Racists should be banned from jury service

June 13, 2014

Friday, June 13, 2014

Good afternoon:

Xena posted a comment to my post about Theodore Wafer advising that his hearing has been continued to next Friday, June 20th.

She also said,

Did you read the part where the defense wants to argue that Renisha mistook Wafer’s house for a drug dealer’s house? The defense’s argument is that someone who lived close to Renisha was arrested for marijuana after Renisha was killed.

This presents an interesting new wrinkle to putting a victim on trial for a homicide, so let’s break it down, take a look and estimate the probability that it will be successful.

Let’s begin by assuming for the sake of argument that,

(1) someone who lived near Wafer’s house sold marijuana,

(2) McBride had previously purchased marijuana from that person at that address, and

(3) she mistakenly believed she was knocking on that person’s front door when she knocked on Wafer’s front door.

I don’t believe that set of assumed facts, which Wafer did not know at the time of the shooting, helps his claim of self-defense because, regardless of her intent, he had to be in fear of suffering imminent death or grievous bodily harm and his belief had to be reasonable. That is, a reasonable person in the same situation also would have believed that he was in imminent danger of suffering death or grievous bodily injury.

The racist right wing hate machine skips over the word reasonable because its members devoutly believe that their opinions are reasonable.

They fail to understand that the word reasonable in a legal context means evidence-based, as opposed to opinion-based. Racial prejudice is by definition opinion-based, rather than evidence-based. Therefore, it is unreasonable and no verdict should ever be based on it.

Prospective jurors who are unaware of their racial prejudice, or who deny being prejudiced when they know damn well they are prejudiced, should never sit on a jury when a person of color is the defendant or a victim allegedly injured or killed by a white defendant.

Even if McBride had a gun and intended to kill Wafer, and there is no evidence that she did, nothing about the situation he was in would likely have caused a reasonable person to believe he was in imminent danger behind the two locked doors. Seems to me that opening the door demonstrates unequivocally that he did not fear death or grievous bodily injury.

That act is an evidence-based expression of his state of mind when he opened the door and it defeats his claim of self-defense.

The castle doctrine does not help Wafer because she did not attempt to break in or enter his house. She was unarmed and outside his house knocking on the door. He was inside his house in a safe location on the other side of two locked doors while armed with a loaded shotgun and he had a cell phone with which to call 911.

He cannot create a necessity to act in self-defense by opening the door.

We might have a different situation if he were living next to a drug house with all sorts of people coming and going at all hours of the day and night occasionally mistaking his house for the drug house, but even then he would have to have an objectively reasonable basis to believe his life was in danger, as opposed to being pissed off that someone was knocking on his door disturbing his sleep in the middle of the night.

As a matter of law, therefore, I believe the answer is easy. The evidence that the defense seeks to introduce is irrelevant and inadmissible.

Just as O’Mara and West did in the Zimmerman trial, the defense is attacking the victim’s character in an effort to say she deserved to die.

However, as much as right-wing racists want to believe that they have a right to kill any person who is young, black, drunk and/or stoned (e.g., George Zimmerman), especially if that person is listening to loud music and is disrespectful (e.g., Michael Dunn), the law recognizes no such right or privilege.

Finally, do not forget that Wafer did not initially claim self-defense. He told the police that his gun went off by accident.

Look for the defense to do everything it can to keep him off the stand at trial, so he does not have to explain to the jury which story was a lie and why he lied instead of telling the truth.

Trial lawyers love it when they get to ask, “Were you lying then or are you lying now?”

For all of these reasons, I believe the evidence the defense wants to introduce is irrelevant and inadmissible. I also believe a jury will convict him of murder, provided the prosecution identifies and eliminates all potential stealth jurors who would willingly substitute their racially prejudiced opinions about black teenagers for actual evidence.

We have seen jurors do that in two Florida trials.

The question is whether the prosecution will permit that to happen in Detroit.

Wafer’s trial is scheduled to start in five weeks, probably not long after Judge Thokozile announces her decision in the Oscar Pistorius case.

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Theodore Wafer has an important pretrial hearing today UPDATED BELOW

June 13, 2014

Friday, June 13, 2014

Good morning:

Theodore Wafer is back in the news today. He will be in court for an important pretrial hearing regarding the admissibility of evidence that his unarmed 19-year-old victim, Renisha McBride, was a pot smoker with a violent disposition.

He is accused of shooting her in the face through a screen door with a shotgun after opening the locked inner door in response to her knocking and asking for assistance after wrecking her car.

