#TheodoreWafer testified today

August 4, 2014

Monday, August 4, 2014

Good evening:

Many thanks to Oralandar Brand-Williams for her fine work tweeting today’s session. When I say “hear” I am referring to her tweets.

Theodore Wafer took the stand today and I did not hear him say that he opened the door and saw not one, not two, but three people on his front step. I guess he only told his attorney that.

I heard him say he was frightened as he stood with his back against the kitchen sink with the windows rattling and the floor vibrating ever more violently, but he believed his gun was unloaded when he opened the front door.

I heard him say it went off accidentally, but as far as he was concerned he shot her in self-defense.

I never heard him say he asked who was knocking on his door and what they wanted.

I did not believe him.

He will be back on the stand facing more cross examination tomorrow at 9 am EDT.

Go here to review today’s session by tweet.


#TheodoreWafer trial continues today with defense likely to rest UPDATE: WAFER TESTIFIED

August 4, 2014

Monday, August 4, 2014

Good morning:

We continue the Wafer trial today with the testimony of David Balash and possibly the testimony of Theodore Wafer.

Unfortunately, we have to follow it on twitter because there is no live coverage.

UPDATE:

Wafer testified today. You can read tweets of his direct and cross in the comments below.

Most of his cross today has involved playing his interview at the police station. The cross will continue tomorrow at 9 am.

Wafer never asked who she was or why she was there before he shot her.


#TheodoreWafer: position of screen when fatal shot fired does not matter

August 3, 2014

Sunday, August 3, 2014

Good morning:

I write today regarding David Balash’s testimony in the Theodore Wafer trial. He is the defense firearms expert.

He testified that the screen was out of its frame when Wafer fired the fatal shot.

Assuming for the sake of argument that he is right, the position of the screen when Wafer fired the shotgun does not matter.

Here is a summary of his testimony by Matthew Zarrell of HLNTV.

The defense firearms expert was also a retired Michigan State Police detective and has testified in hundreds of cases as an expert witness. After examining the evidence, Balash explained that in his opinion Renisha was shot at close range, less than 2 feet away. The battle over the screen door continued as Balash demonstrated for jurors how he believes the gun would had to have been held by Wafer if the screen was intact with the door at the time of the shooting, which would put part of the gun above Wafer’s head. Based on that analysis, Balash explained that the screen must have been out of the frame before the shot was fired, suggesting the force of Renisha’s pounding on the door is the cause.

Although I have previously written that the screen was in the frame when Wafer fired his shotgun, I am no longer certain that is true.

However, even if we assume it was not in the frame, that does not necessarily mean McBride dislodged it in an attempt to break into Wafer’s house.

Here is Zarrell summarizing the testimony of Detective Sergeant Stephen Gurka.

Gurka was the detective in charge of the case and was questioned about investigating the scene and gathering information. Gurka said he found no evidence of attempts to force entry into the home or damage to the front door or its locks when he arrived at the crime scene just over an hour after the shooting. Gurka did not observe any prying, kick marks, or damage to the locks on the front or side doors, which the defense says Renisha was banging on so forcefully that night that Wafer was in fear of his life.

The absence of any other evidence of an attempt to break into Wafer’s home when considered together with McBride’s loud and persistent effort to awaken the occupant of the home constitutes strong circumstantial evidence that she was not attempting to break into his home.

We also have his conduct to consider. He unlocked and opened the front door exposing himself to a possible attack by McBride. He initially told the police that he did not realize he had a chambered round in his shotgun and he fired it accidentally. This version of events is inconsistent with his subsequent claim that he was in fear for his life when he opened the door.

Therefore, his claim of self-defense appears to be based on his realization that his claim of death by accident was unlikely to prevail and that is true regardless of the position of the screen when he fired the fatal shot into Renisha McBride’s face.

This is our 1164th post.

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Thanks,

Fred


#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.


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