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    Homeowner Takes the Stand in Detroit Front Porch Murder Trial

    Homeowner Takes the Stand in Detroit Front Porch Murder Trial

    Theodore Wafer testifies: “The floor was vibrating from the banging,” on his front and side doors. “I shot to defend myself, it was them or me.”

    Court room testimony took a dramatic turn today in the murder trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride when Wafer took the stand to testify in his own behalf.

    Direct questioning was conduced by lead defense counsel Cheryl Carpenter.  (As usual for this trial we had no live video feed, so our observations are second hand and based on the outstanding live blogging of the trial by Detroit Free Press reporter Gina Damron and pictures by Detroit Free Press photographer Mandy Wright.)

    The defense did an excellent job of hitting all the key issues necessary for a robust narrative of innocence.

    Wafer describes his growing fear at hearing “indescribeably loud banging” [sic] on his front and side doors, banging that went on and grew more severe, to the extent that it was vibrating the floor of his home.

    He  described how one of his neighbors across the street had just a few months prior to the events on his porch had been forced to hold off three violent attackers with his handgun.  He recounted how his neighborhood had grown increasingly dangerous, and that he discovered various drug paraphernalia, including syringes, on his property on a monthly basis.  Just recently he’d had his car vandalized outside his home.

    In the fact of this growing lawlessness he’d acquired a pistol-gripped shotgun specifically for home defense, noting that he wasn’t getting any younger and that he could not afford an alarm system.

    He describes how he had been in a neighborhood pub earlier that evening, consuming three beers over a three hour period between about 4:00 and 7:00PM, approximately 9 to 12 hours prior to his shooting of McBride–obviously, any alcohol in his system would have been metabolized well before he’d even gone to sleep that night.

    On the issue of the mysterious and unaccounted for footprint on his air conditioner, Wafer testified that he had never stepped on his air conditioner, not wanting to damage his own property, meaning that the footprint must have some other, perhaps nefarious, source.

    Critically, Wafer testified that he held his shotgun in his left hand as he opened his wooden front door with his right. As he did so he observed that his screen door had been damaged and the screen had been dislodged from the frame.

    No sooner had the door fully opened than a figure lunged toward him from the side of the door, outside his line of sight, and no more than 2 feet away.  His response, he said, was to fire instinctively.

    Asked by his defense lawyer why he pulled the trigger, Wafer said it was in self-defense, and that “it was either them or me.”

    This narrative helps to align what would otherwise be two contrary stories of either deliberate self-defense or an negligently accidental shooting.  In essence, Wafer is describing an automative, reflexive, unplanned firing of the shotgun, rather than a literal unintended accidental firing.

    The pace of the direct examination of Wafer also appeared well done, with smaller, more ancillary matters like the footstep on the air conditioner and the increasing crime in the neighborhood being dealt with early on, and the dramatic stress-filled fight-or-flight events being delivered to the jury last.

    The timing of this delivery may be particularly important and effective given the nature of the state’s cross-examination this afternoon.  While cross has only begun, the state began by showing some videos of Wafer being interviewed at the Dearborn Heights police station.  Other than his use of the term “accident,” however, his statements on the video appear entirely consistent with his testimony on the witness stand and the narrative of innocence being presented by the defense.

    The state’s decision to open with the video recording may have made more sense if begun earlier in the day such that they’d have a change to end strong before the jury was dismissed.  Doing so in a manner that this relatively benign evidence was the last heard by the jury, however, seemed a poor choice.

    As a result, the jury having been dismissed for the day will be left for the evening with the unimpeached narrative running through their head of a terrified homeowner, awoken from sleep by an apparent attack on his home in a neighborhood growing increasingly violent, and who acted in what he believed was necessary self-defense.

    It goes without saying that Wafer’s actions were far from tactically prudent–I, for one, would never have opened the door–but the law does not require perfect decision making or tactical execution in the heat of a fight for one’s life.  I am among those who are troubled by the notion that someone subjectively fearing for their life would open a secured door and thus expose themselves to precisely the threat they claim to fear–and it remains a perfectly legitimate avenue of attack upon Wafer’s self-defense claim.

    It seems increasingly doubtful, however, that that line of attack alone will be sufficient to convince a the jury unanimously that the state has disproven Wafer’s claim of self-defense beyond a reasonable doubt, which is the legal burden the state must overcome to gain a conviction.

    Keep in mind that in order to accomplish this the state must disprove, beyond a reasonable doubt, at least ONE of the five elements of self-defense–innocence, imminence, proportionality, avoidance, or reasonableness.  Avoidance–the issue of retreat–is off the table because the shooting took place within the context of Wafer’s home, thus gaining him Castle Doctrine protection.

    As to the other elements of self-defense, I see no really robust attack by the state in its presentation of the case. Much of the evidence they presented was targeted at their burden of proving the elements of the crime beyond a reasonable doubt–a necessary task, but really the fact that Wafer shot and killed McBride has never been in dispute. Wafer would seem most vulnerable on the element of reasonableness, but where was the strong attack on reasonableness in the state’s case?  Were I the prosecutors I would have hammered relentless on the issues of “opening the door” and “accident,” yet from what I can discern from the live blogging and tweets of reporters present, I just don’t have the sense that the necessary vigorous attack occurred.

    There were two other witnesses today prior to Wafer taking the stand–the wrap-up of the testimony of firearms expert witness David Balash and the testimony of Dearborn Heights Sergeant Krot, but I will address their testimony in a separate follow-up post.

