Post sentencing discussion and the upcoming appeal

[lithgow1]

So what sort of grounds would the defence by likely to oppose the appeal on? That the decision and sentence has precedence in prior cases? That it is essentially legally sound so the appeal is frivolous? A lawyer, a lawyer, my kingdom for ... sorry I'm reading a bio of Richard III - a more likable person IMO than Oscar Pistorius from what I've gleaned thus far.

 

[44ALLAN]

Well it was basically mentioned.

By photos, and testimony

Questioning him direct on that point doesn't really achieve anything except another difference of opinion.

It's just the judge decided to ignore lots of key evidence.

I can see your point but you could then say that about all the other photographic evidence surely !
Why mention and XE on the duvet/the jeans /curtains being open etc?
Just show the photographs and let them speak for themselves?

Nahhhh.....he said they went to bed at 10 o clock.
Nel should have hammered home in X that the bed hadn't been slept in and that one side had the pillows propped up as if someone had been reading. AIMHO of course

 

[Val1]

So, why appeal at this stage then?

If it's inevitable that an appeal that will be heard by the Supreme Court (either with or without Masipa's blessing) then why make a point of it now? Or is it just a pi**ing contest?

Also, it seems that Appeal related law is very dry and very academic. Would that traditionally be handled by the defence lawyer (i.e. Roux) or by a more specialised lawyer?

Imo, like I said previously, A types only see black or white, win or lose and anything that isn't a win just isn't acceptable... just look at CP's quote above, he/they would rather die than "lose".

 

[Val1]

I can see your point but you could then say that about all the other photographic evidence surely !
Why mention and XE on the duvet/the jeans /curtains being open etc?
Just show the photographs and let them speak for themselves?

Nahhhh.....he said they went to bed at 10 o clock.
Nel should have hammered home in X that the bed hadn't been slept in and that one side had the pillows propped up as if someone had been reading. AIMHO of course

BBM Don't you mean, to make it look like someone had?

 

[G.bng]

Its the first and cheapest opportunity for the defence to try to win this.

For instance they may hope to be successful on the procedural point.

Once it goes up the SCA, then you are in the big expensive appeal ball game.

Although you are also correct, that if NPA appealed Masipa's refusal of leave to appeal to the SCA then in practice the SCA is probably going to consider the merit of the appeal anyway in determining whether they want to hear it.

I seem to recall either Grant or Dadic tweeted not that long ago that an appeal was nowhere near as expensive as a trial.

And on face value it makes sense since basically an appeal is arguing on paper on points of law, so apart from a few days to present verbal arguments, (some appeals in the UK and I'm sure in the US are usually on the papers albeit I believe in most cases, especially for those without representation are given the choice to do so verbally but warned it will be heard much later) there's not much physical presence in court.

Just asking.

 

[jay-jay]

BBM I think the pics of the bed pretty much shows us that, since OP claims to have actually slept for 4-5 hours on the left side of the bed and that is the only side that looks even remotely disturbed.

Sorry for keep stating it but this is just another one of my 'gripes' with the Prosecution.
OP should have been asked in court why the bed looked as though it hadn't been slept in and why one pillow was propped up!
He said they both slept in it and then he crawled over it and the duvet looking for Reeva..............the photograph shows he was lying why wasn't it mentioned?

.. yes, it did annoy me that Nel seemed to spend so much time on things like OP having had the outside of the house re-painted, and then it went on and on about the last time he had it painted, and then all the residents meetings, blah blah .. when he could've been questioning him .. no, 'interrogating' him (there wasn't nearly enough of that, imo, he was treated with kid gloves right the way through) on other things that we have picked up on, like this one about the propped up pillow.

 

[jay-jay]

Well it was basically mentioned.

By photos, and testimony

Questioning him direct on that point doesn't really achieve anything except another difference of opinion.

It's just the judge decided to ignore lots of key evidence.

BBM .. but this, to me, seems like the whole problem with this trial .. I swear that all that kind of evidence would be presented in a trial in the UK and that all of those things in the crime scene, and the crime, would be laid out and the accused interrogated on them, and then for the jury to decide whether each and every one of those things adds up to a murder having been committed. The way this trial has been conducted, with just one judge, and her selecting two people she knows will agree with her, is able to decide her verdict first based on her own feelings about the accused, and then work backwards in order to arrive at the sentence (or non-sentence .. as I firmly believe she didn't want to give him anything at all, but felt she had to because it would just look waaay too obvious if she didn't) and then cherry pick 'evidence' along the way. It is, in itself (regardless of any possible outside intervention or pressure) an extremely dubious way of carry out trials, imo. It all seems totally different to how it works in the UK, and ALL of these kinds of evidence, circumstantial or not, would be taken into consideration by a jury.

 

[soozieqtips]

Judge Thokozile Masipa has set a date to hear the State's arguments as to why it should be given leave to appeal the Oscar Pistorius judgement and sentencing.

Arguments will be heard in the High Court in Johannesburg on November 18.

http://news.iafrica.com/sa/969999.html

 

[JudgeJudi]

Sure that link is the right one since there is only a news sound bite that the defence is opposing the State's appeal nothing by William Booth about why it could appeal !

Thanks G.bng for picking that up. This should work. I've amended the earlier post.

http://www.news24.com/Live/SouthAfr...defence-may-oppose-the-States-appeal-20141029

 

[patCee]

For anyone who wants to catch up on earlier docs/transcripts re the trial:

http://ewn.co.za/Features/behindthedoor#transcripts

Scroll down to bottom of the page.

 

[Estelle]

http://mg.co.za/article/2014-11-06-breathless-oscar-book-muddles-law

Criticism of Barry Bateman's and Mandy Weiner's book, "Behind The Door".

