Post sentencing discussion and the upcoming appeal

[mrjitty]

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 ............

Well that is the advice we were given by our crimes professor!

There are of course some famous "little old lady cases" where Judges have bent over backwards to find the right result

 

[Estelle]

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?

The South African Law Journal

http://jutalaw.co.za/products/3601-south-african-law-journal

 

[JudgeJudi]

Well that is the advice we were given by our crimes professor!

There are of course some famous "little old lady cases" where Judges have bent over backwards to find the right result

And famous cases here in Australia where a politician's wife has been out for a long lunch with the girls and had more than one too many, got picked up and charged with drink driving, and the judge has gone out of his way to send her home without even the proverbial slap on the wrist.

 

[KarenUK]

And famous cases here in Australia where a politician's wife has been out for a long lunch with the girls and had more than one too many, got picked up and charged with drink driving, and the judge has gone out of his way to send her home without even the proverbial slap on the wrist.

Have you read Douglas Adams "Dirk Gentlys Holistic Dectective Agency"? One of the characters creates a computer programme called Reason, which works backwards from the answer you want and gives you plausible reasons why this is the right answer (in the book a broke hopeless driver is able to buy a Porsche as even his bankmanager cant find fault with the logic).
A few judges (and some juries) seem to have this programme!

 

[JudgeJudi]

"This is the night I lost the person I most cared about, I don't know how people don't understand that," he said.

We do Oscar, we do understand, but no matter how much you care about yourself, you have to understand that you've lost it all.

http://www.theguardian.com/world/2014/apr/11/oscar-pistorius-accused-tailoring-evidence

 

[jay-jay]

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

.. yes, but then again, a judge is by no means a detective, they are trained in law and that's about the sum of it .. whereas a jury do try to arrive at their verdict by using a certain amount of detective thought processes, together with logic and reasoning, to arrive at their verdicts. I'm not saying they are always right, clearly they aren't and some cases have been successfully appealed, but I find it a whole lot more preferable to a judge who arrives at their own decision with virtually no-one to challenge it like there would be if you had a jury consisting of 12 people who do not always agree and who will go over and over the evidence until such time as they do actually reach a verdict they all agree on (depending on whether the judge has stated it needs to be unanimous) and sometimes this can take weeks.

 

[jay-jay]

.. yes, but then again, a judge is by no means a detective, they are trained in law and that's about the sum of it .. whereas a jury do try to arrive at their verdict by using a certain amount of detective thought processes, together with logic and reasoning, to arrive at their verdicts. I'm not saying they are always right, clearly they aren't and some cases have been successfully appealed, but I find it a whole lot more preferable to a judge who arrives at their own decision with virtually no-one to challenge it like there would be if you had a jury consisting of 12 people who do not always agree and who will go over and over the evidence until such time as they do actually reach a verdict they all agree on (depending on whether the judge has stated it needs to be unanimous) and sometimes this can take weeks.

.. having said that about a jury, I do worry about the future of juries because I am finding, the more I use the internet, the more I realise many people have a very peculiar way of arriving at certain viewpoints and some of them I would find a real worry if they were to be on a jury (not to mention the sheer number of people I've come across recently who are just outright anti-establishment and who will just side against the law because they dislike it that much). Hopefully that is just the internet though, and not actual real life.

 

[jay-jay]

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 .. exactly .. and we've had all this with regard to witnesses, too .. so at the end of the day, why even bother with a trial at all if it can always been said that witness accounts should be dismissed out of hand because they aren't reliable, circumstantial evidence should just be chucked out because that's not reliable either, etc, etc. That's not how trials work, trials take the whole lot into consideration. You cannot only ever convict a criminal by having a video of them carrying out the deed, no-one would ever get convicted!

 

[jay-jay]

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.

Thank you so much for this .. brilliant!

.. would've been even better still had there been transcripts of the ear witness testimonies! :-D

 

[jay-jay]

"This is the night I lost the person I most cared about, I don't know how people don't understand that," he said.

We do Oscar, we do understand, but no matter how much you care about yourself, you have to understand that you've lost it all.

http://www.theguardian.com/world/2014/apr/11/oscar-pistorius-accused-tailoring-evidence

He talks about it as if he lost her to cancer or something ..

.. fgs, HE killed her!

 

[lithgow1]

"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.

One of my favourite 'Kelly'isms' was when Dixon was testifying and fellow fan Robyn Curnow was interviewing Phelps at the end of the day (first under cross I think) and KP was saying things along the lines of 'well he's laying a foundation for the other experts to follow. It's very clever on Oscar's defence's part' etc etc. She turned out to be right, but only because of the slant that Masipa took, not because Dixon was in any way a good witness. Neither of them mentioned that Dixon was poorly prepared, testifying way outside the parameters of his expertise or that his experiments were laughable in their amateurishness whereas every other commentator touched on these elements.

