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GUILTY: Verdict in Detroit Front Porch Murder Trial

GUILTY: Verdict in Detroit Front Porch Murder Trial

Theodore Wafer has been found guilty of Second Degree Murder/Voluntary Manslaughter and weapons charges

The jury has returned a verdict of guilty of second degree murder/voluntary manslaughter and weapons charges in the trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013.  Trial Judge Hathaway has ordered Wafer imprisoned immediately, pending sentencing.

UPDATE: Sentencing scheduled for Aug. 21 to Aug. 25 time frame.

Wafer’s legal defense against the charge was self-defense.  The guilty verdict necessarily means that the jury unanimously agreed that the prosecution had disproved Wafer’s claim of self-defense beyond a reasonable doubt.  The two strongest arguments counter to self-defense were:

“Accident” and “I didn’t know the gun was loaded”

(1) Wafer’s early and repeated references to the shooting as an “accident,” including his claims that he was unaware the shotgun was loaded, only to later claim the shooting was an act of “self-defense.”

“Accident” and “self-defense” are logically inconsistent arguments.  “Self-defense” is an inherently intentionally act–I see a threat, I respond to the threat.  “Accident” is by definition something we do not intend.  When a defendant argues one, they generally lose the other–sometimes as a matter of law, often just in terms of the credibility of their narrative of innocence with the jury. The prosecution in this trial also requested and received a jury instruction on prior false exculpatory statements as consciousness of guilt evidence, and that certainly could not have helped the jury lean towards self-defense if they believed Wafer’s early claims of “accident” were an effort to escape legal jeopardy.

Unlocking and Opening the Steel Front Door

(2) Wafer’s decision to unlock and open the steel front door of his home. McBride never, in FACT, threatened entry–whatever she might have done to the screen door, there remained the steel door to get through. Had that steel door been substantively damaged or had there been any evidence to suggest an actual entry was imminent, I think Wafer would have been fine. Absent that, however, the jury likely expected him to hunker down and wait until entry was imminent before using deadly force–and certainly not to unlock and open that very steel door that was keeping the “intruders” outside.

Background of the Case

The undisputed facts of the case are that Renisha McBride was driving her car the night of November 1 while under the influence of some multiple of the state’s allowable blood-alcohol limit, as well as with active marijuana in her system. She crashed her car, disabling it, and apparently striking her head on the windshield. She abandoned the crash site and essentially disappeared for the next several hours.

Around 4:30 a.m. on the morning of November 2 Theodore Wafer was awoken from sleep by McBride banging on his front door. The defense claims the banging was alarmingly vigorous, and that there were similar sounds coming from other exterior doors and windows of the house. The state claims McBride was merely knocking on his door in a normal manner in order to seek assistance. Wafer, unable to immediately find his cell phone, retrieved his home-defense shotgun, a pistol-gripped Mossberg 12 gauge loaded with #4 shot. He approached the locked front door of his home, unlocked and opened it. He then discharged the shotgun through his locked screen door. The shot struck McBride in the face, mortally wounding her. Wafer located his cell phone, called 911, and police were on the scene within a few minutes.

Competing Narratives of Guilt and Innocence

The state’s narrative of guilt presents Wafer as a man who acted unreasonably to the presence of a 19-year-old black woman who was simply seeking assistance after a car accident.

The defense’s narrative of innocence presents Wafer as a homeowner awoken from sleep by noises reasonably consistent with a possible burglary attempt–his immediate neighborhood experiences some hundreds of burglaries and other violent felonies each year–and who fired in reasonable fear of death or grave bodily harm and from within his “castle” when suddenly confronted by the erratically behaving McBride.

Key to the defense’s narrative in it’s opening statement is that the hole in the screen of the screen door could only be positioned as found if McBride had used so much force on the screen door that the screen was knocked out of position prior to the shot being fired.

Wafer’s Testimony, Closing Arguments, and Prior Trial Events

On Monday, August 4th, Theodore Wafer took the stand in his own defense to explain in his own words the events that unfolded that fateful November 2 morning. He described hearing blows on his front and side door that were of escalating violence and hard enough to “shake the floor” of his home, putting him in great fear of attackers entering his home. With respect to the shooting he insisted that it was self-defense, it was “either them or me.” He described how he had opened his front door when suddenly a figure lunged at him from the right side of the doorway, and he fired instinctively in self-defense. Wafer’s direct examination by defense lawyer Cheryl Carpenter can be seen below:

Following his direct examination, Wafer was naturally subject to about two hours of cross-examination by the prosecution. Details of both can be read here: Homeowner Takes the Stand in Detroit Front Porch Murder Trial.  Events of the trial prior to Wafer’s testimony can be found here:  Detroit Front Porch Shooting Case: What you need to know heading into Week 3.  Events following Wafer’s testimony, including the closing arguments of the prosecution and defense, can be found here:  Detroit Front Porch Murder Trial: Closing Arguments, Jury Deliberations.

The Criminal Charge: Second Degree Murder/Voluntary Manslaughter

In any criminal trial 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.  (This second charge was agreed to by the judge only shortly before closing arguments.)

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.”

Self-Defense Under Michigan Law

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).

Verdict Indicates Jury Unanimously Rejected Self-Defense

The jury’s verdict of guilty necessarily means that they unanimously agreed that state prosecutors had disproved self-defense beyond a reasonable doubt, as was the state’s burden.

The most likely contributors to this conclusion discounting self-defense was Wafer’s early and multiple references to the shooting as an “accident”–which, as an unintentional event, is technically inconsistent with self-defense–and his unlocking and opening his front door, which may have been seen as being unreasonable in the face of a claimed threat.

This conviction follows on the heels of several other high-profile self-defense cases with varied outcomes.  In the trial of George Zimmerman for the shooting death of Trayvon Martin, Zimmerman was acquitted within hours of deliberations beginning.  In the trial of Michael Dunn for the shooting death of Jordan Davis, Dunn was found guilty of three counts of attempting to murder  companions, but the jury hung on the murder charge itself (Dunn is to be re-tried on the murder charge later this year).  In the trial of Joseph Walker for the shooting death of Joseph Harvey Jr., police officer Walker was acquitted just days prior to the resolution of the Wafer trial.

Upcoming Self-Defense Trials

Keep your eyes here on Legal Insurrection for detailed, expert coverage of upcoming self-defense trials, including the re-trial of Michael Dunn for the shooting death of Jordan Davis , and the re-trial of Marissa Alexander who is charged with three counts of aggravated assault having discharged a firearm past the heads of her husband and his two minor children.

–-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.

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Comments

Looks like emoting has trumped evidence this day. Will we see an appeal? And if so, on what grounds?

    Shane in reply to Czar Kasim. | August 7, 2014 at 4:33 pm

    I don’t believe that the defense adequately dealt with the issue of opening the door in the face of the danger. I don’t loose string as being emotionally driven.

    Shane in reply to Czar Kasim. | August 7, 2014 at 4:35 pm

    Also watching Wafer on the stand made me think that his testimony was heavily coached. Which doesn’t get to the heart of why what happened happened.

    I think if an appeal is attempted, it will focus on the clear language of 780.951(1)(a)&(b).

    The argument will be that “no reasonable Jury could have found that Defendant Wafer’s belief Ms. McBride was breaking into his home was “not reasonable” given that Ms. McBride had already beaten her way through the screen door and was pounding on the steel door.”

    The facts of WHAT the door was made out of, as well as the facts of the ACTIONS of Defendant Wafer in opening the door are irrelevant to that standard. Under ANY objective review of the facts, Ms. McBride WAS attempting to break into the house, even though she was being ineffectual in doing so.

    My guess is that an appellate Court overturns this, rather than it getting to the Supreme Court of Michigan (which I think would CERTAINLY overturn it, given the Court’s current make-up, and the “Gun Friendly” Legislature in Lansing.

    Here would be the “breakdown:” Chief Justice Young, Justice Markman, Justice Viviano, Justice Kelly, and possibly Justice Zahara for Textual reading of the law, and thus innocence. Young and Markman specifically are VERY well known textualists, and the literal reading of the text is rather clear on what actions on the part of the “invader” grants immunity to the Defending Homeowner.

    Justice McCormick, Justice Cavanagh against overturning verdict, due to a “guns are bad” mentality.

