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LegalSpeaks is a progressive blog on legal-political issues with an impact on race and gender. Whether covering politics, court trials, Supreme Court arguments or the latest laws and bills affecting minorities and women, LegalSpeaks blog articulates unique and thought provoking opinions. The blog is not meant to be construed as legal advice.


Ferguson, MO is Everywhere In America for African Americans

August 14th, 2014 | Tags: , , , ,
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FergusonMOThe shooting death of Michael Brown by a Ferguson, Missouri police officer has set off another moment of racial injustice in America for African Americans. By the involved yet still unknown police officer’s account, Michael Brown was shot 35 feet away from the police officer’s car where he is alleged to have reached for the officer’s gun after some type of altercation at the officer’s vehicle. Being shot 35 feet away from the vehicle, while unarmed and running from the officer, hardly suggests that the officer was in fear of his life. In fact, it suggests that the shooting was unjustified. It hardly suggests a reason for the officer’s name to be kept secret. But this is what occurs when you are black in America. Ferguson, Missouri is like any other city or town in America where African Americans reside.

Every African American has those pivotal moments when they realize justice for African Americans often differs from what justice looks like for white Americans. There are Michael Browns, Oscar Grants, Trayvon Martins, Jonathan Ferrells and Eric Garners in every state of the U.S. They are college students, high school students, college graduates, workers, fathers and sons. And they represent African Americans who are denied justice in America.

In America, Michael Vick served 21 months for running an illegal dog fighting ring which injured and caused the death of dogs. But the white police officer who shot and killed unarmed Oscar Grant served less time. Former Bart police officer, Johannes Mehserle, ultimately served only one year in jail for Oscar Grant’s death. In America, George Zimmerman gets to “stand his ground” and is acquitted for the death of Trayvon Martin. Meanwhile, Marissa Alexander who fired a warning shot, standing her ground at her abusive husband, is denied the use of the same defense and faces a maximum of 60 years in jail. She originally received a 20 year sentence before her first trial was successfully appealed. In America, Michael Dunn’s trial ended with a hung jury for killing 16 year old Jordan Davis while he was playing his music too loud for Dunn. And in America, many African Americans hold their breath on a retrial for Dunn in September. And today in America, the police officer who shot and killed 18 year old Michael Brown remains unnamed for his protection, according to the Ferguson police. And now according to ABC News, the Ferguson police department states that it will not release the name of the involved officer without a court order. There was no such protection for Michael Brown.

While Ferguson is being highlighted this month and Sanford, Florida was highlighted last year in the Trayvon Martin killing, they are one and the same. And every African American who is concerned about the situation in Ferguson is fearful that Ferguson will meet the same result as in Sanford, Florida. That’s assuming, the police officer is even charged. And that’s the biggest fear among many of those in African American communities. That the police officer will not be charged or will later be found not guilty in a trial, if charged.

The American Civil Liberties Union (“ACLU”), the National Bar Association, the oldest organization of African American lawyers and numerous media outlets have requested the complete and unredacted copy of the police incident report. The Ferguson Police Department’s failure to release the name of the officer or the incident report to those requesting it sends another signal to many African Americans. It sends the police’s message of the shroud of secrecy to protect their own. It also sends the message of cover up. The police’s duty is “to protect and serve”. But where was the protection for Michael Brown? And where is the justice for Michael Brown? That’s the question in the minds of many people.

President Obama gave his statement on Wednesday, August 14. “We are a part of one American family” says President Obama. But African Americans are not treated like they are in the same American family when faced with justice for African Americans. In America, every African American is Michael Brown. And every town and city in America is Ferguson, Missouri.

Debbie Hines is a trial lawyer, legal analyst and former prosecutor. She is frequently seen in the media addressing legal issues on race and gender.

Update: 8/15/14  The police department has now named the police officer involved in the shooting death of Michael Brown. But Ferguson Police department  now asserts that Michael Brown was a part of a prior robbery of a convenience store of a box of cigars.  Even if  the allegations prove true, it remains that an officer who shot an unarmed man with his hands up who was not a threat should be charged with 1st degree murder.


