Discussion between the verdict and sentencing

[Lux et Veritas]

Themba Mazibuko and Janet Henzen-du Toit were appointed by Judge Masipa before the trial began. They are there to help the judge decide whether Pistorius is guilty or not. Despite the media hype surrounding the case, not much has been said about the two assessors.

Mannie Witz, an advocate with the Bridge Group at the Johannesburg Bar, says Mazibuko is "fresh out of university" and comes from an academic background. Other than that, little is known about him.

Henzen-du Toit, on the other hand, is well known as an advocate who has defended murders and rapes, says Witz. She joined the Pretoria Bar in 1998, before leaving for the Rebel Bar in North West in 2003. She became a member of the National Forum of Advocates in 2005 and also presided over trials as an assessor during this period. In 2006, she returned to Pretoria and joined the Legal Aid Board. In 2010, she became a unit manager in the South Gauteng High Court in Johannesburg.

A profile of Henzen-du Toit published by Beeld newspaper earlier this month pointed out that she was an expert in criminal justice. She has an Honours degree in psychology and Master's degree in criminal justice and criminal prosecution. She is working on a doctorate in criminal law, criminal prosecution, evidence and constitutional interpretation.

http://www.mediaclubsouthafrica.com/democracy/3759-assessors-can-decide-pistorius-s-fate

Highly experienced assessor Henzen-du Toit appeared to be a very smart choice. However, assessor Mazibuko was 100% raw, the ink on his diploma still wet, i.e. zero experience. Seriously, what was he doing on a complex, high-profile murder trial?!

While every brand new attorney needs experience to become a skilled, competent advocate, logic dictates that SA’s Trial of the Century was not the proper venue. Considering the ultra-high stakes in this trial, such a green legal choice is really alarming.

What could possibly have been the rationale for choosing such a judicial babe in the woods?

 

[Cherwell]

What would preclude the possibility that Oscar broke through the section of the door panel with the bullet hole split in half either with his hands as he gained entry to the toilet cubicle after the shooting or that the sequence of events could have been BAT-GUN-BAT AGAIN?

We know that he has form for punching or kicking holes in doors. See the Cassidy Taylor Memmory incident.

 

[Pirate Doug]

"What could possibly have been the rationale for choosing such a judicial babe in the woods?"

The same rationale that made them choose Judge Masipa. Wake up, folks, this was a Kangaroo Court. But don't blame the actors, the Judge, her Assessors, and many other people have been manipulated. I'm quite sure I have figured out Judge Masipa's reasoning.....she knows that she will bear the brunt of the backlash, not OP...and to that, I believe she is resigned......

...but someone had to do this, and whoever it was, had no real choice, it's staring us all in the face....

...come, on sleuths! Do some sleuthing!

OP's Uncle Arnie.......very wealthy, and since Oscar's days of Glory, no doubt astonishingly well-connected. The way I see it, this whole thing is his show, and he's the director. He even gave a speech after the performance......

 

[pandax81]

Masipa: "In any event, the evidence of Mr Lin, an acoustic engineer, cast serious doubt on whether witnesses who were 80 metres and 177 metres away respectively from the accused’s house would be able to differentiate between a man and a woman’s screams, if the screams were from the toilet with closed windows."

I just checked Lin's real evidence. Even his own modelling using 110dB for the scream (he says typical scream is 110dB to 120dB) allows for:

80m, listener on the balcony = definitely audible + definitely intelligible
80m, listener in the bedroom = definitely audible + definitely intelligible
177m, listener on the balcony = definitely audible + possibly intelligible
177m, listener in the bedroom = extremely unlikely to be audible

Surely Masipa's statement is simply false?

 

[vansleuths]

oh wonderful van, I only received an email confirming I had signed the petition. Did you personally send an email to NPA? Cool if you did, I probably should do the same, if I'm going to talk the talk, I should walk the walk.

If you go to the url http://www.npa.gov.za/ReadContent402.aspx , there is a general email address where you can send information. I've sent email through here before and not had a response, other times I have.

This time around when I sent a message, I was a bit surprised that I received a direct email address for someone in the NPA if I have more information to send.