He also wants to introduce evidence that crime was increasing in his neighborhood.

He is claiming self-defense.

The rule is that evidence of prior acts of misconduct by the victim in a homicide case are not admissible unless the defendant knew about them and they are probative (i.e., more likely so than not so) of the victim’s intent. Since he did not know her, the evidence is not admissible.

Defense counsel, who are a father and daughter team, are attempting to get around the rule by arguing that the evidence, much of which consists of photos and text messages recovered from her cell phone, is admissible to show that she had a violent disposition. They base their argument on a different rule that allows a person claiming self-defense to introduce such evidence, whether or not they know about it.

The problem they face and the reason they are likely to lose this argument is that pot smoking and talking smack with friends do not make it more likely than not that McBride had a violent disposition. She was alone, unarmed, injured from the crash and asking for help.

Defense counsel are making the same argument that Mark O’Mara and Don West made in the Zimmerman case; namely, that smoking pot makes people violent. There is no credible scientific evidence to support that argument, so the trial judge should deny the defense motion.

Evidence regarding increasing crime rates in the neighborhood may be admissible to show Wafer’s state of mind, assuming he was concerned about them, but that evidence does not reasonably justify opening a locked inner door and firing a shotgun through a screen door at an unarmed teenage girl knocking on the door and asking for help.

Reasonable people do not execute unarmed teenage girls knocking on their front door in the middle of the night asking for help. If they are concerned about their own safety, they remain behind their locked doors and call 911.

Wafer did not call 911 until after he shot and killed McBride and he did not tell the police that he shot McBride in self-defense. He told them that he accidentally pulled the trigger. He changed his story and that is why he is likely to be convicted of murder.

The outcome of this case, as was true of the Zimmerman and Dunn trials in Florida, will likely depend on how successful the prosecutor is at identifying racists during jury selection and excluding them from the jury. It only takes one racist juror to hang the jury by ignoring the evidence and the jury instructions.

Will white fear and hatred of people with dark skin dictate the outcome of this case?

Racists should be excused for cause in all trials in which the defendant is a person of color because racist beliefs are irrational. They are by definition not evidence-based and, therefore, cannot be considered when deliberating on a verdict.

Two Florida juries flunked the test. Let’s see what happens in Detroit.

UPDATE: According to the Detroit Free Press, the hearing today was cancelled. I imagine that it will be rescheduled, but the date and time has not yet been announced.

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McBride case: Judge refuses defense motion to recuse herself

April 5, 2014

Saturday, April 5, 2014

Good afternoon:

The Detroit Press and Guide is reporting this morning:

The judge in the case of a Dearborn Heights man accused of killing a woman on his front porch won’t step away.

Wayne County Circuit Judge Qiana Lillard denied a motion by Theodore Wafer’s attorneys to recuse herself from the case Friday morning. They claim Lillard’s ties to the Wayne County Prosecutor’s Office — she worked in the office before being appointed to the bench last year — create an “appearance of bias.”

Circuit Judge Timothy Kenny, the head of the court’s criminal division, will hear an appeal on April 25.

Wafer’s attorneys are not likely to get a change of venue on this ground unless she was employed by the prosecutor’s office when Wafer shot and killed McBride. That would create a conflict of interest that would require the judge to recuse herself.

Most judges are former prosecutors, so merely having worked for a prosecutor’s office is not going to be sufficient grounds to require a judge to step down.

The motion for a change of venue will likely be denied without prejudice, which means that it can be raised again during jury selection if most of the venire are familiar with the case and have formed opinions about Wafer’s guilt or innocence.

The motion to permit the defense to attack McBride’s character will likely be denied pursuant to Rule 404, although I will give defense counsel credit for phrasing it creatively to get it within the exception permitted by the rule.

My prediction: Good effort. Motion Denied.


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Important pretrial hearing today in Renisha McBride case

April 4, 2014

Friday, April 4, 2016

Good morning:

An important pretrial hearing is taking place today in the Renisha McBride case.

Mlive is reporting:

Friday is the last scheduled pretrial conference before Wafer’s June 2 trial. There are 10 motions to be decided upon, according to Bloomfield Hills-based attorney Cheryl Carpenter, who is defending Wafer, 55.

Carpenter is looking to disqualify Lillard, although she wouldn’t say why Thursday; negate the bind-over from the District Court; move the trial to another county due to the attention on the case; reveal cell phone photos of McBride with cash, marijuana and a gun; introduce McBride’s criminal record, including a retail fraud conviction; and present McBride’s student file from her alternative high school in Southfield.

