THE BLOG
11/22/2013 06:35 pm ET | Updated Jan 25, 2014

"I Didn't Mean to Kill Renisha McBride." But Does it Matter?

While accidents are commonplace, many can have legal consequences. Spilling hot coffee, slipping and falling, and the often-occurring automobile "fender bender" may cause injury to people and property and result in lawsuits seeking monetary damages. But some accidents are far more serious. Automobile fatalities and drug overdoses come to mind. And, of course, hundreds of accidental deaths are caused each year by guns. Accidents lie on a spectrum of increasing seriousness, generally depending on the degree of fault, and a serious accident may be punished as a crime, even as murder. So, was Theodore Wafer's fatal shotgun blast to the face of 19-year-old Renisha McBride on the night of November 2 an unintentional accident, as he has claimed? And even if it was an accident, is it nevertheless a punishable homicide, either as murder or manslaughter?

The shotgun killing of McBride, a young black woman, who was standing on Wafer's porch in Dearborn Heights, Michigan, apparently seeking help after her car crashed, has attracted considerable media attention, and is certainly a tragedy. It has been equated with the killing of Trayvon Martin in Florida. Some of the commentary has addressed purported similarities between the two cases, particularly allegations that race was a factor in both killings, and that self-defense as justification may play some role. However, whereas the prosecution of George Zimmerman for killing Martin focused almost exclusively on the issue of self defense, and related critiques of Florida's "stand-your-ground" self-defense law, it is far from clear at this point whether Wafer can or will invoke self-defense as a justification for his act.

Piecing together the reported facts and trying to make rational inferences form these facts offers some basis for conjecture on what may have happened on Wafer's porch that night. It has been reported that McBride crashed her car into a parked car on a Detroit street on Nov. 2, around 1:30 a.m., was attended to by passersby who reported to the police that she was injured and bleeding from the face. Before the police arrived, McBride wandered away from the accident scene, returned briefly, and wandered away again. Several hours later, at 4:42 a.m., the police received a 911 call from Wafer stating: "I just shot somebody on my front porch with a shotgun banging on my door." It is not known when Wafer fired the fatal shot. According to the toxicology report, McBride was highly intoxicated when she was shot, with a blood-alcohol level of 2.18 percent, and marijuana in her system. There is no evidence that the shot was fired at close range, according to the Medical Examiner's Office. The District Attorney has charged Wafer with both Murder in the Second Degree and Involuntary Manslaughter. Wafer also was charged with possession of a firearm during the commission of a felony. His next court appearance is December 18.
There is some evidence that McBride may have been seeking help when she arrived at the killer's residence and walked onto his porch. There is no evidence that McBride, 5 foot 4 inches tall, was armed, or threatened Wafer with harm. Wafer told the police that he "believed the girl was breaking into [my] home," and that the "gun discharged accidentally." There are several items of evidence that are not yet known: ballistic reports that may help to determine where Wafer was standing when he shot through the screen door, and how far away he was from McBride when he shot her; autopsy evidence that might show the trajectory of the shot; and cell phone records that might corroborate whether McBride's cell phone had died, and that she was going door-to-door for help.

Even if the shooting was accidental, as Wafer has claimed, is he nevertheless potentially guilty of murder or manslaughter? Under Michigan's penal law, charging Wafer with murder in the second degree is not unreasonable. The key element in the murder charge is proving that the defendant acted with "malice," and without legal justification.

Under Michigan law, malice requires proof that the defendant had the intent to kill or do great bodily harm, or created and disregarded a very high risk of death, or as one court observed, had the "intent to do an act that is in obvious disregard of life-endangering consequences." A lesser manslaughter charge requires proof that the defendant caused the death of the victim from the discharge of a firearm that the defendant intentionally pointed at the victim without lawful justification. Thus, what distinguishes manslaughter from murder is the absence of malice, namely, that the killing was committed with gross negligence, a less blameworthy state of mind.

So, if Wafer claims that he was awakened in the middle of the night by loud banging at his front door, that he grabbed his shotgun, rushed to the door, and that as he held the gun, and under the stress of the moment the gun discharged accidentally, he might be able to convince a jury that he should not be blamed for McBride's death. A jury under these circumstances might have a reasonable doubt about whether Wafer acted in utter disregard of human life, or even with gross negligence. By contrast, if he perceived that the person on his porch posed no threat, and pointed his gun at the person, and the gun discharged, even accidentally, a jury might conclude that he created an unacceptably high risk of danger by arming himself and under the circumstances behaved so recklessly as to be guilty of murder or manslaughter.

There are a host of obviously relevant questions that need to be addressed. Whether Wafer will claim that his killing was justified as self-defense is hard to predict, but under the circumstances, if he does that will be an extremely difficult argument. Wafer would have to claim that he killed McBride intentionally and allege that he did it because he feared for his life from the unarmed, diminutive young woman who was banging on his door but posed no life-threatening harm. Such a claim might strike most jurors as unconvincing and unreasonable, and so far there are no facts that would make such a claim plausible.

However, claiming that his shotgun discharged accidentally may be a more persuasive defense, but its success would hinge on several facts, which are not yet known: What was Wafer's experience with guns? Did he take any gun safety course? How often did he fire the weapon previously? Where was his shotgun stored? Was it stored loaded? Was there a safety mechanism on the weapon? At what point did he load the weapon and take the safety off? At what point did he put his finger inside the trigger guard? If he was standing at the front door pointing the weapon at McBride, why was his finger inside the trigger guard? If he was not standing at the door, where was he standing? Did he place his finger on the wrong place on the weapon in a moment of stress?

Did race play a role in the killing of Renisha McBride? The claim has been made. One recalls the case of Yoshihiro Hattori, a teenager in Louisiana out trick-or-treating on Halloween who was killed by a homeowner who claimed the boy was trespassing, or the arrest in Boston of Henry Louis Gates, a Harvard professor who was detained by police as he was trying to enter his residence. These kinds of incidents may happen more often than we know. To be sure, perceptions of danger may be very real, but they are also highly subjective. The extent to which race plays a role in these perceptions is difficult to measure, as in the Trayvon Martin case. Whether race influenced Wafer's actions, even if his shooting was an accident, is unclear. But even if the shooting was an accident, if it was influenced by the race of the victim it would seem to be more blameworthy. We don't yet know where this killing will fall on the spectrum of culpable accidents.