Self Defense or Murder?: Is the Shooting of Renisha McBride the Next Big Story?

As the country begins to move past the media frenzy that followed the killing (or murder, depending on where you stand) of Trayvon Martin, a new incident has occurred that seems prime to dominate headlines.  Around 1:00 am on November 2, 2013, Renisha McBride drove her vehicle into a parked car in suburban Detroit.  Tests would show that McBride had a blood alcohol content of 0.218%, well above the legal limit in Michigan.  A few hours later, a “bloodied and disoriented” McBride approached the porch of Dearborn Heights resident Theodore Wafer.  Sources report that McBride began to knock on Wafer’s door, prompting Wafer to come downstairs with his shotgun.  Wafer, standing in his home, discharged his weapon through a closed screen door, striking and killing the twenty-four year old McBride.  Wafer then called 911 to report the shooting.  Wafer told investigators that he brought down the shotgun because he believed McBride was attempting to break into his house (though there were no signs of forced entry).  He also claims that the weapon accidentally discharged while he was investigating the situation.  McBride died shortly after and Wafer has been charged with second degree murder.

There is no doubt that the story will garner attention because of its societal implications.  McBride was young, black, unarmed, and presumed to be committing a crime by a fifty-four year old white man.  Further, while there are not many witnesses, it is far more likely that McBride was seeking medical aid than trying to rob a house.  The case has already drawn comparisons to the Martin case, with reporters and bloggers putting extra emphasis on the issues of racial profiling and gun control.

While the lack of a post-racial society and the potential cry for stricter gun laws are more likely to pull readers in, the criminal law elements of the story are also fascinating.  Like Florida, Michigan has a “stand your ground law,” a statute that permits individuals to use lethal force rather than flee when they are threatened.  Section 780.972 of the Michigan Code states:

(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.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.[1]

More importantly, section 768.21C of the Michigan Code states that an individual does not have a duty to retreat before using deadly force if the individual is in his or her own dwelling or within the curtilage of that dwelling.[2] Like most self-defense statutes, the individual must have a reasonable belief “that he is in imminent danger of either losing his life or suffering great bodily harm, and that the use of deadly force is necessary to prevent that harm.”  The reasonable belief standard is that of an objective reasonable person.

The case will likely come down to two questions: (1) would an objective reasonable person in Theodore Wafer’s position believe that he was in imminent danger of losing his life or suffering great bodily harm to the extent that the use of deadly force would be necessary to prevent that harm, and (2) did Wafer accidentally discharge his weapon or did he purposely shoot at Renisha McBride?  While the legal scholar in all of us would love to ignore the societal and policy implications of the case, they are intrinsically linked to these questions.  To the first question, race clearly plays a role.  An objective, reasonable, person would not presume an individual is breaking into their house simply because of the color of their skin.  Other factors are also at play (though it was four am and McBride was covered in blood, albeit her own, there were no signs of attempted forced entry).  If he testifies, Wafer will have to answer questions regarding why he thought McBride was trying to break in.  If that answer insists it was because she was black, then it is likely a jury would find that an objective, reasonable person would not have believed they were in danger.

The second question plays more to the role of guns in society.  Arguably the most vocal argument regarding guns is their use for protecting individuals in their homes.  A handgun or shotgun in the dwelling seems to be the backbone of the second amendment, for it insists upon one’s right to protect themselves in their most sacred place (not to mention the notion of keeping the government out of one’s home).  Yet the Renisha McBride killing brings light to the issue of responsible gun ownership, even within the home.  How do we as a society justify the shooting of an injured twenty-four year old woman?  Defending one’s castle?  The facts of this case will no doubt bring light to the age old debate of whether guns make society safer or more dangerous.  This will also broaden the debate on self-defense laws in the United States.  On both sides of the argument, supporters and detractors of “stand your ground” or “defend your castle” laws will be keeping an eye on this case, as will Congress who has reviewed stand your ground policies in the wake of the Trayvon Martin case.

