#TheodoreWafer: Was McBride seeking help or trying to break and enter

Thursday, July 31, 2014

Good evening:

Was Renisha McBride banging on Theodore Wafer’s door at 4:20 am to obtain assistance or was she trying to break in?

I believe she was seeking assistance because she was making a lot of noise.

Noise attracts attention. Burglars prefer silence.

The defense claims she was trying to break in.

Judge Hathaway recessed the trial for the weekend before the defense completed the direct examination of its firearms expert, David Balash. He disagrees with the prosecution’s expert, Sgt. Shawn Kolonich, who testified on Tuesday that the muzzle of the shotgun was 8 feet from McBride’s face when Wafer pulled the trigger. Balash said the distance was only 2 feet.

Defense expert Dr. Werner Spitz, the former Wayne County Medical Examiner who testified ahead of Balash, agreed with him. Dr. Spitz based his opinion on the presence of white flecks of gunpowder in McBride’s hair. He spotted them in photographs taken at the autopsy.

Two feet from the muzzle is easier to spin as more favorable to the defense than the prosecution, but I do not believe the disagreement regarding distance is going to affect the verdict because her position relative to the door when Wafer opened it could have been anywhere within that 6 foot range, regardless of her intent.

Dr. Spitz also testified that he noticed that both of McBride’s hands appeared to be swollen in the autopsy photographs. He said the swelling was likely caused by McBride banging on the screen door.

According to the Detroit Free Press, Dr. Kilak Kesha, the assistant medical examiner, testified that there was significant blood on the teen’s right hand and a trace of blood on her left one but no injuries to her hands.

I agree that the swollen condition of Mcbride’s hands is likely due to her banging on the door. Unlike others, who argue that her swollen hands help the defense because they confirm that she was attempting to break into Wafer’s house, I think the evidence helps the prosecution because it confirms that she was attempting to wake up the occupant so that he would come to the door and she could ask him for assistance.

Burglars with crime in mind prefer silent entries to noisy ones that would awaken the dead from their eternal sleep and bring down the heat.

We will have to wait until Monday morning to find out if Wafer is going to testify.

Have a safe weekend everyone.

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Fred

#TheodoreWafer trial: Defense likely to complete its case today

Thursday, July 31, 2014

Good morning:

The defense continues to present its case today in the porch-shooting case with its expert, Dr. Werner Spitz, still on the stand.

Mr. Wafer may be the final witness, so this could be an exciting day..

The relevant issues to keep in mind today:

(1) whether her conduct knocking on the door placed Wafer in imminent danger of death or serious injury and

(2) whether Wafer’s acts (opening the inner door and pulling the trigger) caused McBride’s death.

McBride’s BAC isn’t particularly relevant.

Her actions are relevant to determining whether she placed Wafer in imminent danger of death or serious injury. I don’t believe they did, regardless of the amount of alcohol and marijuana in her blood.

Whether she bruised her hands banging on his door also seems irrelevant because the only damage to the screen door was caused by the shotgun blast.

Join us in the comments below for more developments.

#TheodoreWafer trial: definition of burglary and breaking and entering

Wednesday, July 30, 2014

Good morning:

I write today to clear up some confusion regarding the legal definitions of burglary and curtilage. I will also comment about the police video that was played in court after the jury was excused for the day.

A residential burglary is defined by statute as a breaking and entering into a dwelling with intent to commit a crime. The breaking-and-entering requirement does not require proof that a defendant damaged property while entering a dwelling. The breaking-and-entering requirement can be satisfied by proof that a defendant entered or remained inside a dwelling without permission.

The breaking requirement refers to breaking the vertical plane that separates the inside from the outside of the dwelling. That plane is established by the exterior walls of the dwelling. The position of a closed door establishes the vertical plane in doorways. Therefore, evidence that a defendant stepped through an open doorway without the owner’s permission would satisfy the breaking-and-entering requirement.

Curtilage is a legal term that refers to the property between the boundaries of the property and the outside the dwelling. This area typically includes the yard and occasionally some outbuildings. Sidewalks, driveways and front porches are structures that define avenues of ingress and egress through the curtilage so that members of the public can reach the front door without trespassing.

Police officers do not need to obtain a search warrant in order to reach the front door. As is the case with any member of the public, police officers can walk from the street to the front door without trespassing so long as they remain on the driveway/sidewalk and porch.

Working in two-person teams, police will use a procedure called a knock-and-talk to initiate a conversation at a particular address. One officer does the talking while the other officer peers inside to see if any evidence of a crime is in plain view. For example, if he sees a plastic baggie containing green vegetable matter that looks like marijuana or if he smells marijuana,

Renisha McBride likely did not violate any law when she approached Wafer’s house from the street and knocked on the door. Officers have testified that, with the exception of the damage caused to the locked screen door by the shotgun blast, there was no damage to the doors or windows of his house. The absence of damage means there is no evidence that she attempted to enter the house. The Castle doctrine does not apply, unless she was attempting to enter the house. Mere knocking and yelling in an effort to get someone to answer the door is insufficient to justify the use of deadly force.

