Oscar Pistorius - Discussion Thread #65~ the appeal~

[Marfa Lights]

"Perhaps on the facts it may have been a less controversial finding in the circumstances to hold that there was foresight of death but this was the courts factual finding and the accused would have been acquitted either way.126 Even on a finding of dolus eventualis indeterminatus, he would still have a putative defence on the basis of a genuine mistaken belief that he was under attack and acting under lawful self-defence. He would thus lack knowledge of unlawfulness, which would not be impacted by the error in objecto."

Link to pdf here:http://www.publiclaw.uct.ac.za/pbl/staff/kphelps

Phelps would have us believe that just because Masipa accepted Oscar held a genuine but mistaken belief he was under attack, then any subsequent actions he undertook in putative self defense would therefore be considered lawful.

I don't think this necessarily follows-- and it still remains for the SCA to determine if Judge Masipa erred by not subjecting his defense to the requisite tests for lawful PPD & PD actions, e.g. defensive actions must be in response to an imminent attack or one that has already commenced and cannot be a "pre-emptive" strike; the force employed in the defense must be proportionate to the attack and only that which is necessary to prevent bodily harm; etc.

So while he can easily claim he mistakenly thought there was an intruder in his house, it is not so convincing for Oscar, as a fully licensed gun owner and enthusiast, to claim that he "thought" he was acting lawfully when he blasted away at the toilet door without identifying the person inside or verifying if any actual threat even existed. He had intent, he had foresight, and proceeded with reckless disregard of the law to commit murder.

 

[Trotterly]

Yes, it is like deja vu over there isn't it.

One thing I was thinking of in terms of Pistorius' conflicting defences is, if he was telling the truth in Version Mark 1 (that he thought there was an intruder in the toilet and that potential threat was emerging towards him and so he fired) then IMO he wouldn't have gotten caught up in the whole 'I wasn't thinking, I just fired before I knew it' shambles. He would of stuck to that because that would be what happened. The fact that he got so twisted up over why he did what he did suggests to me that it is not what happened whatsoever. Oh what a tangled web he weaved and all that.

How did he get "caught up" in it? That the noise made him fire without thinking was his version from the start.

 

[lithgow1]

Phelps would have us believe that just because Masipa accepted Oscar held a genuine but mistaken belief he was under attack, then any subsequent actions he undertook in putative self defense would therefore be considered lawful.

I don't think this necessarily follows-- and it still remains to for the SCA to determine if Judge Masipa erred by not subjecting his defense to the requisite tests for lawful PPD & PD actions, e.g. defensive actions must be in response to an imminent attack or one that has already commenced and cannot be a "pre-emptive" strike; the force employed in the defense must be proportionate to the attack and only that which is necessary to prevent bodily harm; etc.

So while he can easily claim he mistakenly thought there was an intruder in his house, it is not so convincing for Oscar, as a fully licensed gun owner and enthusiast, to claim that he "thought" he was acting lawfully when he blasted away at the toilet door without identifying the person inside or verifying if any actual threat even existed. He had intent, he had foresight, and proceeded with reckless disregard of the law to commit murder.

Re BIB. How on Earth does Ms Phelps (and Judge Masipa too) get to the point of accepting that he thought he was under attack? Nothing happened FFS other than the supposed noise of wood moving that then made him think the door was opening. Which of course it never did. As one of the SCA judges said the other day, in a tone that suggested 'No', does he have the right to shoot at a noise when he could see the door and see it was not opening?

 

[akp]

I'm sure I heard something about a hippo in the courtroom and errors of law and so forth. Anyhoo I'm surprised that what I was lead to believe was a respected HC judge could have been making so many poor decisions in all her previous appearances. I saw several SA legal experts extolling her virtues before the trial started and come the verdict she's gone completely feral and started becoming the worse judge ever.

Could it be that people just didn't get the result they wanted for such an obviously open and shut case?

Well, you do not need to rely on others' opinion at all. Read her judgement, and check for yourself - whether it makes logical sense.

 

[cottonweaver]

I'm sure I heard something about a hippo in the courtroom and errors of law and so forth. Anyhoo I'm surprised that what I was lead to believe was a respected HC judge could have been making so many poor decisions in all her previous appearances. I saw several SA legal experts extolling her virtues before the trial started and come the verdict she's gone completely feral and started becoming the worse judge ever.

Could it be that people just didn't get the result they wanted for such an obviously open and shut case?

This isn't really true though.
There wasn't any real information on Masipa before the trial.
She had never had a judgment examined , to my knowledge.
I am certain at all that any legal experts were extolling her judgely wisdom and competence.