Renisha McBride’s death is a tragedy.  As Huffington Post and Fox News start preparing their editorials, the criminal law scholars will certainly have a lot to consider.  The case presents interesting legal issues that are directly tied to national policy concerns.  Like the Trayvon Martin case, the Nation will certainly have questions: How do we become a post-racial society?  Are we too quick to label something as racial profiling?  How can we protect ourselves from guns?  How do we protect ourselves from tightening gun laws?  Hopefully a courtroom in Michigan will provide criminal law practitioners some answers to these complicated ideas.

Calen Weiss

Articles Editor, Criminal Law Practitioner

Image from Facebook.

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[1] Mich. Comp. Laws §780.972 (2013).

[2] Mich. Comp. Laws §768.21C(a) (2013).

From Criminal to Star Witness – The Paradox of Cooperating Witnesses in White Collar Cases

Frank DiPascali Mug Shot

Despite Bernie Madoff’s claim that he alone perpetrated the roughly seventeen billion dollar ponzi scheme, the government has pursued charges against a number of other individuals.  After a five-year investigation, at the heart of the prosecution’s case is a cooperating witness.  In August 2009, Frank DiPascali, Madoff's former Chief Financial Officer, pled guilty to ten counts of fraud, conspiracy, and other charges, and admitted to the court, “I helped Bernie Madoff and other people carry out a fraud."  In the ongoing case that began in October against five former employees of Madoff’s financial firm, DiPascali is expected to testify and provide key evidence in hope of reducing the length of the prison sentence he will likely receive. 

Because conspiracies are secret by their nature, prosecutors often rely on cooperating witnesses to prove these cases.   A cooperating witness is a person who participated in the crime and is willing to assist the investigation and/or testify about the roles played by the co-conspirators.  Usually a witness cooperates in hope of mitigating the severity of the punishment the witness faces for his own involvement in the criminal activity.  These cooperation agreements are typically included within a plea agreement and require the witness to admit his criminal conduct, plead guilty, and agree to assist the government in its investigation and prosecution of other individuals.  If the government deems the assistance “substantial,” it will file what is known as a §5K1.1 motion and request that the court depart downward from the recommended guidelines sentencing range for the cooperating witness.  In turn, this reduces the witness’s likely punishment.

The government’s use of cooperating witnesses such as DiPascali has raised concerns in recent years about jurors’ overreliance on cooperating witness testimony and the justice system’s inability to balance out that effect.  Neuschatz et al. (2008) conducted one of the first psychological studies regarding the effect of informant and cooperating witness testimony on juror decision making.  In that study, participants acting as jurors read trial transcripts that included testimony from an accomplice who allegedly acquired information through involvement in the alleged crime.[1]  The experimenters manipulated whether the jurors also learned that the cooperating witness received sentencing incentives in exchange for his/her testimony.  The participants were then asked questions regarding whether they would convict the defendant, and to what they attributed the witness’s motivation for coming forward.  The results indicated that information about the cooperating witness’ incentive (e.g., leniency or reward) did not affect participants’ verdict decisions.  With regard to the witness’s motivation for testifying, the experimenters noted that the participants overwhelmingly committed what is known as the fundamental attribution error – they ignored the contextual and situation factors (i.e., receiving leniency) and instead attributed the witness’s motivation to dispositional factors (i.e., the witness wanted to “do the right thing”).  Essentially, the jurors accepted the witness’s testimony without considering the witness’s motive or inducement to fabricate.

Beyond the limited social psychology research on the topic, many other concerns about cooperating witness testimony have emerged.  For instance, some surmise that, because cooperating witnesses in white collar criminal prosecutions are less likely to have extensive criminal backgrounds and appear sophisticated and presentable, jurors may be more likely to believe them than the typical jailhouse “snitch.”[2]  Many have also noted the “cooperation paradox” as a sign of the unfairness of the use of cooperating witnesses: those who are the most culpable, have the most information about the criminal activity, and face the greatest penalties are the ones most likely to be offered cooperation deals to testify against low-level individuals.[3]

Defendants have also been somewhat restricted by the courts in their ability to attack cooperating witness testimony.  In Daubert v. Merrill Dow Pharmaceuticals Inc., the Supreme Court noted at least three safeguards the accused has to discredit unreliable testimony: (i) cross examination, (ii) presentation of contrary evidence, such as that provided by expert witnesses, and (iii) judicial instructions to the jury.  However, the Fifth Circuit recently affirmed the district court’s refusal to allow defense counsel to cross examine a cooperating witness regarding the witness’s actual exposure under the Federal Sentencing Guidelines.  The Fifth Circuit held that these limitations did not violate the Confrontation Clause.  Additionally, the Fourth Circuit held that understanding the ramifications a cooperating witness’s plea agreement, and thus the witness's motivations, did not require expert testimony.  Rather, this was a matter of “common sense” and one that the jury could decide for itself without the aid of expert testimony.

