Theodore Wafer did not fear death or serious injury when he killed Renisha McBride

June 22, 2014

Sunday, June 22, 2014

Good afternoon:

Theodore Wafer did not fear imminent death or serious injury on November 2, 2013 when he opened his locked front door and shot 19-year-old Renisha McBride in the face through a locked screen door with a 12 gauge shotgun, killing her.

She was alone and unarmed.

She had collided with a parked car about a half mile from his house approximately 3 hours earlier and left the scene of the accident before police arrived. No one knows where she was or what she was doing until she started knocking on Wafer’s door around 4:30 am.

Witnesses who saw her at the scene of the accident, described her as dazed and bleeding from an apparent head injury.

The Detroit Free Press reports:

McBride’s blood alcohol level was 0.218%, and marijuana was detected in her system, according to the toxicology report released today by the Wayne County Medical Examiner’s Office.

Wafer is charged with second degree murder. He claims self-defense. The trial, which is expected to last three weeks, is scheduled to start July 21st.

Wafer is white and McBride is black.

Police officers who investigated the crime scene at Theodore Wafer’s residence neglected to seize the screen door, which is one of the most important items of evidence in the case. Fortunately, they photographed it before leaving the scene and returned later to recover it.

The Voice of Detroit explains how that happened:

Wayne County Prosecutor Kym Worthy had to order the Dearborn Heights police, who first released Wafer without charges, to do a more thorough investigation of the case. They did a second crime scene review Nov. 11, during which they discovered a key piece of evidence, the perforated front door screen, in Wafer’s basement.

The exact condition of the screen door is important because the racist right-wing-hate-machine has been spreading a false story over the internet that McBride was ripping the screen door off its hinges when Wafer opened the inner door and shot her in the face, killing her, to prevent her from breaking into his house.

Here’s the police officer’s report describing the condition of the screen door when he arrived at Wafer’s residence in response to Wafer’s 911 call:

Northern most West side door was locked and no obvious sign of tampering to that door (partially collapsed wooden steps leading up to door).

The front entry door was open (no signs of prying, kicking or tampering) and the front screen door was closed/locked. The front screen was popped out with a tear in the screen (Cpl. Zawacki had photographed that upon arrival).

On the carpet near front door lay a Mossberg Model 500A 12 ga. pistol grip pump shotgun, black in color. I unlocked screen door while ME took photograph of shotgun through screen door. ID for Renisha Marie McBride on her person. TOT DHPD at scene. I popped screen back in place (held in loosely by one screwed in tab at the top and rested in the channel at the bottom of storm door) so Cpl Zawacki could photograph it in place with a tape measure, as shotgun blast could have blown screen out of place.

[Emphasis supplied]

Here’s the photograph of the screen door displaying the rip caused by the shotgun blast.

As everyone can plainly see from the officer’s report and the photograph, the door frame was intact, closed and locked when the officers arrived.

Furthermore, here’s a photograph of the inner door and front porch. A peephole is visible in the expected position and a white globe-style porch light is visible above and to the right of the door.

I believe we can reasonably assume that Wafer would have turned on the light, unless it was on, and looked through the peep hole before he opened the door.

Why did he open the door, if he feared imminent death or serious bodily injury?

Why did he claim the gun went off by accident, if he feared imminent death or serious bodily injury?

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Game within the Game: Despite strong case prosecutor may lose Wafer trial in jury selection

June 20, 2014

Friday, June 20, 2014

Good evening:

Judge Dana Hathaway granted a prosecution motion today in the Theodore Wafer murder case that will permit them to provide the jury with transcripts of statements he made during his 911 call and subsequent interrogation by police regarding shooting and killing 19-year-old Renisha McBride.

Armed with a 12 gauge shotgun, he unlocked, opened his front door, and shot her in the face through the locked screen door in response to her knocking on his door early one morning before sunrise. She was unarmed.

He was charged with second degree murder and is claiming self-defense, even though he initially said he fired the gun accidentally.

Game within the Game:

Wafer has a classic were-you-lying-then-or-are-you-lying-now predicament to credibly explain why he said accident when he meant to say self-defense. Since the prosecutor wants transcripts of what he said, there must be other inconsistencies and contradictions that the prosecutor wants to use to skewer him.

People are better at remembering what they read compared to what they see or hear and their recall improves substantially beyond that, if they simultaneously read what they see and hear.

In other words, ain’t nothing in those statements that will help Mr. Wafer.

The Detroit Free Press reported this afternoon that Judge Hathaway continued the hearing to next Thursday (6/26) regarding the defense motion to introduce bad character evidence about Renisha McBride.

The defense is claiming that her social media, including photos on her cell phone, and school records are admissible to show that she had an aggressive and violent disposition.

She will also take up the defense motion to introduce evidence that the character of the neighborhood was changing and McBride may have been knocking on his door by mistake thinking a marijuana dealer lived there.

I do not believe that any of that evidence is admissible.

I am concerned about one thing the prosecutor said today.

The prosecution asked for a jury pool of 200 people today, saying it only plans to ask prospective jurors a few questions: Do you know about this case? What do you know about it? And can you be fair?

Game within the Game:

Colossal mistake equivalent to going to bed at night leaving your back door wide open with an engraved invitation to burglars to come in and steal everything while you sleep.

The problem of jury nullification by racially prejudiced stealth jurors determined to acquit white defendants who murder unarmed black victims, regardless of the evidence, is painfully real. The answers to those three questions will not help the prosecutor determine whether any potential juror is a stealth juror.

The prosecutor who said that is inviting disaster.

Trial is scheduled to start July 21st.

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.

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Defense seeks permission to slime dead victim in Theodore Wafer case

June 20, 2014

Friday, June 20, 2014

Good morning:

The defense is asking the court for permission to slime homicide victim, Renisha McBride, 19, in Theodore Wafer case. Armed with a 12 gauge shotgun, he unlocked, opened his front door, and shot her in the face through the locked screen door in response to her knocking on his door early one morning before sunrise. She was unarmed.

He was charged with murder and is claiming self-defense.

Trial is scheduled to start July 21st.

Wafer is scheduled to be in court this morning for a hearing on his motion to introduce bad character evidence about Renisha McBride.

The defense is claiming that her social media, including photos on her cell phone, and school records are admissible to show that she had an aggressive and violent disposition.

They also want to introduce evidence that the character of the neighborhood was changing and McBride may have been knocking on his door by mistake thinking a marijuana dealer lived there.

I wrote about the issues that will be addressed at the hearing: <a href="Theodore Wafer has an important pretrial hearing today“>Theodore Wafer has an important pretrial hearing today

Apparently there will not be any television or live stream coverage.

Am not seeing any tweets either at #TheodoreWafer so apparently no reporters are covering it.

Here’s an article in the Detroit News about the hearing this morning.

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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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