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.

Immediately following closing the jury was given their final instructions, and sent into deliberations. With two white female alternates chosen, the 12 members of the jury now consist of seven men and five women, and eight whites and four blacks.

The closing arguments followed a pattern of the prosecution closing first, followed by the defense, and finally the prosecution speaking last to rebut the defense closing.

Before getting to the closings, however, the morning was first occupied with some wrestling between the state and defense over finalizing the jury instructions.

Debate of Final Jury Instructions

The defense wished to strike from the record that Renisha McBride was on Wafer’s porch seeking help, presumably on the grounds that there was no factual basis for the statement. As a matter of fact, nobody knows why she was there—perhaps to seek help, perhaps she thought she was at the house of someone she knew, etc. In any case, Judge Hathaway decided that there was no dispute that McBride was injured and bleeding from the car crash, so she allowed the statement to remain (and the prosecution would repeat it in closing).

The defense also asked that the term “aiming” be included in the jury instructions on the criminal charge. The prosecution countered that the law does not require aiming, but merely pointing, and that adding the language could confuse the jury. Again Judge Hathaway decided to side with the prosecution, and the change was not made.

The defense also asked that the prosecution not be permitted to physically handle the shotgun for demonstrative purposes, following the prior day’s incident in which Assistant Prosecutor Siringas had swept the jury with the muzzle of the shotgun with her finger on the trigger, resulting in gasps and an immediate sidebar gun safety lecture from the Judge.

In fact, the Judge had stated after that incident yesterday that she would not be permitted the prosecution to handle the gun during closing arguments. She seems to have changed her mind, however, because today she said she would allow Prosecutor Muscat (not Prosecutor Siringas) to handle the firearm but that she would hold him to his promise to do so safely.

The defense indicated to Judge Hathaway that they intended to argue to the jury that McBride had “broken” into Wafer’s home by being on his porch, and under Michigan law the porch was part of the home for self-defense purposes. The prosecution naturally objected. Hathaway indicated that she was not going to read instructions on breaking and entering, and that she would stop the defense if they started arguing that McBride was “in Wafer’s home. The defense responded that they had not intention of arguing McBride was “inside Mr. Wafer’s home, she wasn’t.”

Reviewing the Goal Posts

Before diving into the closing arguments, it’s worth recalling where the goal posts stand for each party.

The state bears the burden for proving each and every element of the criminal charge beyond a reasonable doubt. The two charges facing Wafer are: (1) Second degree murder/voluntary manslaughter (effectively the same crime under Michigan law; and (2) Involuntary manslaughter based on gross negligence, a charge added to the instructions the prior day.

To convict Wafer of second degree murder/voluntary manslaughter the prosecution must convince the jury that they have proved beyond a reasonable doubt that Wafer “knowingly created very high risk of death or grave bodily harm knowing that death or such harm would be the likely result of his actions.”

Because Wafer has raised a legal defense of self-defense, however, the state bears an additional burden.

The state must disprove at least one element of self-defense beyond a reasonable doubt.

The Michigan self-defense statute central to this case are M.C.L 780.972, Michigan’s “self-defense law,” and M.C.L. 780.951, which provides a presumption of reasonableness in the context of self-defense in the home.

780.972 Use of deadly force by individual not engaged in commission of crime; conditions.
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

780.951 Individual using deadly force or force other than deadly force; presumption; definitions.
(1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:

(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).

Assistant Prosecutor Pat Muscat

Prosecutor Muscat began his closing, as prosecutors are wont to do, with emotion (and the less robust their case, the more intense they tend to emote).

McBride just “wanted to go home . . . she just wanted to go home.” Wafer was “full of piss and vinegar,” and still angry over a months-prior paintball vandalizing of his car.

Wafer heard knocks and expected to face an unarmed teenager. He wanted a confrontation. “What he finds is a 19-year-old teenager, wet, probably cold, scared, disoriented, possibly with a closed-head injury . . . looking for help.” He got his gun, released the safety, pointed it at McBride, pulled the trigger, and “blew her face off.”

