Oscar Pistorius - Discussion Thread #64 ~ the appeal~

[mrjitty]

I am in agreement with a South African law professor too:
http://www.bdlive.co.za/opinion/2014/09/17/masipas-decision-to-acquit-oscar-of-murder-justified

It's worth pointing out that professor raises some of the exact same errors as the state.

It is unfortunate that Masipa did not spell out her findings on the absence of knowledge or foresight of the unlawfulness of the killing more fully. Her reasoning appears to be based not only on credible evidence of putative self-defence, but also on the view that Pistorius did not foresee the possibility of killing a person behind the door, let alone Steenkamp. Although there is some support in Pistorius’s evidence for this conclusion, the judge’s line of reasoning on this matter is somewhat confusing and apparently inconsistent with her evaluation of putative self-Defence

 

[lithgow1]

I am in agreement with a South African law professor too:
http://www.bdlive.co.za/opinion/2014/09/17/masipas-decision-to-acquit-oscar-of-murder-justified

Interesting article but where on earth does the author pull this from? Pistorius never said anything at any time to justify such statements.

The judgment may be based on Masipa’s apparent view that Pistorius genuinely did not foresee death, but only foresaw bodily harm, to the person behind the door. In other words, Pistorius may have been intending to frighten or incapacitate any intruder, not kill, and that is why he thought he was acting lawfully. The judge’s line of reasoning on this matter could have been clearer.

 

[lithgow1]

Slight change of subject but I was thinking that it is interesting, shall we say, that in all the things Pistorius claims he was shouting and screaming to the `intruder`, even when standing metres away from their location, none of them involved a question that would have shown the error of his assumption/s. No 'Who is there?' or 'Who are you?' or 'What do you want?' and no 'I have a gun. Identify yourself or I will shoot'.

 

[mrjitty]

Slight change of subject but I was thinking that it is interesting, shall we say, that in all the things Pistorius claims he was shouting and screaming to the `intruder`, even when standing metres away from their location, none of them involved a question that would have shown the error of his assumption/s. No 'Who is there?' or 'Who are you?' or 'What do you want?' and no 'I have a gun. Identify yourself or I will shoot'.

This is one of my fav topics as someone who now does a lot of writing

It's the classic mistake of exposition.

Natural dialogue makes sense to the characters in their roles in the moment.

Exposition seeks to advance/explain the plot - common in B grade films - and designed for audiences. But real life does not have an audience.

Bad liars and criminals make this mistake all the time because they don't write scripts for a living, and get their ideas from TV

Don't forget to bring the fans in! (foreshadowing)
Can't you sleep? (exposition)
Get out of my house! (not possible)

A few examples of it I can accept - but OP's dialogue was essentially 100% exposition. Especially he forgot to give Reeva more than one line.

 

[Trotterly]

You really should visit the link that I posted sometime, all of this is discussed.

Did you watch the trial? It seems that the neighbors hearing a woman screaming before and during the shooting have been lost on more people than just Masipa, amoung other things.

The questions now really relate to Masipa's interpretation and application of the law, which appears flawed.

I watched the trial but you must have missed the bit where Masipa explained how the screams evidence must be handled. IIRC she compared it to eye witness evidence and tested it in a similar way such as wrt who had heard Reeva and OP crying/screaming before and the conditions under which the voice/s were heard. I'm sure you are aware that even eye witnesses who are 100% sure as to what they have seen frequently turn out to be mistaken. Looking at evidence in this way is a skill which is not picked up overnight and it requires, of course, the most impartial view.

 

[Viper]

Slight change of subject but I was thinking that it is interesting, shall we say, that in all the things Pistorius claims he was shouting and screaming to the `intruder`, even when standing metres away from their location, none of them involved a question that would have shown the error of his assumption/s. No 'Who is there?' or 'Who are you?' or 'What do you want?' and no 'I have a gun. Identify yourself or I will shoot'.

"Get the f"ck out of my house! Bang bang bang bang!"

But the bangs were just his startles, not his intentional doing, right? Right after screaming at the intruder(s) while pointing his gun at them, having just stealthily cleared the hall of bad guys. Startles, LOL, they sure put a lot of trash in to his defense. The stand out moment was when he flubbed the PPD, that was supposed to be his ticket out but...

