Could there be evidence of “accident”?
On December 18 a pre-trial hearing was held in the shooting case of Renisha McBride in Detroit.
The purpose of the hearing was to determine whether the second degree murder charge against the defendant, Theodore Wafer, ought to be dismissed or whether there existed sufficient grounds to bind Wafer over for trial.
The judge ruled the matter was to go to trial.
Legal Insurrection previously posted on the Wafer/McBride case here: Analysis: Self-Defense Claim May be Legally Weak in Michigan Porch Shooting. As the title of the piece suggests, the evidence as then available seemed inadequate to support much of a claim of self-defense.
In the course of the pre-trial hearing, however, the defense team called to the stand a crime scene reconstruction and firearms expert witness, David Balash. In the course of his testimony under defense questioning facts began to emerge that seem likely to form the structure of the team’s legal defense.
Some of the forensic evidence remains in dispute, but for the purposes of this discussion I’ll make several likely presumptions.
One of these is that Wafer was standing inside his home, looking through the closed (and perhaps locked) screen door, and McBride was on the other side of the door standing on the rather small front porch, so within two to three feet of the screen door. Finally, that the shotgun round that struck and killed McBride was fired through the screening of the door.
When police arrived on the scene in response to Wafer’s 911 call, they found the screen, and its associated frame, had been knocked lose from the screen door proper, and noted the hole in the screen through which the fatal shot had likely been fired. Prior to taking crime scene photos, they replaced the screen in its proper position in the door, the position in which they assumed the screen was placed when pierced by the shot.
Expert witness Balash, however, noted that this placed the height of the hole at an unlikely height, given other known facts. It seems clear, for example, that Wafer is several inches taller than McBride. Further, the exterior porch is an additional six inches lower than the interior floor on which Wafer was standing.
With the screen in its proper position, and the hole at that now elevated height, a trajectory line drawn from McBride’s head (the point of impact) through the hole in the screen would require that Wafer had been holding the Mossberg 500 shotgun above shoulder level and angled steeply downward.
Having handled and fired similar pistol-gripped shotguns on many occasions, I can attest that the normal “comfort zone” for holding such weapon ranges between the waist and the shoulder. Raising the rear-most “grip” hand well above shoulder level would be a most unusual way to fire the gun, unless one needed to fire over some sort of hard cover.
Given these facts, and presumptions, what might be a narrative of events more consistent with self-defense?
The following is, of course, merely speculation for the purposes of exploring the possible.
Imagine Wafer hears a 4AM banging on his door. He retrieves his home defense shotgun, and proceeds to his wooden front door. With the pistol-grip and short barrel of the Mossberg 500 he would be right up on the screen door the moment the wooden front door has opened. He’s holding the shotgun such that the rear-ward gripping hand is close to his body arm pit level. He reaches out with his left hand and opens the wooden door.
Meanwhile, in the course of McBride banging on the outer screen door, she has already managed to knock the screen and frame out of the door, and it now hangs much lower in the frame than would normally be the case. She continues pounding, relentlessly, and is still pounding when the interior wooden door opens.
Just as Wafer opens the front door enough to peer outside, McBride once again brings her fist down on the screen — this fist now, of course, traveling in a direct path towards the just awakened and already frightened Wafer. Seeing this object coming towards him, his body tightens in an instinctual defensive motion—including his right hand, and the finger around the trigger. The gun fires, the shot tears a hole in the fallen screen, and McBride is struck and killed.
Such a scenario would be consistent with Wafer’s initial statements that the shooting was an “accident,” while also leaving space for a claim of self-defense — that is, that a reasonable and prudent person in Wafer’s position, under the same or similar circumstances, would have perceived the approaching fist as an imminent threat of death or grave bodily harm. Indeed, under Michigan law, an attempt to breach his home would create a legal presumption that this fear was reasonable.
The forensic evidence needs considerably more development before a truly confident prediction can be made of its ability to support a self-defense claim. Frustratingly, much of the defense questioning of Balash “dead-ended” because certain Medical Examiner documents, on which Balash based his conclusions, had not yet been admitted into evidence (and the ME was not immediately available to take the stand, as needed to have them admitted).
Nevertheless, the defense’s questioning of Balash suggested the first possibly reasonable narrative of self-defense yet to emerge from the case.
[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, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.DONATE
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