Oscar Pistorius - Discussion Thread #69 *Appeal Verdict*

[aftermath]

Didn't Taitz call Professor Jonathan Burchell SA's leading criminal law expert?

Clearly this will be seen as a bias opinion. IIRC he looks about 12 so that will be held against him unless he's seen as one of those young upstarts with all that lovely fresh knowledge.

Do you happen to know off hand how many ' expert' commentators disagreed with Masipa in terms of the DD verdict?

 

[Trotterly]

Do you happen to know off hand how many ' expert' commentators disagreed with Masipa in terms of the DD verdict?

No, but there were a good number who thought there was insufficient for DD before the trial.

Unfortunately the failure of the DD has "leaked over" into the discussion of DE. In short the bias set in and it is near impossible to shift.

 

[mhiforme]

The critique of Burchell by Grant is good stuff.

I wonder if he ever responded?

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/



Personally I think Burchell is wrong about this - and this precise argument was made by Roux before the SCA and rejected

Roux was fixated with the idea that for a moment OP might have thought it could have been Reeva

Anyway - at this point I think we can say that the SCA has definitely held against Burchell on this point.

What IS interesting about Burchell is he goes some way to explaining Masipa's judgement.

The criticism of Burchell is by Grant, a member of the PT....no bias here whatsoever

 

[mhiforme]

It's a false equivalence in any event.

Prof Grant is a recognised criminal law expert and official member of the prosecution team.

Steyn wrote some blogs about the case which are not authoritative.

Good luck to Roux if he can make something of those submissions - but as we saw with the SCA - they don't take kindly to being referred to lightweight articles.

Prof. Grant and Steyn both had the same start in this case so what's the difference?

Grant started by writing posts on his blog in favour of a conviction. These were acknowledged to have been read by the PT and shortly thereafter, he was hired on.

The same process has taken place with Steyn and the DT though Steyn hasn't been hired on just yet.

There's no difference in the process.

 

[mhiforme]

You are not alone, the following are some of the many comments by legal experts after her ruling. I have yet to find experts of a similar standing who agree with Masipa


Johann Engelbrecht SC said Masipa's application of the dolus eventualis test was wrong. 'I'm shocked. She is off the track. A human being was shot, regardless of who he thought it was.'


Professor Pierre de Vos said Masipa had got it wrong. 'If you meant to kill X, but you make a mistake and killed Y, it doesn't automatically exclude murder.'


Martin Hood said he was shocked by the ruling, 'I think she's going to get quite a lot of criticism from the judiciary and the legal system,' said the Johannesburg-based lawyer. 'The consensus is that she hasn't got it right


Llewelyn Curlewis , Law Society of the Northern Provinces president, said there were many inconsistencies in Masipa's argument


Ulrich Roux, Criminal Defence lawyer, said Masipa's ruling meant that 'Pistorius subjectively did not foresee (dolus eventualis) that the shooting would lead to the death of someone. Obviously the judgment needs to be studied but it is surprising


Stephen Tuson, law professor at Wits university, said: 'I think the verdict on premeditated murder is acceptable however her reasoning on dolus eventualis is flawed and I think the state would arguably be able to appeal


Jan Henning SC, former NPA deputy head said, ‘It is very strange. I don't know what to say, because it is so far from the bus. It doesn't make sense'


Professor James Grant, of the Wits School of Law, said 'the problem is that Masipa has found that he did not intend to kill, but that is not the question and it was not his defence, it seems as if she arrived at the conclusion by making a mistake of law relating to whether it matters who was behind the door’

This list is irrelevant because this isn't a popularity contest or an election where numbers count.

I don't have the time right now to build a similar list for you but after the trial, there were many lawyers that sided with Masipa saying that in other cases where a house mate was shot, CH was the right verdict and a sentence of 5 years was appropriate for a first time offence. Google is your friend

 

[Trotterly]

My question was in response to your post #871 shown below-- I was hoping you could elucidate on how the SCA did not take a properly subjective view of Oscar's testimony regarding his intentions to shoot or not.

Instead you appear still insisting that it was legitimate to use lethal force in response to a noise when conditioned by a general state of fear. Not sure we are on the same page here.

