Trial Discussion Thread #29

[minor4th]

According to S.A. law you are not allowed to fire at an attacker (even a perceived attacker) unless you have no other way of escape. OP had a way out. And he knew the law because he passed the firearm proficiency test.

I don't think that's true. I have posted caselaw that says that a person faced with imminent harm is not required to retreat if retreat is possible. It depends on all of the circumstances in the particular case. In this case, Oscar explained why he didn't think that an attempt to escape would ensure his safety (he was on his stumps, he has bad mobility on the tile outside the bathroom, and he would have had to maneuver the stairs).

 

[Murphys_Law]

Hmm, I'm pretty sure he was taken to the medical centre first, then the police station. It was his friend of the family, Brigadier Gerard Labuschagne PhD, who heads the Police’s Investigative Psychology Section, that whisked him away from the crime scene.. before he was booked and spent the next few days in jail.

http://ewn.co.za/Features/oscarpistorius/Witnesses

You are absolutely correct. Thanks.

 

[TipDog]

<snipped for brevity, no disrespect intended>

I think him even dipping his toes into lack of intent was enough to heavily damage his initial putative self-defence claim but that's just my opinion.

These are my thoughts as well.

 

[nastasya]

It is my belief that the extenuating circumstances of Oscar's disability, his documented paranoia, his mental/emotional state and the climate of home invasion in SA will all be argued by Roux in his closing statement as to why Oscar in particular thought there was an intruder in the home and felt that he and Reeva were in imminent danger.

It is my belief that reasonable people like the judge will find this absurd considering OP was holding a 9 mm Parabellum loaded with black talon bullets, and since he willfully placed himself in the room with the perceived danger, directly in front of the person he claimed to be afraid of, when he had multiple alternatives, like leaving the bedroom.

 

[minor4th]

Can you explain the difference between putative SD and regular SD?

I could google but I respect your opinion and think you maybe able to explain better in laymans terms.

Self defense is when there is an actual threat of imminent harm. Putative self defense is when one mistakenly, but genuinely, believes there is a threat of imminent harm.

 

[nastasya]

No problem and I didn't take offense at your post.

I don't think he could have possibly aimed for a specific part of the body, and that's why I do not think he was aiming for the head or heart or leg or whatever - I think he was aiming generally at the person's core. I also do believe that his hearing would be severely impaired for some time after the initial shot. I don't think he can claim that Reeva wasn't screaming - she might have been and he didnt hear it.

I don't know how he could have possibly seen her in there either. Please explain?

Here's how he could have seen her:

He broke the door with the bat. He said he could see her. This is his testimony, not mine.

The evidence shows where he broke the door, and that the location where he stood when he fired the shots is the only place he could have been standing to see her through the broken crack in the door.

 

[liesbeth]

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.

True. But this is where we differ. I do not believe that it is reasonably possibly true that he believed it was intruders.

 

[TipDog]

No problem and I didn't take offense at your post.

I don't think he could have possibly aimed for a specific part of the body, and that's why I do not think he was aiming for the head or heart or leg or whatever - I think he was aiming generally at the person's core. I also do believe that his hearing would be severely impaired for some time after the initial shot. I don't think he can claim that Reeva wasn't screaming - she might have been and he didnt hear it.

I don't know how he could have possibly seen her in there either. Please explain?

BIB 1

I think the first shot was in rage at her, a pause, then the last three were aimed at her screams. I don't buy that he was rendered essentially deaf by the first gunshot.


BIB 2

I'm referring to the theories that he used the bat first, broke crack in door and was able to aim.

 

[steveml]

Do you mean to ask if OP's home is in a nice, middle-class neighborhood, steveml?

If you do I can answer that. No, it's not a nice, middle-class area. It's upmarket. Upper middle-class to rich. No average Joes living there.

I didn't say they were average Joe's, and I'm too tired to go into detail about classes. We'll agree to disagree.

 

[nastasya]

Self defense is when there is an actual threat of imminent harm. Putative self defense is when one mistakenly, but genuinely, believes there is a threat of imminent harm.

Claiming that he did not intend to shoot the gun at the intruder is neither self-defense or putative self-defense.

What exactly is OP's defense?

Two different guns on two separate occasions fired 5 shots without him intending either gun be fired.

 

[TipDog]

It is my belief that reasonable people like the judge will find this absurd considering OP was holding a 9 mm Parabellum loaded with black talon bullets, and since he willfully placed himself in the room with the perceived danger, directly in front of the person he claimed to be afraid of, when he had multiple alternatives, like leaving the bedroom.

But that would go against his personality, A2H.

 

[james83]

Here's how he could have seen her:

He broke the door with the bat. He said he could see her. This is his testimony, not mine.

The evidence shows where he broke the door, and that the location where he stood when he fired the shots is the only place he could have been standing to see her through the broken crack in the door.

for me C and D really give a lot of weight to that theory.

 

[Hatfield]

Self defense is when there is an actual threat of imminent harm. Putative self defense is when one mistakenly, but genuinely, believes there is a threat of imminent harm.

Thank you. That helps.

JMO
The Putative Self Defense does seem like what OP is claiming. In his own mind (no matter how right or wrong) if he truly felt his life was in danger then it could be a valid defense.

The problem he has is some of the evidence (or lack thereof) seems to hurt his use of that defense.

