Oscar Pistorius - Discussion Thread #66~ the appeal~

[LemonMousse]

SCA Judge President, Lex MPati.

Like Judge Greenland, this man has risen from poverty and led a most extraordinary life. His rise from the most humble of beginnings to where he is now must be a huge inspiration to others.

“I would sit in the back, listening to the charges being put to people and agonising over how they tried to defend themselves. Mostly, they were black people and, not being educated, they were not able to conduct a good defence.”

He got upset when people were sent to jail simply because they couldn’t ask the state witnesses the right questions.

“It was clear to me that the justice system was simply not working well and too many people were going to jail. That is what pushed me to decide to do law. I felt they needed someone who could defend them,” he says.

http://www.news24.com/Archives/City-Press/Mpati-Thorny-road-to-top-20150429

Completely irrelevant, I know.....but I was struck by what a beautiful speaking voice he has. And a lovely smile.

<swoon>

 

[Interested Bystander]

My theory is that this case was simply too obvious.

When you step back from it, the defence case is laughable.

The defence failed to prove either that Oscar screamed like a woman (the key to their whole case) or to show that Oscars version was a possible version.

Murder is all that is left!

But because the Judge is such a muppet, we are left wondering what else would convince her. ButIMO nothing short of a video tape would have convinced her.

I feel Nel thought that too but I do think Nel was not fluent enough in presenting his case and IMO there were a few big mistakes. I know I keep harping on about this but if screams were heard it was paramount that he used a brilliant accoustics scientist to take down anything Roux's witness was likely to provide. Roux only ever was going to ask questions of his sound engineer that would give him the answer he wanted. Nel covered most of Roux's witnesses but it seems this aspect was not. Maybe money played a part because he probably would have had to "import" a scientist from the UK or USA, OR he thought his witnesses were impressive (as a good many of us did) he did not need help. I agree with your last sentence re the video tape.

 

[JudgeJudi]

A further 7 judgments delivered on Friday, 27 November. We're still :waiting:

I've just noticed that last year some judgments were handed down as late as 12 December.

 

[Trotterly]

A specific person would relate only to DD...not DE.

Surely you get this?

DE is when you not only do not intend to kill a specific person, but you don't intend to kill any person at all. The fact that you do is a predictable by-product of your very reckless behaviour. In this case, shooting fourt times into a toilet cubicle.

There is no way whatsoever that Masipa said she couldn't find for DE because he couldn't see who he was shooting at. Absolutely no way. Even she is not that stupid.

Look, I know you don't like it, but the cold facts are that Masipa simply asked the wrong questions for DE. And your attempts to justify it is actually making her judgement look even worse than it already does!

For DE it does not matter if he could or could not see the person. He just had to know that there was someone...a living, live human being...in the toilet and that by shooting like that he could kill or harm them.

But when she introduced DE she only referred to Reeva. You may not agree with her approach but how can you say that she did not think identity was important?

 

[JudgeJudi]

Karyn Maughan &#8207;@karynmaughan · 13m13 minutes ago

Karyn Maughan Retweeted Emma101
This week.

Emma101 @Emmalabbie101 @karynmaughan any updates on #OscarPistorius judgement...will it still be this year?

Karyn Maughan &#8207;@karynmaughan · 5m5 minutes ago
Judge Eric Leach has written the #OscarPistorius appeal ruling. It's expected he will read out court's decision. @eNCA

 

[LemonMousse]

But when she introduced DE she only referred to Reeva. You may not agree with her approach but how can you say that she did not think identity was important?

Aha! We may be getting somewhere, Trotterly!!!!

You are right. She did think identity was important. You are absolutely, 100% right.

And that's her mistake. Because for DE it is not. It is irrelevant. In this case or any other.

And it's not that I don't like her approach...it's the law that doesn't like it. She misapplied the principles for DE by making identity central. Did you not listen to what every single one of those judges were saying? They made this point over and over.

As have the rest of us on here.

It's simple...think of it like this:

DE relates to cases where killing is not the prime intent. It happens because someone engages in behaviour that could very well kill someone and they don't stop.

So....if killing is not the prime intent, then the identity of the dead person is self-evidently irrelevant.

See?

 

[JudgeJudi]

I'm still going with a unanimous decision.

 

[mrjitty]

I feel Nel thought that too but I do think Nel was not fluent enough in presenting his case and IMO there were a few big mistakes. I know I keep harping on about this but if screams were heard it was paramount that he used a brilliant accoustics scientist to take down anything Roux's witness was likely to provide. Roux only ever was going to ask questions of his sound engineer that would give him the answer he wanted. Nel covered most of Roux's witnesses but it seems this aspect was not. Maybe money played a part because he probably would have had to "import" a scientist from the UK or USA, OR he thought his witnesses were impressive (as a good many of us did) he did not need help. I agree with your last sentence re the video tape.

Money plays a huge role as we have seen in the UK with the News cases.

