Trial Discussion Thread #29

[minor4th]

I think the following redirect examination well establishes that OP's defense is putative self defense and not involuntary action. If anyone else is still confused and thinks the defense has changed, that's fine, but I obviously disagree.

ROUX: When you talk about an "accident", what is it that you mean by that?

OP: I mean the situation as a whole. It wasn't meant to be.

ROUX: Now, when you were standing with your firearm pointing pointing to the toilet door, what emotions did you experience?

OP: I was terrified. I feared for my life. I was scared; I was thinking about what could happen to me and to Reeva. I was just extremely fearful and overcome with a sense of terror and vulnerability

ROUX: And when you heard the noise that you interpreted to be the door opening, what was the feeling or the emotion that you experienced?

OP: It was just complete terror and helplessness, m'lady.

(Roux asks him to repeat)

OP: It was complete terror and just a feeling of helplessness, not being able to have anything to do m'lady, not being able to defend myself

ROUX: Did you consciously pull the trigger or not?

OP: Not, m'lady. I didn't think about pulling the trigger. As soon as I heard the noise, before I could think I pulled the trigger.

ROUX: But you pulled the trigger?

OP: That's correct, m'lady.

(Nel pops up and makes comment about leading questions and asks the court to be vigilant - Roux agrees)

Roux shows pictures of jeans, duvet and they are in different positions and now the jeans are no longer turned inside out.

Roux mentions bail affidavit ..

ROUX: Was it at a time when you had access to the statements in the docket?

OP: No ...it was before inspecting officer Hilton Botha even gave his evidence, m'lady

ROUX: When you were asked to scream in the test done, do you know if any equipment was used?

OP: I remember some equipment was used, m'lady. I'm not sure as to what tests were done. (blah blah ..)

Then Roux hands out copies of Valentine's card and has OP read it

Oscar Pistorius Trial: Tuesday 15 April 2014, Session 2 - YouTube

 

[BritsKate]

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.

Thank you for the explanation. I was hoping you too were an attorney.

Try as I might, I really haven't found a 'concrete' answer on the legal definition of premeditation. Like America, I've read it can be formed shortly before committing a crime but commentary by a South African criminal defence attorney concluded that premeditation is held to a higher standard than in America - which is an obvious reference point for many of us. And I've read that multiple wounds could even be used to argue premeditation. So, it's become pretty muddled.

Much appreciated answer.

 

[minor4th]

(BBM)

The part in bold does not seem correct, Minor. In the scenario you envision, it's not a question of intent, but of unlawfulness*. If Pistorius shot thinking there was a burglar in the toilet and that he had to protect himself from that burglar, he shot with intent. That is not in dispute.

The only question then is whether the shooting was lawful.

This why it is so important whether or not Pistorius is claiming that he "shot accidentally" or whether he is claiming he shot to defend himself. The first negates intent; the second requires it.

As for Roux's "redirect" - as I've said before, I seen no reason at all why this would change the basic duplicity of Pistorius's defense (his own defense, as testified to on the witness stand).

______

(*) Murder is the unlawful and intentional killing of someone. If you think you have to kill someone in order to protect yourself, you are killing that person intentionally. However, you (think you) are doing so lawfully.

No, the question is whether he thought he was lawfully shooting in self defense. It clearly wasn't actually or lawfully self defense, as there was no actual intruder.

 

[Val1]

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?

I suppose it depends on how much you believe his version, OP himself stated that when he first used the bat on the door that he broke a small piece off that he was able to peer through and see RS. Nell interrupted him to clarify it and OP apparently(off camera) seemed to correct himself and then said it was the right panel that broke off at which point he reached in for the key and it wasn't there so broke more of the door down to get in and find it when he saw it on the floor.

At 31:00 is where OP testifies a small piece(he then corrects himself and apparently identifies it was the right panel) breaks off the door when he hit it and he peered in and saw RS.
Oscar Pistorius Trial: Tuesday 15 April 2014, Session 1 - YouTube

 

[minor4th]

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.

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.

 

[Emz73]

Just wanted to say my sisters a lawyer in the UK, she believes he didn't know Reeva was behind the door because she felt sorry for him when he cried/howled on the stand!

So much for any inside help for me *rolls eyes*

 

[Julian]

I think the following redirect examination well establishes that OP's defense is putative self defense and not involuntary action. If anyone else is still confused and thinks the defense has changed, that's fine, but I obviously disagree.


Oscar Pistorius Trial: Tuesday 15 April 2014, Session 2 - YouTube

I don't think it establishes anything except confusion. Pistorius clearly has been trying to do two things which, in his mind, are both advantageous, but which contradict each other.

Now, it might well be that the judge will be lenient on him, and will indeed assume that his defense is that of putative self defense only.

However which way one looks at the matter, though, Pistorius has clearly made his own defense a lot more difficult. He has damaged himself greatly, I feel.

 

[liesbeth]

Ugh, the last few pages have not been rivoting to me so I have just read a few posts on each page. But people seem to be placing the wrong emphasis on "Premditation" IMO. OP is charged with Murder, the Premeditated Murder is an enhancement that if he is found guilty of may/will increase his sentence. Also, premeditated seems to mean he wanted Reeva to die from his actions that night, not that he formulated some grand or even simplistic plan.

