainly very happy to get that help. and the egyptian military, whether it is just after a military coup or even in normal times functions pretty much as a state within a state. if you talked to people on the street whether those are supporters of the deposed president or civilian supporters of the new regime, there's a lot of anti-american sentiment here and they see the u.s. is meddling in egyptian affairs. they're not particularly happy with any u.s. aid right now, wolf. >> karl penhaul watching what is going on. we'll continue to stay in close touch with you and all of our reporters, producers, journalists in egypt right now. we're keeping a very close eye on the latest developments in the george zimmerman murder trial. court has not resumed yet.

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fever, fatigue, cough, or sores. you should not start humira if you have any kind of infection. get headed in a new direction. with humira, remission is possible. randy travis is in critical condition after surgery to relieve pressure on his brain. the 54-year-old singer was hospitalized sunday with congest stiff heart failure and he later suffered a stroke. ♪ ♪ >> randy travis rose to country music stardom back in the 1980s. his career faltered but then had a resurgence when he returned to gospel music in 1999. travis had arrests last year for assault and public intoxication. he was touring this year when he became ill. cnn's dr. sanjay gupta has more

now on his condition. >> wolf, we know randy travis suffered a stroke and it required this operation to basically relieve pressure on his brain. what can happen in situations like what is happening with randy travis, once you develop a heart problem, in this case, cardio cardiomyopathy, the heart isn't beating as well, is not pumps as much blood as it should to the rest of the body and why he has this assist device in his heart to try and improve that. even with that device, sometimes when you're not getting enough blood flow to the brain, what happens is the brain can become inflamed and start to swell as a result of lack of that blood flow. that's some of the early signs of stroke. if that pressure starts to build, what is necessary is to try and take that pressure off. sometimes the bone can be remove from the head and sometimes a drain placed into the brain to drain fluid, these are the things doctors will do. it's a pretty significant

setback, when you consider the natural course of something like cardio cardiomyopathy. doctors are saying they're optimistic, he is through surgery and they're going to monitor him over the next several days. keep in mind, wolf, a few weeks ago, he seemed to be doing fine, developing essentially this infection around his heart, causing the heart to sort of not function as well, leading to that lack of blood flow to the brain, subsequent stroke. we'll keep an eye on things, wolf, as we get more details, we'll certainly bring them to you. back to you for now. >> sanjay, thanks. let's hope for the best for randy travis and hope he gets a complete complete recovery. we're keeping a close eye on the latest of the george zimmerman murder trial. they are still in recess. the judge briefly called for recess. she said a half hour. it's been a little longer than that. they will be arguing whether or not lesser charges should be considered by the jury. we will take a quick break and resume our live coverage of the trial right after this. you will never survive the running of the bulls...

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the zimmerman trial has now resumed. there's judge debra nelson. she's having a little discussion with the lawyers, the prosecution and defense on whether or not lesser charges should be allowed to be considered by the six members of the jury. lesser charges than second

degree murder, manslaughter, aggravated assault. they're going through some of these issues right now and it's fascinating. i want you to listen. >> if we're going to do them all in caps, it will be all in caps for both names. if we're going to do it in small letters, then it's going to be that way throughout. is that acceptable to the defense? >> our submission to the court has it exactly that way. >> there's a couple times you put it in caps. i wanted it the way -- >> that was inadvertant. >> i'm saying, i noticed it. what i'd like them to do, we all make a decision if they're in caps, they're all in caps. wherever it says defendant, it will have george zimmerman's name. >> yes, your honor. would the defense prefer they be not capitalized? not all caps? >> the proposal is the first letter of the first name and surname be capitalized, as is typically done for both mr. zimmerman and mr. martin.

>> we'll make that change and that will be throughout. >> done, your honor. as far as agreement goes, we were in agreement as to the page that begins, members of t jury. yes, your honor? >> the defense version of the front page just has the style of the case. the second page of the defense proposed have what the state has placed on the first page. is there any objection to that all being on the first page, as the state proposed? >> that was a word processing issue, judge. i took the set of instructions that the state sent to us and work with that, so other than formatting, we started with the same set of instructions. >> okay. so the first page will be as the state has proposed. >> yes, your honor. >> there was no changes to the members of the jury? >> correct. >> we'll make the name changes to reflect it in the statement

of charge. that brings us to introduction to homicide. >> there was agreement on that until we get to, i believe -- >> they're going through the formal instructions the judge is eventually going to give to the jury after the closing arguments. this is very very important, because the jury will consider either only second degree murder or lesser charges, aggravated assault, manslaughter. they're going through technical aspects how the jury instructions should be written. so we're watching all of this. i want to bring in our legal analysts to get a little background, perspective what's going to happen the next few hours. later today the closing arguments will begin. right now, they're discussing how to frame the instructions to the jury and what charges should be considered. page pate is joining us, a

