Oscar Pistorius - Discussion Thread #65~ the appeal~

[Val1]

You mean if he had not given conflicting and mutually destructive defenses such as:

1. I heard a noise and got my gun and confronted what I perceived to be an intruder. I heard a second noise and thought someone was coming out to attack me so in self defense I deliberately fired four rounds in the direction of the perceived intruder. Although I am confrontational by nature when faced with a fight or flight situation, there are two of me, and my disabled twin is frightened easily and is highly vulnerable. That justifies my unlawful behavior. Plus you all know how bad crime is in South Africa, and besides Reeva really should have said something and all this could have been avoided.

2. I heard a noise, got my gun, and went to investigate. I was so scared that when "startled" by a second noise, I involuntarily fired my gun (albeit in a relatively tight pattern focused directly at the target.) I did not intend to kill anyone however. That was an accident. I was mistaken. I do not understand why I am even being charged with a crime.
***My addition, see below.

This is how I see it-- neither of these versions meets the requirements for a lawful self defense (PPD or PD). Hence at a minimum, guilty of negligence and convicted of Culpable Homicide.

However, there is a higher standard of accountability to which he should be held. Did his actions exceed mere negligence? Did he make too many assumptions and act with reckless disregard for another human being's life without even bothering to identify them? Was he not able to foresee the consequences of using lethal force (X4) in such a confined space? Or do you believe the nature of the perceived threat was so overwhelming that he was justified in acting on instinct without any self-control?

Can't wait to see what the at least 3 out of 5 judges think!

***My addition:
To which I'd like to know which "person" was OP speaking of, his own golden boy "brand", his "babyshoes"(who iirc was about to get married to someone else), or is he actually talking about RS, the woman that he liked to belittle and make fearful of his reactions to her and didn't even buy a Valentine card for, for their first Valentine's?

http://www.timeslive.co.za/local/2014/04/11/the-oscar-pistorius-murder-trial-day-21
"When Pistorius became emotional on Friday, Nel asked why.

"Because I lost the person I cared about. I don't know how people don't understand that," Pistorius said, his voice shaking."

 

[janicelongbright]

***My addition:
To which I'd like to know which "person" was OP speaking of, his own golden boy "brand", his "babyshoes"(who iirc was about to get married to someone else), or is he actually talking about RS, the woman that he liked to belittle and make fearful of his reactions to her and didn't even buy a Valentine card for, for their first Valentine's?

http://www.timeslive.co.za/local/2014/04/11/the-oscar-pistorius-murder-trial-day-21
"When Pistorius became emotional on Friday, Nel asked why.

"Because I lost the person I cared about. I don't know how people don't understand that," Pistorius said, his voice shaking."

Quite , as. above , he is evidentially insane , that's his only real defence .

 

[Jake18]

The neighborhood heard yelling and screams though. So all the judge had to ask was why he didn't tell reeva to call the cops before just yelling Get Out Of My House.

Or why he didn't wake reeva up and asked if she heard a noise. Since he did have time to get the gun.

None of the judges brought this up though. Jmo

But the appeal court was bound by Masipa's "factual" findings which were that Reeva did not scream and OP thought it was an intruder. Judge Leach commented that "factual findings were made that an accused person might be very happy that they were made and not made in favour of the state in several issues. But then the court is bound by these factual issues..."

 

[Interested Bystander]

I haven't heard of any details about the 'pitch dark' claim, which also relates to the excuse given for Reeva having taken her phone to the toilet ,as a torchlight.

Nothing appears to have been said about whether blinds /curtains were drawn in the bathroom /toilet , and it would seem highly unlikely to be 'dark' at all in a street-lit / high security complex ,except perhaps for reading purposes, unless there were blinds down and even then they would need to be 'blackout' type.

From the scene-of-crime photos (available in Juror13's blog) there is a wooden 'Venetian blind' which appeared to be half way down and the slats did not appear to be totally closed. Also at some point in the proceedings I am fairly sure OP said there was a small amount of light entering via the window. Not sure he meant from any light source. I got the impression it was ambient light. Dr Stipps however stated the light was on. Another point that Masipa managed to totally ignore.

Yep, I have just found the ambient light I referred to here:-

http://www.iol.co.za/news/crime-cou...-speak-from-the-toilet-1.1674793#.Vj3e59LhBys

"He said the bathroom wasn't as dark as his bedroom, as there was ambient light from outside."

The article is worth reading if only to refresh one's memory of this part of the case.

