Powered by TypePad

« All the raw scores and data analysis from mid-terms in one spreadsheet | Main | "The Case of the Speluncean Explorers" ... as it might be resolved in Ohio »

November 17, 2013

Renisha, race and reasonableness: wrapping up defensive use of force and defense strategies

As noted in the comments to prior posts, on Friday local Michigan prosecutors announced criminal charged against Theodore Paul Wafer for causing the death of Renisha McBride.  This lengthy new AP story, astutely headlined "Renisha McBride Shooting: Homeowner's Legal Case Could Hinge On One Word," provides a reasonable account of how standards and judgments about reasonableness will be at the heart of this case:

The way Renisha Marie McBride's young life ended Nov. 2 is not in dispute: A homeowner in suburban Detroit fatally shot the 19-year-old in the face as she stood on his porch before the sun came up. Almost every other aspect of the case is not as clear-cut.

Did race play a role in the shooting? What exactly happened on that doorstep? Did the homeowner reasonably believe he was acting in self-defense?

Police and prosecutors say Theodore Paul Wafer fired once with a 12-gauge shotgun through his screen door at McBride. The 54-year-old airport maintenance employee, who faces murder and manslaughter charges, is free on bail awaiting a Dec. 18 hearing that will determine if the case should go to trial.

Ron Bretz, a Cooley Law School professor and former criminal defense attorney, says the case may boil down to a single word. "It's got to be reasonable," he said. "The question is: What would a reasonable person do in these circumstances?" That may be the key question in determining Wafer's guilt or innocence, but much else is left unknown about a case that features legal and societal implications.

Under a 2006 Michigan self-defense law, a homeowner has the right to use force during a break-in. Otherwise, a person must show that his or her life was in danger.

Defense lawyers are expected to argue that Wafer feared for his life when a drunken McBride — toxicology reports put her blood-alcohol content at well above the legal limit for driving — came to his door in the middle of the night hours after crashing her car blocks away in Detroit. Those factors contribute to Wafer's "very strong defense," said his lawyer, Mack Carpenter.

Prosecutors and McBride's family, meanwhile, see no justification for the slaying of the recent high school graduate. She was unarmed, they note. Plus, the screen door Wafer fired through was locked. "Where's his reasonable belief that his life was in jeopardy or that he was in jeopardy of great bodily harm?" said lawyer Gerald Thurswell, who represents McBride's family.

It all comes down to what a jury thinks, Bretz said. "You've got a gun. There's an unarmed young woman on your front porch," he said. "Is it reasonable to think that she's a threat to you? That's going to be a toughie. "Is it fair to feel scared when a stranger is pounding on your door at 4 or 5 in the morning? Hell, yeah. ... Don't answer the door," Bretz said....

Bretz said both sides would be wise to stick to a "race-neutral" strategy. "Don't go there. Keep it on the facts," he said. "Who wants to bring race into it? Everybody else. ... The defense doesn't want that. And the prosecution doesn't want to bring it in. I don't think they need to."

Wayne County Prosecutor Kym Worthy didn't appear to completely rule it out Friday. "In this case, the charging decision has nothing whatever to do with the race of the parties," she said. "Whether it becomes relevant later on in the case, I don't know. I'm not clairvoyant."...

Bretz said a potential defense argument is that McBride's extreme drunkenness posed a threat. "Was she acting crazy? If so ... this gave (Wafer) a greater right to be afraid," Bretz said.

The toxicology report also indicated McBride's blood tested positive for the active ingredients in marijuana. McBride's family said it doesn't matter, but Bretz said he could see the defense focusing attention on McBride's behavior. "It makes her out not to be an angel. She got drunk and stoned and drove and crashed her car. But that's not a death-penalty offense," he said.

McBride's father, Walter Ray Simmons, referred to the defendant as "Mr. Wafer" when he talked to reporters Friday. He then stopped: "I don't even know why I'm saying 'Mr. Wafer.' This monster who killed my daughter."

Earlier Friday, at his arraignment, Wafer stood in a Dearborn Heights courtroom and listened as Carpenter argued for a lesser bail amount. Carpenter described Wafer as a steadily employed high school graduate who spent a year at Northern Michigan University and whose only run-ins with the law involved a couple of decades-old drunken driving cases. Wafer cares for his 81-year-old mother, Carpenter said.

Fellow defense lawyer Cheryl Carpenter said her client has been affected by the case. "You could see it is weighing on him, and he realizes the extent of what happened that night," she said outside of court. "This is part of the problem with this case. There's been so much prejudgment and so much speculation," Cheryl Carpenter said. "Until we get all the facts out, and we don't even have all of the facts yet."

In addition to encouraging comments about the charges brought in this high-profile case, I suggest students think about what additional "facts" the defense team may be especially eager to get out. (I put "facts" in quotes here because of I think/fear/expect all future "facts" we learn to be interpretations/perceptions as much as pure facts.)  I especially encourage students to consider what "facts" learned by the defense team might lead Wafer's lawyers to consider encouraging Wafer to plead guilty rather than assert his innocence at a trial.

Right away from reading this story, I want to know a lot more about the type of "locked screen door" that Wafer shot through.  I also want to know more about what other door was in the entrance way and the configuration of the porch.  I also want to know when and from where Wafer accessed his shotgun and whether it had already been loaded.  I am not at all sure these "facts" are likely to help the defense's case, but they certainly seem key parts of figuring out whether a jury is likely or unlikely to view Wafer's behavior as reasonable. 

