Oscar Pistorius - Discussion Thread #64 ~ the appeal~

[Interested Bystander]

If this is true, I'm really surprised. I thought it would be 2 full days. Barry Roux will not be happy.

At first I thought this might be a ruse but I have found the report here.

http://ewn.co.za/2015/09/22/Pistorius-appeal-Bench-of-five-judges-chosen


Given that the Appeal judges have only had the Defence HoA for 2-3 days (excl. week-end) it seems they probably have already come to a conclusion. Anyone want to stick their heads above the parapet and guess which way!

 

[cottonweaver]

At first I thought this might be a ruse but I have found the report here.

http://ewn.co.za/2015/09/22/Pistorius-appeal-Bench-of-five-judges-chosen


Given that the Appeal judges have only had the Defence HoA for 2-3 days (excl. week-end) it seems they probably have already come to a conclusion. Anyone want to stick their heads above the parapet and guess which way!

Hi Bystander - I saw this this morning and the tweet by NvdL. Didn't think much of consequence re either as always assumed SCA typically set one day, unless they have no choice to "go over" - seeing as all the judges have done all their reading beforehand. All barristers might prefer to have longer but the SCA run the show and have all the papers and a portion of the record to peruse in advance, their main points prepped.

And are the judges are at liberty to discuss some of the documents ( not make findings obviously) in advance? Why not?

Separate point: "Behind the scenes" isn't it likely some will have read Masipa's judgement months ago simply due to the furore in the press - before the Appeal was even filed?
Plus someone ages ago mentioned that Masipa has to prepare a separate report for them on - can't rem which poster.

 

[Interested Bystander]

Hi Bystander - I saw this this morning and the tweet by NvdL. Didn't think much of consequence re either as always assumed SCA typically set one day, unless they have no choice to "go over" - seeing as all the judges have done all their reading beforehand. All barristers might prefer to have longer but the SCA run the show and have all the papers and a portion of the record to peruse in advance, their main points prepped.

And are the judges are at liberty to discuss some of the documents ( not make findings obviously) in advance? Why not?

Separate point: "Behind the scenes" isn't it likely some will have read Masipa's judgement months ago simply due to the furore in the press - before the Appeal was even filed?
Plus someone ages ago mentioned that Masipa has to prepare a separate report for them on - can't rem which poster.

I am not sure how long an appeal takes but I thought I had read 2 days but I could have dreamt it :thinking:.

I think not only will they have read Masipa's findings but they quite likely would have watched the trial (or a lot of it). It would have been quite an important event in the legal sense.

As you thought it would be one day, maybe it means zilch and nothing can be read into it.

 

[cottonweaver]

I am not sure how long an appeal takes but I thought I had read 2 days but I could have dreamt it :thinking:.

I think not only will they have read Masipa's findings but they quite likely would have watched the trial (or a lot of it). It would have been quite an important event in the legal sense.

As you thought it would be one day, maybe it means zilch and nothing can be read into it.

yes, equally I could have dreamt "one day" and so you could be correct. ( It's like two steps forward and one step back in terms of remembering all the details, for me.)

Another tweet I read stated that Roux would be very happy with the 5 judges chosen - but there was nothing to back that up at all. ( Can't see many lawyers wanting to make value judgments about an Appeal Judge's reputation at this point as they may be facing them in the future?)
It feels a bit like when Masipa was selected - no one could find anything particularly significant about her reputation except the rape case and the back story of struggle and we read into that what we wanted to.
( Have the 4 of the 5 chosen made significant judgments ? I can't be bothered to go and research them tbh just cause I looked at some SCA JA's who haven't been chosen .)

Anyway agree that the whole thing was impossible to miss, for them via day-to-day media, and imagine they could have been sick of hearing his name in news by end of trial - ie. as they are busy dealing with (to them) more important but less news-worthy cases.
Imagine what they thought of "death threats" reports re Masipa- can't have gone down well in the Justice's dining room!

