awaiting sentencing phase

[lithgow1]

I know many people have expressed concern regarding the precedent that's been set by this case and verdict but unless the circumstances are very similar, how much of a precedent will actually be set? Maybe some poster with a better understanding of common law and how it impacts on future decisions can enlighten me, but if Joe (or Jane) Bloggs was to shoot their partner through a closed door I assume they can't just claim 'the Pistorius defence'?

I also imagine that the level of defence an individual can afford will also be a significant factor, as unjust as that is. You can't blind the judge with science if you can't afford the scientists. Also, within parameters, judges have a fair bit of leeway in sentencing (zero to 15 years in this case) so though I'm very concerned that Pistorius won't get any prison sentence, let alone one that will fit his crime, that may not flow-on at all to sentencing in future cases. Anyway, just a few thoughts and questions on this aspect of the case.

 

[homegirl]

Judge Greenland's interview with Lisa

“I as a judge, I would have rejected the whole of Oscar’s defence I think for any number of reasons, especially on critical issues. I would have said to Oscar, “You have not taken this court into your confidence. All the court can find is that you pointed the gun knowing you were pointing it at a human being and you pulled the trigger four times and killed a human being in a hail of bullets. That’s all this court can safely accept. The rest the court is still bemused and confused about. So I am not going to accept your version as to why you killed her, and that being the case, there isn’t a lawful excuse that you have advanced for this killing and you’re found guilty of murder”. So my decision would have been radically different from the court because I would have rejected Oscar’s defence entirely as opposed to just rejecting it on the narrow or very specific basis of foreseeability at the time that he pulled the trigger. That would have been my decision”.

Judgejudi, thank you for taking the time to do the transcriptions. :tyou:


BBM
This says it all for me. I have no doubt, reasonable or otherwise, that OP killed Reeva and that his entire ludicrous version(s) is a fabrication. It should have been rejected.

 

[homegirl]

The Problem with the Oscar Pistorius Judgment – For Dummies.

A straightforward explaination by Judge Greenland about why he thinks Judge Masipa got it wrong.

http://www.news24.com/MyNews24/The-Problem-with-the-Oscar-Pistorius-Judgment-For-Dummies-20140928

Good article! This helps me to understand the error JM made in law. I find this response by JG in the comment section to be very interesting.

RBBM

ProJusticio*-*September 28, 2014 at 11:45
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Please note that i do not contend that OP is guilty of murder.
There may be some good reason why he is not.
My stance is that, if the Court was accepting his version, he is guilty of murder.
The reasoning in this judgment does not support the not guilty to murder verdict.

 

[Lux et Veritas]

I've just finished listening to the first part. Judge G is brilliant at cutting through all the crap, all the stuff that has endlessly fascinated us but which is really mostly window dressing (the belted or non-belted jeans being a perfect example!), and saying it mainly comes down to what was OP thinking when he pointed his 9mm at the door and fired.

His comments on OP's reaction after the crime and how Masipa really should not have taken this into account were interesting in that he queried whether Masipa had had enough experience to understand that a guilty person can be remorseful immediately after committing a crime. My question is how much experience does one really need to have to work that one out? Twenty years as an advocate and judge or just a healthy dose of scepticism???

His comments on what he felt was mishandling of court proceedings were interesting too - he felt some (state) witnesses had been badgered and that Masipa should have intervened. Looking back on the trial, Masipa's lack of engagement now seems quite telling. At the time I thought this was just how judges behave in SA, whereas I think in the UK there is much more of a sense that the judge is in charge. In this case, it often felt to me that Nel and Roux were running the show entirely. Masipa just didn't seem to have much of a presence or influence other than deciding on when they were to have the next tea break.

I agree, Delilah. While I know every judge has a different style, Masipa never seemed to full “engage” except when it was absolutely necessary - and too often she didn’t intervene when she should have.

She never seemed to ask enough questions, especially at closing arguments.

Had she not even been present, I think the trial would have proceeded exactly the same under the assessors. LOL

Her striking lack of engagement - together with her outrageous verdict - says only one thing to me: she already knew the outcome.

 

[AW2B]

I agree, Delilah. While I know every judge has a different style, Masipa never seemed to full “engage” except when it was absolutely necessary - and too often she didn’t intervene when she should have.

She never seemed to ask enough questions, especially at closing arguments.

Had she not even been present, I think the trial would have proceeded exactly the same under the assessors. LOL

Her striking lack of engagement - together with her outrageous verdict - says only one thing to me: she already knew the outcome.