Will Government Prosecute John Hinckley Again?

August 11th, 2014 | Posted in Legal | No Comments »

DC News FOX 5 DC WTTG

As if the Justice Department and D.C. police don’t have other business to attend to, the ruling this past weekend that James Brady’s death was ruled a homicide sent shocks in the media.  The bottom line is the 33 year old case in which Hinckley was found to be not guilty by reason of insanity would be an uphill if not insurmountable legal hurdle.   I discussed the reasons why on Fox 5 News on Monday.  Please feel to view and tell me what you think.


McDonnell Defense has an Uphill Battle for Acquittal

August 10th, 2014 | Posted in Legal | No Comments »
Governor McDonnell at CPAC; Attribution Gage Skidmore

Governor McDonnell at CPAC; Attribution Gage Skidmore

The corruption trial of former VA Governor Robert McDonnell and wife Maureen McDonald concluded 2 weeks of testimony with no smoking gun but plenty of evidence to suggest that both McDonnells will have an uphill battle to secure an acquittal. The defense mainly consists of several strategies.  They started in opening with the unexpected bombshell revelation that Maureen McDonnell was infatuated with Jonnie Williams and the McDonnell marriage was on the rocks and barely on speaking terms.  The other defenses consist of the assertion that Jonnie Williams was a personal friend and nothing “official” was offered  or given to Williams.

 

Most  of the defense assertions have been picked apart by the prosecution which has put on a methodical case of witnesses who worked for the former Governor, family, family friends and of course, businessman Jonnie R. Williams and Star Scientific’s Chairman of the Board.  A witness testified this week that the McDonnells appeared to be very much in love. One said  Bob McDonnell kissed  his wife on the cheek regularly in public.  One witness testified that Bob McDonnell worshipped  the ground his wife walked on.  The defense assertion that there was a romantic relationship or infatuation between Mrs. McDonnell and Williams was further blasted away by the 1200 texts and Emails which never mentioned anything remotely romantic between the two of them.  Bob McDonnell’s team in “throwing his wife under the bus” in an attempt to win an acquittal, may have made a tactical mistake.   They used it to diffuse the conspiracy charge.

 

 

Witnesses who knew the McDonnells for years testified that they never heard either Bob McDonnell or Maureen refer to Williams as a family friend—until the investigation started. The assertion that Jonnie Williams was a personal friend is turning out to also sound like a sham.  And the testimony showed that when the Governor knew there might be an investigation, he requested a definition of “personal friend” from a staffer.  There is no legal definition. He was told a good starting point would be people who knew him before he became Virginia Attorney General.

 

 

 

One other McDonnell defense is that nothing was done for Jonnie Williams in exchange for any of the gifts.  It was political business as usual.  McDonnell was merely  trying to get business for the Commonwealth.  However, timing is everything. And 2 months after Williams paid $15,000 for the McDonnell daughter’s wedding, after meeting her for 10 minutes, the 2011 launch of his company and dietary product occurred at the Governor’s mansion.  And in 2012 immediately after the former Governor requested a loan from Williams, Jonnie Williams and many of his guests were added to the guest list for a health care meeting at the Governor’s mansion.

 

Then the former Governor and his wife attempted to hide certain gifts. An attempt to hide the gifts may show they probably thought something was improper  or illegal about them.    Loans from Williams were disguised and indicated on the former Governor’s public disclosure form as  loan for  someone for “medical services” and for “health care”.  And Mrs. McDonnell sold shares of stock of Star Scientific on the last day of 2011 to avoid having to report it.  But she requested that her stock broker re-purchase the stock immediately in 2012.

 

The assertion that Jonnie Williams was a personal friend is turning out to also sound like a sham.  Witnesses who knew the couple for a long time never heard them refer to Williams as a friend.  And the testimony showed that when the Governor knew there might be an investigation, he requested a definition of “personal friend” from a staffer.  There is no legal definition. He was told a good starting point would be people who knew him before he became Virginia Attorney General.