criminal defense attorney and legal analyst and legal prosecutor joining us as well. george howell is covering this trial for us. paul, let me start with you. this is -- sounds leg legalees and very technical but potentially very significant if the judge decides the jury can consider these lesser charges. >> it's very important, wolf. it's kind of boring to lay people. on the other hand, this is really -- they're deciding the sheet of paper that the jury would have to check off guilty or not guilty, what the elements of the crimes are and it's really sort of -- they're working out a document in the end, is the most important document in the case. there's something else that's going on here. they're laying a record for appeal because the defense is objecting to the lesser inclu d includeds being charged. if they don't make those objections clear at this conference, they could waive their right to an appeal on certain rulings by the court. so it's important in that

respect as well. >> page, if you were representing george zimmerman, wouldn't you want the jury to consider lesser charges, presumably a lighter sentence than risking it all, going for second degree murder or nothing? >> sometimes you would want to do that, but in this case, absolutely not. i think the defense has tried an excellent case from start to finish. i think they know that it's going to be a stretch for the prosecution to even creditably argue that this should be a murder case at this point. what i want from this judge as a defense lawyer simply to give the jury an up or down option on the murder charge, which is what he was indicted for. if that happens the prosecution will have a really tough time proving their case beyond a reasonable doubt. >> let me ask paul, a lot of so-called experts i'm speaking with thinks the judge will eventually let the jury consider these lesser charges. you dear venture into that

guessing game? >> i'm at the very least think she will let a charge in for manslaughter and maybe even aggravated assault. in some respects a count like aggravated assault poses a bigger danger to zimmerman than anything else. the murder case is -- i agree, it's very very weak. it's unlikely you get a conviction there. manslaughter remain as stretch as well. would the jury compromise with aggravated assault or something lesser which could still put him in jail for a period of time. i guess we're going back into court. thanks. >> let's go back to the judge. >> we'll get to the point on the instruction. >> the second degree murder, i believe, it was the same again, with the exception of the name change issue. the possession -- >> is that -- there are no changes being suggested to the charge of -- as it's written for second degree murder? >> that's correct. >> okay. >> same as to the possession of a firearm and discharge causing death page. >> there was no objections to

that or additions being requested? >> your honor, if i understand the requested instruction, that's because of the mandatory minimum or enhancement as a result of the use of the firearm. >> that's my understanding. >> yes. >> i think that's the standard instruction on that issue. >> there's no objections to how that's written? >> no. >> thank you. >> now, we are at the point where there is the issue about lesser included crimes or attempts, your honor. i guess i'll go ahead whenever the court's ready, submit that argument. >> i'm ready. >> the court characterized correctly that manslaughter is a category 1 lesser included offense. i have tendered to the court several cases and given counsel copies. the one i think relates directly to -- now i will focus on the

manslaughter charge is fastate montgome montgomery, a little more infamous from the florida supreme court in 2010 declared the instruction for manslaughter was invalid, however, it is on page 5 of that opinion that i think the most operative language begins, actually begins the bottom of page 4 under the heading lesser included offenses, continues on page 5. but it makes very clear manslaughter is a category 1 lesser included offense of first-degree murder. and what that means is delineated on page 5, a necessarily lesser included offense is as the name implies a lesser offense always included in the major offense. the trial judge has no discretion on whether to instruct the jury on a necessarily included offense once the judge determines the offense is a necessarily included offense, the instruction must be given. consequently, at montgomery's trial for in that case, first-degree murder, but also here as to second degree murder

murder the trial court was instructed to instruct the jury on lesser included of manslaughter. in the next column, lesser included offense of manslaughter is one step removed from second degree murder. the state's position is it's a category 1 and mandatory for a reason and the florida supreme court has made it effective very recently and continues to be so. the state believes not only would it be error not to give it but the state is requesting it as well. as to that charge at least, i believe that the issue is very clear. >> mr. west, you want to respond? >> we already did to the extent this is a decision that mr. zimmerman has made knowingly and without any coercion or threat and his position is the state has charged him with second degree murder. they should be required to prove it, if they can. if they can't prove it, then that is the failing of the prosecution. had they wanted to charge him

with manslaughter instead, because they think that's a better chance under their theory of prosecution whatever it may actually be, since we haven't heard it yet, they could do that. but we object. we want this to go to the jury on second degree murder only. >> thank you. based upon state vs. montgomery 35 law weekly, the supreme court 204, also cited at 39 southern 3rd 252, from 2010, the court will give the instruction on manslaughter. as a category 1. >> thank you, your honor. the instruction as to manslaught manslaughter, i don't know that there is any quarrel with how that is worded because the position i think of the defense was that it shouldn't be given at all, so we could discuss that at this point if there are any objections to that. >> given the court's ruling, are

there any objections to the instruction provided by the state, other than the changing of the names? to be in conformity? >> the reason for my hesitation is i'm still trying to sort out the evolution of the instruction on manslaughter by act. of course, the court's aware, there are several ways that the state could claim manslaughter occurred. one of them is by culpable negligence, there's no suggestion -- >> there a's -- >> it's only by act. what gave me pause that i wanted to do some additional reach on is there is a case from the fifth district court of appeal, shurose, s sh u-r-o-s-e, that held and essential element of the crime of voluntary manslaughter, which is what manslaughter by act is, is an intent to kill. i've been trying to sorting through that. i think maybe, since shurose may