    Let me tell you this as well: NONE of these Justices wants to be on the end of a challenge funded by Michigan’s Pro-Gun-Rights groups, as they generally transcend “normal” party politics, and they can raise a phenomenal amount of money VERY quickly from the state’s 445,000 CPL holders if those licensees get even the slightest hint that their rights are being reduced.

    (Full Disclosure: I used to be the Secretary for both the Michigan Coalition for Responsible Gun Owners [MCRGO] and the MCRGO-PAC).

      sequester in reply to Chuck Skinner. | August 7, 2014 at 8:16 pm

      Interesting analysis.

      I agree, and it seems that while judge Hathaway allowed a general argument of self defense, he would not allow the defense to argue the specific Castle Doctrine.
      Hathaway decided for himself (with 20/20 hindsight and sitting in a comfy chair) that there was no break in or attempted break in – therefore the Castle doctrine could not even be argued.

      It would seem to me that at minimum, Wafer reasonably believed a break in was occuring, and in any case we cannot say that it must have been obvious to Wafer that no break in was happening.

      The judge should have allowed the jury to decide for themselves if a break in was happening, or at least decide if they believed that Wafer believed it. And the jury should have been allowed to consider all that in the context of the Castle Doctrine.

      And here is another point. It is entirely possible that some jurors thought a break-in was indeed happening, or at least believed that Wafer had a reasonable belief that it was. And yet on the balance of evidence, decided that Wafer acted wrongly in some manner by eventually opening the door and shooting.

      But those jurors could be blissfully unaware of the Castle Doctrine because it was not allowed to be argued. If they had known about the doctrine, then they would know that if they believed a break-in was happening, then Wafer had a right to use lethal force.

      So maybe this is would be a good line of attack on appeal.

Walker Evans | August 7, 2014 at 3:05 pm

This is shocking. The prosecution team presented a fragmented case based on police work that was, at best, shoddily done, while the defense presented a compelling case for self defense. The only thing Wafer did that was in any way “suspicious” was opening the front door and even that is understandable to anyone who has operated under extreme stress.

A verdict such as this makes me wonder about the wisdom of placing one’s life in the hands of a group of theoretical “peers”.

It’s surprising, but not shocking. As has been noted on this site many times, there are a lot of problems with his self-defense claim. Principally among them is this: If he thought his life was in danger, why in God’s name would he open the door? You may argue that he has a right to open his door, which is certainly true, but it casts a lot of doubt over his claim he was in fear for his life.

    That was the part I had the most trouble with too. I know it’s only a N=1 sample, but opening my locked front door to someone who’s out there scaring the baby cheeses out of me is nowhere on my safety list.

    Actual “Life in danger” is not the standard by the clear definition of the law. “Breaking into the home” is the clear standard which creates a rebuttable presumption that lethal force is authorized, because that makes the “presumption” that Life is in danger BECAUSE the invader is attempting to break into the home.

    Regardless of opening the door, if Ms. McBride lunged at the door, after having beat through the screen door, Defendant Wafer was legally privileged to shoot her, regardless of whether he even meant to or not.

      BrokeGopher in reply to Chuck Skinner. | August 7, 2014 at 10:53 pm

      You’re right — actual danger is not the standard. The standard is whether Wafer reasonably believed his life was in danger. His story is that the banging on the house was so aggressive that he believed the person or persons outside were trying to break in. And yet, despite that, he opened the door. That kinda destroys the argument that he had reasonable belief in such danger. No reasonable belief = not self defense.

    Mike19 in reply to BrokeGopher. | August 9, 2014 at 10:56 am

    I hear you, but people react differently to fear and danger. Some retreat and hide, while others advance toward it. It’s called fight or flight. He chose fight.
    But just because he is moving toward potential danger, does not mean he is no longer afraid. It is quite possible to be armed and still in fear.

    If that were not the case, then we would not have much of an army. Soldiers are always advancing in the face of fear.

Although I haven’t perhaps been following this case as closely as others, how could a jury rule otherwise?

It’s one thing to shoot someone who has actually entered your home. Or perhaps even someone attempting entry. But to open the front door, and shoot someone standing outside? Even if he was banging on the door, that seems to me a gross overreaction.

Perhaps it would have been more fair to find him guilty of a lesser charge than 2nd degree murder, but an outright acquittal… can’t see how that would be justified.

    Milhouse in reply to gravytop. | August 7, 2014 at 7:08 pm

    Banging on the door, loudly enough to alert the neighbors, and with enough force to knock the screen door off its hinges, is attempting entry. And when he opened the door and saw, out of the corner of his eye, a fist coming at him, what was he to think but that he was in danger? And remember that for self-defense purposes the porch is part of the home, so she’d already invaded it; why would he think she wouldn’t go further?

Correction to my above post: How could a jury *find* (not rule) otherwise?

Shocked that 2nd degree murder went through, given the prosecution’s general poor case, I thought he was gonig to walk, MAYBE manslaughter at the least.

But 2nd degree murder? That just boggles my mind. I literally cannot comprehend how that could happen.

    Under Michigan law, voluntary manslaughter IS second degree murder, the third variant of which is simply: “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.”

    The second charge with which Wafer was faced was involuntary manslaughter, added after closing arguments as a (I presume) potential compromise verdict. It would never have been a rational verdict, however. Either the jury believed SD, in which case they would acquit, or they did not, in which case Wafer met conditions for M2/voluntary manslaughter.

    And now we know the did not believe SD.

    –Andrew, @LawSelfDefense

    Ragspierre in reply to Olinser. | August 7, 2014 at 3:45 pm

    Given the choice between SD or NOT-SD, I would vote to convict, too.

    Now, I DO think there is a possible remand for a new trial on appeal over the issue of the prosecutor’s raking of the jury box with the shot-gun.

    We will see…

      Rags, see my above discussion – I think there’s a pretty good appeal here based on textual reading of the statute and breakdown of the Michigan Justices’ individual philosophical leanings.

        Ragspierre in reply to Chuck Skinner. | August 7, 2014 at 8:28 pm

        I have nothing to gainsay that with. My understanding of the case is pretty shallow, hence my equation.

        If I’m left with finding self-defene on these facts or voting ‘guilty’, I have to vote guilty.

        If your analysis is right, the case should be overturned, and really should never have been brought.

I find this verdict very disappointing but utterly unsurprising. It’s what I expected. I had hoped, for Mr. Wafer’s sake, that he might get a hung jury. I would’ve been shocked by a “not guilty” verdict. Pleasantly shocked, but shocked nonetheless.

I think a person can definitely take issue with how he handled the situation, but the fact is he was peacefully sleeping in his own home, at 4:30am, and living the life of a law-abiding citizen.

A reckless criminal who was evading police at the time after having had what appears to have been at least her 4th DUI, showed up at his home and engaged in behavior which could reasonably make someone who’d been woken out of a dead sleep in a neighborhood with crime seepage coming over from Detroit, that his house was being targeted for a home invasion.

What he did in the height of that sleep-deprived terror may have been less than ideal, and with hindsight we may all feel he should’ve acted differently, but she created the situation and she did not merely come up and politely knock or ring the door bell, and ask for assistance.

He never should have been charged with 2nd degree on these facts, let alone convicted of it.

I would not be at all surprised to learn that all the black jurors started out deliberations (and indeed the trial) already decided on “guilty of the worst option we’re provided” and if the white jurors were cowed into going along with that so as to avoid seeming racist, upsetting the black jurors, or causing turmoil in the “community.” Don’t want to feed the meme of racist disregard of black life right? Even if doing so may have been legally appropriate…

Ain’t diversity grand?

    If it’s your belief any given black juror is incapable of weighing evidence on its own merits when there’s a white defendant/black victim case; is it also your belief that any given white juror is similarly incapable of weighing evidence on its own merits when there’s a black defendant/white victim case?

      Laser Beam in reply to Amy in FL. | August 7, 2014 at 3:45 pm

      “If it’s your belief any given black juror is incapable of weighing evidence on its own merits when there’s a white defendant/black victim case; is it also your belief that any given white juror is similarly incapable of weighing evidence on its own merits when there’s a black defendant/white victim case?”