BRBM

I totally agree..I do believe that her outrageous verdict was predetermined..unfortunately..I also believe the sentence is predetermined.. I'm just hoping the uproar she faced after delivering her verdict would wake her up..maybe she will change direction by giving him an appropriate sentence close to the maximum allowed for culpable homicide...

 

[foxbluff]

Judge Greenland's interview with Lisa

Items shown in photographs but not discussed during the trial:

• the jeans outside the bathroom window
• the gunshot holes in the bedroom door
• other damage to the bedroom door
• the dented bathtub plate

Lisa thinks these point to a domestic situation occurring that night and asks JG to comment.

“As a judicial officer I will tell you circumstantial evidence is the best evidence because it can’t be changed. It’s all very well saying that they want direct evidence meaning evidence of humans. Humans are prone to mendacity. Humans are prone to having bad memories. Humans are especially prone to having seen a situation in a way that didn’t actually occur quite genuinely. So circumstantial evidence is the best evidence you can have, and in this case the circumstantial evidence could not have been stronger. As I said, we can’t improve the State case by providing a video of the shooting.

The expert ballistics testimony “was completely consistent with these shots being grouped. In other words, purposeful firing as opposed to, let’s say, a gun going off in the hands of a man who has lost control completely and doesn’t even know he’s firing. When you fire that weapon, each time you pull the trigger it kicks up and it requires real control to group those shots in that way. So everything, the circumstantial evidence, the hard facts of the matter, the undeniable evidence, all is consistent only with purposeful firing of the weapon, and the judge in her judgment actually is discounting purposeful firing, and we still don’t know what her finding is. We still don’t know what the court’s finding was on the issue of what was it in Oscar’s mind, what was in his mind when he was firing. We don’t know. We know she has said what was not in his mind. … But she hasn’t told us what was his intention”.

I found JG's first para confusing... perhaps because I don't agree with his definitions of types of evidence.

bbm - I agree with him about what we usually call eyewitnesses. Unfortunately, the same could be said of the well-intentioned earwitnesses in OP's case.

 

[AW2B]

The Problem with the Oscar Pistorius Judgment – For Dummies.

A straightforward explaination by Judge Greenland about why he thinks Judge Masipa got it wrong.

http://www.news24.com/MyNews24/The-Problem-with-the-Oscar-Pistorius-Judgment-For-Dummies-20140928

In the comments section "RabbleRouser" brought up the same issue we have been discussing about whether or not the prosecution can appeal the sentence. He/she addressed JG saying that the prosecution can appeal BOTH the verdict and the sentence at the SAME time. However, if they appeal the verdict only..then they wouldn't be able to increase the sentence unless the defense opens the door..

So far..JG didn't reply to that comment..I hope he does..

 

[foxbluff]

http://www.timeslive.co.za/local/2014/03/03/here-s-the-luxury-hideaway-where-oscar-has-found-refuge

Here's the luxury hideaway where Oscar has found refuge

It is in a former Dutch Reformed Church rectory that Oscar Pistorius has found refuge since his arrest for the killing of his model girlfriend, Reeva Steenkamp.

The estate in the "old money" suburb of Waterkloof in Pretoria is a family-owned property that boasts high walls, a triple-storey mansion and a luxury swimming pool.

A private security guard has been stationed outside every day this week.



Interesting pictures of uncle Arnold's home.

Ty for link... interesting to see pics of uncle Arnold's home. It's not at all what I had expected. I had envisioned a mansion on large acreage with guest houses, caretaker house and servant houses spread out on the estate.

 

[Marfa Lights]

After listening to Lisa's interview with retired Judge Greenland (thank you, Lisa!), I had to go back and read Masipa's decision again after hearing Judge Greenland say that Masipa misapplied the test for Dolus eventualis on the first day (9/11) where she stated Oscar could not be guilty of murder if he thought Reeva was still back in bed. THEN she corrected this oversimplification on the next day (9/12) when she added the phrase "the deceased, or any one else, for that matter." I think these two different statements are a source of confusion for a lot of people who feel she is being misquoted by the legal experts who say she made an error of law in applying the test for DE. It is probably safe to presume their decision was actually based on the ruling as explained on 9/11 and that the additional language may have been inserted for the second day of the verdict.

And, of course, that's not the only problem with her ruling-- as far as I can interpret it, she goes on to use the very same rationale for negligence and Culpable Homicide that she used to rule out Dolus eventualis (and I don't even want to think about the rationale for her ruling on the illegal ammo possession!)

https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf


From the first day of her judgment (Sept. 11, 2014) on page 3327, Line 13, Masipa states:

CC113/2013-mvn 3327 JUDGMENT 2014-09-11

I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased
behind the toilet door and

2. Notwithstanding the foresight did he then fire the shots, thereby
reconciling himself to the possibility that it could be the deceased in
the toilet.