be the supreme court has addressed the instruction and maybe that's addressed in montgomery. i think maybe now that law has be been -- the holding in shurose by the fifth district has now been addressed although not directly. i don't find a reference to that case in any of the subsequent case law, but i do see that montgomery from 2010, a florida supreme court case, does specifically say that the intent for manslaughter by act is the intent to commit an act that was not justified or excusable not justified or excusablxcusab which caused the death of, in this instance, trayvon martin. i want to be sure that we've got that precise language. if that's what the instruction

says, then i suppose that we're past the holding in shurose, even though by sheppard dicing, it's still considered controlling in this district unless the supreme court has said otherwise. that's my hesitation, i'm still trying to dig through that. >> do you want us to come back to that one? other than that, does the state's version of the instruction comport with the supre supreme court's required for manslaughter by act? >> it seems to, yes. >> so the only issue we have is your determination that the shurose case is covered by this instruction? >> yes. >> okay. we'll come back to that issue. >> thank you, judge. >> the other lesser included requested by the state, and i point out i included the next case, martin versus state, the 1977 decision of the florida supreme court, simply as the reas reason -- and i think i

disclosed this to counsel this morning, the reason for the abandonment of the request as to aggravated assault, i think the case makes it very clear, where the victim actually dies, the aggravated assault lesser may not be actually given. >> i don't think that the evidence or the charging information support anning a ag assault. >> i have abandoned that in it's entirety but want to put the case on the record. the next requested lesser is the third degree felony murder. as indicated in the state's proposal, and i believe that in comportment with the standard jury instructions, felony murder

thread degree the state has to prove three elements. one the victim is dead and two, it occurred as a sequence of and while the defendant was engaged in a commencement of a no non-enumerated felony and three, the defendant was the person who actually killed the victim. the non-enumerated felony in this case is child abuse. obviously the information alleges the defendant shot and killed the victim, the victim was under the age of 18 and child abuse, must be, according to the third degree felony murder instruction, defined. i have defined the elements of child abuse in the felony murder instruction. and i've also included what i believe is required under the child abuse instruction, which is when the child abuse is premised upon physical injury, that there is a required reference to chapter 39 to define what that physical injury right mean under the florida statutes. that definition has been likewise included.

the case law upon which i would rely begins, i think, in the stack that's been provided, with her m herman son. h-e-r-m-a-n-s-o-n versus state. 604 southern 2nd 775, which is a supreme court florida case from 1992. in that case, as set forth on page 2, of the court's decision, the third degree murder provision of section 782.04 florida statutes provides the killing of a human being while engaged in the commission of child abuse cuts murd constitue in the third degree and on that case the state combine instructions for child abuse and child neglect. 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 listed offense in the state of florida. the next case to do with that situation is the c alrea-l-i-n- from the fifth direct court of appeal from 2000. in that case, the child abuse was committed by waving a gun around and the gun going off and the child being injured. in this case, the court said, and i'm reading from the second column. it's a one page opinion. the statutory offense of child abuse is no longer limited to actual physical or mental injury inflicted on a child. it now includes any intentional act that could reasonably be expected in physical or mental injury to a child. further down, the court

indicates what they found in that case, and they described it as irrational, hostile and reckless behavior by an excited or agitated person unfortunately often resulted in shoots perhaps were not intended. all it would have taken was slight finger pressure to cause the gun to fire had he stumbled or lost his balance or mother instead of grabbing the child, tried to disarm him. a bullet released and ricochetting about the nursery was a definitely possibility in this scenario. in our view, these undisputed facts and inferences arising there from were sufficient to place the child in a zone of reasonably expected physical danger. i couple that with the other case in the state's packet of johnson -- i'm sorry -- of

garrett versus state. which is 978 southern 2nd 214. that this is fifth district case from 2008. where we talk about the trial judge supplementing the standard jury instruction which does not provide the definition of physical injury for child abuse. in that case -- and if the court looks at chapter 39, there is a -- something like 60 different possible types that might need to be included, depending on the allegations. in that case, the court included the definition to include asphyxiation, suffocation or drowning. but the court goes on to say it is the responsibility of the court to correctly and intelligently instruct the jury on the essential element's of the crime. that this is reason for definition of physical injury being provided taken from chapter 39, which has the child abuse instruction requires, is

mandatory to define the type of physical injury pursuant to chapter 39. the next case is sheridan. s-h-e-r-i-d-a-n. which is 799 southern 2nd 223. second district court from 2001. here again, we have third degree murder, premised up upon -- premised upon being a lesser included offense. in that case, it was a first-degree murder charge but it was third degree murder and then underlying offense committed by sheridan was a non-enumerated felony. in that case, at the time, it was aggravated battery, ing aggravated battery is now an enumerated felony. the defense counsel argued third degree murder instruction should be given and was proper. the trial judge was inclined to give it but ultimately did not and the appeal court said the trial judge's first inclination

