Oscar Pistorius - Discussion Thread #65~ the appeal~

[LemonMousse]

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.

Do you appreciate that the specific identity of the victim is completely irrelevant when it comes to DE. That, indeed, this is what differentiates it from DD?

OK - so she's absolved him of the direct intention to kill Reeva.

It's then beholden on her to address what his intention was to the human being that he testified to knowing was in the toilet.

At this stage, it's no longer about Reeva. Therefore Roux's excuse that Masipa was then asking herself whether OP didn't stop to wonder whether it was Reeva just highlights the mistake Masipa made.

She should have been asking questions about Pistorius's intention towards the intruder. People forget that it's also illegal, and potentially murder, to gun down intruders without a very good reason. So Masipa should have been addressing whether he murdered the intruder that he (supposedly) thought was there.

Even if he didn't know it was Reeva, he knew a human being was in the toilet. He acknowledged that.

Did he know that shooting at them through the door could harm them?
Did he accept the risk and reconcile himself to that by continuing to shoot?
Did he think he was legally justified?

None of these questions related to Reeva's specific identity. So the answers Masipa gave were nonsensical in relation to DE.

He didn't intend to shoot the intruder because he thought Reeva was in bed? He didn't intend to shoot the intruder because he was upset when he saw he'd shot Reeva?

According to him, he shot BECAUSE he thought Reeva was in bed....he was upset BECAUSE it was not the "intruder" that he'd shot, but Reeva instead.

Surely you see the problem?

 

[mhiforme]

BBM

Yes in movies, or in B movies, so the horror story/events can go on! In real life people would wake their loved ones up not just to ask them if they heard a noise but to make sure they are on their guard in case there were intruders..they also call the police before taking any action.

In terms of only happening in movies, that's not true, movies imitate life. I hear noises in our house from time to time. I don't go running around waking the family up for no reason. I'll go check what the noise is first.

 

[jilly]

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.

If that's all they had, I would agree. The fact that he was up that nite is a piece of the puzzle and imo there are many pieces which fit together here.

 

[AW2B]

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.

To add..

Whoops, without thinking, I didn't fire into the shower because the bullet might ricochet!

 

[mhiforme]

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.

This isn't a popularity vote but there are many in the legal community that said Masipa's ruling was correct and that this was CH. Commissioner Mathole Motshekga went on to say may people in the public are just ignorant of the law:

“Given the unfair criticism against you, due to the ignorance of the law and legal processes, and the stigma from following such an ignorance, don’t you think that will also unfairly tarnish the image of the new court?” Motshekga asked.
Masipa responded saying the criticism was not about her but about her decision.
“It was because people had expected a certain outcome and that did not happen. I don’t think I am stigmatised,” she said.

 

[mrjitty]

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

This is legally incorrect.

When you load Zombie stoppers in your gun and keep it under your bed for self defence, already at this point, you foresee the possibility of its use.

For example - I have a large police torch, which i keep in my cupboard with other such tools, in case of a power cut.

It doubles as a useful club, and I have actually thought about that.

If I sleep with it under my bed, and then one night confront and intruder with it, then swing in self defence - it would be hard to say I had not foreseen and intended that very eventuality.

Now I decide I am not feeling safe enough - so I replace my torch with a pistol packing zombie stoppers.

Can you see that I am actually planning for an eventuality?

Just because the eventuality is not certain - does not mean I have not foreseen it.

So when I subsequently conduct a military sweep of my house, and knowingly point the weapon at a human and dozens of seconds elapse - can we really say a sentient adult is not foreseeing the possibilities?

And what sentient adult does not know as a fact, that shooting people multiple times risks death?

The 3AM thing is not legally convincing IMO

 

[janicelongbright]

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.

maybe one with at least bull bars, and more , 007 /Bodicca knifey gadgets might come near .

 

[AW2B]

In terms of only happening in movies, that's not true, movies imitate life, that's what people. I hear noises in our house from time to time. I don't go running around waking the family up for no reason. I'll go check what the noise is first.

And you don't even try to find out if your partner is the one possibly causing the noise? You just jump to conclusion that an intruder was using the bathroom/toilet?

 

[mrjitty]

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

That submission was plainly incorrect

But he needed some way to explain an obvious error on the face of the judgement.

I give him credit for an inventive solution but clearly both Justices clearly thought it was a poor argument.

 

[Susza]

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.

And not to mention that he was sufficiently clear minded to decide not to make a warning shot as it could ricochet and hurt him.

 

[Trotterly]

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

BIB I saw that two of the guests on the Carte Blanche legal panel that commented throughout the trial described her as excellent. I think one was Judge Greenwood and the other a celeb criminal lawyer.

 

[cottonweaver]

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.

BIB Upset? Wrong word for me, at least. I wasn't upset when she read her judgment, my jaw did drop though when I couldn't follow aspects of her logic.

BIB2 Noooo "Dream team" - don't believe the hype LOL. It's all relative when you compare a struggling nation such as SA with what you or I may be used to. Famous, media interest , agree to that ( OJ case I know nothing about so I can't comment.)


I haven't read all your posts so I'm not sure of your overall point of view, but I would be really interested in what motivated you to join a forum to discuss a case which is pretty much at it's closure.
The fat lady is about to sing, whichever way she does it.

You have , it seems pretty strong views on this, ( which is great, we all do, for a number of reasons ) but I'm wondering how you are invested in this, how you came to this, so to speak.

 

[LemonMousse]

For MHIFORME (forgot to press quote):

Well, I was talking about those professionals that Trotterly was referring to - the ones that do think she made a mistake. It goes without saying that there are others that don't think she did.

And with respect, I don't feel that any of the points that yunmade in your previous post are logically sound with respect to the facts of this case.

