#TheodoreWafer: Game within the Game: how to deal with a defendant’s conflicting statements

Thursday, July 24, 2014

Good evening:

Crane and I were called away unexpectedly this morning right after I posted the article and the notice that Judge Hathaway has decided not to allow any live coverage of the remainder of the trial.

I have no idea why she made that decision a day into the trial following two days of jury selection that were not covered. Granted the coverage yesterday was worse than dismal, but I cannot think of a reason why yesterday’s failures could not have been corrected by today.

Now, everybody connected with the trial appears less than competent and the decision to abort coverage invites speculation that the outcome may be rigged.

The tragedy is that the judge, the lawyers and the jury had a chance to show the nation and the world that the criminal justice system works in Detroit even if it doesn’t work in Florida.

We the people have grown cynical and suspicious of our court system where wealth and privilege play by a different set of rules than minorities, the poor, and the mentally ill. They get shafted and sent to prison while the rich and the privileged literally get away with murder.

Judge Hathaway’s conduct and decision to ban livestream coverage does not compare favorably to the way My Lady, Judge Masipa is handling the Oscar Pistorius trial.

Okay, I am off my soapbox, but I want to add my response to Crusty’s comment in which he said,

I just read a twit er that the police officer on the scene looked thru the peep hole and it was not broken. Does that not add another nail to the box that TW’s attorney has put him into? Oh well, just another lie from the defendant, no big deal, right?

My answer follows.

This gives me a chance to do another Game Within the Game.

Great catch Crusty!

Excellent illustration of the well known principle that a criminal defense attorney should verify claims made by the client before asserting them as fact in an opening statement.

Prosecutors have a way of serving up those statements in closing argument reminding the jury of what was said forcing the defense attorney to sit at counsel table and eat the shit sandwich a bite at a time while attempting to appear unruffled. They also challenge the defense attorney to explain to the jury why they said what they said.

I’ve seen many a defense attorney blush, break out into a sweat, lose concentration and deliver an unfocused defense to the indefensible accusation instead of owning the error, apologizing for it, and earnestly ask the jury to not hold the client responsible for the lawyer’s mistake. Then its back to arguing presumption of innocence and stressing the points that support reasonable doubt.

Unfortunately, the court’s decision to ban the livestream means that we and the rest of the viewing public will miss how this plays out unless a reporter tweets about it, which is extremely unlikely since they are not skilled trial lawyers who notice and appreciate events like this that occasionally affect the verdict. Oralandar Brand-Williams reported what Cheryl Carpenter said, but no one else picked up on it and I’m not even sure she realized that this was a new version.

I realized that it was and wrote about it, but no one else did. Unless someone read my blog, they would not know what happened.

BTW, that little statement that Carpenter made is extremely significant because it amounts to an admission that she knows they cannot win an acquittal unless more scary attackers are thrown into the mix to support his claim that he was terrified and believed his life was in danger when he fired the shotgun through the locked screen door.

Unfortunately for Wafer, he did not keep his mouth shut and the two explanations that he provided to the police not only cannot both be true, neither one constitutes a reasonable use of deadly force in self-defense when two locked doors separated him from an unarmed 19-year-old girl knocking on his door at 4:30 am.

Just as desperate Hail-Mary passes into the end zone to snatch victory from the jaws of defeat as time expires in a football game rarely succeed, introducing a third version of events to replace two conflicting earlier versions that, if true, would coincidentally fit the known facts like a hand in a glove only invites arched eyebrows, intense skepticism and the formation of firm opinions that the defendant, with the assistance of his lawyer, is an opportunistic liar who is guilty as sin.

Again, please accept our apology for abandoning you all to twitter. Yes, it had something to do with the recent unpleasantness but nothing bad happened and we are back at work and we will be covering tomorrow’s twitterganza with occasional side remarks explaining what is going on.

Thanks, Fred

25 Responses to #TheodoreWafer: Game within the Game: how to deal with a defendant’s conflicting statements

  1. 13pink says:

    am following this trial through the twitter feed of @idabeewells, Thandisizwe Chimurenga, who was at the Johannes Mehserle trial for the killing of Oscar Grant. She is doing some awesome coverage of the trial of Ted Wafer. Now I’m following this twitter feed as well 🙂 This is a really important trial, and how it is handled needs to be watched!!!

  2. PhillyBoyRoy says:

    The media coverage of the Wafer trial has been severely limited due to the lack of a video feed. I don’t see much about it at all outside of what The Prof links us to, even on progressive websites.

    Obviously, this is bad for justice in general. Hopefully it does not affect this case in particular in any way.

