#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.

72 Responses to #TheodoreWafer trial: Defense likely to complete its case today

  1. Two sides to a story says:

    OT – this a copy and paste from a Facebook notification. The “Fullerton 10,” mostly livestreamers who were arrested by police in January after the big protest after the Kelly Thomas cop killer trial let the cops walk.

    “They offered the people unjustly and illegally arrested for standing up for Kelly Thomas 3 years probation and a 250.00$ fine.

    The Fullerton 10 told them where to stick it and offered a plea bargain of their own.

    Drop ALL charges & fire the three remaining cops that helped beat Kelly Thomas to death, James Blatney, Kenton Hampton, and Kevin Craig IMMEDIATELY!

    The DARs of the cops threatening these protesters will be released soon as it is evidence in the trial.Livestreaming is not a crime, murder is. Get your priorities straight Fullerton PD.

    This is NOT OVER, Please, join us on Oct. 9.”

    Those of you who have FB accounts may be able to access a photo of these intrepid citizen reporters.

  2. MKX says:

    One thing that I hope goes in the prosecutions favor is that the PD has backed the prosecution instead of being hostile as in the Zimmerman trial.

    It was a police officer who said the door was locked and the screen was largely in place.

    And that there was no sign of forced entry.

    Although I do not agree, most jurors believe a police officer’s word.

    In rebuttal, the prosecution should so theory about how the shot went down by bringing in their ballistics expert.

    Sadly, “baffling with bullshit” worked well for Zimmerman.

    “Oh my, that little cut I see in that grossly distorted poorly lit cell phone photo of George could have been from a blow that could have caused a subdural hematoma”

    And is it not ironic that hands that might be just pudgy due to body fat can reasonably be construed, from a bad picture, as evidence of beating in a door, but hands with no significant damage, when subject to close inspection, can not reasonably disprove that they were used to beat on a hard face and skull 20 to 30 times “MMA” style?

    And note that in both case, the claimed object subject to a “massive” beating has minor scratches.

    More of the super human savage fist gene that those with more melanin content have BS. And there is nothing baffling about the reason behind that.

    • fauxmccoy says:

      ya got no disagreements with me. i stated on xena’s blog yesterday while the decrepit dr. spitz was testifying that what he was attempting to do was equate mcbride’s hands to burglary tools as well as insert wafer’s feelings which thank god, the prosecution presented many timely objections which were sustained. of course today, on cross exam, he had to recant his assumptions of mcbride’s hands. he sounded like a hack to me. i hope to the jury as well.

      i am like you in that i would give no more weight to LE testimony than any one else and i just might give them less, depending on circumstances or just how i feel at the moment. but we are not ‘most people’. i do see it as fortuitous that local LE is in full cooperation with the prosecution and not working against them though.

      • Two sides to a story says:

        I feel hopeful that this case may turn out well in that the jury will give TW some jail time. Hope I’m not fooled.

        • fauxmccoy says:

          as always, i maintain a position of cynical optimism. we are seeing aggressive prosecution, judicial fairness and defense disarray. what we can never count on is the jury. cynical optimism, i heartily endorse it.

      • MKX says:

        This judge is not being pushed around by the defense, as was Nelson in the Zimmerman trial.

        • fauxmccoy says:

          no she is not; it is rather refreshing to see. prosecution is doing it’s job as well. defense looks like a hot mess so far. we shall see. hope springs eternal.

  3. halfentity says:

    Professor Leatherman,

    2 Things the Judge said in Prelim –

    1. She will instruct the jury to disregard Spitz testimony if Wafer testifies.

    Q: Since they paid Spitz and had him up there, does this mean they don’t plan on Wafer testifying?

    2. Judge Hathaway: “Quite frankly, I don’t know how the defense can put on a case of self-defense without the defendant testifying,”

    source: http://voiceofdetroit.net/2014/06/29/judge-bars-cellphone-texts-crime-map-from-evidence-in-renisha-mcbride-case/

    • crustyolemothman says:

      halfentity, Here is what was said by the judge per your link…

      “Siringas questioned why Spitz’s testimony, if allowed, should not be taken after Wafer’s during the defense case, if Wafer takes the stand. Judge Hathaway said she will instruct the jury to disregard Spitz’ testimony if Wafer does not testify.”