      Nope, it sure isn’t. If you have a time machine and want to go back to 1920 Alabama I might have a different answer for you, but in 2014 America I have no doubts about the ability of white jurors to fairly judge black defendants. The reason you get so much “racial disparity” in verdicts and sentencing, is due to racial disparity in actual crimes committed and actual brutality of the way they’re committed.

      I’m not saying there aren’t some racist whites who could end up on a jury today in America and be gunning for a guilty verdict for a black defendant from the word “go” but they are a tiny, vanishingly small group. Wheras simply by having 4 AA jurors as they did here, you are almost guaranteed to have at least a couple who will start out from the position of racial solidarity for any black party involved, and very likely an animosity toward any white (especially white male gun owner) who may be involved.

        Gremlin1974 in reply to Laser Beam. | August 7, 2014 at 4:16 pm

        I would actually go one step further and say that today you are also more likely to get a white juror who is more likely to let their “white guilt” get the better of them and sway their opinion.

    We have zero evidence at this point that any such racial cowering took place in the jury deliberations.

    Make no mistake, the jury had a rational basis on which to discount self-defense, at least two of them. This was no Zimmerman trial.

    Cheryl Carpenter had a far more difficult task than had Mark O’Mara, and she did a fine job.

    But as for all us lawyers when that phone rings, we’re limited to fighting with the weapons (“facts”) the defendant has provided us. If the weapons suck and leave the defendant vulnerable–well, you do the best you can.

    That’s precisely why I spend much of my time educating people to NOT do things that make defending them in a self-defense so very difficult, if not impossible. The key is not to try to recover from fatal errors after the fact, but to not make the fatal errors in the first place.

    Know the law. Adhere to it. Period.

    –Andrew, @LawSelfDefense

      Laser Beam in reply to Andrew Branca. | August 7, 2014 at 3:58 pm

      I hear you, and I agree this was a much worse case to be defending than was the Zimmerman case.

      Yet, you’ll note that the one juror who was gunning for 2nd degree in that case was the one “diverse” juror, and she said she was absolutely prepared to give them a hung jury on it. The only reason Zimmerman walked, if you have read Lisa Bloom’s book where she interviewed Maddy, and if you’ve watched Maddy’s post-trial interviews, was because Maddy was so breathtakingly dumb and unaware of well… anything, and so lazy and anxious to get home… that she was able to be persuaded to go along with the others.

      What I’d be curious to hear you weigh in on, as a lawyer, is whether it is even worth considering a fair trial if you as a defendant can end up with a juror who is basically zoning out the entire trial because the words are too big, and the detailed forensic testimony is too boring, and that punk O’Mara drones on and on… and besides, any time one person kills another it’s “murder” after all, right?

      Again, Bloom’s book and other info about Maddy make these conclusions about her entire posture in that trial unavoidable. Apparently she was the juror who was paying almost no attention throughout the trial.

      Are we, as Americans, not entitled to a jury who will listen and have triple digit IQs? Are we not entitled to experts testifying both for and against us who have a command of the English language (unlike Bao) and who can speak in a way so as to be understood by jurors who, in turn, have been demonstrated in voire dire to be in a position to intellectually even process such testimony?

      Serious question. It’s a very uncomfortable one, but I think the answer is obvious. Zimmerman lucked out HUGELY and no matter how strong his case was, he just as easily (more easily, in fact) could have ended up convicted.

      As for evidence of racial cowering and racial allegiance on the Wafer jury? I submit as my evidence Exhibit A: the condition of America circa 2014. Need I say more?

        Wafer to you was justified in shooting an intoxicated but deliriously induced wounded black person he outweighed who ONLY banged on his door.
        Walker to you wasn’t justified in shooting an intoxicated but hyped on energy drinks racially slurring,cursing,angry road rage fueled white person. Who outweighed Walker by 89 lbs. Had a 2nd person,came out of his vehicle in a fighting stance and refused to stop coming at Walker,even when his friend did.

          Phillep Harding in reply to m1. | August 7, 2014 at 8:34 pm

          Wafer did not have time to see who was jumping in front of him out of the dark. Your descriptives regarding Renisha McBride are pointless. Wafer simply did not know she was female, black, intoxicated, etc.

          Laser Beam in reply to m1. | August 8, 2014 at 5:05 am

          Are you the person I keep seeing consistently trying to mention this “Walker” case? I am completely unfamiliar with it so please don’t attempt to tell me my opinion on it.

        Ramanth in reply to Laser Beam. | August 8, 2014 at 4:57 pm

        I’m pretty sure that’s what voir dire is for. Making sure the jury is not biased.

        But I forgot, any jury with African American jurors will reach a guilty verdict for a white defendant. How silly of me.

        It appears you have animosity towards Black jurors. The Black jurors in the Wafer case. Maddy in the Zimmerman case. Yet you appear to have no animosity towards white jurors. In the Wafer case You say nothing against the white jurors that also convicted Wafer. You have nothing to say about the 5 white female jurors in the Zimmerman case.

          Gremlin1974 in reply to m1. | August 9, 2014 at 1:41 pm

          “It appears you have animosity towards Black jurors.”

          Look out everyone m1 is doing his happy dance, he finally finally got to accuse someone of racism!

          “Maddy in the Zimmerman case.”

          Yes, he notes that Maddy was one of the “Divers” jurors pretty much from there he references her behavior and unwillingness to look a the evidence and follow the jury instructions. According to more than one juror she had made her decision based on race and didn’t care about the trial or evidence. Or is it your position that when a black person is racist it shouldn’t be pointed out or that pointing out racism should only be done to whites. Whites whom frankly you seem pretty bigoted against?

          “Yet you appear to have no animosity towards white jurors. In the Wafer case You say nothing against the white jurors that also convicted Wafer.”

          I think he has been pretty clear that he thinks Wafer should have been acquitted due to self defense, so yes he does disagree with the white jurors.

          “You have nothing to say about the 5 white female jurors in the Zimmerman case.”

          Which really isn’t relative to your supposed point, since Zimmerman was Hispanic, frankly I am surprised that you aren’t trying to say that Zimmerman was racist for shooting Martin, but the white folks were also racist for putting him on trial.

          Gremlin1974 in reply to m1. | August 9, 2014 at 1:56 pm

          I have one for you m1, if you actually possess the integrity and courage to answer.

          I have a close friend who was called to jury duty a few years ago on a murder case, asian female, since that really seems to matter to you. A young black man had shot and killed a man who was cowering behind a counter and the evidence, which included video of the teen shooting, was pretty much iron clad, the only reason it was before a jury is because the prosecutors wanted the death penalty.

          When the jury went into deliberations they all went in and selected a Foreman. That Foreman decided to go start with an initial vote to see where everyone stood, just raising hands guilty, not guilty, undecided. The tally was 11 guilty, 1 not guilty, and 0 undecided.

          The single not guilty vote was a black lady. So the Foreman, an older Hispanic gentleman asked the lady why she thought he wasn’t guilty. The lady basically said, since I can’t remember the exact quote, that yes he did it, but it was due to his “circumstance” and that she was not gonna vote to add another “brother” to the prison population.

          The foreman and the other jurors asked that the lady be replaced with an alternate juror, however, the black judge refused to do that.

          What would you call that?

          (BTW, it was a hung jury and because of that lady the taxpayers payed for a second trail in which the young man was convicted in less than an hour during his second trial.)

      Ragspierre in reply to Andrew Branca. | August 7, 2014 at 4:03 pm

      …and DO NOT utter contradictory BS about “accidents” or “unloaded guns”.

      If you ever have to use deadly force, you should know WHY you did. Taking another human life is worth the analysis, even if it is made in an instant. If you are going to use deadly force, you need to pre-think the issue BEFORE you purchase a weapon.

        Gremlin1974 in reply to Ragspierre. | August 7, 2014 at 4:21 pm

        Advice I have given many times and sound advice. I call it having a no BS conversation with yourself.

        This is something I had to do, especially since I am a nurse. I have made a commitment to save lives and to heal the sick and injured and I had to have a real conversation with myself about whether I wanted to go through life armed and the possibility that I might be forced to take a life.

        In the end I came to the conclusion that I have done a lot of good over the years of my career and I wasn’t willing to let some criminal stop me from doing that good.

