Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[Marfa Lights]

He said his (overall) intention was to get the intruder out.

However he described his intentions about shooting I see the firing when he thought he heard the door opening as taking precedence. Maybe until that point he did not want to fire, who would, but it was clear on his version that this was what actually caused him to fire and it was to save his own life.

I know you want to think his fear of an intruder in the toilet (an assumption he had yet to confirm) somehow entitled him to use deadly force even though this person was not yet attacking him and had not even verbally or physically threatened him... but it's just not sufficient cause.

And even if you are sympathetic with his state of fearfulness, he is still obliged to act lawfully within the bounds of self-defense, putative or actual. And so what if he thought the door might be about to open and someone might be coming out to attack him... instead of waiting safely behind the wall to identify his target and assess the threat, he shot four rounds before the door could even open. Definitely NOT a proportionate response.

It's beyond being negligent, it's even beyond irresponsible-- it's reckless disregard for the life of someone who had clearly not attacked or threatened him. It's not enough to say you thought someone presented a potential threat to you and so you go ahead and kill them just in case.

 

[Colin de France]

He said his (overall) intention was to get the intruder out.

However he described his intentions about shooting I see the firing when he thought he heard the door opening as taking precedence. Maybe until that point he did not want to fire, who would, but it was clear on his version that this was what actually caused him to fire and it was to save his own life.

....what's disturbing is that there is no evidence to prove otherwise hence an never ending debate but at the same time there seems to be enough evidence to send him to prison.....

 

[Trotterly]

I know you want to think his fear of an intruder in the toilet (an assumption he had yet to confirm) somehow entitled him to use deadly force even though this person was not yet attacking him and had not even verbally or physically threatened him... but it's just not sufficient cause.

And even if you are sympathetic with his state of fearfulness, he is still obliged to act lawfully within the bounds of self-defense, putative or actual. And so what if he thought the door might be about to open and someone might be coming out to attack him... instead of waiting safely behind the wall to identify his target and assess the threat, he shot four rounds before the door could even open. Definitely NOT a proportionate response.

It's beyond being negligent, it's even beyond irresponsible-- it's reckless disregard for the life of someone who had clearly not attacked or threatened him. It's not enough to say you thought someone presented a potential threat to you and so you go ahead and kill them just in case.

You are making the mistake of taking an armchair approach (to use what I believe is Steyn's terminology). What is important is what he could have seen as lawful in his situation at that moment. That he thought that if they were to come out he would be a dead man, being pretty much defenceless on his stumps, if he did not use the gun.

The expert evidence was that many years of conditioning had led it to be reasonably possible that at that moment he would fall back on "instinct" and act that way.

It's not the actions of a "normal" or "reasonable" person at that point that matter, it's his actions and his alone.

 

[Trotterly]

There is a lot here I would agree with but as our legal eagles have pointed out there are some points that need comment and they have made some very good points. I have no legal experience and value their input greatly. I am of the opinion that the SCA determined from his trial testimony that OP was a pathological liar and the judges took this into account when determining that he must have known that firing four Black Talon bullets into a confined space would very likely cause death.

BIB You are going to have to provide a link to that one.

 

[Datchery]

But he didn't kill a burglar did he?

He blew his girlfriends head apart in "peculiar" circumstances and failed to offer any valid explanation.

The SCA is alive to the dynamics of the case.

I agree -- but my point is that, in technical terms, the DE conviction means that the identity of the deceased shouldn't matter. What matters is that the accused knowingly acted in an unlawful manner and failed to meet the standards of PPD. The part of Masipa's decision that accepted that it was "reasonably possible" that OP believed an intruder was present has not been overturned, so the SCA is obliged to rule on DE vs. CH on the assumption that Oscar legitimately thought Reeva was in bed and an intruder was in the bathroom.

That he turned out to be mistaken in the identity of the person in the toilet is no longer at issue. If a person uses lethal force on what appears to be an armed assailant, he or she will likely have a valid self-defense claim even if it turns out the gun was fake, or that the whole thing was a supremely ill-advised prank and the assailant was actually the person's best friend wearing a mask and toting a realistic-looking water pistol. What matters is that the accused acted on a reasonable (if mistaken) belief that his or her life was in danger.

