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.

Spitz had just made certain claims about the characteristics of McBride’s wounds indicating to him that the shot was fired from no more than two feet away.  This is an important issue in the case, because Wafer’s perception of harm is naturally more reasonable the closer to him that McBride appeared.  The prosecution set out to demonstrate how Dr. Spitz in his very own book and in one of the chapters written by him personally states that these some characteristics would suggest a considerably greater distance.

To which Dr. Spitz replies that the section they are quoting explicitly references handgun bullet wounds.  McBride’s injuries were caused by a shotgun. The wound characteristics are completely and utterly different–indeed, it’s as if the prosecution were attempting to compare apples and oranges.

Is it possible that the prosecutors did not know this going in, that they are so inexperienced in trying gunshot cases–in Detroit!–that they were unaware of the profound differences between a mass shot shotgun injury and a single-projectile handgun injury?

Alternatively, if the did know the difference, how is it that they could have imagined that Dr. Spitz–who has testified in such cases hundreds if not thousands of times–would be ignorant of them?  It simply baffles the imagination.

The prosecution also dabbled back in the area of the toxicology report and McBride’s astronomically high BAC and active marijuana, it seems perhaps to suggest that she would in this state have lacked the power to cause damage to Wafer’s screen door.  Spitz makes clear, however, that while alcohol has many effects it does not strip one of their physical strength.

The highlight of this exchange, however, occurred when Prosecutor Siringas begins to challenge Spitz on his ability to accurately characterize McBride’s state of mind for the jury.  Spitz responded by noting that the person who is actually in the best position to accurately characterize McBride’s state of mind that morning is no other than . . . Theodore Wafer.  After all, it was Wafer who was the last person to see her alive.

 

That must have left a mark.

David Balash, Firearms Expert

The next defense expert was David Balash, a retired Michigan State Police Detective Lieutenant and firearms expert.  Some of you may recall that we first encountered Mr. Balash at one of Wafer’s pre-trial hearings, which those who are interested can read about here:  How the Michigan Porch Shooting case may be defended.

Now, any expert witness when first brought into court has to “qualify” as a witness.  Usually this is a rather pro-forma matter, as most expert witnesses perform the task for a living and have been through this process scores or hundreds of times.  Balash, for example, has been an expert witness in more than 400 trials–including, as just noted, in one of Wafer’s one pre-trial hearings in a MI court room.  The notion that there was every question about his qualifications as an expert in the area of firearms would seem laughable.

Well, it was time for the prosecution to jump the shark again.  They engaged in a lengthy questioning of Balash and his qualifications, for what ultimate purpose I cannot imagine.  In the end, they managed to get Balash to conceded that he lacked expertise in certain areas where he had never claimed expertise–such as crime scene reconstruction, an issue already settled at the earlier pre-trial hearing–and matters were able to move on with him testifying as an expert in the areas he had been brought to court to speak about.

How this came across to the jury is not known to me, but from my perspective it came across as rather petulant and a knee-jerk reaction to the agony they’d endured in cross-examining Spitz.

The gist of Balash’s testimony this afternoon–which remains incomplete, so expect him back–was three-fold: (1) that the investigate procedure was defective; (2) that the distance from the muzzle to McBride’s head was very close, no more than 2 feet; and (3) that the screen in the screen door had been dislodged prior to the firing of the fatal shot into McBride’s face.

The first two issues had been touched on earlier, but this third was new to the jury (although it was discussed at the earlier pre-trial hearing, and so would be (or should be) a familiar argument to the prosecutors.

Essentially Balash is saying that based on the height of McBride’s head and the likely height of the shotgun muzzle, taking into account both the heights of those two individuals as well as the 5 1/2 height difference between the porch and the interior of the house, the hole in the screen could have occurred in that position only if the screen had already been dislodged from its frame.

You may recall that the police never took a photo of the screen as it was originally found–rather, they re-positioned the screen in the frame for the purposes of taking photos.

You may also recall that the police had no particular interest in the plastic clips normally used to hold the screen in place.  A key part of Balash’s conclusion is based on the notion that the clips would have prevented the shotgun blast itself from dislodging the screen–therefore the screen must have been dislodged by some other force prior to the shotgun blast.

That force, the defense narrative would argue, being McBride pounding hard enough on the screen door to knock the screen from its frame and retaining clips, the same exact degree of force that would induce abrasions, swelling, and bleeding in her hands as noted by Dr. Spitz.

No Court Tomorrow, Back Monday at 9AM

That’s essentially where things wrapped up for today.  As was the case last Friday, there is no court tomorrow.  We’ll be back on Monday, so keep your eyes open for a mid-day wrap up in the early afternoon.

With that, here’s today’s chronology of tweets and live blogging:

So, as you saw above, no court tomorrow, but it’s back in session at 9AM on Monday. See you mid-day for the, well, mid-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.