      Gremlin1974 in reply to Andrew Branca. | August 7, 2014 at 4:24 pm

      I think it should be noted that Mrs. Carpenter did what appears to be an excellent job of defending her client, verdict not withstanding.

        Laser Beam in reply to Gremlin1974. | August 7, 2014 at 4:27 pm

        Have to admit I wasn’t real impressed with her opening statement. She was tripping all over her own words and emoting strangely and missing dramatic beats, flubbing important moments, etc. I can only assume this was the case throughout the trial and in closing arguments as well.

        But I don’t believe a “not guilty” was ever on the table with this jury, in this county.

          Ragspierre in reply to Laser Beam. | August 7, 2014 at 4:45 pm

          Totally off-topic, but…

          are you any kin to Jim Beam?

          If so, please pass along my best wishes and admiration.

          Tell him I’m a fan.

Andrew — do you know of anything that can pass appellate muster as reversible error in this case? I can’t see a bunch of crime maps getting the attention of most appellate judges.

    Ragspierre in reply to sequester. | August 7, 2014 at 3:51 pm

    Just dipping my oar here, and not presuming to answer for Andrew, but…

    wasn’t there direct testimony by the defendant of his cognition of how the neighborhood was becoming a high crime area?

    What would a map do but impermissibly bolster that testimony and introduce heresay (unless introduced by an expert)?

      Haha, I don’t claim to have any particular expertise on the rules of evidence. I know what most practicing attorneys know, but get into the weeds and I’m looking for a relevant guidebook just like everybody else.

      I don’t think the crime map would have made a substantive difference. Wafer spoke to his personal knowledge of neighbor across the street having to use a pistol to fend off three attackers, repeated discovery of drug paraphernalia in his yard, vandalizing of his property–and don’t forget, the jury is local, they know what crime is like in the area, at least generally speaking.

      In any case, trial judge’s have VERY BROAD discretion on what evidence to allow and what to not allow. It’s very rare for such decisions to be grounds for reversal unless the appellate courts determines BOTH that there was error AND that the error was decisive in an unjust outcome. (I’m not using the legal “magic words”, but that’s the gist of it.)

      I don’t see much of that here. But, heck, if Wafer’s got the money to pay for an appeal, I assume he’s going to appeal. I sure would. Ted’s future is not looking awesome at the moment.

      –Andrew, @LawSelfDefense

        tom swift in reply to Andrew Branca. | August 7, 2014 at 4:07 pm

        and don’t forget, the jury is local, they know what crime is like in the area

        Whenever I’m summoned for jury duty in MA, I’m invariably sent to some courthouse at the ass end of nowhere, even though there is a large and very busy courthouse in my town.

        I’m in the Western ‘burbs and have been for nearly half a century. I haven’t the faintest idea what crime is like in Saugus or Lawrence.

        Just found your web site. Very interesting discussions.
        Is there anywhere online that I can find complete written transcripts and/or video recording of the Wafer trial proceedings?

          Gremlin1974 in reply to Mike19. | August 9, 2014 at 2:00 pm

          None as of yet. Its a bit early for that kind of stuff to be available, especially in a bureaucratic nightmare like Detroit.

      sequester in reply to Ragspierre. | August 7, 2014 at 4:15 pm

      You mentioned prosecutorial misconduct (raking the jurors with a shotgun) as a possible basis for appeal. I don’t know what constitutes misconduct in Michigan but I have seen the standard defined as “use of deceptive or reprehensible methods to attempt to persuade either the court or the jury”.

      I willing to bet there is very little case law on prosecutors raking the jury with shotguns. Does anyone want to take a gander on the strength of this misconduct as an appellate issue?

        Ragspierre in reply to sequester. | August 7, 2014 at 4:25 pm

        Well, generally…

        even though a lot of our jury argument is patently emotional…

        anything that is uniquely prone to incite an emotional response in the jury is considered out-of-bounds.

        Jury verdicts have been overturned because counsel got excited about calling people bad things when the evidence didn’t support that.

        In case where I was trying a survivor’s action for their kid, and where the evidence showed the kid had been administered 8 bags of whole blood trying to save him or her, I would not waggle 8 bags of whole blood in front of them. I can do the same by using words, without risking my verdict.

          As a note, and civil, not criminal – A jury verdict was recently overturned and a $900K verdict reversed by the 8th Circuit in a Sex Harassment case because the Attorney told a PERSONAL Law School sex harassment story at closing.

          So, no. It doesn’t take much at all.

        Gremlin1974 in reply to sequester. | August 7, 2014 at 4:29 pm

        I would think that it would more lead to sanctions against the attorney than grounds for appeal, but that is just me.

        MouseTheLuckyDog in reply to sequester. | August 7, 2014 at 6:54 pm

        Actually I didn’t think this would have much of a chance on appeal.

        But now that I think about it, this may very well be very significant. The reason is that the judge at the very least should have interviewed the jury and determined what effect it had on them.

    ajt36 in reply to sequester. | August 7, 2014 at 6:21 pm

    A common misconception about appeals is that it is a “do over” before the appellate courts. It can get you a “do over” in the form of a new trial, but appellate courts don’t correct jury errors, that is, the jury didn’t believe the right version of the story. They correct legal errors. If 5 witnesses testified that Wafer was defending himself from an armed McBride and one witness testified she dropped the gun (knife, whatever) and he screamed “I’m gonna kill that bitch” then he shot her, and the jury believed that one witness over the other 5, then there is nothing an appellate court is going to do to fix that. Your shot to win was at trial.

    The “shotgun sweep” is certainly a possible “legal issue” but did Wafer’s lawyer make an objection to what happened on the record? If not, then most likely, the issue is waived. Then it becomes a post-conviction issue and he can argue his attorney was ineffective in failing to preserve that issue. But then you have added a couple of additional elements to your “prosecutorial misconduct” claim in the form of proving ineffectiveness of your trial lawyer first.

    A large majority of convictions on appeals are upheld. In my state, it is 80% at the intermediate appellate court. Once you get to the state Supreme Court, which is less concerned with correcting “legal errors” and more concerned with clarifying novel or undecided legal issues in the state, you have about a 1% chance of them even agreeing to take your case. Then you have to win it.

    That’s why you keep your mouth shut until you’ve talked to your lawyer. If you do feel like you have to talk at the scene, you tell one story (self-defense), not two or three stories. Wafer’s story was nonsense. I’m not surprised he was convicted and even if he gets a new trial on appeal, I don’t think the outcome is going to be different.

      Ragspierre in reply to ajt36. | August 7, 2014 at 11:30 pm

      Yeah, there was a motion for mistrial, which was overruled.

      That preserves error for the appeal.

    sequester in reply to sequester. | August 8, 2014 at 9:31 am

    Chuck Skinner makes the very interesting point that a strict reading of the Michigan Self-Defense Statutes means

    The facts of WHAT the door was made out of, as well as the facts of the ACTIONS of Defendant Wafer in opening the door are irrelevant to that standard. Under ANY objective review of the facts, Ms. McBride WAS attempting to break into the house, even though she was being ineffectual in doing so.

    Chuck seems to believe that given strict textual interpretation of the Statute and the fact that the curtilage is part of the home, the issue of why Skinner opened the door should never have been raised by the prosecution.

    It is an interesting argument and Chuck probably has a better grasp than most of us on Michigan Case Law. If he is right, than arguments Wafer should not have opened the door will constitute reversible error.

    Does anyone else have as detailed knowledge as Chuck on this issue.

    By the way Rags, thank you for pointing out the potential importance of the shotgun sweep for appellate review.

The pproblemwith ted wafer’s self defense claim,was there was no self defense. Ted shot a deliriously induced and intoxicated wounded girl out of pure agression . Renisha banging on his door ONLY wasn’t a threat. The verdict is just.

    Laser Beam in reply to m1. | August 7, 2014 at 4:01 pm

    Got any evidence of aggression on his part? Let alone pure aggression with no other factors playing in?

    I think it’s really almost undebatable that it was fear which caused him to shoot, the only question was whether that fear was reasonable and I grant you that a very legitimate question can be raised on that.

    But to claim it was aggression or racism or any of the other silliness people are saying? Totally absurd.

    tom swift in reply to m1. | August 7, 2014 at 4:28 pm

    “Pure aggression”? From a middle-aged guy who was asleep in bed?