All we had to go on was her pre apartheid and post apartheid back story, activism, social work and a case of hers where she sentenced a rapist to a huge sentence so was a tough judge.

All the posters on this forum, including me inferred a great deal of optimism from that back story, and that she was a black woman - there wasn't any -depth research. The shock was the level of incompetence which only became clear in the illogical judgment, prior to that there was creeping unease about the way she conducted the trial. However no one really expected competence was an issue when her name was announced - I am sure I would remember that.

I myself was totally naive about the over-arching bodies, the appointment of judges there, the controversies at the HC and lower court levels,

I only did research some long afterwards

 

[AW2B]

Well, actually, almost all legal professionals have made it very, very clear that they still hold Masipa in the highest regard but feel that she simply made a mistake on this occasion. All human beings do this from time to time. James Grant was very particular about making this point.

BBM

I think she let her bias influence her judgment! She was probably an OP's fan..I believe she had great admiration for his athletic achievements despite his handicap!

 

[lithgow1]

How did he get "caught up" in it? That the noise made him fire without thinking was his version from the start.

Then why did the State and the SCA say he was advancing two defences - PPD (fired under the misapprehension an attack was imminent) and involuntary (fired without thinking)? Below is from his bail application. I have removed extraneous stuff between the two parts that are not pertinent to this discussion. To be fair, he doesn't say whether it was thought about or not. Just that he did it. I would need to go back to his testimony to see if he said under direct that he fired without thinking but for now I still maintain that his initial defence was PPD which changed to some amalgam of that and involuntary under cross.

I heard movement inside the toilet. The toilet is inside the bathroom and has a separate door.

It filled me with horror and fear of an intruder or intruders being inside the toilet.

I believed that when the intruder/s came out of the toilet we would be in grave danger.

I fired shots at the toilet door and shouted to Reeva to phone the police.

http://www.mirror.co.uk/news/world-news/oscar-pistorius-full-court-statement-1718677

 

[Trotterly]

So there was nothing in her judgement that struck you as off kilter? You must therefore agree that displaying grief and anxiety after the fact means you never meant to commit the crime? That having ammunition in your possession that you should not have is not a crime if you didn't intend to have it (or whatever her thinking was there)? That he couldn't have foreseen that firing four bullets into that cubicle could result in the death of whoever was in there? That it is sensible to believe key parts of the evidence given by a defendent that you yourself have labelled as poor and evasive? That a generally well respected judge cannot make a bad ruling? Makes me wonder why you are so willing to support her unless it is because you got the result you wanted.

Remember too Trotterly it is not just us here criticising her judgement. Many legal commentators did (many more than supported it) along with at least two of the SCA judges the other day.

Yes it was off kilter in that it took far too long to understand what she was on about. I would like to see that clarified by whatever means.

Did you follow Roux's argument about interpreting her evaluation of DE Reeva in the context of having already cleared him DD?

In this case the grief for Reeva is perfectly relevant as she was only dealing with DE of Reeva - to eliminate the possibility that he was not 100% sure it was an intruder.

Nel was out lawyered on the ammo - it happens. OP got his money's worth there.

Without the intent to kill Reeva we are left with the intent to kill the intruder. What's the big problem there?

A bad ruling through an error, but apparently Masipa has made errors all over the shop including suddenly being unable to fairly assess the evidence of the first accused that she's ever had lie to her. Hmmm, I'm finding it hard to believe.

 

[lithgow1]

In terms of the relevancy of the type of ammunition, were zombie stopper bullets illegal to have or use? If they were not illegal, then he should be allowed to keep them in his gun if that is his choice.

Yes he should be allowed to keep them in his gun if they are legal. He should also be aware of their capacity to damage human tissue (a capacity one of the SCA judges noted) and he shouldn't be allowed to fire them at a noise made through a closed door. Besides, you have moved the goalposts - your post said that the hollow point bullets were just what he happened to have in the gun on the night of the killing so their capacity was irrelevant and now you are claiming he should be allowed to load his gun with 'zombie stoppers' if he so wishes, which brings it back to the choice being relevant doesn't it? His choice, his consequences.

 

[janicelongbright]

"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?

Hmm, also then ,do the appeal judges simply say, eg 'we find a verdict of D.E. ' ,or will they give give new criteria for their verdict ,and therefore more or less set the terms of Masipa's sentence remit ?