was correct. if it results in death it can indeed be third degree murder and the defendant is entitled to such an instruction to the jury and onto the next page after si corroboration in that ca case -- after citation in that case. we find the failure to give the instruction to have been reversible error. the next case is j-a-k-u-v-o-w-s-k-i. which is a second district court of appeal decision from 1986. again, here we have a third degree felony murder. in that case, the victim was 6 years old. based on underlying felony of child abuse. and in that case, the defendant was charged both with second degree murder and third degree murder. after deliberation, the court apparently, under joa as to second agreeing murder and after deliberations the jury convicted of third degree murder based on

the underlying child abuse. and then the next is spaignolia versus state, a much more recent decision, which is from june 28th of this year, from the fifth district court of appeal s-p-a s-p-a-g-n-o-l-o. once again, this is a case where the victim in this case was a child. the child was killed in a homicide fashion. and in this case, the verdict form included a finding or a possible finding for murder in the third degree. in this case, of course, the problem was that the koucourt conflated and the state purportedly asked for conflation of the abuse and neglect language. the state is not requesting that here, abuse only. i'm reading from page 3 of the opinion in florida 23 of the

statutes which is child abuse, a definition of child abuse is one intentional fizzal infliction of injury on a child and two, act that could reasonably be expected to result in physical injury of a child or active encouragement of another person. obviously, there's no factual support for that third one so it has been omitted in this case. over in the right hand column we continue under headnotes 3, 4 and 5, the court quotes another case which i will get to in a moment, but quoting state vs. s-i-g-l-e-r, they indicate a conviction for third degree murder requires an underlying felony and jury determination of existence of such felony. that is why the state has proposed and we think it's required, to define the elements of child abuse, and also to indicate that the state's burden is to prove that underlying felony beyond a reasonable doubt. which is exactly the way the

constructi instruction reads. the next case is a-l-f-i-e-r-i. which is a fourth district court of appeal case from 1998. that stands for again simply the proposition under headnote 3. here again, we're talking about third degree felony murder in any felony murder prosecution the state must prove the underlying felony beyond a reasonable doubt. don't have to necessarily charge it although i submit the information contains the requisite requirements but we have to establish it. that is the reason the instruction language is given. finally, f-a-y-s-o-n versus state, which is 684 southern 2nd 270, a 1996 decision from the first district court of appeal. i'm reading from page 2 of that copy. headnote 2. the facts in that case, they describe the similarity to another case called gonzalez.

g-o-n-z-a-l-e-z. argue that the convictions of the lesser included offense of third degree felony murder and attempted felony murder were inconsiste inconsistent. the court went on to say that, no, and i'm reading from the second column -- >> that's one of the prosecutors reviewing a lot of case history why he believes third degree felony murder charge should be added, should be considered by this jury in addition to the second degree murder charge. the judge earlier rules manslaughter will be allowed to be consider by the jury. the state earlier said aggravated assault. they know longer wanted that to be included. let's get some quick analysis. paul and pagep ark pate is stilh us. explain the third degree murder charge they want to be

considered in addition to the second degree murder charge. >> i have to say they're thinking outside the pbox, prosecutors. felony murder is when you're not intending to kill somebody, let's say you're robbing a store and three people involved, one guy is in the get away car. unbeknownst to him, somebody inside the store opens fire and kills somebody. under the felony murder rule, the driver of the car in a lot of states can be held as guilty as the person who fired the shot. what they're saying here is, even if he didn't intend to kill trayvon martin, he was committing the act of child abuse, apparently, by engaging in this physical conflict with him, and trayvon martin died during that conflict. so it's a type of felony murder, which would be subject very very very stiff penalties under florida law. and it's a really unusual request, i think, to be making on this fact pattern. i'd be very surprised if the judge goes along with it.

>> page, you hear rich manti, the prosecutor saying because trayvon martin was 17 years old, under 18, there was third degree felony murder charge available because of what he described as child abuse. he's making that case right now. >> he has to first prove the underlying felony, prove there was actual child abuse that occurred in this case. i agree with paul, it's a stretch here, i don't think the judge would give it. a lot of people are wondering why at this point are we trying to figure out what we are charging george zimmerman with. the fact is the law allow as lesser included offense like manslaughter to be instructed to the jury when there's evidence to support it and the charging document supports it. i understand manslaughter. i think felony murder is a stretch. >> were you surprised the state dropped their request for aggravated assault to be considered, a lesser charge obviously as well? >> i know the state wanted that but if you read the cases, the

law was not there to support it. it's a totally different offense, it involves someone assaulting another person without the intent to kill. yonk there i don't think there's any question when george zimmerman pulled the gun, he intended to shoot and kill trayvon martin. >> let's go back to rich mantei, making the case, that these lesser charges should be considered by the jury. >> so, your honor, the state believes that the law and the facts demonstrated here-in would permit the instruction on third degree felony murder so long as it is compliant with the requirements that, a, the underlying felony be alleged, b, that the jury is instructed on it's elements, c, that the jury is told that it needs to be found beyond a reasonable doubt and, four, there is also a definition of the type of

