Discussion between the verdict and sentencing

[ColonelMustard]

Well I think that they are getting more information because they have a TV channel completely dedicated entirely to the OP Trial 24/7, and the news media discuss every aspect of the case constantly, unlike here in the States where the story might be mentioned briefly on the back page of a newspaper.

You might try using the Firefox browser and downloading the add-on called "Hola". It's VERY simple to use. It temporarily changes your computer's IP address (cyber street address) to the country flag of your choice.

If you usually have a US IP address, you can't watch things in the UK. If you do a simple click in Hola and hit the UK flag, it gives you a UK IP address which you can use in the UK.

Countries filter others out based on the origin of the IP addresses. Fooling computers to think you're in another country when you're not is known as using a "proxy". It is NOT illegal. Not too long ago, I need info. straight away and had to find a proxy in Afghanistan to get the info. Good grief.

Another interesting thing is this: Google is actually country specific - if a country allows google, China no longer does. Based on that knowledge (I'm in the US), when I research this trial I often use Google South Africa. You can find it for any country by googling "Google France" or "Google Canada, etc.

The one for South Africa is http://www.google.co.za.

It gives you stuff from South Africa. There's some overlap but not on everything.

 

[steveml]

Yes they can spin it all they want but there is a reason why the majority of lawyers and smart people who followed this trial thinks Masipa got it wrong. Think about it.

I disagree with your comment regarding lawyers and 'smart people'. :notgood:

Lawyers regularly lose cases, that's a certain fact and the majority/minority argument makes little sense. Those who believed OP was guilty of intent to kill Reeva will obviously presume they were right, that stands to reason, however their attempt to gauge the verdict was clearly wrong, whichever spin one chooses to put on it.

If we all went with the majority, bookmakers would cease to exist.

 

[Marfa Lights]

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

[RESPECTFULLY SNIPPED BY ME]

DOLUS EVENTUALIS

685. The question is whether the Accused acted with dolus eventualis or legal intent in relation to the death of the Deceased.

700. “Error in persona” (mistake about the identity of the person) only finds application where an accused intended to kill the identified “specific predetermined individual” but made a mistake as to the identity of that individual. His mistake will not constitute a defence.


701. “Error in persona” does not apply to the present case. Rather, what the State seeks to do is to introduce the doctrine of transferred intent/malice, which does not form part of our law. We deal with the doctrine of transferred malice/intent below.


702. We illustrate the above, with reference to three examples:



Example 1


702.1 The mother of a three year old little girl, her only child, heard a noise in the house early one morning. Her husband was away on business. She was a victim of a house robbery about 6 months before.

702.2 She armed herself with her licensed firearm and walked to the front of the house to determine the cause of the noise.

702.3 Her little girl, who slept in the room next door, woke up and went to her mother’s bedroom. She closed the door behind her.

702.4 The mother heard the main bedroom door closing and feared that an intruder had entered her bedroom. She believed her daughter was still asleep in her own bedroom.

702.5 She heard a noise inside the main bedroom and feared that the intruder was coming out to harm them. It had previously happened to her in the house robbery.

702.6 She fired a shot into the door. Unbeknown to her, her daughter stood behind the door. The shot fatally wounded her daughter.


703. On the State’s reliance on error in persona, the mother is guilty of intentionally murdering her daughter as she wanted to kill the intruder or foresaw and reconciled herself that the intruder could be killed. According to the State, it is irrelevant that she definitely did not have the intention to kill her daughter and that she did not foresee or reconcile herself that her daughter was in the bedroom.


704. It offends against legal principles, our legal conviction and common sense, that in the absence of intent to kill her daughter, the mother must be convicted of murdering her daughter. (Her possible negligence is irrelevant in considering intention for purposes of murder.)

Thanks to Giles for posting this excerpt (I have snipped just this Example #1) from the Defense team's HOA regarding Dolus eventualis "Error in Persona."

It is not hard to imagine Masipa and her assessors being stopped in their tracks by this tragic example of the Mother accidentally shooting her three-year old daughter, mistaking her for an intruder-- it certainly has given me pause for thought! And I am still struggling right now how the necessary acquittal for this accidental shooting would not necessarily extend to OP's version of his case... I am not always able to think as clearly as many of you, and do not have a legal background, so would appreciate some help with this.

