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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Fred


Byron Smith will not testify: Closing arguments today

April 28, 2014

Monday, April 28, 2014

Good morning:

The Byron Smith trial resumes this morning. He has decided not to testify. Closing arguments will start soon.

Smith’s soliloquy during the lengthy audio recording of the shootings and their aftermath does not serve him well because he does not appear to be in any distress. Instead, he seems to be narrating an execution with about as much passion as a medical examiner describing an autopsy that he is conducting.

The legal test for self-defense is whether he believed that he was in imminent danger of being killed or suffering great bodily harm and whether his belief was reasonable. That is, whether a reasonable person in the same situation would have believed that he had to use deadly force to prevent being killed or suffering great bodily harm.

Since the incident happened inside his home, the law also permitted him to use deadly force, if reasonably necessary to prevent the intruders from committing a felony in his home. Again, the word reasonable means that his decision to use deadly force must be judged by what a reasonable person would have done in the same situation.

Would a reasonable person set an ambush and record it starring himself as the executioner-narrator?

Even if jurors conclude that his initial disabling shots were reasonably necessary, will they conclude that the kill shots to the head from close range were reasonably necessary to prevent them from killing him or seriously injuring him or committing a felony in his home?

He knew they were not armed and he never called 911.

There are two counts and the jury will be instructed to consider each separately. Therefore, it is possible that the jury might find him not guilty of murdering the boy, but guilty of murdering the girl.

This is our 1,000th post.

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Fred


Byron Smith Murder Trial Discussion 4/25/2014

April 25, 2014

Friday, April 25, 2014

Good morning:

The prosecution rested its case yesterday in the Byron Smith murder trial. He is accused of ambushing two teenagers in his basement around noon and shooting them to death on Thanksgiving Day, 2012.

He claims he shot them in self-defense and to prevent them from committing a felony in his residence. Minnesota law permits a person to use deadly force under those circumstances if reasonably necessary to prevent them from killing him or inflicting grievous bodily harm or committing some other felony in his residence.

The key word is reasonable. Whenever you see that word in a legal setting, you should realize that it is referring to an objective test. That is, whether the totality of the objective facts and circumstances, as opposed to his subjective perception of them, were such that a reasonable person would have decided that it was necessary to use deadly force to prevent being killed, or suffering grievous bodily harm (i.e., serious injury), or to prevent the commission of another felony in his residence.

He must also have actually believed that he was in danger of being killed or seriously injured by the intruders or that they were going to commit a felony in his residence unless he used deadly force to prevent it.

A residential burglary cannot be the felony because it had already been committed. That is, the elements of a residential burglary are: (1) entry into a residence without permission (2) with intent to commit a crime inside, regardless whether that crime is committed. Under these circumstances, the residential burglary was completed when the kids entered Smith’s residence, if they intended to steal something.

That is the test that the jury will be instructed to apply.

If you are not familiar with this case, you can get up to date by reading my article yesterday titled, The Murder Trial of Byron Smith.

Here is a narrative description of portions of the defendant’s audio recording of the shootings. Yes, indeed. He did record what happened in the basement and even provided a running commentary of what he was doing.

The narrative description was provided by Pam Louwagie, a reporter for the Star Tribune. She tweeted as she listened to the recording being played in the courtroom on Wednesday.

Pam Louwagie ‏@pamlouwagie Apr 23
Audio of time before, during and after break-in played for jury in Byron Smith trial.

Pam Louwagie ‏@pamlouwagie Apr 23
“I realize I don’t have an appointment but I would like to see one of the lawyers here,” he says calmly before break-ins, talking to self.

Pam Louwagie ‏@pamlouwagie Apr 23
Haile’s mom puts face in hands during re-playing of audio of shootings.

Pam Louwagie ‏@pamlouwagie Apr 23
After shootings, Smith talks to himself, according to compressed audio played for jury.

Pam Louwagie ‏@pamlouwagie Apr 23
“I’m safe now,” he says. “Cute. I’m sure she thought she was a real pro.”

