#TheodoreWafer is going to have to testify during defense case

July 29, 2014

Tuesday, July 29, 2014

Good afternoon:

I apologize for posting this article in the afternoon. I had intended to post it before court convened this morning but I overslept. We celebrated Crane’s birthday yesterday and our usual sleep cycle had to make other arrangements.

For reasons that follow, I believe defense motions to dismiss the charges in the Theodore Wafer trial, after the prosecution rests, will be denied and he will have to testify during the defense case.

The prosecution might conclude its case-in-chief late today, although tomorrow is more likely. I say this because the standard operating procedure for presenting evidence in a murder trial is to close with the medical examiner’s testimony. I see no reason for the prosecution to vary from that practice.

We teach trial lawyers to finish their case with a knockout punch and the best way to do that in a murder trial is to call the medical examiner.

The medical examiner’s opinion regarding cause of death must be based on the evidence obtained during the autopsy. Graphic color photos taken during each step of the autopsy are used to document what the medical examiner did in order to establish the necessary foundation for the opinion regarding cause of death.

Autopsy photographs are gruesome and difficult to look at because of the injuries displayed with their associated trauma. People who have have never seen a dead body are usually traumatized when they look at autopsy photos because a violent death, as opposed to a cleaned-up cinematic version of death presented in film, is graphic, shocking and disturbing. The emotional storm triggered by viewing autopsy photos can be upsetting and difficult to forget.

After the prosecution rests, Judge Hathaway will send the jury to the jury room so that she can hear argument from counsel regarding what I have previously described as a defense “halftime motion” to dismiss the charges. We use the word halftime to describe it because the defense raises it after the prosecution rests and before the defense presents its case.

This motion is a standard practice, regardless of the strength of the prosecution’s case, because a failure to raise it at that time precludes a challenge to the sufficiency of the evidence at a later time. The motion is rarely granted because the prosecution need only have presented some evidence that, if assumed to be true together with all of the reasonable inferences that flow from it, would be enough to support a verdict of guilty. In other words, the motion raises a threshold question by asking the judge to decide if enough evidence has been admitted in support of a particular charge to allow the jury to consider and decide whether the defendant is guilty or not guilty of that charge.

Much of the witness testimony and evidence admitted in the case so far is not very helpful in determining whether Wafer is guilty or not guilty. For example, I do not believe McBride’s intoxication and conduct banging on doors is helpful to deciding Wafer’s guilt or innocence because, if we assume for the sake of argument that it was so loud that everyone in the City of Detroit was awakened by it, Wafer’s use of deadly force would still not be justified.

Why?

Because noise alone cannot justify the use of deadly force. That is, although Wafer may have feared death or serious injury as a startle response to unexpected loud noises that awakened him, he was not actually in any danger of death or serious injury. McBride was unarmed and the police did not find any evidence, such as pry marks, dents or broken glass, that would support a belief that she was attempting to break into Wafer’s house. Therefore, his fear of imminent death or serious injury was unreasonable and his use of deadly force was unlawful.

Moreover, Wafer has given two conflicting statements (accidental shooting versus shooting in self-defense) and increased the number of attackers from one to three. Those changes inspire little confidence in his credibility.

The absence of evidence that anyone attempted to break-in, when considered together with his conflicting versions of events, might reasonably be expected to lead to guilty verdicts, unless he testifies and credibly explains his inconsistent statements.

Therefore, I am expecting Judge Hathaway will deny the defense halftime motion to dismiss and Wafer will testify during the defense case.

If the defense presents any evidence during its case, the prosecution will have an opportunity to rebut it. If Wafer testifies, do not be surprised if the prosecution rebuts what he says with testimony from the police officers with whom he had contact that night.

Again, sorry for posting this article in the afternoon. I had intended to post it this morning before court convened, but I overslept.


#TheodoreWafer trial resumes today at 9 am

July 28, 2014

Monday, July 28, 2014

Good morning:

Today is Crane’s birthday.

Happy birthday, Crane!

The Wafer trial resumes today at 9 am EDT. The prosecution will resume presenting its case-in-chief. I am expecting more testimony from cops.

Our source of information is twitter.com

#TheodoreWafer

See you in the twittersphere.


