Racists should be banned from jury service

Friday, June 13, 2014

Good afternoon:

Xena posted a comment to my post about Theodore Wafer advising that his hearing has been continued to next Friday, June 20th.

She also said,

Did you read the part where the defense wants to argue that Renisha mistook Wafer’s house for a drug dealer’s house? The defense’s argument is that someone who lived close to Renisha was arrested for marijuana after Renisha was killed.

This presents an interesting new wrinkle to putting a victim on trial for a homicide, so let’s break it down, take a look and estimate the probability that it will be successful.

Let’s begin by assuming for the sake of argument that,

(1) someone who lived near Wafer’s house sold marijuana,

(2) McBride had previously purchased marijuana from that person at that address, and

(3) she mistakenly believed she was knocking on that person’s front door when she knocked on Wafer’s front door.

I don’t believe that set of assumed facts, which Wafer did not know at the time of the shooting, helps his claim of self-defense because, regardless of her intent, he had to be in fear of suffering imminent death or grievous bodily harm and his belief had to be reasonable. That is, a reasonable person in the same situation also would have believed that he was in imminent danger of suffering death or grievous bodily injury.

The racist right wing hate machine skips over the word reasonable because its members devoutly believe that their opinions are reasonable.

They fail to understand that the word reasonable in a legal context means evidence-based, as opposed to opinion-based. Racial prejudice is by definition opinion-based, rather than evidence-based. Therefore, it is unreasonable and no verdict should ever be based on it.

Prospective jurors who are unaware of their racial prejudice, or who deny being prejudiced when they know damn well they are prejudiced, should never sit on a jury when a person of color is the defendant or a victim allegedly injured or killed by a white defendant.

Even if McBride had a gun and intended to kill Wafer, and there is no evidence that she did, nothing about the situation he was in would likely have caused a reasonable person to believe he was in imminent danger behind the two locked doors. Seems to me that opening the door demonstrates unequivocally that he did not fear death or grievous bodily injury.

That act is an evidence-based expression of his state of mind when he opened the door and it defeats his claim of self-defense.

The castle doctrine does not help Wafer because she did not attempt to break in or enter his house. She was unarmed and outside his house knocking on the door. He was inside his house in a safe location on the other side of two locked doors while armed with a loaded shotgun and he had a cell phone with which to call 911.

He cannot create a necessity to act in self-defense by opening the door.

We might have a different situation if he were living next to a drug house with all sorts of people coming and going at all hours of the day and night occasionally mistaking his house for the drug house, but even then he would have to have an objectively reasonable basis to believe his life was in danger, as opposed to being pissed off that someone was knocking on his door disturbing his sleep in the middle of the night.

As a matter of law, therefore, I believe the answer is easy. The evidence that the defense seeks to introduce is irrelevant and inadmissible.

Just as O’Mara and West did in the Zimmerman trial, the defense is attacking the victim’s character in an effort to say she deserved to die.

However, as much as right-wing racists want to believe that they have a right to kill any person who is young, black, drunk and/or stoned (e.g., George Zimmerman), especially if that person is listening to loud music and is disrespectful (e.g., Michael Dunn), the law recognizes no such right or privilege.

Finally, do not forget that Wafer did not initially claim self-defense. He told the police that his gun went off by accident.

Look for the defense to do everything it can to keep him off the stand at trial, so he does not have to explain to the jury which story was a lie and why he lied instead of telling the truth.

Trial lawyers love it when they get to ask, “Were you lying then or are you lying now?”

For all of these reasons, I believe the evidence the defense wants to introduce is irrelevant and inadmissible. I also believe a jury will convict him of murder, provided the prosecution identifies and eliminates all potential stealth jurors who would willingly substitute their racially prejudiced opinions about black teenagers for actual evidence.

We have seen jurors do that in two Florida trials.

The question is whether the prosecution will permit that to happen in Detroit.

Wafer’s trial is scheduled to start in five weeks, probably not long after Judge Thokozile announces her decision in the Oscar Pistorius case.

This is our 1082nd post. If you appreciate this analysis and our continuing effort to explain what is happening between the lines in our failing criminal justice system, please make a donation.

