Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses

August 22, 2014

Friday, August 22, 2014

Good afternoon:

The St. Louis County grand jury should indict Darren Wilson because the results of the independent autopsy and all of the eyewitnesses contradict his reported claim of self-defense and he has asserted his fifth amendment right to remain silent by refusing to fill out an incident report regarding the shooting.

Game within the Game

Darren Wilson has obviously been discussing his legal predicament with an attorney. As a result of that discussion, he decided not to fill out an incident report on the ground that his statement might tend to incriminate him.

That was a smart but risky move.

Smart because he has a fifth amendment right to remain silent and the members of the grand jury cannot assume that his silence is an admission of guilt.

Risky because he is the only witness who would testify that he shot Mike Brown in self-defense. All of the eyewitnesses have described a murder, not a justifiable homicide in self-defense. Therefore, if he does not testify, the grand jury will have little choice except to indict him for murder.

He could go for the brass ring by agreeing to testify before the grand jury, but he would lock himself into a story by doing so and could still be indicted for murder because his story is contradicted by all of the eyewitnesses.

Recall that the grand jury need only find that there is probable cause to believe that he was not in imminent danger of death or serious injury when he shot an unarmed Mike Brown multiple times, including twice in the head, killing him.

Yee olde bum-rush defense ain’t got no legs since none of the eyewitnesses saw Mike Brown rush the officer and his body was found right where he stopped and turned around to face the officer, 35 feet from the police vehicle.

Looks like he has decided to forgo testifying before the grand jury, in essence conceding that he will be indicted.

He’s in a very difficult situation, but I think he made the right choice.

Don’t forget that his lawyer could not be present, if he testified before the grand jury. There’s danger in them thar hills.

Meanwhile, he can derive comfort from the news today that people have contributed more than $225,000 for his defense at his beg-site.

Meanwhile, the racist right-wing-hate-machine marches on engaging in non-stop victim character assassination by lie and constant media repetition of the racist yee olde bum-rush defense in the court of public opinion until everybody forgets that Mike Brown was executed for jaywalking.

Welcome to Zimmerman II.

#OscarPistorius: Barry Roux deserves credit for a job well done

August 9, 2014

Saturday, August 9, 2014

Good morning:

Welcome to another issue of Game within the Game.

Speaking as a former criminal defense attorney who knows his way around the block, I credit Barry Roux for doing a great job defending a difficult hot-head and privileged client used to having the world revolve around him.

He was also dealing with a tough set of facts and Gerrie Nel, a brilliant and experienced prosecutor.

I was very impressed by Roux’s graceful switch from innocent mistake in self-defense, after Nel tore Pistorius apart, to a complicated hybrid of self-defense and anxiety-made-me-do-it defense.

Never seeming to sweat, he managed that switch with aplomb, as though it were the most natural thing to do in the world.

It wasn’t.

On September 11 when Judge Masipa issues her decision, we will find out if he succeeded in making a silk purse out of a sow’s ear.

Win or lose, he distinguished himself as a gentleman and an advocate for the accused. He brought honor to our profession.

For that, I tip my hat and thank him.

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Thank you,


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

July 24, 2014

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

Game within the Game: The real reason behind the Hernandez motion to dismiss

June 16, 2014

Monday, June 16, 2014

Good afternoon:

I watched the NBC livestream coverage of a pretrial motions hearing in the Odin Lloyd murder case. Aaron Hernandez, the former tight end for the New England Patriots is charged with the murder.

Lloyd and Hernandez were friends and Loyd was dating Hernandez’s fiancee’s sister. Hernandez and Lloyd were seen leaving a nightclub together late at night in downtown Boston in July June 2013 after spending several hours there. Accompanied by two of Hernandez’s friends, they left in Hernandez’s car with Hernandez driving.

Lloyd’s body was discovered early the following morning in an industrial park about a half mile from Hernandez’s home in North Attleborough, Massachusetts. He had been shot to death multiple times with a .45 caliber handgun.