      Note please that she actually said she will instruct the jury to disregard Spitz’s testimony if TW does “NOT” testify….
      Now we will see is she does that if TW fails to take the stand… I don’t think he will…

      • Dave says:

        It’s going to be kind of hard for them to disregard all of Spitz’s testimony whether Wafer testifies or not.

        • crustyolemothman says:

          Dave, Do you suppose she expected Spitz’s testimony to be a little more credible? IMO he actually damaged the defense case more than he helped them. While we still have not heard the words of the member of the PD that the defense is calling and what damage to the state they think he can do, at this point unless a bomb shell is exploded by new revelations the best the defense can hope for is a hung jury. Can TW afford to continue to finance the legal team and hired witnesses that he presently is paying for? An attempt for a plea to manslaughter with a relatively short sentence would be his best bet if this jury does not reach a verdict…

  4. fauxmccoy says:

    as best i can tell, it’s a bunch of hand waving ‘look over there’ maneuvers. we will never know (even if wafer testifies) where the screen was on the door, which step mcbride was standing on or how wafer held the shotgun. with these three variables there are multiple combinations which could have worked.

    bottom line, nothing brought forward so far in any way refutes that mcbride died from a gunshot to the head, the gun was wafer’s and he shot it and that further, there are no signs of forced entry. looks like manslaughter at the very least.

    what the defense is doing, is ‘baffling with bullshit’ since they cannot ‘dazzle with brilliance’.

    • crustyolemothman says:

      “what the defense is doing, is ‘baffling with bullshit’ since they cannot ‘dazzle with brilliance’.”


  5. MKX says:

    What is up about the tweets wherein Balash states the screen was not in place and Wafer would have to shoot down from above his head?

    The police photo shows a screen in place with a hole about a foot above the handle.

    It would be easy to make a hole like that in the act of shooting a person knocking who peaks in after an inner door opens – which is what most people do, if they are expecting a hello, not a gun shot blast.

    I wish more pictures were being released.

    • crustyolemothman says:

      MKX, That story does not make sense, TW was approx. 8 1/2″ taller than she was, the hole was at what would have been approx. his elbow height and that would have been pretty close to the angle of the shot if you add in the height of the floor of the house from the level of the porch… I call BS on the over the head and also the level that the alleged expert claims TW was holding the shotgun… You might also consider (as I pointed out several days ago, he was left handed and had to be standing pretty far from the door jam (to the left) when he aimed and fired…

      • Dave says:

        The point that they’re trying to get across is that the position of the hole in the screen shows that the screen was dislodged from its normal position before Wafer fired. If the screen was in the upper half of the door. the only way that Wafer could have shot through it to make that hole and hit Ms McBride in the head would be in the absurd position that the witness demonstrated.

        Also, left handed people often shoot right handed, as we went through in excruciating and repetitive detail during the Zimmerman trial.

        • MKX says:

          That’s what is confusing.

          The picture taken by the police shows a screen that is in position and a hole about a foot above the door handle. A screen fits into a rectangular opening and, if it was out of position, in either the X or Y axis, then how did it get back to position so that a police officer did not note any sign of forced entry and was able to snap that photo?

          Note I am following tweets have not watching the trial or being given a diagram or picture which, of course, I assume Balash has provided.

          We have that police photo from the thread that Frederick Leatherman posted a while back.

          And why did not Wafer say that McBride was pushing in or pulling out the screen upon first dealing with the police?

          That is a clear sign of possible forced entry that I find very, very hard to believe Wafer would forget to mention.

          No he just said the gun went of by accident and there was loud pounding.

          So we have:

          The police did not see or note it and neither did the shooter.

          But I am dealing with tweets, so I could be confused.

          • Dave says:

            I still don’t understand what sort of screen door this is. Is it the older type where the screen and glass panels are held in place by clips on the inside of the door and are removed and replaced seasonally or is it the type with two glass panels and a screen panel that are permanently installed and slide up and down?