 

[vansleuths]

Junebug .. why do you think that Reeva's mother herself doesn't believe this was an accident? The reason is because she knew just how much Reeva and Op had been fighting in the run up to her being killed ... she said that Reeva said to her ".. mum .. we've been fighting .. we've been fighting a LOT .. ". (therefore those whatsapp messages were just an indicator of far more troubles in their relationship than Masipa gave credit for .. does she not know that not everything in a relationship ends up in a text message? .. although even that which did was a fairly massive indicator and should never have been dismissed in the way that Masipa did .. it was nothing less than disgusting). It is so freakin obvious that this was a domestic violence murder, it's just ridiculous for anyone to believe otherwise! Do you actually believe that OP didn't tell one single lie on that stand? He couldn't even promise that he would tell the truth .. the best he could summon up was that he would 'try' to ! He has just sworn on oath to tell the truth, for goodness sake!

I know this is hindsight and hindsight is always 20/20 but sometimes I wonder if there was more that Nel could have done to highlight points.

Of course, knowing that Masipa would dismiss the text messages as just general ups and downs in a relationship, I wonder if there would have been value in Nel putting Reeva's mother on the stand to explain that their relationship was rocky. This of course is assuming that it was admissible.

 

[mister happy]

"What could possibly have been the rationale for choosing such a judicial babe in the woods?"

The same rationale that made them choose Judge Masipa. Wake up, folks, this was a Kangaroo Court. But don't blame the actors, the Judge, her Assessors, and many other people have been manipulated. I'm quite sure I have figured out Judge Masipa's reasoning.....she knows that she will bear the brunt of the backlash, not OP...and to that, I believe she is resigned......

...but someone had to do this, and whoever it was, had no real choice, it's staring us all in the face....

...come, on sleuths! Do some sleuthing!

OP's Uncle Arnie.......very wealthy, and since Oscar's days of Glory, no doubt astonishingly well-connected. The way I see it, this whole thing is his show, and he's the director. He even gave a speech after the performance......

My post from 9-16:

After a brief period of hopefulness, I am getting cynical again. As of now, I don't think there will be an appeal (for whatever reasons), or if there is an appeal it will be squashed by the higher courts. The dreadful Masipa will give her boy Oscar a wimpy sentence (no prison time, of course) and that will be that. The person who is really rustling my jimmies now is uncle Arnie. I can't help but think that his wealth, power and influence had an effect in this farce.

We are thinking alike, Doug. Call me a CT, but I smell a rig.

 

[aa9511]

This is going to sound odd, but after cynic's helpful recap above, I don't necessarily think that Masipa got it wrong on eventualis. I think the mistake was on directus.

We've been focusing on Masipa's silly argument that OP didn't necessarily intend to kill whoever was behind the door, and her mistake in suggesting that the identity of the person mattered. But, it seems like her argument on putative private defense is sound. IF -and it is a big if - you accept that OP thought there was an intruder in the house, even if you also think his actions were unreasonable, then culpable homicide becomes the correct verdict.

The problem lies in the original belief in OP's claims. I didn't even realize before that Reeva was DRESSED and had her cellphone in the toilet. That totally destroys OP's already unbelievable story - nobody does that to go to the bathroom in the middle of the night. This confirms the ear-witnesses belief that they heard two voices arguing, and confirms the evidence that suggested RS had eaten well after OP said they had gone to bed.

Honestly, I'm confused why a lot of the experts seem to suggest that he should have been convicted on DE, but that DD was a long-shot. Yes, some of the evidence might not have been as persuasive as Nel wanted the court to believe - but there was a lot of it that was. Focusing too much on whether or not every single ear-witness heard what they thought they heard at the precise second they heard it was a distraction from the overwhelming amount of evidence that OP's intruder story was entirely bogus.

Here, here.

 

[Interested Bystander]

Masipa: "In any event, the evidence of Mr Lin, an acoustic engineer, cast serious doubt on whether witnesses who were 80 metres and 177 metres away respectively from the accused’s house would be able to differentiate between a man and a woman’s screams, if the screams were from the toilet with closed windows."

I just checked Lin's real evidence. Even his own modelling using 110dB for the scream (he says typical scream is 110dB to 120dB) allows for:

80m, listener on the balcony = definitely audible + definitely intelligible
80m, listener in the bedroom = definitely audible + definitely intelligible
177m, listener on the balcony = definitely audible + possibly intelligible
177m, listener in the bedroom = extremely unlikely to be audible

Surely Masipa's statement is simply false?