Pam Louwagie ‏@pamlouwagie Apr 23
“I feel a little bit safer. Not totally safe, I’m still shaking a bit,” he says after the shootings.

Pam Louwagie ‏@pamlouwagie Apr 23
“I left my house at 11:30. They were both dead by 1,” Smith says on audio recording after the shootings.

Pam Louwagie ‏@pamlouwagie Apr 23
“I refuse to live in fear,” Smith is heard saying. Then later, “I felt like I was cleaning up a mess.”

Pam Louwagie ‏@pamlouwagie Apr 23
Many of his utterances are in a whispery voice: “Not even like diarrhea, the worst possible mess and I was stuck in it.”

Pam Louwagie ‏@pamlouwagie Apr 23
“I was doing my civic duty,” he says later.

Pam Louwagie ‏@pamlouwagie Apr 23
“I don’t see them as human. I see them as vermin,” Smith is heard saying.

Pam Louwagie ‏@pamlouwagie Apr 23
“fun, cool, exciting and highly profitable until somebody kills you,” he is heard saying.

Pam Louwagie ‏@pamlouwagie Apr 23
Later, he says: “I’m sorry. So much regret. I try to be a good person. I try to do what I should.”

Pam Louwagie ‏@pamlouwagie Apr 23
And even later: “I’m a sucker. They think I’m there to take advantage of. Is that the reward for being a good person?”

Pam Louwagie ‏@pamlouwagie Apr 23
Jury also saw Smith’s surveillance video of him moving his truck at 11:25 a.m., walking back to his house at 11:45.

Pam Louwagie ‏@pamlouwagie Apr 23
Brady approaches the house at 12:33 p.m., according to surveillance video shown to jury.

Pam Louwagie ‏@pamlouwagie Apr 23
Brady is wearing camouflage, has a hood and is seen looking into windows, trying doors.

Pam Louwagie ‏@pamlouwagie Apr 23
Brady spotted one of the surveillance cameras — hidden in a wood pile — and moved it.

If you were a juror, would you vote guilty or not guilty and why?

Feel free to go off topic if you desire.

I am not certain if the trial will continue today or resume Monday because judges often reserve Fridays to handle other business, including sentencings and hearings in other cases.

We will be following Ms. Louwagie on twitter, which you can also do.

Finally, if you appreciate what we do and have not already made a donation, please do so today.

Thank you,

Fred


The Murder Trial of Byron Smith

April 24, 2014

Thursday, April 24, 2014

Good afternoon:

We are going to take a look at the Byron Smith trial, which is underway in Little Falls, Minnesota. Smith is charged with two counts of premeditated murder for shooting two teenagers to death in the basement of his home on Thanksgiving Day in November 2012. The prosecution claims he ambushed and killed them.

The two teenagers were Nick Brady, 17, and Haile Kifer, 18. They were unarmed.

Smith claims that he feared for his life and was defending himself.

This case is unusual because Smith sat in the basement next to a table with a shotgun rifle and a handgun at the ready and he audio recorded the shootings. He waited until the next day to call a neighbor. The neighbor notified police.

Pam Louwagie of the Minneapolis Star Tribune describes the content of the audio tape played in court on Tuesday.

The Morrison County jury heard glass break, movement, then two shots as Brady groaned “Oh.” Smith responded with another gunshot, saying, “you’re dead.”

Almost immediately after Brady was shot, rustling of the tarp was heard, then a dragging sound, then heavy breathing. Smith had moved Brady’s body to a workshop in his basement to keep blood from staining the basement carpet, he later told authorities.

The audio continued with the sound of a gun reloading, then more deep breaths and the sound of footsteps — first getting fainter and then becoming louder again. A few minutes later, in a quiet, low voice, a female mumbled “Nick.”

Soon, there was another booming gunshot and the sound of Kifer falling down the stairs. Smith quickly said, “Oh, sorry about that.”

“Oh, my god!,” Kifer said, and screamed.

“You’re dying,” Smith responded amid more gunshots. “Bitch.”