 

[mrjitty]

The answer can be found at the link, but the short version is: a person is dead because of OPs willful actions, it doesn't matter that the person is Reeva and not a blood thirsty intruder.

[url]http://criminallawza.net/2014/09/28/unsuccessful-attempts-to-justify-judge-masipas-errors-revised-expanded/

[/URL]The discussions here seem to have lost the concept of transferred intent that was widely discussed and understood during the trial. Personally I believe that Masipa messed up big time, fortunately I have a South African law professor that agrees with me.

Yes - I have yet to see anyone seriously rebut this article which is a very good one.

The problem as Grant rightly points out is though there are ways that Masipa might have arrived at this judgement, the appeal Court must take the judgement on its form.

So if there are errors on the face of the judgement then the appeal ought to be successful.

This is of course why Judges must craft technically logical documents.

The Appeal court should not have to be guessing.

I feel the fact that no one has yet been able to make comprehensive sense of Masipa's judgement is an indication of its shoddy construction.

 

[mrjitty]

Its worth quoting this

Private defence excludes the unlawfulness of one’s conduct – only when one is objectively actually (in reality) under and unlawful attack that has commenced or is imminent. If so, one is entitled to use necessary and reasonable force against the attacker.

....

These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming – and it invokes the principles relating to putative private defence and error in objecto.

In other words, Masipa needed to consider whether the force used was excessive and unreasonable given the mistake as to identity

This is where the judgement is very poor.

Not only does she not state the test correctly - but she also fails to itemise the evidence that gives rise to the idea that he actually believed his life was in danger

Strangely she seems to suggest he believed his life was in immediate danger while at the same time pointing out why it obviously was not so.

 

[soozieqtips]

From OP's affidavit:

I have received death threats before.

I have also been a victim of violence and of burglaries before.

Immediately before that, he said: "I am acutely aware of violent crime being committed by intruders entering homes with a view to commit crime, including violent crime".

He wasn't able to substantiate the claims about receiving death threats, nor the claims about being a victim of violence, and the only burglary he was a victim of was the theft of his TV (which he didn't bother to report to the police), so why did he feel so fearful and paranoid of intruders if the above didn't even happen? Oh wait. He was nearly killed on the highway. Oh, wait. No he wasn't.

 

[Sherbert]

I disagree entirely. That case was sort of funny on it's face, sort of like the old "Two guys walk in to a bar..." jokes. The court found that the shooter was wrong to have killed but had no intention to kill just to defend himself although he overstepped PPD, so culpable homicide it was.

R Snipped and BBM

Which is precisely what Masipa held in the Pistorius case.

You cannot say that the test for excessive force changes, depending upon whether it's PPD or PD. There is simply no authority to support this.

The questions to be asked revolve around OP's subjective belief in the threat.

 

[Sherbert]

BIB - that's a massive leap though. How can you be so certain he armed himself intending to kill the intruder and not that he armed himself prepared to defend himself if necessary?(not the same thing)

Although I believe that he intended to shoot Reeva, I agree that, if the Appeal court accepts Masipa's finding that the intruder story was reasonably possibly true, the dynamics of his intent change entirely.

 

[Sherbert]

Hi Sherbert

Thanks so much for posting some real legal meat for us to analyze!

I agree this case is right on point and Roux will no doubt use it.

I believe the State will argue that Mkhize v S can be distinguished for the following reason.

Where the accused mistakenly but unreasonably uses excessive force, then I agree - that is a complete defence to murder provided the rest of the PPD tests are met. Obviously the accused is still liable to a charge of CH as the killing would be by definition negligent.

However in this case OP was not subjectively mistaken as to the level of force that would be reasonable. Rather his mistake applied only to the existence of a threat. At all times he knew he could simply leave. And on his own version he saw no evidence of an actual attack justifying that force level. Only a lurking but unknown threat. So in other words, on the facts as OP believed them to be, his life was not in danger to such an extent that he could have believed his actions to be justified.