McBride, he noted, is not here to tell the jury what happened last night. With that, Muscat begins to play Wafer’s police interview tapes.

Muscat argues that there is no evidence of fear in Wafer’s demeanor at the police station, no indication that he was going to get hurt. There was no evidence that anyone was in his home by his own words and actions.

Muscat then played the jury a 911 call from the scene of McBride’s car crash. He told the jury that we know she was injured, bleeding, drunk, and she wanted to go home. She wanted to go home.

He told the jury that in the three hours between the accident and the shooting she may have gone to sleep, and then awakened and started looking for help. (I always find it odd when prosecutors speculate or pose substantive questions at closing, as it’s really the job of the defense to raise doubts and uncertainties at this stage of the case.)

Muscat argued that Wafer has not established a great defense for self-defense.

He claimed that Wafer handled his gun like a toy. The result is a dead 19-year old.

He noted that after the shooting that killed McBride Wafer found his cell phone “instantly,” but claimed that he couldn’t find his phone before getting his shotgun and opening the door.

Muscat pointed out that Wafer was the only person who says he heard knocking/banging and that there was no evidence of this from any other source but his own testimony—and that testimony was not worthy of belief. (In fact, one of Wafer’s neighbors had testified that shortly before the shooting he had heard outside noises loud enough to prompt him to go and inspect his cars.)

Then the prosecutor made the dubious claim that Wafer “shot [McBride] through a locked door. In fact, the “locked door” was a screen door, not the substantive front door of the home, and a screen door which the defense argued had been damaged by the 180 pound McBride beating on it.

“There was no evidence of fear,” Muscat repeated. There was no evidence that Wafer was going to get hurt. There was no damage to the steel door and locks (of the main door).

Muscat observed that the gun is a dangerous weapon, and Wafer handled it like a toy. He noted that Walker pointed the gun at “point blank range.” (It always amuses me when prosecutors us this phrase, as I’ve yet to meet one would could actually define it for me off the top of their head.)

Muscat noted that whether it’s loaded or not, picking up a weapon that you don’t clear first, releasing the safety, pointing it at another person, creates a very high risk of death or great bodily harm. (You will recall that his colleague, Assistant Prosecutor Siringas, had done precisely this to the jury not 24 hours prior.)

Muscat then recited the elements of second-degree murder. He also noted that the jury could alternatively find Wafer guilty of the lesser offense of involuntary manslaughter.

The prosecutor impeached Wafer’s credibility, saying he had used certain “buzzwords” in front of the jury, and that he had every reason to lie to “save his own skin.”

He then touched on the instruction for “false exculpatory statements,” which provides that if the jury believes the defendant lied about an earlier excuse for a crime they can interpret that as consciousness of guilt evidence. In this case, Muscat argues that Wafer first tried to advance an accident defense, and only later self-defense, and that the first was a false exculpatory statement from which they should infer Wafer’s guilt.

Muscat then spoke to self-defense, noting that at the time you use deadly force in self-defense you have to reasonably believe you are facing death or great bodily harm. Wafer, however, did not have to use deadly force immediately, “He had many other options,” and his use of deadly force was “reckless, it was negligent.” Wafer, he said, engaged with McBride and through his actions “creates the confrontation.” His actions were “unnecessary, unjustified, and unreasonable.”

So far Muscat’s closing was pretty much what I’d expected given the nature of the case. At this point, however, Muscat seems to go completely off the rails.

First, he seeks to impeach the defense’s firearms expert witness, David Balash. Balash is a retired career Michigan State Police Captain who has testified as an expert in firearms in over 400 trials. His record and expertise are utterly stellar. His testimony on the stand (as well as at the earlier pre-trial hearing) was clear, concise, to the point, and never effectively refuted by the prosecution on any point. All of this trial testimony was, of course, viewed first hand by the jury.