 

 

The trial is expected to last several more weeks. And the defense has said it will call Bob McDonnell to testify.  He will need to give the performance of a lifetime to overcome all  of the evidence that has been presented by the prosecution.

 

Virginia jurors are known for being very conservative.  The trial which is playing out like a soap opera or made for TV movie and making a mockery of VA is not likely sitting well the jurors.   The trial is showing that the entire McDonnell family appeared to have a sense of entitlement to money and gifts.  Even Jon  Stewart weighed in using Virginia’s slogan—saying “Virginia is for lovers—of money.”

 

Washington, DC based Debbie Hines is a practicing trial lawyer, legal analyst and former prosecutor. As a former prosecutor, she tried murders, narcotics, sex offense and economic crimes.  She founded LegalSpeaks blog in 2009. She also contributes articles to the Huffington Post and the  Women’s Media Center.

 

 

 


Why Theodore Wafer was Found Guilty in McBride’s Murder

August 7th, 2014 | Tags: , , ,
Posted in Legal | No Comments »

renishamcbrideTheodore Wafer was found guilty of 2nd degree murder, manslaughter and discharging a firearm in the commission of a felony on August 7 for the murder of 19 year old Renisha McBride. The verdict, just one day after closing arguments, sends a loud message that the jury did not struggle with reaching their verdict.

While the defense said in closing argument that the case was not about race, it was everything about race and gender. Wafer, a middle aged white man, used every conceivable racial coding language during his testimony. He testified that he feared for his life as several persons might be breaking into his home, in his now changing suburban neighborhood. He testified about how he was scared hearing the thunderous pounding of his front, side and back doors with metal hitting the door and his floors vibrating. Testifying that multiple persons were attempting to break in his house, he didn’t want to cower or be a victim in his own home.  And he claims he shot in self- defense.  And prior to the start of this trial, defense attorney Cheryl Carpenter used the same words used by the George Zimmerman defense, “up to no good” in referring to Renisha McBride and the possibility of her attempting a break in of Wafer’s suburban home. Judge Dana Hathaway rejected that argument. And because the case was about race, it was important that four of the twelve jurors were African American, two of whom were women.

The jury had to decide on the credibility of the defendant and which version to believe—whether to believe the one taken on the morning of the McBride’s killing, the one who testified in court when he was on trial for his life or neither one. And in weighing the two Theodore Wafer versions, they undoubtedly decided that one or both were untruthful. A key jury instruction was the one on false exculpatory statements. This means the jury could find that Wafer’s conflicting statements at trial were falsely made to claim his innocence.

And this jury likely used their common sense to understand that in a securely locked home, you first look for your phone to call the police instead of getting your gun to shoot an unarmed stranger. Wafer made a conscious decision to shoot first and then call the police later. He made a conscious decision to get a gun before he got his cell phone. He says on his November, 2013 videotaped statement to the police, “I should have probably called you guys first” meaning the police. And that sums it up in terms of what the jury’s verdict meant, by his own words.

A sobbing Theodore Wafer said at trial that Renisha McBride had her whole life ahead of her. And now, Wafer has his whole life ahead of him to truly be remorseful about the young innocent life he took. His sentencing is August 21. He faces life in prison on the 2nd degree murder, 15 years on the manslaughter and 2 years on the firearm charge. He was immediately taken into custody following today’s verdict despite his attorneys’ pleas to remain in his home pending sentencing.

Following court today, the parents of Renisha McBride thanked the prosecutors. And while nothing will bring their daughter back, hopefully this verdict might give them some measure of peace.

Debbie Hines is a practicing trial attorney and former prosecutor who has tried homicides, burglaries, narcotics and sex offense crimes. She founded LegalSpeaks blog in 2009 which focuses on gender and race issues in the law. She also contributes to the Huffington Post and the Women’s Media Center.


