Detroit Front Porch Shooting Case: Day 6 End-of-Day Wrap-Up
While the defense’s 87-year-old forensics expert makes prosecution look silly, their firearms expert provides evidence-based rationale for McBride having broken Wafer’s screen door prior
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.
[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.
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Wow, the obvious fear of the defenses witnesses is just palpable. So for it seems as if they are just destroying the prosecutions case.
Pity about tomorrow, with the case gaining the momentum it has.
BTW what is the status of the Curtis Reeves trial?
He was just let out on a $150,000 bond earlier this month, his attorney has been saying he’ll testify in his own defense, and his trial won’t be till next year. He’s got an intriguing defense strategy at this point:
Thought you might like that one 🙂
Amy is hating the “no edit button” issue, lol.
Get the popcorn ready for that one. (sorry, my bad)
I don’t know whether to upvote or downvote that one.
New one on me. Here’s one
which says that the prosecution has 100 people on it’s witness list.
I presume most are from the theatre. Is the defense supposed to depose all of them? Seems like overkill to me.
Calling Nocco makes sense to me. Calling the shooter would make even more sense. Be interesting to see if the shooter takes the fifth. Politically it would be disastrous.
Hmmm…..tantalizing. This will be interesting to see how it plays.
I’ve said many times that cops are excused from culpability in situations such as this due to the context of the incident and that citizens should be as well. A citizen should have no less right to defend himself than a police officer has. Add to that the training and experience that police officers have and we see that we’ve set a lower standard of care and restraint for a group of people who should be handling these situations better than non-law enforcement ‘civilians’ for whom we have set a higher standard of care and restraint. It’s backwards. If for some unfathomable reason we decide the standards shouldn’t be the same, then the higher standard should be applied to the trained officer, not the civilian who does not receive rote training for these situations.
We expect more professional performance from certified mechanics, doctors, contractors, etc., than we do from our shade-tree mechanic nephew, a self-designated medical advisor in a health foods store, and the local handyman. But when it comes to self-defense, we have reversed the levels of expectation. We have stood by while the gun-grabbers made their legislative inroads so far as to demand infallibility from and prosecution of a layperson using a firearm to protect him or herself while the police and the bodyguards of those same elitist lawmakers are armed to the teeth and ready to fire, often with little provocation.
I’m reminded of Miriam Carey, a black immigrant from Africa who worked as a dental hygienist. She went a bit nuts and crashed her car through blockades at capitol buildings in DC and took the cops on a blocks-long chase through the streets around the capitol because she thought Obama or the government were somehow communicating things to her through TV. She was unarmed and her baby daughter was in a child car seat in the back. The capitol police cornered her vehicle and as she exited, clearly unarmed and giving up, was shot down like a dog multiple times. She died of multiple gunshot wounds, all in the back except one to the back of the head, according to the medical examiner’s report which wasn’t released until SIX months after her death. Somehow, the follow-up investigation found no evidence of prosecutable wrongdoing on the part of secret service and capitol police (I guess the situation itself of a woman exiting her vehicle, hands empty and in plain sight, child in the back seat, and then being shot to death by a number of the on-scene dozens or so supposedly best trained officers in the country isn’t “evidence” when you don’t want it to be and you’re the rooster in charge of the hen house), so no charges were filed against any of the officers. It was a “good shoot.”
Here is the burden for a federal prosecutor when considering charges against a federal cop:
The report from U.S. Attorney Ronald C. Machen Jr.’s office emphasized that under the applicable federal criminal civil rights laws, prosecutors must establish beyond a reasonable doubt not only that an officer’s use of force was excessive, but also that the officer willfully deprived an individual of a constitutional right.
“Proving ‘willfulness’ is a heavy burden, and means that it must be proven that the officer acted with the deliberate and specific intent to do something the law forbids,” the statement read. “Accident, mistake, fear, negligence and bad judgment do not establish such a criminal violation.”
Think about that. Then think about the standard Zimmerman, Wafer, the guy in New Orleans, Dunn, etc., are being held to. Think about how we got to such legislation.
A get out of jail free card for thee, but not for me.
This happened near the Hart Senate building. When the senators learned of what had just happened outside and that the “threat” had been “neutralized”, our illustrious, well- protected, wise lawmakers gave the capitol police a standing ovation.
Protection for thee, but not for me.
Even here in gentle Tennessee, with little state government intrusion, a law called the “move over” law was passed back in 2006. It’s not a big deal, and other states have similar laws, but what it says is that a driver must merge into the further-away lane if possible, slow down when not possible to merge, any time police, emergency or utility vehicles are on the shoulder. It’s not unreasonable, except it doesn’t apply to pedestrians or private citizen breakdowns who might just as easily be on the shoulder.
Protection for thee, but not for me.
I like Branca’s articles; but man, somebody should have proofed this one before it was posted. It reads like it was dictated into a speech recognition program and the speaker was mumbling. “Keep your eye’s open?” tsk tsk.
As you might imagine, we have layers and layers of editors, and struggle to hit the right buttons on the keyboard as we drown in the wash of internet gold that washes over us each day. 🙂
Point out an error, we’ll generally fix it.
That’s about as good as it gets. 🙂
Picky, picky, picky. Andrew is a champ and does a wonderful service to the public by sharing his vast knowledge, research and insight with us. He’s a busy man with a job, a family, etc., yet here he is covering these cases and writing generally about self-defense. His readers benefit enormously from his writing. There is NOWHERE else on the ‘net to get the volume and quality of knowledge Andrew shares here.