Thank you,


24 Responses to Racists should be banned from jury service

  1. bettykath says:

    OT I think there was a thread on Eric Cantor. This belongs on that thread. I think I made a comment that the key issue was immigration. Not so according those better informed than I .

  2. crazy1946 says:

    The possibility of choosing a totally racist free jury seems to be an impossible task. When you factor in the “white privilege”, whether known by the person holding said privilege, and the ignorance of some to the bias that the actually hold in their hearts and minds, against people who are not of the same racial heritage as themselves, you would have a very small pool to choose from in any given area. Some times I think that we need to do away with the secret deliberations by the jury and make them open for all to see, simply because it is much harder for many of these fools to exhibit their racism when in full view of other people…

    • bettykath says:

      I think that most people who exhibit racial bias are not aware of it, or they are able to justify it to their own satisfaction.

      • crazy1946 says:

        bettykath, Wow, I think you hit the nail square on the head… That my friend is why I question if it would be possible to have a jury in some (too many) cases that was prejudice free… I know too many individuals who profess to be un-biased yet would not even consider going to a public event with a person not of their own race. Too bad we don’t have a medication available to remove the prejudice from the brains of those who consider the color of skin to be the single most important quality of a person…

        • Malisha says:

          There is a psychological test that shows pictures and has words and you quickly choose words and so forth and then you respond to questions and so forth and it tells you basically whether you’re racist or not. I came out STRONGLY racist on that test so I’d get knocked off a jury in a minute. It surprised me. I told one of my African American friends how I did on the test and she laughed and insisted the test was rigged. But it shook me up!

          • crazy1946 says:

            The diagnosis of racism is so complex that while a simple test as you describe would be of interest, one could be hard put to place much faith in the accuracy of the test. In my humble opinion, there is at least a small degree of racist present in all individuals, but that does not determine whether one is a racist as much as ones conscious effort to combat the tendency to be controlled by the need to feel superior to another person. If a person can bring them self to truly treat others as we would like to be treated, then we are well on the way to a solution to racism. Too bad that many of the people in our nation that claim to be Christian’s fail to follow the very words that are written in the scripture that they claim as the words of God. Whoops, now I went and done it, time to retreat back to the safety of my rock before the bullets start to fly…

          • Heh!

            There’s also a freedom of speech issue and the wise principle that criminalizing a belief, no matter how odious, is a bad idea.

            That’s why socially ostracizing racists via public shaming and excluding them from business and social groups is probably the most effective solution.

            My ideas about banning them from jury service and possession of guns are probably unworkable and are only intended to stimulate debate and raise awareness.

            They need to get the message that what they are doing is unacceptable and will result in unpleasant consequences, if they persist.

            Having said that, I do believe racism should be given serious consideration to be classified as a mental illness.

          • Malisha says:

            What will be the FDA-approved treatment for the mental illness of racism? Strychnine?

          • With a Popov chaser.

  3. aussie says:

    If someone knocks on ;your door to buy weed, they are no threat to you; — they just want to give you some money.

    so the right thing to do is
    (a) sell them some OR
    (b) point them to the right address (and if you don’t know which is the drug house in your street you’re sleepwalking)

    You can’t legislate for racists to stay off juries unless you can also legislate for them to be easily (ie indisputably) identifiable. Once you overcome that difficulty you may as well legislate to stop them buying guns.

  4. MKX says:

    I feel there will be a hung jury due to stealth racists. Metro Detroit has very bad racial animosity.

    The defense will play the violent Detroiter card.

    “Detroiter” is veiled term used by racists to mean “the blacks”.

    This trial could get very ugly.

    • Malisha says:

      I’m thinking if this racist murderer gets off, though, it will NOT be without its extrajudicial consequences.

      • racerrodig says:

        I’m thinking the same thing if he’s acquitted. I do think he will be found guilty however simply because there will be a few minorities on the jury. The area is mixed and I don’t believe the defense will get an all white jury.

        They may get a stealth juror, but this one is far different than FogenPhoole or Dunn since Wafer actually opened a locked door and there is a “..my gun just went off…” statement.