If I were in the Judge's shoes and faced with this case as an example or precedent for my ruling in OP's case, how would I deal with the differences between the two cases?

I can only think, that in a circumstantial case such as this, you really must take ALL elements of the case into consideration-- just as Nel advised her to consider the entire "mosaic" of evidence in order to see the full picture. It's difficult territory, no doubt, if you pick things apart-- or look at things in the abstract-- in absence of clear intent, and compared to this example from the Defense, then yes, perhaps poor Oscar should be acquitted of murder for (presumably) accidentally killing "the (so-called) love of his life."

But good grief!! Other than the most basic facts of the two shootings-- there is no resemblance between the parties involved and their character and the nature of their relationship. This why Oscar's credibility (or lack thereof) should have played a more important role in the Judge's decision-- and why it is so pathetic that she would have granted any credence to his crying and praying to God in remorse after confronted with the finality of Reeva lying there dead, her head blown open by his own "Zombie Stopper" bullets.

No, sorry, Roux and company-- there really is no comparison. I am afraid it should have been more obvious to the judge that what happened to that poor Mother that night, was not the same story that went down on Valentine's Day in Silverwood Estates. Not the same at all, for so many reasons. The words "impossible" and "implausible" come to mind, but she chose to cherry-pick the evidence and accept the Defense's timeline without entertaining other plausible versions, such as bat first (and yes, I agree! Nel should have driven that version home with an accompanying timeline, but still not sure she would have entertained it, given the illogic of the ammo decision.)

 

[Jake18]

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

[RESPECTFULLY SNIPPED BY ME]

DOLUS EVENTUALIS

685. The question is whether the Accused acted with dolus eventualis or legal intent in relation to the death of the Deceased.

700. “Error in persona” (mistake about the identity of the person) only finds application where an accused intended to kill the identified “specific predetermined individual” but made a mistake as to the identity of that individual. His mistake will not constitute a defence.


701. “Error in persona” does not apply to the present case. Rather, what the State seeks to do is to introduce the doctrine of transferred intent/malice, which does not form part of our law. We deal with the doctrine of transferred malice/intent below.


702. We illustrate the above, with reference to three examples:



Example 1


702.1 The mother of a three year old little girl, her only child, heard a noise in the house early one morning. Her husband was away on business. She was a victim of a house robbery about 6 months before.

702.2 She armed herself with her licensed firearm and walked to the front of the house to determine the cause of the noise.

702.3 Her little girl, who slept in the room next door, woke up and went to her mother’s bedroom. She closed the door behind her.

702.4 The mother heard the main bedroom door closing and feared that an intruder had entered her bedroom. She believed her daughter was still asleep in her own bedroom.

702.5 She heard a noise inside the main bedroom and feared that the intruder was coming out to harm them. It had previously happened to her in the house robbery.

702.6 She fired a shot into the door. Unbeknown to her, her daughter stood behind the door. The shot fatally wounded her daughter.


703. On the State’s reliance on error in persona, the mother is guilty of intentionally murdering her daughter as she wanted to kill the intruder or foresaw and reconciled herself that the intruder could be killed. According to the State, it is irrelevant that she definitely did not have the intention to kill her daughter and that she did not foresee or reconcile herself that her daughter was in the bedroom.


704. It offends against legal principles, our legal conviction and common sense, that in the absence of intent to kill her daughter, the mother must be convicted of murdering her daughter. (Her possible negligence is irrelevant in considering intention for purposes of murder.)





Thanks to Giles for posting this excerpt (I have snipped just this Example #1) from the Defense team's HOA regarding Dolus eventualis "Error in Persona."

It is not hard to imagine Masipa and her assessors being stopped in their tracks by this tragic example of the Mother accidentally shooting her three-year old daughter, mistaking her for an intruder-- it certainly has given me pause for thought! And I am still struggling right now how the necessary acquittal for this accidental shooting would not necessarily extend to OP's version of his case... I am not always able to think as clearly as many of you, and do not have a legal background, so would appreciate some help with this.

If I were in the Judge's shoes and faced with this case as an example or precedent for my ruling in OP's case, how would I deal with the differences between the two cases?