Do botched executions violate the Eighth Amendment prohibition of cruel and unusual punishment

July 27, 2014

Sunday, July 27, 2014

Good afternoon:

Do botched executions violate the Eighth Amendment prohibition of cruel and unusual punishment?

The State of Arizona botched the execution last Wednesday of Joseph Wood. People who witnessed his execution said he he gasped and snorted over 600 times for almost two hours before he was finally pronounced dead

Arizona used the same two drugs, midazolam and hyrdromorphone, following the same protocol that Ohio used to execute Dennis McGuire in January. Witnesses reported that he snorted, gasped, and struggled for about 25 minutes before he was pronounced dead.

Similar symptoms suggests that administering the two drugs according to the protocol will not not achieve the intended result, unless the intended result is to assure conscious awareness of suffering and dying in a paralyzed state.

Such a policy would constitute torture and violate the Eighth Amendment.

Midazolam is a sedative and hydromorphone is a painkiller. According to anesthesiologists,

the new cocktail of drugs could cause a condition called “air hunger,” in which the inmate would gasp for air but be unable to absorb oxygen.

The Death Penalty Information Center is reporting that Ohio switched to using the two drugs after state officials exhausted the state’s supply of pentobarbital and could not replenish it due to the manufacturer’s decision to ban the use of its product to kill people by conditioning sales to distributors on their agreement not to redistribute or sell the drug to states that use it to execute people.

And lest we forget,

In Oklahoma in April, convicted killer Clayton Lockett writhed in pain and a needle became dislodged during his lethal injection at a state prison. The execution was halted, but Lockett died about 30 minutes later of a heart attack

Before we can reach an evidence-based opinion regarding whether the two-drug cocktail violates the Eighth Amendment, we will have to wait until the autopsy results establishing Mr. Wood’s cause of death are published and reviewed by qualified medical experts.

In other news:

Despite a population that constitutes only 5% of the world population, our jails and prisons hold 25% of the people who are imprisoned in the world.

Finally, some good news. The Sentencing Project reported last week,

A new report by The Sentencing Project examines the potential for substantial prison population reductions. Fewer Prisoners, Less Crime: A Tale of Three States profiles the experiences of three states – New York, New Jersey, and California – that have reduced their prison populations by about 25% while seeing their crime rates generally decline at a faster pace than the national average.

This is our 1156th post.

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

Thanks,

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


#TheodoreWafer: Detectives to testify today about what Wafer told them

July 24, 2014

Thursday, July 24, 2014

Good morning to all:

The prosecution probably will be presenting evidence from the crime scene today and calling detectives to testify about what Wafer told them.

During her opening statement yesterday, Cheryl Carpenter told the jury that Wafer saw “not one, not two, but three people” when he opened his front door with shotgun in hand to find out who was banging on it. She said he had to open the door to see who was there because his peep hole had been smashed and he could not see anything. She also said he did not call 911 before he opened the door because he has no land line and he had misplaced his cell phone, which he did not find until after the shooting.

If his peep hole had been smashed, it must have been smashed before the incident because the exterior screen door was closed, locked and without any damage to the area corresponding to the location of the peep hole in the front door.

Corporal Gonzales testified yesterday that he arrived at Wafer’s residence within two to three minutes after the 911 call. He said Wafer was walking on the sidewalk outside his home when he arrived and he subsequently found the shotgun on the floor inside the house in the foyer just beyond the front door.

The jury will have to decide whether Wafer’s claim that he encountered “not one, not two, but three people” standing on his front porch when he opened the door and pulled the trigger killing McBride makes any sense, since he left the shotgun on the floor in the foyer and walked outside the house unarmed all the way to the sidewalk apparently unconcerned about the other two people who were with McBride when he opened the door.

In deciding whether he lied, the jury will have to consider two other statements that he made about the shooting that we are likely to hear about today.

First, he told detectives that he accidentally pulled the trigger.

Second, he told them that he shot McBride in self-defense because he believed his life was in danger.

McBride was unarmed.

Given his attorney’s preview of Wafer’s latest version of the shooting, I believe we can safely assume that Wafer will testify.

When he takes the stand, he is going to have some splainin’ to do.

And there you have it, so gather round the TV or the live stream and watch the proceedings with us and comment below.