    Speaking of media coverage, but a bit OT, the way that even supposedly “liberal” local media is covering the Eric Garner MURDER in NY/NJ is disgraceful. EVERY mention of the murder focuses on ONE rogue HERO who happened to accidentally use an ILLEGAL CHOKEHOLD. They make it sound like a goddamn wrestling match! Not one radio story mentions the half-dozen cops who pounced on this guy who was doing nothing. Amazing.

    • Malisha says:

      Today apparently a psychiatric patient killed his therapist and a nearby psychiatrist pulled a 32 out of his CCW holster and fired 5 shots or something into the guy, immobilizing him. Commenters are going nuts with the NRA stuff saying that if that doctor hadn’t shot that patient, everyone else would have been killed by the crazed shooter. It’s like, “Everybody carry a loaded gun and be ready to kill someone in self-defense at all times.”

      The APA does not comment.

    • MKX says:

      That’s awful.

      The video clearly shows that the “hero” snuck up behind Garner and applied to hold after another cop had got Garner’s attention.

      • PhillyBoyRoy says:

        Aside from that, what did he do that warranted even any force being used period?

        I know that as a white male I will most likely never experience the same hostility, but honestly the Garner murder makes me think that something like this could happen to anyone who gets into a minor disagreement with a cop.

  3. Nef05 says:

    Hi Prof, C-S, and Everyone! Hope all are well and enjoying their summers. I get to pop in from time to time, but life gets in the way. Hope to be able to keep mom home for one more Christmas, but dementia progresses as it progresses. One just does what they can.

    Just wanted to say “Hi” and I really miss being a full time member and regular poster, interacting with you all and reading/discussing current cases. Going to try to catch up on some reading and hopefully post here and there. Mostly interested on everyone’s thoughts and impressions. I’ve always found this group to be most insightful and well reasoned. Sending positive thoughts and energy to everyone – Nef

    • fauxmccoy says:

      hi nef! have missed you and completely understand dealing with elder care. although my mom is not suffering with dementia (as of yet), she fell around christmas and broke 3 ribs and her pelvis. at 77, her recovery has been a long, slow, painful process. i worry about her falling again (that last one was her 5th that year), cannot get her to call the ‘life alert’ folks — but my bro, husband and i show up 3 times a day to check on her and walk her dog for her because she no longer can. we are also doing much of her errands and accompanying her for shopping and the like. it does become draining.

      i wish you well in your continued attempts to help your mom remain at home and i know it’s rough. it’s good to see you again. take care!

      • Nef05 says:

        Hi Fauxy, I’m sorry to hear about your mom’s fall. They can be so dangerous at that age. Good that your family checks on her so often, and takes care of her. So many people can’t/don’t. All my best – Nef

  4. MKX says:

    Another hit to his defense:

    “He told police that the victim, later identified as 19-year-old McBride, looked like a “neighbor girl or something.” McBride didn’t live in the neighborhood, and an autopsy revealed she was extremely drunk…”


    The gruesome manner in which McBride was killed precludes that Wafer could have made an ID after he shot her. So his statement means that he had time to look at her before he shot her.

    And you shoot someone who might be a “neighbor girl” because they are pounding on your door?

    A non-filthy minded person would logically assume that the “neighbor girl” was in trouble and needed help.

    So this case is like that black man who was shot by cops after he survived an automobile crash, but the person whose door he was pounding on assumed he was a home invader, so the person told the cops that he was one in a 9-11 call.

    What a messed up society wherein fear and paranoia cause those in need of help to be shot.

    • Malisha says:

      I’ve heard plenty of white people talk about not driving through “bad neighborhoods” because their car could break down and then they would be killed, as if the presence of the underclass is danger of death per se. So they allege that a middle-class white guy would be murdered if he sought help — or even appeared to be in need of help — in a “bad neighborhood.” This makes an assumption that the “person in need of help” would not similarly face danger of death in a “good neighborhood.”

      So it’s not about the character of the residents of the “good” or “bad” neighborhood, is it? It’s about the color of the person in need of help, isn’t it?

      We don’t hear many stories of white girls seeking help in “bad neighborhoods” and getting their faces blown off by people who then get a ride (without handcuffs) to the station and a ride back home the same night, do we?

      THIS, about a white girl seeking help:


  5. MKX says:

    There is so much contradiction in Wafer’s statements with respect to his defense that it makes my head spin.

    Ok, he now claims that there were three people out there trying to get him.

    Well, he is on record as stating that he did not know the gun was loaded.

    So he, if his statement that he was in a state of fear he had never experienced, is to believed, proceeded to take on this threat with a gun he thought was not loaded?


