#TheodoreWafer: Closing arguments today

August 6, 2014

Wednesday, August 6, 2014

Goo morning:

Join us in the comments.


#TheodoreWafer: Closing arguments begin Wednesday morning

August 5, 2014

Tuesday, August 5, 2014

Good afternoon:

Both sides have rested and Judge Hathaway is instructing the jury with closing arguments by counsel to follow.

To review Wafer’s testimony this morning, go here.

Many thanks to Oralandar Brand-Williams who was my source for tweets again today and to Dave and his source for tweets, Gina Damron.

Closing arguments will start tomorrow at 9 am.


Should we tolerate shooting through locked doors in self-defense

August 1, 2014

Friday, August 1, 2014

Good morning:

With the Theodore Wafer trial on hold until Monday at 9:00 am, we return our attention to Oscar Pistorius.

You Magazine is reporting that he sold his house for R4.5 million ($420,000) to pay his escalating legal bills. The buyer is Louwtjie Louwrens, a Boksburg mining consultant who plans to rent it out.

Prosecution and defense have submitted their written closing arguments and Judge Thokozile Masipa has set aside Thursday and Friday next week for their oral summations.

We are fortunate to have the opportunity to witness a conjunction of two media intensive criminal cases that present the same issue:

Whether a person can justifiably kill another person in self-defense when that other person is on the other side of a locked door.

In the Pistorius case, the other person was his girlfriend, Reeva Steenkamp. Pistorius claims that he mistook her for an intruder after he was awakened by the sound of the bathroom window opening and the door to the toilet cubicle closing.

In the Wafer case, the other person was Renisha McBride, an intoxicated 19-year-old girl who had crashed her car into a parked car about 1 mile from Wafer’s house and walked away from the scene of the accident dazed and bleeding approximately 3 hours earlier. Wafer was awakened by McBride banging on his door. He unlocked and opened his inner front door and fired his shotgun through his locked outer screen door. Wafer first claimed that the gun fired accidentally and later switched to self-defense.

Neither Pistorius nor Wafer said anything to the person on the other side of the door before shooting.

In the Pistorius case, the prosecution claims Pistorius killed Steenkamp in a rage after she locked herself in the toilet cubicle to get away from him during an argument. Then he lied about it to escape responsibility for killing her.

The law of self-defense is similar in both cases. A person may justifiably use deadly force in self-defense, if they reasonably believe they are in imminent danger of death or serious injury.

The word “reasonable” in both cases refers to whether a reasonable person in the same situation as the shooter would have believed he was in imminent danger of death or serious injury.

In both cases, a locked door separated the victim from the shooter. The situation differs in that the victim in the Pistorius shooting could unlock the door whereas the victim in the Wafer shooting could not.

Both victims were unarmed.

Race is a probable factor in the Wafer case. He is white and she was black. Many people believe, myself included, that he would not have feared imminent death or serious injury, if she had been white.

South Africa does not have jury trials. Judge Thokozile Masipa will decide the case assisted by her two assessors who can overrule her verdict, if they disagree with her conclusion.

The 12-person jury will decide whether Wafer is guilty or not guilty.

Join us in the comments below and let us know whether you believe we should tolerate shooting through locked doors in self-defense.

This is our 1162nd post.

If you appreciate what we do, please make a donation to enable us to keep the lights on.

Thanks,

Fred


#TheodoreWafer: Was McBride seeking help or trying to break and enter

July 31, 2014

Thursday, July 31, 2014

Good evening:

Was Renisha McBride banging on Theodore Wafer’s door at 4:20 am to obtain assistance or was she trying to break in?

I believe she was seeking assistance because she was making a lot of noise.

Noise attracts attention. Burglars prefer silence.

The defense claims she was trying to break in.

Judge Hathaway recessed the trial for the weekend before the defense completed the direct examination of its firearms expert, David Balash. He disagrees with the prosecution’s expert, Sgt. Shawn Kolonich, who testified on Tuesday that the muzzle of the shotgun was 8 feet from McBride’s face when Wafer pulled the trigger. Balash said the distance was only 2 feet.

Defense expert Dr. Werner Spitz, the former Wayne County Medical Examiner who testified ahead of Balash, agreed with him. Dr. Spitz based his opinion on the presence of white flecks of gunpowder in McBride’s hair. He spotted them in photographs taken at the autopsy.

Two feet from the muzzle is easier to spin as more favorable to the defense than the prosecution, but I do not believe the disagreement regarding distance is going to affect the verdict because her position relative to the door when Wafer opened it could have been anywhere within that 6 foot range, regardless of her intent.

Dr. Spitz also testified that he noticed that both of McBride’s hands appeared to be swollen in the autopsy photographs. He said the swelling was likely caused by McBride banging on the screen door.

According to the Detroit Free Press, Dr. Kilak Kesha, the assistant medical examiner, testified that there was significant blood on the teen’s right hand and a trace of blood on her left one but no injuries to her hands.