There are huge problems with determining whether a sound is audible or not and from what distance. The biggest being not knowing how acute the hearing of the witnesses was but that could have been tested. It may be that those who heard from the longest distance had incredibly good hearing.

To demonstrate this I relate my own experience in this area. My husband does not have very good hearing and hears much less than I. I consider I have very good hearing but my son has very acute hearing and when he was younger could hear the electronic sound created by lights etc in stores which was so uncomfortable he had to cover his ears (known as hyperacusis). Whilst the very worst of his problem has subsided as he has grown older he still has incredibly good hearing and commonly hears approaching noises way before anyone else in the family or his circle of friends. Whilst I am not suggesting the the Burgess's suffered from this condition, as it would be unusual for two people in the same household to do so, it does lend weight to the possibility of extreme variations in hearing ability. I think the Burgess's heard exactly what was happening, regardless of Mr Lin's explanation, and the fact that he could only generalise, and I find Judge Masipa's complete disregard of earwitness testimony quite alarming.

 

[aa9511]

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.

Thank you so much for this explanation. It is VERY helpful.

IMO, Oscar lost his temper with Reeva, he got the gun, and he pointed it at the door fully intending to shoot her. I don't think he necessarily wanted to kill her, but yes, he was fully aware, being the gun fan that he is (and no matter whether gun fan or not b/c any reasonable person knows that when you point and shoot at a person, you just might kill them), that he might kill Reeva. But at the time, he was so caught up in his rage that he didn't comprehend the consequences of what would follow (omg I murdered someone and I will have to explain this and I might go to prison for the rest of my life, plus Reeva is gone).

I DO NOT think, common-sense wise, that it is any kind of defense that you should be held not guilty of murder just because you didn't realize at the time what kind of mess you were going to get yourself into.

I don't think that he wanted to kill her like someone who pre-meditates a murder, so I think it would be equivalent to a US charge of M2.

So, in my mind, all of this dolus this and dolus that, it just basically irrelevant because IMO, he fully knew Reeva was in that toilet room. And he fully knew when he pointed the gun and shot that he might seriously hurt her or even kill her.

 

[Lux et Veritas]

SERIOUSLY, WHAT ARE THE CHANCES?

I can’t help but wonder if Masipa deliberately went out of her way to make her half-baked, severely truncated verdict as illogical, unreasonable, convoluted, irrational, contradictory and downright bizarre as she possibly could (not to mention highly unprofessional, subjective bias driven by OP’s “remorse”, crying, puking and praying to God, which has no place in adjudging innocence or guilt, only mitigation of sentence).

Almost as if she deliberately stapled a giant “APPEAL HERE!” target to her ruling so Nel could not miss it.

Honestly, how could a seasoned, well respected judge (ostensibly a staunch advocate of anti-violence against women, proven by her harsh rape and murder sentences) get damn near half of her verdict so blatantly WRONG and simply IGNORE the other half (i.e., State’s entire case)?!!

Then again -

Perhaps “someone” did get to her (and her assessors) ... hence the shocking CH verdict, the abbreviated, rambling, cut-and-paste, overtly pro-OP, anti-State, connect-certain-dots verdict. (And what about that very abrupt, mysterious adjournment on day 1? Not to mention she seemed to be proofreading / rewriting her verdict as she was reading it!)

Aggressive, outside “influence” of Masipa (by whatever means) is not outside the realm of possibility.

This is, after all, South Africa.

“Influence” Exhibit #1 hits very close to the Oscar Trial:

Remember what happened to Gerrie Nel in 2008 during the Jackie Selebi trial? Nel was arrested at his home by 20 armed police officers on trumped-up charges (later dismissed), in a bid by the SAPS to force him to back off his prosecution [and ultimate conviction] of the corrupt Selebi.

There’s very good reason Nel is called the Bull Dog.

http://mg.co.za/article/2008-01-09-armed-policemen-arrest-scorpions-boss
http://mg.co.za/article/2008-01-14-charges-against-gerrie-nel-withdrawn

 

[patCee]

SERIOUSLY, WHAT ARE THE CHANCES?

I can’t help but wonder if Masipa deliberately went out of her way to make her half-baked, severely truncated verdict as illogical, unreasonable, convoluted, irrational, contradictory and downright bizarre as she possibly could (not to mention highly unprofessional, subjective bias driven by OP’s “remorse”, crying, puking and praying to God, which has no place in adjudging innocence or guilt, only mitigation of sentence).