    OK, folks, that’s it for now.  Court’s back in session at 9:00AM tomorrow, and I expect we’ll have a mid-day wrap-up in the early afternoon.  Key for tomorrow, of course, will be the continued cross-examination of Wafer by the state.

    –-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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    Comments



     
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    Gremlin1974 | August 4, 2014 at 11:38 pm

    Andrew, are the ladies in the courtroom not going to allow you to use their stuff anymore? That was very helpful, especially for those of us who don’t tweet.


       
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      Chem_Geek in reply to Gremlin1974. | August 5, 2014 at 12:46 am

      I saw some of the Usual Suspects (“OMG this tiny little youth was gently tap-tap-tapping at the slobbering monster Wafer’s lair’s door seeking help when he cruelly blew her head off and laughed maniacally”) whining about Andrew’s fact-based comments on the Free Press blog. I suppose it was easier for the Freep to just deny permission than to look into it.

      The Detroit Free Press has asked us not to use images of their live blog posts. Naturally, we’re more than happy to reply with such a request. In an abundance of caution we have also removed images of their reporters’ tweets.

      –Andrew, @LawSelfDefense

        It’s really a shame that Michigan refuses to televise major trials the way Florida does. Or even live-stream them. Not much appreciation for “sunshine” up there I guess.

        I mean, I know we’ve got a lot of weird goings-on down here, but at least we don’t hide our crazy and pretend it doesn’t exist. We bring it right out on the front veranda and offer it up a nice sweet tea and maybe even some pimento cheese if we’re feeling fancy.

        And in addition to trying to preserve the traditions of openness and transparency, it also keeps people like that Mr. Branca fellow off the streets … and out of other peoples’ Tweeter feeds 😉


         
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        Gremlin1974 in reply to Andrew Branca. | August 5, 2014 at 3:48 pm

        Understood.


     
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    MouseTheLuckyDog | August 5, 2014 at 1:42 am

    Something that someone said on the FP blog has made me think. Wafer should claim that he thought she was a Jehovah’s Witness.

    Since I feel that Jehovah’s Witness’s should be near the top of the Lord High Executioner’s “Litte List”, I would vote to acquit based on justifiable homicide.

    Question on how the law works. If the effort to explore to why Wafer opened the door to weaken his case – if he was frightened why would do that – is that still valid if when Wafer opened the door a person lunged at him and he fired?

    Doesn’t Wafer’s claim to self defense start when the person lunged at him when he opened the door and thus what he did before the person lunged at him becoming moot?

    It reminds me of the Zimmerman case where the prosecutors didn’t seem to understand that even if Zimmerman was a loose canon, still it was true that Martin mugged him and he – Zimmerman – did not provoke Martin to do so.

    Zimmerman’s behavior before Martin mugged him isn’t really important. Yet the law seems to allow trial lawyers to use Zimmerman’s behavior prior to his being mugged by Martin to credit or discredit him.

    The law is a bit of an ass in this way. If the person lunged at Wafer then that’s that. Arguing that Wafer is lying is of course valid, but if he isn’t and she lunged at him then whatever he did before that seems moot and this should be a judge’s instructions but apparently won’t be.

    Of course the issue here is this – if its not self defense what is it? Murder? What interest had Wafer in killing her?

    I caught commentary re this on one of the morning fluff shows. They played tape of the prosecution grilling the defendant over whether he was crying after the shooting like he was on the stand.

    Really stupid line of attack. If I just killed someone, I’m going to be in shock. A lack of tears at that moment doesn’t imply anything.


       
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      Gremlin1974 in reply to Fen. | August 5, 2014 at 3:24 pm

      They don’t have a real case. The law is actually on his side, the facts are on his side, so basically they are “pounding the table”.


         
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        JackRussellTerrierist in reply to Gremlin1974. | August 5, 2014 at 5:05 pm

        That’s my take, too, on what we’ve been able to glean about the trial so far.

        I wonder if the DFP reporters took heat from their local readers and that’s why they shut down much of Andrew’s access. I guess it’s all our fault for posting logically drawn conclusions and speculations instead of expressing emotionally driven, unquestioning sympathy for McBride.

          That’s my guess–more than a few of the “pro-McBride” crowd got seriously (well, for that crowd, “typically”) outraged upon being informed what the law actually is, as opposed to what they’d like it to be.

          At least one had the internet savvy to look me up on the MA Bar’s lawyer’s list, and threaten to seek sanctions. I suggested she do that, as then she’d be writing fewer inane posts for me to read. I guess she took it personally. 🙂

          Regardless, the images were “color” for the posts, not the heart of the posts, and there’s no need to have a paper media organization all grumpy at us.

          As it happens, it’s actually faster to write the posts WITHOUT the images–it takes a long time to upload them, embed each individually, re-size each individually . . . ugh.

          –Andrew, @LawSelfDefense


             
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            Gremlin1974 in reply to Andrew Branca. | August 5, 2014 at 5:41 pm

            “I suggested she do that, as then she’d be writing fewer inane posts for me to read. I guess she took it personally. :-)”

            Andrew, let me once again complement you on how wonderfully and refreshingly abrasive you can be when the situation warrants.

            It would also be interesting to read about your Libel, Slander, and Defamation civil action if someone was actually silly enough to try to affect your licenses.

            “It would also be interesting to read about your Libel, Slander, and Defamation civil action if someone was actually silly enough to try to affect your licenses.”

            Oh, I don’t lose much sleep over that. 🙂

            –Andrew, @LawSelfDefense


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