Oscar Pistorius - Discussion Thread #65~ the appeal~

[mrjitty]

In any event - we know she was not breathing - due to the lack of blood in the airways.

She stopped breathing near instantly

 

[mrjitty]

RBBM

Wasn't the verdict of CH recognition that he should have known that the force was excessive?

IMO, this area is a little tricky. Here are a couple of extracts from Mkhize:

'His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide'.

'A further aspect that remains for determination is whether, despite the appellant’s subjective belief that if he did not react as he did he would have been killed, it was necessary for him to shoot the deceased three times. The first shot would, in all probability, have had the desired effect to ward off the unlawful attack on him. In my view, the appellant, especially as a long serving police officer with considerable experience in handling firearms, ought to reasonably have realised that he was using excessive force beyond the legitimate bounds of private defence. In the circumstances, he should have been convicted of culpable homicide'.

If you recollect, Mkhize is the case where the verdict was downgraded from murder to CH.

We could, of course, argue that OP did know - as opposed to ought to have realised that he was using excessive force - but the difficulty is that Masipa has found that he didn't foresee death and didn't intend to kill.

I just don't see how you get to DE without getting rid of those findings.

Here is a link to Mkhize:

http://www.saflii.org/za/cases/ZASCA/2014/52.html

Overall I agree that if he didn't actually realise he was not entitled to use that level of force (because of the mistake) then it can only be CH.

Also per Leach - we should not mix up the questions of Dolus (intention) and PPD (culpability). They should be analysed separately.

So IMO on PPD you come back to the question of what must he have known

If he only ought reasonably to have known - then it can only be CH

If he must have known murder is the appropriate verdict.

Again - my argument is he must have known.

He was trained in firearms use. He actually knew you are not allowed to shoot an unknown target. He knew no attack had commenced.

Also we need to be careful with Mkhize

The reason the CH verdict applies is because of negligence. It is a completely separate inquiry.

I still maintain that Masipa did not make a positive finding that

a) He believed an attack was imminent which placed his life in danger. Actually he just heard a noise.

b) He believed he was entitled to shoot. There is simply no finding on this aspect!

Everytime I read the judgement I come back to the conclusion that the Judge decided the murder issue case via DE and not via PPD

I simply can't find the passage in the judgement where she says "The defence of PPD has been made out on the murder count!"

 

[mrjitty]

As per the rationale sections in the conclusion of 'The cricket bat': If you think the evidence suggests that the marks on the toe end of the face of the bat are prise marks from levering out the toilet door panel and you think they are made in blood then Oscar must have used the bat to stage the opening of the door. This means that in all probability the door wasn't locked and he used the bat a second time after shooting Reeva to stage the opening of the door (e.g. to explain the other bat marks already on the door).

We're not putting our version up yet but ...

Other staging: I'm thinking of anything post shooting Reeva and a few unexplained bits before. A lot of things make more sense if you think of how you would expect him to have reacted if he was going to deny responsibility. He had very little time to think and we think he may have made a host of mistakes in what he did next but was very lucky because Nel pursued very little of that part of his version and didn't recall Van der Nest.

The whole thing in the toilet doesn't make sense because the blood spatter doesn't appear to support his version and nor does Van der Nest's re-enactment. If he held her as he says, with her bloody head on his left shoulder as he sat with his back against the wall by the door opening, where is the blood on the floor? And if he moved Reeva as he describes (see ER video for his re-enactment) how did the blood on the floor in the far right corner of the toilet get there?

So what is this all about? If it's not true was he perhaps justifying why he moved Reeva? If he says he believes she was dead (wasn't breathing - which he only adds at trial but also re-enacts in a supporting sequence of the ER video - she was alive when he found her in the bail affidavit) then no one is too concerned why he doesn't call an ambulance first. After all, what can they do if she's dead? So he says he sits there, he doesn't know how long. Then she breathes and he has no choice but to move her because she's on top of him, so he moves her out of the toilet. If this version if correct no one would later ask why he moved her. And remember, this version only came out months after the event (perhaps ~Sep 2013 when he met Scott Roder's team). Of course, if it's not true, it doesn't answer why he moved her in the first place.

Thanks for this - fascinating stuff!

Here are some random observations - there are also some great posts about this topic from a poster buried on the j13 site IIRC

1. He certainly did not do the hugging thing sitting in the toilet. You can see from the crime scene photos where he dragged the body out

2. He had immediate access to the Reeva - this is the only way he could have seen signs of life. IMO this was one of the major blunders in his EiC

3. I agree she needed to be dead. This is also why he did not call for emergency medical assistance

4. The locked in theory was proposed by a clever guy on the j13 blog last year. But is it possible with the key? This might explain a lot

5. A critical point is that certain things needed to be staged in a short space of time. For this reason, I tend to believe that breaking into the toilet was real. He needed to get in there. But he realised this could be fitted. And in any event, the absolute detail of the staging did not need to be worked out for months.