I appreciate him tremendously and I know the others reading and posting here do as well. If you’re dissatisfied with the quality of Andrew’s posts or the editing, you may certainly look a gift horse in the mouth and go get your information elsewhere.
I LOVE LEGAL INSURRECTION!!!!!!!!!!!!!!!!!!!!!!!!
Truth lives here.
Also love the new Morning Insurrection, greatly added to my news day.
OK, I reverse myself on televising “high profile” cases. I would love to see a vid of the testimony of this 87-year-old Jedi master forensic pathologist.
He’s on youtube for TV appearances and other trials.
Master Spitz, wonder if he does his postmortems with a light saber?
BTW what is the makeup of the jury?
Not sure, I can’t remember if it has been mentioned as of yet.
the jury is 12 white, 2 black. i don’t remember the gender split.
Elisha Anderson, a reporter with the Detroit Free Press who was present at the court house, reported on July 22 (the day before the substantive start of the trial) that the jury was made up of 7 men and 7 women, 10 of whom were white and four of whom were black. I don’t know which two of the 14 are alternates.
Of the 7 women, 3 use L’Oreal, 2 use Shiseido, and 2 use Estee Lauder.
Andrew and others have said that if it was an accident, as Wafer is alleged to have originally said, then it can’t be self-defense. In that case, how did Zimmerman get off on self-defense? Didn’t he claim that even when his head was being bashed into the concrete, when he would have had every right to shoot Martin, he didn’t, and instead the gun went off when Martin reached for it? Or am I misremembering? If that is what he claimed, why didn’t this preclude his otherwise valid defence of self-defence?
It seems to me that if someone could lawfully kill in self-defence, but they show extra forbearance and choose not to, but end up accidentally killing the person anyway, it’s perverse to deny them the acquittal they could have got if they’d deliberately killed the person. They should be acquitted a fortiori. It seems to me similar to the ridiculous situation in Florida until recently, where if a person killed his assailant he would be entitled to an acquittal, but if he fired a warning shot he would be convicted. That was perverse, and that’s why the legislature fixed it, but it seems to me that this situation is just as perverse.
You are misunderstanding. Zimmerman basically decided to shoot once he thought Martin was going for his gun.
“here if a person killed his assailant he would be entitled to an acquittal, but if he fired a warning shot he would be convicted.”
That was never actually the intent of the statute, however you had a couple of ignorant anti-self defense, anti-gun judges that decided that was the way they were going to rule it so the legislature had to basically go write it in crayon for those ignoramus.
Re the distance of the shooter to the shot issue “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. ”
I am surprised. Isn’t the issue of how close McBride was to the inside of the man’s home more important than where Wafer, observing this, was standing when he shot?
Also isn’t it true that McBride actually broke Wafer’s screen door?
It would seem that McBride at least dislodged the screen from the screen door.
As far as the issue of how close McBride was to the inside of Wafer’s home. I tend to think the distance between the two parties is more important, besides since the investigators didn’t measure how far McBride was from the door during what is looking more and more like a shoddy investigation, well we will never know.
My apologies for not being clearer. I thought we need to first test if the man who shot has some plausible reason for doing so. We know that he was inside the house, that a person was at the door and that person dislodged the screen door.
I take this to show and claim that anyone inside the house would naturally think that the intruder was attempting to gain entry into the house. Why else dislodge the screen door.
Now the distance the house owner was to the person who dislodged the screen door is seen as a strong indicator by itself of the culpability of the shooter.
It is seen in as of itself that the further away he was to the person who dislodged his screen door should lessen his sense of a threat.
And that is the point of my posts in one way or another. For if he was up close he could have seen she was a babbling drunk, but the further away he was the more likely he would see the person who dislodged his screen door as an intruder and appearances as to her disability would be far less obvious.
I was addressing the assumption that the further away he was from the intruder the less of a threat we should think he felt.
I was presenting that he saw someone trying to force their way into his house, and the further away he was the more likely the intruder appeared threatening as details as to her drunk appearance would be less obvious.
In addition I was protesting the whole idea that ignored that the most important positional information was not how far the shooter was from the person he shot, but how far the person he shot was to the inside of his house.
I am not sure I agree that the further away he was the more scared he would be, or to put it the other way the closer he was the better able he would be able to tell she was drunk.
First I would have to ask what “drunk” looks like at 0430 on a rainy night on a dark front porch, because I have no idea what drunk looks like in broad daylight and I have been a Nurse for 20 years.
Also don’t forget the closer McBride was to the door the more aggressive simple actions can seem to a frightened person.
I doubt that the time between the door opening and the shot being fired would have given Wafer enough time to establish that she was drunk. Most likely he opened the door and something she did spooked him and he fired. I would be surprised if there was more than 2 seconds between the door opening at the gunshot.
All good points and well taken. I was only addressing the assumption, as I read it in the article, that per see the distance of the shooter to the person shot goes for the prosecution the longer the distance.
I think the truth of the matter is the issue and I can easily conceive of someone reacting out of fear at either a close or far distance.
Indeed if the guy was frightened what difference does the distance make.
Wafer was at the door, opening it. Therefore her distance from him was her distance from the inside of the house.