Michigan homeowner Theodore Wafer was convicted of second-degree murder Thursday for killing an unarmed woman on his porch -- Renisha McBride. But could a statement by Wafer's defense attorney be a problem if he pursues an appeal?
During closing arguments, Wafer's defense attorney Cheryl Carpenter described the situation Wafer faced: It was very early in the morning and an unknown person was pounding on his front door. "He armed himself. He was getting attacked. ... Put yourselves in his shoes at 4:30 in the morning," Carpenter said, according to The Associated Press.
The 1st Rule of Golden Rule Is: You Don't Use the Golden Rule
In many states, such a statement could be grounds for an immediate mistrial. Often called the Golden Rule argument, the attorney making the statement appeals to the jurors' emotions, asking them how they would feel if they were in the same situation as the victim. This is improper because, the First Circuit Court of Appeals reiterated in 2010:
"The walking in plaintiffs shoes argument, or as it is sometimes called, the Golden Rule argument, has been 'universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.'"
Jurors are supposed to decide based on logic, reason, and the admissible evidence, not their emotions. However, even though the Golden Rule statement is technically improper, it's not per se the type of error that gets a conviction automatically reversed.
Normally, it's the opposing side that makes the error; that is, in a criminal trial, you'd expect the prosecutor to ask jurors to place themselves in the victim's shoes. If the defendant were convicted, he could argue on appeal that the comment was unfairly prejudicial (and hopefully his attorney made an objection too, as a Michigan Bar Journal article reminds us).
In Wafer's case, though, his own attorney was the one urging jurors to imagine they were Wafer, and asking what they would do if confronted with banging on their door at 4:30 in the morning. The Golden Rule here looks like it's being used to create sympathy for Wafer. As a result, he may have a hard row to hoe if he attempts to use this as a basis for an appeal: He'd have to argue ineffective assistance of counsel, which is difficult-bordering-on-impossible. Under the Strickland test's "prejudice" prong, as long as the defendant otherwise appeared guilty, it doesn't really matter how incompetent trial counsel was.
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Not That It Matters...
In this case, Carpenter's statement couldn't possibly have hurt him any more than his actions did on November 2, 2013. Wafer's explanation for shooting McBride was that he thought she was breaking into his home, but the only evidence of damage to the door was caused by McBride's shotgun blasting through it.
Regardless, the Golden Rule is a terrible trial strategy. Not only is it unprofessional, but it could get a verdict reversed. Stay away.