While conceding that the evidence presented to the grand jury established probable cause to believe that Hernandez was present at the scene of the murder, the defense argued that the court should dismiss the indictment because the prosecution had persuaded the grand jury to conclude there was probable cause to believe he had committed the murder, as opposed to being an innocent bystander, by introducing evidence of other uncharged misconduct allegedly committed by Hernandez that would not have been admissible at a trial.

Reuters described the defense argument:

“This was, we submit, a deliberate campaign not to enlighten the grand jury about evidence which would help them decide who had in fact committed this crime, but to tarnish Mr. Hernandez, his character, his background in such a way that they would overlook the absence of direct evidence of culpability,” defense attorney James Sultan told a pre-trial hearing in Fall River District Court.

Game within the Game

The defense did not file this motion with any expectation of persuading the judge to dismiss the indictment. They filed it to discover how the prosecution intends to prove Hernandez engineered and committed the murder despite the failure of the police to recover the murder weapon and Hernandez’s apparent lack of a motive to kill Lloyd. Measured by that yardstick, the motion was a resounding success because the prosecutor spent about an hour detailing a web of circumstantial evidence against Hernandez, including an attempt by Hernandez to kill another former friend in Florida under nearly identical circumstances because the friend disrespected him by not picking up the bill at the nightclub where they were partying together. Hernandez drove him to an industrial park, shot him between the eyes and left him for dead. Unfortunately for Hernandez, the friend survived, although Hernandez was never charged. reports:

After taking under advisement defense motions on dismissing that murder charge and suppressing video evidence obtained by the prosecution, Judge Susan Garsh ruled that both sides should expect to start a trial on October 6, according to tweets from WPRI reporter Chantee Lans and Managing Editor of Massachusetts Lawyer Weekly David Frank, who were both covering today’s hearing.

This should be fascinating case to cover with good lawyers on both sides.

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Game Within the Game: Zimmerman lawsuit against NBC was a bright shiny object

June 14, 2014

Saturday, June 14, 2014

Good morning again:

George Zimmerman will be back in the news next week. NBC has filed a motion to dismiss his civil suit for money damages that he alleges were caused by their reporters misrepresenting what he said about Trayvon Martin to the police dispatcher during his recorded non-emergency 911 call. He specifically claims that their report transformed his race neutral call into a racist sounding call causing all of his subsequent miseries.

Game within the Game

I suspect the lawsuit was a bright shiny object intended to divert public attention away from George Zimmerman and place it on NBC and their reporters. It also served a secondary purpose by placing his counter-narrative in the public domain. O’Mara beat that narrative like a drum and the media dutifully reported it as though it were true. I think the strategy was successful because it influenced jurors’s opinions of the evidence.

I believe the lawsuit has served its purpose and NBC will win the motion, given Zimmerman’s profiling behavior, which is evident in his non-emergency call, including his “fucking coons” and “these assholes they always get away” statements.

I recognize that the prosecution claimed Zimmerman said, “fucking punks,” but I have listened to his call and it sounds to me like “fucking coons.” I believe they can hear as well as I do. I question the wisdom and propriety of conceding that he used the word punks instead of coons. I also would not have conceded that race had nothing to do with the case because I believe it had everything to do with the case and the jury acquittal.

The legal test at this stage of the civil case is whether, assuming his evidence is true, together with all reasonable presumptions that flow from it, is it enough to support a verdict in his favor.

I don’t believe it is because by word and deed he created the situation.

The jury’s acquittal does not mean there wasn’t probable cause (i.e., objective facts and circumstances that would lead a reasonable person to conclude that it was more probable than not that he murdered Trayvon Martin).

More importantly, Judge Lester’s finding of probable cause was not based on NBC’s reports. It was evidence-based. That is, he based his decision on Zimmerman’s recorded call, his recorded conflicting stories to police, evidence from the crime scene including the location of Trayvon’s body, which was inconsistent with his statements to police, and some recorded 911 calls and the autopsy report.

Therefore, even if NBC’s reporters got it wrong, and I don’t believe they transformed a race-neutral statement into a racist one, their conduct did not cause him to be charged.

He did not incur legal fees of $1 M because of what NBC did. He incurred those fees because of what he said and did.

