Oscar Pistorius - Discussion Thread #65~ the appeal~

[mrjitty]

Yes, but SA caselaw supports a verdict of CH when a claim to PPD fails. (Apart from Oliveira).

I think that is not surprising as genuine PPD cases will frequently arise out of negligence.

As a matter of logic, I still think that OP can legitimately say that he didn't intend to kill anyone unlawfully. He can also say that his intention was not to kill but that he panicked and fired without thinking because he thought he was under attack.

I think with the right facts, you could have a cascading set of non contradictory defences

E.g. You hear an intruder. As you grab your gun, your wife jumps out from behind a door in the dark and shouts boo! You shoot once.

Defences to murder
1. Involuntary action
2. Lack of intent
3. PPD

The problem in practice is that legal foresight is not only that split second.

When OP decides to keep a gun for self defence at that point he make the decision that he will defend by shooting rather than some other method.

When he points a gun at an intruder, and many seconds go by - obviously that is an intentional decision to give himself the opportunity to defend himself by shooting.

He clearly foresees that and understands what happens when you shoot someone.

You can't then isolate a split second and say "the thought never crossed my mind"

Why point a gun at someone unless you are considering use of lethal force?

Just because you have not made a final decision yet, does not rule out foresight.

 

[Interested Bystander]

I don't think there was a 12-15 minute gap between the shots and the bats. More like 5 minutes. Reeva most probably was dead when Pistorius reached her. He may not have realised, may not have wanted to accept it, or he blood and any sounds of final breathing etc may have initially convinced him otherwise.
ETA - Rouc was very clear when cross examining Dr Stipp I think, that the defence put the shots nearer to 3:12. It wasn't something he had to coble together while Pistorius was on the stand

BIB That was given in evidence by somebody who had absolutely no axe to grind and who had actually looked at a clock to register the time and went further to state that her clock was a few minutes fast.

Also, it was never agreed by the State that the first noises were the gunshots. We often see in argument that the State agree with the Defence with respect to the order of the shots. Not so! Nel pointed out that he did not agree but did not go on to provide his own timeline which I think was a mistake on his part. Clearly, in court it was said by the State that it could only say that one bat hit took place after the shots, ie the one that split the door and said the others could have been made before the second sounds.

As ever we shall have to agree to differ.

 

[mrjitty]

To be fair to Masipa, I'm not sure how far she could have been expected to engage with PPD, as OP never claimed that he thought he was entitled to fire four shots through the door. As we know, he denied intention to shoot altogether. His was a kind of hybrid PPD, based on fear, but lacking in foresight.

Interesting Roux seems to have settled on the submission that Masipa did in fact find PPD

 

[mrjitty]

RSBM


We can always count on Kelly Phelps. I just loved the response to Roux's comment:

Roux: I've referred you to a very instructive article by Phelps at paragraph 32, and if I may just go there.
Leach: Yes. Well, I think the learned author got some things wrong there.

She's not done her reputation any good with her comments, not to mention bias, re this trial. A comment like this from a top tier SCA judge will make her cringe.

I felt it was a bit desperate to cite a mere article

 

[mrjitty]

I think you may have forgotten that the State Pathologist said the injury to RS head would not permit her to draw more than a few breaths before she died, ie she would have been dead for as much as 18-20 minutes if the first sounds were the shots before the Standers arrived. He stated that even after 5 minutes RS would have been dead. We know from Carice that OP was carrying RS down the stairs and that Carice said RS was still making gurgling sounds. OP's story is just so impossible.

As far as the Stipps not calling help before really makes no difference to when the two sets of sounds were registered.

Oscar Pistorius: I know what really happened. Gripping analysis from trial observer
By Ros Godlovitch Chappell http://sumo.ly/cneQ via @biznewscom

“There was a 12 to 14 minute interval between the sets of “shots”. But according to the state pathologist, Reeva died very quickly after the shot to the head. She only breathed a few times, and the defence agreed.

If Pistorius shot her just after 3:00, she COULD NOT have been alive when he pulled her out of the toilet at about 3:15, let alone a bit later when she was struggling to breathe and he put her head down softly on the carpet.

When Roux examined his client on the witness stand, he may have had an inkling of this problem; Pistorius stated that the interval between the two sets of bangs was about five minutes.
But this doesn’t help. Reeva could not have been alive even on this timeline. And it creates another anomaly: Four witnesses heard the second noises, argued to be the cricket bat, but NO ONE heard gunshots 5 minutes before the cricket bat bangs. And Mrs Stipp must have been psychic: she imagined the first set of bangs which then occurred (unheard) about 8 minutes later.”