The evidence before this court does not support the state’s contention
that this could be a case of dolus eventualis.

On the contrary the evidence shows that from the onset the
accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.


However, the next day, September 12th, Judge Masipa came back with the additional language shown below (copied from pages 3347 and 3348, starting with line 25 on page 3347):

CC113/2013-pc 3347 JUDGMENT 2014-09-12
This court has already found that the accused cannot be

CC113/2013-pc 3348 JUDGMENT 2014-09-12
guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.

She then goes on to justify her ruling of negligent or culpable homicide (CH) using essentially the same language she used in ruling out Dolus eventualis (DE):

CC113/2013-pc 3349 JUDGMENT 2014-09-12
Evidential material before this court however, show that the accused acted negligently when he fired shots into the toilet door, knowing that there is someone behind the door and that there was very little room in which to manoeuvre.

A reasonable person therefore in the position of the accused, with similar disability would have foreseen that possibility, that whoever was behind the door might be killed by the shots and would have taken steps to avoid the consequences and the accused in this matter failed to
take those consequences.

Not very clear, is it?

 

[AW2B]

After listening to Lisa's interview with retired Judge Greenland (thank you, Lisa!), I had to go back and read Masipa's decision again after hearing Judge Greenland say that Masipa misapplied the test for Dolus eventualis on the first day (9/11) where she stated Oscar could not be guilty of murder if he thought Reeva was still back in bed. THEN she corrected this oversimplification on the next day (9/12) when she added the phrase "the deceased, or any one else, for that matter." I think these two different statements are a source of confusion for a lot of people who feel she is being misquoted by the legal experts who say she made an error of law in applying the test for DE. However, that's not the only problem with her logic... and I don't even want to think about her rationale for the illegal ammo possession!

https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf


From the first day of her judgment (Sept. 11, 2014) on page 3327, Line 13, Masipa states:

CC113/2013-mvn 3327 JUDGMENT 2014-09-11

I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased
behind the toilet door and

2. Notwithstanding the foresight did he then fire the shots, thereby
reconciling himself to the possibility that it could be the deceased in
the toilet.

The evidence before this court does not support the state’s contention
20 that this could be a case of dolus eventualis.

On the contrary the evidence shows that from the onset the
accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.


However, the next day, September 12th, Judge Masipa came back with the additional language shown below (copied from pages 3347 and 3348, starting with line 25 on page 3347):

CC113/2013-pc 3347 JUDGMENT 2014-09-12
This court has already found that the accused cannot be

CC113/2013-pc 3348 JUDGMENT 2014-09-12
guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.

She then goes on to justify her ruling of negligent or culpable homicide (CH) using essentially the same language she used in ruling out Dolus eventualis (DE):

CC113/2013-pc 3349 JUDGMENT 2014-09-12
Evidential material before this court however, show that the accused acted negligently when he fired shots into the toilet door, knowing that there is someone behind the door and that there was very little room in which to manoeuvre.

A reasonable person therefore in the position of the accused, with similar disability would have foreseen that possibility, that whoever was behind the door might be killed by the shots and would have taken steps to avoid the consequences and the accused in this matter failed to
take those consequences.

Not very clear, is it?

When she declared that Pistorius was not guilty of murder..several experts said that she misapplied the test of Dolus Eventualis..I'm sure she heard those comments ..so she corrected it the following day..but not quite according to the experts..in other words..it won't work.
I think she knew she was in trouble..

 

[JudgeJudi]

When she declared that Pistorius was not guilty of murder..several experts said that she misapplied the test of Dolus Eventualis..I'm sure she heard those comments ..so she corrected it the following day..but not quite according to the experts..in other words..it won't work.
I think she knew she was in trouble..

I agree. This is what Judge Greenland said in his interview with Lisa:

" ... the court misdirected itself in applying law, in applying the test known as dolus eventualis because she stated very, very clearly, and indeed that, that she was finding him not guilty on the basis that it could not be found that when he fired he might foresee that he would kill Reeva Steenkamp. That was a misdirection, a complete utter misdirection on her part. The fact that she came back the very next day and changed the wording formulation of that test will not save the misdirection on appeal. As a judicial officer you can correct yourself immediately after you say something because it can be assumed that you just simply either misread your notes or you misstated what you intended to say, but in this case it is obvious that the court made a fundamental mistake, a misdirection in law, and as a result of the hoo-ha that happened that night of all the legal eagles and legal world, then came back and attempt to retrieve the situation. The Appeal Court in my respectful view cannot allow that. It has to say the court made a mistake – it was confused about what test to apply”.

