Trayvon Martin’s ghost did not persuade the jury to convict Theodore Wafer

November 1, 2014

Saturday, November 1, 2014

Good afternoon:

Cheryl Carpenter, the lawyer who represented Ted Wafer, gave an interview recently about the trial in which she attributed the guilty verdict to Trayvon Martin’s ghost in the courtroom.

By that she meant the jurors felt like they had to find Wafer guilty or be subjected to the same intense scrutiny and criticism suffered by the jurors in the Zimmerman case.

I disagree.

The jury convicted Wafer in record time because, instead of calling 911, he grabbed his shotgun, opened his front door and fired his shotgun at point blank range through his screen door into an unarmed Renisha McBride’s face, killing her.

That is not self-defense since a reasonable person in his situation would not have believed he was in imminent danger of death or serious injury. It simply does not matter how fearful he was or claimed to be and no amount of wishing and spinning can change that.

Regardless what Carpenter wants to believe, Wafer had no defense, and that is why the jury rejected his claim of self-defense.

Before going to trial, most criminal defense lawyers will convince themselves they can win the trial, regardless of the evidence. However, no amount of positive thinking can transform a sow’s ear into a silk purse.

She obviously cared about him and there is nothing wrong with that. We should care about what happens to our clients. There’s nothing wrong with tears either. I’ve done that in death penalty cases. Lots of lawyers have done that.

She did her best, but she had a loser case, and it’s time for her to reconnect with reality.

I went through this experience. Every criminal defense lawyer does.

We don’t get to write the scripts and sometimes it’s better to zip it and move on instead of granting an interview and saying things that may come back to haunt us.

Predicting witness credibility based on facial features

August 2, 2014

Saturday, August 2, 2014

Good afternoon:

Have you ever wondered about the validity of first impressions when meeting someone for the first time?

Researchers at York University in the UK conducted a study of the response to certain variable characteristics in human faces. They found that despite the variability of human faces and expressions, they created a model that predicted the first impressions of faces seen for the first time using a combination of facial attributes that explained 58% of the variance in impressions.

The authors describe the significance of their study as follows,

Understanding how first impressions are formed to faces is a topic of major theoretical and practical interest that has been given added importance through the widespread use of images of faces in social media. We create a quantitative model that can predict first impressions of previously unseen ambient images of faces (photographs reflecting the variability encountered in everyday life) from a linear combination of facial attributes, explaining 58% of the variance in raters’ impressions despite the considerable variability of the photographs. Reversing this process, we then demonstrate that face-like images can be generated that yield predictable social trait impressions in naive raters because they capture key aspects of the systematic variation in the relevant physical features of real faces.

The results of this study are important because they permit us to accurately predict most of the time how people will react to meeting a person for the first time based on the shape of the person’s face.

We form our opinion of a stranger’s trustworthiness or dominance without conscious thought almost instantly. The shape of a jaw or set of the eyes can lead to long-lasting opinions about someone. The scientists listed 65 facial attributes.

Although this information may be most useful to advertisers, trial lawyers can use it to predict how juries will react to what they say and whether they are likely to believe their clients.

Read the abstract of the study, which has been published in the Proceedings of the National Academy of Sciences.

The implications of this study may be disquieting to those of us who want to believe that we do not make snap decisions about a stranger’s character based on the shape of the face.

Just for fun:

Based on looking at Theodore Wafer’s face, do you believe he is a trustworthy person?

Have you formed any opinions about him, based on his facial expressions?

If so, what are they?

What about Oscar Pistorius?

George Zimmerman?

Michael Dunn?

This is our 1163rd post.

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Theodore Wafer: opening statements today in porch-shooting case

July 23, 2014

Wednesday, July 23, 2014

Good morning:

Opening statements in the Theodore Wafer porch-shooting trial are scheduled to start today at 9 am EDT.

The precise legal questions to bear in mind as you listen to the lawyers lay out their respective cases in their opening statements are:

(1) whether Wafer acted reasonably when he opened his locked front door and fired his shotgun through his locked screen door killing an unarmed Renisha McBride, and

(2) whether he acted reasonably depends on whether a reasonable person in his situation would have believed himself to be in imminent danger of being killed or suffering serious bodily injury.

Wafer must be presumed innocent. The prosecution has the burden of proving that Wafer did not act reasonably when he shot and killed McBride.

The issues are the same in the Pistorius case.

Although the circumstances vary somewhat, both men fired through locked doors killing their respective victims on the other side.

Did they reasonably believe themselves to be in danger of death or serious bodily injury?

You be the judge.

A news station in Detroit is LiveStreaming this morning here:

Split your screen. Watch the opening statements on one and comment on the other.

This is our 1150th post.