Recapping the Renisha McBride Case

August 6th, 2014 | Tags: , ,
Posted in Legal | No Comments »

renishamcbrideThe prosecution started their opening argument saying all Renisha McBride wanted to do was go home on November 2, 2013 when she was fatally shot by Theodore Wafer on his porch. She was injured, intoxicated, perhaps disoriented and seeking help.   The case is now in the hands of the jury.   Until they deliberate and reach a verdict, no one will know how the case will finally conclude.

 

In recapping the case, there are many pieces that affect a jury’s decision.  And the victim in a murder case is never able to tell their side of the story.  It is told through the lens of the police who investigated it, how well they did their job, the prosecutors who prepared the case for trial, and the defendant, if he/she takes the stand.  The other factors are the jury racial, ethnic and gender make up, the judge’s jury instructions, the subtle biases of the jury and the demeanor of the prosecutor and defense attorneys.  No one factor stands alone.

 

In any case, the jury is a crucial component.  One journalist accounts the jury as 4 African Americans and 8 white persons. Another reports the jury should now consist of 5 whites, predominantly male; 3 Middle Eastern/Arab Americans, and 4 African Americans. #RenishaMcBride

— idabwellsinstitute (@idabeewells) August 6, 2014

In a case where a middle aged white man alleges fear from possibly several persons pounding on his doors with floors vibrating, in the early morning hours, by a black woman, the fact that the jury is not all white is crucial.  And that’s where the subtle biases may exist in the minds of the jury.  Although, the defendant, Theodore Wafer did not know the person knocking was a black woman, he knew it was a dark complexioned person.  The jury knows Renisha was a black woman.  And with McBride being a black woman, certain stereotypes could play out in the minds of some white jurors. When a white jury hears a middle aged white man claim that he felt afraid and threatened due to the loud banging and pounding on his doors and windows by a dark figure, fearing multiple persons and not wanting to be a victim, those white jurors may likely put themselves in the shoes of Wafer. And they may think that what he did what was reasonable under the circumstances. Additionally, the media often portrays black women as the “angry black woman” which could bolster Wafer’s claims with a white jury. That’s why the diversity of this jury is crucial.

 

And the jury instructions in any case are crucial.  Wafer asserted on the witness stand that he was defending himself from a perceived attack. In the case of Wafer, the law on self -defense in Michigan requires no duty to retreat if there is an actual attack. And the judge stated that there was no attack by McBride on Wafer’s porch.  The jury was instructed on the credibility of the witnesses.  The jury is always the judges of the facts and can determine who and what to believe.

 

And Judge Dana Hathaway also gave an instruction on false exculpatory statements.  Wafer gave two entirely different accounts of the incident. Wafer testified on Day 9 of the trial and told a riveting account of the early morning hours of November 2, 2013 when he shot and killed McBride.  His court room version was an emotional account with tears on how he was scared hearing the thunderous pounding of his front, side and back doors with metal hitting the door and his floors vibrating. Believing that multiple persons were attempting to break in his house, he didn’t want to cower or be a victim in his own home.  Now contrast the court room version with the one he accounted to police just 2-3 hours after the killing. That was a wholly different tale.  On the morning of the shooting when everything was still fresh in Wafer’s mind, he told a different version and never mentioned a perceived attack, his fear, his suspicion of multiple persons and multiple pounding on doors and windows. He stated the shooting was an accident immediately following the killing. His story presumably changed when his attorneys became involved.

 

Judge Dana Hathaway has worked to keep the trial moving in a swift manner.  That’s important for both sides.  A slow moving trial is never good for either side. I have followed the case closely because at any given time, I could be Renisha McBride.  As an African American woman, living in a mostly white neighborhood, I have thought long and hard about what happened to her.  And no one should ever lose their life like she did.   And so I hope that this time, justice will prevail for Renisha McBride.

