Discussion between the verdict and sentencing

[Bobbie Elliott]

Can anyone provide a link to the court footage of OP demonstrating his supposed instability without prostheses? I'd like to compare it with his performance in the Chanel 7 footage.

I've looked and looked but can't find it and don't know which day of the trial it was on.

IMO, it's highly likely that, in the video shot at Uncle A's, OP was providing a less than optimal stump-walking for the potential viewing in court.

Below is a link to a You tube video of a young man (Dwayne) who has bilateral lower-leg amputations which appear to be of a similar level to OP's. Dwayne had his lower legs amputated when he was 11 years old. In the video Dwayne demonstrates his agility on his stumps. He appears nowhere near as physically fit as OP but seems to do very much better than he does. I wonder why?

http://www.youtube.com/watch?v=onX7NJguuHc

 

[Sherbert]

With what has happened with the verdict, I think it is interesting to look back at the Defence Heads of Argument at the section regarding Dolus Eventualis: Page 200 -210: https://juror13lw.files.wordpress.com/2014/08/defense-heads-of-argument.pdf

Snipped and BBM


690. Therefore the question is:

690.1 Did the Accused subjectively foresee that it could be the Deceased in the toilet; and

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


691. Clearly, the facts show that the Accused believed that the Deceased was in the bedroom. He had in fact told her to phone the police and when he was at the bathroom door he shouted for her to call the police.


692. Immediately after the shooting he was looking for the Deceased in the bedroom. It was only then that he realised the Deceased might have been in the toilet.


693. His (subjective) belief that the Deceased was in the bedroom and an intruder(s) in the toilet, is further supported by his spontaneous disclosure, very soon after the shooting, that he thought it was an intruder (see the call to Johan Stander at 03:19 and the disclosure to Carice Viljoen (+/- 03:22), Dr Stipp at +/- 03:25 and the Police at +/- 04:00.


694. His version at the bail application (before he had access to the police docket, and before he was privy to the evidence on behalf of the State at the bail application), was consistent with his belief that the Deceased was in the bedroom and an intruder(s) in the toilet.


695. It did not assist the State to put to the Accused in cross-examination that it could have been anyone in the toilet, as in the context of the case, that “anyone”, in the Accused’s mind, could not and did not include the Deceased, as his version remained unaffected that he thought the Deceased was in the bedroom.



Thanks Giles! Now we now where Milady got here strange ideas from...

 

[pandax81]

BBM

Hi Pandax! Just out of interest, what do you mean when you say that error in persona does not excuse dolus directus?

Eg If OP wanted to unlawfully kill an intruder, and it turned out to be Reeva he killed, this doesn't stop it being murder dolus directus.

 

[aa9511]

Respectfully, no that's not what it boils down to.

Yes, I agree totally that he knew it was Reeva. But the judge decided that he didn't so found him not guilty of dolus directus (wanting to kill the person who was killed).

Not many lawyers are arguing with this aspect.

This is the problem:

Having accepted that he thought Reeva was in bed, Pistorius nonetheless testified that he believed SOMEONE was in the toilet....an intruder.

It is still possible for him to murder an intruder...so did he? Masipa investigated that by asking:

1) Did he forsee the deceased was behind the toilet door?
2) If he did, did he forsee and reconcile himself to her probable death?

Her answers: 1) No, because he thought she was in bed and 2) probably not because if he'd reconciled himself to her death, he wouldn't have been so upset afterwards

These are the wrong questions and therefore the wrong answers. The actual identity of the person in the toilet is irrelevant at this stage. It should have been:

Did he forsee that there was a person behind the door?
Did he forsee and reconcile himself to that persons probable death?

If you understand that the question of whether it was Reeva or not is now irrelevant (dealt with by the DD not guilty), then her answers make absolutely no sense.

He said he thought there was an intruder in the toilet. So....

1) Did he forsee that there was an intruder behind the door? No, because Reeva was in bed!!!!!
2) Did he forsee and reconcile himself to the probable death of the intruder? No, because he was so upset at having shot Reeva by accident!!!

And that's the problem. Questions that needed to be asked regarding eventualis should have been about the person behind the door, not specifically Reeva.