November 17, 2013 in Notable real cases | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Renisha, race and reasonableness: wrapping up defensive use of force and defense strategies:


There are too many unknowns in this case for me to feel like I can comment intelligently on it. Yet, despite that disclaimer, that’s exactly what I’m going to do.

The issues that Professor Berman raised also came to my mind, along with a few others. Other than the nature of the screen door (what kind of security did it provide?), the biggest question I have centers around the actions of McBride leading up to the shooting. Given the toxicology reports of McBride’s BAC being well above the legal limit, and finding evidence of marijuana in her system, I think it would be worthwhile for the defense to explore that avenue as thoroughly as possible. Was she acting belligerently? Threateningly? As the law professor interviewed in the article says, "Was she acting crazy? If so ... this gave (Wafer) a greater right to be afraid.”

The biggest problem I can glean from this argument is that as far as I could find, there were no other eye-witnesses to the shooting. This essentially makes that argument dependent on whether the court finds the defendant believable. If the defense does argue this point it would be greatly helped if they could present another witness (possibly a neighbor who heard the interaction?) corroborating the assertion that McBride was acting wildly, belligerently, etc. If it can be proven that McBride was acting along those lines then it would be easier (easier, not a slam dunk) to argue that the defendant feared for his life/great bodily harm and that he acted was reasonably.

However, this route could be detrimental to the defense. If it is learned that a witness was present and he/she heard or saw nothing but a reasonable conversation, then heard a gunshot (or something similar to this hypothetical), this defense would be, for lack of a better term, screwed.

The article mentions that the defendant cares for his 81 year old mother. Another issue I would like cleared up is whether or not the defendant’s 81 year old mother actually lives with him and/or whether she was in the defendant’s home at the time. The Michigan Self Defense statute includes acting in the defense of others, which could apply here if the defendant’s mother was in the house at the time of the incident and the defendant feared for her safety as well. Among other things, this potential argument might give the defense the ability to paint the defendant in a more sympathetic light.

I think another important factor that could come into play is that of character witnesses. We still don’t know much about the defendant. Is he racist or does he have racial tendencies? For all we know he could have stopped attending Northern Michigan University because of new responsibilities stemming from his appointment as Grand Wizard of the Ku Klux Klan.

I’m still very much on the fence with this case until more facts and details emerge

Posted by: Mike Jarvis | Nov 17, 2013 11:59:30 PM


Berman kind of stole our thunder about factual questions to ask, the location of the gun, the security of the screen door seem to be the most glaring omissions.

Who doesn't have racial tendencies? Aren't characteristics like racial tendencies exactly why things such as the "reasonable" standard exist? If I told you McBride was a 45 year old bearded hispanic man wearing a tuxedo, wouldn't that change the questions you had for Wafer? Is it acceptable to make a judgment about the person's gender, age, clothes or facial hair but not his race? I'm not condoning this, just acknowledging.
If placed in a situation where deadly force were required, wouldn't we hope a reasonable person would have balanced as much data as he/she had at his/her disposal?How would the argument play out from a person claiming the "honest and reasonable" belief "deadly force was necessary" to be used upon an individual if the person making the claim were completely unaware of the gender, age, and race of the person he/she killed?

Wafer could be Grand Wizard of the Ku Klux Klan and still reasonably perceived deadly force was necessary to prevent imminent bodily harm.

With that said, that's why defenses are so tricky. I don't think Wafer needed to use deadly force. He shot a woman in the face with a shotgun from a minimal distance. I think one of the interesting things to distinguish in the Mich. statute is that the "individual must honestly and reasonably believe deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself..." Why would deadly force opposed to say "serious bodily injury" be necessary in this situation? What made Wafer honestly and reasonably believe he had to point the shotgun at her face instead of her midsection or legs?

How many shells were in the shotgun? If he honestly and reasonably believed he could have not had time to pump a new shell if he did not inflict serious bodily harm, that could help justify his actions. If the shotgun only had one shell maybe that justifies the action more. But I want to know that Wafer made these calculations before acting.

Wafer is going to have to get on the stand and explain himself and when one of the prosecutors asks: "why did you decide to shoot McBride in the face?" the answer must enlighten us to how an unarmed teenage woman was threatening imminent bodily harm to Wafer...through a locked door.

To claim Wafer feared imminent bodily harm and honestly believed deadly force to be necessary to prevent the harm AND after the original claim that the shotgun "accidentally discharged" seem to run against one another.

Worst thing for this case would be a Trayvon Martin "make-up" call. To perceive this case as the opportunity to correct any absence of justice that existed in the Zimmerman trial would be a travesty. Impartial. Evenhandedness. Fair-minded. This is what we expect from our judicial system.
"You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor."

Posted by: Christopher Sponseller | Nov 18, 2013 8:17:21 AM

An interesting New York Times article about this case highlighting the prosecutor, Kym Worthy.


Posted by: Kat Ungar | Nov 20, 2013 12:33:05 AM

That's a nice little profile. I think the image most people have of prosecutors resembles how Ms. Worthy portrays herself - making evidence driven decisions without regard to the political implications. It is probably an exception, but its nice to see it here. I think she has handled the case admirably so far.

Posted by: Ben Wallace | Nov 20, 2013 8:46:02 AM

The comments to this entry are closed.