Discussion Thread #60 - 14.9.12 ~ the appeal~

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GR_Turner said:
The onus is always on the State even in PPD cases. It's true that Oscar had to produce a version that was reasonably possibly true and that explained his actions but that doesn't shift the burden of proof to him. You are confusing two things: the fact that without any defense there would be no basis for a court to conclude that he was acting in PPD as this is judged subjectively (and he is the only one who can testify to his state of mind at the time) versus a shifting away from the State to the defense to prove their case beyond reasonable doubt. You can see that the onus has not shifted because Oscar's version is accepted as long as it is reasonably possibly true - it does not have to be true beyond reasonable doubt.

Once Oscar has produced a reasonably possibly true account that the court accepts to explain why he needed to act as he did, then the court looks at his conduct in the light of that version. They look at it to see to what extent they can accept the aspects that are relevant to the alleged offence - as Judge Masipa did when she concluded that Oscar couldn't have had no intention to shoot when he picked up the gun - and make their judgement based on the elements of that account.
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I agree. But this is completely different from your previous assertion that the onus was on the State to disprove Oscar's (self stated) state of mind at the time of the killing. He said he was terrified of attack, the State failed to prove that this was completely false due to him knowingly killing Reeva. However, they did establish that this was an irrational fear as there was no threat. The Defence failed to convince the court that this irrational fear had some reasonable basis behind it (disability, anxiety, "startle" nonsense) which leaves us with Oscar supposedly feeling terrified, the knowledge that this was irrational and your belief that Oscar's self reported emotions needed to be disproved by the State. It also leave us with a verdict that he acted unreasonably and with excessive force with, of course, the debate regarding negligence versus murder to come at appeal.

My question is how can you "disprove" what someone says they felt?
My views are that this is pretty much :
a) impossible without mind reading
b) rendered more difficult by his evasive, contradictory testimony and his "many thoughts"
c) open to retrospective interpretation. At the time of the shooting, or just before, the massive stress response provoked would have flooded his body with stress hormones, making it, in my opinion, hard to distinguish between rage or terror or which would then need to be assigned retrospectively. And, what's to say, that in both scenarios - murdering Reeva and killing an intruder - he didn't simultaneously
feel rage, terror (and maybe exhilaration??)
 
Jake18 said:
I agree. But this is completely different from your previous assertion that the onus was on the State to disprove Oscar's (self stated) state of mind at the time of the killing. He said he was terrified of attack, the State failed to prove that this was completely false due to him knowingly killing Reeva. However, they did establish that this was an irrational fear as there was no threat. The Defence failed to convince the court that this irrational fear had some reasonable basis behind it (disability, anxiety, "startle" nonsense) which leaves us with Oscar supposedly feeling terrified, the knowledge that this was irrational and your belief that Oscar's self reported emotions needed to be disproved by the State. It also leave us with a verdict that he acted unreasonably and with excessive force with, of course, the debate regarding negligence versus murder to come at appeal.

My question is how can you "disprove" what someone says they felt?
My views are that this is pretty much :
a) impossible without mind reading
b) rendered more difficult by his evasive, contradictory testimony and his "many thoughts"
c) open to retrospective interpretation. At the time of the shooting, or just before, the massive stress response provoked would have flooded his body with stress hormones, making it, in my opinion, hard to distinguish between rage or terror or which would then need to be assigned retrospectively. And, what's to say, that in both scenarios - murdering Reeva and killing an intruder - he didn't simultaneously
feel rage, terror (and maybe exhilaration??)
Click to expand...

I wonder what kind of version OP would have provided under oath to a Police investigator or an NPA attorney or a Judge in the days following the event.

Then, I wonder how the State's investigation might have been conducted differently with said version on record.

Finally, I wonder how the Trial with said investigation and said version would have gone down.

I believe it was Judge Greenland who made the comment that individuals who have killed and who wish to claim self-defense should be compelled ASAP to testify under oath as per the circumstances of the killing and not have the luxury of remaining completely silent whilst awaiting Trial, studying the State's evidence, fabricating a sufficiently compatible version of events and then show up in Court to unfairly surprise the State prosecutor with a self-defense scenario which cannot be adequately tested nor challenged.

