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Over Easy: #TheodoreWafer Will Have to Testify During Defense Case

A gavel

Wafer will be forced to testify about the death of Renisha McBride.

I will be covering for Crane today. T am updating you on the Theodore Wafer trial

There is no live stream coverage.

For reasons that follow, I believe defense motions to dismiss the charges in the Theodore Wafer trial, after the prosecution rests, will be denied and he will have to testify during the defense case.

The prosecution might conclude its case-in-chief late today, although tomorrow is more likely. I say this because the standard operating procedure for presenting evidence in a murder trial is to close with the medical examiner’s testimony. I see no reason for the prosecution to vary from that practice.

We teach trial lawyers to finish their case with a knockout punch and the best way to do that in a murder trial is to call the medical examiner.

The medical examiner’s opinion regarding cause of death must be based on the evidence obtained during the autopsy. Graphic color photos taken during each step of the autopsy are used to document what the medical examiner did in order to establish the necessary foundation for the opinion regarding cause of death.

Autopsy photographs are gruesome and difficult to look at because of the injuries displayed with their associated trauma. People who have have never seen a dead body are usually traumatized when they look at autopsy photos because a violent death, as opposed to a cleaned-up cinematic version of death presented in film, is graphic, shocking and disturbing. The emotional storm triggered by viewing autopsy photos can be upsetting and difficult to forget.

After the prosecution rests, Judge Hathaway will send the jury to the jury room so that she can hear argument from counsel regarding what I have previously described as a defense “halftime motion” to dismiss the charges. We use the word halftime to describe it because the defense raises it after the prosecution rests and before the defense presents its case.

This motion is a standard practice, regardless of the strength of the prosecution’s case, because a failure to raise it at that time precludes a challenge to the sufficiency of the evidence at a later time. The motion is rarely granted because the prosecution need only have presented some evidence that, if assumed to be true together with all of the reasonable inferences that flow from it, would be enough to support a verdict of guilty. In other words, the motion raises a threshold question by asking the judge to decide if enough evidence has been admitted in support of a particular charge to allow the jury to consider and decide whether the defendant is guilty or not guilty of that charge.

Much of the witness testimony and evidence admitted in the case so far is not very helpful in determining whether Wafer is guilty or not guilty. For example, I do not believe McBride’s intoxication and conduct banging on doors is helpful to deciding Wafer’s guilt or innocence because, if we assume for the sake of argument that it was so loud that everyone in the City of Detroit was awakened by it, Wafer’s use of deadly force would still not be justified.

Why?

Because noise alone cannot justify the use of deadly force. That is, although Wafer may have feared death or serious injury as a startle response to unexpected loud noises that awakened him, he was not actually in any danger of death or serious injury. McBride was unarmed and the police did not find any evidence, such as pry marks, dents or broken glass, that would support a belief that she was attempting to break into Wafer’s house. Therefore, his fear of imminent death or serious injury was unreasonable and his use of deadly force was unlawful.

Moreover, Wafer has given two conflicting statements (accidental shooting versus shooting in self-defense) and increased the number of attackers from one to three. Those changes inspire little confidence in his credibility.

The absence of evidence that anyone attempted to break-in, when considered together with his conflicting versions of events, might reasonably be expected to lead to guilty verdicts, unless he testifies and credibly explains his inconsistent statements.

Therefore, I am expecting Judge Hathaway will deny the defense halftime motion to dismiss and Wafer will testify during the defense case.

If the defense presents any evidence during its case, the prosecution will have an opportunity to rebut it. If Wafer testifies, do not be surprised if the prosecution rebuts what he says with testimony from the police officers with whom he had contact that night.

Photo by Keith Burtis released under a Creative Commons license.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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