After more heavy breathing and a dragging sound, Smith said “bitch” once more. Jurors heard more movement, and the crack of a gun.

/snip/

Testimony on Tuesday afternoon focused on the crime scene investigation, with Bureau of Criminal Apprehension investigators detailing the evidence they gathered at Smith’s home, including photographs of the teens’ bodies: Brady’s lay tangled in a camouflage tarp, Kifer’s lay with her bloody midriff exposed, knees bent, a black hoodie tied tightly around her face.

TOMO News prepared this animation:

Under Minnesota law, a person can use deadly force in self-defense under the following circumstances:

609.065 JUSTIFIABLE TAKING OF LIFE.

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

In other words, the use of deadly force must be reasonably necessary to prevent the commission of a felony in his house.

Since he apparently ambushed them, they were unarmed, and he finished both of them off with kill shots to the head after he had disabled them, there appears to be no doubt that it was not reasonably necessary for him to use deadly force to finish them off.

Crane and I find it very troubling that Hailey Kifer was found “with her bloody midriff exposed, knees bent, a black hoodie tied tightly around her face.”

This suggests a sexual assault post mortem with her hoodie tied to conceal her face so that he would not have to look at her.

If you appreciate what we do and have not already made a donation, please do so today.

Fred


Pistorius: Shooting through a locked door is not shooting in self-defense

April 11, 2014

Friday, April 11, 2013

Good afternoon:

With one exception, shooting through a locked door is not shooting in self-defense. The exception is the battered wife or girlfriend. She does not have to wait for the batterer who has beaten her in the past to break down the door and attack her before she pulls the trigger.

Oscar Pistorius was not a battered wife. According to his version of what happened, a reasonable person in his situation would not have believed that he was in imminent danger of death or serious bodily harm. He had a loaded gun in his hand. As long as the door remained shut, he was not in imminent danger.

It really does not matter who was in that bathroom. If that person were the devil himself, Pistorius had no reason to shoot. He was not in any danger.

Instead of the devil, that person was his girlfriend.

His story makes no sense.

They had an argument. She hid in the toilet room and locked the door to get away from him. He fired through the door, killing her.

Gerrie Nell is a master at breaking down a lie step by step by focusing on each individual detail.

Theodore Wafer faces the same problem. He unlocked his front door, opened it, and fired through a locked screen door hitting Renisha McBride in the face, killing her.

That’s not self-defense.

Not even close.

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Fred


SYG statutes violate the Fourteenth Amendment

July 30, 2013

Tuesday, July 30, 2013

Good afternoon to all of our friends.

In this article, I argue that the SYG statutes violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment because they are being used to justify and, in effect, license and encourage race-based murders of young black males.

The law of Self-defense

A person can use force, which would otherwise be unlawful, in order to prevent an aggressor from injuring them or someone else. However, they cannot use excessive force, which is defined as the use of force that exceeds the amount of force necessary to prevent being injured.

If a person uses excessive force against an aggressor, the aggressor can use force in self-defense, including deadly force, if necessary, but only if they first offer to quit the attack and withdraw or attempt to withdraw from the fight.

When can a person use deadly force in self-defense?

A person can use deadly force in self-defense or defense of another person, if they believe they are in danger of suffering imminent death or grievous bodily injury.

However, unless a person is inside their castle (i.e., their home), they have a duty to retreat or attempt to retreat before using deadly force. There is no duty to retreat before using deadly force, if a person is inside their castle.

Stand-your-ground (SYG) statutes eliminate the duty to retreat or attempt to retreat before using deadly force outside the castle. In effect, a person takes their castle with them when they leave the home.

As I have said before, this is not a new concept. The western states eliminated the duty to retreat from their laws when they became states and joined the union.

Subjective belief versus Objective reality

Notice that the word “reasonable” is missing from the set of rules that I have provided. I intentionally omitted that word to illustrate as dramatically as I can that (1) a person’s perception of a threat and (2) their decision to use force in self-defense, including deadly force must be objectively reasonable.