I can only think, that in a circumstantial case such as this, you really must take ALL elements of the case into consideration-- just as Nel advised her to consider the entire "mosaic" of evidence in order to see the full picture. It's difficult territory, no doubt, if you pick things apart-- or look at things in the abstract-- in absence of clear intent, and compared to this example from the Defense, then yes, perhaps poor Oscar should be acquitted of murder for (presumably) accidentally killing "the (so-called) love of his life."

But good grief!! Other than the most basic facts of the two shootings-- there is no resemblance between the parties involved and their character and the nature of their relationship. This why Oscar's credibility (or lack thereof) should have played a more important role in the Judge's decision-- and why it is so pathetic that she would have granted any credence to his crying and praying to God in remorse after confronted with the finality of Reeva lying there dead, her head blown open by his own "Zombie Stopper" bullets.

No, sorry, Roux and company-- there really is no comparison. I am afraid it should have been more obvious to the judge that what happened to that poor Mother that night, was not the same story that went down on Valentine's Day in Silverwood Estates. Not the same at all, for so many reasons. The words "impossible" and "implausible" come to mind, but she chose to cherry-pick the evidence and accept the Defense's timeline without entertaining other plausible versions, such as bat first (and yes, I agree! Nel should have driven that version home with an accompanying timeline, but still not sure she would have entertained it, given the illogic of the ammo decision.)

I read on one of the law blogs that this case cited in the DT's HOA was a made up case, used to demonstrate a point only.

 

[ColonelMustard]

ps: I think you can download Hola for other browsers, too, although I don't know if they are called extensions or add-ons or what.

 

[ColonelMustard]

Article Title:

[h=1]"MUST SEE! US rocker produces Reeva Steenkamp song. Get tissues: this could make you cry (video)"[/h]
http://www.biznews.com/thought-lead...nkamp-ballad-get-tissues-song-make-cry-audio/

 

[steveml]

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.

There's been quite a lot of debate about this. My take on it is that the issue of believing it to be dolus directus or not only matters with regard to sentencing options. For me, it's imperative that the sentence fits the crime committed as that's the essence of justice. We can get so bogged down with achieving a specific conviction 'terminology' that we lose sight of what the conviction is meant to achieve.

I think in what has been such an emotive case it's perfectly right and proper that the judge should be able to use her own discretion in passing a suitable sentence. The verdict she elected, whether technically correct or not, is certainly one based on common sense.

 

[ColonelMustard]

I'm wondering whether, if there can be no appeal and this verdict, as it stands becomes too much of a political liability and embarrassment - and cause of anger and division within South Africa (combined with a global outcry), the govt. might take some serious steps to make it go away. Jeez, I'm not sure South Africa has been this divided since Apartheid.

What I'm thinking of is a top prosecuting person in a closed door meeting with one or more higher-ups in the govt deciding the only way out of this is for Masipa to take a fall (i.e., agree to be the scapegoat for the "good of the country" to break the logjam.
[h=2][/h]If I was working for them and they asked me for ideas I might say, "Listen, she sounded so illogical and "not right" with that verdict and barely said a word for 6 months except "What time it is?" We'll take out Tea Break, now" and You are still under oath". For all the public knows, maybe she was doodling up there with her pen and paper the whole time.

I think we should play off of that. Great plausible deniability. Get some doctor to say that she had been seeing him for early onset dementia before the trial even began but she never told anyone. If a South African trial can be voided because the judge has suffers with severe mental health issues throughout, how could it be fair to Oscar?? (sarcasm and spin). Perhaps, in her right mind she may have acquitted him??? To be fair to HIM, there has to be a retrial."

Heck, if I read something like that in the papers, it would make perfect sense to me. "Ohhhhhh, so THAT'S why she barely said anything for 6 months and made no sense at all with that loopy verdict. Ok, I get it, now. SHE wasn't "all there".

They do that kind of nonsense behind the scenes every day in the US and probably in every government there is. They lie and they make stuff up, and people agree to be scapegoats, if someone higher up feels something has to happen "for the greater good." Why not this?

My question is, what of that WAS the case, actually. If the judge isn't in their right mind during a trial, what WOULD happen?

