One of the key messages I hit in my Law of Self Defense Seminars is that the use of force can only very rarely be both an "accident" AND "self-defense."
Self-defense is an inherently deliberate act. You perceived a threat, you responded with force against that threat. Deliberate.
An accident is the opposite of a deliberate act. By definition, an accident is something you did not with to happen.
The law recognizes this disconnect. One either acts in deliberate self-defense, or has an accident. But one cannot claim both.
Further, when one has an "accident" while handling a firearm, there are are particular difficulties that arise.
A firearm is an inherently dangerous instrument. The standard of care while handling it is very, very high. And, in my professional experience, has only grown higher in the last 10-15 years.
Technically speaking, "accident" is a perfectly legitimate legal defense. But an accident is something that involves NO wrongdoing by the person raising the defense. If you are handling a modern firearm, the only way that gun will discharge is if you depress the trigger. That's on YOU. And it is NOT an accident, especially if it results in harm or death to another person--it's criminal negligence.
Today we learn that the jurors in the Detroit front-porch shooting trial--in which homeowner Theodore Wafer shot a very drunk 19-year-old Renisha McBride through the head with a 12 gauge shotgun--felt very much the same way, as reported by the Detroit Free Press, entitled "Juror: 'No one' believed Wafer killed McBride in self-defense"
As reported in that piece:
The jury has returned a verdict of guilty of second degree murder/voluntary manslaughter and weapons charges in the trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013. Trial Judge Hathaway has ordered Wafer imprisoned immediately, pending sentencing.
UPDATE: Sentencing scheduled for Aug. 21 to Aug. 25 time frame.
Wafer's legal defense against the charge was self-defense. The guilty verdict necessarily means that the jury unanimously agreed that the prosecution had disproved Wafer's claim of self-defense beyond a reasonable doubt. The two strongest arguments counter to self-defense were:
"Accident" and "I didn't know the gun was loaded"
(1) Wafer's early and repeated references to the shooting as an "accident," including his claims that he was unaware the shotgun was loaded, only to later claim the shooting was an act of "self-defense."
"Accident" and "self-defense" are logically inconsistent arguments. "Self-defense" is an inherently intentionally act--I see a threat, I respond to the threat. "Accident" is by definition something we do not intend. When a defendant argues one, they generally lose the other--sometimes as a matter of law, often just in terms of the credibility of their narrative of innocence with the jury. The prosecution in this trial also requested and received a jury instruction on prior false exculpatory statements as consciousness of guilt evidence, and that certainly could not have helped the jury lean towards self-defense if they believed Wafer's early claims of "accident" were an effort to escape legal jeopardy.
Unlocking and Opening the Steel Front Door
(2) Wafer's decision to unlock and open the steel front door of his home. McBride never, in FACT, threatened entry--whatever she might have done to the screen door, there remained the steel door to get through. Had that steel door been substantively damaged or had there been any evidence to suggest an actual entry was imminent, I think Wafer would have been fine. Absent that, however, the jury likely expected him to hunker down and wait until entry was imminent before using deadly force--and certainly not to unlock and open that very steel door that was keeping the "intruders" outside.
UPDATE: I've come across video of Wafer's direct testimony under questioning by defense counsel Cheryl Carpenter. Here you go:
Today saw the closing arguments of the murder trial of Detroit homeowner Theodore Wafer in the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013.
Welcome back to the eighth day of the murder trial of Detroit homeowner Theodore Wafer for the shooting death of Renisha McBride on his front porch in the early morning hours of November 2, 2013.
Theodore Wafer Back on Cross-Examination
Wafer was back on cross-examination today, having taken the stand in his own defense yesterday (for details see here: Homeowner Takes the Stand in Detroit Front Porch Murder Trial). Cross examination was continued by Assistant Prosecutor Athina Siringas.
Cross had left off yesterday afternoon with a rather low-key playing of interview video of Wafer that day at the Dearborn Heights police station—a rather odd move by the prosecution, as it left the jury to dwell all evening on the rather excellent direct examination by the defense that took place over much of the afternoon.
The prosecution touched upon a number of issues over the course of their cross examination of Wafer—indeed, I would argue that they touched upon too many issues, including spending valuable time on some that seem of very questionable utility in obtaining a conviction.
Although the prosecution did get to the very important issue of Wafer’s repeated statements that the shooting was an “accident,” they did so for what seemed too brief a period and with too little intensity. The only explanation that comes to mind is that Wafer’s already expressed counter-argument to this avenue of attack was perceived as too robust to be effectively overcome, and thus that a focused attack on this point would be ineffective.
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.
Tomorrow marks the start of the third week of the second degree murder trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013. This past week saw the milestone of the prosecution resting and the start of the defense presenting its case. In preparation for the Court coming back into session tomorrow morning with the continuation of the defense's narrative of innocence to the jury we thought it might be useful to provide a brief recap of what's happened to date, highlighting notable events and observations.
The undisputed facts of the case are that Renisha McBride was driving her car the night of November 1 while under the influence of some multiple of the state's allowable blood-alcohol limit, as as with active marijuana in her system. She crashed her car, disabling it, and apparently striking her head on the windshield. She abandoned the crash site and essentially disappeared for the next several hours.
