Trial Discussion Thread #29

[TipDog]

I dont think he's saying he fired involuntarily or it was beyond his control - I think he's saying he did it without thinking it through or without reflection or without having the actual thought in his head "I am going to pull the trigger now and kill the intruder who's about to attack me."

I think he was saying exactly what he said. And when asked by his own attorney if he fired consciously, he said no.

That means he fired involuntarily.

 

[TipDog]

But that is, in effect, Pistorius's problem. You may well argue that he did, indeed, mean to pull to trigger. That is was a conscious decision. That, in other words, this is a case of putative self defense.

The problem is, however, that in saying - many times, on the stand - that he "did not mean to pull the trigger" - Pistorius is negating the intent which is required for the putative self defense argument.

What he's effectively saying is that he "just shot". He didn't shoot believing that to be just and necessary - he just shot but just because - well, just because it was all soooo frightening.

And if that is the case, he's just a man with a gun who fires on someone without a valid reason.

Which leads us back to murder.

Love this whole post, but the BIB I literally said "Yes!" aloud to.

 

[minor4th]

But that is, in effect, Pistorius's problem. You may well argue that he did, indeed, mean to pull to trigger. That is was a conscious decision. That, in other words, this is a case of putative self defense.

The problem is, however, that in saying - many times, on the stand - that he "did not mean to pull the trigger" - Pistorius is negating the intent which is required for the putative self defense argument.

What he's effectively saying is that he "just shot". He didn't shoot believing that to be just and necessary - he just shot but just because - well, just because it was all soooo frightening.

And if that is the case, he's just a man with a gun who fires on someone without a valid reason.

Which leads us back to murder.

I'm sure Nel will make those arguments, and like I said - the way he testified, he has created difficulty for his defense because now they have to go back and explain what he meant just to get back to their defense of putative self defense.

 

[Julian]

Caselaw and interpretion of the law of putative self defense. It's not that the accused has to believe something to be reasonably possibly true; it's that it has to be reasonably possibly true that he believed what he's claiming he believed (that an intruder was about to come out and attack him)

Hmm, I suspect that's the same as "honestly". Thank you!

 

[BlueShoe]

He has given an explanation as to why he believed it was an intruder and why he thought he was about to be attacked. For purposes of putative self defense, the first inquiry is whether it's reasonably possibly true that he believed that - not whether the belief itself was reasonable.

If it's reasonably possibly true that he believed that an intruder was in the toilet and was coming out to attack him, then the next question is whether his actions in response to that belief were reasonable.

Is this really so? If I, for example, reasonably believe Martians are attacking me (hey, it's reasonable in my own mind) and it is actually some kids hiding behind a bush, I can shoot them, and get away with it? Something must be wrong with this picture. No?

 

[minor4th]

Shooting through the door 4 times is evidence of his fear of an alleged intruder?

If that's the case, then anyone could shoot their intimate partner through a door and claim putative self defense.

No, he testified that he was terrified and afraid for his life. That's what I was referring to as evidence of his state of mind (fear, helplessness, terror etc)

 

[Greater Than]

Yes, I think he intended to kill what he thought was an intruder coming out to attack him - even though he refuses to use the word "intent." Even if he didn't have time to think about whether he wanted the intruder to die or not, he certainly was aware that shooting 4 shots into a tiny space would likely result in death. Either way, that's intent.

If he thought he was shooting to defend himself from imminent harm, then he does not have the necessary "intent" or mental state or mens rea, as we say here in the US, to commit murder. At best it is a negligent killing - i.e. culpable homicide.

You're contradicting yourself. You agree that he intended to kill whoever was in the toilet, but then say at best it's a negligent killing. It can't be both minor. Either he fired with intent or he fired negligently. If he fired with intent, it's murder. If he fired negligently, it's culpable homicide.

If he fired to defend himself from what he perceived to be imminent death or great bodily harm then it's putative self defense, not culpable homicide.

So we both agree he did not commit culpable homicide?

 

[minor4th]

Is this really so? If I, for example, reasonably believe Martians are attacking me (hey, it's reasonable in my own mind) and it is actually some kids hiding behind a bush, I can shoot them, and get away with it? Something must be wrong with this picture. No?

It is not reasonably possibly true that you believed that Martians were attacking you. And if you really did believe that, then I think the defense would be an insanity defense.

 

[Julian]

I'm sure Nel will make those arguments, and like I said - the way he testified, he has created difficulty for his defense because now they have to go back and explain what he meant just to get back to their defense of putative self defense.

Ah, good to read that. Just about to head to bed, and we're mostly in agreement!

Ah well, tomorrow's another day, and all that.

G'night. And thanks to Minor, especially.

 

[TipDog]

I'm sure Nel will make those arguments, and like I said - the way he testified, he has created difficulty for his defense because now they have to go back and explain what he meant just to get back to their defense of putative self defense.

Yes, because OP changed it. They now have to change it back.

 

[TorisMom003]

When OP said he had been through all the photographs many times, and asked Nel to enlarge the photo of the thin cable that was running in front of the stereo speaker, it seemed clear that he has been heavily involved.

The constant note-taking during the trial was also an indication of this. It's uncharacteristic for a defendant to do this, and will no doubt split opinion.