Think of it this way

If there really had been an intruder - exactly as OP believed - then Masipa held he should not have fired, and should simply have left via the bedroom door - because he both subjectively & objectively knew that the option of shooting was excessive given his other options. So in other words self defence test not met equals murder.

OP does not get into a better position due to merely to a mistake of identity.

Masipa herself made this clear.

If OP had perceived an imminent threat - e.g. a shadow looming over him in bed and shot in a panic - that would arguably be an honest mistake as to the level of force he needed to deploy because he believed he was under immediate attack with no other options.

What do you think of that argument?


As usual these discussions are difficult because what Masipa actually found is not made clear by the judgement text.

Indeed reviewing the judgement again - Masipa herself does not really seem to address these issues at all - having already excluded dolus because



Masipa then goes on to find the actions were not reasonable - for example OP was nearer the balcony at the time and could have taken other actions.



But given OP subjectively knew all this - how is murder excluded?

Even if we give him the benefit of the doubt on every aspect of his version, and a real dead intruder was revealed behind the door - the test for self defence is not met.

That's the ongoing problem I have with this judgement, as per the states original docs at the opening of the trial.

If there really had been an intruder - surely this was still murder.

You are not allowed to speculatively gun people down on the thinnest of justification

Thanks Mr Jitty.

I agree that, if the appeal court has the appetite to do so, it will find a way to distinguish Mkhize and any other authorities pointing to CH.

Yes, OP had other options, but I'm not clear as to what extent he'd be expected to vacate the premises rather than confront the intruder.

The appeal is tricky because Masipa has found that it is reasonably possibly true that he intended to act in self defence, rather than to kill.

I'm looking forward to seeing the Defence's Heads - personally, I've never been very comfortable with DE of the intruder.

 

[Trotterly]

Masipa seems not to have been able to the digest any of the incriminating witness evidence. The witness testimony was devistating and should have led to a conviction on Premeditated Murder. They put OP in the bathroom with the lights on right before the shots were fired and immediately after, Reeva and OP arguing right before the shots were fired, and Reeva's blood curdling screams as she was being shot and killed. As well, witnesses saw OP walking in the bathroom on his prosthetic legs immediately after the killing. Devasting even more is that Masipa accepted Roux's timeline; there were some 20 minutes in there unaccounted for, IIRC.

No one saw any lights on before the shots. The Stipp's didn't even look until after the shots and couldn't put a time on how long. No one identified either of them arguing and Nel never cited EVDMs evidence as evidence of an argument between the two of them. Screams were attributed to a woman or sounding like a woman or to a man (loud crying). Only one witness saw a figure moving in the bathroom, the other only thought she did for a while but admitted to being mistaken. No one saw any prosthetic legs or could place it after the killing. What 20 minutes unaccounted for?

<modsnip>

 

[mrjitty]

Thanks Mr Jitty.

I agree that, if the appeal court has the appetite to do so, it will find a way to distinguish Mkhize and any other authorities pointing to CH.

Yes, OP had other options, but I'm not clear as to what extent he'd be expected to vacate the premises rather than confront the intruder.

The appeal is tricky because Masipa has found that it is reasonably possibly true that he intended to act in self defence, rather than to kill.

I'm looking forward to seeing the Defence's Heads - personally, I've never been very comfortable with DE of the intruder.

I think this is where we have to wind all the way back to the Policy (with capital P!) level.

In jurisdictions like NZ, Oz, England or Germany I very much doubt if OP's conduct would be regarded as self defense on any view.

After all, he was in the bedroom, and armed himself with a gun at that point. He and "Reeva" could simply exit as the threat was off in the bathroom.

Instead he aggressively approached "the threat" and gunned the victim down on a mere sound but no visual of an attack.

This kind of conduct would obviously be more acceptable in the US - but again - in NZ we don't allow this kind of thing because we don't want our citizens loosing off cannons at people except as an absolute last resort.

So I think there is a complete cognitive dissonance here.

The law of RSA appears to be a lot like NZ, OZ, UK i.e. in general shooting people is not justified.

Yet on the other hand citizens seem to be tooling up to "defend" their homes - in a way that until now the law does not appear to allow.

Ignorance of the law is no defence.

Personally I think the "mistake" in this case is that such aggressive and pre-emptive conduct with a firearm can ever be justified under RSA law.