Finally the lawyers and a police witness discovered an inconsistency regarding the amount of money McBride had when Wafer shot snd killed her. One of the officers said she had a $100 bill, whereas a police report says she had $56.

Something ain’t right, so the judge is going to have to decide what to do about the discrepancy. Fortunately, the jury was not present in the courtroom when the discrepancy was discovered. I do not believe the discrepancy warrants a mistrial because it does not make it more or less likely that Wafer was justified in using deadly force.

See you on twitter.

Fred

#TheodoreWafer is going to have to testify during defense case

Tuesday, July 29, 2014

Good afternoon:

I apologize for posting this article in the afternoon. I had intended to post it before court convened this morning but I overslept. We celebrated Crane’s birthday yesterday and our usual sleep cycle had to make other arrangements.

For reasons that follow, I believe defense motions to dismiss the charges in the Theodore Wafer trial, after the prosecution rests, will be denied and he will have to testify during the defense case.

The prosecution might conclude its case-in-chief late today, although tomorrow is more likely. I say this because the standard operating procedure for presenting evidence in a murder trial is to close with the medical examiner’s testimony. I see no reason for the prosecution to vary from that practice.

We teach trial lawyers to finish their case with a knockout punch and the best way to do that in a murder trial is to call the medical examiner.

The medical examiner’s opinion regarding cause of death must be based on the evidence obtained during the autopsy. Graphic color photos taken during each step of the autopsy are used to document what the medical examiner did in order to establish the necessary foundation for the opinion regarding cause of death.

Autopsy photographs are gruesome and difficult to look at because of the injuries displayed with their associated trauma. People who have have never seen a dead body are usually traumatized when they look at autopsy photos because a violent death, as opposed to a cleaned-up cinematic version of death presented in film, is graphic, shocking and disturbing. The emotional storm triggered by viewing autopsy photos can be upsetting and difficult to forget.

After the prosecution rests, Judge Hathaway will send the jury to the jury room so that she can hear argument from counsel regarding what I have previously described as a defense “halftime motion” to dismiss the charges. We use the word halftime to describe it because the defense raises it after the prosecution rests and before the defense presents its case.

This motion is a standard practice, regardless of the strength of the prosecution’s case, because a failure to raise it at that time precludes a challenge to the sufficiency of the evidence at a later time. The motion is rarely granted because the prosecution need only have presented some evidence that, if assumed to be true together with all of the reasonable inferences that flow from it, would be enough to support a verdict of guilty. In other words, the motion raises a threshold question by asking the judge to decide if enough evidence has been admitted in support of a particular charge to allow the jury to consider and decide whether the defendant is guilty or not guilty of that charge.

Much of the witness testimony and evidence admitted in the case so far is not very helpful in determining whether Wafer is guilty or not guilty. For example, I do not believe McBride’s intoxication and conduct banging on doors is helpful to deciding Wafer’s guilt or innocence because, if we assume for the sake of argument that it was so loud that everyone in the City of Detroit was awakened by it, Wafer’s use of deadly force would still not be justified.

Why?

Because noise alone cannot justify the use of deadly force. That is, although Wafer may have feared death or serious injury as a startle response to unexpected loud noises that awakened him, he was not actually in any danger of death or serious injury. McBride was unarmed and the police did not find any evidence, such as pry marks, dents or broken glass, that would support a belief that she was attempting to break into Wafer’s house. Therefore, his fear of imminent death or serious injury was unreasonable and his use of deadly force was unlawful.

Moreover, Wafer has given two conflicting statements (accidental shooting versus shooting in self-defense) and increased the number of attackers from one to three. Those changes inspire little confidence in his credibility.

The absence of evidence that anyone attempted to break-in, when considered together with his conflicting versions of events, might reasonably be expected to lead to guilty verdicts, unless he testifies and credibly explains his inconsistent statements.

Therefore, I am expecting Judge Hathaway will deny the defense halftime motion to dismiss and Wafer will testify during the defense case.

If the defense presents any evidence during its case, the prosecution will have an opportunity to rebut it. If Wafer testifies, do not be surprised if the prosecution rebuts what he says with testimony from the police officers with whom he had contact that night.

Again, sorry for posting this article in the afternoon. I had intended to post it this morning before court convened, but I overslept.

#TheodoreWafer trial resumes today at 9 am

Monday, July 28, 2014

Good morning:

Today is Crane’s birthday.

Happy birthday, Crane!

The Wafer trial resumes today at 9 am EDT. The prosecution will resume presenting its case-in-chief. I am expecting more testimony from cops.

Our source of information is twitter.com

#TheodoreWafer

See you in the twittersphere.

Do botched executions violate the Eighth Amendment prohibition of cruel and unusual punishment

Sunday, July 27, 2014

Good afternoon:

Do botched executions violate the Eighth Amendment prohibition of cruel and unusual punishment?