physical injury being alleged. in this case, the state has alleged it means death, permanent or temporary disfigurement of any bodily part the statutory definition under chapter 39. that is the basis for the state's request in this case. in other words, second degree murder requires as indicated in the case law, a depraved mind. third degree felony murder does not require that. it simply requires that the victim be under the age of 18 and be subjected to what constitutes child abuse. and deadly force applies as any other, no dispute about that. that is the reason for the basis of the state's requested instruction. >> thank you. mr. west. >> oh, my gosh. just when i thought this case couldn't get any more bizarre.

the state is seeking third degree murder based on child abu 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. manti 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 assaulted 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 plot iting, fo 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, 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 it's information in april, that they've been lying in wait, collecting all this, loosely connected child abuse case law, where 2 year-olds have been shot by someone who is 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 proceeded, since april. but it certainly is just as dis disengen youous as well. this is outrageous. it's outrageous 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 g go. >> in all due respect to that statement, the court hasn't been provided a lot of things that have been requested to have

hearings that the court has had up until late in the evening, until the last minute or i requested of it, so that in and of itself is not an argument and i don't want to go there. let's go onto the argument about this instruction. >> i'm not prepared to make an argument. this was just e-mailed to me, buried in the set of instructions that the state's obviously been working on for month and months, just to spring it on everyone at the last minute. mr. mantei has this fully formed organized argument based on this case law i guarantee you he didn't come up between yesterday when they wanted aggravated assault and this morning when they now want third degree murder based on child abuse. really? she is sitting right there apparently approving of this. >> that's not proper argument. >> it's not fair to me, it's not fair to mr. zimmerman or mr.

o'mara or the court for this to happen like this right now. i need time to sort this out if the court is going to give any consideration to this remarkable, remarkable suggestion by the state that somehow third degree murder, based upon, what, an 827, chapter 827 and chapter 39 violation of the child abuse statutes could somehow, when trayvon martin is shot straddling george zimmerman, pumm pummelling him, that somehow george zimmerman was engaged in child abuse? >> the supreme court's jury

instructions that are online and in the rules of criminal procedure books indicates that the offense charge of second degree murder, a category 1, is manslaughter. a category 2 is third degree felony murder. vehicular homicide, non-homicide lessers would be an attempt, culpable negligence, aggravated battery, aggravated assault, battery and assault. these are part of the jury instructions that have been known to this court since i've been on the bench. so-disclosure. >> would the court ever for a second think -- >> i'm not finished speaking. >> i apologize. >> thank you. the possibility of a category 2 is known to counsel at the beginning of the trial. >> your honor, in the same way, we would expect vehicular homicide be offered? >> but the evidence doesn't support that and the state's argument is at first yesterday,

when they provided the court with the possible lessers, and one of them was aggravated assault, i didn't have any information available to me that led me to believe that that would be a charge that would be given, because the facts did not support an aggravated assault lesser included offense. >> yes. >> their argument today is that the facts support a third degree felony murder with the underlying enumerated felony being child abuse. that is permissible under the statute. if you need -- i'm not going to -- i'm not going to give you hours. you have-i don't know how many lawyers you have working with you on this case -- >> i have -- well -- >> you have four in the courtroom and i know there's a many radio downstairs full of people. >> miss truitt is a lawyer and mr. o'mara is a lawyer. that's who we have as lawyers in this case. everyone else is a volunteer,

intern who has really done remarkable work but we can't rely on non-lawyers to do the kind of work that's necessary right now. judge, this was a trick. doesn't the court realize this was a trick by the state? >> my intention right now is to get through the rest of the jury instructions, because if we had any arguments about the others, i would like to get them resolved. we will come back to this one. i understand your argument. we will come back to this one. >> the state also proposed the court instruct as to justifiable and excusable homicide, just as we do with second degree murder and respect to third degree murder and manslaughter, that has also been included. the next, i guess, area of discussion moves to the justifiable use of deadly force instruction. >> okay. i'm there.

i have both in front of me. >> at the court's request, i did attempt to incorporate much of the proposed language from the current proposal being considered by the supreme court's jury instruction. >> just a second, mr. west, are you caught up to the justifiable use of deadly force? >> no. >> let me know when you've got it in front of you. >> we're skipping over the proposed lesser included of third degree murder based on child abuse? >> yes, we are. we're now onto the justifiable use of deadly force instruction. >> i object. i object to the instruction that the state proposes and i have prepared an alternate instruction. i think the court probab probably -- probably has. >> well, there are some differences, and i know that there are additions in the defense. the state was just in forming me they have incorporated some of your suggestions. that's where we are on that instruction at this time. >> okay.