This is not to say that the government’s use of cooperating witness testimony is completely without safeguards.  Prosecutors have a constitutional duty to disclose any incentives offered to cooperating witnesses in addition to strict ethical guidelines to disclose information regarding cooperation agreements.  Courts have also adopted cautionary jury instructions regarding how much weight the jury should give to cooperators’ testimony.  Ultimately, perhaps the best safeguard is a skillful cross examination.  Richard Bistrong, who in 2007 cooperated with the FBI and Department of Justice and testified against others in a criminal Foreign Corrupt Practices Act case, endured three weeks of cross examination by six separate defense attorneys.  Afterward, he explained that “[i]t was difficult and there was nothing that could have prepared me for what I endured on the stand over that period of time.”

Kyle O'Grady

Senior Editor, Criminal Law Practitioner

Image by United States Marshals Service [Public domain], via Wikimedia Commons.

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[1]Control groups in the study were not exposed to testimony from the cooperating witness.

[2]Ellen S. Podgor, White-Collar Cooperators: The Government in Employer-Employee Relationships, 23 Cardozo L. Rev. 795, 802-803 (2002).

[3]See, e.g., id. at 799; Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199, 212 (1993).

It's a Mad World: The Insanity Plea in the James Holmes Case and Washington, D.C.

Saint Elizabeths Hospital, Washington, D.C. public psychiatric facility.

James Holmes was charged with 166 counts of murder, attempted murder and other related offenses from his July 20, 2012 shooting rampage in an Aurora, Colorado movie theater that left twelve dead and at least fifty-eight injured.  According to his attorneys, Holmes was in "the throes of a psychotic episode when he committed acts that resulted in the tragic loss of life."  With this admission and the District Court Judge's acceptance of Holmes’s plea of not guilty by reason of insanity, the scope of the trial was transformed from a determination of factual guilt to whether or not Holmes was sane, and thus culpable for his actions.  Insanity pleas have been around since ancient times, and the defense is based on the notion that some people with mental illnesses because of a lack of understanding or because of an inability to resist an urge are not culpable for their actions.  As the defense has developed through time, it has been inconsistently applied throughout the states.   

In Colorado, after an insanity plea is accepted, the defendant is ordered to be examined by an independent psychiatrist to determine his or her sanity.  In the case of Holmes, he was institutionalized in the Colorado Mental Health Institute in Pueblo where he was examined and is under constant supervision.  On September 6, 2013 the Court received the 128 page sanity report and copies were given to both the State and to Holmes's defense attorneys.  This report outlines the psychiatrist’s opinion of whether Holmes meets Colorado's legal definition of insanity, i.e. the inability to tell the difference between right and wrong because of a mental disease or defect, known as the M’Naughten rule.

The murder trial of James Holmes will begin sometime in 2014, and due to Holmes’s insanity plea, the government will have to prove beyond a reasonable doubt that Holmes was sane at the time of the shooting.[1]  Colorado is one of the eleven states that place the burden of proof in insanity defense cases on the State.  To compare, D.C. follows the Model Penal Code rule for the insanity defense; requiring that the defendant prove, by a preponderance of the evidence, that they were insane at the time of the crime.[2]  