I agree that the swollen condition of Mcbride’s hands is likely due to her banging on the door. Unlike others, who argue that her swollen hands help the defense because they confirm that she was attempting to break into Wafer’s house, I think the evidence helps the prosecution because it confirms that she was attempting to wake up the occupant so that he would come to the door and she could ask him for assistance.

Burglars with crime in mind prefer silent entries to noisy ones that would awaken the dead from their eternal sleep and bring down the heat.

We will have to wait until Monday morning to find out if Wafer is going to testify.

Have a safe weekend everyone.

This is our 1161st post.

If you appreciate what we do, please make a donation to enable us to keep the lights on.

Thanks,

Fred


#TheodoreWafer trial: definition of burglary and breaking and entering

July 30, 2014

Wednesday, July 30, 2014

Good morning:

I write today to clear up some confusion regarding the legal definitions of burglary and curtilage. I will also comment about the police video that was played in court after the jury was excused for the day.

A residential burglary is defined by statute as a breaking and entering into a dwelling with intent to commit a crime. The breaking-and-entering requirement does not require proof that a defendant damaged property while entering a dwelling. The breaking-and-entering requirement can be satisfied by proof that a defendant entered or remained inside a dwelling without permission.

The breaking requirement refers to breaking the vertical plane that separates the inside from the outside of the dwelling. That plane is established by the exterior walls of the dwelling. The position of a closed door establishes the vertical plane in doorways. Therefore, evidence that a defendant stepped through an open doorway without the owner’s permission would satisfy the breaking-and-entering requirement.

Curtilage is a legal term that refers to the property between the boundaries of the property and the outside the dwelling. This area typically includes the yard and occasionally some outbuildings. Sidewalks, driveways and front porches are structures that define avenues of ingress and egress through the curtilage so that members of the public can reach the front door without trespassing.

Police officers do not need to obtain a search warrant in order to reach the front door. As is the case with any member of the public, police officers can walk from the street to the front door without trespassing so long as they remain on the driveway/sidewalk and porch.

Working in two-person teams, police will use a procedure called a knock-and-talk to initiate a conversation at a particular address. One officer does the talking while the other officer peers inside to see if any evidence of a crime is in plain view. For example, if he sees a plastic baggie containing green vegetable matter that looks like marijuana or if he smells marijuana,

Renisha McBride likely did not violate any law when she approached Wafer’s house from the street and knocked on the door. Officers have testified that, with the exception of the damage caused to the locked screen door by the shotgun blast, there was no damage to the doors or windows of his house. The absence of damage means there is no evidence that she attempted to enter the house. The Castle doctrine does not apply, unless she was attempting to enter the house. Mere knocking and yelling in an effort to get someone to answer the door is insufficient to justify the use of deadly force.

Finally the lawyers and a police witness discovered an inconsistency regarding the amount of money McBride had when Wafer shot snd killed her. One of the officers said she had a $100 bill, whereas a police report says she had $56.

Something ain’t right, so the judge is going to have to decide what to do about the discrepancy. Fortunately, the jury was not present in the courtroom when the discrepancy was discovered. I do not believe the discrepancy warrants a mistrial because it does not make it more or less likely that Wafer was justified in using deadly force.

See you on twitter.

Fred


#TheodoreWafer: How much evidence should the prosecution introduce before resting

July 26, 2014

Friday, July 25, 2014

Good evening:

I write this evening to discuss litigation strategies in criminal trials.

The prosecution goes first and last, since it has the burden of proof.

To survive a halftime defense motion to dismiss one or more charges against the defendant, the prosecution must present substantial evidence to support every element of each charge.

“Substantial evidence” is a legal term. Basically, the judge has to consider all of the evidence introduced by the prosecution during its case in chief and assume, for the purpose of ruling on the motion, that all of it is true, together with all reasonable assumptions that flow from that evidence, and decide whether the evidence would establish every element of each crime charged.

For example, Wafer is charged with second-degree murder. The elements of a second degree murder charge are committing an act with intent to cause the death of another person that results in the death of that person. The prosecution has introduced Wafer’s 911 call and his statements about the shooting. If we assume those statements are true together with all reasonable assumptions that flow from that evidence, we can conclude that the prosecution has introduced “substantial” or legally sufficient evidence to establish every element of the crime of second degree murder, except causation.

The prosecution will fill in that gap next week when the medical examiner testifies that the gunshot wound to her face caused Renisha McBride’s death.

That is the bare bones minimum amount of evidence that the prosecution has to introduce to survive a halftime defense motion to dismiss the murder charge.

The rules of evidence do not preclude the prosecution from introducing additional evidence, so long as it is relevant to an issue in the case. For example, evidence that Wafer was not in imminent danger of being killed or suffering serious bodily injury would be relevant and admissible to prove he did not fire his shotgun in self-defense. Evidence has been introduced that the peep hole in the front door was functioning and both the front door and the screen door were closed and locked until he unlocked and opened the inner door and fired the shotgun through the screen door. Also Wafer’s two contradictory statements about why he fired the shotgun constitute substantial evidence that he did not believe he was in imminent danger of death or serious bodily injury when he pulled the trigger.