6. For me a key idea is whether the accused decided (premeditated) to kill Reeva deliberately via an intruder cover story. The fight had been escalating over time, as domestic violence does. It seems Reeva was trapped in the toilet for at least 15 mins by my timeline.

He did in fact have plenty of time to work out that idea. He probably knew about the previous case.

Did he threaten to do this? And then actually lose control and do it?

For me, this would explain how he could put the plan swiftly into action.

In this version - it does not matter who locked the door.

What will ultimately save his arse, is that the bats are mistaken for shots. He cannot have planned that - its just a stroke of luck he needed to get away with murder.

 

[cottonweaver]

You may be interested in this forensic analysis of what OP said:

http://forensictranscription.com.au/what-is-oscar-pistorius-saying/

This audio clip may say he was misquoted at this particular point( pg 122) but in his testimony he stated at multiple other points that "she was not breathing" and then "i heard her breathing", so how is the audio clip useful?

pg 123 I checked to see if she was breathing and she was not and I put my arms underneath her shoulders
pg 124 I could feel the blood was running down on me. At a point she... I heard her breathing so I immediately put her weight on top of me and I swivelled around.
pg125 ...I was trying to pick Reeva up and I did not really know what to do. I could see that she was breathing. She was struggling to breath.
pg 575 ...M'Lady and I put my arm underneath her, my left arm underneath her right arm and I checked to see if she was breathing or she had a pulse and then I did not feel that she did, so I just sat. I pulled her onto me. I was more to the... if you look at the toilet bowl on the left, so I pulled her around onto me.
Yes, and then? --- And then I heard her breathing, M'Lady and so I immediately tried to get, to pick her up and get her out of the toilet.

 

[Colin de France]

Thanks for this - fascinating stuff!

Here are some random observations - there are also some great posts about this topic from a poster buried on the j13 site IIRC

1. He certainly did not do the hugging thing sitting in the toilet. You can see from the crime scene photos where he dragged the body out

2. He had immediate access to the Reeva - this is the only way he could have seen signs of life. IMO this was one of the major blunders in his EiC

3. I agree she needed to be dead. This is also why he did not call for emergency medical assistance

4. The locked in theory was proposed by a clever guy on the j13 blog last year. But is it possible with the key? This might explain a lot

5. A critical point is that certain things needed to be staged in a short space of time. For this reason, I tend to believe that breaking into the toilet was real. He needed to get in there. But he realised this could be fitted. And in any event, the absolute detail of the staging did not need to be worked out for months.

6. For me a key idea is whether the accused decided (premeditated) to kill Reeva deliberately via an intruder cover story. The fight had been escalating over time, as domestic violence does. It seems Reeva was trapped in the toilet for at least 15 mins by my timeline.

He did in fact have plenty of time to work out that idea. He probably knew about the previous case.

Did he threaten to do this? And then actually lose control and do it?

For me, this would explain how he could put the plan swiftly into action.

In this version - it does not matter who locked the door.

What will ultimately save his arse, is that the bats are mistaken for shots. He cannot have planned that - its just a stroke of luck he needed to get away with murder.

.......interesting observations there, but nowhere is there any mention nor indication why he had to kill her.......in fact going back through all the threads on here no one has given any possible reason or explanation as to why he chose to kill her.......if he did it on purpose that is ....being angry is one thing, murder is something else....

 

[Mr Fossil]

You may be interested in this forensic analysis of what OP said:

http://forensictranscription.com.au/what-is-oscar-pistorius-saying/

As cottonweaver points out above this is clearly incorrect.

 

[mrjitty]

Mr Fossil

A separate item relating to staging

Why was the 2nd iphone found in the bathroom?

Apparently under the mat?

 

[mrjitty]

This is the 3rd time in 24 hours you have claimed quotes are incorrect - i have to wonder why you are so determined in that endeavour?

 

[soozieqtips]

.......no where is there any mention nor indication why he had to kill her.......in fact going back through all the threads no one has given any possible reason or explanation as to why he chose to kill her.......if he did it on purpose that is ....being angry is one thing, murder is something else....