The Prosecution does not have unlimited resources, and is quite limited by SAPs forensic capability.

If the case was blown by anyone is was blown by SAPs allowing who knows what evidence to walk. You know I read of another case the ballistics guy was involved in where the "murder weapon" walked from the scene of a "suicide" - the accused was a cop! How does the gun walk from the crime scene?

IMO there is a more than a whiff of corruption around that.

As far as Nel goes, i don't agree.

The accused gunned down the victim and offered no believable account.

If that's not enough for the Judge, nothing will be

I've seen cases like this before including a tax fraud case in NZ that went on for years. it was blindingly obvious that the case for fraud was proven but the Judge was determined not to find fraud.

Then it was appealed to the Court of Appeal who shredded the Judge.

The problem was not lack of proof. It was the Judge refusing to do his job properly.

I am very cynical about these sorts of decisions.

 

[mrjitty]

Karyn Maughan &#8207;@karynmaughan · 13m13 minutes ago

Karyn Maughan Retweeted Emma101
This week.

Emma101 @Emmalabbie101 @karynmaughan any updates on #OscarPistorius judgement...will it still be this year?

Karyn Maughan &#8207;@karynmaughan · 5m5 minutes ago
Judge Eric Leach has written the #OscarPistorius appeal ruling. It's expected he will read out court's decision. @eNCA

"Judge Eric Leach has written the #OscarPistorius appeal ruling"

LMAO!

There is hope ladies and gentlemen!

 

[Tortoise]

Meanwhile, I still cling on to hope above hope that justice must be seen to be done and will prevail.

OP has had a fair trial, he denied again and again that he decided or meant to shoot, knowing that his defence of PPD could not stand up.

How can he change his version in another trial?

So what is left - the objective facts.

1 deliberate or mistaken bullet = knowing someone may be killed in that tiny cubicle + failing the PPD test with his version = DE
4 pulls of the trigger + knowing there is no room for escape + conscious thinking = intending to kill = DD

Take out his defence because he denied acting in PPD and the defence to murder was Masipa's own construction, and you're left with an undefended charge - DD of Reeva.

 

[Tortoise]

"Judge Eric Leach has written the #OscarPistorius appeal ruling"

LMAO!

There is hope ladies and gentlemen!

woweeee!!!

 

[mrjitty]

I can't recall his exact words, but Leach said something along the lines of "I think you'd struggle to apply PPD to the facts of this case". I thought that was very interesting.

I hope they'll find that her acceptance of PPD (if that's what it was) was based on a misdirection and therefore shouldn't have happened. This, coupled with the "shocking" testimony from Pistorius himself, which another judge would have disregarded, has the effect of leaving him defenceless.

Maybe, maybe, maybe.....they'll find that the right verdict should have been DD. Is this possible?

Yes me too - i sat bolt upright in my chair!

He wasn't just saying it was challenging - he was implying it could not fly!

To my mind, looking at the other PPD cases, I think Leach is correct.

Just as with self (private) defence, the Supreme Court obviously sets a high bar for PPD.

It can't be that you can just claim a mistake and that's it.

There has to be a critical analysis of whether you could really believe it was OK to blaze away

 

[mrjitty]

I'm still going with a unanimous decision.

I am still betting on a fudge on the verdict

But at least it seems likely Leach will tear up Masipa's sloppy work.

 

[JudgeJudi]

A senior official at the SCA has told Eyewitness News that the Pistorius judgment has already been written up.

It's now for the judges to meet one last time, to discuss it before it's handed down.

http://ewn.co.za/2015/11/30/SCA-to-rule-on-Oscar-Pistorius-conviction-appeal

 

[Ochre Blue]

For DE he didn't need to know who would be killed, just that someone would. If he can't supply a lawful excuse absolving him of dolus, then it's murder.

At the very least, he knew there was an unknown human being behind the door. Even Roux didn't try to argue that he didn't know he'd very likely kill that person, so I shall assume you accept that much, right?

So, if he knew he'd kill them, then the question becomes did he know it was wrong to do so and reconcile himself to that? IOW, was there criminal intent?

This is where the PPD bit comes in. If the court accepts that defence, then it is necessarily accepting that, because of the circumstances and his fears, his intent was not criminal although he remains culpable because he was behaving irresponsibly, and not as a reasonable person would or should.

Where you seem confused is your belief that Masipa accepted PPD and by doing so automatically demolished the criminal intent before she'd even got as far as evaluating DE.

Firstly, it's not actually that clear that she did accept PPD...or if she even knew what that meant. She misdirected herself (as Leach pointed out) by stating that the accused said he never intended to shoot, in other words, raising a defence of PPD.

But PPD necessarily requires intent. You can't on the one hand claim you believed you had reason to act to protect yourself and then say that you didn't intend to act to defend yourself. It does not compute. It has to be one or the other.