Similarly, if it it is NOT legitimate self-defense to shoot an intruder through a bathroom door, it shouldn't matter, legally speaking, whether the "intruder" was a gun-toting maniac or a local teenager breaking in on a dare. What matters is that OP acted in a way that was likely to result in the unknown person's death in a situation that does not meet the legal criteria for PPD. His truthfulness matters only to the extent that it led the court to reject his claim that he wasn't intending to kill the person in the toilet.

The point I'm making is that I think that whatever the law actually says, the court DOES seem to be taking the identity of the deceased into account, because it seems clear to me that Oscar would not be facing the same kind of penalty if the person he had killed had indeed been an armed intruder. Personally, I'm glad that take these kinds of things into account -- but it is also important, I think, to acknowledge that that is what is happening. Instead, the SCA is framing its decision AS IF the person who actually killed an armed intruder under the same circumstances would be equally guilty, and I don't think that is true in any practical sense.

 

[Trotterly]

....what's disturbing is that there is no evidence to prove otherwise hence an never ending debate but at the same time there seems to be enough evidence to send him to prison.....

Yes. The cherry picking after the rejection of the screams sits uneasily.

 

[soozieqtips]

BIB You are going to have to provide a link to that one.

Why would you need a link? A pathological liar is a compulsive liar. If you don't know by now that he's a compulsive liar, then you missed a lot of the trial.

 

[Marfa Lights]

You are making the mistake of taking an armchair approach (to use what I believe is Steyn's terminology). What is important is what he could have seen as lawful in his situation at that moment. That he thought that if they were to come out he would be a dead man, being pretty much defenceless on his stumps, if he did not use the gun.

The expert evidence was that many years of conditioning had led it to be reasonably possible that at that moment he would fall back on "instinct" and act that way.

It's not the actions of a "normal" or "reasonable" person at that point that matter, it's his actions and his alone.

You are not referring to Roux's "slow burn" theory are you??

And let's just knock it off with this "armchair critic" business. I can put myself right there in OP's situation and mindset just as well as you can.

And what he would have seen that night was a perfectly immobile closed toilet door. You will have to explain to me how this licensed firearms owner, with years of practice and training under his belt, would have felt he was lawfully entitled to fire four rounds into a closed door, noise or no noise.

They always say you instinctively fall back on your training in situations like this, don't they? Or maybe I don't understand the kind of training he had with his weapon. I thought his license was for self-defense purposes-- but maybe it was just for stopping maniacal zombies. Was his training at fault, perhaps?

Your argument that he is so defenseless on his stumps that his only choice was to shoot to kill with a 9mm and Black Talon type bullets does not hold water: 1) there was no reason for him to believe he was actually under attack or even threatened by anyone and no defensive action was required; 2) he could have verbally warned the intruder he was armed or fired a warning shot and held the intruder at gunpoint; 3) he need not have created a confrontational situation in the first place since all he had to do was exit via the bedroom door and call security; 4) his disability was not accepted as a factor in justifying his unlawfulness so I don't know why you keep playing that card.

Trotterly, those are not legitimate excuses for his actions that night... and they don't justify his unlawful actions. It's just woefully inadequate.

 

[Colin de France]

Yes. The cherry picking after the rejection of the screams sits uneasily.

....it's always best to let the guilty go free than to send an innocent to prison......nevertheless as it stands, regardless of what we know, no reasonable conclusion can be made regarding guilt so how come the judges sent him to prison.....

 

[mrjitty]

I agree -- but my point is that, in technical terms, the DE conviction means that the identity of the deceased shouldn't matter. What matters is that the accused knowingly acted in an unlawful manner and failed to meet the standards of PPD. The part of Masipa's decision that accepted that it was "reasonably possible" that OP believed an intruder was present has not been overturned, so the SCA is obliged to rule on DE vs. CH on the assumption that Oscar legitimately thought Reeva was in bed and an intruder was in the bathroom.