The State of Arizona botched the execution last Wednesday of Joseph Wood. People who witnessed his execution said he he gasped and snorted over 600 times for almost two hours before he was finally pronounced dead

Arizona used the same two drugs, midazolam and hyrdromorphone, following the same protocol that Ohio used to execute Dennis McGuire in January. Witnesses reported that he snorted, gasped, and struggled for about 25 minutes before he was pronounced dead.

Similar symptoms suggests that administering the two drugs according to the protocol will not not achieve the intended result, unless the intended result is to assure conscious awareness of suffering and dying in a paralyzed state.

Such a policy would constitute torture and violate the Eighth Amendment.

Midazolam is a sedative and hydromorphone is a painkiller. According to anesthesiologists,

the new cocktail of drugs could cause a condition called “air hunger,” in which the inmate would gasp for air but be unable to absorb oxygen.

The Death Penalty Information Center is reporting that Ohio switched to using the two drugs after state officials exhausted the state’s supply of pentobarbital and could not replenish it due to the manufacturer’s decision to ban the use of its product to kill people by conditioning sales to distributors on their agreement not to redistribute or sell the drug to states that use it to execute people.

And lest we forget,

In Oklahoma in April, convicted killer Clayton Lockett writhed in pain and a needle became dislodged during his lethal injection at a state prison. The execution was halted, but Lockett died about 30 minutes later of a heart attack

Before we can reach an evidence-based opinion regarding whether the two-drug cocktail violates the Eighth Amendment, we will have to wait until the autopsy results establishing Mr. Wood’s cause of death are published and reviewed by qualified medical experts.

In other news:

Despite a population that constitutes only 5% of the world population, our jails and prisons hold 25% of the people who are imprisoned in the world.

Finally, some good news. The Sentencing Project reported last week,

A new report by The Sentencing Project examines the potential for substantial prison population reductions. Fewer Prisoners, Less Crime: A Tale of Three States profiles the experiences of three states – New York, New Jersey, and California – that have reduced their prison populations by about 25% while seeing their crime rates generally decline at a faster pace than the national average.

This is our 1156th post.

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Thanks,

Fred

#TheodoreWafer: How much evidence should the prosecution introduce before resting

Friday, July 25, 2014

Good evening:

I write this evening to discuss litigation strategies in criminal trials.

The prosecution goes first and last, since it has the burden of proof.

To survive a halftime defense motion to dismiss one or more charges against the defendant, the prosecution must present substantial evidence to support every element of each charge.

“Substantial evidence” is a legal term. Basically, the judge has to consider all of the evidence introduced by the prosecution during its case in chief and assume, for the purpose of ruling on the motion, that all of it is true, together with all reasonable assumptions that flow from that evidence, and decide whether the evidence would establish every element of each crime charged.

For example, Wafer is charged with second-degree murder. The elements of a second degree murder charge are committing an act with intent to cause the death of another person that results in the death of that person. The prosecution has introduced Wafer’s 911 call and his statements about the shooting. If we assume those statements are true together with all reasonable assumptions that flow from that evidence, we can conclude that the prosecution has introduced “substantial” or legally sufficient evidence to establish every element of the crime of second degree murder, except causation.

The prosecution will fill in that gap next week when the medical examiner testifies that the gunshot wound to her face caused Renisha McBride’s death.

That is the bare bones minimum amount of evidence that the prosecution has to introduce to survive a halftime defense motion to dismiss the murder charge.

The rules of evidence do not preclude the prosecution from introducing additional evidence, so long as it is relevant to an issue in the case. For example, evidence that Wafer was not in imminent danger of being killed or suffering serious bodily injury would be relevant and admissible to prove he did not fire his shotgun in self-defense. Evidence has been introduced that the peep hole in the front door was functioning and both the front door and the screen door were closed and locked until he unlocked and opened the inner door and fired the shotgun through the screen door. Also Wafer’s two contradictory statements about why he fired the shotgun constitute substantial evidence that he did not believe he was in imminent danger of death or serious bodily injury when he pulled the trigger.

Note that a judge is not required to determine witness credibility or weigh evidence to decide a motion challenging the sufficiency of the evidence. The judge assumes the evidence introduced by the non-moving party was true and based on that assumption she will decide whether to grant or deny the motion to dismiss.

If she denies the motion, then the murder charge will go to the jury after both sides rest.

Roderick and Fauxmccoy have been arguing in the comments about whether the prosecution made a bad tactical decision when it introduced evidence that McBride was impaired by alcohol and marijuana when she drove her vehicle into a parked car four hours before the shooting. For example, the prosecution presented the testimony of Renisha’s friend, Amber Jenkins, that Renisha had consumed both drugs and the blood toxicology reports will state how much was in her blood.

I believe the prosecution wisely decided to introduce that evidence to avoid the appearance of withholding it. They knew the defense was going to introduce it, so they seized the opportunity to introduce it themselves. I would have done the same thing.

The prosecution screwed up in the Zimmerman trial by introducing all of Zimmerman’s contradictory self-serving statements without aggressively attacking the credibility of any of them.

Attacks on credibility are usually presented during closing arguments and I am anticipating that the prosecution in the Wafer case will do that at the proper time.

This is our 1155th post.

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Thanks,

Fred