    Wow, your sleep habits must be somethin’ else.

    Gremlin1974 in reply to m1. | August 7, 2014 at 4:30 pm

    Ahh, I see M1 is back trying to stir up racial tension again and look for reasons to call someone racist.

      I offered a analysis of the threat Wafer faced. No usage of the word racism as LaserBeam stated,nor looking for a reason to call someone racist .

        Gremlin1974 in reply to m1. | August 7, 2014 at 9:47 pm

        Well, Bless your heart, that would be the only time you haven’t.

        tom swift in reply to m1. | August 7, 2014 at 11:35 pm

        Ted shot a deliriously induced and intoxicated wounded girl out of pure agression

        I offered a analysis of the threat Wafer faced

        What you call “analysis” a normal person would call “bigotry”.

        Gremlin1974 in reply to m1. | August 8, 2014 at 8:52 pm

        Yes, however you “analysis” is flawed, because Wafer had no way of knowing any of those things and had no time to glean them before the fatal shot. So your argument is basically crap.

    Phillep Harding in reply to m1. | August 7, 2014 at 4:33 pm

    To address only your argument, he was not able to directly observe Renisha McBride long enough to know anything of the sort about her.

    Your argument relies on the defendant being omniscient, and is, therefore, childish, foolish, and lacking sanity.

      Are you saying Wafer didnt see McBride , theerson he shot?
      How do you feel about the acquittal of Detective Joseph Walker in the killing of Joseph Harvey?

        You have a habit of doing this, child, asking people who are are on one post discussing the trial at hand, how they feel about some other trial that’s been equally well covered (and commented-on) here.

        You can find out how any given commenter felt about the Walker trial by going and reading what any given regular commenter SAID about the Walker trial.
        Here –> https://legalinsurrection.com/tag/joseph-walker/

        You’re welcome 🙂

        Phillep Harding in reply to m1. | August 8, 2014 at 1:08 pm

        From all I’ve read, Wafer reacted, properly or improperly, to the perception of an immediate threat. A startle reaction.

        You basically accuse him of knowing and intending to shoot a person he knew to be female, knew to be black, and disoriented for some reason.

        He may have, but I’ve read nothing at all to support any such claim.

Not surprised here either. Eliminate the dross, and what you have is a man that voluntarily opened the door of his house and blasted a young woman off his porch. He should have called the police. He should have stayed inside his house unless he knew he had the presence of mind to calmly assess the threat before employing deadly force.

If you’re badly frightened and jumpy to the point that you might shoot a dark shape on your porch without first identifying whether that dark shape represents a threat, stay inside and look for your phone however long it takes.

If you’re the type of self-sufficient man that refuses to rely on the police to defend his own home, then here are a couple of reasonable steps to take before shooting: 1) stand at your door and demand to know who’s out there. If there is no response, reconsider waiting for the police, because the next reasonable step involves accepting some risk; 2) open the door and find out who is out there. Unless you positively identify a deadly threat (such as seeing a knife or gun being brandished in a threatening manner), you should not shoot. Yes, you could be assaulted and perhaps killed by the dark shape lunging toward you from the side of the door. If you are that risk averse, stay inside and wait for the cops.

If your life is so precious that you’re willing to take another’s at the first sign of a threat, then you should stay as far as you can from threats, or alternatively, be prepared to do time.

I think justice was served here. The victim may deserve the Darwin award for serial bad decisions, but I’d hate to be the one to deliver it, and I believe I would not have in this situation.

    tom swift in reply to Immolate. | August 7, 2014 at 4:10 pm

    The concept of self defense is not contingent on the defender making nothing but optimal decisions.

      “The concept of self defense is not contingent on the defender making nothing but optimal decisions.”

      Very true. “Detached reflection cannot be demanded in the presence of an uplifted knife.”
      Brown v. United States, 256 U.S. 335 (1921)

      But while those decisions need not be optimal or perfect, they do still need to be reasonable.

      In the minds of the jury.

      –Andrew, @LawSelfDefense

        Andrew – Here, I don’t think that the decisions even need to be reasonable given the actual text of the law in question.

        If the Prosecution could show “actual malice” I think there might be a different result, but with what we’ve got so far, I think Defendant Wafer has a better than average chance at a successful appeal, if he can raise the funds to do so.

    Gremlin1974 in reply to Immolate. | August 7, 2014 at 4:59 pm

    I would have never opened the door and I would have shouted that I was armed and prepared, while searching for my misplaced cell phone. But that ain’t what happened.

    Phillep Harding in reply to Immolate. | August 7, 2014 at 5:23 pm

    The only information we have on the subject, his statement, contradicts your statement that he “blew a young woman off his porch”.

    I will ignore the hyperbole, “blown off the porch”? That does not happen except on TV.

    But, from what he said, he fired on someone who startled him, a shadowy figure he had no way to identify as male, female, or Romulan.

    Shane in reply to Immolate. | August 7, 2014 at 5:37 pm

    @Immolate

    You have obviously never been in a violent confrontation. I will point out each in turn why I believe this.

    what you have is a man that voluntarily opened the door of his house and blasted a young woman off his porch

    Corrected: what you have is a man that voluntarily opened the door of his house and was surprised by a someone moving quickly into his field of view, and pulled the trigger on his gun because he was surprised.

    You are displaying hindsight bias. And you are mixing it with emotion to strengthen your belief.

    He should have stayed inside his house unless he knew he had the presence of mind to calmly assess the threat before employing deadly force.

    Corrected: He should have stayed inside his house where it was safe and the need for deadly force was minimized.

    Calmly assessing a threat when your in a panic is nigh impossible. That is why as a person who may need to employ deadly force will “run scenarios” over and over in their head and then in a simulated environments. The reason they do this is so that when they aren’t thinking in the moment then the thinking they did beforehand will kick in.

    If you’re badly frightened and jumpy to the point that you might shoot a dark shape on your porch without first identifying whether that dark shape represents a threat, stay inside and look for your phone however long it takes.

    Corrected: stay inside and look for your phone however long it takes, or until the threat comes inside.

    Even having a gun does NOT guarantee a good outcome. Things can and will go wrong, it is just the nature of it.

    If you’re the type of self-sufficient man that refuses to rely on the police to defend his own home,

    This statement is utterly stupid.

    Too many survivalist magazines and you start to think in this stupid and dangerous manner. Answer this question to yourself, what is the most important piece of equipment an officer carries? Hint: it isn’t his gun.

    1)stand at your door and demand to know who’s out there.

    And have said door kicked in your face, or if you are a woman revealing your gender. Bad idea. If someone is making that much racket try to see what is going on if it is safe and do this while you are calling the police.

    2) open the door and find out who is out there.

    This is EXACTLY what Wafer did. How did that work for him. A gun is not a Talisman, it is not an I win button, it does not give you super powers. Having a gun doesn’t make you invincible. Things can and will go wrong even with a gun in your hand. Let the police see who is out there, whether you have a gun or not.

    Unless you positively identify a deadly threat

    This statement REALLY shows your complete lack of understanding. By waiting that long to gain 100% assurance, you are already dead.

    Yes, you could be assaulted and perhaps killed by the dark shape lunging toward you from the side of the door. If you are that risk averse, stay inside and wait for the cops.

    Corrected: stay inside and wait for the cops.

    It is not about risk, it is about odds and the best odds for all involved is to if possible avoid the confrontation in the first place. Deadly force makes things complicated, bad things come from complication. KISS.

    If your life is so precious that you’re willing to take another’s at the first sign of a threat, then you should stay as far as you can from threats, or alternatively, be prepared to do time.

    Another completely moronic statement.

    Your life isn’t precious to you? You would be willing to give it up to a complete stranger. Maybe you would be willing to give it up to a criminal?

    So I should stay in my house and do nothing and lock all of my doors, because my life is precious to me, because my only alternative is jail?

    I think justice was served here. The victim may deserve the Darwin award for serial bad decisions, but I’d hate to be the one to deliver it, …

    I think that if you eliminate all of the dross of the rest of what you wrote then this would have been good for you to say.

    … and I believe I would not have in this situation.

