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?

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Fred


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:

http://www.wxyz.com/live2

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

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Fred


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?

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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.

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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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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.

To educate is to liberate.

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Thank you,

Fred


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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Thanks,

Fred


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