It is obviously excessive and unnecessary.

Of course the SC may take the alternate view and decide that conducting military style engagements in your own home is legit.

 

[cottonweaver]

No one saw any lights on before the shots. The Stipp's didn't even look until after the shots and couldn't put a time on how long. No one identified either of them arguing and Nel never cited EVDMs evidence as evidence of an argument between the two of them. Screams were attributed to a woman or sounding like a woman or to a man (loud crying). Only one witness saw a figure moving in the bathroom, the other only thought she did for a while but admitted to being mistaken. No one saw any prosthetic legs or could place it after the killing. What 20 minutes unaccounted for?

I think the word you are looking for is "accurate".

All the examples listed here, to Viper, have been exhaustively discussed threads 61-63, but as for Dr Stipp's bath lights on during the killing, this is what Stipp actually recounted:

From the daily telegraph’s live feed for that day

Stipp heard 3 bangs, got up, went to balcony, saw lights on at same time as he heard woman’s screams. It was "moments" between first three bangs and the screams. ( comparison of his use of word “moments” elsewhere in his testimony , strongly suggest moments=seconds for Stipp)
“Stipp says he could see a light on in the bathroom, which he noticed when he first heard a lady’s voice screaming, three or four times.”

As we know, at the time of incident, he thought the three loud bangs that woke him were shots as were the second set, but later on stand he also suggested to Roux it could be bats then shots sequence.

Stipp was adamant that the whole event, including the two sets of sounds, happened very quickly

 

[mrjitty]

R Snipped and BBM

Which is precisely what Masipa held in the Pistorius case.

You cannot say that the test for excessive force changes, depending upon whether it's PPD or PD. There is simply no authority to support this.

The questions to be asked revolve around OP's subjective belief in the threat.

Exactly.

Whether force was excessive and unnecessary is an objective test.

However we base the test on the facts as the accused believed them to be.

I feel Masipa begged the question a lot in her judgement.

In order for OP to shoot in mistaken self defence, he needed to believe his life was in imminent danger, and that shooting 4 times (!) was a reasonable and necessary thing to do.

Masipa never really considered this question.

Instead she just seems to have assumed the answer because he thought there was an intruder.

 

[mrjitty]

The court found that the shooter was wrong to have killed but had no intention to kill just to defend himself although he overstepped PPD, so culpable homicide it was.

This is why I posted the hypothetical about a home owner, who, in the dark, shoots an intruder holding a toy gun. It's a mistake - but a mistake that renders the use of lethal force reasonable.

In Mkhize, the police officers testimony discloses a direct threat to his life, during the context of a fight. So not murder so long as the testimony stands up.

In Pistorius, there was no fact which indicates that Pistorius could believe his response was reasonable.

 

[JudgeJudi]

Remorseless Pistorius

The call for mercy grates against raw wounds for those who remain troubled by the many aspects of OP&#8217;s explanation which Masipa found &#8220;do not make sense&#8221;, meaning that she could say no more than that Reeva &#8220;was killed under very peculiar circumstances&#8221;.

There is, however, &#8220;a chasm between regret and remorse&#8221;, as the Supreme Court of Appeal said in S v Matyityi: &#8220;Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one&#8217;s error.&#8221; Ordinarily, remorse is manifested most credibly by pleading guilty, an aspect completely overlooked by Masipa when she sentenced him for culpable homicide.

Masipa found that OP &#8220;seems remorseful&#8221;. He &#8220;earlier attempted to apologise privately to the deceased&#8217;s parents, but they were not ready&#8221;. This is a most unsatisfactory finding, given that he failed&#8212;indeed defiantly refused&#8212;to manifest remorse in the only manner that is legally meaningful: admitting that he deserves blame for what he did.

He could and should have accepted, at the outset, that he was guilty of culpable homicide. But he didn&#8217;t show them this modest mercy. Instead, throughout a tortuous trial lasting 41 days and stretching over six months, he mounted a strident defence, insisting that he was legally blameless for what he had done &#8211; that a reasonable person in his position would have done the same thing. In fact, he was so anxious to achieve a total acquittal, not only of murder but of culpable homicide, that he burdened the court and the Steenkamp family with five days of self-serving, contrived and contradictory testimony.

