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.

Perhaps that’s why the prosecution seems to have taken more of a—sorry, but I can’t help it—more of a shotgun approach to their cross-examination of Wafer.

Of particular interest to me from a professional perspective was how the prosecution again ended their cross-examination. I’ve mentioned how yesterday they seemed to end on a rather weak note, a mere playing of the police interview videos and without serving up any real meat to the jury before dismissal for the day.

Today’s Cross Seemed Even Worse Than Yesterday’s Weak Effort

Today’s finish was, if anything, substantially worse.

First—and it’s hard to believe this even happened, but numerous eye witness accounts attest to it—shortly before ending the cross-examination for the day Assistant Prosecutor Aritha Siringas picked up Wafer’s shotgun and pointed it directly at the jury, finger on the trigger.

One assumes this was done through negligence, rather than intentionally—it would be most awkward to see Prosecutor Siringas bring charges against herself for fourteen counts of aggravated assault with a firearm.

Nevertheless, the jury was sufficiently alarmed by being swept by the shotgun’s muzzle that there were audible gasps, one jury was seen with her hands clasped to her face, and Judge Hathaway was compelled to call a sidebar and order Siringas to keep the muzzle of the shotgun pointed downward, thank you very much.

Second, perhaps it was this embarrassing misstep that led Siringas to the ineffectual, arguable counterproductive, last few questions of her cross-examination of Wafer. The responses she elicited are hardly what one would imagine a prosecutor would want to close with while crossing a defendant in a self-defense shooting case. Indeed, they are what I would expect from the defense.

Wafer’s responses (in paraphrase) tell the tale:

Events happened too quickly, the shooting was an instinctive reaction.

[Shooting] was a reaction to a threat to my life.

That is how the prosecution ended its cross-examination of Wafer. Oofah..

Issues Touched Upon by Prosecution In Cross Examination of Wafer

In approximate chronological order, the issues touched upon by the prosecution in their cross-examination of Wafer included all of the following:

Siringas suggested Wafer crafted h is video interviews with police because he knew he was being recorded. Wafer responds, “I’m just trying to cooperate.”

It is pointed out that Wafer did not tell police during interviews that he had been unable to find his cell phone. Wafer says he thought he had, but perhaps he hadn’t.

Siringas notes that Wafer did not tell police during interviews about the knocking on the side/back door of the house. Wafer responds “There was no knocking, there was pounding.”

Siringas plays tape where Wafer talks about “somebody banging on my door,” and notes he didn’t say anything about somebody breaking in.

To all of these points Wafer keeps pointing out that he was upset at the time.

Finally Siringas gets to Wafer’s contention that the shooting was accidental. Wafer says the gun discharged and unfortunately McBride was right there. He also did not tell police that McBride came from the right side of the doorway. Wafer responded, “Yes, I shot in self-defense.” He said it didn’t seem like he was aiming, the shooting was a reaction to the sudden appearance of the figure on the porch. “I didn’t point [the shotgun] at anybody’s face.”

“I shot in fear,” Wafer testifies, to which Siringas responds, “So that means you shot on purpose.” (An odd interjection, if Siringas is planning to undermine Wafer’s self-defense claim by characterizing the shooting as accidental.)

Somehow Wafer gets on the record, “The threat was coming into my house. I drew first, that’s how I see it.” He said he thought at any second someone would come into his house.

Wafer noted again the violence of the banging on his door, and noted that’s not how someone would look for help. He didn’t think somebody was trying to get his attention, he thought they were trying to beat the door down.

Siringas asked him if it was his policy to “shoot first, ask questions later?” Why did you open the door? Wafer responded that “I wanted it to end. I wanted to find out what was going on.” and “I thought they were trying to beat the doors down.”

“Did somebody enter your house,” Siringas asked? No, answered Wafer, but I thought that was going to happen.

Siringas asked if Wafer had told his defense counsel that there was no place in the house where he felt safe, and Wafer answered “Right.” (It is beyond me why Siringas would ask this question. What possible response might Wafer have made that would have been favorable to the prosecution?)

Wafer commented that he was within a couple of feet of the screen when he fired the shotgun.

Siringas asked, “You know the gun doesn’t go off accidentally, right?” Wafer responded, right. (Again, a very odd question if Siringas is to seek to undermine Wafer’s claim of self-defense by characterizing the shooting as an accident.)