Around 4:30 a.m. on the morning of November 2 Theodore Wafer was awoken from sleep by McBride banging on his front door. The defense claims the banging was alarmingly vigorous, and that there were similar sounds coming from other exterior doors and windows of the house. The state claims McBride was merely knocking on his door in a normal manner in order to seek assistance. Wafer, unable to immediately find his cell phone, retrieved his home-defense shotgun, a pistol-gripped Mossberg 12 gauge loaded with #4 shot. He approached the locked front door of his home, unlocked and opened it. He then discharged the shotgun through his locked screen door. The shot struck McBride in the face, mortally wounding her. Wafer located his cell phone, called 911, and police were on the scene within a few minutes.
The state's narrative of guilt presents Wafer as a man who acted unreasonably to the presence of a 19-year-old black woman who was simply seeking assistance after a car accident.
The defense's narrative of innocence presents Wafer as a homeowner awoken from sleep by noises reasonably consistent with a possible burglary attempt--his immediate neighborhood experiences some hundreds of burglaries and other violent felonies each year--and who fired in reasonable fear of death or grave bodily harm and from within his "castle" when suddenly confronted by the erratically behaving McBride.
Key to the defense's narrative in it's opening statement is that the hole in the screen of the screen door could only be positioned as found if McBride had used so much force on the screen door that the screen was knocked out of position prior to the shot being fired.
Well today continued to be a bad, bad day for the Prosecution in the Detroit trial of Theodore Wafer, charged with second degree murder for the shooting death of Renisha McBride on his front porch in the early morning hours of November 2, 2013. The prosecution team seems to completely lose its footing when tasked with cross-examination, in part (I would suggest) due to the extraordinarily high quality of the defense's expert witnesses.
I recounted in today's mid-day wrap-up how the wheels seemed to come entirely off of the prosecutorial train when they sought to engage with defense forensic pathology expert Dr. Werner Spitz (you can read all about that here: Detroit Front Porch Shooting case: Day 6 Mid-Day Wrap-Up) and taking a lunch break didn't seem to help them pull things together. I note, as an aside, that Dr. Spitz is 87-years-old, and yet it was the prosecution that came across as tired and inept.
The prosecution's cross-examination of Dr. Spitz continued after lunch, and they sought to impeach his credibility via the mechanism of contradicting him with his own work product--to wit, his 9 pound textbook on forensic pathology.
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.
So we find ourselves at the end-of-day wrap-up for day 5 of the murder trial of Theodor Wafer for the shooting death of Renisha McBride on his Detroit front porch in the early morning hours of November 2, 2013. This afternoon the State would rest with its final witness, Medical Examiner Dr. Kila Kesha, the defense would have its motion for a directed verdict summarily dismissed, and proceed to begin its case with its own expert witness Medical Examiner, Dr. Werner Spitz (pictured above).
Highlights of the afternoon included some continued questionable conduct around the magically appearing-disappearing-appearing $100 bill. Defense counsel Cheryl Carpenter is still obviously unhappy with the tenuous explanations offered for this--particularly as it followed that while the Prosecution, their LEO witnesses, and McBride's mother have all claimed that she was delivered the $100 by ME Kesha, he himself testified that he'd never seen the $100, according to observers present at the court house.
More substantive, however, was the direct expert witness testimony--to be continued tomorrow--of defense witness Dr. Spitz. The key vulnerability of Wafer's self-defense claim is on the issue of reasonableness, or lack thereof. The law does not, however, require that the person acting in self-defense be perfect in their reasonableness. To the contrary their conduct is judged on the basis of whether it was that of a reasonable and prudent person, under the same or similar circumstances, possessing the same or similar capabilities, the same or similar specialized knowledge, and under the same degree of stress.
As the Supreme Court noted almost 100 years ago:
We're back for day 5 of the second degree murder trial of Theodore Wafer in the shooting death of Renisha McBride on his front porch in the early morning hours of November 2, 2013. As has been the case since mid-day of day 1, Judge Hathaway still refuses the trial to be live-streamed.
Similarly, just before the lunch break 911 dispatcher Valentine Pepper testified that Wafer told him over the phone that he fired the shotgun by accident. (This part of the 911 call was not recorded, however, because it occurred when 911 called back Wafer.)
This afternoon I was helpfully directed to a live video stream of the Wafer trial, suggesting the streaming of the trial is not explicitly prohibited, as I had been led to believe Unfortunately the feed was of such low quality it was effectively useless. It seems even the provider recognized this, because after about an hour in the afternoon they cut off the feed entirely. We'll see what happens tomorrow, I guess.
In summary of the afternoon, the state brought two witnesses: Carmen Beasley, the woman whose husband's parked car was struck by Renisha McBride in front of Beasley's home several hours before McBride was shot by Wafer. It was Beasley who first called 911, and who first communicated with the dazed and injured McBride. This accident took place about a mile from Wafer's home, the site of the shooting.
Also appearing was Dearborn police officer Ruben Gonzalez, who was among the first responders on the scene. Gonzalez interacted directly with Wafer, and helped to secure the crime scene.