(Oh, and hey, a special shout out to the commenter here who has, in the past, made fun of some of my ideas. I honestly can't remember who you are, but this post feels like perfect fodder for your humor. I'm ready. I can take it.)

 

[soozieqtips]

There's been quite a lot of debate about this. My take on it is that the issue of believing it to be dolus directus or not only matters with regard to sentencing options. For me, it's imperative that the sentence fits the crime committed as that's the essence of justice. We can get so bogged down with achieving a specific conviction 'terminology' that we lose sight of what the conviction is meant to achieve.

I think in what has been such an emotive case it's perfectly right and proper that the judge should be able to use her own discretion in passing a suitable sentence.
The verdict she elected, whether technically correct or not, is certainly one based on common sense.

BIB - Are you saying it was common sense to declare that OP, who was busy building up a collection of guns, who used to go down to the range and shoot when he couldn't sleep, who was extremely knowledgeable about the damage his choice of bullets could inflict - couldn't have foreseen that shooting 4 times into that confined space might kill the person behind it?

 

[akp]

yes, I was making an important point of substance. Somebody else was using the fancy legal term 'dolus directus', and I was honestly just trying to help the community understand what it really means.

'dolus directus' and 'dolus eventualis' are different types of intent, applied to the same crime, any crime. Both types of intent can make you responsible for the crime, and that's why on any charge we may need to consider both.

dolus directus = direct intention = wanted to do X
dolus eventualis = legal intention = did not want to do X, but foresaw chance of X, accepted it anyway and proceeded*

The crime of murder is the intentional unlawful killing of a human body in space and time, whoever you thought that person may have been. If it turned out to be someone different, it is still murder.** This applies to both types of intent, directus and eventualis.

* This might have a fancy legal term 'dolus eventualis' but common sense and morality usually agree, for instance in the crime of murder, just because your aim was to blow their legs off but let them live should not prevent it from being murder if you knew the risk you were taking.
** This might have a fancy legal term 'error in persona', but common sense and morality also agree that this must still be murder. One of the most terrible and heavily sentenced murders in recent times in the UK was where contract killers got the wrong house and person. Just because they never imagined it may be someone else and would never have killed the victim if they had, doesn't stop it being murder with direct intention.

Beautifully explained. Thank you for the post.

 

[ColonelMustard]

Crowdsourcing would be the way to go. A big block of people who want to see the games but who will in this case, all turn their backs whenever he's on the track. They'd all need to sit together obviously.

He hasn't trained for 18 months. I don't believe for one minute he'll ever race again.

There is already a formal boycott being organized. It has many "arms" ( i.e., things TO boycott.)

I've been looking for the poster (goes on a wall) that I read this morning which was EXCELLENT, spelling out those "arms." I've spent 30 minutes already going back and hunting for it and had to give up (for now). I'm sure we will see more of it, as the whole movement spreads.

Working together, we NOT powerless. I don't think Oscar or Uncle Arthur "get it" yet, but OP's vision of a positive future is "circling the drain". They're getting a good taste of it since Nike dropped him a week or so ago, and while he will be allowed to race at the ParaOlympics IF x,y, z, their reception of him is now described in the papers we've all read, as being "cool". They will not promote his return.

Soon the day will come them Peet VZ comes a knocking' and tells OP there's much action getting him sponsors and races and appearances. Peet has to move on, "You know, Oscar - my best bud - it's just business."

Cue Uncle Arthur with a cush job and no responsibilities, somewhere in the matrix of the family businesses. Between partying, drinking, drugs, women, fights, and getting beaten up a lot by people he pi$$es off, Oscar, occasionally shows up at his desk ...as he continues to descend into the depths of his own personal abyss.

 

[PrimeSuspect]

I read on one of the law blogs that this case cited in the DT's HOA was a made up case, used to demonstrate a point only.

Now that just makes me angry, I ******* searched for that case! Talk about manipulating people's emotions!

 

[PrimeSuspect]

I'll be waiting for this.

 

[lithgow1]

There's been quite a lot of debate about this. My take on it is that the issue of believing it to be dolus directus or not only matters with regard to sentencing options. For me, it's imperative that the sentence fits the crime committed as that's the essence of justice. We can get so bogged down with achieving a specific conviction 'terminology' that we lose sight of what the conviction is meant to achieve.