Wafer describes the process by which the shotgun was raised and fired: there was no leveling of the gun or pointing, it was just a self-defense reaction to protect himself. Siringas responded with sarcasm: You got a lot of buzz words, Mr. Wafer.”

On the issue of not knowing the gun was loaded, Wafer responded that he had forgotten it was. Asked why the safety was off, Wafer responded that he didn’t recall taking it off, but that he might have pushed the safety off inadvertently while uncasing the shotgun. He noted that it was his practice to keep the safety on when the gun was in the case. (The Mossberg 500 has a tang-mounted safety that is intended to be engaged and disengaged with the thumb.)

(At this point it was observed by defense counsel Cheryl Carpenter that a juror was passing notes to a deputy sheriff in the court room. The speculation is that the jurors may have questions they wish to ask. Earlier in the trial, shortly after the state rested, Judge Hathaway had seemed to ask some questions on behalf of the jury, but soon thereafter ruled that she would no longer do so because it was unfair to the state now that it had rested. No juror questions were asked here. )

There was some dispute over the timing over when Wafer had loaded the shotgun. He has testified it was some month earlier, shortly after his car was vandalized. On the police video, however, he stated that he had loaded the shotgun when the Tigers had lost the AL Championship—a date less than two weeks prior to the shooting of McBride. Wafer explained the discrepancy as a function of the confusion after the event.

Siringas said that Wafer wanted the jury to believe that you were scared, yet you went to that front door with a loaded shotgun. Siringas told Wafer, you said you didn’t know what was going on, to which Wafer replied that it was clear to him someone was trying to gain entry to his house.

Siringas asked if Wafer was claiming his memory of the events was better now than in the hours immediately after the shooting. Wafer said it was, as he’d had time to process now.

When asked by Siringas if Wafer had sought a confrontation by opening his door, Wafer said, “No.”

The prosecution next argued that Wafer’s whole story before he got to trial was that the shooting was an accident.

When challenged by Siringas with not having told the police immediately after the shooting all the things he was now saying in court, Wafer agreed this was the case.

Siringas also asked Wafer about the fact that after the shooting Wafer had left the shogun by the open door when he went off to seek his cellphone. Yet Wafer claimed to have thought there were multiple attackers.

Wafer said he’d only hoped to end the confrontation, to which Siringas responded, “You sure ended it, didn’t you?”

(It was at this point in the cross-examination that Siringas managed to sweep the jury with the muzzle of the shotgun, and receive an impromptu gun safety lecture from Judge Hathaway.)

Here Wafer managed to get in his last couple of responses before the State rested—that events happened too quickly, and that he acted in a natural reaction to save his life.

Defense Counsel Cheryl Carpenter Returns on Re-Direct of Wafer

Wafer’s defense counsel Cheryl Carpenter came back on re-direct, and asked Wafer if he was enjoying this experience. No, he replied, it’s a nightmare, and he has nightmares about the events.

When asked by Carpenter if Wafer wished this hadn’t happened to you, he responded: Of course. I don’t know why this was brought to me. I didn’t go out looking for this.

Carpenter also asked Wafer if he’d ever stepped out onto his porch during his events, to which he responded no.

Finally, she asked him if she had ever told him what to say regarding the events that night. “Just to tell the truth,” Wafer answered.

And that was it for the morning.

Defense Requests Mistrial for Prosecution’s “Aggravated Assault” of the Jury

After lunch, but before the jury was brought into the court room, the lawyers and Judge Hathaway had some “argumenting” to do.

First, Assistant Prosecutor Siringas appeared to be arguing against any kind of Castle Doctrine instruction to the jury. It seems his actual concern was that it provided the foundation for a compelling “defense of home from intruders” narrative that is, of course, really at the very heart of Wafer’s defense.

Siringas argued that because there was no evidence of an actual invasion—no damage to the door locks, for example—and that because Wafer never stepped onto his porch, that any Castle Doctrine instruction would serve only to suggest that Renisha McBride had been up to no good on Wafer’s front porch. The prosecution’s narrative, of course, is that McBride was merely knocking on Wafer’s door in an attempt to seek help. The defense did some arguing about evidence of smudge marks on the front door, the mystery foot print on the air conditioner, and such.