It's a shame they can't read the whole record but they would say they don't need to. It was Mpati himself who ensured it was only a portion, wasn't it , Nel was disappointed, Roux won that one ( remember someone posting that link a few months ago.)

I have no idea how things work at an Appeal court. Does the Pres. ( in this case Mpati) normally have a pre-meet and direct them to research contentious legal precedents before they go off to do their reading or is it just taken as a given?
Someone linked , threads ago, about the tens of thousands of pages a JA is expected to read each term.

 

[cottonweaver]

PS Bystander

A facetious aside - why does Roux want 2 full days on his own argument when he isn't getting paid anyway?
( So do me a favour Roux, keep it short! Although he may well be a very nice man/be well-liked, listening to him is not easy..... there you go that's the significance of them insisting it's a 1 dayer!!!)

 

[Interested Bystander]

PS Bystander

A facetious aside - why does Roux want 2 full days on his own argument when he isn't getting paid anyway?
( So do me a favour Roux, keep it short! Although he may well be a very nice man/be well-liked, listening to him is not easy..... there you go that's the significance of them insisting it's a 1 dayer!!!)

LOL. I may have been confused by the amount of time Roux wanted. OMG having to listen to 2 days of him whining like a spoilt child.

I have had a look at some of the past cases from the Rolls for 2015 and only the start day appears on the documents. Nowhere does it seem to suggest it is ever more than 1 day. You therefore are very likely correct. Issue of the Judgement varies - so maybe we will not see that for sometime after the Appeal.

 

[cottonweaver]

Just did a very superficial post before I saw your reply above - US Appeal court example however.
For me, at the moment, looking for the SCA equiv procedures will take too long hunting down ....

"Sometimes, appeals courts make their decision only on the basis of the written briefs.
Sometimes, they hear oral arguments before deciding a case.
Often the court will ask that the case be set for oral argument, or one of the parties will request oral argument.
At oral argument, each side's attorney is given a relatively brief opportunity to argue the case to the court, and to answer questions posed by the judges.
In the U.S. Supreme Court, for example, an hour is set for oral argument of most cases, which gives each side's lawyers about half an hour to make their oral argument and answer questions. In the federal courts of appeals, the attorneys are often allotted less time than that - 10- or 15-minute arguments are common."

Anyway, maybe this helps us, there is some equivalency in procedures?

 

[cottonweaver]

sorry IB - earlier, meant to say Roux wants one full day on his case - not 2. My error! ( Yes you sure would be trial weary with 2 days of him rambling........ apols)

 

[DexterMorgan]

Roux is good but he complicates things by overstating his points in legal mumbo jumbo terminology.

He uses algebra to explain how to get to the number 2. When all he has to do is say 1 plus 1 equals 2. So maybe if he stop using 8 weeks to clarify a basic point. He would have more success in getting his point across. Jmo

 

[cottonweaver]

@Dexter

Yes, and strangely he managed to spell things out quite clearly and slowly when speaking directly to Milady

 

[Interested Bystander]

I have just read an interesting paper (by our pet hate Kelly Phelps) which was brought about by the Pistorius case and how she comes to her conclusion. I don't agree with her conclusion (I readily admit to no legal training) because she says (put simplistically) that OP did not foresee the possibility of the death of whoever was in the toilet cubicle, therefore CH was correct. She seems to completely ignore the fact that he had passed written exams on what the law allows with respect to self defense/protection using a gun. There is no way he would not have known that his actions could kill someone and yet he still went ahead.

Am I being unrealistic in thinking that anyone having passed that exam and in possession of that knowledge would know that shooting 4 bullets into a confined space would likely cause the death of the occupant. I don't recall OP being quizzed about his knowledge of the law in this respect.

http://www.publiclaw.uct.ac.za/site...CTO IN SOUTH AFRICAN CRIMINAL LAW Revised.pdf

 

[Interested Bystander]

I have just had to pinch myself. This is a video interview of Kelly Phelps recorded the day after OP murdered RS. She is describing the law with respect to self defence. Unless I am "losing it" she quite clearly explains why, IMO, OP is guilty of murder. She takes us through all the possibilities and OP does not fit the picture of genuine self defence. How come she later in the story (ie the trial) jumps ship? Have I missed the point or misunderstood her?