First accepting that OP genuinely believes Reeva is in the bedroom.

It is then perfectly reasonable to think that a window opening at 3 am is an intruder. He takes the gun with him to try to "get the intruder to leave". Not what I would do but its reasonably possible that he would do this.

At the door he hears the door opening and shoots before he sees it open. It's at this point that a proper subjective view was not taken. When as an anxious disabled man on his stumps he would know that the intruder would immediately be able to get the better of him whether they were armed or not. It is reasonably possible that he thought he was justified in firing to save his own life.

It is reasonably possible that the belief that this was a dangerous intruder had not altered. They did not identify themselves.

 

[Belgarion]

This list is irrelevant because this isn't a popularity contest or an election where numbers count.

I don't have the time right now to build a similar list for you but after the trial, there were many lawyers that sided with Masipa saying that in other cases where a house mate was shot, CH was the right verdict and a sentence of 5 years was appropriate for a first time office. Google is your friend

Well it seems 5 judges of the SCA disagree with you or you disagree with them. Whatever, Pistorius is now branded a murdered and a long prison sentence awaits, that's all that matters

 

[Trotterly]

Prof. Grant and Steyn both had the same start in this case so what's the difference?

Grant started by writing posts on his blog in favour of a conviction. These were acknowledged to have been read by the PT and shortly thereafter, he was hired on.

The same process has taken place with Steyn and the DT though Steyn hasn't been hired on just yet.

There's no difference in the process.

Whilst I'm sure they are both lovely people the status of the "academic" has been on a bit of a roller coaster ride today. Quite honestly I don't think it's worth arguing over any more.

 

[Trotterly]

Well it seems 5 judges of the SCA disagree with you or you disagree with them. Whatever, Pistorius is now branded a murdered and a long prison sentence awaits, that's all that matters

They were all speaking with one mind that's for sure.

 

[soozieqtips]

They were all speaking with one mind that's for sure.

In other words, they all agreed OP should have been convicted of murder. Unless you're suggesting that Leach was the 'one' mind and the others just went along with him. LOL.

 

[Marfa Lights]

Yes this was my starting point when the whole lawfulness thing came up, what seems like a lifetime ago now!

It makes sense and keeps the focus in the right place.

Well, Trotterly, this certainly does explain where you have been coming from all this time.

It also explains a lot about where Masipa may have gone astray if she subscribed to Burchell's peculiar logic in this case:

http://www.bdlive.co.za/opinion/2014/09/17/masipas-decision-to-acquit-oscar-of-murder-justified

"In the Pistorius case, the relevant inquiry into dolus eventualis would be: did the accused foresee the possibility of bringing about the unlawful death of Steenkamp and nevertheless go ahead?"

The only way I can make sense of this business of "notionally ruling out Reeva" is if Burchell is somehow trying to analyze intent for Dolus directus.

It is as if he is saying that: if Oscar (A) intended to kill the person behind the door (B) and mistakenly kills Reeva (C) then he would only be guilty of murdering the person behind the door (which unfortunately due to error in objecto turned out to be Reeva) if he had actually intended to kill her in the first place -- and Aha! That can't be true because he thought she was in the bedroom! In other words, he did not think Reeva was in the toilet-- (he had already notionally ruled her out of the category of possible victims)-- and therefore he can't be guilty of murdering her.

Sounds like a test for DD to me...

However, if, as Masipa rightly concluded, Pistorius’s evidence that he genuinely believed that he fired the shots at an intruder, not Steenkamp, was reasonably or possibly true, then Pistorius had already notionally ruled Steenkamp out of the category of possible victims when he fired the shots.

Of course, if the ultimate victim behind the toilet door had turned out to be a nosey neighbour, investigative journalist or a hardened house-breaker this would clearly have been an irrelevant issue of identity. But, the error in objecto rule cannot apply when the actual victim is someone who has already been notionally ruled out by the accused as a potential victim. (Emphasis mine)

This last statement IMO would only make sense if you are testing for Dolus directus... then yes, of course, you could not have had direct intent to kill them if you held the honest believed they were in the other room.