That he turned out to be mistaken in the identity of the person in the toilet is no longer at issue. If a person uses lethal force on what appears to be an armed assailant, he or she will likely have a valid self-defense claim even if it turns out the gun was fake, or that the whole thing was a supremely ill-advised prank and the assailant was actually the person's best friend wearing a mask and toting a realistic-looking water pistol. What matters is that the accused acted on a reasonable (if mistaken) belief that his or her life was in danger.

Similarly, if it it is NOT legitimate self-defense to shoot an intruder through a bathroom door, it shouldn't matter, legally speaking, whether the "intruder" was a gun-toting maniac or a local teenager breaking in on a dare. What matters is that OP acted in a way that was likely to result in the unknown person's death in a situation that does not meet the legal criteria for PPD. His truthfulness matters only to the extent that it led the court to reject his claim that he wasn't intending to kill the person in the toilet.

The point I'm making is that I think that whatever the law actually says, the court DOES seem to be taking the identity of the deceased into account, because it seems clear to me that Oscar would not be facing the same kind of penalty if the person he had killed had indeed been an armed intruder. Personally, I'm glad that take these kinds of things into account -- but it is also important, I think, to acknowledge that that is what is happening. Instead, the SCA is framing its decision AS IF the person who actually killed an armed intruder under the same circumstances would be equally guilty, and I don't think that is true in any practical sense.

I think you are getting in a muddle because you are making a false equivalence.

If OP shoots a real armed intruder, then the shooting is justified.

However in this case, it was never possible, to a rational person, that there was an armed intruder.

Instead he shot his girlfriend in "peculiar" circumstances.

 

[Trotterly]

You are not referring to Roux's "slow burn" theory are you??

And let's just knock it off with this "armchair critic" business. I can put myself right there in OP's situation and mindset just as well as you can.

And what he would have seen that night was a perfectly immobile closed toilet door. You will have to explain to me how this licensed firearms owner, with years of practice and training under his belt, would have felt he was lawfully entitled to fire four rounds into a closed door, noise or no noise.

They always say you instinctively fall back on your training in situations like this, don't they? Or maybe I don't understand the kind of training he had with his weapon. I thought his license was for self-defense purposes-- but maybe it was just for stopping maniacal zombies. Was his training at fault, perhaps?

Your argument that he is so defenseless on his stumps that his only choice was to shoot to kill with a 9mm and Black Talon type bullets does not hold water: 1) there was no reason for him to believe he was actually under attack or even threatened by anyone and no defensive action was required; 2) he could have verbally warned the intruder he was armed or fired a warning shot and held the intruder at gunpoint; 3) he need not have created a confrontational situation in the first place since all he had to do was exit via the bedroom door and call security; 4) his disability was not accepted as a factor in justifying his unlawfulness so I don't know why you keep playing that card.

Trotterly, those are not legitimate excuses for his actions that night... and they don't justify his unlawful actions. It's just woefully inadequate.

You make the mistake again. It's not that he was or wasn't defenceless it is that it is not beyond the realms of reasonable possibility that he felt he was. In fact not even that he reasoned to himself at that point that he was or wasn't defenceless but that his "instinct" told him so. A lifetime of conditioning trumps the training of a weekend cowboy who answered a few questions. He didn't answer those questions when his life was under threat did he?

I'm not saying that firearms rules are pointless but they are not the be all and end all when it comes to determining murder not in South Africa anyway.

 

[mrjitty]

How unlucky for him it was Reeva...

yes - what a terrible accident!

 

[Trotterly]

Why would you need a link? A pathological liar is a compulsive liar. If you don't know by now that he's a compulsive liar, then you missed a lot of the trial.

That's utter crap. There's no evidence he is a pathological liar, it's your opinion. There's no EVIDENCE for it.

 

[mrjitty]

I think you make some great points here and you are absolutely correct in that under the same circumstances, if it was burglar in the home, this would be the end of the discussion and Oscar would be a hero.

Yes

And if he hadn't had three different versions at trial and if his brother hadn't stupidly deleted an innocent mans iPhone data then perhaps the SCA Justices would have had sympathy for this hero

 

[Tortoise]

But if you thought you could lawfully shoot at an intruder where do we account for the thought of unlawfulness against Reeva?

He didn't think he could lawfully shoot at an intruder, therein lies the fault in your thinking.

He didn't think about shooting, according to him.