          • fauxmccoy says:

            dave — these types of doors are not common in california, i have never seen one in 50 years. the many tweets i have read, however, have referred to clips that held the screen in place so i would guess that the door is in the older style which you described first.

          • MKX says:

            If it was the inside slide down type, then vigorous pounding could cause that because they are not to well made.

            If that is so, I would not see that as evidence of a B&E to the point of shooting.

            I believe that I caused a few to go down by knocking on those outer doors. And it does piss off some people. So I learned to hammer fist the solid door frame when I needed to knock loud.

            And it was also common and accepted in Metro D to open the screen door, if it was not locked, and knock on the inner door.

            You try the handle and then resort to banging on the outer door, if you do not do the hammer fist. And that banging can vibrate a screen insert that is not well secured.

            So I agree with Frederick Leatherman with respect to any of the scenarios being proposed with respect to the screen.

          • J4TMinATL says:

            @ Dave

            It’s held by clips.

          • Dave says:

            The first I heard was that the screen was held in by clips. If that’s true, the only way it would have been dislodged is by being pushed inward from outside. If it had been pushed outward its frame would have been seriously and visibly damaged.

            Photos of the storm door, however, show an intact screen in the upper half of the door with a large hole that has been attributed to the shotgun blast. One of the police officers testified that he put the screen back in place. If so, can we be sure that he replaced it in its original position rather than inside out or upside down? The torn edges of that hole should have been examined and tested for powder residue, traces of the plastic shot cup, DNA, blood, fibers etc. Apparently they were not. Neither did anyone think it important to fire a load of number 4 lead shot through a similar screen for comparison. We don’t really know whether the hole was made by the shotgun blast, the muzzle of the shotgun , Ms McBride’s fist or something else. All that we have is Wafer’s statement .

        • crustyolemothman says:

          Let’s consider one more possibility. If the weapon was fired from the one foot point the witness claimed, then it is possible that the barrel of the shot gun was against the screen and between the shot (pellets and etc.) and the push back from the recoil, it is quite possible that the screen was not only torn by the barrel but also pushed out from it’s normal position… and that would not require him to hold the weapon over his head . The angle of Ms. McBride’s head also could affect the angle the gun needed to be held at to make the wound. There are several possible factors such as I have mentioned that could account for the hole and it’s location that are more realistic than that which the alleged expert provided. Of course, I will admit since the first photo’s were released of the screen I have contended that the barrel of the shot gun was what made the hole and knocked it out of place… I even took a long barrel 12 ga and shot thru a screen at 6 inches and the hole was much larger and it was with a full choke… Feel free to try it and see, and yes I used both a metal screen and a plastic screen and the results were very similar only the metal screen the hole was slightly bigger and more ragged at the edges…

          • Dave says:

            Crusty, I salute you for actually doing this test firing. Did you observe any residue on the screen (unburnt powder, plastic, buffering substance)?

          • crustyolemothman says:

            Dave, Sorry that I neglected to include that observation in my short post. With all the shots that I fired (12 in total) I noticed very little residue on the actual screen material on the metal screen wire, and only a small amount of what appeared to be burns from what I would guess to be burning residue on the plastic screen wire. On the paper located behind the screen at a distance of approx. one foot, I did see quite a bit of what seemed to be extremely small holes that I think were caused by burning residue. I will agree with you if you say this was not a particularly scientifically conducted test. It was done simply to satisfy my own curiosity as to how far the shot could have been from the screen. Unfortunately I had to use a weapon that was not the same as the murderer used as one of that type was not available to me, or I would have used it, and that along with identical (or as close to as possible) cartridges to get a better idea of the actual distance the muzzle was from the victim… again this test was simply to satisfy my own curiosity not as a truly 100% accurate test…

          • crustyolemothman says:

            Dave, My brain is running at half speed this morning so forgive me for failing to add this small tidbit of information from my notes. I did not fire the shotgun using the shoulder stock, but instead held it as closely as possible as I would have if it had only a pistol grip (painfully I might add), I did notice a lot of recoil, and when the extremely close to the screen shots were made the actual recoil and the push back from the shooter against the recoil actually caused the barrel to extend thru the opening caused by the shot going thru the screen. I had no way to measure the amount of penetration and can only state that it looked like about an inch or so… Now with all the information that I have provided you, and a ten dollar bill you can go get a small cup of coffee at your local Starbucks… again, as I stated before, this was simply an unscientific test to satisfy my own curiosity, nothing more nothing less. I actually think that I had made some mention of having done this, but in much less detail quite some time ago, but can’t remember for sure if it was here on this blog or not… They say the memory is the first thing to go as you age, but I can’t remember what they said was the second thing to go….

          • fauxmccoy says:

            i do not recall you mentioning this before, but as a wise man recently told me

            They say the memory is the first thing to go as you age, but I can’t remember what they said was the second thing to go….

            😀 actually, even if it was unscientific, the results are interesting, nonetheless. i just can’t believe you would not invest in a new mossberg with pistol grip for the sake of science 😉

          • crustyolemothman says:


            “i just can’t believe you would not invest in a new mossberg with pistol grip for the sake of science”

            If I did not have good contacts with people with guns in their possession I would not have been able to do even this small amount of testing to satisfy my own curiosity. Several years ago, I realized that I did not own anything worth taking a human life to protect, nor did I desire to go out in the woods and blow bambi away, and to add more insight, I even use barbless hooks most of the time when fishing! Now, while I do know a few people that could stand being removed from the face of this planet, I have decided to allow others to take care of that… Now perhaps you realize why I sometimes flee to the safety of my rock….

          • Dave says:

            Unscientific? I’d say you did pretty damn well and a hell of a lot better than the “experts” who’ve testified, especially considering the resources you had to work with . Thanks and well done!

  6. fauxmccoy says:

    perhaps i am biased, but from watching today’s twitter feed, i find all of the defense witnesses lacking. old doc has to recant his own testimony, cannot even read his own textbook, says wafer to be the best judge of mcbride’s behavior (hey, thanks for putting him on the stand for us) and has to completely agree with pros. that mcbride’s hands were not injured or used as burglary tools.

    new witness up is not credentialed in the things the defense needs from him. good luck finding a new one at this hour.

    i said it yesterday, but this defense reeks of desperation and makes all the more likely that wafer will have to take the stand.

    • crustyolemothman says:

      I’m still waiting for the defense to make their case… While I don’t think TW will testify, I don’t see an acquittal without his testimony,, but then again I don’t see one with his testimony either… The real question that we will see answered Monday afternoon is whether he does or not….

      • fauxmccoy says:

        so far, all they have pu forth is that she was drunk … which was already established by the prosecution.

        • crustyolemothman says:

          And she was shot by maybe a shotgun from pretty close up and either thru a screen or not thru a screen or maybe from a screen that was falling as she was shot, or?

  7. Dave says:

    None of the experts seem to be taking the screen into account.

  8. girlp says:

    So Balash is just giving his opinion he cannot reconstruct the crime scene which seems pretty straight foward IMO.

  9. Dave says:

    Spitz done. Break.

  10. Lunch recess until 1:15 pm EDT

  11. Dave says:

    Spitz said the blood on McBride’s left hand would have clotted within 3.5 hours between the accident and when she ended up on Wafer’s porch.
    by Gina Damron 12:08 PM
    ↑ 0

    • crustyolemothman says:

      But could the witness state truthfully that the would could not have happened before the alleged beating on the door? One more small point that needs to be considered, the witness has stated that she beat on the glass portion of the door, having accidently broken a glass insert on a storm door (TW’s exterior door was a storm door not a screen door by the way, despite not having the glass placed in it for the winter), I will say it is difficult to believe that she could have pounded hard enough on that glass to “bruise and cut” her hand with out breaking the glass…

    • MKX says:

      The act of knocking could have reopened cuts that were the result of an accident or, because he claims they are fresh, were the result of her falling dead onto a concrete porch.