This is a big mistake.

I do not know, I think this whole thing is messed up (I mean the case, not your post).

Shouldn't it matter very much whether or not Oscar thought it was Reeva behind the door or whether he thought there was an intruder?

If he thought it was an intruder, it would be understandable why he would shoot through the door. (to disable or even kill the intruder because he was in fear for his life).

If he knew it was Reeva, there would be no reason to shoot through the door. Shooting through the door would mean he intentionally trying to hurt her or kill her, and ended up killing her. Or if one wanted to stretch, they could think he possibly was threatening her and then accidentally shot her (although that flies in the face of the evidence). Either way, the end result was that he killed her. Does intention matter at that point? If he knew Reeva was behind the door, and he killed her, then he killed her.

I don't know, I feel like South Africa law is making this MUCH more complicated than it should be.

 

[delilah]

If I remember correctly he prised a panel off and removed the others which enabled him to bend over the central cross bar of the door to pick up the key (if one believes that is what he really did). I think there is a photo of it somewhere. The door was put back together for forensic photos of the bullet holes to be taken.

From the photo below it seemed he only prised one panel off which would have allowed him to get his arm through but not his torso. So my question was could he have reached the floor in this way?

http://media2.intoday.in/indiatoday/images/stories//2013May/pistorius-1_660_053113055850.jpg

or had the police put some panels back in at this stage?

 

[Interested Bystander]

Can anyone provide a link to the court footage of OP demonstrating his supposed instability without prostheses? I'd like to compare it with his performance in the Chanel 7 footage.

I've looked and looked but can't find it and don't know which day of the trial it was on.

IMO, it's highly likely that, in the video shot at Uncle A's, OP was providing a less than optimal stump-walking for the potential viewing in court.

Below is a link to a You tube video of a young man (Dwayne) who has bilateral lower-leg amputations which appear to be of a similar level to OP's. Dwayne had his lower legs amputated when he was 11 years old. In the video Dwayne demonstrates his agility on his stumps. He appears nowhere near as physically fit as OP but seems to do very much better than he does. I wonder why?

http://www.youtube.com/watch?v=onX7NJguuHc

There is no footage as OP chose not to appear on tv, which was his right - much the same as other witnesses.

 

[Interested Bystander]

From the photo below it seemed he only prised one panel off which would have allowed him to get his arm through but not his torso. So my question was could he have reached the floor in this way?

http://media2.intoday.in/indiatoday/images/stories//2013May/pistorius-1_660_053113055850.jpg

or had the police put some panels back in at this stage?

Yes, they had replaced panels in order to see exactly where the bullet holes pierced the door.

 

[delilah]

If I remember correctly he prised a panel off and removed the others which enabled him to bend over the central cross bar of the door to pick up the key (if one believes that is what he really did). I think there is a photo of it somewhere. The door was put back together for forensic photos of the bullet holes to be taken. I found the photo in Juror13's blog which shows all the panels missing.

Thanks to Lisa for this http://juror13lw.wordpress.com/2014/04/07/oscar-trial-day-17-oscar/

View attachment 59244

thanks for that. Don't recall having seen the second photo before. There's not much door left at all...

 

[Cherwell]

You could say that about many aspects of his version though - the fans, the alarm, the screaming, the duvet, the jeans...Nel still asked him about those.

Yes, but all those things were undeniably specific to the night of the killing. Whereas the other stuff was arguable.

 

[delilah]

Yes, but all those things were undeniably specific to the night of the killing. Whereas the other stuff was arguable.

And the jeans on the ground below the window? Nel didn't raise that either.

 

[foxbluff]

I hope this link works. This is one of the clearest articles I've seen explaining the Judge's verdict. Also, don't miss the comments... imo, MWF really seems to know something about the subject.

http://www.news24.com/MyNews24/Oscar-why-Judge-Masipa-was-correct-20140914

Oscar - why Judge Masipa was correct
MyNews24 is a user-generated section of News24.com. The stories here come from users
15 September 2014 - By bazzalvt

"In putative private defence it is not lawfulness that is in issue but culpability (‘skuld’). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.”