For me this was one of the most interesting dynamics of the defence trial management.

OP needed to compress the timeline - otherwise Reeva couldn't manage the needed arterial spray and signs of life.

But on the other hand - it couldn't be too quick because of the amount of action that needed to be included.

So it became necessary for mr & mrs N not to hear the cricket bats, and for the elapsed time to be in the range 3-5 mins

I feel Mr Fossil's time line analysis ended up making this quite apparent.

There is no real way for Reeva to be alive and do the bleeding, unless she died at the time the Stipp's testified too.

 

[mrjitty]

It is not correct to say that the judge must choose what the defence is or choose a new one. That is not the role of a judge. Masipa should have asked Roux what OP's defence was. Even after this very long trial no-one ever knew. Roux probably never addressed the issue because his client kept changing his story as and when he saw fit. I believe Roux was caught off-guard by the evolving storyline on a number of occasions, e.g. the double taps. Senior counsel would never present anything in court other than on the instructions of his client. Double taps changed to quick succession after hearing Mangena's testimony.

The defence should be the one claimed in the statement of defence.

 

[janicelongbright]

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!

Yes that's an interesting reminder , also might relate to Nel's 2nd part ,besides the' intention' re: double definition of D.E. in her ruling,Nel is saying that without her defining which specific points she dismissed in his testimony on, there is no proper ruling and leaves all the evidence she left out of her ruling ,as the potential' smoking gun' for D.E. regardless of the intention thing ?

 

[mhiforme]

Yes, but SA caselaw supports a verdict of CH when a claim to PPD fails. (Apart from Oliveira).

The focus seems to be centred on whether or not the perpetrator's fear was genuine.

As a matter of logic, I still think that OP can legitimately say that he didn't intend to kill anyone unlawfully. He can also say that his intention was not to kill but that he panicked and fired without thinking because he thought he was under attack.

I agree with this. I can see why Masipa went with CH.

1. It's 3 AM in the morning, people aren't thinking correctly at this time, especially if they are just woken up (on OP's version).

2. The fact that he used Zombie stoppers is irrelevant because he didn't load his gun. This was the ammunition that he had in his gun at the time and he just grabbed his gun.

3. In terms of firing 4 shots, accidents happen. It's not like he fired the 4 shots over a 10 minute period and had lots of time to think between each shot. They were one after the other. Yes, some evidence says there was a small pause between two of the shots, but the key is they were fired one after the other.

4. Some say as a gun owner, he should have had foresight that shooting into a bathroom would kill someone. I say foresight is out the window at 3am in the morning. No one thinks straight at 3am. If this was 2pm in the afternoon, you might be thinking a little better.

5. Some say he could have run out the door. Yes, that was an option, but I think most people's natural instinct is to go investigate a noise. Isn't that the premise of all horror movies. Again, it is 3AM in the morning, people aren't weighing all of their options at this time of the day

 

[cottonweaver]

Hi I recollect Lithgow1 ( AFAIK) said this report by KMAughan had a paywall, but as I just opened it , am going to paste the link again


http://www.msn.com/en-za/news/naren...ate-hinges-on-one-question/ar-BBmSVjp?ocid=sf
I appreciate she is only a crime reporter but it does say again Masipa would sentence IF.......

And then a tweet earlier this week by Judge Greenland:

if you fire AT a human. door or no door, why is it not dolus directus??

which is not actually consistent with Nel's quote in the article above

Anyway even IF he get's murder, he'll still only be inside serving for maybe a couple of years and then released on house arrest for good behaviour. Just the way it goes ...... but it's nothing that hasn't already been mentioned on previous threads here.

 

[mhiforme]

RSBM


We can always count on Kelly Phelps. I just loved the response to Roux's comment:

Roux: I've referred you to a very instructive article by Phelps at paragraph 32, and if I may just go there.
Leach: Yes. Well, I think the learned author got some things wrong there.

She's not done her reputation any good with her comments, not to mention bias, re this trial. A comment like this from a top tier SCA judge will make her cringe.

Anyone recall what she said in paragraph 32

 

[Interested Bystander]

For me this was one of the most interesting dynamics of the defence trial management.

OP needed to compress the timeline - otherwise Reeva couldn't manage the needed arterial spray and signs of life.

But on the other hand - it couldn't be too quick because of the amount of action that needed to be included.

So it became necessary for mr & mrs N not to hear the cricket bats, and for the elapsed time to be in the range 3-5 mins

I feel Mr Fossil's time line analysis ended up making this quite apparent.

There is no real way for Reeva to be alive and do the bleeding, unless she died at the time the Stipp's testified too.