      I watched a guy drop dead as he talked to me. Because he had lost consciousness mid-sentence, he did nothing to break his fall and a hard surface laid open his forehead.

      Logic tells me that someone who has just been hit in the head by 24 shotgun pellets is not going to have any conscious or autonomous motor function on the way down. IOW, the hands, because they are a mass at the end of a long lever, are going to fly back and smack hard whatever they land on.

      And Spitz did claim that her heart could have kept on beating. So he can’t use that “excuse” of the swelling was immediate to invalidate my “conclusion”.

      So, again, all he really has in a hypothetical that is no more probable than any other hypothetical.

      • crustyolemothman says:

        MKX, I agree totally. I wonder if dr. spitz has been consulting physics hotline for help in his testimony or at least in his analysis of the photo’s?

  12. bettykath says:

    One of the sneaky things about alcohol is that if you’re drinking rather than sipping, you can quickly overload your system and not know it, as in you think you’re handling it just fine but you’re really going to be falling down drunk in a short while. I’m inclined to believe that she spent time sleeping due to concussion and alcohol. She was still pretty drunk when she knocked on his door. If there was a pot house only two houses away, she may have thought she was knocking on the door of “friends”.

    • bettykath says:

      So what was he doing? Sleeping and really p.o. that someone was waking him up in the middle of the night. He spent time collecting, his gun rather than his phone.

      I have been awakened very late at night. I live in a fairly rural area. I looked out a window and saw a male stranger. He stood back from the door and in the light of the street lamp. My phone was in the pocket of my robe before I opened the door. I opened the door (but didn’t let go of it in case a quick closing was necessary.) He had a sad story. He and his girlfriend had a fight and she made him get out of the car. He wanted me to give him a ride, 5 miles or so. I called him a cab and made him wait outside.

      • bettykath says:

        I came home from an extended trip to find I had been burgled. It was well after midnight. Cop came out to take my story. A teen boy came out of the cemetery (seems to be a favorite place for teens to get some privacy) and approached the car. He was with some other teens and didn’t like where their behavior was headed so he left. He didn’t really know where he was and had no phone. It was a very chilly night. The kid wanted a ride into town, The cop was totally unsympathetic. Told the kid to walk (dark road, no sidewalks). I pointed out that the kid needed help and went to someone that he thought would help. Cop didn’t say anything. He relented when I told him that I would give the kid a ride as soon as we were through. Cop realized that his car where he had control of his passenger was safer than my car without. I think I was bluffing but I really don’t know.

    • Since she is dead, we can only guess at her intent,

      Her actions are consistent with a theory that she was seeking assistance and inconsistent with a theory that she was attempting to enter the house to steal something.

      • halfentity says:

        Agreed Mr. Leatherman. Also, who crashes, intoxicated, and then thinks “forget this crash, and these injuries I’m going to plan a quick burglary!”

        A burglary? Probability of just about zero.

  13. MKX says:

    Spitz made a claim that is false. He stated that the hands could not have been injured during the accident due to the airbag.

    Airbags are designed to work properly if the driver sits in a position wherein the arms are extended and the driver uses the 9 and 3 hand position. This allows the bag to inflate inside the arms and press into the chest. A lot of drivers sit close and hold the wheel at 11 and 1, thus being subject to arm and hand injuries.

    Vehicle control systems was part of my IP docket and I know it real well.

    Besides. McBride could have got pissed off at what she had just done and pounded on the car in anger after she got out.

    • Dave says:

      There’s a good chance that she had her cell phone in her hand when she crashed the car.

      • MKX says:

        Spitz’s conclusion is totally unfounded.

        Spitz noted the spider cracks in the windshield and mark on McBride’s head to conclude {reasonably} that her head hit the windshield.

        Q:How come the bag did not protect her head?

        A: Offset collision.

        McBride’s car is damaged on the front passenger side in a manner that would cause a violent clockwise rotation such that a passenger would be thrown to their left. This allowed McBride’s head, if she was not well belted to the seat, to slide past the back and hit the windshield.

        If the bag did not protect her head, then how can we reasonably conclude that it protected her left hand in a collision wherein evidence shows her body was thrown left?