Here’s the link:

http://www.wildabouttrial.com/one_off/theodore-wafer-trial-live-steam/

This is our 1153rd post.

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

Thanks,

Fred


Scientists Re-visit Mount Saint Helens

July 23, 2014

by Crane-Station

A group of 75 scientists led by Alan Levander of Rice University in Houston visited Mt. St. Helens this week, to create seismic waves by controlled explosions, that will enable them to study the mountain with a new method that is akin to an “ultrasound and a CAT scan” of the volcano’s “internal plumbing.”

Mt. St. Helens erupted at 8:32 AM PDT on May 18, 1980 killing 57 people and destroying 250 homes. A second eruption occurred 34 years ago yesterday, on July 22, 1980.

If there were such a thing as reincarnation for a day, May 18, 1980, as a witness to the Mt. St. Helens eruption from the Portland area would certainly be an interesting choice. I happened to be home from college for a few days, where several people gathered on our family deck, to watch and take pictures. It was morning but it was dark. Amateur photographs from that distance were difficult to obtain with any resolution, because of the amount of ash that filled the atmosphere.

Although Forest Service and USGS scientists expected Mt. St Helens to erupt, based on a spike in seismic activity at the end of March that year, prompting authorities to warn residents to evacuate, no one knew exactly when the mountain would blow. Some skeptical area residents refused to leave, including 83-year-old Spirit Lake Lodge owner Harry Randall Truman, who perished on May 18, during the eruption.

The scientists had been incredibly accurate in their predictions at that time, as it turns out, even if no one really took them seriously, and even if roadside attraction souvenir stands were instantly popular. The predicted eruption that actually happened prompted a common query and reply among residents observing from afar, that went something like, “What’s happened?” followed by, “The mountain just blew up.” No one really expected the first eruption; likewise the second eruption took people completely by surprise.

On the television news we saw police cars lining the roads near Mt. St. Helens during the volcanic event, and they all had the hoods of their cars up- officers had to try and cover the automobile engines, to prevent the ash from inflicting permanent damage. People in the area covered their faces with t-shirts. It looked like a black snowstorm. Deer and wildlife ran, and birds tried to find a wire to sit on. For a while, it was hard to conceive of the idea that we would have a world again. The event was very upsetting to nature.

It is good to know that scientists today continue to monitor activity and assess potential risk to human life, by using new methods to look at Mt. St. Helens and other peaks in the volcanically active Cascade Range. Active mountains in the Cascade Range include Mounts: Rainier, Baker, St. Helens, Adams, Hood, Three Sisters, McLoughlin, and Mt. Shasta.

Mt. St. Helens’s pre-historic human residents were a collection of tribes. Each had a unique language and name for the mountain, as well a legend known as “Keeper of the Fire.” Although there are many versions of many legends, a prominent one that relates to Mt. St. Helens is the story of the Bridge of the Gods, and the creation of the Columbia Gorge.

Author Chuck Williams writes:

In most versions, Mount Hood and Mount Adams, sons of the Great Spirit, fought over a beautiful female mountain. The brothers shook the earth, blocked the sunlight, threw fire at each other, burned the forests, drove off the animals and covered the plants needed by people with ash. The fight cracked the Cascade Range, forming a canyon and a tunnel which emptied the huge lake east of the mountains. The Great Spirit returned and was furious. He left the Bridge of the Gods, the stone arch over the Columbia River, as a monument to peace and placed an elderly, weathered female mountain, Loo-wit, at the bridge as a peacemaker- and as a reminder to the brothers of how transient youthful beauty is. Loo-wit was the keeper of the fire, which had been stolen from atop Wy-east (Mount Hood) by Coyote the Trickster.

Related:

Mount St. Helens eruption: Rare aerial photos never seen before, shot during 1980 eruption

Scientists Plan Explosions Under Mount St. Helens

Electricity And Seismic Waves Give New View Of Mount Rainier’s Volcanic Plumbing

Bibliographic reference for Keeper of the Fire legend:
Mount St. Helens A Changing Landscape
text by Chuck Williams
Introduction by Ray Atkeson
1890: Graphic Arts center Publishing Company PO Box 10306 Portland, Oregon 97210 ISBN 0-912856-63-7
page 19.

Vimeo- Remembering Harry Truman


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