Despite the fact that the State shoulders the burden, an insanity plea is not a get-out-of-jail-free card.  This is best evidenced by the microscopic number of insanity pleas that are filed in Colorado.  Recent numbers from the Colorado Judicial Branch show that defendants invoked the insanity defense in only 0.09% of all felony cases between 2001 and 2011, and the plea was successful only 28% of the time.  The scarcity of the pleas might be due to their inherent riskiness.  In Colorado, the plea requires the defendant’s full cooperation while he or she is subject to an independent psychiatric evaluation, and if the defendant does not cooperate, they are prohibited from introducing their own mental health experts to testify on their behalf, at trial or at a death-penalty hearing.  In this context, cooperation has its common and ordinary meaning, i.e. to cooperate means to “work or act together toward common end or purpose.”[3]  Generally, in cases where a defendant is non-compliant, the defendant has chosen to remain silent.  Additionally, not only is whatever was said to the psychiatrist admissible at trial, but the psychiatrist can comment on the defendant’s silence or non-compliance.[4]  This report is vastly important in determining the innocence or guilt of the party; as Michael Perlin, a New York Law School professor, has written in several papers, the final outcome in insanity cases matches the findings of the psychiatric reviews as often as 90% of the time.

As mentioned before, after an insanity plea is accepted, the focus of the trial changes because the defendant is admitting that he or she committed the crime or crimes, but that he or she should not be held legally responsible for their actions.  Because of the transformative nature of the plea, Washington D.C., like other states, has safeguarded a defendant’s right to, or not to, plead guilty by reason of insanity.  In D.C., this is called a Frendak inquiry.[5]  If there is a substantial question of the defendant’s sanity at the time of the crime, the trial court is required to determine whether, based on the defendant’s present mental capacity, he or she can intelligently and voluntarily waive the insanity defense.[6]  A pre-trial determination of competency does not preclude a Frendak inquiry if the defendant’s mental health at the time of the crime is called into question at any phase of the trial.[7]  The exact type and amount of evidence that will trigger the court’s obligation to conduct a Frendak inquiry is fact specific and will vary from case to case.  The goal of the inquiry is to ensure that the defendant knowingly is aware of the availability of the defense, and whether or not the defendant recognizes the advantages and disadvantages of the case.  If a defendant is found to have waived the defense knowingly and willingly, the court cannot impose the defense over the defendant’s objection.

The determination of whether or not to pursue this defense is something that must be weighed carefully; as mentioned above, when a defendant raises an insanity defense and is compelled to be examined, the defendant is basically waiving their Fifth Amendment privileges with regard to that psychiatric testimony.[8]  Additionally, those who are found guilty after raising the insanity defense generally serve significantly longer sentences than defendants convicted on similar charges who chose not to raise it.[9]  Further, even if the defendant is found not guilty by reason of insanity, they could be detained for a longer period than they would have been if they were found guilty.  This is because the defendant is committed to a mental facility until a time he or she is found to be sane; to put it in perspective, the average stay in St. Elizabeths is eight years.  As an attorney, it will sometimes make more sense to not try to raise the insanity defense in every minor case, because of the potential lengthy stay. 

Even though the latter two reasons listed above might not be applicable to Holmes, because he was looking at either life in prison or the death penalty, he still initially pled not guilty.  He was eventually allowed to change it to not guilty by reason of insanity, but the fact that it was not initially raised is telling of the complicated calculus that defense counsel has to take into account.  

Cyle Barber

Senior Editor, Criminal Law Practitioner

Picture by Tomf688 via Wikimedia Commons.

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[1]Colo. Rev. Stat. § 16-8-105.5 (2013).

[2]D.C. Code § 24-50.

[3]People v. Dondurant, 296 P.3d 200, 209-11 (Colo. App. 2012).

[4] See Johnson v. People, 470 P.2d 37, 76 (Colo. 1970); People v. Tally, 7 P.3d 172, 175 (Colo. App. 1999); People v. Vialpando, 954 P.2d 617, 622 (Colo. App. 1997).  

[5] Frendak v. United States, 408 A.2d 364 (D.C. 1979).

[6] Id at 378.

[7] See Phenis v. United States, 909 A.2d 138, 159 (D.C. 2006) (finding that the defendant’s history of mental problems and his behavior at trial should have prompted the court to conduct a Frendak inquiry). 

[8] See United States v. Byers, 740 F.2d 1104, 1115 (D.C. 1984).

[9] Michael Perlin, Mental Disability Law: Civil and Criminal § 9C-3.