At the objection of the prosecution, Carpenter wants to present evidence about a 2011 crash McBride was involved in. The car she was in slammed into a home, and the occupants, whom witnesses told police appeared intoxicated, fled the scene, Carpenter said. Carpenter also wants to present crime data from Wafer’s neighborhood since January and exclude second-hand witness testimony claiming McBride was looking for help after her crash.

The evidence is not admissible under Rule 404 and should be excluded.


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Racism is an insane delusion about people of color

February 16, 2014

Sunday, February 16, 2014

Good morning:

Although I am pleased with the three guilty verdicts of attempted second degree murder and the guilty verdict for shooting into a car that will keep Michael Dunn locked up for the rest of his life, I am disappointed with the jury’s failure to reach a verdict on count 1, which charged him with first degree murder for the death of Jordan Davis.

Ironically, without the presence of the three boys in the Durango and the guilty verdicts to diminish our disappointment, we would be in a much different emotional state today.

I support Angela Corey’s decision to retry him, but she is going to have to change her strategy to obtain a different result.

I am going to focus on Jordan Davis today, which is his birthday, and explain what she must do to obtain justice for Jordan.

The time has come to stop white-washing racially motivated crimes. By that, I mean ignoring the elephant in the living room, racism.

Although motive is not an element of most crimes and therefore irrelevant, it may be relevant (i.e., probative) to prove intent.

The importance of introducing evidence of racial motivation comes into sharp focus when the victim, like Jordan, was black unarmed, and the defendant, like Dunn, is white and claims he saw a weapon or a portion of a weapon and killed the victim in self-defense.

Such a killing would be justifiable homicide in self-defense, if the defendant reasonably believed himself to be in imminent danger of death or serious bodily injury.

As our United States Supreme Court has often said, reasonableness depends on the “totality of the circumstances.”

We know from Dunn’s letters that he regarded the four boys as dangerous thugs and gangsters listening to “thug” music.

That is a racist assumption unsupported by any evidence.

Sometimes people see what they expect to see or want to see and that certainly applies to racists who are substantially more likely to assume that an unarmed black male teenager is an armed thug than an unprejudiced person.

Like it or not, that mindset is part of the totality of the circumstances that a jury should have a right to consider in deciding whether a defendant like Dunn gave a truthful account of his actions and acted reasonably.

Our legal system needs to acknowledge the existence of racism and call it what it is, an insane delusion.

A claim of self-defense must be evaluated according to whether a reasonable person in the same situation as the defendant would have believed himself to be in imminent danger of death or serious bodily injury such that the use of deadly force in self-defense was reasonably necessary.

There is no such thing as a reasonable insane delusion and we do justice to no one by excusing a violent act committed by a person pursuant to an insane delusion and ignoring the consequences of that act.

I do not mean to suggest or imply that Dunn actually saw a weapon or believed that he did. I believe he lied about that to avoid arrest and prosecution.

Evidence of a racial motivation to kill makes comprehensible the otherwise incomprehensible crime.

For example, let’s assume that a defendant in a murder case, who shot and killed an unarmed teenage girl whom he did not know, testifies and says,

“Why would I have killed her unless I believed she had a gun and was going to rob and kill me?”

A racist is more likely to believe that she had a gun or lie about it than a person who is not racist.

White washing racist defendants by concealing or withholding evidence of their racial motivation from a jury will produce injustice, not justice.

It is not a coincidence that my hypothetical resembles the Renisha McBride case in Detroit, which is coming up for trial in June.

I do not know if Theodore Wafer is a racist, but I certainly would be looking for such evidence with the intent of introducing it at trial, if I were the prosecutor.


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Theodore Wafer ordered to stand trial for killing Renisha McBride

December 19, 2013

Thursday, December 19, 2013

Good evening:

MSNBC is reporting today that a Michigan judge ordered Theodore Wafer, 54, to stand trial for murder in the second degree and manslaughter for shooting Renisha McBride, 19, to death in the face with a shotgun on November 2nd.

He is white and she was black.

Judge David Turfe said Thursday that based on the evidence presented, Wafer made a poor decision in shooting McBride, and he failed to pursue other “reasonable opportunities to defend himself,” including calling the police for help.

“He chose to shoot rather than not answer the door,” the judge said.

McBride had been drinking heavily earlier in the evening and crashed her vehicle into a parked car approximately a half-mile from Wafer’s house three hours before she knocked on Wafer’s door.