>> as it relates to that instruction, your honor, the first line really isn't in dispute with the exception the name change, that being at issue in this case is whether george zimmerman acted in self-defense. the next difference is in the next sentence. it is a defense to mr. west has sa sa said -- >> i'd like to argue my own instruction rather than having mr. mantei. >> i see what the differences are. the difference in what the lesser included offenses are. >> correct. i don't have an objection to the phraseology in the defense's proposed instruction such that it would read it is a defense to the crime of second degree murder and to the lesser included offense, whether we make that offense or offenses of manslaughter or manslaughter and third degree murder, i guess that's to be determined. but the way it is phrased is not objectionable to the state.

deadly force, that line appears to be the same. the next marked difference is that the state's proposal is to include the two paragraphs suggested for section 782.02. being the use of deadly force is justifiable and used to read only but the current proposal omits the word only so this state proposal also omits the word only from the standard instructions. so it reads use of deadly force is justifiable if the defendant reasonably believed the force was necessary. that entire paragraph as well as the next paragraph, which define s aggravated battery, which is, as i understand it, the enumerated violent felony or forcible offense alleged is

being perpetrated upon the defendant. >> is that correct? >> i'm not clear what mr. mantei is referring to now. >> if you were to look at the state's suggested instruction, the third paragraph down, we're talking about the third and fourth paragraph, it requires for the justifiable use of deadly force, for the -- for the defendant to prevent imminent bodily death or imminent death or great bodily harm to himself while an attempt to commit some type of enumerated defense upon him. >> we're not asking for that instruction. we don't think that it's the issue in our case. i've drafted an instruction i think specifically addresses the legal issue before the jury and properly sets out the standard that the jury should apply. >> let me just make sure i have this correct. that the defense is not wanting

an enumerated felony upon him by the victim in order to have justifiable use of force? >> that's right. >> if that's what they want, that's what i'm going to do. >> well, if i could be heard on that? >> yes, you may. >> the standard instruction, both the current and the proposed indicate that that is actually a required instruction because it is essentially, if you look at the statutory citation, 782.02 that is the definition of justifiable use of deadly force in the florida statutes. the next paragraph simply defines the force of a felony. in order to be entitled -- >> what section are you saying? i've got the 3.6 f justifiable use of deadly force, the one that's being considered by the florida supreme court. >> correct. there is a -- if you look at the

italicized, florida statutes, the use of deadly force is justifiable. it is that section. when you -- >> but it says give, if applicable. >> xwlek. 782.02 is entitled. this is the statute under homicide, it is justifiable use of deadly force. that is what section 782.02 is. my argument is this is a homicide case and therefore that is mandatory. that is -- the reason it's referenced in the standard instruction, it's a homicide and therefore if they're seeking a request or justified deadly force. >> if you look at the italicized part on page 2. >> yes. >> it says define applicable felony defendant alleges victim attempted to commit. >> yes. >> and they're saying they're not alleging any. >> if they're not alleging that, then my position would be they're not entitled to justifiable use of deadly force

instruction because unless the victim was doing that we don't have this situation. so if they don't want to allege that trayvon martin was committing any forcible felony upon the defendant, then what they're -- my argument would be what they're telling the court is they don't believe this is justifiable use of deadly force. didn't take it for a second that's their argument. that's the reason i put this language in here. >> response. >> yes. the state is seeking this instruction as part of a larger scheme, another trick that the state is seeking -- >> i don't want to hear the word "trick" anymore in regards to these arguments, please. >> we don't want that instruction. we're not claiming aggravated battery specifically so as the jury would be instructed on the elements of aggravated battery. the state wants the -- the court to come up with a definition of

aggravated battery and it can't get that until it ge gets -- convinces the court to include that mr. zimmerman is claiming that trayvon martin was committing an aggravated battery. this instruction that i provided is exactly the law and it's the instruction that's 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 such force i necessary to prevent imminent death or great bodily harm to himself. that's the only issue. >> then that section goes on to say while resisting attempt to

commit applicable felony upon him or any dwelling in which he was present. >> he wasn't in his house. >> it's either the applicable felony or in his house. >> no. >> that's the use of -- that's the justifiable use of deadly force. >> no. we disagree. >> well, then get me case law that says that's a wrong interpretatio interpretation. >> look under the standard instructions, actually, i have both. i have the proposed ones as well that the court directed us to. the courted is looking at the wrong part of the instruction, as is mr. mantei. give, if applicable under 776.012 and 776.031. a person is justified in using deadly force if he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself. that's one. or the imminent commission of felony battery or -- i'm sorry,

the applicable forcible felony. in this instance, the state claims aggravated battery or the imminent commission of aggravated battery against himself. it's an alternative. it's not required. and we're not asking for it. we're asking for exactly what happened in this case, and that is that george zimmerman was resist i resisting reasonably imminent death or great bodily harm, as this proposed instruction reads. and in fact frankly as the old one did, too. >> this proposed instructions are rather lengthy and they give a lot of alternatives. the very first one says to read in all cases. then there after, it says, give a or b as applicable.