    If you have a gun you have just stated all of the things that will go wrong if you ever have a deadly confrontation and I think you will be in no better place than Wafer.

    If you own a gun I highly suggest that you take a force on force class, you will make you and those around you safer. The added bonus is that your chances of being in a lethal encounter will go down dramatically.

Wafer is going to spend many years in prison. It is a shame. I don’t think he had any intention of committing a criminal act.

If Wafer had read and understood The Law of Self-Defense he might be walking home today. His inclupatory statements might never have been made to first responders and investigators.

    Sadly, I have a file of letters–almost invariably written on yellow legal pad in pencil–from folks in prisons around the country essentially saying, “If only I’d read your book first, I wouldn’t be here now.”

    The issues around the “accidental killing” are ones I deal with at some length in both the book and the Law of Self Defense Seminars. For exactly these reasons.

    Also why I teach, in “building a legally-sound self-defense strategy” to ensure that the aggressor has had to come to you if he’s going to get shot by you, and not the other way around.

    –Andrew, @LawSelfDefense

      Laser Beam in reply to Andrew Branca. | August 7, 2014 at 4:10 pm

      I purchased my first ever firearm for home defense last year. Having read a lot of what you’ve said and having paid close attention to the Zimmerman trial and others, I feel confident that I will act in ways which will put me in a minimum of legal jeopardy if I am ever faced with such a situation.

      But to be completely, brutally honest, as I am fond of being – my first and far more effective line of defense is living where I do. A town woefully lacking in “diversity.”

        Laser Beam in reply to Laser Beam. | August 7, 2014 at 4:12 pm

        Oh and the main reason I even got a firearm was an act of defiance against the anti-gun nonsense coming down from Washington, and specifically that which was taking place in my state (Connecticut.)

        The tighter they squeeze…

        tom swift in reply to Laser Beam. | August 7, 2014 at 4:20 pm

        A town woefully lacking in “diversity.”

        Yes, those places are nice. I grew up in one like that. They’re still what I think of as America. Plenty of guns; they even had shotgun shooting competitions on the highschool grounds near the center of town on suitable occasions like July 4th. But nada for violent crime, even during the tourist season.

        I think the only firearm homicide we ever had was committed by an LEO; some kind of federal park ranger who shot his wife and daughter.

          Laser Beam in reply to tom swift. | August 7, 2014 at 4:25 pm

          Glad you understand what I’m saying and aren’t afraid to agree out of PCness, tom.

          I was lucky enough to grow up in a place like this too, though in a very different and distant part of our nation. There are still pockets, sadly they are shrinking.

          And yes, they are the real America. When they are gone, there will be no America worthy of the name.

          The paradox of growing up in such a safe place is that I didn’t appreciate what I had until I’d put myself in other types of environments for a while. Now I’ll never live anywhere other than someplace like this, and if anything I’ll try to move somewhere even more like this.

        Gremlin1974 in reply to Laser Beam. | August 7, 2014 at 4:36 pm

        Do yourself the added favor of reading Andrew’s book and if possible attend one of his seminars.

        (Andrew, BTW I got my slides thanks so much!)

        The book is great and the seminar fills in the gaps that you might have after reading the book. Also there is nothing like having the man himself right there in front of you to ask all the goofy questions that you might have.

        Shane in reply to Laser Beam. | August 7, 2014 at 5:44 pm

        @Laser Beam

        Please test understanding by taking a force on force class.

        Then and only then can you be assured that what you have learned has been integrated properly.

    Laser Beam in reply to dmacleo. | August 7, 2014 at 4:22 pm

    Yea I’m not sure they treated this with the proper gravity.

    This wasn’t some guy who got into a bar room brawl and killed someone in the process. This wasn’t even someone like Zimmerman who was out actively engaging with someone (though not directly, and yes Zimmerman was 100% justified in what he did) – this was a guy asleep peacefully in his own home at 4:30am.

    And it’s not as though she politely tapped on the door.

    So whatever misgivings a jury might have about how he reacted, I would think a law-abiding, home-owning member of our society should get at least enough benefit of the doubt and presumption that he really was in fear, in that sort of circumstance… so as to avoid the fate of spending the rest of his life in prison for not reacting perfectly to a drunk, high criminal convincingly creating the impression of a home invasion complete with multiple assailants in progress.

      Gremlin1974 in reply to Laser Beam. | August 7, 2014 at 4:57 pm

      I don’t necessarily thing the jury didn’t think Wafer was in fear, however, there is evidence that he fear might not have been reasonable. Remember the reasonableness aspect actually has 2 sides the Objective and the Subjective.

      I don’t think there is any question that Wafer was subjectively in fear, he testified to as much.

      However, then we have the Objective reasonableness of fear that a objective reasonable person would have been fearful in the same situation. I think him opening the door just blew this one all to pieces for him.

“The two strongest arguments counter to self-defense were:
“Accident” and “I didn’t know the gun was loaded””

IOW – STFU !!!!

“Wafer’s early and repeated references t are responsible the shooting as an “accident,” including his claims that he was unaware the shotgun was loaded”

I gotta agree, if your gun was loaded and ‘you didn’t know it’, you are responsible for with happens next with it, like when you pull the trigger.

First rule of guns = ‘There is no such thing as an unloaded gun’.

    creeper in reply to pjm. | August 8, 2014 at 1:10 pm

    First rule of guns = ‘There is no such thing as an unloaded gun’.

    Which is why getting this overturned after the prosecution swept the jury with the shotgun should be a slam dunk.

Honestly, I was hoping for a Not Guilty, but I am not at all surprised. I was never able to get rid of the little voice in the back of my head that said; “he shot her by accident, and that isn’t self defense”.

Like it or not Wafer made many mistakes during this situation from opening the door, to know knowing if his gun was loaded, to not having a clear target when he fired.

Also, after watching him testify in his own defense, I am not sure that it helped him, he seemed uncertain and understandably scared. Frankly, after watching his testimony I am more convinced this was an accidental shooting than I was before and not intentional self defense.

I believe that Wafer was afraid, very afraid, but the other signs of neglect in gun safety lead me to think he probably mishandled the firearm and accidentally pulled the trigger.

I hate it for him, but we have to live with the consequences of our decision. The consequences of her irresponsible negligent behavior was that it cost her her life, had she not CHOSEN to get blindingly drunk and use illegal drugs she would have most likely never been on Wafers porch. Had Wafer followed the rules of gun safety and frankly common sense it would not have cost him his freedom.

Andrew is very very honest about this in his book and seminar, even if you do everything just right 12 people can still send you to jail for the rest of your life. However the more you do right the better your chances of that not happening. In Wafers case the things the “did wrong” just sunk him.

So if you shoot a drunken criminal fleeing from police, kicking in your door, you can expect to spend the rest of your life in a cage. Wonderful.
Only one person was committing multiple felonies that night. Only one person was drunk and high. Only one person was pounding down a door in the middle of the night. And while Renisha McBride was doing all of that, Theodore Wafer was at home sleeping, not bothering anyone. Yet when put in a chaotic situation of her making, Mr. Wafer is expected by law to make perfect, legal, rational decisions on the spot. No room for error. Perfect decisions, right now. At 4am. Or less life in a cage for you.

Meanwhile, government enforcers can kick in your door in a mistaken raid on the wrong house and shoot you dead in the middle of the afternoon and nobody goes to jail.

What a wonderfully ridiculous system we have. Best in the world I’m told…

    Phillep Harding in reply to mmagnus. | August 7, 2014 at 5:35 pm

    Wafer was convicted of “Felonious verbal stupidity”.

    He might have gotten off if he had kept his mouth shut (first choice) or said he was startled and grabbed the shotgun, making it fire before he was actually ready to pull the trigger. Pretty much the same thing as what he said, I think, but puts it a way that is easier for someone to sympathize with.

      Milhouse in reply to Phillep Harding. | August 7, 2014 at 8:59 pm

      Unless and until we hear from a juror or three, you don’t know whether this harmed him or not. You’re speculating that this influenced the jury, but it’s just as likely that had he shut up the outcome would have been the same.

Char Char Binks | August 7, 2014 at 4:56 pm

Wafer had a steel front door; I wonder if he had steel walls and steel windows. Apparently, a teen with a criminal record, including 4 previous DUIs, can get smashed and smash her car into another car, leave the scene of an accident, pound on a man’s door in the dead of night, breaking his screen door of the hinges, and it’s his responsibility to see that she gets through all of this safely.