He also did not request a pretrial SYG hearing and is potentially liable to Trayvon’s parents for Trayvon’s wrongful death, if they decide to sue him. Recall, for example, the families of the two victims in the OJ Simpson case who successfully sued him for their wrongful deaths despite his acquittal.

As a matter of law, the jury acquittal in the Zimmerman case means that there was insufficient evidence to prove his guilt beyond a reasonable doubt.

That does not mean there was not probable cause to believe he murdered Trayvon Martin and it does not preclude a finding by a preponderance of the evidence that he caused the wrongful death of Trayvon Martin.

How can that be?

Preponderance of the evidence is a significantly lower burden than proof beyond a reasonable doubt. Just as in OJ’s case, therefore, a person may be able to prove something by a preponderance, but not beyond a reasonable doubt.

The NBC misrepresentation, assuming it was a misrepresentation, did not cause any harm and we know that because nothing would have changed if it had never happened. Zimmerman would still have been charged, prosecuted and acquitted.

That is why the suit against NBC should be seen for what it was and dismissed. It was nothing more than a bright shiny object to divert attention and mesmerize.

I will take another look at this before Thursday’s hearing, which I anticipate will be livestreamed.

A few words about me: I rely on my 30-year experience as a felony criminal defense attorney and my three years experience as a law professor to analyze the game within the game explaining the applicable rules of law and procedure and the reasons why the lawyers and judges do what they do.

My goal is to assist readers to see through to the heart of a case despite the confusing turmoil of words and phrases that often conceal it.

To educate is to liberate.

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Oscar Pistorius ordered to undergo psychiatric evaluation

May 14, 2014

Wednesday, May 14, 2014

Good morning:

Welcome to The Game Within The Game in which I explain why lawyers and judges are making certain strategic decisions.

Judge Masipa has granted a prosecution request to order Oscar Pistorius to undergo a comprehensive psychiatric evaluation by a panel of state experts. The evaluation will take place over a 30 day period at a state institution. The trial will be suspended until the evaluation has been completed.

Pistorius will not be held in custody during the 30 day period.

Prosecutor Gerrie Nel requested the evaluation after Dr. Merryll Vorster, a defense psychiatrist, testified that Pistorius suffers from General Anxiety Disorder (GAD), a mental health disorder defined in the DSM V. She described the disorder as a pervasive state of anxiety that began when his legs were amputated below the knees at the age of 11 months, was exacerbated by his mother’s death at age 14, and continues to this day.

She said it manifests as a heightened fear of crime and obsession with personal security and guns with which to protect himself. She also said it likely contributed to his mistaken perception that an intruder was present when he heard a window slide and the toilet door slam, his decision to confront rather than flee from the intruder, and his decision to shoot through the toilet door without attempting to decide who was in the toilet cubicle before he squeezed the trigger.

The prosecution’s theory of the case is that Pistorius invented the story about an intruder to conceal that he lost his temper during an argument with Reeva Steenkamp and intentionally killed her when she threatened to leave him.

Until Dr. Vorster testified, the defense had not argued or presented any evidence to explain why Pistorius might have mistakenly believed that an intruder was in the toilet cubicle. Assuming his version of events that night is true, her testimony potentially bridges the gap between a normal person’s reaction to the sounds he heard and his apparent overreaction. That is why Gerrie Nel asked Judge Masipa to suspend the trial and order the 30 day observation and evaluation.

Judge Masipa granted his request explaining that, because she is not a mental health expert, she is not equipped to determine if Dr. Vorster’s diagnosis is correct and what role his mental state may have played in his perceptions and decisions that night. The evaluation will assist her to make that determination and that is why she ordered it.

I suspect her decision should be filed in the better-to-be-safe-than-sorry category because Gerrie Nel savaged Pistorius on cross examination catching him in several material lies that substantially increase the probability of his guilt, so much so that his GAD may satisfactorily explain why he killed her (i.e., because she was going to leave him) and why he offered such a lame excuse (i.e., yee olde intruder) to cover-up what he did. Consider it a form of insurance.

While the referral for observation may yield information that helps Pistorius, it’s more likely that it will not and in the end justice will appear to have been done, as no stone will have been left unturned leaving no credible argument that Pistorius was the victim of a railroad job.

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