The greatest discrepancy between the testimony of Balash and the state’s own experts is whether the distance between McBride and the muzzle was as long as three feet, or something under two feet—such a small point as to hardly be worth arguing over, given the nature of the events and the weapon involved.

Second, Muscat makes a gross misstatement of the law of self-defense. He explicitly tells the jury that if a person goes and picks up an unloaded weapon, they can no longer argue self-defense.

The statement is an absurdly false representation of the relevant law, and could well have been grounds for an appeal or even a mistrial, but for the fact that the defense would so thoroughly cover the elements of self-defense in their closing as to cure the lie.

Finally, Muscat concluded his closing remarks with an appeal to the jury for “justice for Renisha McBride.

Defense Counsel Cheryl Carpenter

Carpenter, lead defense counsel for Wafer, provided the defense closing, and did a fine job, as best I can tell, pounding on the elements of self-defense, the state’s burden to disprove self-defense beyond a reasonable doubt, Wafer’s “honest and reasonable” testimony on the stand, and the circumstances as he knew them which drove him to a reasonable fear for his life.
Self-defense, she noted, is the ultimate protection for every single one of us, “for me, for you.”

Wafer, she noted, subjected himself to cross-examination before the jury for two hours, and presented himself credibly and honestly.

The burden of proof, she noted, is on the prosecution to disprove self-defense.

She expressed astonishment at the prosecution’s effort to attack the credibility of firearms expert David Balash, whose reputation Carpenter described as “untarnished.”

Carpenter recounted how the evidence showed that the perceived threat to Wafer was not more than two feet away, lunging from the side, from out of sight. “She was coming from the side of Mr. Wafer . . . he was terrorized in his own home.”

She dug into the law of self-defense with the jury, noting that “the law of self-defense is so simple, so easy, and not complicated at all.”

She brought in the screen door, and noted that the State had presented absolutely no evidence that the screen had been knocked from the frame by the shotgun blast, rather than prior to the shot being fired. In fact, Carpenter argued, it was McBride who damaged the door.

Carpenter quoted Wafer: “I thought they were coming in,” and noted that the gun was not his first choice. First he tried to play dead, hoping the banging would stop. Then he grabbed his bat. Only when he feared there were multiple attackers did he retrieve his shotgun.

She also pointed to the contributions Renisha McBride had made to the circumstances. Stating up front that she was not blaming McBride, she noted that alcohol was what caused these circumstances.

Carpenter then cleverly, I think, walked the jurors through the timeline of how Wafer and McBride each spent their evening. Wafer had three beers in three hours at a local pub, came home, was asleep by 10PM or so, until awoken by the banging on his doors at 4:30AM.

In contrast, the McBride timeline was one of a drinking party, extraordinary levels of drunkenness, a crashed car, a departure from the scene of the accident, three or so mystery hours, and then her 4:30AM appearance—still wildly intoxicated—on Wafer’s porch.

Carpenter then used the “missing” several hours between 1AM and 4:30AM to being her attack on the quality of the police investigation. Why didn’t the police know where Renisha was during that period? They could have found out, she argued. She pointed out how the police had narrowed their focus of the investigation very early, failed to secure the crime scene, failed to secure evidence highly relevant to self-defense, such as the footprint on the air conditioner. She argued that the Dearborn Heights Police Department had “turned a blind eye” to some key evidence in the case during the investigation. She said the police didn’t do their jobs. Ted, she said, like the police, and they’d let him down.

She then went on to note that race was not an issue in this case. Wafer did not know the race of the figure that lunged at him, “Ted didn’t know who this was”, and he himself chose to live in—and had testified he liked—a mixed-race neighborhood. Wafer, Carpenter said, was the “farthest thing you can get from a racist.”

Carpenter then cleverly asked the jury (rhetorically, of course) how many of them had heard the Detroit Chief of Police urging residents to arm themselves against crime. Wafer, she said, had done exactly that. “Ted was getting attacked.”

Again cleverly Carpenter showed the jury a picture of Wafer’s home, across which had been printed the word “FEAR.” “This man is acting and reacting to get awakened at 4:30 in the morning. Are you going to sit in your home and wait?”