I think Mr Fossil gauged the first shots must have been a little later than Stipps timing but I am unsure why he needed to delay from the timing in Mrs Stipps testimony. I think there maybe some argument that she was awake due to being 'fluey' but the shots may have been a little later. I really need to look at Mr Fossil's timeline again and his reasons for delaying Mrs Stipps timing. I don't recall anything in her testimony suggesting she did not hear the shots very soon after waking, ie 2.58-3am or thereabouts. Do you have a link to Mr Fossil's timeline please? Or am I missing something obvious (quite possible).

Time for me to move on anyway. Really the interest is in the discussion about the appeal.

EDIT I find Mr Fossil's work incredibly well researched and detailed which makes me think I could have missed something. I note that Dr Stipps was getting dressed when he registered the clock indicating 3.17 (ie 3.13-14 in real time). As he was still getting dressed one might assume he took another couple of minutes or he would not have stated he was getting dressed. He would have said he was dressed. After this Mrs Stipps tried to make some more calls which is when they heard the second set of noises (shots).

 

[mhiforme]

"If the state succeeds in this argument, it has asked that Pistorius’s culpable homicide conviction be substituted with one of murder, and his case referred back to Judge Thokozile Masipa for sentencing. Prosecutors are likely to ask that Pistorius be imprisoned while this process takes place, meaning he will have to bring a costly bail application if he wishes to stay out of jail. Pistorius faces a minimum 15-year sentence if he is convicted of murder, unless his defence team shows “substantial and compelling circumstances” to justify a lesser sentence."

1. From the above snippet, does OP have to be present when the verdict is read so that if he is found guilty, he goes straight back to jail pending the bail application?

2. Would Masipa actually consider dropping the prison term from the mandatory 15 years to something like 5 years or maybe even shorter because of OP's anxiety?

 

[Interested Bystander]

I agree with this. I can see why Masipa went with CH.

1. It's 3 AM in the morning, people aren't thinking correctly at this time, especially if they are just woken up (on OP's version).

2. The fact that he used Zombie stoppers is irrelevant because he didn't load his gun. This was the ammunition that he had in his gun at the time and he just grabbed his gun.

3. In terms of firing 4 shots, accidents happen. It's not like he fired the 4 shots over a 10 minute period and had lots of time to think between each shot. They were one after the other. Yes, some evidence says there was a small pause between two of the shots, but the key is they were fired one after the other.

4. Some say as a gun owner, he should have had foresight that shooting into a bathroom would kill someone. I say foresight is out the window at 3am in the morning. No one thinks straight at 3am. If this was 2pm in the afternoon, you might be thinking a little better.

5. Some say he could have run out the door. Yes, that was an option, but I think most people's natural instinct is to go investigate a noise. Isn't that the premise of all horror movies. Again, it is 3AM in the morning, people aren't weighing all of their options at this time of the day

I can see your argument but the State's argument is that they never went to bed and were arguing which, for me, equals raised adrenaline and clear thinking. The brain works very well with an extra shot of adrenaline. He would not, if the State is correct, be suffering from sudden wakefulness at 3am and consequential muzzy/fuzzy thinking.

 

[mhiforme]

I can see your argument but the State's argument is that they never went to bed and were arguing which, for me, equals raised adrenaline and clear thinking. The brain works very well with an extra shot of adrenaline. He would not, if the State is correct, be suffering from sudden wakefulness at 3am and consequential muzzy/fuzzy thinking.

I think that is the whole crux of this case, were they asleep or awake.

The PT did have strong evidence to suggest that they were awake and arguing, but the DT did their best to argue it away. If there is enough reasonable doubt, the benefit has to go to Pistorius.

 

[Marfa Lights]

I can see your argument but the State's argument is that they never went to bed and were arguing which, for me, equals raised adrenaline and clear thinking. The brain works very well with an extra shot of adrenaline. He would not, if the State is correct, be suffering from sudden wakefulness at 3am and consequential muzzy/fuzzy thinking.

Not to mention that Oscar was admittedly a bit of an insomniac and liked to go to the shooting range in the wee hours of the morning.

 

[mhiforme]

Not to mention that Oscar was admittedly a bit of an insomniac and liked to go to the shooting range in the wee hours of the morning.

True but it is irrelevant to the night of question as it would be speculation to say he was an insomniac so he was up on the night Reeva was killed.

 

[soozieqtips]

Another gem: Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time. To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time.

She must be right. Never in the history of crime has a criminal faked anguish and grief in an attempt to cover up their crime. Well except for Scott Petersen. And that woman who killed her children. And umpteen husbands and wives. And never has someone deliberately murdered someone in the heat of the moment only to be instantly consumed by regret and fear over what they have done. Well except for ...