    “Wafer says of porch shooting: ‘I didn’t know there was a round in there’…”

    Kind of like this gem:

    Zimmerman: “I was going in the same direction as him”

    Serino: “George, that is following”

  6. Dave says:

    There’s an interesting tidbit in this article:


    Cpl. Parrinello testified that he found maggots in Ms. McBride;s clothing. Supposedly they came from a maggot-infested chunk of venison on a nearby gurney in the Wayne County Medical Examiner’s Office. This could be useful to the Defense if they intend to discredit the County M.E. as they apparently are.

  7. a2nite says:

    I agree with Malisha.
    F’ing Figen got off & Dunn was NOT convicted of murder.
    White men can & have lawful permission to murder us especially the police. Mr. Garner was lynched in NYC by the NYPD & some are ok with it.

  8. lady2soothe says:


    Man Shoots And Kills ‘Pregnant’ Burglar

    Tom Greer told KNBC-TV he shot Andrea Miller twice in the back as she ran away. She says, ”Don’t shoot me, I’m pregnant — I’m going to have a baby,’ and I shot her anyway,””The lady didn’t run as fast as the man, so I shot her in the back twice,”


    • lady2soothe says:

      Turns out her “I’m pregnant” statement wasn’t true but being pregnant wasn’t the point: she was shot in the back while running away… No imminent danger there.

  9. crustyolemothman says:

    Professor, I think the reason the Judge stopped the live feed was the camera man showed the face of one of the members of the jury. Some people think this was encouraged by the defense to get the live feed out of play. Is that true, while I would normally say no, in this case, it could well be true… As for my catching the discrepancy on several statements from the defense, it is only due to the training that we have received from you on this site, that we have learned to listen carefully to what is being said, so IMO it is you that is due the credit for that find….

    • J4TMinATL says:

      Yeah saw the juror and they don’t mute judges comments.

      She comes across as rude to me (the judge).

    • Dave says:

      Also, I heard several phone numbers and street addresses that the press had been ordered not to report.

  10. crustyolemothman says:

    So far we have the photo that shows the door still in place, unlike the version from TW’s attorney, we have a peep hole that was not damaged prior to the murder and was intact after the murder due to the observation of an officer at the scene. While I don’t hold much hope for a conviction in this court room, in the real world a conviction would be pretty well assured at this point, IMO.
    It would be nice if we could watch the trial tomorrow, however the next session will be on Monday the 28th at 09:00 est.! No court tomorrow….

  11. fauxmccoy says:

    totally bummed that i cannot watch cheryl carpenter eat the proverbial shit sandwich 😦

    yes, she made many promises during her opening statement which cannot be backed up by any evidence whatsoever and she all but ensured that wafer will have to take the stand. it is the only way that the 2-3 or even more scary people were at his door.

    her opening statement alone ensures a somewhat exciting trial for me and i am sorely disappointed in the judge’s decision to disallow live streaming. i wanna hear wafer stammer his pathetic story on the stand, i want to hear him confronted with his previous stories and i want to see the shit sandwich, dammit!

    • Malisha says:

      My concern is that over and over again, I have seen the side (either prosecution OR defense) with absolutely no facts and absolutely no evidence parlay some garbage-talk with magic-scare-words into a WIN. By the time this secret trial is over, all of White Racist Paranoid Michigan could be of the opinion that Wafer defended himself from a veritable army of drunken drug-dealing terrorists bent on destroying him and the country he stands for, and he will be up for the medal of honor and his victim will be hanged in effigy on every corner.

      • MKX says:

        Within the city of Detroit, there have been some very violent home invasions that the defense is hoping that some in the jury know about.

        This is the invasion that I feel they would like to portray as a fear for Wafer:


        Later on, the authorities found out that the murders were by two black males and one black female. The victims were white. However, the home in the picture has a security door and barred windows. So the murders may have been a drug deal gone bad, not a home invasion.

        That is why I stress that Wafer lives in Dearborn Heights, not Detroit.

        The police response time in the Brightmoor section of Detroit can best be describes and non-existent. In Dearborn Heights, it is quick. Also, Brightmoor has so many abandoned or demolished homes that it has returned to an urban forest. IOW, living there is like living out in the sticks all alone – no lights and no neighbors. Dearborn Heights, OTC, has all its homes, is well lit, and there are neighbors watching what goes on.

        I noted from the tweets, that the prosecution complained about the defense making comments about Warren Avenue.

        Even If he did live in Brightmoor, I would not find Wafer innocent. You do not come out blasting.

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