Think of it that he murdered Reeva because he intended to murder someone else and didn't identify his target. He with the bullets.

 

[Trotterly]

Let me see if I understand what you are asking--

He could only have thought he was entitled to lawfully shoot at an intruder if an attack had commenced or was imminent. His response would have needed to have been proportionate to the perceived attack.

Because of Masipa's factual finding that he believed Reeva to be in the bedroom at the time he shot the intruder, we do not need to consider any unlawful intent toward Reeva. That would relate to DD.

We are working with his story... like it or not.

Well we are also working with Masipa immutables, at least we are supposed to be.

DE could only apply if it was an intruder in the cubicle yes.

 

[Marfa Lights]

I agree -- but my point is that, in technical terms, the DE conviction means that the identity of the deceased shouldn't matter. What matters is that the accused knowingly acted in an unlawful manner and failed to meet the standards of PPD. The part of Masipa's decision that accepted that it was "reasonably possible" that OP believed an intruder was present has not been overturned, so the SCA is obliged to rule on DE vs. CH on the assumption that Oscar legitimately thought Reeva was in bed and an intruder was in the bathroom.

That he turned out to be mistaken in the identity of the person in the toilet is no longer at issue. If a person uses lethal force on what appears to be an armed assailant, he or she will likely have a valid self-defense claim even if it turns out the gun was fake, or that the whole thing was a supremely ill-advised prank and the assailant was actually the person's best friend wearing a mask and toting a realistic-looking water pistol. What matters is that the accused acted on a reasonable (if mistaken) belief that his or her life was in danger.

Similarly, if it it is NOT legitimate self-defense to shoot an intruder through a bathroom door, it shouldn't matter, legally speaking, whether the "intruder" was a gun-toting maniac or a local teenager breaking in on a dare. What matters is that OP acted in a way that was likely to result in the unknown person's death in a situation that does not meet the legal criteria for PPD. His truthfulness matters only to the extent that it led the court to reject his claim that he wasn't intending to kill the person in the toilet.

The point I'm making is that I think that whatever the law actually says, the court DOES seem to be taking the identity of the deceased into account, because it seems clear to me that Oscar would not be facing the same kind of penalty if the person he had killed had indeed been an armed intruder. Personally, I'm glad that take these kinds of things into account -- but it is also important, I think, to acknowledge that that is what is happening. Instead, the SCA is framing its decision AS IF the person who actually killed an armed intruder under the same circumstances would be equally guilty, and I don't think that is true in any practical sense.

It's an interesting question and well-framed. I hope some of our in-house legal team will reply soon, but think the answer to your question lies in the discretion allowed the NPA and the Courts-- if it had been an actual burglar and Oscar had killed them in a similarly unlawful manner, it would be up to the prosecuting authority on whether to charge him under the circumstances or not. And if charged, the courts would have wide discretion about how to evaluate his technically unlawful actions against what was indeed an actual home invasion.

I think you have hit on the issue of the courts needing to take a "practical" or pragmatic approach to the differences in circumstances and outcomes of the two scenarios you present. I will leave this one for the lawyers to answer though. It's out of my depth to explain with any certainty.

 

[Trotterly]

He didn't think he could lawfully shoot at an intruder, therein lies the fault in your thinking.

He didn't think about shooting, according to him.

Think of it that he murdered Reeva because he intended to murder someone else and didn't identify his target. He with the bullets.

wtte "I fired because I thought someone was coming out to attack me"

 

[Tortoise]

You are making the mistake of taking an armchair approach (to use what I believe is Steyn's terminology). What is important is what he could have seen as lawful in his situation at that moment. That he thought that if they were to come out he would be a dead man, being pretty much defenceless on his stumps, if he did not use the gun.

The expert evidence was that many years of conditioning had led it to be reasonably possible that at that moment he would fall back on "instinct" and act that way.

It's not the actions of a "normal" or "reasonable" person at that point that matter, it's his actions and his alone.

BIB ...was rejected by Masipa and can never be resurrected. He never appealed it.

 

[Tortoise]

wtte "I fired because I thought someone was coming out to attack me"

Yes, quite, he gave false conflicting testimony. It won't help his defence now.