There have been something like 60 threads about this case, and posters have definitely given reasons as to why OP might have had to kill Reeva. One of them is the obvious one, that he needed to stop her reporting him. Remember when he stuttered when he told Nel: "I asked Reeva... why are you calling the police" - at least, that's what some of us heard - and others heard "why are you not calling the police" or something similar. Anyway, I don't understand how you can say not a single person has given any possible reason or explanation as to why OP chose to kill Reeva when they have. Also, although going from being angry to murder might be a long shot - murderers are generally angry at the time of murdering.

 

[Interested Bystander]

As cottonweaver points out above this is clearly incorrect.

I think Cottonweaver accepted this recording may have been correct but that OP mentioned Reeva's breathing on many other occasions which negated its importance. I listened to it and thought it was very likely he was saying "everything" rather than "breathing" at this particular point. This is what she said in her post:-

"This audio clip may say he was misquoted at this particular point"

 

[mrjitty]

I found this fascinating in terms of staging - copied from j13 comments

https://juror13lw.wordpress.com/201...tes-case-been-proven/comment-page-2/#comments

Sorry Lisa! Hope thats ok

5/ Once OP first became bloodied after contact with Reeva then the BED, DUVET AND JEANS become a barrier to OP’s movement in the bedroom due to blood trail evidence. He no longer is able to access the right side of the bed and room.

6/ The holster and phones cannot have been accessed from the right side of the bed after OP became bloodstained himself.

7/ Logically the gun and holster and phones had to have been accessed before the shooting and carried or used by OP or Reeva.

8/ The holster could not be returned to the right side of the bed by OP so he placed it on the left pedestal and likely made the two blood spatter marks on the nearby wall in doing so.

9/ We know OP used his 0020 phone so he must have got that prior to the shooting as he would be unable to access phones kept on the right side of the bed.

10/ So we have OP at least having his 0020 phone and gun and holster (likely worn) at the time of the shooting.

11/ The jeans being on top of the duvet suggest some role in the events. The “mistaken for a burglar” story would fail if either Reeva or OP were wearing jeans at the time of the shooting.

One further point - in one version OP claimed he was inside the toilet within a couple of minutes of the incident.

This supports your theory Mr Fossil - later this was amended to be more like 5

 

[Colin de France]

There have been something like 60 threads about this case, and posters have definitely given reasons as to why OP might have had to kill Reeva. One of them is the obvious one, that he needed to stop her reporting him. Remember when he stuttered when he told Nel: "I asked Reeva... why are you calling the police" - at least, that's what some of us heard - and others heard "why are you not calling the police" or something similar. Anyway, I don't understand how you can say not a single person has given any possible reason or explanation as to why OP chose to kill Reeva when they have. Also, although going from being angry to murder might be a long shot - murderers are generally angry at the time of murdering.

......do you really believe that constitutes a reason to murder with all the risk that may involve which would turn out to be far worse than if she had supposedly reported him.....that's not a reason, there's been no valid explanation that goes anywhere near common sense....there needs to be a valid reason for firing four shots......

 

[Marfa Lights]

Yes, that's the test for DE.

But, as per Taitz's article discussed previously, the correct question could be, 'Did he intend to kill unlawfully?' and not 'Did he intend to kill?'

http://www.dailymaverick.co.za/opinionista/2015-11-05-its-still-not-about-dolus-eventualis-but-about-intention-to-act-unlawfully/#.VkI7X7fhDIU

Yes, but if I understand correctly that would be the right question for PPD. If the court has ruled out any legitimate claim of PPD and are moving on to DE, it would be understood that his actions have been determined to be unlawful. Then the question becomes whether or not he had subjective foresight and reconciled himself to the possibility of causing death.

Do I have that right?

 

[soozieqtips]

......do you really believe that constitutes a reason to murder with all the risk that may involve which would turn out to be far worse than if she had supposedly reported him.....that's not a reason, there's been no valid explanation that goes anywhere near common sense....

BIB - Yes I do. Do you think OP would have been okay to have Reeva report him to the police for attacking her? Do you think he'd have been happy watching his sponsors distance themselves and abandon him? Do you think he'd have been okay being snubbed by fans who once admired him? That's a lot to give up for someone used to people fawning all over him.

People give you reasons - and you totally dismiss them saying they're not reasons. Maybe not to you, but for some of us, they are. If he'd attacked her and she had physical evidence of bruising etc, he would have been demonised as a woman beater. There is no way a narcissist like him could tolerate that. So to say it doesn't go anywhere near common sense is dismissive and in direct contradiction to your many posts stating we should all be open to different scenarios.

I can easily see why killing Reeva and inventing an invisible intruder tale (to go with his invisible shooter) would be preferable to being hung out to dry by his fans, losing his sponsors and maybe his career if his true colours were about to be exposed.