It's one thing to have the burden of proof that the accused is not innocent but is in fact guilty beyond a reasonable doubt of murder … it's much more difficult to have the burden of proof that the accused has not acted in self-defense beyond a reasonable doubt (in an unknown undisclosed scenario) but is in fact guilty beyond a reasonable doubt of murder.
 
GR_Turner said:
Yes, he did. What was all the shouting as he moved slowly down the corridor if not an attempt to give the intruder(s) time to escape? I don't see what you mean at all.
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He shouted and then once he heard movement as if someone was coming out of the toilet, he shot, he had to insert the shouting to avoid any accusation later of shooting without warning, to cover himself, but by doing this he contradicts his actions when he fired on the intruder doing just what he had asked ....he didn't realise that he was contradicting himself.
 
Jake18 said:
I agree. But this is completely different from your previous assertion that the onus was on the State to disprove Oscar's (self stated) state of mind at the time of the killing. He said he was terrified of attack, the State failed to prove that this was completely false due to him knowingly killing Reeva. However, they did establish that this was an irrational fear as there was no threat. The Defence failed to convince the court that this irrational fear had some reasonable basis behind it (disability, anxiety, "startle" nonsense) which leaves us with Oscar supposedly feeling terrified, the knowledge that this was irrational and your belief that Oscar's self reported emotions needed to be disproved by the State. It also leave us with a verdict that he acted unreasonably and with excessive force with, of course, the debate regarding negligence versus murder to come at appeal.

My question is how can you "disprove" what someone says they felt?
My views are that this is pretty much :
a) impossible without mind reading
b) rendered more difficult by his evasive, contradictory testimony and his "many thoughts"
c) open to retrospective interpretation. At the time of the shooting, or just before, the massive stress response provoked would have flooded his body with stress hormones, making it, in my opinion, hard to distinguish between rage or terror or which would then need to be assigned retrospectively. And, what's to say, that in both scenarios - murdering Reeva and killing an intruder - he didn't simultaneously
feel rage, terror (and maybe exhilaration??)
Click to expand...

BiB 1: No - just because there was no actual threat doesn't mean that his fear was irrational. This is why we are talking about PPD as opposed to private defense where the threat is real. In PPD, the defense is about what the accused thought not what the reality was.

The defense showed that he thought there was an intruder in his home. In SA an intruder represents a very real threat. There are many cases of people shooting intruders and of intruders attacking, raping, killing householders. All Oscar's version had to show was why he thought it was a intruder and not Reeva, and then why he thought the 'intruder' was about to attack.

Whether his version did those things in your mind or not, it clearly did in the mind of the judge. Perhaps once his version is re-examined in detail, the court of appeal will decide that he didn't have reason to believe he was about to be attacked.

BiB 2: Judging by other SA court cases, the kind of evidence that shows that an accused didn't feel under threat is that the victim was shot in the back or evidence shows that the victim was on the floor and could be no threat. In this case, it could be on the basis that he didn't see the handle turn for example.
 
AJ_DS said:
I wonder what kind of version OP would have provided under oath to a Police investigator or an NPA attorney or a Judge in the days following the event.

Then, I wonder how the State's investigation might have been conducted differently with said version on record.

Finally, I wonder how the Trial with said investigation and said version would have gone down.

I believe it was Judge Greenland who made the comment that individuals who have killed and who wish to claim self-defense should be compelled ASAP to testify under oath as per the circumstances of the killing and not have the luxury of remaining completely silent whilst awaiting Trial, studying the State's evidence, fabricating a sufficiently compatible version of events and then show up in Court to unfairly surprise the State prosecutor with a self-defense scenario which cannot be adequately tested nor challenged.

It's one thing to have the burden of proof that the accused is not innocent but is in fact guilty beyond a reasonable doubt of murder … it's much more difficult to have the burden of proof that the accused has not acted in self-defense beyond a reasonable doubt (in an unknown undisclosed scenario) but is in fact guilty beyond a reasonable doubt of murder.
Click to expand...