 

[AW2B]

Which is what he did when Samantha Taylor was living with him. She also said that he never kept his gun under the bed! More dissembling from a prize liar methinks. He was very lucky he had a week to work out his defence (with help, of course) before appearing at the Bail Hearing. Even then he changed his story by the time he reached trial. In his case it is "once a liar, always a liar" IMO. Masipa should have rejected virtually all of his testimony.

BBM

I agree..I also believe that during the gap between the two sets of sounds..he was thinking of a story to tell. There is no question in my mind that he murdered Reeva..

 

[Interested Bystander]

I am unsure whether this article and additional soundcloud discussion has been posted. Apologies if it has.

http://www.702.co.za/articles/700/npa-appeal-shockingly-inappropriate-oscar-pistorius-trial-outcome

Plus soundcloud link.

https://soundcloud.com/primediabroadcasting/pistorius-legal-teams-to-argue-their-cases-to-the-sca

Kelly Phelps and Tyrone Maseko discussing the Appeal

 

[Interested Bystander]

Tyrone Maseko has made some interesting tweets on his Twitter account. Look for 3rd/4th November @TyroneMaseko.

 

[lithgow1]

Yes it was off kilter in that it took far too long to understand what she was on about. I would like to see that clarified by whatever means.

Did you follow Roux's argument about interpreting her evaluation of DE Reeva in the context of having already cleared him DD?

In this case the grief for Reeva is perfectly relevant as she was only dealing with DE of Reeva - to eliminate the possibility that he was not 100% sure it was an intruder.

Nel was out lawyered on the ammo - it happens. OP got his money's worth there.

Without the intent to kill Reeva we are left with the intent to kill the intruder. What's the big problem there?

A bad ruling through an error, but apparently Masipa has made errors all over the shop including suddenly being unable to fairly assess the evidence of the first accused that she's ever had lie to her. Hmmm, I'm finding it hard to believe.

Re BIB 1 - No I didn't follow it but have seen you ask the same question, repeatedly, elsewhere. By all means explain it to me if you can be bothered.

BIB 2 - She still essentially said that because he was upset then he can't have meant to kill her. Sounds like an unfounded leap to me. It is perfectly possible he meant to kill her and then immediately was struck with horror at what he had done. That not possible in your book? Grief must equal innocence?

BIB 3 - That it was illegal to the point of murder in the way he went about it?

 

[LemonMousse]

This whole PPD thing goes to the heart of the case for me.

Pistorians keep saying that Masipa accepted his defence of PPD, but she didn't. And, if she did, then she really, really shouldn't have done since Pistorius himself gave evidence AGAINST that.

PD/PPD is the defence you raise when the action you took was justified in order to protect yourself. It is a complete defence to murder and if the court accepts it, you walk free. It absolves you of all blame, since you are allowed to hurt/kill someone if you have no other way to protect yourself (or have a very good reason for thinking that).

Imagine if that door had opened and Pistorius was confronted with a stranger pointing a pistol shaped object at him. He (Pistorius) shoots him but it later emerges that it wasn't a pistol, it was a banana.

If it even got to trial, there would have been no CH conviction because the law would understand that pretty much anyone would have made the same mistake even though there was no objective threat.

The very fact that she convicted him of CH proves that she didn't accept his plea of PPD. You are legally blameless if it can be shown that you acted to save your own life or had a very sound reason for thinking you had to.

Accepting that he was scared and this may have prompted his actions does not mean she accepted PPD.

Also - any self-defence action necessarily involves direct intention. "Self-defence" does not refer to how you are feeling, but what you actually do. It's an action you take. It is patently absurd to say, "Well, I shot to defend myself but didn't mean to" which is the nonsense Pistorius ended up expecting everyone to swallow.

Ooops, I shot without thinking is manifestly NOT self-defence. It's something else entirely. The problem with mounting this defence, though, is that it is close to impossible to explain how you shot four times without thinking.

Whoops, without thinking, I managed to aim my gun, fire four times in a tight grouping all in the dark while I was quaking in my boots and screaming like a girl.

No. Just no.

 

[soozieqtips]

Re BIB 1 - No I didn't follow it but have seen you ask the same question, repeatedly, elsewhere. By all means explain it to me if you can be bothered.

BIB 2 - She still essentially said that because he was upset then he can't have meant to kill her. Sounds like an unfounded leap to me. It is perfectly possible he meant to kill her and then immediately was struck with horror at what he had done. That not possible in your book? Grief must equal innocence?

BIB 3 - That it was illegal to the point of murder in the way he went about it?