[video=youtube;DYFeh7-5q_4]https://www.youtube.com/watch?v=DYFeh7-5q_4[/video]

 

[cottonweaver]

I have just had to pinch myself. This is a video interview of Kelly Phelps recorded the day after OP murdered RS. She is describing the law with respect to self defence. Unless I am "losing it" she quite clearly explains why, IMO, OP is guilty of murder. She takes us through all the possibilities and OP does not fit the picture of genuine self defence. How come she later in the story (ie the trial) jumps ship? Have I missed the point or misunderstood her?

BIBs - I am laughing at these :0. No you are not losing it. If you are I suggest a private prosecution for damages, after the Appeal. ( Indeed let's make it a class action)


Phelps is another opinion for hire. (Just like Derman, Vorster etc.) Her research paper - wonder who funded it?

I did download the her objecto article but didn't read, couldn't face it.

On the PD, AFAIK, due to the gun-training OP knew his detailed self-def options when using a gun............so it's interesting when she lists all the elements in her checklist - warning shots, warning shouts, non-lethal aiming etc.

Have always thought his "GTFO of my house" was significant, the pause, shouted in the high pitched woman's voice in court. Was that him also attempting to meet the PPD defence as opposed to "us" thinking it's what he really shouted at Reeva/ "our" wishful thinking? The dramatic pause on the stand, mock remorse of his horror that he used those words to his own beloved - if u get my drift (Unanswerable questions I know.)

In the hypothetical case of OP actually having had an intruder hiding in his loo, that intruder, had he survived could have made an effective case that he himself was acting in PD against OP! ( ie. OP was in so little danger from the "intruder " in the loo, it was the reverse. )

 

[cottonweaver]

PS AFAIK Derman is also Univ Cape Town based.

Maybe they have a beer together like Mr Dixon and Mr Wollie and discuss the case?

Seriously though - i still find it hard to believe as his doctor, Derman was allowed, by Masipa, to give evidence against his own patient.
He's also the guy that talked about OP's poor mobility and means of escape, to which Nel asked ( after video "leaked") " Are you aware that OP can walk backwards" on his stumps! Derman grudgingly replied " No I wasn't aware"


Derman also testified the 'fight or flight' response is a reflex and in this case, despite the existence of Pistorius' disability, he chose the 'fight' option. Masipa did not accept that it was a reflex in her judgment but seemingly accepted he was a "fight" person. ( Hence in State's appeal)

 

[cottonweaver]

PS Bystander- i didn't address ur point.

Phelps video.
Phelps did the video 2 days? after the killing- ie not really in full possession of facts. ( Ironic considering her thoughts publ. on the S$OP website)
But she was speaking so quickly after the killing so she may well have changed her opinion?
But she explains PD perfectly well. Did she mention PPD in that vid?

Anyway Masipa rejected PPD and awarded him CH under the special section/clause of the Criminal Law Whatever which allowed the serving the 10 months.

 

[Colin de France]

.....it is important to keep in mind the possibility that he fired on the door without having the intention to kill her......

 

[Interested Bystander]

PS Bystander- i didn't address ur point.

Phelps video.
Phelps did the video 2 days? after the killing- ie not really in full possession of facts. ( Ironic considering her thoughts publ. on the S$OP website)
But she was speaking so quickly after the killing so she may well have changed her opinion?
But she explains PD perfectly well. Did she mention PPD in that vid?

Anyway Masipa rejected PPD and awarded him CH under the special section/clause of the Criminal Law Whatever which allowed the serving the 10 months.

The video was made on 15th Feb, so the following day. Although she was not in full possession of the facts she was aware at that time that he was claiming it was an accident and that he thought there was an intruder. She ran through the options he had for a defence but for reasons only known to her she did not include PPD and chose Private Defence as the best way to describe the defenses open to OP.