Judge Masipa had therefore found (albeit with perhaps not the most lucid wording), that Oscar may have had the intention to kill, but because he didn't think it was Reeva behind the door (for the reasons provided in her judgment), he could only have thought it was an intruder, and therefore believed he was entitled to shoot (even to kill) when he heard the sound causing him to shoot.

Once this has been established, Oscar cannot be found guilty of murder as it requires the subjective element of dolus (in its totality) to be present. What is then asked, is if this was in fact the case (that he believed his life was in danger), was it a reasonable belief to have held)?. I.e. would another person in his position, have held the same belief, and would they, holding such belief, have acted the way Oscar did?

The answer to this question, the judge found, was no. Therefore he acted negligently (measured against a hypothetical third party in his position), and must therefore be found guilty of culpable homicide."

 

[ApplesInMyBra]

And the jeans on the ground below the window? Nel didn't raise that either.

There were jeans below on the ground out the window?? I somehow missed this tidbit altogether!!!! If nobody raised it, how do we know about it - was there a picture or something????

 

[ColonelMustard]

Here's a photo of Masipa in her younger professional days:

https://www.facebook.com/5280344306...8034430661075/528045423993309/?type=1&theater

 

[Cherwell]

And the jeans on the ground below the window? Nel didn't raise that either.

Because he didn't know the answer. Barristers tend to avoid asking questions if they don't know the answers. It can open a can of worms.

A possible explanation is that the jeans were part of the laundry that we know Reeva had done that day. Perhaps they weren't dry enough to pack, and she had put them outside, or on a window sill, to air and they fell to the ground. Could be completely innocuous.

There were jeans below on the ground out the window?? I somehow missed this tidbit altogether!!!! If nobody raised it, how do we know about it - was there a picture or something????

Yes, there was a photograph.

 

[Angela Carr]

Because he didn't know the answer. Barristers tend to avoid asking questions if they don't know the answers. It can open a can of worms.

A possible explanation is that the jeans were part of the laundry that we know Reeva had done that day. Perhaps they weren't dry enough to pack, and she had put them outside, or on a window sill, to air and they fell to the ground. Could be completely innocuous.



Yes, there was a photograph.

I think they were flung out the bathroom window, as they were lying opened out, with a belt still on them. If they had fallen, they would have fallen downwards below the bathroom window,into a heap, instead they were found just below the toilet window. Masipa ignored this photo, or gave it little meaning.

 

[ApplesInMyBra]

Because he didn't know the answer. Barristers tend to avoid asking questions if they don't know the answers. It can open a can of worms.

A possible explanation is that the jeans were part of the laundry that we know Reeva had done that day. Perhaps they weren't dry enough to pack, and she had put them outside, or on a window sill, to air and they fell to the ground. Could be completely innocuous.



Yes, there was a photograph.

Does anyone have a link to this photo? I can't seem to find it! Thank you.

 

[ColonelMustard]

Gerrie Nel youth wrestling coach Photo #2:

http://cache2-thumb1.pressdisplay.c...0000001001&regionKey=nbCHJRqCSGbw68CmW5ZgbQ==


Gerrie Nel golfing:

http://pbs.twimg.com/media/Bx0GFLcCcAALMe0.jpg:medium

---

 

[Angela Carr]

I have just finished reading the book by Patricia Taylor (Samantha's mom). There is some interesting parts to it about the moms relationship with OP when he was dating her daughter. A fair amount of it is just from news clippings and Oscars biography which we already know, but if you want to spend $10 it will give you some insight into OPs psyche.

 

[Angela Carr]

Does anyone have a link to this photo? I can't seem to find it! Thank you.

You should find a photo on juror13 website, when officer Barend van Staden, the photographer, was going through all the photos with NEL.

 

[foxbluff]

You could say that about many aspects of his version though - the fans, the alarm, the screaming, the duvet, the jeans...Nel still asked him about those.

I confess I'm coming in on the middle of your discussion, but hope nonetheless that I'm understanding your question.

BBM - Imo, these items were more central to the case... they were things which OP had testified about (and thus lied about) which Nel could use to trip him up. I thought the evidence of the jeans being on top of the duvet with a pattern of blood spatter on both, was going to really help the State's case...