#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.


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.

23 Responses to #TheodoreWafer is going to have to testify during defense case

  1. fauxmccoy says:

    PS — congrats on a lazy day of sleeping in 😀

    • Malisha says:

      This is pretty obvious, in my opinion. Fogen is looking to kill another “suspicious guy” and he’s hoping to do it in front of a gun shop and be returned to NRA-knighthood. Imagine: the neighborhood protector turns business protector!

      OR: He pines away for the publicity now that blonde girls are no longer running around pining for HIM.


      • MKX says:


        His MO remains the same. He sees a “concern” amongst a group that he so desperately wants to be a “hero” to and self-appoints himself their protector. His impatient petulance makes him strike at the first thing he sees that has the most remote possibility of being “the suspect” he wants to apprehend.

        I understand why the right wing racists defended this guy.

        What gets me is how too many “liberals” gave him the benefit of the doubt.

        The first time I listened to the 9-11 tape, I came to the logical conclusion that George Zimmerman was a delusional, mentally unstable menace to society who needed to be put away.

        His mental problem, pandering and lying come though clear as a bell.

        • fauxmccoy says:

          MKX says

          His mental problem, pandering and lying come though clear as a bell.

          why, doesn’t that make him perfectly qualified for a life in politics? (sadly, i expect this is part of his delusions as well 😦 )

      • bettykath says:

        uh oh. Fogen told another porkie. otoh, this statement is from a politician. They’ve been known to tell porkies, too.

        Johnson confirmed he knows Zimmerman but told WKMG-TV he did not hire him to handle security.

        “I didn’t okay it. I didn’t know about it. I didn’t authorize it. I didn’t pay for it,” he said. “He had just watched Facebook and the news and just took it upon himself to come up here and sit.”

        “I sent him a text message telling him not to come back to the store anymore,” he added.

        • Malisha says:

          He said that so that when Fogen kills a young AA man near the store one night soon, “Pat” won’t have to pay out a million or two million dollars in damages as the HOA had to for his last murder.

    • crustyolemothman says:

      Read the link for a quick breakdown as to what is going on… Disgusting that this trial has come to this… What disgusts me the most is that if the defense attorney knew about the tapes it stands to reason that the pros knew about them as well and did absolutely noting to prepare the court for their release… Either extremely inept or corrupt…

      • bettykath says:

        Why are police speculation conversations an issue?

      • fauxmccoy says:

        although portions of the police audio provided today could be problematic for the prosecution, depending on who said what and who testified, i do not think it is grounds for a mistrial. there is no judicial or prosecutorial misconduct. there may be police misconduct, but that does not necessarily affect the trial. (example — we know that in the pistorius trial, there is a whole lot more missing than an alleged 100 bucks, but the trial goes on.)

        if the defense moves for a mistrial, then there is nothing to stop a new trial from being scheduled as this does not violate the 5th amendment (double jeopardy). i do not see the prosecution asking for a mistrial over these new developments.

  2. bettykath says:

    Crane-STation, Happy birthday!

  3. bettykath says:

    Did the defendant speak of the hordes attacking or just his attorney in the opening? What his attorney says isn’t evidence, so why should it be considered? I realize that the hordes bell has been rung, but…..

    • fauxmccoy says:

      the only real issue of it is that there is no evidence to back that statement up unless wafer takes the stand. if wafer doe take the stand, that makes him available to cross exam. and we all know what that entails. if wafer does not take the stand, there is absolutely NO evidence that can be introduced to back up that claim.

      yes, attorney statements are not considered to be evidence. however, if one side says in opening statements that they will show or prove ‘X’, then they damn well better do so, because the other side will certainly make hay of it come closing arguments.

      basically, she set herself up for bad juju either way with that statement.

      • crustyolemothman says:

        fauxmccoy, Good morning! If my ancient memory serves me correctly there is some basis for TW’s claim of more than on person outside, did he not claim when asked by the officer why he did not look outside that it seemed that the noise kept changing locations? IMO that is what the defense is basing the assertion that there was more than one person. Is that a strong enough basis for a valid assumption of more than one person? I would think so only if he had said that the sounds seemed to come from more than one location at the same time, but will a juror see it like that?
        This morning we will see how much the well has been poisoned by the revelations of the defense yesterday afternoon of misconduct on the part of the investigators. While I still am astounded that the prosecution did not resolve this issue before the start of the trial, and part of me still expects a directed (by the judge) mistrial to happen, perhaps I will be wrong (hopefully) and the trial will continue and the jury will not be affected by the appearance of wrong doing on the part of the Police Dept… My fear is that they will let emotion (distrust toward the PD) blind them to factual evidence of guilt or innocence when they render their verdict…

        • fauxmccoy says:

          yes, wafer did claim to hear noise from all directions, but as usual in self defense cases, he has reasons for saying so which are not entirely altruistic, more like self serving. he did not say it on the night of the murder.

          beyond that, we have the eye witness (neighbor) who had a good view of that door the whole time and saw nothing, but did hear the shotgun and police found no evidence that the door was touched.

          in my mind, that makes wafer’s claim much harder to believe.

          • crustyolemothman says:

            I agree with you, however as is my normal routine, I attempt to point out issues that are in question and how the other side has made their case… I actually don’t believe a thing TW or his defense attorney has said up to this point, well except the words Good Morning from his attorney to the judge, and that could be questionable as well….

          • fauxmccoy says:

            which is why you have somewhat more crust than me 😉

            i always say that i remain cynically optimistic. as odd as that sounds, it is true.

            in this instance, we (or the jury, rather) have to weigh wafer’s word against that of an unbiased neighbor and forensics. for me, that is not a hard decision to make. of course, then there is the jury.

          • crustyolemothman says:

            “i always say that i remain cynically optimistic. as odd as that sounds, it is true.”

            That young lady is why I value your input so much…

          • fauxmccoy says:

            awwwwww — you made my day and i’m just waking up. that is very kind, thank you. the feeling is mutual.

  4. crustyolemothman says:

    Professor, I would highly suspect with the developments that occurred at the end of the day that you will be able to respond to the judge ordering a mistrial. I am about to finally lose all faith in our criminal justice system…

    • bettykath says:

      Can you elaborate on the end of the day developments?

      • crustyolemothman says:

        It has been alleged per some audio tapes of the officers on the scene that there is money missing from Ms. McBride’s pocket, and other missc. accusations of official misconduct on the part of the pd… I think it will get worse when court starts again in the morning.. The pros have yet to rest their part of the case, and I hope I am wrong, but I don’t think the trial will continue past morning…

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