        ………………………but we all called Fogen and Dunn’s wrong, so..

  5. Defense lawyers shouldn’t be able to smear the victim. Shouldn’t even be able to ATTEMPT to smear the victim.

    What OM accomplished via mainstream news and online to smear Trayvon never should have been allowed to happen.

    Our court system is sick.

    • MKX says:

      Or they should have, at least, subjected Zimmerman’s past to the same smear tactics.

      I mean Zimmerman pulled his gun on a UPS driver. But that only surfaced after the trial.

      Or, somehow, Zimmerman’s numerous accusations, found to have no merit, against black neighbors did not merit discussion.

      Never mind, that his delusions about Trayvon Martin that led to the 9-11 call had no foundation in reality.

      Apparently, in their world, delusions about black males that have no supporting evidence are reasonable.

      So a skinny lad like Trayvon Martin with rather puny arms, a thin back, and no discernible traps can pick up a 200 pound man and body slam him.

      And of course, those wee forearms can allow for a grip that can rip deadly concrete out of the ground.

      And all those drugs can allow him to stand up and say “you got me”, although a hollow point bullet has shredded his heart.

      Damn, if Trayvon had been captain of the Queen Anne’s revenge and Zimmerpuke had told everyone that Trayvon had swam around the ship 13 time after being shot, they would have believed him.

      Sorry for the massive sarcasm, but this subject gets to me, some days.

      • Or they should have, at least, subjected Zimmerman’s past to the same smear tactics.

        I disagree. Lawyers need to follow the rules and judges need to enforce them. Mud slinging contests do not produce fair and equitable results.

        But you know that and this subject gets to me some days too.

        I also rant and rave and my disgust with the criminal justice system is why I quit practicing law.

        I just got to a point where I could no longer take it.

        • MKX says:

          I should have added, “if we are going to throw out respect for the law and decency” to that statement.

          Sweet innocent George was “respected” in the interest of a fair trial and that should also have applied to Trayvon.

          But that double standard was allowed for witnesses.

          Racheal had to suffer hours of intense disrespect and outright mockery. But that self-appointed “Nam voice expert was treated with deference.

          And all this points to the racist double standard:

          “how dare you question the veracity of what a white person states under oath?”

          “you people are born liars, so anything you say on the stand must be mocked”

          And what could the prosecution really do?

          Grilling the white {note their testimony was the only testimony deemed worthy by the jury} witnesses in a manner similar to what Racheal suffered just would have turned a largely racist jury off.

          As you deftly pointed out. The trial is won or lost during jury selection.

          • bettykath says:

            What could the prosecution do?
            1. Objection: the witness [Rachael] has already answered that question. And repeat the objection every time West re-asked the same question.
            2. Objection: The defense is harassing the witness. And repeat every time West mocked her or otherwise disrespected her.
            3. Show Rachael respect during her direct testimony
            4. Show respect for Rachael’s testimony during closing.
            5. Treat defense experts with respect but not deference.
            6. Challenge defense experts during cross and with rebuttal witnesses
            7. Back to the topic of this thread: Challenge any prospective juror who exhibited any racist tendencies, e.g. saw the demonstrations as riots.

  6. kllypyn says:

    If i remember correctly he shot her through a closed and locked screen door. Zimmerman got off because the juror chose to ignore the evidence and some of them allowed them selves to be bullied. they should have known Zimmerman’s story was bull crap. Especially since the evidence even if it wasn’t mentioned at trial was readily available for them to review. Trayvon’s last horrifying screams should have been the nail in Zimmerman’s coffin. Dunn case the same thing the juror ignored evidence.
    The only reason he’s in jail at all is because Jordan wasn’t alone. the completely ignored the photos of the truck those kids were which he shot at them while they were trying to drive away. they also ignored the fact he didn’t mention a gun till he was arrested 2 days later. which means the police had no reason to believe they had a gun. There ought to be a law against putting murder victims on trial. Especially minors. According Zimmerman’s lawyers Trayvon was practically running his own crime syndicate.

  7. J4TMinATL says:

    Great read Prof.

    No they shouldn’t serve but until prosecution learns jury selection (the signs), and cares what is the remedy.

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