The Supreme Court Denies Appeal from Wrongfully Accused Duke Lacrosse Players

The Supreme Court refused to hear an appeal from three Duke Lacrosse players who were wrongfully accused of rape in March 2006.  David Evans, Collin Finnerty, and Reade Seligmann filed a lawsuit against the City of Durham, North Carolina, holding it responsible for pursuing the rape charges against them without probable cause.  The charges stemmed from false allegations made by Crystal Mangum, a stripper hired to perform at a team party held on March 13, 2006.  Without any evidentiary basis, Evans, Finnerty, and Seligmann were indicted for Mangum’s alleged rape.[1]  The Supreme Court’s recent refusal to hear their appeal marks the end of the players’ civil rights lawsuit.  Consequently, the Court’s refusal leaves many unanswered questions about the prosecutorial and police misconduct that occurred during the case.

Michael Nifong was the Durham District Attorney behind the unjust prosecution of Evans, Finnerty, and Seligmann.  Around the same time that Crystal Mangum’s rape allegations surfaced, Nifong was facing the pressures of re-election.  In order to win, Nifong desperately needed the votes of Durham’s black community, who were outraged by Mangum’s story.  Nifong saw the rape case as the perfect opportunity to win their votes, and he quickly made it the center of his campaign.[2]  With a clear motive compelling him, Nifong began a ruthless attack on the lacrosse players, indifferent to the truth.

Nifong blatantly violated his ethical obligations as a prosecutor throughout the case.  First, there was no probable cause to charge the lacrosse players with rape, since evidence supporting Crystal Mangum’s story was almost non-existent.  The Supreme Court defines probable cause as “…a reasonable ground for belief of guilt.”  In the Duke case, there was no DNA or other physical evidence linking the defendants to the victim, and the sole basis of Mangum’s claims were her inconsistent versions of events, which changed multiple times.[3]  This evidence was insufficient to establish a reasonable belief that the players were guilty, but Nifong pursued the case anyway.

Nifong also violated his Brady obligation, which precludes a prosecutor from withholding exculpatory evidence from the defense that is material to the outcome of the case.  Not only did Nifong withhold evidence that showed Mangum’s inconsistencies in identifying her rapists, but he also withheld DNA results that revealed no match of any lacrosse player in or around Mangum hours after the alleged rape.[4]  In both instances, the evidence withheld was material to the outcome of the case.  Mangum’s inconsistencies seriously undermined her credibility, and the DNA results were almost conclusive proof of the players’ innocence.  Nifong also made extrajudicial statements to the public proclaiming the lacrosse players’ guilt, even though he knew the facts did not support the claim.  Based on Nifong’s repeated misconduct, he clearly had no interest in presenting the truth and pursuing justice.

The Duke Lacrosse case illustrates prosecutorial misconduct at its worst.  Nifong had tremendous power over the lives of the accused as the elected District Attorney, since no one was going to challenge his discretion.   Instead of using his power to seek justice, he abused it to further his own motives.  Fortunately, Nifong’s misconduct was exposed, and Evans, Finnerty, and Seligmann were declared innocent.  Accordingly, Nifong was disbarred and disgraced by the legal community.  However in many cases, prosecutorial misconduct is never exposed, probably because it happens behind closed doors.  Most of the time, defense attorneys are unaware the misconduct is going on, especially with regards to Brady violations.  A possible solution to this problem could be mandatory “open discovery laws” in all jurisdictions, which would require prosecutors to turn over all evidence in their case files to the defense.  

Another concern regarding prosecutorial misconduct is the fact that it is often intertwined with police misconduct.  Clearly, Nifong did not act alone during the Duke case.  Durham police officers and investigators directly contributed to the injustices of this case.  However, many of their identities are still unknown, as well as certain details of their scheme.  Sadly, the Supreme Court’s dismissal of the players’ civil lawsuit means many of these facts will remain unknown.

Samantha Beyda

Senior Staffer, Criminal Law Practitioner

Image by Ravs62687 at the English Wikipedia [Public domain], via Wikimedia Commons.

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[1] Stuart Taylor Jr. & K.C. Johnson, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case 96-97 (St. Martin’s Press, 1st ed. 2008). 

[2] Id. at 84-85.

[3] Id. at 36-38. 

[4] Id. at 162-163.