Judge Hathaway did not buy it, and a Castle Doctrine instruction would be forthcoming. As the Judge noted, a person in their home falls within the Castle Doctrine, and the front porch is part of that home (per MI Supreme Court).

The prosecution also requested that a gross negligence instruction be included. By this she presumably means an involuntary manslaughter instruction, of which gross negligence is an element. Judge Hathaway indicated she would give it as a “lesser included” charget to the jury.

The prosecution also sought to have a “false exculpatory statement” instruction given to the jury. A false exculpatory statement is a kind of consciousness of guilt statement, in which the jury is instructed that a defendant lying in an effort to escape criminal liability can be seen to have done so because of “consciousness of guilt”—that is, not only does the prosecution believe the defendant is guilty, even the defendant believed the defendant was guilty.

The foundation for the prosecution’s request was Wafer’s “accident” language in the immediate aftermath of the shooting. Strictly speaking an accident is a non-intentional act, and self-defense is an intentional act, and one can not have both.

Siringas is quite right, when those terms are used in their narrow legal contexts. Had Wafer raised a legal defense of “accident” he would likely have been denied the legal defense of “self-defense,” and vice versa. Siringas was trying to claim that Wafer had given two separate, inherently inconsistent theories of the case.

But Wafer was not using “accident” in the narrow legal meaning of the word, but using it as a lay person typically does—and in that usage “accident” can mean a variety of things, including not deliberate or thought out, or an act of reflex, none of which are inconsistent with self-defense.

Carpenter, naturally, argued that there was no inherent inconsistency in Wafer’s defense, if one allows for the normal, broader scope with which the term “accident” is used by non-lawyers.

It did not appear that this particular point of contention was settled in the current exchange, so we may see more argument on this point tomorrow.

Next was raised the issue of Assistant Prosecutor Anitha Siringas picking up Wafer’s shotgun, and pointing it at the jurors with his finger on the trigger. Carpenter noted that at least one juror “reacted in horror,” and that Siringas was improperly trying to instill fear into the jury. Hathaway commented that she herself had heard one juror sound shocked.

Reporters on the scene recount that while they did not see the moment the shotgun was pointed at the jury (they were taking notes), one did look up immediately afterwards and saw a juror with her hands on her face.

Carpenter requested a mistrial on the basis of this conduct. In the absence of a mistrial, she requested that Siringas be admonished. Judge Hathaway seemed disinclined to go that far, but did say that no one would be handling the shotgun during closing arguments.

Siringas’ excuses were, well, about what you’d expect. First, that he was not the only person who had handled the shotgun during the trial, plenty of others had done so, too. To which Carpenter noted that none of those others had swept the muzzle over the jury.

Then Siringas argued that it didn’t matter because the shotgun was not loaded. The irony—delicious. Wafer, too, had testified that the shotgun was “not loaded”—until he discovered that it was indeed loaded when it made a loud noise and wreaked havoc on the head of Renisha McBride. For that “mistake” Siringas had just moments ago demanded that Wafer be charged with gross negligence and involuntary manslaughter.

Finally, Siringas argued that in fact she had never actually pointed the shotgun at the jury after all, a laughable claim given the observed events and what had already been discussed—were that true, would it not have been Siringas’ first line of defense?

Nothing much more seems to have come from that wonderful example of breaking every possible rule of gun safety.

With that, the defense officially rested.

Tomorrow: Closing Arguments; Final Jury Instructions; Verdict Watch

Although some of the jury instructions had still to be decided, the majority were uncontested, and Judge Hathaway read those to the jury before dismissing them. Wafer, they were told, is charged with both second degree murder and involuntary manslaughter, and they must consider each crime separately.

The jury was also instructed on the Castle Doctrine, specifically that a person does not have a duty to retreat if they believe they face harm in their own home, and that a person’s porch is part of their home.

The reporters did not note if the jury received any self-defense instructions this afternoon.

Closing arguments will be tomorrow morning, with each side allocated about an hour.

And that’s it for the day.

Join us back tomorrow morning for Day 9—almost certainly the last substantive day—of the murder trial of Detroit homeowner Theodore Wafer in the early morning shooting death of Renisha McBride, with closing arguments, final jury instructions, and then we’ll be onto “verdict watch” mode.

–-Andrew, @LawSelfDefense


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.