 

[mrjitty]

I think people are getting a little confused about Nel "abandoning DD"

The dynamic is completely different.

The intentional murder of Reeva is off the cards - we cannot go back there factually unless there is a retrial.

Nel's task is to show errors of law - and these fall in 3 areas.

If he can show at least one significant legal misdirection then he can maybe achieve a change of verdict, or secure a new trial.

So he has to focus on the mistakes Masipa made on the face of the judgement.

It is these misdirections which currently prevent the murder conviction.

Hence Nel's 3 main planks necessarily are:

1. Masipa misstated the application of the law on DE to the facts

2. Masipa misapplied the law of PPD (in various ways)

3. Masipa mishandled the circumstantial evidence so badly that it renders her conclusions (re intention in 1 & 2) unsafe

That's it.

Leach summarised Nel's case quite well I thought.

In order words DE should not be relevant. It's all about justification

 

[Marfa Lights]

I think people are getting a little confused about Nel "abandoning DD"

The dynamic is completely different.

The intentional murder of Reeva is off the cards - we cannot go back there factually unless there is a retrial.

Nel's task is to show errors of law - and these fall in 3 areas.

If he can show at least one significant legal misdirection then he can maybe achieve a change of verdict, or secure a new trial.

So he has to focus on the mistakes Masipa made on the face of the judgement.

It is these misdirections which currently prevent the murder conviction.

Hence Nel's 3 main planks necessarily are:

1. Masipa misstated the application of the law on DE to the facts

2. Masipa misapplied the law of PPD (in various ways)

3. Masipa mishandled the circumstantial evidence so badly that it renders her conclusions (re intention in 1 & 2) unsafe

That's it.

Leach summarised Nel's case quite well I thought.

In order words DE should not be relevant. It's all about justification

Darn, I thought I followed everything until you said "DE should not be relevant."

Did you perhaps mean DD? Sorry, I am confused.

 

[Sherbert]

With respect, I am not sure these are the right questions about foreseeability-- I think they relate more to the requirements for determining a lawful self defense claim, which is worth a revisit itself.

This article "When Can I Fire?" (although it is more about defense of property) outlines the specific requirements that must be met before a defensive act can be considered lawful. If I understand correctly, these same tests must be met for Putative as well as actual Private Defense.

https://www.issafrica.org/pubs/CrimeQ/No.8/duPlessis.htm

One important note mentioned in the article above is that an attack must be imminent or underway and any PRE-EMPTIVE action is NOT a legal response.

So, in reference to the post above, please allow me to rephrase these questions for purposes of determining a lawful claim of PPD:

1. Did the defendant ascertain or verify the identity of the person before firing on them?

2. Was an attack underway or was he in danger of imminent bodily harm? (Or are we to accept that simply hearing a noise, or even a series of noises, in your house at night to be equated with a perceived attack?)

3. Were his defensive actions necessary to thwart an attack, were other options available to him and was the force employed reasonable and proportional to save him from bodily harm?

Masipa's judgment was such a muddled mess, I could not tell if she ever even subjected his supposed PPD claim to these requirements. Still, I don't think Leach was buying it for a minute.

As to foreseeability for determining intent with Dolus eventualis I think we only need to ask if Oscar objectively foresaw the consequences of firing four 9mm Black Talon type bullets at a perceived intruder inside the confined space of his toilet cubicle.

The test for DE is subjective. What did he foresee? If he didn't foresee something that was objectively foreseeable, it's CH.

 

[Sherbert]

I think people are getting a little confused about Nel "abandoning DD"

The dynamic is completely different.

The intentional murder of Reeva is off the cards - we cannot go back there factually unless there is a retrial.

Nel's task is to show errors of law - and these fall in 3 areas.

If he can show at least one significant legal misdirection then he can maybe achieve a change of verdict, or secure a new trial.

So he has to focus on the mistakes Masipa made on the face of the judgement.

It is these misdirections which currently prevent the murder conviction.

Hence Nel's 3 main planks necessarily are:

1. Masipa misstated the application of the law on DE to the facts

2. Masipa misapplied the law of PPD (in various ways)

3. Masipa mishandled the circumstantial evidence so badly that it renders her conclusions (re intention in 1 & 2) unsafe

That's it.

Leach summarised Nel's case quite well I thought.

In order words DE should not be relevant. It's all about justification

Surely DE is relevant?

IMO if the killer fails to establish PPD, which is what happened here, the Court needs to move on and examine intent for the purposes of establishing if the verdict should be DE or CH.