What an appalling mistake to make with the whole world watching, a mistake made not just by her but the assessors as well. Masipa said it was a unanimous finding. Truly unbelievable. I can't get my head around this at all. If I were in her shoes I'd be thinking about early retirement.

 

[Susza]

Forgot to add:
Although its pretty pointless as I can't replicate music teach Burger's hearing ability ( mines pretty good though) nor the conditions, topgraphy and ambient temperatures etc of Silverwoods on a warm, still night, I will actually give it a go next weekend!

I definitely don't want to be shouting "Help Help Help" in ANY tone of voice in my neighbourhood in England - someone will call the police!
But when I'm in wales next weekend (no near neighbours) I'll do that from 1/10th of a mile away. ( My track is a mile long so it's easy.)
If it's not blowing a rainy gale(!) I'll try it and let you know.

OT, sorry, but a weekend/Wales/no near neighbours - that sounds soooo good. ENJOY it!
And: looking forward knowing more about the results of your experience.

 

[steveml]

Who said anything about the screams being mocked? It was the 'help, help, help' that was suggested could've been mocking, the screams were separate to this, screams which did not consist of words but which were petrified screams that built in intensity and which reached a climax, according to Burger.

I'm referring to the mocking tone of 'help, help, help'. Do you seriously believe that this was directed in a sarcastic tone towards Reeva, yet was heard the length of two football pitches away? These words were obviiously screamed at the top of his voice, intending to attract attention. This is the exact opposite of a manipulative DV perpetrator, who's actions would be specifically directed at their partner, making conscious effort to conceal his/her manipulative ways from those outside of the relationship.

If people are going to quote typical DV patterns of behaviour, as they did frequently during the trial in an effort to validate their theories regarding OP, then it would be interesting to do likewise with this particular action, and see if this appears on any of the websites. I suspect you know the answer without needing to look.

 

[steveml]

I agree. This is what Judge Greenland said in his interview with Lisa:

" ... the court misdirected itself in applying law, in applying the test known as dolus eventualis because she stated very, very clearly, and indeed that, that she was finding him not guilty on the basis that it could not be found that when he fired he might foresee that he would kill Reeva Steenkamp. That was a misdirection, a complete utter misdirection on her part. The fact that she came back the very next day and changed the wording formulation of that test will not save the misdirection on appeal. As a judicial officer you can correct yourself immediately after you say something because it can be assumed that you just simply either misread your notes or you misstated what you intended to say, but in this case it is obvious that the court made a fundamental mistake, a misdirection in law, and as a result of the hoo-ha that happened that night of all the legal eagles and legal world, then came back and attempt to retrieve the situation. The Appeal Court in my respectful view cannot allow that. It has to say the court made a mistake – it was confused about what test to apply”.

What an appalling mistake to make with the whole world watching, a mistake made not just by her but the assessors as well. Masipa said it was a unanimous finding. Truly unbelievable. I can't get my head around this at all. If I were in her shoes I'd be thinking about early retirement.

Oh really - Masipa should retire because Greenwood 'thinks' she's incorrect? That's a bit premature. Unless the court of appeal say so, there hasn't been any mistake. This is only an opinion from a retired judge, who had to maintain his stance as he laid his cards on the table very early in the trial during his regular PR appearances. If a mistake was made it will be appealed. If there is no appeal, we can presume that there has been no mistake.

I wouldn't read to much into the comments of lawyers/judges outside of the case as they all interpret the law in their own way. Both Greenwood and Masipa have been wrong before and had successful appeals against their decisions. The same goes for lawyers. If their opinions were always correct they'd never lose a case.

 

[AW2B]

Oh really - Masipa should retire because Greenwood 'thinks' she's incorrect? That's a bit premature. Unless the court of appeal say so, there hasn't been any mistake. This is only an opinion from a retired judge, who had to maintain his stance as he laid his cards on the table very early in the trial during his regular PR appearances. If a mistake was made it will be appealed. If there is no appeal, we can presume that there has been no mistake.

I wouldn't read to much into the comments of lawyers/judges outside of the case as they all interpret the law in their own way. Both Greenwood and Masipa have been wrong before and had successful appeals against their decisions. The same goes for lawyers. If their opinions were always correct they'd never lose a case.

BRBM

Sorry..this is not a valid argument..

