Oscar Pistorius - Discussion Thread #65~ the appeal~

[WilliamMunter]

It appears as though the SCA is in recess from 30 Nov to 15 Feb. Hopefully we will get a ruling before the end of this month otherwise it's a long wait.

http://www.justice.gov.za/sca/

 

[Val1]

At no point did she say he was an unreliable witness.

Perhaps not in those exact words but I don't know what else you'd call someone that was evasive and dishonest while testifying.

A few examples/quotes from the live blog of Sept.11, 2014.
http://www.theguardian.com/world/live/2014/sep/11/oscar-pistorius-verdict-trial-live#block-54117ae0e4b0678f1b110ad8

" Masipa said it was clear that Pistorius had acted unlawfully in shooting the person behind the door. A reasonable person would not have fired four shots into the toilet cubicle, because he would have foreseen the consequences: that somebody could be killed.

Pistorius acted “too hastily and used excessive force … It is clear his conduct was negligent.”"
-----------------------
"On Pistorius’s own testimony

“The accused was a very poor witness.”

“The accused was, amongst other things an evasive witness.”

“He failed to listen properly to questions put to him under cross-examination, giving the impression that he was more worried by the impact his answers might cause rather than the questions asked.”"
-------------------------

 

[Val1]

Why, then, did a very experienced prosecution not ask for DD? Even I, an old lady(!!), thought I could pick up that that the SC judges would have considered DD!

Because they aren't allowed to argue on findings of fact... something I personally believe Judge Masipa did a very poor job of, when she actually addressed rather than simply ignored them and then used her "findings" to give OP the lightest sentence she could.

 

[Val1]

Well part of it is just pragmatic.

DE is a lower hurdle to get over.

And also in this case of mistaken identity- it is hard for the prosecution to prove OP directly intended to kill the person behind the door.

Of course he might have - but its a lower standard to prove only that he must have realised the possibility.

I still find the point to be rather a different one, as per OP's original statement of defence.

In self defence cases, the question is not one of intention but of justification.

DE is a red herring. Of course he either meant to kill the person, or must have realised they would die.

The question is rather, did he kill in self defence?

OP equated his gun and ammo with a "zombie-stopper" and even Masipa said during her judgement:

http://www.theguardian.com/world/live/2014/sep/11/oscar-pistorius-verdict-trial-live#block-54117ae0e4b0678f1b110ad8
" 10.50am 10:50
Judge says Pistorius took 'conscious decision' to arm himself

But the defence still insisted, based on the evidence of Professor Wayne Derman, that the court ought to consider that the accused lacked criminal capacity at the time because of his exaggerated startle response – a result of his disability and anxiety.

"I disagree with this – there is a huge difference between a reflex action and an involuntary action.
There was no lapse of memory or any confusion on the part of the accused.
He froze, then decided to arm himself and go to the bathroom … He took a conscious decision.
This is inconsistent with lack of criminal capacity."

Seems more like overkill and not defense imo, especially when she went on to say:

" 10.57am

Masipa says the intention to shoot does not automatically mean an intention to kill.
In this case, the only real point of dispute is whether Pistorius intended to kill when he pulled the trigger.
The onus of proof is on the state, she adds, to establish guilt beyond reasonable doubt."

" 10.59am 10:59

Masipa: "The decision to convict or acquit must be based on all the evidence … Some of it may be found to be unreliable … But none of it may simply be ignored.""

and then went on to ignore the evidence presented that he not only knew what his gun and ammo could do.. but also that he had taken a course where he had been educated as to whether he could legally fire on someone behind a closed door.

Add to that his admission that he didn't fire into the shower because he was scared of ricochet... he definitely had conscious thought imo and it certainly didn't stop him from firing into the other small cubicle where the closed/locked door would protect him from any ricochet.

 

[ColonelMustard]

It's great to see everyone, again. Thanks for all your comments.

I missed the appeal live but just watched the replay. I had no idea what to expect but found it was riveting. Almost makes me want to go to law school.

Questions I have:

• Do you think any of the judges read the entire trial transcript?
• If not, will they read it now?
• If so, would it be optional or required?

• A commenter here mentioned that, if Oscar appeals this appeal, it wouldn't be fast-tracked. Why do you think not?

You know, I really miss the old times of the trial - on pins and needles every minute, little sleep, blood pressure through the roof, obsessed.

Then, again, I really don't miss the old times of the trial - on pins and needles every minute, little sleep, blood pressure through the roof, obsessed. My heart began racing today as I got sucked back into the drama and the energy of it all. I still haven't calmed down.

General Comment in re: Masipa:

I'm afraid I'm too tired to find it right now, which I SINCERELY apologize for, but maybe someone will recognize what I'm going to say, here, and can add the link because it was REALLY interesting.