I think in what has been such an emotive case it's perfectly right and proper that the judge should be able to use her own discretion in passing a suitable sentence. The verdict she elected, whether technically correct or not, is certainly one based on common sense.

To add to soozieqtips questions do you also think it is 'common sense' to base a verdict on the assumtpion that a person crying and showing remorse AFTER the fact means that they could never have intended to perform the crime of which they are accused. Now that's an opinion of Judge Masipa's where I can see much discretion but precious little common sense reasoning in.

 

[Cherwell]

It will likely have no effect. The S.A. judicial system is not going to be nudged by a group of unhappy people, mostly in North America. It will require Nels to go through the proper channels to start an appeal. He may or he may not. And even if he does, there is no guarantee what will happen.

Having scrolled through some of the comments on the petition, the vast majority I saw were by people in South Africa. I didn't notice any from America.

 

[ColonelMustard]

Questions about an appeal:

- If he appeals, will Nel simply submit legal documents? If not and it's more complicated, will it be televised?

- Would the appeal likely involve "higher" judges who simply read the transcripts and make their decision(s) from that? If not, what will it entail and, if more complicated, will it be televised?

- How long do appeals take?

- Would there be another bail hearing?

 

[wb180]

There's been quite a lot of debate about this. My take on it is that the issue of believing it to be dolus directus or not only matters with regard to sentencing options. For me, it's imperative that the sentence fits the crime committed as that's the essence of justice. We can get so bogged down with achieving a specific conviction 'terminology' that we lose sight of what the conviction is meant to achieve.

I think in what has been such an emotive case it's perfectly right and proper that the judge should be able to use her own discretion in passing a suitable sentence. The verdict she elected, whether technically correct or not, is certainly one based on common sense.

Well her discretion sucks at the moment because there was a reason for all these 'terminology'. But hey you are right lets not get bog down by all these terminology and should just abolish them and let the judge decide...not.

 

[ColonelMustard]

CRAZY LIKE A FOX?

Today I play devil’s advocate. I present my defense of Masipa’s shocking verdict. Read on.


Masipa is well aware of the Pistorius family’s wealth, power and connections.

I believe she may also be crazy like a fox.

Is it really possible that a judge like Masipa - with her sterling reputation, personal background and strong judicial history defending women - could make such a colossal mess of this verdict?

What are the chances she would get clear, well-settled points of criminal law 100% wrong and present such hideous, abbreviated, blatantly selective, emotional “reasoning”?

Was she (an experienced judge in rape and murder trials, who hands down harsh sentences) really incapable of seeing Nel’s damning “mosaic”?

Why, suddenly, with this one case, was she seemingly overcome with sympathy and kindness towards a woman killer? (Given her history, it’s highly illogical.)

Why would she ignore crucial state facts and evidence on a wholesale level, instead overtly cherry-picking highly specific, dubious "facts" to support her pro-OP conclusion?

Why would she toss clear rationale, all logical inference out the window, as well as most of the State’s case, including multiple, highly credible ear witnesses and strong forensic experts? Instead, she offered an irrational, contradictory, piecemeal, highly selective, cut-and-paste explanation, strikingly in favor of OP’s “remorse”, etc. (We all know that remorse is no proof of innocence; abusers are notorious for “remorse” after their atrocities. Remorse is what comes into play at sentence mitigation, not in reaching a verdict.)

Her convoluted “logic” was patently illogical from beginning to end.
It’s almost as if she deliberately went over the top, screwing it all up, thereby guaranteeing that the State will appeal.

Acquitting OP of all charges was never a viable option on any level for any reason (the cold facts of his action demanded this minimum verdict to pass the smell test).

I believe Masipa will likely hand down a suspended prison sentence, perhaps with hefty fines. This would guarantee that the delighted Roux would not appeal. However, it would guarantee that Nel will absolutely appeal (no doubt he and his team are already hard at work on said appeal as we speak).

Together, her bizarre, inexplicable verdict and even worse sentence would catapult this case to the next stage.

If the shocked and outraged law commentary by most of the SA legal community is anything to go by, Masipa’s verdict and sentence will be overturned by the Appeals Court.