    Char Char Binks in reply to Char Char Binks. | August 7, 2014 at 5:16 pm

    And furthermore, despite the steel door, his flimsily built one-storey home was more like a house of sticks than a fortress. He didn’t have Andrew’s option of waiting at the top of the stairs with a gun at the ready.

    A steel door is not a safe.
    A steel door with a wood frame will slow down a violent criminal exactly one solid kick’s worth of time. Having a violent criminal on your porch, beating on your door, does not make me feel like “Well, I can call the police and they’ll be here in an hour or so…”
    (Yes I know they showed up in just a few minutes. But that was *after* the shot was fired.)

      BrokeGopher in reply to georgfelis. | August 7, 2014 at 11:02 pm

      And yet after several minutes of aggressive banging, the door was not breached. That means that either the person outside can’t breach the door, or they’re not trying to. Either way, you have time to call the cops. The threat doesn’t become imminent until they get through.

Char Char Binks | August 7, 2014 at 5:06 pm

The pros. lied, is that grounds for appeal? I call claiming that McRib only “wanted to go home” lying — they had no idea what she was thinking, and at 0.215 BAC, she probably wasn’t thinking at all. And saying that Wafer sought a confrontation — how, by making her crash her car and wander drunkenly to his house 3 hours later? That was a bald-faced lie.

    The seeking a confrontation issue was when he opened the door. If there is someone on the other side of a locked door that you believe is looking to harm or kill you, do you open it?

    Hell no.

    Especially if you’re unsure whether or not the firearm you have is loaded. I would have made damn sure it was loaded.

    I know for a fact that all of mine are loaded. I know when I pull that trigger its going to go off. I would have had mine at the ready and would have been on the phone with the police. Would have been ready to drop that phone at any time and pull the trigger the second that door burst open or when someone started breaking in through a window.

    I most definitely would not have opened that door. Last thing in the world I would have done in fear of my life.

    So that’s what they mean by seeking out the confrontation. The prior circumstances did not matter. Only that specific moment in time.

      Phillep Harding in reply to TB. | August 7, 2014 at 5:57 pm

      I think you are assuming he is one of those who become fully aware when they wake up in the middle of the night, even if they are startled awake.

      Don’t bet that you would be, even if you normally wake up like that.

        Gremlin1974 in reply to Phillep Harding. | August 7, 2014 at 8:24 pm

        Uhhh, I kind of have do disagree with you on that, yes generally being startled awake most folks aren’t fully upt to snuff, however, lets not forget that some time did pass between Wafer being awakened and the fatal shot.

        Now it probably wasn’t much time, but from his own testimony he woke up, looked for his phone, got his bat began to approach the door, decided the bat wasn’t enough, “crawled” to where his shotgun was stored retrieved it and returned to the door.

        Lets say all that happened in somewhere between 1 and 3 minutes. With the aid of adrenalin that is more than enough time to shake off the cobwebs and be fairly clear headed.

          Phillep Harding in reply to Gremlin1974. | August 7, 2014 at 8:48 pm

          I’ll have to go with my own experiences on that matter. I usually wake fully, immediately. Unless I am awakened out of my 30 to 60 minutes of deep sleep every night. It can then take over 5 minutes for me to awaken fully.

      Char Char Binks in reply to TB. | August 7, 2014 at 5:59 pm

      Wrong. McRib banging her 184 pounds on his tiny, rickety house (look at the pics online, it’s smaller than many one bedroom apartments) hard enough to bloody her hand and knock the screen door off the hinges, and loud enough to wake Wafer AND a neighbor at 4:30 a.m., started the confrontation. He, not you, had to make a decision on whether to stay inside (no going upstairs in that one-storey house of sticks). W didn’t invite or lure her to his house. He didn’t seek that. She chose HIS HOUSE, for some drunken, hazy THC-addled reason. You’re right about guns, but he didn’t say he thought the gun wasn’t loaded, he said he forgot it was loaded. Not the best admission to volunteer to the cops, but nobody’s perfect. Certainly a 19-year-old with a criminal record, including FOUR DUI CONVICTIONS was not perfect, and we’re all better off with her gone.

        Again, I will ask.

        If you are in fear for your life, have a firearm at the ready, and there is that sort of banging on your door, do you open it ?

        The tactical disadvantages of doing so should be evident.
        Creating less distance between you and your target is not prudent. It is fairly easy to grab and move away the barrel of a gun before the trigger can be pulled.

        My guess is that it was that one thing that the jury focused on. If Mcbride had broken into his home and gotten shot, there wouldn’t even be a trial.

        This is that invisible line Mr. Branca was referring to in his book where people inadvertently lose the right to claim self defense.

    Who is McRib?

      Chem_Geek in reply to m1. | August 9, 2014 at 4:09 am

      It is a hateful, bigoted anti-fat slur against the overweight or obese (I haven’t done the calculations) McBride.

        Gremlin1974 in reply to Chem_Geek. | August 9, 2014 at 1:58 pm

        5’4″ and 180 she was a bigger girl.

          Chem_Geek in reply to Gremlin1974. | August 9, 2014 at 3:30 pm

          BMI 30.9, and therefore obese.

          Now, that actually is a point in Wafer’s favor – suddenly and in the dark, a big person is in general more frightening than a smaller person would be.

filiusdextris | August 7, 2014 at 5:21 pm

I watched The Pelican Brief a couple of nights ago and almost this exact situation played out. Denzel is in his cabin in the woods after several killings involving people in his story when someone makes a huge ruckus outside at night (and yes, spooky music is playing). Unbeknownst to him, it is his friend, Julia Roberts. Denzel grabs his shotgun, walks outside on his porch to investigate. He is obviously brave (stupid?) but terrified.

The difference? I guess he was able to identify her before firing. If her presence had startled him on the front porch first, we might have the Wafer case. Had he done so, I would have given a “not guilty”.

    MouseTheLuckyDog in reply to filiusdextris. | August 7, 2014 at 5:54 pm

    This is not the first thing that I wanted to reply to but I think that in the Pelican Brief, if Denzel had shot Julie, being tried would not be a problem. The bad guys would make sure he was found in his cell having hung himself.

    The bare-nekked bleach blond bimbo going into the basement where the noise is coming from is a trope now. ( We used to call them cliches. ) People like to think that they would be smarter then her, but they all ignore one fact. They know it’s a slasher flick, she doesn’t.

Fear has to be reasonable. Overly fearful people’s fear is not “reasonable.” In my area over the years we’ve had a number of examples of this. E.g. Grandpa shoots and kills his visiting teenage granddaughter as she tries to sneak back into the house in the middle of the night. E.g. Stepmother shoots and kills stepson who unnacouncedly let himself into the house in the middle of the day and goes to take a shower.

If the neighborhood was so crime-riddled, why didn’t he keep his cell phone handy before taking a snooze, and why wouldn’t he be as equally likely to assume that someone is a victim and needs help.

We’ve seen good self-defense cases against homes beseiged by threatening hoodlums. This is one: http://www.youtube.com/watch?v=bp5gAY6aIjA This is another: https://www.youtube.com/watch?v=z-MvfDW8MOk

    MouseTheLuckyDog in reply to janitor. | August 7, 2014 at 6:04 pm

    The phone is not that surprising. I don’t have a phone, but I do have a tablet. I plug it in to recharge almost every night. Almost every night. But sometimes I’m just too tired.

    He could have gone to bed and not left it where he usually does. Once he’s awoken he can’t find it in the dark. What you say turn on the light? And they call him stupid for opening the door.

There are several lessons to learn from this case, but these are the three most important ones:

1- Do not talk to the police. (Without your attorney present)

2- Do not talk to the police.

3- Do not talk to the police.

    rocketmax in reply to Exiliado. | August 7, 2014 at 7:28 pm

    Best post on the subject! 100% correct.

    Milhouse in reply to Exiliado. | August 7, 2014 at 9:03 pm

    You’re speculating that this influenced the jury. For all we know refusing to speak to the police would have turned the jury even more against him. Until and unless we hear from someone who was in that room, we don’t know what motivated them. Those who think racism had a lot to do with it have as much basis for their speculation as you do.