She may later well have changed her opinion with respect to OP's case but my point only really referred to her giving a very clear and concise outline of most of the options he had for a defence and it was good to not see her obfuscating as she seemed to do later.

As we are aware, Masipa threw out all his defenses but she accepted he did not think he would kill anyone by shooting through the door 4 times with Black Talon bullets and handed down CH for negligence. This is where, for me, her judgement completely breaks down.

OP was a trained marksman who underwent strict gunlaw licence testing which included when he was/was not allowed to shoot at a person, let alone kill them. To me, due to his training, he had to know he was committing an illegal act. It doesn't matter who was in the toilet cubicle or whether or not anyone believes he did not know it was Reeva, he (with intent) shot 4 bullets into an enclosed space in the certain knowledge that even if the shots did not hit the occupant directly, the richochets would certainly have done so.

 

[JudgeJudi]

Here's a classic that takes my breath away:

Defence Heads of Argument p.161

545. The psychiatrists appointed by the Court found that the Accused presented “with an adjustment disorder with mixed anxiety and depressed mood that developed after the alleged incident” (Psychiatrist Report, Exhibit PPP).

Alleged incident, really? Reeva was dead and had been cremated. It really says something about the quality of the psychiatrists and I think Roux had an absolute hide including that in his HoA.

 

[cottonweaver]

The video was made on 15th Feb, so the following day. Although she was not in full possession of the facts she was aware at that time that he was claiming it was an accident and that he thought there was an intruder. She ran through the options he had for a defence but for reasons only known to her she did not include PPD and chose Private Defence as the best way to describe the defenses open to OP.

She may later well have changed her opinion with respect to OP's case but my point only really referred to her giving a very clear and concise outline of most of the options he had for a defence and it was good to not see her obfuscating as she seemed to do later.

As we are aware, Masipa threw out all his defenses but she accepted he did not think he would kill anyone by shooting through the door 4 times with Black Talon bullets and handed down CH for negligence. This is where, for me, her judgement completely breaks down.

OP was a trained marksman who underwent strict gunlaw licence testing which included when he was/was not allowed to shoot at a person, let alone kill them. To me, due to his training, he had to know he was committing an illegal act. It doesn't matter who was in the toilet cubicle or whether or not anyone believes he did not know it was Reeva, he (with intent) shot 4 bullets into an enclosed space in the certain knowledge that even if the shots did not hit the occupant directly, the richochets would certainly have done so.

Yes I agree Bystander - she was very clear on the law of PD and the factors she explained are clear. Why else has she changed her mind? Lithgow has seen a few of her televised opinions but I dunno.
Does she "go to the Oscars" like Karyn Maughan? I'm being cheeky but you catch my drift? I really couldn't say.

On the final para I concur completely too.

I think it's so clear and glad you posted the video. The whole defence case amounted to a big thumping barrel labelled "Sophistry" , but it worked with the great legal mind that is Thokozile Masipa.

 

[Interested Bystander]

Yes I agree Bystander - she was very clear on the law of PD and the factors she explained are clear. Why else has she changed her mind? Lithgow has seen a few of her televised opinions but I dunno.
Does she "go to the Oscars" like Karyn Maughan? I'm being cheeky but you catch my drift? I really couldn't say.

On the final para I concur completely too.

I think it's so clear and glad you posted the video. The whole defence case amounted to a big thumping barrel labelled "Sophistry" , but it worked with the great legal mind that is Thokozile Masipa.

Sorry CW I droned on a bit. I do know you feel very much the same. I feel more than irritated that Masipa can say that OP told lies and was evasive and in the next breath believe a very large amount of what he says. I really do think there was a concerted effort by the judiciary to get him off a murder charge (did they feel sorry for him?) and as for the judge's/adjudicators' précis of the evidence she/they seemed to me to be "off the planet" with their interpretations.

I really would love to know what the Stipps, Burgess and husband and Van der Merwe thought of the judge's summing up.