However, if we are to believe your intruder story, and that you went to confront the intruder with your gun for protection and then got scared at a noise in the toilet and killed the person behind the door in putative private defense... then for consideration of DE we are not concerned with where you thought Reeva was. We are concerned with your intentions toward whoever was in the toilet.

 

[Marfa Lights]

First accepting that OP genuinely believes Reeva is in the bedroom.

It is then perfectly reasonable to think that a window opening at 3 am is an intruder. He takes the gun with him to try to "get the intruder to leave". Not what I would do but its reasonably possible that he would do this.

At the door he hears the door opening and shoots before he sees it open. It's at this point that a proper subjective view was not taken. When as an anxious disabled man on his stumps he would know that the intruder would immediately be able to get the better of him whether they were armed or not. It is reasonably possible that he thought he was justified in firing to save his own life.

It is reasonably possible that the belief that this was a dangerous intruder had not altered. They did not identify themselves.

I think we were originally discussing the topic of Oscar's testimony about how he repeatedly said that he did not intend to shoot, was not thinking, the gun went off before he knew it, he had no intention to shoot at the door or to shoot at any one, and on and on... and you thought the SCA should have given more weight to his less frequent comment that he shot because he had a fright and thought someone might be coming out to attack him. I don't see how either court could very well ignore his dogged testimony that he did not intend to shoot. It was sort of his main thesis.

But if you want to discuss what evidence the courts had available from which they could infer what Oscar was subjectively thinking, that's fine too.

I agree that it could be reasonably possibly true that he thought an intruder might have entered his house.
Many of us have heard a something go bump in the night and have had to confront the same situation and fears at 3:00 a.m.

Masipa, however, explicitly disregarded the defense claims that his particular anxieties and heightened fears as a disabled person would help justify his unlawful over-reactions or irrational response to merely hearing a noise in his bathroom. I don't think you can now expect that the SCA should have given more weight to this aspect of his defense.

However the court does have to consider, subjectively speaking, what Oscar was thinking after he heard the bathroom window slam open and how he then opted not to flee the bedroom or push a panic button to call security. They have to try to get in the mind of this frightened insecure man (on his stumps no less), who arms himself and decides to go confront the dangerous intruder(s). They will note how he paused to assess the situation from the relative safety behind the passageway wall, yet amazingly he still did not take the opportunity to identify the person inside the toilet and determine if they represented a threat. I believe it was at this point that his actions slipped beyond being merely negligent by not locating Reeva first, and it was at this point that his intentions became murderous. This was proven by the fact that he then proceeded with reckless disregard to take the life of the person behind the toilet door without any legitimate basis for thinking the situation called for the use of lethal force. It had to be said then that he did not hold an honest belief that he had no other option but to kill in order to save his own life.

I think that is taking a pretty subjective view of what happened that night.

 

[mhiforme]

In other words, they all agreed OP should have been convicted of murder. Unless you're suggesting that Leach was the 'one' mind and the others just went along with him. LOL.

You make a great point here.

There were unsubstantiated, silly accusations that Masipa didn't write her own verdict, but rather one of the accessors wrote it and Masipa was forced to read it for the first time while on the bench, fumbling her way through.

If that's the case, there's nothing to say that Leach didn't bully the other SCA members to his own point of view. He was the most vocal during the hearing with the other SCA members mostly silent like mice during the hearing.

 

[Datchery]

Fascinating discussion. My quandary here is that I think Pistorius being convicted of murder is the just outcome, but I'm not sure that it is legally correct, so far as the SCA (as opposed to Masipa) is concerned. Or, at the very least, I think it is being selectively applied.

IMO, Pistorius should have been convicted of DD at the original trial. His "intruder" story was a fairy tale. He had no rational basis for believing that the person in the bathroom was anyone other than the other person in his home. If the court is obliged to accept "well, I thought the other person living here was still in bed -- my bad!" as a valid defense for shooting people in the dark, it would be almost impossible to convict anyone for crime of passion killings with no witnesses.

However, if the SCA was obliged by Masipa's ruling to accept that OP believed an intruder was present, the verdict of murder seems inappropriate to me.

