Baltimore City Neighborhood Watch Case – Werdesheim Brothers

by Professor Byron L. Warnken on April 22, 2012

I was quoted in USA Today in a story that ran today about a Baltimore City neighborhood watch case involving Eliyahu and Avi Werdesheim.  I wanted to post to elaborate on some of the issues surrounding self defense and deadly vs. non-deadly force.

Almost everyone in America is aware of the Florida case in which George Zimmerman, a neighborhood watch person, is charged with second degree murder in the shooting death of Travon Martin, an unarmed teenager.  Zimmerman claims self-defense.

This case highlights the obvious.  We would be naïve to think that race is not germane in our society.  Race is particularly germane in the criminal justice system.  Race becomes exacerbated – and may become the prime issue – in a crime of violence when the victim and the accused are of different races.  In a jury trial, the question becomes will race so permeate the trial that race will be a significant factor in how jurors vote to decide the case.

There is currently a criminal case, as well as a separate civil law suit, in Baltimore City, also involving a neighborhood watch situation.  In the Baltimore case, two adult brothers (Eliyahu and Avi Werdesheim) are part of an Orthodox Jewish neighborhood watch group, known as Shomrim, which is Hebrew for guard.  The watch group was founded in 2005 and has about 30 unarmed volunteers.

Criminally, the brothers are charged with second degree assault, false imprisonment, and use of a dangerous or deadly weapon (a radio).  The victim in the case is a 15-year-old African American, who sustained cuts to his head and a broken wrist.  According to the criminal charging document, the Defendants Werdesheim pulled their vehicle next to the teen, got out, threw the teen to the ground, hit him on the head with a radio, and patted him down.  One of the brothers allegedly said, “You don’t belong around here; get outta here.”  As in the Zimmerman-Martin case, the Defendants in the Baltimore City neighborhood watch case claim self-defense.  They argue that they witnessed the teen victim carrying a nail-studded board while they were on their neighborhood patrol.

In the Zimmerman-Martin case, because deadly force was used, self-defense requires the Defendant to have honestly and reasonably believed that he faced imminent death or serious bodily harm in order to be justified in using self-defense at the deadly force level. 

In Baltimore’s Werdesheim neighborhood patrol case, because non-deadly force was used, self-defense requires the Defendants to have honestly and reasonable believed that they faced imminent non-deadly assaultive conduct in order to be justified in using self-defense at the non-deadly force level. 

Jurors will be instructed on the required elements of second degree assault, false imprisonment, and the weapons offense.  The jury will be instructed that the prosecution must persuade all 12 of them of these elements beyond a reasonable doubt.  If the prosecution can establish the facts, as alleged in the charging document, it appears that the prosecution can “make a case,” beyond a reasonable doubt, as to the elements of these offenses.  If the prosecution cannot persuade the jury, beyond a reasonable doubt, of all of the required elements, then the Defendants must be found not guilty.

If the prosecution can persuade the jury of each element of the crimes, beyond a reasonable doubt, the case turns to the issue of self-defense.  If so, the prosecution must be persuade all 12 jurors, beyond a reasonable doubt, that self-defense does not apply in this case.  Jurors are instructed to bring their life experience to the table.  It is very possible that a white juror and a black juror may view the same facts differently.

This case has also produced a civil law suit.  Civil rights activists believe that the case demonstrates racial profiling of African Americans when they are in a Jewish neighborhood.  A police spokesperson stated that neighborhood watchers may report crime, but they must leave intervention to the police.  In the civil law suit, there may be the issue of whether the neighborhood watch group is operating under the express or implicit authority of the police.  If so, in the civil law suit, that fact may make the police and the Baltimore City government liable for the conduct of the neighborhood watch personnel.  In fact, the police spokesperson stated, “We owe a lot of our success to communities that have stepped up and partnered with police.  They help us out.  But when they step too far, we have to hold people accountable.”

In sum, this case has two components – a criminal case and a civil case.  In the criminal case, the burden of persuasion is on the prosecution, beyond a reasonable doubt, to negate the self-defense.  Beyond a reasonable doubt is generally considered to be about an 85% degree of certainly.  In the civil law suit, the burden of persuasion is on the Plaintiffs, by a preponderance of the evidence, which is the lower standard of a 51% degree of certainty.  We will have to wait to see how these cases play out.


Philip April 23, 2012 at 8:34 am

Hi, I read an article about the case earlier today and I was taken aback by the following quote attributed to you,

“Baltimore is a city that’s 64 percent black, and the jury will likely have eight or nine black members. So race will be a factor, said University of Baltimore School of Law professor and practicing attorney Byron Warnken.”

Would not race play a factor if the city was 10% black and the jury made up of nine or ten white members. Or if the city was 50/50 and the jurors were evenly split. In fact, does not race likely factor in all trials in which the defendent’s (or accuser’s) ethnicity differs from that of the jury? Maybe you provide similar quotes for all such cases, and if so, I apologize for being overly sensitive. But the first thing that came to mind when I read the quote was that you were suggesting that African Americans are unable to put aside race to judge a trial based on the facts presented.

Professor Byron L. Warnken April 23, 2012 at 12:02 pm

The quote was taken from a much longer interview. I was merely stating what I considered to be the obvious: Race plays a factor. I agree with you. Unfortunately, I think race plays a factor in every situation you highlighted. I believe white jurors are equally as able or unable to set aside race as black jurors.

Michelle Discher April 24, 2012 at 12:05 am

I, too, was taken aback by the, apparently out of context and unfairly paraphrased, quotation attributed to you in this article: written by Brumfield.
She has taken what you said and retooled it (with the addition of the percentage of black people in Baltimore) so that it sounds as if you’re implying a black jury could not be fair because they’re black!
I was so disappointed that I sought, and found this blog page.
My plan was to discuss this nation’s history of inequities based on race, but instead, I discovered that you’d been grievously misquoted. I hope that I and the one other commenter here aren’t the only ones who bothered to write to you.
Michelle Lamb Discher

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