At some point, months after the original trial concluded, Masipa showed up somewhere for something and was asked on camera? (paraphrasing, here, how she was handling all the negativity directed toward her personally regarding her judgement.

She seemed genuinely shocked by the question, by the idea that anyone would feel anything personally about her in that regard. She said that, if people felt negatively about anything it was only because they were all shocked by the outcome, that everyone had been so convinced that things would go the other way. They were just surprised.

I was shocked by her reaction. Genuinely shocked. Then I thought, "No, it actually makes perfect sense. She was, IMHO, clueless then and is just as clueless now. People generally tend to be consistent if nothing else.

I realized today that her fellow judges may have know very well that Masipa was old, incompetent, whatever, when she was involved in this trial. I work with other professors who everyone knows shouldn't be teaching any more but we can't / won't really say anything or admit it outside of our own department circle because, well, because they're colleagues. Do students and others actually think we don't know it just because we don't acknowledege it? It's a really awkward situation and it happens in every profession. Soon enough, I'LL be the one people will be too "kind" to ne honest about.

Well, that's all I've got. Thanks so much, again!

 

[Colin de France]

If the SC accepts Nel's argument that Masipa mishandled all the circumstantial evidence (i.e. that shows he intentionally murdered Reeva)

....there is no evidence that shows he intentionally murdered Reeva.......that's jumping to conclusions....there remains the possibility that he fired in rage without thinking at the door without the intention to shoot at her......it may well be a fine line line but it still exist's as a possibility....it just went off m'lady....

 

[Marfa Lights]

Error in objecto

 

[Colin de France]

Error in objecto

....or a reckless idiot .....

 

[Interested Bystander]

....there is no evidence that shows he intentionally murdered Reeva.......that's jumping to conclusions....there remains the possibility that he fired in rage without thinking at the door without the intention to shoot at her......it may well be a fine line line but it still exist's as a possibility....it just went off m'lady....

If the SC were to accept the circumstantial evidence and hand down DD there would be no doubt they felt it could only be murder. If one accepts the evidence of the five neighbours who heard argument or screaming before the shots it really could be nothing else. In particular the gap between the first shot and the following three shots indicates intention.

I think we all agree that he was in a rage. What we disagree on is intention.

 

[akp]

....there is no evidence that shows he intentionally murdered Reeva.......that's jumping to conclusions....there remains the possibility that he fired in rage without thinking at the door without the intention to shoot at her......it may well be a fine line line but it still exist's as a possibility....it just went off m'lady....

That applies to the first shot. The pause and the next three shots can mean only one thing, intention.


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[mrjitty]

If the SC were to accept the circumstantial evidence and hand down DD there would be no doubt they felt it could only be murder. If one accepts the evidence of the five neighbours who heard argument or screaming before the shots it really could be nothing else. In particular the gap between the first shot and the following three shots indicates intention.

I think we all agree that he was in a rage. What we disagree on is intention.

In any event - we are in the venue of the SC where arguments have to be legally valid.

There is no such defence as firing in a rage. The idea that you could argue you were angrily shooting at the door but not the person - and thus had no intention - is a complete non starter given the physical confines.

Otherwise every shooter could make such a fanciful defence.

 

[Val1]

....there is no evidence that shows he intentionally murdered Reeva.......that's jumping to conclusions....there remains the possibility that he fired in rage without thinking at the door without the intention to shoot at her......it may well be a fine line line but it still exist's as a possibility....it just went off m'lady....

Isn't the whole argument that it doesn't matter if he "intended" to kill someone, but that he was fully aware of the very real likelihood that firing 4 "zombiestoppers" into such a small enclosed tiled room with no place to hide that it would kill someone and did anyway?

Heck, if I deliberately(consciously) get into, start and then proceed to speed my car into a crowd of people without "intending" to kill anyone, even though I'm pretty sure there's a very real likelihood that it would, should or would I get off with a slap on the wrist if someone dies as a result of my actions or should I be charged with manslaughter and have to serve time for it?

 

[mrjitty]

re: self-defence

i am reading that the right to life is weighed against the right to defend self and property in south africa... the controlling principle on the right to use force to defend one’s self or one’s property is proportionality: the defensive act may not be more harmful than necessary to ward off the attack. is this correct?

if so, the query would be: weigh up what the perceived intruder did to warrant such a high level of aggression in return? noisily entering the house, then noisily retreating into a small toilet cubicle with no other means of escape, and then allowing the noisy owner to get within a few feet of that only means of escape. almost tantamount to surrender.

having said that, the notion of right to life versus risk, for an intruder is also an interesting side issue. as is the perceived threat for oscar that the door possibly separated him from another person with gun - who could have shot him though the door too at any time.

lots to take in and weigh up in the dead of night, and on the spur of the moment*


*assuming this is what actually happened in the op case - which i seriously doubt.