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Tuesday Evening Open Discussion: Comparison of Wafer to Pistorius

July 22, 2014

Tuesday, July 22, 2014

Good evening:

Welcome to the Tuesday Evening Open Discussion where off topic is on topic.

A jury of 12 with two alternates has been selected in the #TheodoreWafer porch-shooting case. Two black females, two black males, one Arab male, two minority females, three white females and four white males. Don’t know anything else about them because jury selection was not televised or live streamed.

I am frustrated by the decision not to broadcast jury selection because that is where most trials are won or lost.

Opening statements will commence at 10 9 am EDT tomorrow. They will be livestreamed as will the rest of the trial.

Many people have compared this case to the Zimmerman case, but I believe it more closely resembles the #OscarPistorius case because the defendants in both cases are claiming self-defense after shooting through locked doors at people whom they say they believed to be an intruder (OP) or potential intruder (TW).

What do you think?

Anything else on your mind?

This is our 1149th post.

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Theodore Wafer porch-shooting trial starts today

July 21, 2014

Monday, July 21, 2014

Good morning:

The Theodore Wafer porch-shooting trial starts this morning with jury selection. Unfortunately, there is no live coverage, so I will be covering the trial on twitter.

Wafer is represented by a father-daughter legal team, Matt and Cheryl Carpenter. He is claiming self-defense, which is problematic because he shot Renisha McBride, 19, through a screen door after opening the locked front door of his house.

She was unarmed and he has compromised his claim of self-defense by admitting that she was asking for help and he accidentally fired his shotgun.

Wayne County Circuit Judge Dana Hathaway is presiding over the trial and she will be conducting the voir dire of prospective jurors.

She has advised the panel that the trial will last approximately 10 days.

Jury selection starts Monday in Detroit porch-shooting trial

July 18, 2014

Friday, July 18, 2014

Good morning:

The Theodore Wafer trial is scheduled to begin Monday morning with jury selection. Unfortunately for both sides, the judge is going to conduct voir dire. The lawyers will be limited to recommending questions for the judge to ask. This is consistent with the practice in federal courts.

Although I tried lots of federal criminal cases before judges I respected, I was never satisfied with the way the way they conducted voir dire.

Can you think of a reason why you can’t be fair to both sides, is a useless question because with rare exceptions everybody believes they can be fair, regardless of their biases or prejudices. In fact, most people are not aware of their biases and prejudices.

In Washington State courts where I also tried many criminal cases, the lawyers are permitted to conduct voir dire. I would start with a general question, such as, “Do you believe you have any biases or prejudices?” Regardless of the response, I would ask them, “Why?”

My purpose in asking that question was to start a discussion that inevitably led to an increased awareness of the role played by biases and prejudices on perception.

For example, a detective’s wife denied having any biases or prejudices until I asked her if she could imagine a situation where she would not believe a police officer’s testimony that conflicted with a civilian witness’s testimony.

She shook her head and said, “No.”

Have you and your husband ever had a disagreement about an event that both of you witnessed, where your memory differed from his and you were sure you were right and he was wrong?

This question elicited laughter followed by an embarrassed and knowing smile.

“I see what you mean,” she said.

This is our 1142nd post.

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Wafer: Court denies defense motion to present McBride’s text messages

June 28, 2014

Saturday, June 28, 2013

Good morning:

Wayne County Circuit Judge Dana Hathaway yesterday denied the defense motion seeking the court’s permission to inform the jury about the content of the text messages on Renisha McBride’s cell phone. She denied the motion because their content does not show that she was an aggressive person.

I agree with her decision.

Judge Hathaway also denied the defense motion to introduce a chart into evidence that contains information about police responses to the Dearborn Heights neighborhood during 2013. The defense wanted to inform the jury about those responses to support its argument that Wafer feared death or serious bodily injury because the neighborhood had become more violent.

Unfortunately for the defense, the reasonable response to increased concern about personal safety would have been to remain behind the locked front door and call 911.

Judge Hathaway is going to permit the defense expert, former medical examiner Dr. Werner Spitz, to present expert opinion evidence regarding the general effect of fear on a decision to fire a weapon.

I respectfully disagree with this decision because the general effect of fear on a decision to shoot a gun is beyond the scope of a forensic pathologist’s expertise. Their area of expertise is determining cause of death, not mental processes.

A psychiatrist would be more qualified to address that issue.

Judge Hathaway is not going to permit the defense expert to express an opinion regarding whether Wafer acted reasonably.

Judge Hathaway has not ruled on the defense motion to introduce the photos stored in McBride’s phone. One photo purportedly shows a handgun of some sort. I said before the hearing, the photos should be excluded because they do not indicate that McBride was an aggressive person with a violent disposition.

As the NRA reminds us multiple times every week, possession of a gun does not mean that the person who possesses the gun has a violent disposition.

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