Masipa had no hesitation in finding that Pistorius had at least acted negligently. She found him to be an &#8220;evasive&#8221; witness: &#8220;He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. [He] was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.&#8221; Despite all of this, Masipa explained that a longer sentence &#8220;would lack the element of mercy&#8221;. But SA has learnt, through a traumatic transition to democracy, that mercy makes a mockery of justice if it is not met with truth and atonement.

Masipa described other cases of culpable homicide where mercy had demanded even lighter sentences than the one given to OP. But those cases (as well as others cited by analysts in defence of Pistorius&#8217; sentence) are distinguishable for one critical reason: the offenders all pleaded guilty. They placed themselves at the mercy of the community and the court, and received it. But when an offender, like OP, denies all accountability, it is necessary to exact it from him in the form of an appropriate sentence. That is not vengeance but justice.

http://mg.co.za/article/2015-08-25-remorseless-pistorius-didnt-deserve-judges-mercy

 

[soozieqtips]

Also JJ, how's this for 'remorse'. Initially, he wouldn't even admit he'd killed her, but eventually (and reluctantly) admitted he'd made a 'mistake'. He also said she'd 'lost' her life that night. Lost? He took her life. His wording was intended to distance himself from the fact that he, and he alone, (no invisible intruder) was responsible for Reeva's death. He can't show remorse if he has no conscience.

Mistake.
Lost.

Yup. Nothing really to do with him.

 

[aftermath]

Remorseless Pistorius

The call for mercy grates against raw wounds for those who remain troubled by the many aspects of OP&#8217;s explanation which Masipa found &#8220;do not make sense&#8221;, meaning that she could say no more than that Reeva &#8220;was killed under very peculiar circumstances&#8221;.

There is, however, &#8220;a chasm between regret and remorse&#8221;, as the Supreme Court of Appeal said in S v Matyityi: &#8220;Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one&#8217;s error.&#8221; Ordinarily, remorse is manifested most credibly by pleading guilty, an aspect completely overlooked by Masipa when she sentenced him for culpable homicide.

Masipa found that OP &#8220;seems remorseful&#8221;. He &#8220;earlier attempted to apologise privately to the deceased&#8217;s parents, but they were not ready&#8221;. This is a most unsatisfactory finding, given that he failed&#8212;indeed defiantly refused&#8212;to manifest remorse in the only manner that is legally meaningful: admitting that he deserves blame for what he did.

He could and should have accepted, at the outset, that he was guilty of culpable homicide. But he didn&#8217;t show them this modest mercy. Instead, throughout a tortuous trial lasting 41 days and stretching over six months, he mounted a strident defence, insisting that he was legally blameless for what he had done &#8211; that a reasonable person in his position would have done the same thing. In fact, he was so anxious to achieve a total acquittal, not only of murder but of culpable homicide, that he burdened the court and the Steenkamp family with five days of self-serving, contrived and contradictory testimony.

Masipa had no hesitation in finding that Pistorius had at least acted negligently. She found him to be an &#8220;evasive&#8221; witness: &#8220;He was not truthful when asked about his intentions that morning, as he armed himself with a lethal weapon. [He] was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot.&#8221; Despite all of this, Masipa explained that a longer sentence &#8220;would lack the element of mercy&#8221;. But SA has learnt, through a traumatic transition to democracy, that mercy makes a mockery of justice if it is not met with truth and atonement.

Masipa described other cases of culpable homicide where mercy had demanded even lighter sentences than the one given to OP. But those cases (as well as others cited by analysts in defence of Pistorius&#8217; sentence) are distinguishable for one critical reason: the offenders all pleaded guilty. They placed themselves at the mercy of the community and the court, and received it. But when an offender, like OP, denies all accountability, it is necessary to exact it from him in the form of an appropriate sentence. That is not vengeance but justice.

http://mg.co.za/article/2015-08-25-remorseless-pistorius-didnt-deserve-judges-mercy

That's an interesting read, thank you for linking it. Do you know if Pistorius ever had the opportunity to plead guilty to culpable homicide?