Masipa found that OP didn't intend to kill, whereas some commentators have suggested that she actually meant that he didn't intend to kill unlawfully.

Either is enough to get him off the hook as far as murder is concerned.

 

[Interested Bystander]

I have been reading some posts on the appeal on digitalspy. It is quite interesting - there are even a few familiar posters there, if not by name, by post and style. One poster has claimed that in South Africa the State has never lost an appeal that has been heard by the SCA. Don't know if that is true, but if so it's a precedent I like the sound of!

You aren't alone there! Also, I am trying to hang on to the fact that Roux was overheard saying he thinks he lost.

 

[Interested Bystander]

[/B]

The test for DE is subjective. What did he foresee? If he didn't foresee something that was objectively foreseeable, it's CH.

That was 90 per cent of Roux's argument at the Appeal, was it not, and that is where my concern stems from that OP will get away with murder for the second time? It seems too easy under SA Law to distance oneself from being responsible for one's actions by claiming that you did not foresee the upshot of your actions.

 

[Marfa Lights]

[/B]

The test for DE is subjective. What did he foresee? If he didn't foresee something that was objectively foreseeable, it's CH.

Well, "Dolus eventualis Day" is starting to feel more like Groundhog Day (the movie, that is)!

According to Duhaine's Law Dictionary "Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder." (Emphasis mine).

http://www.duhaime.org/LegalDictionary/D/DolusEventualis.aspx

Anyway, after Nel showed Masipa and all the rest of the world Oscar's "Zombie Stopper" video it would be hard to have any reasonable doubt that he, either subjectively or objectively, would not have foreseen the consequences of firing 4 rounds AT a noise inside that toilet cubicle.

 

[aftermath]

From the scene-of-crime photos (available in Juror13's blog) there is a wooden 'Venetian blind' which appeared to be half way down and the slats did not appear to be totally closed. Also at some point in the proceedings I am fairly sure OP said there was a small amount of light entering via the window. Not sure he meant from any light source. I got the impression it was ambient light. Dr Stipps however stated the light was on. Another point that Masipa managed to totally ignore.

Yep, I have just found the ambient light I referred to here:-

http://www.iol.co.za/news/crime-cou...-speak-from-the-toilet-1.1674793#.Vj3e59LhBys

"He said the bathroom wasn't as dark as his bedroom, as there was ambient light from outside."

The article is worth reading if only to refresh one's memory of this part of the case.

I don't think she ignored Dr Stipp saying the light was on. She used the phone data times alongside witness testimony and worked out that it was more likely that the Dr saw Pistorius returning to the bathroom with the cricket bat, (after the earlier shots), around which time he (Pistorius) says he switched the light on.

 

[mrjitty]

Darn, I thought I followed everything until you said "DE should not be relevant."

Did you perhaps mean DD? Sorry, I am confused.

Lack of intention (DE) is how Masipa got OP off the hook.

But as all and sundry have noted - intention at least amounting to DE - was always implicit in the defence

The real question has always been not whether OP foresaw killing anyone, but whether he foresaw killing anyone unlawfully

So hopefully we get a judgement along the lines of what Leach says

e.g.

1. It's simply obvious OP must have foreseen killing the person in the toilet - and Masipa misdirected herself in applying the law of DE - so we can chuck that finding out
2. The key question was whether he believed he was legally justified - per Leach "you'll have a hard time bringing these facts within PPD"

So this is more about knocking out 2 pieces of incorrect legal reasoning.

The Supreme Court can then either look at the facts as the trial court found them and apply the law properly, OR say retrial.

 

[soozieqtips]

That was 90 per cent of Roux's argument at the Appeal, was it not, and that is where my concern stems from that OP will get away with murder for the second time? It seems too easy under SA Law to distance oneself from being responsible for one's actions by claiming that you did not foresee the upshot of your actions.

I think in OP's case it's just not possible that with so much experience (and enjoyment) of guns, he didn't see the potential consequences of his actions. Leach repeatedly made the point that Reeva had nowhere to hide when she was shot at 4 times. OP was on familiar territory with the upper hand (gun pointed at closed door with no visible threat) and still chose to shoot despite having several other options. I really can't see the excuse that he didn't foresee what could have happened as a legitimate excuse. Everyone will use it in future.

An experienced firearms owner shooting 4 expanding bullets into a very restricted space knowing a person was behind the door cannot not have known the possible outcome. As I've said before, had it been someone not used to guns and not familiar with the layout of the house, there could be grounds to say they couldn't have foreseen what was going to happen. But OP wasn't a novice when it came to guns, so to make out he couldn't foresee he might have killed someone is just ludicrous. The conditions didn't permit him to legally kill anyone as he was under no threat whatsoever. None.