Almost as if she deliberately stapled a giant “APPEAL HERE!” target to her ruling so Nel could not miss it.

Honestly, how could a seasoned, well respected judge (ostensibly a staunch advocate of anti-violence against women, proven by her harsh rape and murder sentences) get damn near half of her verdict so blatantly WRONG and simply IGNORE the other half (i.e., State’s entire case)?!!

Then again -




Perhaps “someone” did get to her (and her assessors) ... hence the shocking CH verdict, the abbreviated, rambling, cut-and-paste, overtly pro-OP, anti-State, connect-certain-dots verdict. (And what about that very abrupt, mysterious adjournment on day 1? Not to mention she seemed to be proofreading / rewriting her verdict as she was reading it!)

Aggressive, outside “influence” of Masipa (by whatever means) is not outside the realm of possibility.

This is, after all, South Africa.

“Influence” Exhibit #1 hits very close to the Oscar Trial:

Remember what happened to Gerrie Nel in 2008 during the Jackie Selebi trial? Nel was arrested at his home by 20 armed police officers on trumped-up charges (later dismissed), in a bid by the SAPS to force him to back off his prosecution [and ultimate conviction] of the corrupt Selebi.

There’s very good reason Nel is called the Bull Dog.

http://mg.co.za/article/2008-01-09-armed-policemen-arrest-scorpions-boss
http://mg.co.za/article/2008-01-14-charges-against-gerrie-nel-withdrawn

BBM
That is the one question that continues to bother me the most. It's just not 'reasonably' possible is it?

 

[JuneBug67]

What would preclude the possibility that Oscar broke through the section of the door panel with the bullet hole split in half either with his hands as he gained entry to the toilet cubicle after the shooting or that the sequence of events could have been BAT-GUN-BAT AGAIN?

Nothing would preclude that possibility in theory and in an evidence void. But we don't have an evidence void and there is absolutely nothing that supports either explanation in the court record. No expert said the crack was consistent with with the first scenario you suggest and no advocate put that scenario to any witness for testing. Similarly no witness was asked to speculate on a bat-gun-bat scenario because there was absolutely nothing to suggest it, let alone prove it. In fact, as Masipa noted in her judgement "It was [also] not contradicted that the shots were fired first and that the striking of the door, using a cricket bat, followed thereafter." It wasn't contradicted because it could not be contradicted, or it would have been. We are not talking about a lack of evidence here, we are talking about actively exculpatory evidence that is absolutely foundational to the truth and to this verdict. So I appreciate you at least addressing the issue. Most skip right over it like it doesn't even exist.

 

[JuneBug67]

Junebug .. why do you think that Reeva's mother herself doesn't believe this was an accident? The reason is because she knew just how much Reeva and Op had been fighting in the run up to her being killed ... she said that Reeva said to her ".. mum .. we've been fighting .. we've been fighting a LOT .. ". (therefore those whatsapp messages were just an indicator of far more troubles in their relationship than Masipa gave credit for .. does she not know that not everything in a relationship ends up in a text message? .. although even that which did was a fairly massive indicator and should never have been dismissed in the way that Masipa did .. it was nothing less than disgusting). It is so freakin obvious that this was a domestic violence murder, it's just ridiculous for anyone to believe otherwise! Do you actually believe that OP didn't tell one single lie on that stand? He couldn't even promise that he would tell the truth .. the best he could summon up was that he would 'try' to ! He has just sworn on oath to tell the truth, for goodness sake!

No it not just "so freakin obvious that this was a domestic violence murder". And saying so frankly deeply dishonours the victim whose only ability to speak lies in the evidence in this case. Pushing that evidence aside to indulge subjective beliefs and misplaced certainties is a disservice to Reeva and to justice.

Reeva's family's suffering is a terrible and wrenching. They have the empathy and sympathy of every observer. But if suffering and love for a victim qualified one to have perfect insight into a case we would fill our juries with them. In fact we do the opposite because justice works best when it is blind.

 

[foxbluff]

Well just watched the BBC3 Truth documentary. It is a good summary of the before/during/after in simple terms (for us non legal folks) and it becomes clear for me in this show that the judge simply believed nothing of the prosecution's case and witnesses and Roux in retrospect did a good job of raising doubts which I guess was all that was necessary to get past the murder verdict. Yes I said that Roux did a good job (I mean his client is walking free and not convicted of murder)! I think his timeline was the best part of the case and given a judge likes facts rather than feelings she went with that and Nel did little on that front. As others have said in order to have had a chance he should gone step by step with the timeline to overcome its impact on the judge. So now its all about the sentence and if it is significant jail time where he is really in custody this will all die down ...if not well the speculation will continue.