Masipa’s strategy:

The chances of her CH verdict being overturned and reduced to acquittal are virtually ZERO.
However, the chances that her CH verdict will be upgraded to dolus eventualis and her suspended prison sentence upgraded to actual prison are extremely high. If events go according to her plan, the giddy OP better enjoy his “victory” while he can because when the State’s appeal hits, there’s only one direction left for him ... down.

Here’s the beauty of Masipa’s “madness”.

Had she declared a verdict of dolus eventualis (which the best and brightest, trained legal minds fully expected), Defense would have automatically appealed. This would have left open the (remote) possibility that the Appeals Court would reduce it to CH, along with a mere slap on the hand. This potential scenario would be 100% unacceptable to Masipa’s legal and moral senses.

Masipa wants to insure that OP gets convicted of murder, gets actual prison and it all sticks.

She gave Roux an easy “win”, caught Defense in her judicial trap and will allow the Appeals Court to drop the hammer on the stunned OP.

Why do I think Masipa is crazy like a fox? If only one or two legal pundits had condemned her verdict, that would be chalked up to mere opinion. But most ALL of them?!! The very fact that the vast majority of the SA legal community (as well as the public) is shocked and outraged by her verdict very strongly indicates that her verdict is profoundly wrong on multiple levels and cannot stand.

The very real danger to OP is not only that her ruling and sentence will very likely be overturned and upgraded by the higher court - it’s all but virtually guaranteed (seriously, what are the chances that the Appeals judges will be as equally “f##ked up” as Masipa? And should this case ever get to the Supreme Court, what of those judges? Would they also be as inexplicably insane in their reasoning and legal interpretation to reach the same conclusion as Masipa? IMHO, highly doubtful).

This was no ‘ordinary’ murder trial; this was no ordinary SA defendant. Masipa knows exactly what’s at stake. She knew exactly what was coming her way with her CH verdict. By ‘throwing herself on her sword’ and allowing herself to become a legal laughingstock, the object of wholesale ridicule and condemnation from most every corner, she may also have become a quiet, very wily hero.

The trap is set.

Did Masipa get it “wrong”?

Perhaps she got it very right.

This something I've thought a lot about, although I could never have expressed it as thoroughly and eloquently as you have, here.

That would REALLY be something if she secretly took all the heat for this, intentionally sacrificing everything, to get Reeva justice - and Oscar off the streets. And no one could ever know what she had done or why. She'd have to keep it a secret forever in order for it to work. Then, again, she's getting older ...and now/soon retiring? Maybe it's her personal swan song.

If this is what's going on, clearly she didn't tell anyone. When she was reading that verdict, Nel was hardly acting. His face was white, almost yellow, his ears as red as beets, and his body as tense as a piano wire strung so tight it was about to snap. I could barely bare to watch him; I thought he might explode. I thought I might explode.

I never watched the after lunch portion or the continuation next day. Maybe sometime I will. I just couldn't listen to any more drivel and nonsense masquerading as logic, law, and justice. It was sickening.

 

[Jake18]

There's been quite a lot of debate about this. My take on it is that the issue of believing it to be dolus directus or not only matters with regard to sentencing options. For me, it's imperative that the sentence fits the crime committed as that's the essence of justice. We can get so bogged down with achieving a specific conviction 'terminology' that we lose sight of what the conviction is meant to achieve.

I think in what has been such an emotive case it's perfectly right and proper that the judge should be able to use her own discretion in passing a suitable sentence. The verdict she elected, whether technically correct or not, is certainly one based on common sense.

BIB What's common sense though?
It's very subjective and based on a person's own life experiences and pattern recognition within those experiences.

Luckily we have objective laws to reduce individual bias, which is why it matters that the application of those laws are technically correct.

 

[sleuth-d-]

BIB - Are you saying it was common sense to declare that OP, who was busy building up a collection of guns, who used to go down to the range and shoot when he couldn't sleep, who was extremely knowledgeable about the damage his choice of bullets could inflict - couldn't have foreseen that shooting 4 times into that confined space might kill the person behind it?

i am surprised that nel didn't ask op to explain the difference between black talon and 'standard' ammunition. and then follow on with, why op had black talon loaded in his bedside gun.