 

Debbie Hines is a practicing trial attorney and former prosecutor who has tried homicides, burglaries, narcotics and sex offense crimes.  She founded LegalSpeaks blog in 2009 which focuses on gender and race issues in the law.  She also contributes to the Huffington Post and the Women’s Media Center.

 

 


Renisha McBride’s Killer and his Two Tall Tales

August 5th, 2014 | Posted in Legal | No Comments »

renishamcbrideThere are always 2 sides to every story but in the trial for the murder of Renisha McBride, the two sides come from the same person–the defendant.  Theodore Wafer’s  two tall tales give conflicting accounts of what happened on the night that McBride was killed. The jury is the judge of the facts in every case and must decide on the truth.

 

Wafer testified on Day 9 of the trial and told a riveting account of the early morning hours of November 2, 2013 when he shot and killed McBride.  His court room version was an emotional account with tears on how he was scared hearing the thunderous pounding of his front, side and back doors with metal hitting the door and his floors vibrating. Believing that multiple persons were attempting to break in his house, he didn’t want to cower or be a victim in his own home.  And he shot in self- defense—saying it was them or him.  Under the jury instructions which will be given to the jury, if Wafer’s court room version is believed, he had no duty to retreat if he believed he faced grave harm from an attack.  He felt remorseful on the stand stating that “poor girl” had her whole life ahead of her.  He wept and at least one juror wiped away tears.

 

Now contrast the court room version with the one he accounted to police just 2-3 hours after the killing. That was a wholly different tale.  On the morning of the shooting when everything was still fresh in Wafer’s mind, he told a different version which was videotaped by the police and shown to the jury.  He told the police that the shooting was an accident. He says he came to the door with the gun and unfortunately, she was right there. He did not refer to McBride as that “poor girl” with her whole life ahead of her, he referred to her in the video transcript as “it”.  And he was not emotional during his account with the police, immediately following the killing. He never mentioned to police that he felt McBride or multiple people were trying to break into his house.  He just said he shot someone who was banging on his door.  He never told the police that someone was pounding on his side and back door or that he heard metal. He did not say he was afraid of the alleged multiple persons knocking on his doors.

 

 

The jury must decide on the credibility of the defendant and which version to believe—whether to believe the one on the night of the McBride’s killing, the one who testified in court when he was on trial for his life or neither one.  And in weighing the two Wafers, they must decide which one has a reason to lie—the one on trial for his life or the one on the night of November 2, 2013, before he was arrested.

 

 

Actions often speak louder than words. In the Wafer trial, both are important. And in weighing the two different versions, the jury must also decide if Wafer’s actions were reasonable under the circumstances.   He made a conscious decision to shoot first and ask questions later. He made a conscious decision to shoot first and then call the police later. He made a conscious decision to get a gun before he got his cell phone.  He says, “I  should have probably called you guys first” meaning the police.  And that sums it all up in terms of reasonableness by his own words. He had other options.

 

A tall tale is often a story that is exaggerated and told as if it were true. In Wafer’s case, he told a tall tale at trial to fit his own needs—to be acquitted. He didn’t just forget some parts; He completely has two different versions of how the events unfolded. An accident fits into manslaughter while self-defense completely exonerates the defendant from both manslaughter and second degree murder. And the jury will be instructed on making false exculpatory statements.  At the end of the deliberations, the jury must decide what to believe—the Theodore Wafer on trial or the one on the night of  Renisha McBride’s killing.   Jury deliberations will start after closing arguments on Wednesday, August 6.

UPDATE: August 6- Judge instructs the jury that under Michigan self defense law, there must be an attack for no duty to retreat. And judge says to defense attorney there was no attack by McBride. Defense cannot argue there was an attempted break in.

 

Debbie Hines is a practicing trial attorney and former prosecutor who has tried homicides, burglaries, narcotics and sex offense crimes.  She founded LegalSpeaks blog in 2009 which focuses on gender and race issues in the law.  She also contributes to the Huffington Post and the Women’s Media Center.

 

 

 

 


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