A comparable case from the United States.
The story begins in the early morning hours of November 2, 2013.
A man who lived alone in his home in Dearborn Heights, just across the city line from Detroit, Michigan, had fallen asleep early in front of his television and then at 4:30 a.m. was woken to the sounds of repeated banging on his front and side doors.
He claimed that he was unable to find his cellphone to call 911. (He seemed to easily find it later in the pocket of his pants in the bathroom.)
After turning off all the lights in the house to conceal his presence, he looked through the peephole of his front door and saw a “shadowy figure” going around his house.
He retrieved his Mossberg 12-gauge shotgun stashed in a closet. He had loaded the shotgun less than two weeks earlier after vandals paint-balled his vehicle.
The loudness of the banging led the man to believe that multiple people were trying to break into his home, he claimed. With his shotgun in hand, he opened his door, saw someone on the other side and shot through his locked screen door.
He claimed he acted so quickly that he did not see whether it was a man or a woman before he shot.
As it happens, it was a woman, a young woman.
Renisha McBride, an intoxicated 19-year-old girl arrived at Mr. Wafer’s front porch after a night that began with drinking and smoking marijuana. While driving just before 1 a.m., she crashed her car into a parked car about 1 mile from Wafer’s house and walked away from the scene of the accident rejecting help from neighbors, witnesses said. One witness said that McBride, who appeared disoriented and was bleeding from her injuries, brushed off a neighbor’s plea to wait for an ambulance. Her whereabouts for the next several hours before appearing at Wafer’s home remain a mystery
The man who had fired a shotgun at Ms. McBride was Theodore P. Wafer, a 55-year-old airport maintenance worker
“I was not going to cower,” Wafer said about his decision to open the door. “I didn’t want to be a victim in my own house.”
Wafer’s original story to police was that he had discharged his gun accidentally.
Interviewed by police a few hours after the shooting, Wafer claimed that he had forgotten the gun was even loaded.
“I didn’t know there was a round in there,” he told police.
Under cross-examination during his trial, Wafer’s version changed. This time around he said that
his finger hit the trigger as a “total reflex reaction” when a figure appeared outside his house.
He admitted that he had fired deliberately, but “in fear”, thinking a break-in to his home was taking place. “It was them or me,” he said.
“I was upset,” he told the courtroom.
“I had a lot of emotions. I was scared. I had fear. I was panicking.”
But prosecutors asserted that Mr. Wafer had acted lawlessly, failing to call the police and then shooting an unarmed woman without warning.
Mr. Wafer, who had no landline phone, testified that he frantically searched for his cellphone but could not find it.
He said he opened his front door and, seeing a “figure,” fired one shot through the screen door, killing Ms. McBride. Mr. Wafer then found his cellphone and called 911.
People have suggested the killing of McBride, a black teen, which happened in a predominately white area was racially motivated but this never surfaced at trial.
Ultimately, Wafer was found guilty of second degree murder and sentenced to 17 years in prison.
Mr. Wafer’s lawyer, Cheryl Carpenter, wept while arguing for leniency. “This wasn’t planned,” she said. “He didn’t go out looking for this. It came to him.”
But Judge Dana Hathaway was unmoved. “I’m certain that you are remorseful, but none of that excuses what happened,” she said, calling Mr. Wafer an otherwise law-abiding citizen who had most likely acted out of anger and panic.
“An unjustified fear is never an excuse for taking someone’s life,” Judge Dana Hathaway told Wafer.
There is not even the slightest doubt in my mind that Masipa would have either acquitted Wafer or found him guilty of the same crime as Pistorius.
Note the similarities between the two cases.
• Both victims were female and unarmed
• Both victims were behind a door
• Both Pistorius and Wafer moved towards, rather than away from, “danger,” to the location of the sounds and Wafer went as far as to open one of two doors that separated him from the “threat.”
• Both failed to call the police rather than, or at least prior to, arming themselves.
(Police cast doubt the account that Wafer could not initially find his cellphone. They said Wafer had other options beyond shooting through the screen door, including simply continuing to look for his cellphone.)
• Both had varied and contradictory accounts of mindset prior to pulling the trigger.
“You either shot on purpose ’cause you were in fear, or the gun went off accidentally,” Assistant Wayne County Prosecutor Athina Siringas said while questioning Wafer. “Which one is it?”
Wafer replied that he shot in fear, on purpose, but also told prosecutors he did not know the gun was loaded.
Sounds familiar doesn’t it?
Compare with Pistorius:
“…I never intended to shoot anyone…I got a fright from a noise”
“…I did not shoot at anyone. I did not intend to shoot at someone. I shot out of fear…”
…discharged his firearm in reflex because he felt vulnerable and was fearful.
Note some of the reasons why the jury rejected the defense account.
Theodore Wafer testified that he shot Renisha McBride in self-defense, but according to one juror in the murder trial, “no one believed it.”
Why? Because on the stand, Wafer claimed he was protecting himself when he shot the 19-year-old on his Dearborn Heights porch, but he told police the shooting was an accident, said the juror, who spoke to the Free Press on the condition of anonymity.
“That hurt him big time,” the juror said.
Wafer had other options.
That’s the conclusion the juror reached. The juror said Wafer’s home was well-built and secure, and he could have turned on the porch light or looked out a window.
By way of reference, here are typical jury instructions in the United States relating to credibility.
Credibility of Witnesses:
You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have.
You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
◾How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
◾How well was the witness able to remember and describe what happened?
◾What was the witness’s behavior while testifying?
◾Did the witness understand the questions and answer them directly?
◾Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
<modsnip>
If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.
http://www.wklaw.com/trial-information-overview
Thankfully the concept of putative self-defence, or as it’s referred to in the United States, imperfect self-defence, has been very slow to gain acceptance in the court system.
I found the following to contain good reasoning in terms of why it should not be accepted.
It is from a judge commenting in an appeals court decision:
<modsnip>
But I further question the general philosophy of permitting even a mitigating defense predicated upon the subjective "belief" of a killer despite the admitted unreasonableness of such a belief. There is left no standard by which the violent conduct can be measured except that standard peculiar to the killer himself. I must confess that I sat silently in Shuck where the academic possibility became something more than academic.
But I cannot perpetuate my sin of silence when the practical significance of an academically reasonable concept addressed conceptually but not applied practically, upon ultimate application exposes the stark impracticality of such application. The criminal law as an instrument of societal control cannot allow violence to be excused solely upon the whims of the perpetrator. His conduct must be measured against some societal norm of reasonableness.
Embarrassing as it is to confess my former beguilement I would stifle any further advance of this esoteric concept and return it to the scholars who conceived it.
I am encouraged that the Court of Appeals has refused to permit as part of the guilt determining calculus a legally sane defendant even to introduce evidence of his perplexed state of mind as a diminution of responsibility for his violent conduct. Johnson v. State, 292 Md. 405 (1982). See also Simmons v. State, 292 Md. 478 (1982), the appeal of which was predicated upon the same Mullaney v. Wilbur, 421 U.S. 684 (1975), reasoning, relied upon in the case before us.
http://law.justia.com/cases/maryland/court-of-special-appeals/1983/1006-september-term-1982-0.html
http://www.leagle.com/decision/198316754MdApp113_1159.xml/FAULKNER v. STATE
Supporting links for the Wafer case:
http://www.nytimes.com/2014/09/04/u...enced-in-killing-of-renisha-mcbride.html?_r=0
http://www.freep.com/article/20140825/NEWS02/308250036/Wafer-juror-Renisha-McBride