I am a woman who lives alone. No one else but my landlord has a key to my apartment. If tonight I were to wake up at 4AM to find an unknown person in my bathroom, I can be pretty darn sure that person is not in there for any good reason. I would be scared out of my mind, and the last thing I would be doing is considering whether or not my actions met lawful standards of self-defense. My apartment is small, and the most natural thing to do would be to exit as quickly as possible. But if for some reason I couldn't -- like, perhaps, being hampered by not having legs, or (if I actually HAD gone to sleep with someone next to me in bed) worrying about another person I couldn't wake without tipping off the intruder - and had a firearm, well, I'm far from sure I wouldn't use it.

I strongly suspect that were this to happen in SA, and I wound up killing an actual intruder in my home (armed or not), I would not be facing a 15 year murder sentence.

Again, no pity for OP, because I think he is actually guilty of DD. But I agree with those who think the Court is using DE as a consolation prize because the law doesn't allow them to retry DD at this point. If OP had killed a burglar in his home that night, we wouldn't be having the same kind of discussion.

 

[Belgarion]

You make a great point here.

There were unsubstantiated, silly accusations that Masipa didn't write her own verdict, but rather one of the accessors wrote it and Masipa was forced to read it for the first time while on the bench, fumbling her way through.

If that's the case, there's nothing to say that Leach didn't bully the other SCA members to his own point of view. He was the most vocal during the hearing with the other SCA members mostly silent like mice during the hearing.

As you say the allegations that Masipa didn’t write her own verdict were indeed silly and unsubstantiated. Likewise then I’m sure you will agree your suggestion that somehow Justice Leach bullied the rest of the bench should also be regarded as equally silly and unsubstantiated.

 

[Trotterly]

In other words, they all agreed OP should have been convicted of murder. Unless you're suggesting that Leach was the 'one' mind and the others just went along with him. LOL.

For whatever reason he took the lead and I'm sure many of the words are his including the Shakespearian flourish. What sticks in my mind is the determination that wtte that we all get our houses broken into but you just suck it up and deal with it like a man. Kind of said it all really.

 

[mrjitty]

The criticism of Burchell is by Grant, a member of the PT....no bias here whatsoever

These slurs can not be allowed to stand.

At the time Grant wrote his pieces he was nothing to do with the Prosecution team.

He was a law school professor who wrote analysis for his classes. He came to prominence only via his high quality analysis during the trial.

Burchell's analysis is recognised by many experts to be incorrect.

Even students in the discussion thread point out the obvious logical flaw in his argument.

Given that the argument was rejected by the full bench of the SCA, I think we can safely say it is not good law.

Regardless of whether OP is successful in the Con Court, the SCA also accepted Grant's framing of the errors on DE

So I think we can now also safely conclude that Grant was right about the legal errors.

The ConCourt is not about to rewrite the law of DE

 

[mrjitty]

Prof. Grant and Steyn both had the same start in this case so what's the difference?

Grant started by writing posts on his blog in favour of a conviction. These were acknowledged to have been read by the PT and shortly thereafter, he was hired on.

The same process has taken place with Steyn and the DT though Steyn hasn't been hired on just yet.

There's no difference in the process.

Again a baseless claim.

Grant never wrote a single piece "in favour of conviction"

He wrote analysis of the legal errors on the face of the judgement - as one would expect from a top criminal professor working in RSA.

Is Steyn a leading constitutional scholar or well known advocate in the area?

 

[mrjitty]

For whatever reason he took the lead and I'm sure many of the words are his including the Shakespearian flourish. What sticks in my mind is the determination that wtte that we all get our houses broken into but you just suck it up and deal with it like a man. Kind of said it all really.

Clearly you have not read any other Appeal Court judgements.

One judge always writes the lead judgement.

Other Judges may write a supporting judgement if they feel strongly on a specific aspect of the case, or a dissenting judgement.

 

[Trotterly]

Clearly you have not read any other Appeal Court judgements.

One judge always writes the lead judgement.

Other Judges may write a supporting judgement if they feel strongly on a specific aspect of the case, or a dissenting judgement.

Clearly you misunderstood. "For whatever reason" - do you know why it was him?

Oh and I've read a few.