Perhaps Judge Greenland is right about that. It would serve two purposes: to prevent a (guilty) accused from making up his story based on the evidence later on, and to protect an (innocent) accused from unwarranted inferences that he had done so.
 
GR_Turner said:
BiB 2: Judging by other SA court cases, the kind of evidence that shows that an accused didn't feel under threat is that the victim was shot in the back or evidence shows that the victim was on the floor and could be no threat. In this case, it could be on the basis that he didn't see the handle turn for example.
Click to expand...
..it could also be on the basis that he shouted for the intruder to get out !
 
AJ_DS said:
I wonder what kind of version OP would have provided under oath to a Police investigator or an NPA attorney or a Judge in the days following the event.

Then, I wonder how the State's investigation might have been conducted differently with said version on record.

Finally, I wonder how the Trial with said investigation and said version would have gone down.

I believe it was Judge Greenland who made the comment that individuals who have killed and who wish to claim self-defense should be compelled ASAP to testify under oath as per the circumstances of the killing and not have the luxury of remaining completely silent whilst awaiting Trial, studying the State's evidence, fabricating a sufficiently compatible version of events and then show up in Court to unfairly surprise the State prosecutor with a self-defense scenario which cannot be adequately tested nor challenged.

It's one thing to have the burden of proof that the accused is not innocent but is in fact guilty beyond a reasonable doubt of murder … it's much more difficult to have the burden of proof that the accused has not acted in self-defense beyond a reasonable doubt (in an unknown undisclosed scenario) but is in fact guilty beyond a reasonable doubt of murder.
Click to expand...

Nice post.

I enjoyed Judge Greenland's comments and took note of his view that directus was always going to be a long shot given the nature of the crime (middle of the night, no eye witnesses, sleep befuddled ear witnesses etc). I got the impression he'd have gone for it, but that not every Judge would have. I also admired him for having the guts to speak out against Masipa, who is, of course, a colleague, his retired status notwithstanding, and say that her handling of the verdict was frankly legally incompetent. I was personally very disappointed in the verdict, I had been hoping for a measured, careful weighing up of all of the evidence which didn't happen - it did seem to in the Dewani summation although I'm aware that that Judge's decisions weren't popular. And Masipa's discomfiture during what seemed to be a mistake in the DE discussion was palpable.
 
GR_Turner said:
Perhaps Judge Greenland is right about that. It would serve two purposes: to prevent a (guilty) accused from making up his story based on the evidence later on, and to protect an (innocent) accused from unwarranted inferences that he had done so.
Click to expand...

Naturally.


And…

… it wouldn't impede the accused from pleading not guilty to an eventual murder charge

… it wouldn't impede the accused from presenting a diminished capacity Defence

… it would add reliability and credibility to the accused if the version given 1 day after the event is identical to the version given at Trial 1 year after the event

… it would prevent unnecessary charges, Trials and spending of public funds if the NPA is able to adequately examine the self-defense version

… it would prevent unnecessary spending of attorney fees by the accused

… etc.
 
Jake18 said:
Nice post.

I enjoyed Judge Greenland's comments and took note of his view that directus was always going to be a long shot given the nature of the crime (middle of the night, no eye witnesses, sleep befuddled ear witnesses etc). I got the impression he'd have gone for it, but that not every Judge would have. I also admired him for having the guts to speak out against Masipa, who is, of course, a colleague, his retired status notwithstanding, and say that her handling of the verdict was frankly legally incompetent. I was personally very disappointed in the verdict, I had been hoping for a measured, careful weighing up of all of the evidence which didn't happen - it did seem to in the Dewani summation although I'm aware that that Judge's decisions weren't popular. And Masipa's discomfiture during what seemed to be a mistake in the DE discussion was palpable.
Click to expand...

Thanks.

Indeed.

I am far less disappointed with the legal incompetence of Masipa's verdict than with the un-appeal-able aspects of the verdict.