 

[JudgeJudi]

James Grant @CriminalLawZA · 3h 3 hours ago

Defence to oppose application for leave to appeal - no surprises - but I can't see Masipa refusing leave - too much at stake.

 

[mrjitty]

So, why appeal at this stage then?

If it's inevitable that an appeal that will be heard by the Supreme Court (either with or without Masipa's blessing) then why make a point of it now? Or is it just a pi**ing contest?

Also, it seems that Appeal related law is very dry and very academic. Would that traditionally be handled by the defence lawyer (i.e. Roux) or by a more specialised lawyer?

You mean oppose leave to appeal.

Leave to appeal is an ancillary process to prevent frivolous or improper appeals getting in to the Supreme Court

So at this stage its not a full hearing of the legal issues. Instead it is a fast review to check the state case discloses valid legal grounds for appeal.

So the defence might fancy their chances of stopping this at Masipa or at the Supreme Court on procedural grounds.

ETA:

In the UK, leave to appeal to the criminal division of the Court of Appeal is "on the papers"

 

[mrjitty]

James Grant @CriminalLawZA · 3h 3 hours ago

Defence to oppose application for leave to appeal - no surprises - but I can't see Masipa refusing leave - too much at stake.

I have to agree

But if you are Roux, you'd fancy your chances with Masipa rather than in the Supreme Court

 

[mrjitty]

BBM .. but this, to me, seems like the whole problem with this trial .. I swear that all that kind of evidence would be presented in a trial in the UK and that all of those things in the crime scene, and the crime, would be laid out and the accused interrogated on them, and then for the jury to decide whether each and every one of those things adds up to a murder having been committed. The way this trial has been conducted, with just one judge, and her selecting two people she knows will agree with her, is able to decide her verdict first based on her own feelings about the accused, and then work backwards in order to arrive at the sentence (or non-sentence .. as I firmly believe she didn't want to give him anything at all, but felt she had to because it would just look waaay too obvious if she didn't) and then cherry pick 'evidence' along the way. It is, in itself (regardless of any possible outside intervention or pressure) an extremely dubious way of carry out trials, imo. It all seems totally different to how it works in the UK, and ALL of these kinds of evidence, circumstantial or not, would be taken into consideration by a jury.

Well there is of course a stylistic difference because in a jury trial you have to explain for the jury how all the evidence & inferences and law fits together

But in a judge trial - you do not of course start teaching the judge how to evaluate circumstantial evidence and make inferences. And of course the jury is a blackbox who don't explain what facts they found, or even if they approached the case logically to be frank.

If you read a lot of complex commercial cases you will see sometimes the same thing happens in the UK where the judge seemed to feel the way to the result they wanted

 

[JudgeJudi]

http://mg.co.za/article/2014-11-06-breathless-oscar-book-muddles-law

Criticism of Barry Bateman's and Mandy Weiner's book, "Behind The Door".

"The clip-job nature of the book is most evident in the way the authors engage with criminal law. They make use of University of the Witwatersrand associate professor James Grant and the University of Cape Town’s Kelly Phelps. Grant generally does a good job; Phelps borders on the incomprehensible". :floorlaugh:

... there is similar confusion in Phelps’s analysis of dolus eventualis, which she describes as “such a technical part of the law”. Any lawyer who has read Justice Fritz Brand’s luminous exposition of dolus eventualis in State vs Humphreys (2013) would be able to guide a lay reader as to its meaning and scope".

Anyone not familiar with "our Kelly Phelps" should know she's a consummate Pistorian through and through. Even when OP had a devastating time in court during cross-examination, Kelly would come out smiling saying something like, "Yes, he did really well this morning". I loved listening to her ludicrous comments.

A good review to turn people off buying it. Most people who have commented are similarly not impressed at all.

 

[Rebellin]

Maybe its was reeva call securety and oscar end it (every thing is fine ) thats why the phone must delite ?

 

[mrjitty]

When i was a law student, the best legal analysis of topical cases always used to appear in the New Zealand Law Journal.

Does RSA have an equivalent?

And has anyone written about the case?

 

[JudgeJudi]

Well there is of course a stylistic difference because in a jury trial you have to explain for the jury how all the evidence & inferences and law fits together

But in a judge trial - you do not of course start teaching the judge how to evaluate circumstantial evidence and make inferences. And of course the jury is a blackbox who don't explain what facts they found, or even if they approached the case logically to be frank.

If you read a lot of complex commercial cases you will see sometimes the same thing happens in the UK where the judge seemed to feel the way to the result they wanted

The main difference, to me, between juries and a judge and assessors is that juries will decide the facts but are influenced by their emotions whereas a judge and assessors will base their decision on the law. If I was guilty I'd want a jury and if I was innocent I'd take a judge.

However, in this case ............

 

[Mr Fossil]

Maybe its was reeva call securety and oscar end it (every thing is fine ) thats why the phone must delite ?

Hi and :wagon: Rebellin.

Interesting idea, but the calls with Security came after Reeva was shot and after Oscar had called Stander and Netcare. Reeva was probably (almost certainly) already dead. The call records come from Vodacom so can't be tampered with. The deletions IMO will relate to WhatsApp message content which may have been incriminating and certainly embarrassing (e.g. with Jenna Edkins and maybe others).

ETA: I like this kind of lateral thinking and I'm reconsidering my answer: what if Oscar left the phone on the floor by Reeva as he ran downstairs to open the door etc. after speaking with Netcare, and Reeva pressed the first contact she could ('Adriaan Pretorius') and maybe even disconnected the call herself as she fumbled with the phone? Then she hits Voicemail accidentally. Oscar returns, cuts off the Voicemail call and answers the call back from Security. I can't say it's impossible ... but wouldn't it be too much of a coincidence that the person she called was Security unless she knew the name or it was first in the list?