One of the biggest problems for him is he was the aggressor.
He went towards the threat rather than retreating from threat.
And once he was at the door he could have retreated again since it is common sense that if he safely made his way to the threat then he could safely go back to whence he came to get away from threat.

 

[Emz73]

I don't think that's true. I have posted caselaw that says that a person faced with imminent harm is not required to retreat if retreat is possible. It depends on all of the circumstances in the particular case. In this case, Oscar explained why he didn't think that an attempt to escape would ensure his safety (he was on his stumps, he has bad mobility on the tile outside the bathroom, and he would have had to maneuver the stairs).

It is true, just read it but can't find where now. Obviously it depends on circumstances but OPs legs took seconds to put on and they were nearest the escape route.

 

[liesbeth]

I don't think that's true. I have posted caselaw that says that a person faced with imminent harm is not required to retreat if retreat is possible. It depends on all of the circumstances in the particular case. In this case, Oscar explained why he didn't think that an attempt to escape would ensure his safety (he was on his stumps, he has bad mobility on the tile outside the bathroom, and he would have had to maneuver the stairs).

It's in the firearm competency test, minor4th. They give you all sorts of scenarios and ask if you are legally allowed to fire at an attacker. It's the law here that you have to pass the test to get a firearm. And one of the scenarios is if you think there is an attacker you can not fire if you have a way to escape from that attacker.

So for a putative self defense OP would have had to prove that he thought there was no way out. He didn't prove that.

 

[james83]

Here's how he could have seen her:

He broke the door with the bat. He said he could see her. This is his testimony, not mine.

The evidence shows where he broke the door, and that the location where he stood when he fired the shots is the only place he could have been standing to see her through the broken crack in the door.

The more i see those photos the more those shot's look aimed and directed.
Seriously can anyone believe those shots were fired by accident/without thinking, one handed and in the dark.

 

[44ALLAN]

Let's say all the facts are the same but Oscar is a ten year old boy whose parents aren't home.
He thinks it is a burglar and shoots to protect himself and his babysitter.
But it turns out it is the babysitter he shoots.
Would you still have these judgments of premeditated murder and so forth?

Did 5 neighbors hear the babysitter scream for 15 minutes before she was shot and why would the parents leave their gun accessible to a 10 year old?
Ridiculous absolutely ridiculous question fgs !!!!

 

[Julian]

Would you kindly provide South Africa's definition of premeditation? TIA

A provisional answer, from someone who's a lawyer in Holland, not South Africa (the two legal systems are akin to each other, but obviously not the same).

Premeditated murder requires there to be some sort of moment where the murderer, not yet having embarked on the immediate actions which will lead to the actual killing, can and should reflect upon what he is about to do. There is a moment, therefore, where he should rationally stop. He does not, however; he goes on and commits the murder.

If, as has been stated here, Pistorius got into an argument with his girlfriend and then got a gun and shot her, that need not be premeditated at all. Whether it is or is not would totally depend upon the specific circumstances. And those circumstances would be very difficult to determine, given the fact that we effectively have only Pistorius's word for what happened. Please understand that the argument itself - the fact that they fought - would be insufficient.

This is the reason why I personally believe that Pistorius is guilty of murder, but that it has not (yet?) been established that he is guilty of premeditated murder. It is certainly interesting that the prosecution have torn Pistorius's own "version" of events to shreds - well, sort of - but it doesn't establish that Pistorius is guilty of premeditated murder.

 

[Mr Ron]

Van der Merwe said the arguing continued for &#8220;about an hour&#8221;, but she couldn&#8217;t make out what was being said.

She testified to looking outside her window in an attempt to see what was happening but couldn&#8217;t see anything.

She dozed off after trying to block the sound of the argument with a pillow.

The couple woke up after hearing four &#8220;thud sounds&#8221; at around 3am.

&#8220;It sounded like bang bang&#8230;From where I was sleeping, they were shortly one after the other,&#8221; she said.

Van der Merwe said there was &#8220;total silence&#8221; after the shots.

BIB She slept through it.
It just isn't possible that The Burgers heard screams and Van Der merwe didn't when the Burger were around 100 meters further away from Pistorius house than Van Der Merwe was, if Van Der Merwe heard the first sounds she would have heard screams.

BIB: I see what you're saying but, with respect, I think that's an inference rather than what she actually stated. She definitely dozed off after putting the pillow on her head, but then at some stage got up again to see if she could see anything through the window. She couldn't so she then went back to bed (but does not state she went to sleep).

Quote: "I then went back to bed. At around three O'clock I heard 4..."thud - shots" (disputed term, that was what was settled on)

Having re-listened to that portion of her testimony I agree it is possible she was dozing but it is unclear.


Edit:

&#8220;It sounded like bang bang&#8230;From where I was sleeping, they were shortly one after the other,&#8221;

For some reason I missed this bit of testimony, and missed it again in your post. My tired eyes are going to bed.

 

[Cherwell]

Yes but van der Merwe heard no screams of terror. She heard "fighting" voices - almost all of them a woman's voice. I do agree it's natural for her to go on to say it was a woman crying at the end - kind of like the Stipps thinking all the loud bangs were gunshots.

No, I wasn't suggesting that she heard any screaming. My point was that mistaking a man crying for a woman doesn't necessarily mean that that man would sound like a woman if he screamed.