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    Detroit Front Porch Shooting case: Day 6 Mid-Day Wrap-Up

    Detroit Front Porch Shooting case: Day 6 Mid-Day Wrap-Up

    Direct of defense forensics expert supports narrative of McBride forcefully banging on Wafer’s door; State’s cross-examination seems stumbling, weak, and counterproductive to narrative of guilt.

    Welcome, all to the morning of the 6th day of the Michigan front porch shooting case, in which homeowner Theodore Wafer is up on second degree murder charges for the shooting death of an extraordinarily intoxicated and likely concussed Renisha McBride on his front porch ~4:00 AM on November 2, 2013.

    Continued Direct Examination by Defense of Expert Witness Dr. Werner Spitz, Forensic Pathologist

    The morning began with the continuation of the defense’s first witness, forensic pathologist (and former medical examiner of the local county for 16 years) Dr. Werner Spitz.  The heart of this morning’s direct focused on evidence of swelling of McBride’s hands.  Such swelling would run consistent with the defense narrative that McBride did not merely knock politely on Wafer’s door in those early morning hours, but was doing so with sufficient force to actually injure herself to the point of swelling and bleeding.

    The swelling and bleeding could not have come from McBride’s early car crash, Spitz testified, because it would have subsided/clotted respectively in the intervening three and a half hours before her death on Wafer’s porch.  Indeed, these characteristics of swelling and bleeding made it all but certain that the injuries occurred in the minutes immediately preceding her death–e.g., within proximity of Wafer’s home.

    Also important Spitz testified that the evidence suggested McBride’s head was as close as two feet from the shotgun muzzle when she was killed, on the basis of the quantity of shotgun buffer visible in her hair in autopsy photos.  Obviously, the closer the proximity the more consistent the evidence is with the defense narrative of Wafer having been reasonably startled by a suddenly appearing and very close McBride.

    Spitz also undercut the testimony of the State’s ME, Kilak Kesha, on the grounds that Spitz would never have allowed a non-board certified pathologist to conduct an unsupervised autopsy during the 16 years that Spitz was the medical examiner of the local county.

    Cross-Examination of Dr. Spitz by Prosecutors

    I should preface my comments by noting once again that I am not watching the court testimony live, but am “observing” it via the artifice of the live tweeting and blogging of others present in the court room.  This is obviously an imperfect approach relative to actual observation.

    That said, the distinct impression I had of the State’s cross-examination of Spitz was one of clumsiness and weakness.

    They repeatedly questioned him about McBride’s swollen and injured hands, as well they should–this is essential evidence to the defense and must be contested vigorously.  But they did so in ways that were exceedingly unlikely to effectively undercut Spitz’s testimony in a relevant way.  As one example, the State asked Spitz whether the swelling of the hands in any way affected the manner of McBride’s death.  Given that the manner of McBride’s death was one 12 gauge 4-gauge shot to the face, the answer is obviously “no.”  The question is also irrelevant.  The manner of death is not in contest–the events leading up to that death, however, are.  Key to these events is whether it is credible that McBride was beating on the door hard enough to cause reasonable fear in Wafer–and certainly bruised and bloody hands would suggest she was.

    Similarly, the State attempted to counter Spitz’s discounting of their medical examiner for not being board certified by inquiring about Spitz’s own board certifications.  Obviously, this line of questioning can only prove fruitful for the State in the event that there is, in fact, some defect in Spitz’s certifications.  And only a most foolish prosecutor would even launch this line of questioning unless they knew with absolute confidence that such defect did exist and would be exposed.

    At first it seemed as if their effort might work, as Spitz had last been board certified in 1965.  Oh-oh, one might think, there’s trouble for the defense–their expert witness was last board certified almost fifty years ago.

    Except, Spitz explained, once a physician was board certified they need not be certified again so long as they met the continuing medical education requirement each year–and he had met them each and every one of those intervening years.   Making the whole line of questioning utterly pointless.

    Next the State brought out a forensics textbook edited by Spitz, with a few of the chapters written by him personally.  An expert’s professional writings are a perfectly legitimate target for for attacking their credibility, especially if it contains incorrect or extreme views.

    Here, however, the State was unable to point to any such views.  Further, it somehow got into evidence that the textbook weighed a full nine pounds, and that the chapters most relevant to this trial–particularly that on shotgun injury–were personally written by Spitz.  Thus not only did the State fail to diminish the credibility of his expertise, they augmented it.

    Humorously, at one point the state prosecutor went rambling on for a while without every phrasing a question.  During the lengthy pause that followed, Spitz was asked if he understood what was just said. Spitz responded that he certainly did, and did they wish his opinion on it?  This led to an eruption of laughter in the court room, including from the jurors.

    Later the prosecution would focus their cross-examination on McBride’s likely head injury as well as the toxicology report indicating the presence of active marijuana in her system.  These are both factors that might contribute to a person acting irrationally–and an irrationally behaving McBride is entirely consistent with Wafer’s defense narrative of being surprised by a staggering figure emerging from the darkness as he opened his front door to determine the sound of the loud and persistent banging.  Again, an own goal by the State.

    At that point things broke for lunch, although they should be starting right around 1:15 or 1:30.