BBM - I think you're right, but perhaps you missed the memo sent out earlier saying (paraphrasing here) that the timeline was a red herring by Roux and anybody falling for it must be new to Websleuths.

All joking aside, I don't think Nel could have done a step-by-step analysis of a timeline that would have helped his case, because imho Roux's timeline was supported by cell phone evidence and sadly I don't think the State's would have been.

 

[jay-jay]

No it not just "so freakin obvious that this was a domestic violence murder". And saying so frankly deeply dishonours the victim whose only ability to speak lies in the evidence in this case. Pushing that evidence aside to indulge subjective beliefs and misplaced certainties is a disservice to Reeva and to justice.

Reeva's family's suffering is a terrible and wrenching. They have the empathy and sympathy of every obs8erver. But if suffering and love for a victim qualified one to have perfect insight into a case we would fill our juries with them. In fact we do the opposite because justice works best when it is blind.

Reeva did speak .. she spoke through various forms of evidence .. which Masipa, and you, have chosen to discard of no worth. Now THAT I find disrespectful, abhorently so.

 

[JuneBug67]

BBM - I think you're right, but perhaps you missed the memo sent out earlier saying (paraphrasing here) that the timeline was a red herring by Roux and anybody falling for it must be new to Websleuths.

All joking aside, I don't think Nel could have done a step-by-step analysis of a timeline that would have helped his case, because imho Roux's timeline was supported by cell phone evidence and sadly I don't think the State's would have been.

Why sadly though foxbluff? Why is it sad if the evidence supports that Reeva didn't die feeling helpless and cornered and trapped and terrified for her life and of her own boyfriend? Isn't the timeline evidence supported scenario of a very short period of confusion and disorientation the better one for all of us who feel the tragedy of her loss of life?

 

[bajas]

While I agree, he certainly took awhile to get to the point, lol.

I've disagreed with a few Judges comments after sentencing in Australia over the years too, I haven't resorted to calling them retarded or stupid, but bias, yes I have, out of touch, yes again.

We've had a judge made a comment that a rape victim was asking for it, we've had a judge sentenced 2 teenage boys to jail for stealing a man's lunch for pete's sake! The boys hadn't eaten for 2 days and the judge said in his mind, it was the lowest thing a person could do, steal a working man's lunch!!!
Another judge said in her opinion a 10 yr old aboriginal girl raped by 4 or 5 teenage boys invited them to do so, and she wasn't harmed by the experience!

Tell me if these 3 judges are not out of touch, are not biased for whatever reason?! OP is not the be it and end all of everything, the people have a right to express their opinions. Low types will resort to name calling, that's nothing new. JMO

I'm not surprised at these Australian judgements. Having been part of the Australian legal system for over 13 years as a single mother, I am still trying to make sense of why I even had to go through these experiences. Glad I'm no longer there.

 

[JuneBug67]

Reeva did speak .. she spoke through various forms of evidence .. which Masipa, and you, have chosen to discard of no worth. Now THAT I find disrespectful, abhorently so.

The evidence speaks as a whole. People can choose to listen with care, or to shout over it as it suits them. It's an individual call. I'm comfortable with mine.

 

[jimmy73]

I don't even know what to say to this. The state has the burden of proof for good reason and they didn't meet it. The objective evidence supports Pistorius' story. The state picked and chose subjective evidence to support the unsupportable conclusion that the shots were at 3:17 and the initial sounds didn't really matter. They deservedly fell right on their faces.

The accused also had a burden of proof in this prima facie case, which the majority believe to have been shown up to be a crock, ergo his timeline stands discredited for many.

The basic overall evidence supports Pistorius' version, as it would in the event, as I have suggested, that he is lying.

Also, the state didn't pick subjective evidence, they presented circumstantial, but incomplete evidence. Which particular evidence did you think was subjective? There were several ear witnesses, whose evidence broadly corroborated the other.

That Nel allowed what were obviously believed to be shots at 3:15 to be turned into 'state says shots at 3:17' was a clanger, and detrimental to their otherwise strong case.