There's very little empathy towards OP due to the nature of the shooting, which is understandable, and human nature makes us expect nothing but remorse.
It doesn't sit well with many people that someone should be defending their actions in such a way, and again this is entirely understandable.

BBM

Uncharacteristic of a defendant to do this where? Because I know of several cases where each one of the defendant's took notes and pretended to be a part of their own defense team. This is not something new that OP came up with. Defendants, esp in the USA, do take notes, talk with their lawyers, add/help their defense.

 

[Emz73]

That's not involuntary action - he's just saying he didn't have time to really deliberate over what he was doing. He's not saying he was unconscious or asleep or having muscle spasms or that aliens took control of his body

He pulled the trigger and he meant to pull the trigger.

I meant "I didn't think" then he pulled the trigger, as being sarcastic. That's no defence.

 

[minor4th]

You're contradicting yourself. You agree that he intended to kill whoever was in the toilet, but then say at best it's a negligent killing. It can't be both minor. Either he fired with intent or he fired negligently. If he fired with intent, it's murder. If he fired negligently, it's culpable homicide.

If he fired to defend himself from what he perceived to be imminent death or great bodily harm then it's putative self defense, not culpable homicide.

So we both agree he did not commit culpable homicide?

Yes, it can be both: he intended to kill the person in the toilet and if that's believed then at best it's culpable homicide. He can intend to kill the person, genuinely, but erroneously, believing that he is lawfully acting in self defense. That takes out the "intent" for murder.

Whether it's culpable homicide or not depends on whether or not it is a reasonable response to shoot through the door, based on the belief that an intruder is coming out to attack him. That I cannot say - I think he could be found guilty of culpable homicide.

 

[liesbeth]

I can't say he proved it but I can say he has given evidence that suggests he did not believe he could get away safely and avoid being shot or attacked.

minor4th, he didn't even check the bedroom door.

 

[minor4th]

Ah, good to read that. Just about to head to bed, and we're mostly in agreement!

Ah well, tomorrow's another day, and all that.

G'night. And thanks to Minor, especially.

Thanks, Julian. I enjoyed the discussion.

 

[TipDog]

BBM

Uncharacteristic of a defendant to do this where? Because I know of several cases where each one of the defendant's took notes and pretended to be a part of their own defense team. This is not something new that OP came up with. Defendants, esp in the USA, do take notes, talk with their lawyers, add/help their defense.

Yes, they do. In fact, I think I'd find it more odd if OP didn't.

 

[minor4th]

Why doesn't he blimin well just say it then!!! That's not self defence either!
Remember Prof James Grant said it was involuntary defence.

Aliens Snort. He may say the devil, angry poltergeists took him over. Was 3am, witching hour.....

Well, I agree that he should have just said it, and trying to talk his way around it didn't help him at all.

 

[Murphys_Law]

Apologies for butting in. Here's an interesting article about premeditation that could help. Or not.

http://ideablawg.squarespace.com/bl...hat-is-murder-in-canada-may-not-be-murde.html

Thankyou for the link Liesbeth. As a Canadian, it gives me some points of comparison.

My understanding of the charge against OP is that of murder, which specifically means killing with both intent and unlawfulness.
Further, the pre-meditation aspect only comes into play at the bail hearing (where incarceration is mandatory unless the accused can present special circumstances) and at sentencing for murder conviction, at which time evidence can be presented to support a penalty length beyond that of murder.

So in summary, if correct, at this clinical stage of the trial Nel only needs to prove murder - killing both unlawfully and with intent.

I welcome any or all corrections to my understanding.

 

[weeeva]

I have a question for those who are believing and/or defending OP.

Why, when he thought he heard the window being opened, didn't he ask Reeva if she'd heard it?

He has said that she was awake and they had just spoken to one another.

An ex-girlfriend testified that in similar circumstances, he woke her to ask her if she had heard anything.

Everyone on this forum seems to agree that if they hear a noise at night, the first thing they do is check with their partner if they heard it.

All the earwitnesses bear this out. All three couples spoke to one another about the noises they heard that night.

Maybe because he was able to identify the sound as the window opening, and went straight into freeze fight or flight mode. In previous occasions perhaps he was unable to identify where the sound was coming from or what the sound could be. As for the other three couples speaking to one another, they were not in the same state of mind as OP, the sounds they were hearing were coming from someone else's house not their own. I am confident they would have reacted differently if the noise was in their own house, so they were not experiencing a life or death situation that OP believed he was facing. Also we do not always react in exactly the same way to similar situations at all times. We are all different . BTW I am not a supporter of OP and I do not feel I am defending him either. In this particular case the evidence is not as black and white to me as it seems to be for the majority.

 

[minor4th]

Thankyou for the link Liesbeth. As a Canadian, it gives me some points of comparison.

My understanding of the charge against OP is that of murder, which specifically means killing with both intent and unlawfulness.
Further, the pre-meditation aspect only comes into play at the bail hearing (where incarceration is mandatory unless the accused can present special circumstances) and at sentencing for murder conviction, at which time evidence can be presented to support a penalty length beyond that of murder.

So in summary, if correct, at this clinical stage of the trial Nel only needs to prove murder - killing both unlawfully and with intent.

I welcome any or all corrections to my understanding.

Premeditation carries a longer minimum sentence as well. Nel is trying to prove murder and premeditation.