In other words, would a reasonable person (i.e., the objective prong of the test) in their situation, knowing what they know about the aggressor (i.e., the subjective prong of the test) believe the use of deadly force was necessary to prevent imminent death or grievous bodily harm?

If the answer to that question is “yes,” the use of deadly force is lawful.

If the answer to that question is “no,” the use of deadly force is unlawful.

The effect of Racism

Racism is not reasonable. A belief that all young black males are thugs or thug wannabees looking for an opportunity to become a thug is a racist belief, no matter who believes it.

It should be acknowledged for what it is; namely, an insane delusion.

When a defendant charged with murder or manslaughter and one or more jurors in that defendant’s case believe that the victim, for example a Trayvon Martin or a Jordan Davis, is a thug or thug wannabee looking for an opportunity to become a thug, no one should be surprised when that juror or those jurors vote “not guilty.”

After all, racists are unreasonable people who regard their prejudiced beliefs as reasonable. They are going to vote “not guilty” because they regard their beliefs as reasonable and they will not understand why other people disagree with them. Instead, they are likely to brand as racist everyone who disagrees with them.

Therefore, the problem with the SYG laws is not that they abolish the duty to retreat before using deadly force in self-defense, which has been the law out west since the western states joined the union, the problem is that racists are commandeering juries and imposing their racist beliefs to acquit racist defendants who unreasonably decided that it was necessary to use deadly force to prevent suffering imminent death or grievous bodily harm.

I have referred to Trayvon Martin and Jordan Davis for illustrative purposes in this analysis. In both cases, however, I believe the defendants intentionally killed their victims and knowingly asserted false claims of self-defense hoping to get away with murder.

Summary

1. SYG statutes require more than a subjective belief by the killer that death or grievous bodily harm is imminent and the use of deadly force is necessary to prevent it from happening .

2. The additional requirement that people are ignoring is that the belief must be reasonable. In other words, would a reasonable person in the same situation perceive the same danger and respond the same way.

3. The reasonableness requirement is supposed to prevent a paranoid or otherwise delusional person, such as a racist, from getting away with murder.

4. The problem in Florida and many other parts of the country, particularly in the South, is that too many white people think it’s reasonable to believe that all young black males are dangerous thugs or thug wannabees looking for an opportunity to become thugs.

Conclusion

Statutes abolishing the duty to retreat before resorting to the use of deadly force in self-defense or defense of another person, are being used by racists to legitimize the murders of young black males.

Since these statutes are being used to justify and, in effect, license and encourage race-based murders of young black males, they violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Therefore, the SYG statutes are unconstitutional as applied and must be stricken.

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Bullet trajectories and self-defense in the Michael Dunn case

July 28, 2013

Sunday, July 28, 2013

Good morning my friends:

An interesting issue occurred to me while I was reading through the discovery in the Dunn case. Which of the bullets struck Jordan Davis?

Crime scene investigators used wooden dowels as probes to line up the trajectories of the multiple shots into the Dodge Durango.

Medical examiners use metal rods to do the same thing with bullet wounds.

The use of wooden dowels or metal rods can provide useful information that assists in solving crimes as well as confirm or contradict a witness’s or a suspect’s description of a shooting.

According to the discovery in the Dunn case, he fired four shots into the Durango while seated in the driver’s seat of his vehicle and four more shots into the back end after the driver backed out and sped away.

Jordan Davis was seated in the back seat of the Durango on the passenger side, which was open. His position in the vehicle would have been next to the driver’s side of Dunn’s vehicle and a little behind Dunn. He was shot multiple times.

Questions:

1. Did the bullets that struck him pass through the vehicle?

2. If so, did the shots come from the side or from behind?

3. What were the angles?

4. From what direction and what angle was the fatal shot(s) fired.

I do not believe Dunn has a viable claim of self-defense, but this is crazy racist Florida and, therefore, it is impossible to predict what a jury might conclude.

Nevertheless, Dunn’s claim of self-defense would be weaker, if he fired the fatal shot(s) at a fleeing vehicle.

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