The general rule is you can use reasonable force in the circumstances as you believed them to be.

The problems for Roux are

1. The attack had a pre-emptive nature - no actual attack had developed
2. The nature of the threat was actually unknown
3. Force level was excessive (per Masipa) - 4 aimed shots vs unknown threat - cf say 1 warning shot
4. Lethal force was not really reasonable given the option just to leave

I agree that the person behind the door could have had a gun, and OP might have feared that - but the trial Judge did not find that

A point that Leach made so devastatingly yesterday!

 

[lithgow1]

A bit of reading material. Interesting that in the video William Booth says that the court could change the verdict to murder but decide that the sentence was appropriate though he then goes on to say that it is unlikely they would do so.

http://www.latimes.com/world/africa/la-fg-pistorius-appeal-20151103-story.html

http://www.news24.com/Live/SouthAfr...ns-culpable-homicide-sentence-expert-20151104

http://www.dailymail.co.uk/news/art...n-agent-reveals-emotional-reunion-runner.html

http://www.dailymaverick.co.za/article/2015-11-04-op-ed-dolus-eventualis-day/#.VjnelLerSM9

 

[Val1]

In any event - we are in the venue of the SC where arguments have to be legally valid.

There is no such defence as firing in a rage. The idea that you could argue you were angrily shooting at the door but not the person - and thus had no intention - is a complete non starter given the physical confines.

Otherwise every shooter could make such a fanciful defence.

Exactly, the main problem with this whole scenario is that the PT apparently could not prove to Masipa that he was in a rage because she disregarded all the testimony regarding the screaming because she believed OP when he claimed it was all him... even though it was his testimony that should have been discarded due to her own judgement that he had been untruthful, evasive, etc.

I just about fell over when it was reported that she'd said "On the count of premeditated murder, the judge says the evidence is “purely circumstantial” so she deemed him not guilty even though in almost the same breath she'd said he "was “not truthful” about his intention when arming himself with a loaded gun before approaching the bathroom."

Seriously, aren't most murders, especially premeditated ones, usually convicted on circumstantial evidence?

I'd still like to know what other evidence had gone missing from the crime scene, we know about RS's purse and OP's cell, what else? Did we ever find out what was on RS's laptop, let alone all those calls that were deliberately wiped that proved that at least OP hadn't been sleeping when he said they had been?

 

[Mr Fossil]

What does Nel mean when he says (at around 42:30)?

"We are not asking this court to substitute the finding and sentence, we're asking this court to substitute the finding but refer back for sentence because I think it would just be fair that if we have a different conviction that the accused be allowed the opportunity to lead different evidence."

Is this just the mitigation argument?

 

[Val1]

What does Nel mean when he says (at around 42:30)?

"We are not asking this court to substitute the finding and sentence, we're asking this court to substitute the finding but refer back for sentence because I think it would just be fair that if we have a different conviction that the accused be allowed the opportunity to lead different evidence."

Is this just the mitigation argument?

That's what it had sounded like to me, though I found Nel to be rather disjointed at that point.. almost like he was only making the appeal under duress but doesn't really want to rock the boat.

 

[akp]

What does Nel mean when he says (at around 42:30)?

"We are not asking this court to substitute the finding and sentence, we're asking this court to substitute the finding but refer back for sentence because I think it would just be fair that if we have a different conviction that the accused be allowed the opportunity to lead different evidence."

Is this just the mitigation argument?

My understanding: if there is a different conviction, there should be a separate hearing for sentence, where OP should get an opportunity to argue his case for a lighter sentence (lightest that DE allows).


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[Colin de France]

In any event - we are in the venue of the SC where arguments have to be legally valid.

There is no such defence as firing in a rage. The idea that you could argue you were angrily shooting at the door but not the person - and thus had no intention - is a complete non starter given the physical confines.

Otherwise every shooter could make such a fanciful defence.

....that only works if the physical confines were taken into consideration at the moment of firing which if so would be an outright contradiction simply because in a moment of rage he would not of been thinking about anything.......apart from that it's not a defense but a valid theory and as we are not a club of like-minded people but a public discussion forum i believe it has it's place and rightly so .......

 

[mrjitty]

My understanding: if there is a different conviction, there should be a separate hearing for sentence, where OP should get an opportunity to argue his case for a lighter sentence (lightest that DE allows).


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Correct.

IMO Nel is right about this - the sentencing hearing was all submissions on CH