 

[mrjitty]

People kill and seriously injure their domestic partners on a daily basis without "good reason"

This requirement only seems to come up when its a nice middle class white man doing the violence

No one questions it otherwise

 

[Interested Bystander]

Mr Jitty and Mr Fossil, there is one piece of evidence that was never looked at in any depth. Could it be that the first sounds were made with the cricket bat against the metal panel in the bath which was found badly dented? I was really surprised that nobody asked OP how it happened. It must have been something to do with the "fight" on that day as it would be unlikely for either of them to leave a damaged panel on the bathroom floor to trip over "in the dark". When in place in the ceramic tiled surround, the panel would very likely have turned the void between the tile surround and the bath into a sound box. Although there was only a small scratch it was fairly obvious it had been given a fairly hefty whack with something. If it were to have been the cricket bat, could the toe guard have prevented major scratching? Also, cricket bats are made from soft wood and it is said every hit ball will leave a mark. Have you looked at marks on the lower part of the bat to see if there is any bruising? As it was a collector's item it is unlikely OP would ever have used it for practice or playing in a match. That would free up the bat sounds to have been used to break the door down after he shot Reeva.

Did anyone ask the Stipps how close together the first sounds were? Could he have swung the bat three times in quick succession?

 

[Colin de France]

BIB - Yes I do. Do you think OP would have been okay to have Reeva report him to the police for attacking her? Do you think he'd have been happy watching his sponsors distance themselves and abandon him? Do you think he'd have been okay being snubbed by fans who once admired him? That's a lot to give up for someone used to people fawning all over him.

People give you reasons - and you totally dismiss them saying they're not reasons. Maybe not to you, but for some of us, they are. If he'd attacked her and she had physical evidence of bruising etc, he would have been demonised as a woman beater. There is no way a narcissist like him could tolerate that. So to say it doesn't go anywhere near common sense is dismissive and in direct contradiction to your many posts stating we should all be open to different scenarios.

I can easily see why killing Reeva and inventing an invisible intruder tale (to go with his invisible shooter) would be preferable to being hung out to dry by his fans, losing his sponsors and maybe his career if his true colours were about to be exposed.

.....unless he had his intruder version already worked out i just can't see him prefering murder to any possible reporting by her......the risk was too great.....it just does not fit ....there could well be something else missing, something we don't know about....

 

[Colin de France]

People kill and seriously injure their domestic partners on a daily basis without "good reason"

This requirement only seems to come up when its a nice middle class white man doing the violence

No one questions it otherwise

.....i agree but here we aren't talking about something that happened in a flash, there was a long lead up to the shooting.....not forgetting the usage of the bat on the door..

 

[Marfa Lights]

......do you really believe that constitutes a reason to murder with all the risk that may involve which would turn out to be far worse than if she had supposedly reported him.....that's not a reason, there's been no valid explanation that goes anywhere near common sense....there needs to be a valid reason for firing four shots......

People have shot and killed people because they refused to turn their music down, or there was the famous case where someone shot and killed someone in a movie theater over some argument about popcorn. There is a possible cascade of reasons why Oscar killed Reeva-- starting with him having a really bad day after meeting with his financial advisor earlier that day. (Some have speculated this might have been related to a settlement in the Cassidy Taylor-Memmory injury lawsuit. Perhaps his anger toward her was re-directed at Reeva.)

You could make a list with hundreds of possible reasons. However, I suspect that even if Oscar himself told you why he did it, you might still say that's not a valid reason and makes no sense whatsoever.

 

[soozieqtips]

.....unless he had his intruder version already worked out i just can't see him prefering murder to any possible reporting by her......the risk was too great.....it just does not fit ....

BIB - not really. He expected everyone to believe his intruder story. In fact, in his affidavit he said he 'failed to see' how he could be charged with murder as he had no intention to kill Reeva, working on the assumption that because home invasions were so common (except in the highly-guarded Silverwoods estate) everyone would just think it was a tragic accident.

Going by how he treated Reeva with disdain during a large chunk of their relationship, he clearly had no respect for her and even seemed to dislike her at times. This wasn't the love of his life. He'd only known her for about 14 weeks, and their relationship didn't really start until about a month after they met.

He wasn't emotionally invested (couldn't be due to his time-consuming love affair with himself), so why would he care about the risk if he thought (wrongly) his intruder story would be accepted almost without question? His choice was 'world crashing down' or saying he shot at what he thought was an intruder. He's someone who likes to take a risk anyway, as we know. He's also someone who seems to have little regard for others.