The New York Daily News is reporting:

A witness said McBride was bleeding and holding her head, but that she walked away from the scene before an ambulance arrived. It’s still unclear, at least publicly, what she did between the time of the car wreck and her arrival on Wafer’s porch.

An autopsy found McBride had a blood-alcohol level of about 0.22, more than twice the legal limit for driving. She also had been smoking marijuana.
Her best friend, Amber Jenkins, 18, said they were drinking vodka and playing cards seven to eight hours before the shooting was reported to 911.

Wafer opened the inner door and shot her through the screen door in the face from a distance of about two feet.

Assistant Wayne County Medical Examiner Kilak Kesha testified that her injuries were so severe that he “couldn’t even reconstruct the brain.”

The result of this preliminary hearing is not surprising because she was unarmed and Wafer had admitted to police that he shot her after he opened the door in response to her knocking on it.

The purpose of the hearing was for the judge to determine whether probable cause existed to believe Wafer committed the crimes charged. There was zero chance that the judge would have dismissed the charges on that set of facts.

Defense counsel did what defense counsel all over the country do at a preliminary hearing. They used it to obtain discovery about the prosecution’s case and cross examine their witnesses under oath locking them into their stories.

Defendant did not testify and defense counsel did not put on any witnesses at the preliminary hearing. This is standard operating procedure, so no surprises there. Nothing good can come from locking your client into his story and opening him up to cross examination by a great white shark in a dress before you know if the prosecution has the ace of trumps.

That would be malpractice.

Wafer and his defense team appear to have a choice-of-defense dilemma. He initially told police that he accidentally fired his shotgun. However, his lawyers argued that the judge should dismiss the charges because the evidence introduced at the hearing was consistent with self-defense.

I did not get that impression and neither did the judge. Unless a person is predisposed to believe that an unarmed black female teenager knocking on their door at 4:30 am is a threat and should be shot in the face, and I am talking about white racists, I do not believe the evidence supports a claim of self-defense.

The prosecutor didn’t mess around; She went for the jugular.

Wayne County assistant prosecutor Danielle Hagaman-Clark said it’s “ridiculous” to believe that Wafer was deeply afraid but still decided to open the door and fire instead of first calling the police.

“He shoved that shotgun in her face and pulled the trigger,” Hagaman-Clark said.

And that was the end of that.


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Theodore Wafer charged with murder and manslaughter for killing Renisha McBride

November 16, 2013

Saturday, November 16, 2013

Good morning:

CBS News reported yesterday,

According to a press release from the prosecutor’s office, McBride was driving a white Ford sedan when she hit a parked car in Dearborn Heights at about 12:57 a.m. on Nov. 2.

“McBride was observed to have blood on her body and appeared to be disoriented when she left the scene on foot,” the statement reads.

At 4:42 a.m. police received a 911 call reporting a fatal shooting at Wafer’s home. Once on the scene, police “observed the lifeless body of Ms. McBride in the front porch area of the defendant’s house.”

The statement continues: “McBride was found with a large gunshot wound to her face. It is alleged that Ms. McBride was unarmed when she was shot by the defendant as she knocked on the front screen door of the house. There were no signs of forced entry at the location.”

Theodore Wafer (54) has been charged with second degree murder and manslaughter. He shot her in the face through a locked screen door.

According to the autopsy report, she was not shot at close range. This is a materially significant fact to the outcome of this case because, together with the locked door, it suggests that the shooter was not in imminent danger of suffering death or serious bodily injury when he fired the shotgun and he cannot rely on the castle doctrine because she was outside the home and not attempting to break-in.

The high alcohol content in her blood and the possibility that she may have smoked marijuana sometime in the past are irrelevant to a claim of self-defense, unless the shooter knew she was impaired when he fired his shotgun.

A big unanswered question in this case is where was Renisha McBride and what was she doing during the 4-hour period between the accident and the shooting. The two locations are about a half-mile apart.

However, like the high blood alcohol content (0.218), the answer is irrelevant to a claim of self-defense, if the shooter did not know about it.

Apparently, the shooter did not claim self-defense. Instead, he told police that the shooting was an accident.

Changing his defense to self-defense would be problematic because it would indicate dishonesty.

No doubt the racist right wing hate machine will attempt to make a big deal out of the irrelevant information and a hero out of the shooter. That strategy worked in Florida.

Whether it will work in Michigan remains to be seen.

Theodore McBride is in custody. Bail has been set at $250,000.

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