    Finally, a point that has come up repeatedly in much of the commenting on the trial is the scope of Michigan’s Castle Doctrine and whether it applies to the curtilage of Wafer’s home, and by extension whether his front porch constitutes part of that curtilage–in other words, is only the interior of the walls of his home part of his “Castle” or is the porch also included as part of his home.

    Despite much confident proclaiming by some that the porch was NOT part of Wafer’s home for self-defense purposes, it turns out that the Michigan Supreme Court feels otherwise.  As I posted over at the Detroit Free Press live blog of the trial:

    From the same MI Supreme Court decision, the EXPLICIT inclusion of the porch as part of the home for self-defense purposes: “the jury was, in fact, informed that a person attacked in his or her home has no duty to retreat. It was also instructed that a person’s porch is considered part of his or her home.” People v. Richardson, 803 N.W.2d 302 (MI Supreme Court 2011).

    Join us again this evening for the Day 6 end-of-day wrap-up.

    –-Andrew, @LawSelfDefense

    [NOTE: Images of trial postings from the live blog of the Detroit Free Press have been removed at their request.]


    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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    Gremlin1974 | July 31, 2014 at 2:57 pm

    Andrew, how common is it for a Judge to ask questions for the jury during the presentation of a case? I had thought that the Judge was just asking questions to clarify things that she didn’t understand. I didn’t even realize that jury questions happened until the deliberation phase of a trial.

      It’s not at all common in my experience, but I’m given to understand there’s a great deal of variance on this state-to-state. I’ve seen/heard of cases in other states where the jury practically becomes part of the direct/cross examination process, which seems astonishing to me–but the memory is vague, and I can’t recall the specific state, maybe it was just a nightmare. 🙂

      –Andrew, @LawSelfDefense


         
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        Gremlin1974 in reply to Andrew Branca. | July 31, 2014 at 3:15 pm

        Yea, that seems like it could become a real nightmare for both the prosecution and defense.


           
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          MouseTheLuckyDog in reply to Gremlin1974. | July 31, 2014 at 5:37 pm

          Actually allowing jurors to ask questions should be a positive for prosecutors.

          If a juror has an unanswered question, then going into deliberations that juror, by instructions as to burden of proof, should probably assume an answer to the question that is most favorable to the defendant.

          Let’s use as an ( hypothetical ) example. suppose some of the police testify that they searched the porch, the home, the street and the yard for a weapon that McBride could have had and they found nothing. But a juror notices they didn’t say anything about searching under the porch.

          If the juror asks in court, then the police can say something like “we checked but it is solid brick under there”. But if the juror cannot ask, then burden of proof puts a great deal of pressure on him to assume that the weapon could have fallen under the porch and not been found by police.

          So I think most prosecutors would want jurors to bring up the questions they have.


         
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        sequester in reply to Andrew Branca. | July 31, 2014 at 3:48 pm

        You are probably thinking of Arizona, during the Jodie Arias murder trial.


       
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      MouseTheLuckyDog in reply to Gremlin1974. | July 31, 2014 at 4:28 pm

      I remember a “Quincy Serves as a Juror” episode. He asked a lot of questions, then whent he judge stareted coming down on him, he got other jurors to ask questions for him. Until a juror took it in her head to ask a witness if he was single.

      From what I remember of jury duty in Illinois a juror is not allowed to ask questions.
      I

      What I find surprising is that jurors are only allowed to ask questions during the prosecutions case. Though that may just be that the prosecution decided they didn’t like the questions, so they decided to shut it down.


       
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      MouseTheLuckyDog in reply to Gremlin1974. | July 31, 2014 at 5:43 pm

      Actually, we’ve seen it in the Walker case. Not in the form of the jury asking questions, but the grand jury asking questions, and the prosecutor ( be honest about it ) lying to the grand jury. If he told the truth, Walker might have been no-billed, saving everyone a lot of time and money.


     
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    Richard Aubrey | July 31, 2014 at 3:35 pm

    Where do we stand on somebody banging front, back, and sides of the house? Was it “somebody”, or has it been accepted it was McBride?


     
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    Char Char Binks | July 31, 2014 at 5:17 pm

    Correct me if I’m wrong, but since the Castle Doctrine in MI applies to the porch as well as the dwelling, it seems the law says Wafer had the right, if he was in reasonable fear, to shoot her on the porch, the same as if she’d been inside the house, whether she was trying to break in through the door or not.


       
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      Gremlin1974 in reply to Char Char Binks. | July 31, 2014 at 5:22 pm

      Depends on their version of the “Castle Doctrine”. Some only remove the duty to retreat from your own home. Others also take for granted that since you are on your own property it is assumed you are in reasonable fear of death or great bodily harm. Some only assume you are in fear of death or great bodily harm if the person entered your “castle” in a violent way. Each state is very different. Not sure what MI is like.


     
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    BrokeGopher | July 31, 2014 at 6:24 pm

    Sounds like the state hurt itself by poor impeachment of the experts. They maybe should have acknowledged that everything they said was correct, but doesn’t matter because Wafer admitted it was an accident.


     
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    JackRussellTerrierist | August 1, 2014 at 1:24 am

    Here’s what I think happened. I think Wafer shot McBride out of true fear, but didn’t know if it was actually legal to shoot her since she was on the porch instead of actually inside, so he lied about not knowing the gun was loaded.

    But in either case, I’d walk him. She was right there in his sleepy face at 4:30am acting like a violent maniac. I believe he was in fear.


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