Note that a judge is not required to determine witness credibility or weigh evidence to decide a motion challenging the sufficiency of the evidence. The judge assumes the evidence introduced by the non-moving party was true and based on that assumption she will decide whether to grant or deny the motion to dismiss.

If she denies the motion, then the murder charge will go to the jury after both sides rest.

Roderick and Fauxmccoy have been arguing in the comments about whether the prosecution made a bad tactical decision when it introduced evidence that McBride was impaired by alcohol and marijuana when she drove her vehicle into a parked car four hours before the shooting. For example, the prosecution presented the testimony of Renisha’s friend, Amber Jenkins, that Renisha had consumed both drugs and the blood toxicology reports will state how much was in her blood.

I believe the prosecution wisely decided to introduce that evidence to avoid the appearance of withholding it. They knew the defense was going to introduce it, so they seized the opportunity to introduce it themselves. I would have done the same thing.

The prosecution screwed up in the Zimmerman trial by introducing all of Zimmerman’s contradictory self-serving statements without aggressively attacking the credibility of any of them.

Attacks on credibility are usually presented during closing arguments and I am anticipating that the prosecution in the Wafer case will do that at the proper time.

This is our 1155th post.

If you appreciate what we do, please make a donation to enable us to keep the lights on.

Thanks,

Fred


#TheodoreWafer: Game within the Game: how to deal with a defendant’s conflicting statements

July 24, 2014

Thursday, July 24, 2014

Good evening:

Crane and I were called away unexpectedly this morning right after I posted the article and the notice that Judge Hathaway has decided not to allow any live coverage of the remainder of the trial.

I have no idea why she made that decision a day into the trial following two days of jury selection that were not covered. Granted the coverage yesterday was worse than dismal, but I cannot think of a reason why yesterday’s failures could not have been corrected by today.

Now, everybody connected with the trial appears less than competent and the decision to abort coverage invites speculation that the outcome may be rigged.

The tragedy is that the judge, the lawyers and the jury had a chance to show the nation and the world that the criminal justice system works in Detroit even if it doesn’t work in Florida.

We the people have grown cynical and suspicious of our court system where wealth and privilege play by a different set of rules than minorities, the poor, and the mentally ill. They get shafted and sent to prison while the rich and the privileged literally get away with murder.

Judge Hathaway’s conduct and decision to ban livestream coverage does not compare favorably to the way My Lady, Judge Masipa is handling the Oscar Pistorius trial.

Okay, I am off my soapbox, but I want to add my response to Crusty’s comment in which he said,

I just read a twit er that the police officer on the scene looked thru the peep hole and it was not broken. Does that not add another nail to the box that TW’s attorney has put him into? Oh well, just another lie from the defendant, no big deal, right?

My answer follows.

This gives me a chance to do another Game Within the Game.

Great catch Crusty!

Excellent illustration of the well known principle that a criminal defense attorney should verify claims made by the client before asserting them as fact in an opening statement.

Prosecutors have a way of serving up those statements in closing argument reminding the jury of what was said forcing the defense attorney to sit at counsel table and eat the shit sandwich a bite at a time while attempting to appear unruffled. They also challenge the defense attorney to explain to the jury why they said what they said.

I’ve seen many a defense attorney blush, break out into a sweat, lose concentration and deliver an unfocused defense to the indefensible accusation instead of owning the error, apologizing for it, and earnestly ask the jury to not hold the client responsible for the lawyer’s mistake. Then its back to arguing presumption of innocence and stressing the points that support reasonable doubt.

Unfortunately, the court’s decision to ban the livestream means that we and the rest of the viewing public will miss how this plays out unless a reporter tweets about it, which is extremely unlikely since they are not skilled trial lawyers who notice and appreciate events like this that occasionally affect the verdict. Oralandar Brand-Williams reported what Cheryl Carpenter said, but no one else picked up on it and I’m not even sure she realized that this was a new version.

I realized that it was and wrote about it, but no one else did. Unless someone read my blog, they would not know what happened.

BTW, that little statement that Carpenter made is extremely significant because it amounts to an admission that she knows they cannot win an acquittal unless more scary attackers are thrown into the mix to support his claim that he was terrified and believed his life was in danger when he fired the shotgun through the locked screen door.

Unfortunately for Wafer, he did not keep his mouth shut and the two explanations that he provided to the police not only cannot both be true, neither one constitutes a reasonable use of deadly force in self-defense when two locked doors separated him from an unarmed 19-year-old girl knocking on his door at 4:30 am.

Just as desperate Hail-Mary passes into the end zone to snatch victory from the jaws of defeat as time expires in a football game rarely succeed, introducing a third version of events to replace two conflicting earlier versions that, if true, would coincidentally fit the known facts like a hand in a glove only invites arched eyebrows, intense skepticism and the formation of firm opinions that the defendant, with the assistance of his lawyer, is an opportunistic liar who is guilty as sin.

Again, please accept our apology for abandoning you all to twitter. Yes, it had something to do with the recent unpleasantness but nothing bad happened and we are back at work and we will be covering tomorrow’s twitterganza with occasional side remarks explaining what is going on.

Thanks, Fred


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