My personal theory is that her approach is a mix of her own liking for OP plus a CNN editorial slant that saw more media mileage in a terrible accident and a heartbroken lover than a cold-blooded killer in a DV scenario. As for Curnow, I think she also shared the view that he was a local hero and didn't want to see him fall plus was hoping for an exclusive interview at some point.

 

[mrjitty]

.. yes, but then again, a judge is by no means a detective, they are trained in law and that's about the sum of it .. whereas a jury do try to arrive at their verdict by using a certain amount of detective thought processes, together with logic and reasoning, to arrive at their verdicts. I'm not saying they are always right, clearly they aren't and some cases have been successfully appealed, but I find it a whole lot more preferable to a judge who arrives at their own decision with virtually no-one to challenge it like there would be if you had a jury consisting of 12 people who do not always agree and who will go over and over the evidence until such time as they do actually reach a verdict they all agree on (depending on whether the judge has stated it needs to be unanimous) and sometimes this can take weeks.

I recently asked a german judge about some of these issues.

A german judge has the advantage of a long experience and even training on witness evaluation, compared to jurors who are amateur.

The Judge is also typically more alive to the trial dynamic and strategy.

And at least the judge must articulate their findings! (These points really come across in common law commercial cases)

The potential weakness was said to be the assessors who can outvote the judge, and may be quite naive.

So that was an interesting perspective!

 

[patCee]

Andre Agassi was so jealous of Friends scene where girlfriend Brooke Shields licked Joey's fingers that he destroyed every tennis trophy he'd ever won

http://www.dailymail.co.uk/news/art...ingers-Joey-destroyed-tennis-trophy-rage.html

Just thinking of the earlier discussion as to whether or not OP's trophies were strewn around.

Apologies to anyone offended by reference to the Daily Mail.............but I couldn't resist.

 

[G.bng]

I have to agree

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

The way I see it whatever they "fancied" the defence had no option since not opposing it would be at best tantamount to accepting the State's points of dispute, even several incorrect ones, and at worst could leave the DT tied in respect of putting forward counter points and possibly scuppering the chance they might have to seek leave for a counter appeal even if remotely possible, (in the UK out of time in a criminal process is usually surmountable so long as a reasonable cause for the delay is presented or the interests of justice can be convincingly argued).

 

[Interested Bystander]

This is one of the easier explanations to understand with respect to the OP and dolus eventualis controversy.

http://constitutionallyspeaking.co.za/category/oscar-pistorius/

 

[Mr Fossil]

Karyn Maughan ‏@karynmaughan 10m10 minutes ago
State has proposed 18 November for date of #OscarPistorius leave to appeal application. Defense hasn't agreed, wants date in Dec @eNCAnews

See also http://www.enca.com/south-africa/pistorius-bid-stave-state-appeal.

The matter is now with Judge Masipa who has communicated provisional dates of her availability to both the State and defence teams. They will now have to work out a suitable date when all parties will be available.

“Obviously I cannot give you those dates now,” Mncube said, saying that it was expected that a final court date was likely to be set by late Friday afternoon.

 

[Mamadoos]

Karyn Maughan ‏@karynmaughan 10m10 minutes ago
State has proposed 18 November for date of #OscarPistorius leave to appeal application. Defense hasn't agreed, wants date in Dec @eNCAnews

See also http://www.enca.com/south-africa/pistorius-bid-stave-state-appeal.

The matter is now with Judge Masipa who has communicated provisional dates of her availability to both the State and defence teams. They will now have to work out a suitable date when all parties will be available.

“Obviously I cannot give you those dates now,” Mncube said, saying that it was expected that a final court date was likely to be set by late Friday afternoon.

Maybe he has a party planned for his birthday (op) on the 22nd & doesn't want any more bad news before!

 

[Chelly]

http://online.wsj.com/articles/state-prosecutors-appeal-pistorius-verdict-1415108448

I just don't understand how Masipa herself will be the judge to decide whether her ruling can be appealed. Can someone help me please?

 

[akp]

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?

Since we now know that the phone was tampered with, isn't it possible that the number was originally stored under some other name, but was changed to `Adriaan Pretorius' ? So should not be surprising if that name does not lead to anything interesting.

Edit: What I wrote is in `response' to the following line in Mr Fossil's Key Questions file rather than the post I quoted above:

Who exactly is ’Adriaan Pretorius’, the name under which he stores this number?

 

[Mr Fossil]

Since we now know that the phone was tampered with, isn't it possible that the number was originally stored under some other name, but was changed to `Adriaan Pretorius' ? So should not be surprising if that name does not lead to anything interesting.

I wondered that too. I concluded that it's possible that the names may have been taken from the Contacts in the 4949 phone, or at least cross checked with it. It was part of one of my questions to Captain Moller.

Carl didn't tamper enough to remove 'BabyShoes' from the Contacts.