 

[Sherbert]

Well, "Dolus eventualis Day" is starting to feel more like Groundhog Day (the movie, that is)!

According to Duhaine's Law Dictionary "Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder." (Emphasis mine).


http://www.duhaime.org/LegalDictionary/D/DolusEventualis.aspx

Anyway, after Nel showed Masipa and all the rest of the world Oscar's "Zombie Stopper" video it would be hard to have any reasonable doubt that he, either subjectively or objectively, would not have foreseen the consequences of firing 4 rounds AT a noise inside that toilet cubicle.

DE is all about subjective foresight. That definition is misleading. When I have more time, I'll dig out some caselaw!

 

[mrjitty]

Surely DE is relevant?

IMO if the killer fails to establish PPD, which is what happened here, the Court needs to move on and examine intent for the purposes of establishing if the verdict should be DE or CH.

Masipa found that OP didn't intend to kill, whereas some commentators have suggested that she actually meant that he didn't intend to kill unlawfully.

Either is enough to get him off the hook as far as murder is concerned.

Well DE is always relevant to the extent that the prosecution must prove intent for a murder conviction.

But remember the states case is that intent at least amounting to DE was implicit/self evident, and not the important question the court needed to look at

But instead Masipa misstated the test for DE and thus appeared to misdirect herself - finding identity relevant to the question.

This is why Leach tore Roux to pieces on this question

One suspects if Leach is writing the judgement, he will simply throw out that aspect of Masipa's judgement and say that intent was self evident, and that the big question is PPD

 

[akp]

Surely DE is relevant?

IMO if the killer fails to establish PPD, which is what happened here, the Court needs to move on and examine intent for the purposes of establishing if the verdict should be DE or CH.

RSBM.

I think there is a problem with this reasoning. If an accused pleads a defence of PPD, then
1. he has admitted that he had intention, and
2. he claims that he had perceived that he was under a serious enough threat that justified his act.

When he attempts and fails to establish PPD, then
a) his admission that he had intention remains, but merely that
b) he failed to convince the Court that the perceived threat was serious enough to justify his act.
So he should not be able to go back and say now that he had had no intention.

In the present case, Roux's original strategy was to go for PPD. But OP messed up badly during his X; so Roux had to modify his defence and present it as PPD without (1) above. He succeeded with Masipa, but I am not sure if this is allowed under South African Law.

 

[Sherbert]

That was 90 per cent of Roux's argument at the Appeal, was it not, and that is where my concern stems from that OP will get away with murder for the second time? It seems too easy under SA Law to distance oneself from being responsible for one's actions by claiming that you did not foresee the upshot of your actions.

Leach said that Masipa found Pistorius to be a “shocking” and “unreliable” witness, but then went on to accept his claim that he honestly believed his life was in danger, without evidence to support it.

Have faith!

 

[mrjitty]

That was 90 per cent of Roux's argument at the Appeal, was it not, and that is where my concern stems from that OP will get away with murder for the second time? It seems too easy under SA Law to distance oneself from being responsible for one's actions by claiming that you did not foresee the upshot of your actions.

IMO the Supreme Court's logic will go like this.

How could Masipa make such a nonsensical finding when OP shot 4 times at a person in a tiny space with Zombie stoppers?

Answer - there is a real risk she thought identity mattered - evidenced by her own misstatement of the law.

Remedy - apply the law of DE correctly to the facts as Masipa found them.

This is why Roux was so desperately trying to find some wiggle room that the identity did in fact matter to Masipa's inquiry once DD was dealt with and it was time to look at DE

But Leach wasn't having it.

 

[mrjitty]

RSBM.

I think there is a problem with this reasoning. If an accused pleads a defence of PPD, then
1. he has admitted that he had intention, and
2. he claims that he had perceived that he was under a serious enough threat that justified his act.

When he attempts and fails to establish PPD, then
a) his admission that he had intention remains, but merely that
b) he failed to convince the Court that the perceived threat was serious enough to justify his act.
So he should not be able to go back and say now that he had had no intention.

In the present case, Roux's original strategy was to go for PPD. But OP messed up badly during his X; so Roux had to modify his defence and present it as PPD without (1) above. He succeeded with Masipa, but I am not sure if this is allowed under South African Law.

Yes!

That's exactly Roux's problem. The Witness refused to say he acted in PPD!