        He can not have it both ways.

        The reasonable and logical conclusion is the her hand most certainly could have been injured in the car accident.

        I know he is paid by the defense, but his cheeky arrogant remarks about the other ME show me that he deserves no respect in that he stepped over a line of professional ethics.

        As an aside to all, keep that seat back, use 9 to 5, and that airbag can do its job well.

        My father survived getting hit head on by a pick up doing about 50. The bag cracked his sternum and he had bruises from the belts. And belting is a very important part of making the safety systems work as designed.

    • Two sides to a story says:

      LOL – I have a friend who suffered broken wrists on both hands caused by airbags in an auto accident – he was riding in an airport shuttle van. Airbags can cause all sorts of injuries and even death.

  14. The defense finished the direct examination. After a short bathroom break for jurors, the prosecution begins its cross with a few questions about Dr. Spitz’s fee.

    Although this line of questioning is generally appropriate because it quantifies the expert witness’s financial compensation for his work and testimony, I do not think it helps the prosecution in this case.

    An expert has a right to be paid for his work and Dr. Spitz’s fee is well within the reasonable.range.

    If anything, his fee probably is below the average.

    He did a lot more here than just read and comment on the autopsy report.

    Rule of thumb: Don’t bring up something that does not help your case.

  15. Dave says:

    I think that the defense is making the point that, whatever Ms. McBride’s motives might be, a reasonable person inside that house would find her actions to be alarming.

    • I understand that but I do not think anyone believes Wafer was not frightened.

      Fear drove his response.

      The ultimate legal question, however, is whether he acted reasonably.

      Every person has a duty to exercise reasonable care to avoid injuring others. The front step/door area is accessible to the public. She was not trespassing. She had a right to be where she was.

      No one has a right to shoot and kill someone who knocks on their front door, regardless of how much they might fear that person.

      Shooting and killing someone who has a right to be where they are and doing what they have a right to do is unreasonable.

      If we are going to change that rule to allow fearful occupants to kill visitors who knock on their doors, then we are going to see an end to home deliveries.

      Sorry, but I think Wafer’s defense is ridiculous.

  16. Assuming Dr. Spitz is right about the apparent injuries to her hands and how she injured them (by beating the exterior screen door), she probably was attempting to wake up the occupant so that he would come to the door and she could ask him for assistance.

    The defense theory appears to be that she was attempting to break and enter in order to steal something.

    That explanation does not make any sense because burglars prefer silent entries to noisy ones that would awaken the dead from their eternal sleep.

    With the exception of the damage caused by the shotgun blast, there is no visible damage to the screen door.

    The reasonable inference to draw is that she was creating loud noise to attract attention. She was not creating loud noise to break and enter the residence.

    Therefore, Dr. Spitz’s opinion is consistent with the prosecution’s theory of the case. It actually conflicts with the defense theory.

    • MKX says:

      And it totally defeats the defense opening argument that there were a gang of three bent on a home invasion. Why would a gang of three burglars allow one to get so drunk that they would have a hard time standing up, let alone doing a crime?

      • Dave says:

        I don’t believe that she argued that there were three burglars, rather that Wafer heard (or thought he heard) banging on both doors and interpreted the noise as coming from different individuals.

        • halfentity says:

          She certainly asked detectives if they looked for anyone else, or checked other streets to find someone who had run from the scene. So DEF is keeping with this theme that it may have been more than one person.

  17. Dave says:

    Here’s another source


    BTW if you’re following on the freep site you can turn off comments (Hit the “Gear” icon)

    • crustyolemothman says:

      Why turn off the comments? Lot’s of good opinions expressed especially on the side of the defendant, especially from a person using the last name of Germaninee, he has had some very interesting posts in favor of the defendant and against the victim. I personally enjoy reading “opinions” from both sides about the issue at hand…

      • Dave says:

        Somebody complained about them yesterday so I pointed this out as an option. They can be distracting and confusing if you’re cycling between multiple tabs.

  18. crustyolemothman says:

    Good morning, good to see you here this morning. Looking forward to your comments and expert opinions…

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