BIB - have to laugh at that. Here's a BBC list of killers who cry crocodile tears.

http://news.bbc.co.uk/1/hi/uk/7288543.stm

 

[mhiforme]

Yes he should be allowed to keep them in his gun if they are legal. He should also be aware of their capacity to damage human tissue (a capacity one of the SCA judges noted) and he shouldn't be allowed to fire them at a noise made through a closed door. Besides, you have moved the goalposts - your post said that the hollow point bullets were just what he happened to have in the gun on the night of the killing so their capacity was irrelevant and now you are claiming he should be allowed to load his gun with 'zombie stoppers' if he so wishes, which brings it back to the choice being relevant doesn't it? His choice, his consequences.

I agree in that if the bullets are legal, then there is no issue in him keeping them.

But, they are irrelevant to DE because they do more damage.

That's like saying a drunk driver is more guilty of killing someone because he was driving a truck instead of a sub-compact car. The type of car used is irrelevant, it is the other facts that are important.

 

[Marfa Lights]

BBM

I think she let her bias influence her judgment! She was probably an OP's fan..I believe she had great admiration for his athletic achievements despite his handicap!

And don't forget her list of attributes for Reeva which included "she was good in front of a camera."

I think both Masipa and her female assessor, Janette Henzen-du Toit, identified with Oscar 's ability to overcome his physical disabilities. I thought I recalled the assessor was somewhat of an activist for disabled causes and a Google search turned up this entry in the reader comments section on Juror 13's website. I do not know how much of this has ever been substantiated-- does any one know?

I hope this is acceptable to quote from the comment section on Juror 13's website:

Janette Henzen (before she married du Toit) worked or lived in Rustenberg (also referenced on her Facebook page). Her parents names are Thys and Franci Henzen. (From Bleed newpaper article)
Some years ago, a Thys Henzen became a paraplegic as a result of a car accident, then some years after that was arrested for an altercation,(from the newspaper South Africa Today)
while in the jail he was raped by the men in the cell, and was abused by the SAPS police as well.
If this man was related to Janette, it would certainly explain her mindset as far as interest in the paraplegic community and even against the SAPS. She may not be related at all to this Thys Henzen, BUT odds are she probably heard or read about this individual. (not father as I think she is too old, maybe a brother?)
What led me to start this research was the link I found on her Facebook page, “Living without Limbs” under her Favorites.
And at first I was stunned as she’s an assessor for a paraplegic charged with Murder!!
So there is definitely some kind of interest in paraplegia on her part for whatever reason!
And I do think that may tip the scales in favor of Pistorius, how much we’ll never know. But it seems like a conflict of interest (do they have that in S. Africa courts?) especially in a murder trial. The articles about a Thys Henzen are interesting though and may provide the initial interest in this disability though now I’ve read that her husband is the brother of Nanette du Toit, also a paraplegic athlete in S. Africa.

 

[mhiforme]

This isn't really true though.
There wasn't any real information on Masipa before the trial.
She had never had a judgment examined , to my knowledge.
I am certain at all that any legal experts were extolling her judgely wisdom and competence.

All we had to go on was her pre apartheid and post apartheid back story, activism, social work and a case of hers where she sentenced a rapist to a huge sentence so was a tough judge.

All the posters on this forum, including me inferred a great deal of optimism from that back story, and that she was a black woman - there wasn't any -depth research. The shock was the level of incompetence which only became clear in the illogical judgment, prior to that there was creeping unease about the way she conducted the trial. However no one really expected competence was an issue when her name was announced - I am sure I would remember that.

I myself was totally naive about the over-arching bodies, the appointment of judges there, the controversies at the HC and lower court levels,

I only did research some long afterwards

I think many people on this board are upset with Masipa and calling her incompetent because the board members didn't get the verdict that they wanted....murder.

Masipa had a tough job in front of her. This was probably one of the toughest cases in S. African history. It was a dream team of defence lawyers, it was the first broadcast trial and there was a famous defendant. This was no different that the OJ trial where OJ was found not guilty. We never called Judge Lance Ito incompetent.

With thousands of pages of testimony to sift through and much of it highly technical, it's easy to get sidetracked.

For those that call her incompetent and demand that she should be fired, remember this is just one case in her career and you can't judge her on just this one case. If we measured everyone on this forum by the same yard stick that we measured Masipa, we'd all be incompetent in our careers and deserve to be fired. People make mistakes, we're human and that's why there is an appeal process.

 

[Susza]

Thank you for all the excellent posting that is current. It is so good to see such knowledgeable people taking time to write posts which allow those of us who have no legal experience to understand the intricacies of the law with respect to the present situation.

This is exactly what was going through my mind while reading these pages.
BIG THANKS to you and everybody helping me to understand.