also, there is some instructions to give only if there is evidence of what is seeking to be defined. >> the basis for the 776.412 instruction is chapter 776.012 which the court just read and the court read it correctly, that it requires, one, justified in the use of deadly force doesn't have the duty to retreat if one -- >> 776.012. i'm looking at the instruction. >> well the -- but -- i'm saying the instruction refers you to the statute. i'm reading the statute. >> okay. >> the statute says a person is justified in using force to accept deadly force against another when to the extent the person reasonably believes such

conduct is necessary to defend himself or herself however a person is justified in this use of deadly force and does not have a duty to retreat if, one, reasonably believes it's necessary to prevent imminent death or great bodily harm to himself or herself or prevent the commission of a forcible felony or under another set of circumstances. >> they're or. >> sorry? >> they're or. alternative. >> yes. that is the 012 instruction. the justifiable use of -- the justifiable homicide instruction is what i have written here, which is the 782.02. i have yet to hear why that is not applicable. justifiable use of force is required to be given. it is certainly applicable. i don't dispute necessarily mr. west's 776.012 might also be applicable, in fact, i include it later. what he's asserting is it's the only thing that's applicable. that is where he and i part

company. >> okay. that's an issue. what about the rest of the instruction? >> the rest of the instruction, beginning with the line however the use of deadly force is not justifiable if you find the defense has inserted the phrase beyond a reasonable doubt. >> you're going too fast for me. >> sorry. >> the line however -- >> okay. >> the use of deadly force is not justifiable if you find the defense has inserted the phrase beyond a reasonable doubt at that point. >> okay. i see that. what is the purpose of that? >> i assume it is simply to restate what is said at the very last paragraph on the next page. convinced beyond a reasonable doubt. it is simply a second place to say it. if they want it there, we'll put it there, too. that's fine. >> that's not an argument. what is the next -- >> there's a larger issue here. >> they're not arguing with it being in there so we don't need to go there. >> well, i included this

language as a mirror of the change -- >> they're not objecting. >> but i am. in the sense -- >> you don't want it included in what you put in yours? >> no. i put beyond a reasonable doubt in there and the state agrees, so we're past that. >> okay. >> i included this whole section, which is based upon mr. zimmerman initially provoking the use of force against him. >> i don't think they have an objection to the section. >> no. i do. but -- >> then, why did you put it in your instructions? >> for discussions. >> okay. >> because it only becomes relevant if indeed there is substantial evidence to establish that mr. zimmerman provoked the use of force against him, as defined by law. i think the state should be required to articulate the facts in this case upon which it would claim and argue that mr. zimmerman provoked the use of

force against him. and if they can't do that, they shouldn't be able to argue it and the jury doesn't need to deal with it. so this, in some ways, can be a misleading instruction, not applicable to the facts unless the state can articulate to the court's satisfaction there's some construction of these facts that could establish beyond a reasonable doubt, by this jury, that george zimmerman provoked the use of force against himself under the prevailing case law that defines what provoked legally means. >> okay. that respond. >> certainly. we're talking facts and reasonable inferences there from. the facts and inferences there from that would support whether the defendant provoked this. number one, the defendant followed the victim. he admitted that actually. number two, obviously, the testimony of some of the witnesses, number one, pursuit, number two, miss gentle hears

the defendant involved in an interaction with a person he tells to get off, tells miss gentile he is following me, doing this, coming up again. she hears a scuffle, struggle, physical conduct. i believe mr. dika saw the defendant on top of the victim and she said before the gunshot. i understand that's a point of contention and point of dispute. it is still a fact in front of this jury and they can draw reasonable inferences from it. when you combine the known facts that this defendant is the one at least under a certain construction of facts and inferences there from who initiated the confrontation, that is provocation. it is not just mere words as i think is going to be the argument. it is apparent there is a physical accosting. there is a close to close quarters. to the defense's version, obviously, i think, we've gotten pretty clear is that, no, the defendant isn't the one who

initiated this or provoked it, it is rather the victim who provoked it. i think the facts testified to leave both inferences equally valid. there are facts to support both and that is the reason i think the instruction should be given to the jury. they're free to arg argue, that, what the defendant did either does not constitute provocation or the victim did all the provocation. i think the facts, as testified to by the eye and ear witnesses as well as the defendant's own statements and let me add to the fact that when you add on top of that, that the defendant's own statements, some of them have been shown to be materially, a, inconsistent with one another, and b, false, that those are inferences the jury could make that the defendant provoked this initial encounter. i'm sorry. we had that argument sort of at the joa.