One can always have the correct opinion based on correct interpretation of the law..yet they still can lose cases. Trying cases entails complex tasks including questioning witnesses..studying forensic evidence..presenting closing arguments..etc..etc..any missed opportunity could cost any lawyer to lose his case. Not to mention the consequences of having a BIASED or INEXPERIENCED judge presiding over their case..

 

[vanatos]

Unless the court of appeal say so, there hasn't been any mistake

Can you clarify your argument, are you stating that unless an appeal found Masipa made a mistake, she did not make a mistake?

I wouldn't read to much into the comments of lawyers/judges outside of the case as they all interpret the law in their own way

Really?

Is this how the world is supposed to work? that at no point do we turn to experienced professionals and their statement in their area of expertise?

Do you believe society could even function?

 

[JudgeJudi]

Oh really - Masipa should retire because Greenwood 'thinks' she's incorrect? That's a bit premature. Unless the court of appeal say so, there hasn't been any mistake. This is only an opinion from a retired judge, who had to maintain his stance as he laid his cards on the table very early in the trial during his regular PR appearances. If a mistake was made it will be appealed. If there is no appeal, we can presume that there has been no mistake.

I wouldn't read to much into the comments of lawyers/judges outside of the case as they all interpret the law in their own way. Both Greenwood and Masipa have been wrong before and had successful appeals against their decisions. The same goes for lawyers. If their opinions were always correct they'd never lose a case.

Let me assure you, I'm extremely well-acquainted with the legal profession, and that includes judges. Judges take their standing within the legal community extremely seriously. Would it surprise you to know that one of our senior judges committed suicide after his spectacular fall from grace for this very reason.

It wasn't only Greenland, not Greenwood as you incorrectly stated, who I might add has 35 years' experience, who disagreed with her interpretation of the law but many, many highly experienced criminal lawyers in South Africa, as you would or should no doubt be aware.

It is incorrect to state that if a mistake was made it will be appealed and that if there is no appeal we can presume that there has been no mistake. Whether an appeal is made will depend on the sentence, not just because of an error in law. If you don't understand the reason for that, perhaps you need to do a bit more research.

Your comment that Greenland and Masipa have been wrong before and had successful appeals against their decisions is fatuous to say the least. Have you not seen what barristers' and judges' law libraries look like? The walls are lined with books the entire length of the room up to ceiling height. Why you may ask? Because the law is constantly evolving with decisions being set aside, reversed, upheld all the time.

Having said all that, I personally believe an appeal should be made regarding an error in law because the current judgment has set a dangerous precedent re possible future defences.

 

[cynic]

I find it infuriating that anyone, and most importantly JMasipa, believes that a person who murders can't come up with a story so quick. My lawd, we're in the age of instant everything, a liar will instantly have an excuse, OP was quick to get his friend to take the blame at Tasha's.

The 'intruder' story is as old as the hills. Darlie Routier says an intruder stabbed her boys, Dr Jeffery MacDonald said intruders killed his pregnant wife and two daughters, and these are just the well known cases, there are many others.

Drives me :nuts:

The 'intruder' story is as old as the hills and, as a matter of fact, I just saw a story on Friday which showcased it yet again.
The case was about Seth Techel, 23, who was recently found guilty of first-degree murder and sentenced to life in prison following the shooting death of his recent bride, Lisa Caldwell Techel.
They were married only seven months and she was four months pregnant when he shot her as she slept, (so he could date a co-worker,) and then tried to blame the killing on an intruder.
He put on a good Pistorius-like performance during his call to 911 and for the attending police and EMS personnel.
Some of the “acting” is sampled in the following brief clip.
http://www.youtube.com/watch?v=Pa_0zjjzFvc

Undoubtedly Masipa would have been convinced of his innocence, because surely he couldn't have been "play-acting, merely to delude the onlookers."


The clip was taken from a two-hour Dateline episode:
http://www.nbcnews.com/feature/dateline-full-episodes/full-episode-dawn-n213106

 

[Lux et Veritas]

I agree, someone else is going to be seriously hurt or killed by this man. SMH

How do we know he doesn't have access to another safe or storage facility with more guns and ammo? Does anybody care? :aktion1:

All OP has to do is kype one of the 55 guns his immediate family owns - they'll never miss it.

 

[JudgeJudi]

A wonderful article by Professor James Grant.

Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)

"In law it is a licence to introduce uncertainty in our law, or worse, distort or destroy the proper functioning of the principles. Perhaps even worse than that, it seems to reconcile with the notion that the principles don’t matter, as long as the right conclusion was reached. This is the worst possible implication because it reconciles with a lawless society. We must not accept this. It is not even the thin edge of the wedge – it is the wedge, the whole of the wedge".

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/