“Ted is not a gun nut. He’s not an angry person. He’s not paranoid. He did it in the heat of that moment. He was in terror. There’s pounding and pounding . . . it’s reasonable that you are in fear for your life.”

Wafer believed there were multiple intruders, Carpenter said. She noted that there was banging on the front and side doors. Wafer’s screen door was broken, and McBride did that.

Carpenter then recalled how Assistant Prosecutor Siringas had just yesterday pointed the shotgun at the jury. She noted how yet another prosecutor had repeatedly racked the shotgun. Guns, she noted, are scary. She herself hated guns. This was the first case in which she had ever shot a gun.

Despite this, what Wafer did was reasonable, honest, and he’s not guilty.

The prosecution, she noted, did not bring anything to the jury that contested self-defense. There is no way, she argued, that they “can disprove this was self-defense. None.”

The incident, she said, haunts Wafer. He wishes it had never happened. He cares. He thinks about Renisha every day. But he acted and fired in self-defense.

She then recounted a 1925 instance of self-defense in Detroit, in which a black doctor, Ossian Sweet, had shot in self-defense against a white mob in Detroit, to illustrate that self-defense worked to protect all innocent persons from attack, white and black.

To the jury: “I ask you all to send Ted home. Find him not guilty on everything.”

She then thanked the jury—“we couldn’t have asked for a better jury, I think you from the bottom of my heart”—thanked her defense team, and sat.

Assistant Prosecutor Anitha Siringas

Siringas—again, the prosecutor who the day before had pointed the shotgun at the jury, eliciting gaps and an impromptu gun safety sidebar—handled the prosecution’s rebuttal of the defense closing.

Perhaps the most astonishing part of this rebuttal was at the start, where Siringas informed the jury that she was the head of the Wayne County Prosecutor’s Office Homicide division.

She used that as a foundation to argue that this case was really no different than any typical murder case, and that Wafer was not different than any other guilty defendant.

Wafer’s actions, she said, speak louder than his words, and his actions were confrontational.

She then said—it’s impossible to believe this is true, but multiple reporters on site have reported this statement—that perhaps people who don’t know how to handle guns shouldn’t handle guns.

Siringas argued that Wafer had first tried to argue accidental shooting, and only when it was clear that the gun could not be made to fire accidentally he had changed his story to self-defense. He was hoping to get away with an “accident scenario” until the Michigan State Police testing made that impossible.

Wafer, she said, had chosen to become the judge, jury, and executioner—a bromid if there ever was one.

Siringas then, oddly, took particular offense at defense counsel Carpenter’s referencing of the Dr. Ossian Sweet self-defense shooting in 1925: “The nerve of bringing Dr. Sweet into this.” Wafer, she said, was not under armed attack, as Dr. Sweet had been.

She argued that McBride was dead merely because she had the misfortune to be confused about where she was. She had the misfortune to walk onto Wafer’s porch.

Siringas then stated that “we met our burden, there is no self defense here. Where’s the fear?”

With that, the defense concluded their closing statements.

Final Instructions, Alternate Juror Selection, Deliberations

With that the jurors were read the final instructions. The trial had made use of 14 jurors, 7 men and 7 women, and 10 whites and 4 blacks. At this point two had to be chosen as alternates, leaving 12 primary jurors who must arrive unanimously on a verdict (or hang).

The two alternates chosen were both white women, leaving the final makeup of the jury 7 men and 5 women, and 8 whites and 4 blacks.

With that, the jurors were sent into deliberations.

UPDATE:  The jurors briefly asked to see shotgun while deliberating, returning weapon after a few minutes.

VERDICT WATCH

Keep an eye right here at Legal Insurrection for breaking news on the Theodore Wafer trial.

–-Andrew, @LawSelfDefense

[NOTE: All quotes provided above are based upon the reporting of professional journalists on the scene. I was not personally present to record these remarks.]


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.