      Exiliado in reply to Milhouse. | August 7, 2014 at 10:45 pm

      Fact: He talked to police. He said it was an accident. He said he did not know the gun was loaded.

      Fact: “Anything you say can and will be held against you..”

      Fact: What he said was indeed used against him.

      Inference: There is no benefit in talking to the police.

      That’s not called “speculating.”
      It is called reasoning.

      Gremlin1974 in reply to Milhouse. | August 8, 2014 at 8:43 pm

      @Milhouse and @Exiliado

      It’t not actually talking to the first responders it is actually more what you say and/or don’t say. This is A video by Massod Ayoob and it is pretty much right along with what Andrew covers in his book and Seminar.

      https://www.youtube.com/watch?v=pCZXZMYyRl4

      This is another good one, but I actually like Mass’s better.

      https://www.youtube.com/watch?v=Ycrh8g3hPR4

      There is not way you are going to get away with saying nothing at all to the first responders, you are going to have to start building your story right after the incident. You need to be the one to call 911, what are you gonna do dial and then just breath heavy, you are gonna have to give a minimal description to the dispatcher and to the first cops on the scene.

      They need to know it was you who called, they need help finding evidence and witnesses, they need to know the perp attacked you and that you were defending yourself. This is something else you need to train for and think about BEFORE you ever carry a firearm for self defense.

      If you just stand there like a log repeating; “I want my lawyer.” every time someone asks you a question, that will make it into the trial and without your help something that is gonna help make your case is gonna get missed by the cops. I mean look a the “investigation” these cops did for cripes sake. You have to start looking and acting innocent as early as possible.

      Saying; “Never talk to the cops at the scene” is just so impractical and ignorant. If you don’t say anything there is gonna be you with a gun and someone on the ground bleeding, how are they gonna know you were defending yourself if you don’t tell them?

I see many just don’t get it-

This is Metro-Detroit.

Parking tickets are ‘racially motivated’

This shooting happened on the heals of the Zimmerman verdict.

The only thing that ever matters, from the word go, was that a white guy shot an unarmed black.

Period.

This is not Florida.

Here, we take our racism seriously.

    Unfortunately this comment is actually very true. Having seen the “Justice” system of Detroit up close and personal, I can PERSONALLY attest that you will get different outcomes based on the races of the officers and defendants involved, especially when it is a White defendant and a Black officer.

    The worst thing about it is most of the Prosecutors in Wayne County don’t care about the racially driven decisions to forward cases by Detroit PD and the Wayne County Sheriff’s Dept.

Richard Aubrey | August 7, 2014 at 7:02 pm

Andrew has a fallback position in his home; the top of the stairs where the family sleeps and the stairway will, as we called it at Benning, “canalize” the enemy’s approach.
We have a lake house which, unaccountably, means we have many guests. Access to the sleeping quarters for the guests, including grandchildren, are closer to the three doors than is my bedroom.
This means, should I suspect an intruder, I must go a-hunting while waiting for the cops to arrive. As to firepower, all things considered, I favor a K-Bar, with a Fairbairn for backup. We have doors suitable for protection against lakeshore weather but also for lakeshore views.
Wonder how that would shake out in court. Flimsy doors, poor tactical floorplan. Deliberate possession of killing instruments, failure to allow my guests to be killed or my granddaughters to be kidnapped. Lucky my state doesn’t have capital punishment. Guilty of sucking them in, the poor dears. Couldn’t help themselves.

The lesson here is that the gun is for when there’s no time to call the cops. A locked door between you and the assailant = time to call the cops.

    alexusf in reply to BrokeGopher. | August 7, 2014 at 7:16 pm

    Agree, but it IS possible he couldn’t find a phone. Hindsight is always easy but if it were me, I would have my gun at the ready and continued looking for the phone or waited it out to see if the person was going to try and actually come in.

I said from the beginning that it would be VERY difficult to find a jury who could get past two things. 1. His initial claim that it was an accident. 2. He opened a heavy, steel door that had zero damage on it.

I will say this time and again….If you are involved in a shooting of any kind….Don’t say anything…to the first responders, or the cops.. Their testimony will be used against you. Talk to a good lawyer, not one appointed by the courts….I am sure most of them are good lawyers, but their caseload is heavy. I have a friend that got involved in a gun incident. I told him to get a good lawyer ASAP. He contacted one before the police booked him. He spent 20 days in the klink, it was during the holidays While he was there, he saw many people that were in there that tried to go the “cheap” route and get a court appointed and got stuck. Prosecutors are interested in convictions…not justice. Convictions get them reelected. The end result was that it cost him $10,000 but he kept his freedom, his regular job which paid good and his military pension. Good lawyers are expensive, but losing your freedom and good name is even more expensive.

This just in…legal gun owners leave Detroit, now it is really left to the bottom dwellers.

Top comment on Freep.com (Detroit Free Press)

I am proud of Michigan. We are not Florida.

That’s all that matters. Trayvon’s revenge.

Payback’s a bitch…for the Zimmerman case. I had a feeling this would be the outcome.

Henry Hawkins | August 8, 2014 at 9:32 am

Takeaway – Call the cops and THEN shoot the sumbitch.

Does anyone know if Mr. Wafer had an option of waiving a jury and having the judge decide? I am inclined to think if I was involved in an emotional trial, I would seriously think about going that route.

Re-blogged at Not One More Gun Law.

Thanks for your excellent coverage and analysis, Andrew! 🙂

It’s quite possible that Wafer knew that Michigan was a ‘Castle Doctrine’ state, but I doubt he knew what that meant exactly. He probably just had a fuzzy notion that the law allowed him to use lethal force to defend himself in his home, and that belief might have given him some courage to pick up the gun and move toward the perceived threat.

Part of the problem here is that the Castle Doctrine is not well understood, even by experienced criminal lawyers in Michigan. For example, if you go to the link you will see the text of the law, followed by his explanation of the law.

But it’s clear he does not understand the law. See if you can spot his error.

http://www.metrodetroitcriminallawyer.com/2013/05/06/metro-detroit-criminal-lawyer-michigans-castle-doctrine/

    Gremlin1974 in reply to Mike19. | August 9, 2014 at 2:07 pm

    I actually don’t think that #5 is accurate, just because you have a history of domestic abuse you don’t loose the right to self defense forever.

      Mike19 in reply to Gremlin1974. | August 9, 2014 at 5:10 pm

      Actually his explanation of this part is close enough. Here is the text of that section of the law.
      And also keep in mind that these exceptions do not mean you have no right to defend yourself with deadly force in your home. The exceptions simply mean that the rebuttable presumption section does not apply.

      “The individual against whom deadly force or force other than deadly force is used is the spouse or former spouse of the individual using deadly force or force other than deadly force, an individual with whom the individual using deadly force or other than deadly force has or had a dating relationship, an individual with whom the individual using deadly force or other than deadly force has had a child in common, or a resident or former resident of his or her household, and the individual using deadly force or other than deadly force has a prior history of domestic violence as the aggressor”.

    The whole thing is so chock full of errors I don’t even have the heart to start digging into it.

    Maybe later tonight, after a dinner and a drink. 🙂

    First mistake–Michigan has had the Castle Doctrine since the late 1800s, it did NOT first become law in the state in 2006.

    –Andrew, @LawSelfDefense

To Mr Branca on a Detective Walker topic I stated” From the comments,I notice the emphasis should have been on Walker to avoid conflict, not Wafer Very telling.

You’re reply “The duty to retreat is imposed upon the person that used deadly force. That would be Walker. And the person he shot and killed is Harvey,Wafer is a different trial altogether”

Did the duty to retreat apply to Wafer since he was the person who used deadly force and the person he killed was McBride?

    tom swift in reply to m1. | August 9, 2014 at 4:21 pm

    The duty to retreat is a legal requirement in Maryland.

    You should realize that Detroit is not in Maryland.

    You might also consider that there are some obvious legal distinctions between encounters on a public street and those in and about a private home.

Inconsistent statements will tend to hang you in court. Wafer’s differing stories (accident vs self-defense) likely did him in. The point is, you can’t make inconsistent statements if you don’t say anything at all.

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