And his 'remorse' after the crime should never have been a factor in deciding guilt or not. That should have factored into the sentencing, not the verdict. How naive does anyone have to be (let alone a HC judge) not to consider that an overwhelming amount of murderers will go to any lengths to pretend a killing was an accident.

 

[lithgow1]

I agree with this. I can see why Masipa went with CH.

1. It's 3 AM in the morning, people aren't thinking correctly at this time, especially if they are just woken up (on OP's version).

2. The fact that he used Zombie stoppers is irrelevant because he didn't load his gun. This was the ammunition that he had in his gun at the time and he just grabbed his gun.

3. In terms of firing 4 shots, accidents happen. It's not like he fired the 4 shots over a 10 minute period and had lots of time to think between each shot. They were one after the other. Yes, some evidence says there was a small pause between two of the shots, but the key is they were fired one after the other.

4. Some say as a gun owner, he should have had foresight that shooting into a bathroom would kill someone. I say foresight is out the window at 3am in the morning. No one thinks straight at 3am. If this was 2pm in the afternoon, you might be thinking a little better.

5. Some say he could have run out the door. Yes, that was an option, but I think most people's natural instinct is to go investigate a noise. Isn't that the premise of all horror movies. Again, it is 3AM in the morning, people aren't weighing all of their options at this time of the day

Re a few of your points (BIB)

2. I disagree. On his own admission he kept his gun by his bed for protection and knew what ammo was in it. If it was there for protection (as when he went into full commando mode at the washing machine) then he is responsible for whatever ammunition he chooses to keep in it.

3. 'Accident' is a strange choice of words under the circumstances IMO and to say 'accidents happen' makes it sound more like spilled milk than blood and brains.

4. According to his version he was using foresight - when to move slow, when to shout, when to be quiet, using the wall to cover himself. You can't accept that part of his testimony and then allow him the benefit of early morning muddleheadedness. He said he couldn't sleep, he got up to move fans, he covered an irritating light, he found his gun in the dark with no problems when he heard the noise - all signs that he was well awake.

5. Not too many people use horror movies as their basis for how to behave in a perceived emergency. They are fiction. I will grant though that it turned into a real life horror movie for Reeva Steenkamp.

 

[Marfa Lights]

True but it is irrelevant to the night of question as it would be speculation to say he was an insomniac so he was up on the night Reeva was killed.

I believe he was already awake ("What's the matter Boo, can't you sleep?") before he got up to "bring in the fans" from the balcony. It's not like he was awakened out of a sound sleep when he purportedly heard the bathroom window slam open.

Sleeping patterns can be hard to break. Oscar mentioned his difficulty in sleeping through the night in several interviews.

 

[soozieqtips]

Re a few of your points (BIB)

2. I disagree. On his own admission he kept his gun by his bed for protection and knew what ammo was in it. If it was there for protection (as when he went into full commando mode at the washing machine) then he is responsible for whatever ammunition he chooses to keep in it.

3. 'Accident' is a strange choice of words under the circumstances IMO and to say 'accidents happen' makes it sound more like spilled milk than blood and brains.

4. According to his version he was using foresight - when to move slow, when to shout, when to be quiet, using the wall to cover himself. You can't accept that part of his testimony and then allow him the benefit of early morning muddleheadedness. He said he couldn't sleep, he got up to move fans, he covered an irritating light, he found his gun in the dark with no problems when he heard the noise - all signs that he was well awake.

5. Not too many people use horror movies as their basis for how to behave in a perceived emergency. They are fiction. I will grant though that it turned into a real life horror movie for Reeva Steenkamp.

Good post. Of course the bullets he used were relevant. They were his ammo of choice. The gun was allegedly to protect himself, and since he chose the most deadly bullets, he knew exactly the damage they'd cause.

As for it being an accident that he fired 4 shots - there's still the unanswered question of why he didn't fire more shots, and whether he deliberately stopped firing because Reeva had stopped screaming.

As you said, the state claimed they hadn't gone to bed so OP's fuzziness at 3am is irrelevant. Remember the bedroom photos and how the pillows looked like they hadn't been slept on? Anyway, even if most home invasions happen in the early hours of the morning, it doesn't give murderers a get-out-of-jail card just because they were tired and not thinking clearly. What kind of cop out is that??? Plus, OP said he wasn't thinking at all but that he also had many thoughts (when to shout, when to be quiet, when to run, when to go slow...) so he had his wits about him when he killed Reeva - even more so when he decided to phone a friend after he'd killed her instead of the emergency services.