>> the court didn't address that argument in the joa. and i don't know if the court intends to draft an order specifying why the state, in the court's opinion, had met it's burden. however, what mr. mantei just said isn't the law. not even close to the law. and it's not factually support ed by the witnesses that he claims now he can use to support this notion of provocation. celine bahador, if the court will recall, for the first time ever, came up with this story in court there was some sort of vague movement from left to right, which would suggest in some sort of vague way that people, not necessarily trayvon martin or george zimmerman, but somehow people she thinks might have moved in a direction toward this -- in the direction of -- and we know where her house is. it's the third one down.

that's as close as she ever got. she said for the first time ever in court after she met with the attorney the night before. that was pretty clear in the record she had no clear evidence to offer at all other than this sense she sensed movement or shadows or something. let's assume even -- we can't even assume that's true because it makes no sense compared with the other evidence in the case, that jayne syrdyka's evidence would support provoking. jayne sur -- syrdyka could not see what she claim toz ss to se. physically impossible and supported by ballistics

testimony and says at the time the shot was fired she was looking out the window and immediately after the shot, she saw george zimmerman stand up and trayvon martin lying face down. we know that just couldn't have happened, that she's wrong. whatever she thinks she saw, the got it wrong, no matter how well intended she is, she got it wrong, because trayvon martin undeniably was shot in the front, not in the back. that's not evidence worthy of any consideration by anybody on what happened at the time of the shot. she didn't see the confrontation initially, she didn't see george zimmerman be struck in the nose by trayvon martin or anything else connected with that, she heard some voices. and she made gross inaccurate assumptions, based upon hearing those voices, but she saw nothing by her own testimony, that would establish george zimmerman provoked the contact between him and trayvon martin.

and let's not forget, judge, that when trayvon martin was known to have been running away from george zimmerman, george zimmerman was still in his car. miss jeantel corroborated at the time the second to last call disconnected was when she told trayvon martin to run and he did because the next time she talked with him he told her that he had lost the man. the reconnect time was about 20 seconds. and then they stayed on the phone for the next three or three 1/2 minutes. in the meantime, george zimmerman is on the phone for a good bit of that time with the police. so, what we know from that, in and of itself, is that trayvon martin had two or three minutes to get home, to get home 348

feet. he had two or three or maybe four minutes to do that, and chose not to. he decided either to go home and come back or that he decided to hang around and wait for george zimmerman to get off the phone so he could confront george zimmerman and ask him whatever he said, why are you following me or, man, what's your problem? whatever that was he said, he's the one that initiated it. that's clear from miss jeantel and frankly any other evidence in this case. we know that happened from the physical evidence as well as the circumstantial evidence we know is just as good as direct evidence, according to mr. dea rionda. that's established clearly. there was no pursuit. you heard the call. mr. zimmerman said, when told we don't need you to do that, okay. he was on the phone for what, another minute or so? we know where the event took place. it started at the tee.

george zimmerman's flashlight was found right there, the one he had in his hand on the way back to the car, in the direction of the car, thinking that the police were going to arrive any minute. it is outrageous to suggest that there is sufficient evidence to offer to this jury that george zimmerman provoked this incident, because what the law require requires, in order to have provoked this incident, is proof that there was the use of force, the actual use of force or the threatened use of force. walking up to somebody, following somebody is not enough to get to you to the legal definition of provoke. that's the gibbs case, it's absolutely clear where the court committed reversible error by not saying that, if you will, in it's instructions. mr. mantei knows that case. there's no legal issue as that's what provoked means.

for him to say george zimmerman followed trayvon martin is a legally supportable basis to claim that he provoked the violence that trayvon martin used against him is disingenuous and legally incorrect. he knows that. and he knows better than that, to try to convince the court. so i have the gibbs case law. the court knows how that works and the state has not offered a compelling argument, supported with facts or the law, why the court should introduce this issue to the jury to make them even consider that george zimmerman may have provoked thi this. >> gibbs, of course, is a justifiable use of non-deadly force case. but the only language that the gibbs court said should be included rather than the full paragraph is force or threat of force under the facts of that case. before i get there, let me just

point out that the entire thing i've just heard is that we don't think the witness was credible or we don't think that the jury should draw a certain inference, but mr. west hasn't said yet, that those aren't the facts that are before the jury and that the inference is not permissible. i understand he doesn't think they're the right ones, but that's not a reason not to give an instruction. the instruction is what are facts before the jury and what are, at least some, reasonable inferences to draw from them, when a person admits following another individual, when someone hears the individual who's being followed say, let go, get off, is running away from and in fear of this other person who is following, when there is a sound and evidence physically of a physical struggle between them, there is evidence that the defendant is the provoker, especially when he admitteds he was following both on wheel and on foot. again, we sort of hashed that out at the joa, i had thought, but there is evidence and

inferences from the evidence. i understand mr. west doesn't think of any of it is credible or right. respectfully,'s up to the jury, not mr. west. the issue is, i think, the provocation language should be included. the only issue i hear is whether or not it also ought to, on top of the issue was provocation, include the phrase force or threat of force. and again, carrying a firearm or grabbing or accost iing to the point that someone hears, let go, and a physical struggle. that is evidence of force or threat of force. it doesn't have to -- it doesn't s say -- gibbs certainly doesn't say deadly force because, of course, gibbs is itself a non-deadly force case in the first instance. the state's argument is the defense is arguing what is credible, not what