One can never expect to eradicate incompetence, mistakes and corruption from a system… but to allow them to be un-rectifiable is simply absurd to me.
 
Interesting to look back at these comment from Famous celebrity lawyer Alan Dershowitz which were mad just 6 days after the shooting.

When a celebrity is placed on trial, the legal system often becomes distorted. This is true even in a country such as South Africa, which does not have trial by jury. Professional judges, though they often deny it, are also influenced by their perception of the defendant, which they have garnered not from the evidence, but from the media and from watching the celebrity perform.
Judges go out of their way to pronounce from the bench that they will not be influenced by the defendant’s notoriety. Methinks they protest too much.
When I represent a celebrity, I base my actions on the belief that celebrity matters. Oscar Pistorius is not only a celebrity, he is a beloved son of South Africa; a man who overcame significant handicaps; a hero.
 
AJ_DS said:
Thanks.

Indeed.

I am far less disappointed with the legal incompetence of Masipa's verdict than with the un-appeal-able aspects of the verdict.

One can never expect to eradicate incompetence, mistakes and corruption from a system… but to allow them to be un-rectifiable is simply absurd to me.
Click to expand...

BIB : ditto, and I am never one for conspiracy theories generally. To be that incompetent takes serious work, IMO.

I did read a recent twitter comment by James Grant alluding to how that State were trying to re define what was a "fact" in this case in light of the incompetent handing or lack of appreciation of how to interpret circumstantial evidence. Or something. I think he's off twitter and I've piles of work to get through before bed so I'm not even going to attempt to find it but it sounds like they're working on it.

It'll be an interesting appeal. I do wonder what the DT will come up with in terms of previous cases in view of how Roux resorted to making up a case in one of his HOA (the young girl shot by her mother though a door). I don't think he'll try that with the appeal panel.
 
AJ_DS said:
Naturally.


And…

… it wouldn't impede the accused from pleading not guilty to an eventual murder charge

… it wouldn't impede the accused from presenting a diminished capacity Defence

… it would add reliability and credibility to the accused if the version given 1 day after the event is identical to the version given at Trial 1 year after the event

… it would prevent unnecessary charges, Trials and spending of public funds if the NPA is able to adequately examine the self-defense version

… it would prevent unnecessary spending of attorney fees by the accused

… etc.
Click to expand...

This isn't a problem in all jurisdictions. In the UK the police can arrest a suspect and question them (for a limited time) after which they must charge them on the basis of the evidence they have or release them. They can't question them about the offence after they charge them. The caution on arrest is:
“You do not have to say anything. However, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence"

So in the UK, a person who killed someone and claimed self-defence would be expected to explain what happened on arrest or a negative inference about their failure to do so might be drawn.

In SA, an arrested person has the right to remain silent without adverse inference as far as I can see.
 
 
Who says Justice is blind serving the rich and the poor alike ?

What a farce !
 
I didn't think that Pistorius could sink any further in my estimation. I was wrong.
 
Who is paying for this? I thought Oscar was broke.


Sent from my iPad using Tapatalk
 
This case becomes more and more peculiar:

1. First, Masipa, arbitrary as ever, refuses leave on the possession charge, but grants leave on eventualis.
2. Then, the State, surprisingly, doesn't appeal the refusal on the possession point, and waits till the eleventh hour to lodge the Appeal papers.
3. Next, the Defence, also at the eleventh hour, lodges an application for the same judge to adjudicate on exactly the same point it pleaded at the last hearing: see paras 1,2 and 3 of the Defence's Reply to the State's application for Leave to Appeal:

https://juror13lw.files.wordpress.com/2014/11/oscar-pistorius-response-to-state-appeal-on-sentence-2.pdf

The application for leave on the possession charge was practically a sure thing. In other words, not only is opinion almost unanimous that Masipa misapplied the law to the facts, but, also, no way could the Defence have argued that her decision was a question of fact.

I'm not one for conspiracy theories, but I'm beginning to feel that maybe Shane13 who used to post here was right when he said, 'This one runs deep...'
 
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