Roux's argument is that she approached DE having already excluded intent to kill by accepting PPD - but PPD has nothing to do with intent, it's all about culpability. Intent is assumed. So his argument is baseless.

This means, that actually when she addressed DE she asked the wrong questions.

What she should have done (once DD was excluded) is say....

Right. He didn't mean to kill Reeva - he thought she was in bed. Fine.

So what about the unknown person he thought he was shooting at?

1) Did he know firing into that cublcle he'd kill whoever it was? Inescapably, yes.

2) Did he intend for this to happen...or, at least, take the risk that it would? Yes, because I believe he thought he had to (PPD)

3) Did he know this was unlawful and reconcile himself with that? No, his PPD defence absolves him of the necessary criminal intent.

However, he shouldn't have done it no matter how scared, so he is still culpable. Hence CH.

Using PPD to excuse him from intentionally killing was a misdirection and a mistake. Using Reeva's whereabouts to say anything about his intentions regarding the human being he knew was behind the door was a mistake.

HTH

By the way...be careful not to confuse intent to kill/harm with criminal intent. PPD assumes the first and absolves the latter.

Spot on the knocker, Lemon Mousse!!!
Crystal clear explanation!!
Love your work! [emoji106][emoji106]

 

[LemonMousse]

Meanwhile, I still cling on to hope above hope that justice must be seen to be done and will prevail.

OP has had a fair trial, he denied again and again that he decided or meant to shoot, knowing that his defence of PPD could not stand up.

How can he change his version in another trial?

So what is left - the objective facts.

1 deliberate or mistaken bullet = knowing someone may be killed in that tiny cubicle + failing the PPD test with his version = DE
4 pulls of the trigger + knowing there is no room for escape + conscious thinking = intending to kill = DD

Take out his defence because he denied acting in PPD and the defence to murder was Masipa's own construction, and you're left with an undefended charge - DD of Reeva.

Exactly. That's how I see it too.

My big, big worry is that it might be the case that the SCA find their hands tied by having to honour (reluctantly) the factual findings that she made.

I really, really hope I'm wrong. Not a forlorn hope, because I often am. And I have not yet correctly predicted anything in this trial.....!

 

[mrjitty]

The issue for Roux/Trotterly is that while it is a conceivable explanation for what Masipa was raving on about, it is only one of several possible explanations.

Maybe she knew what she was doing but wrote the reasons down wrongly

Or maybe the confused reasons show she didn't know what she was supposed to do.

Either way - an error of law.

 

[Ochre Blue]

A specific person would relate only to DD...not DE.

Surely you get this?

DE is when you not only do not intend to kill a specific person, but you don't intend to kill any person at all. The fact that you do is a predictable by-product of your very reckless behaviour. In this case, shooting fourt times into a toilet cubicle.

There is no way whatsoever that Masipa said she couldn't find for DE because he couldn't see who he was shooting at. Absolutely no way. Even she is not that stupid.

Look, I know you don't like it, but the cold facts are that Masipa simply asked the wrong questions for DE. And your attempts to justify it is actually making her judgement look even worse than it already does!

For DE it does not matter if he could or could not see the person. He just had to know that there was someone...a living, live human being...in the toilet and that by shooting like that he could kill or harm them.

Absoloodle, Lemon Mousse! Once again, you've totally nailed it!
Again, thanks for your contributions! [emoji106][emoji106]

 

[LemonMousse]

Yes me too - i sat bolt upright in my chair!

He wasn't just saying it was challenging - he was implying it could not fly!

To my mind, looking at the other PPD cases, I think Leach is correct.

Just as with self (private) defence, the Supreme Court obviously sets a high bar for PPD.

It can't be that you can just claim a mistake and that's it.

There has to be a critical analysis of whether you could really believe it was OK to blaze away

And as Nel - admittedly inarticulately - kept stressing, you cannot rely on PPD when you're claiming you didn't intend to shoot!

You can't say...."Well, I acted to defend myself but didn't intend the action I took".

Pistorius wanted to have his cake and eat it too. He wanted the world to know that he was a poor, scared, disabled man, manfully protecting Reeva from certain death but didn't actually want to admit that the shots he fired were concious and intentional.

He truly is the architect of his own downfall.

 

[Ochre Blue]

Aha! We may be getting somewhere, Trotterly!!!!

You are right. She did think identity was important. You are absolutely, 100% right.

And that's her mistake. Because for DE it is not. It is irrelevant. In this case or any other.

And it's not that I don't like her approach...it's the law that doesn't like it. She misapplied the principles for DE by making identity central. Did you not listen to what every single one of those judges were saying? They made this point over and over.

As have the rest of us on here.

It's simple...think of it like this:

DE relates to cases where killing is not the prime intent. It happens because someone engages in behaviour that could very well kill someone and they don't stop.

So....if killing is not the prime intent, then the identity of the dead person is self-evidently irrelevant.

See?

Again, utterly crystal clear, Lemon Mousse!
More thanks! [emoji106]