A) It may have been 3am, but Pistorius was awake enough to speak to Reeva, notice her position in the bed, walk to the windows, bring in the two fans, close the curtains and blinds, notice the jeans on the floor, decide to cover the blue light with them, remember the ladders outside when he heard the noise, remember exactly where he'd left his gun, collect it, *advertiser censored* it, aim it, decid not to put on the lights, tell Reeva to call the police and approach the bathroom. This was not a bleary eyed man stmbling about.

B) He shot four times, but "accidents happen"? That's not an accident - that's four accidents. Three of them occuring after he'd stopped, changed trajectory and started again.

C) The "zombie stoppers" are relevant because he'd demonstrated in the video that he knew exactly what they could do to human flesh. This partly answers the DE question of "Did he know he'd hurt or kill the person in the toilet?"

D) Horror movies are laughed at BECAUSE people approach danger in them when in real life they wouldn't. No, I don't think it's instinctive at all to approach danger - certainly not when you have so many safer options immediately to hand. If there had been an armed intruder in that bathroom, Pistorius would have to have been suicidal to approach them - screaming his head off all the while to let them know he was on his way, lest we forget.

 

[cottonweaver]

BIB I saw that two of the guests on the Carte Blanche legal panel that commented throughout the trial described her as excellent. I think one was Judge Greenwood and the other a celeb criminal lawyer.

BIB Never heard of him.
Can you give me the legal appraisal on leach's career. You are concerned about his approach and I am assuming you have looked into him?

What's the story on Leach?

 

[lithgow1]

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.

I see your point re the truck vs car but isn't the issue in this case the fact that he knew their power to inflict damage, even through a door? It is not so much that they do more damage, as that they were likely to do a lethal amount. I am not a gun person so don't know what would be the outcome with firing different calibres through a door but he is and therefore he knew that his ammo would go through the door, cause immense damage if they hit someone and also fragment, causing more damage. I guess to use your car analogy, if you hit and killed someone while speeding you would be guilty of a crime but there might be harsher repercussions if you were going 80 km/h in a 40 km zone as opposed to 80 km/h in a 60.

 

[lithgow1]

For MHIFORME (forgot to press quote):

RSBM

D) Horror movies are laughed at BECAUSE people approach danger in them when in real life they wouldn't. No, I don't think it's instinctive at all to approach danger - certainly not when you have so many safer options immediately to hand. If there had been an armed intruder in that bathroom, Pistorius would have to have been suicidal to approach them - screaming his head off all the while to let them know he was on his way, lest we forget.

Very good point. How many times have you/I/we watched a horror film and laughed, as you say, at the heroine getting a candle and going to investigate the noise in the cellar or attic? There would be few horror movies if people acted sensibly in them. It is like in one of the Scream franchise films where the girl is running from the maniac and comes to a sign that points to 'Safety' in one direction and 'Certain death' in the other, and chooses the latter. It is funny because, when it comes to the genre, it is true.

 

[Trotterly]

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

I come back to his words which sum up his testimony about firing:

"I did not have time to think, I heard this noise and I thought it was somebody coming out of to attack me, so I fired..."

He did not have time to think but he thought. Clearly illogical but not an unreasonable thing to say if you did not want to shoot at anyone unless you had to.

Nel would ask him if he wanted to shoot. If you shoot in self defence you may feel you "have" to shoot but does that mean you "want" to shoot? I think he exploited this distinction in his testimony.

I think OP knew full well he had killed Reeva illegally and wasn't about to make a present to Nel by admitting he had intended to shoot her. He must have seen the danger of even admitting he intended to fire (in self defence) when Nel was insisting he knew it was Reeva all along and was hitting him with evidence of an argument and Reeva screaming which we now know is discredited.

What was obvious from his testimony, as Leach pointed out, he fired at the noise and in fear I believe he fired at the intruder.

 

[Trotterly]

That submission was plainly incorrect

But he needed some way to explain an obvious error on the face of the judgement.

I give him credit for an inventive solution but clearly both Justices clearly thought it was a poor argument.

Why is that?

 

[jilly]

WmBooth - he has followed it closely.

I too thought I heard the SCA say it would return to HC for sentence but I was surprised then to find Ulrich Roux saying it still could.
The link and quote is on the previous page.

Yes, I remember that being said, but I don't recall the context exactly. There were a few references to the "retrial". Booth says that the Appeal Court could ask where the sentencing should be and then receive arguments. Not hard to know who would be arguing what. lol

The part that gets me is that Booth said that if the SCA rules it was murder, the sentence could be the same as what Masipa gave. So what would be the point of this Appeal?

If this goes back to Masipa for sentencing, can she rule that time has been served?

Can you (or someone) explain this to me, please?

 

[lithgow1]

I come back to his words which sum up his testimony about firing:

"I did not have time to think, I heard this noise and I thought it was somebody coming out of to attack me, so I fired..."

He did not have time to think but he thought. Clearly illogical but not an unreasonable thing to say if you did not want to shoot at anyone unless you had to.

Nel would ask him if he wanted to shoot. If you shoot in self defence you may feel you "have" to shoot but does that mean you "want" to shoot? I think he exploited this distinction in his testimony.

I think OP knew full well he had killed Reeva illegally and wasn't about to make a present to Nel by admitting he had intended to shoot her. He must have seen the danger of even admitting he intended to fire (in self defence) when Nel was insisting he knew it was Reeva all along and was hitting him with evidence of an argument and Reeva screaming which we now know is discredited.

What was obvious from his testimony, as Leach pointed out, he fired at the noise and in fear I believe he fired at the intruder.

Re BIB. Why did he have to? He didn't IMO. He chose to do so. How and why do you make the leap to he had to do it?