The State has laid out the case that there was an argument between OP and Reeva, she fled to the WC and locked herself in, OP decided to fire four bullets at her knowing full well that she was likely to be killed, and Reeva was killed as a result. So yes, I do believe that the Sate has proven that OP committed Premeditated Murder. And no, I do not believe that OPs testimony and the weak expert testimony and the weak defense cross examination of the witnesses has even so much as given quality lip service to his defense of putative self defense.

I hear you. I believe it will come down to who the judge believes. If she believes OP's version then she will have to believe that Burger, Johnson and both Stipps are mistaken when they say that they heard both a man and woman scream that night.

 

[minor4th]

Thank you for the explanation. I was hoping you too were an attorney.

Try as I might, I really haven't found a 'concrete' answer on the legal definition of premeditation. Like America, I've read it can be formed shortly before committing a crime but commentary by a South African criminal defence attorney concluded that premeditation is held to a higher standard than in America - which is an obvious reference point for many of us. And I've read that multiple wounds could even be used to argue premeditation. So, it's become pretty muddled.

Much appreciated answer.

There is no concrete definition of "premeditation" that I can find. The caselaw suggests that it involves some amount of planning - something beyond a moment. From what I have read, premeditation in SA is a bit higher standard of reflection and planning than in the US. But it is not crystal clear and it is also not totally consistent from case to case.

 

[sorrell skye]

I read it was putative private self defence as in he shoot in self defence not in agreement of self defence laws but he didn't know that it was against the law. The person "thought" it was self defence.

My understanding is that putative private defense goes to the state of mind of the accused - whether or not he genuinely believed that he was in imminent danger. I haven't read anything pertaining to whether or not he knew his actions were unlawful. I would be interested in reading about that, if you have a link to SA law on the matter.

IMO, I don't think OP has proved that he genuinely believed that he was in imminent danger. He used the words terrified, scared, etc., but other than that, he hasn't provided evidence to support his alleged state of mind when he shot & killed Reeva.

 

[BlueShoe]

Then what was OP doing for 19 minutes before the first phone call he made?

Yes, 19 minutes is an eternity when a person is dying. Not acting sooner is tantamount to murder in my view. Murder by inaction. MOO

 

[Val1]

I think the following redirect examination well establishes that OP's defense is putative self defense and not involuntary action. If anyone else is still confused and thinks the defense has changed, that's fine, but I obviously disagree.

Roux mentions bail affidavit ..

ROUX: Was it at a time when you had access to the statements in the docket?

OP: No ...it was before inspecting officer Hilton Botha even gave his evidence, m'lady

<snipped for brevity>

The only problem with that part is that Roux is on record during the hearing referring to a witness's statement, so they did have access to at least one and probably more.

 

[minor4th]

I don't think it establishes anything except confusion. Pistorius clearly has been trying to do two things which, in his mind, are both advantageous, but which contradict each other.

Now, it might well be that the judge will be lenient on him, and will indeed assume that his defense is that of putative self defense only.

However which way one looks at the matter, though, Pistorius has clearly made his own defense a lot more difficult. He has damaged himself greatly, I feel.

I agree that Pistorius has been trying to do two things which, in his mind, are both advantageous, but which contradict each other. I totally agree with that, and I'm sure the judge sees it too. But when it comes down to it, he agrees that he shot because he was afraid for his life and that the gun did not go off by accident and that it was the direct reaction to what he believed to be an intruder coming out of the bathroom.

I also agree that the way he testified made his defense more difficult and that he has damaged his case. No disagreement at all.

 

[liesbeth]

Premeditation does not rely on a certain length of time. It can occur in a matter of moments.

Getting a 9mm pistol from under the bed, walking down a passageway (past the bedroom door which is an escape route) INTO the room of perceived danger, aiming, and firing not one, not two, not three, but FOUR rounds of black talon bullets through a closed toilet door = premeditated murder.

I agree.

 

[BritsKate]

There is no concrete definition of "premeditation" that I can find. The caselaw suggests that it involves some amount of planning - something beyond a moment. From what I have read, premeditation in SA is a bit higher standard of reflection and planning than in the US. But it is not crystal clear and it is also not totally consistent from case to case.

Do you think its possible some may confuse premeditation and intent?

 

[Julian]

No, the question is whether he thought he was lawfully shooting in self defense. It clearly wasn't actually or lawfully self defense, as there was no actual intruder.

Agreed. That was what I meant, you know

And no, it doesn't change what I wrote...

 

[minor4th]

My understanding is that putative private defense goes to the state of mind of the accused - whether or not he genuinely believed that he was in imminent danger. I haven't read anything pertaining to whether or not he knew his actions were unlawful. I would be interested in reading about that, if you have a link to SA law on the matter.

IMO, I don't think OP has proved that he genuinely believed that he was in imminent danger. He used the words terrified, scared, etc., but other than that, he hasn't provided evidence to support his alleged state of mind when he shot & killed Reeva.

He doesn't have to prove it - it only has to be reasonably possibly true.

And he did provide evidence of his state of mind when he shot through the door.

 

[Val1]

My understanding is that putative private defense goes to the state of mind of the accused - whether or not he genuinely believed that he was in imminent danger. I haven't read anything pertaining to whether or not he knew his actions were unlawful. I would be interested in reading about that, if you have a link to SA law on the matter.

IMO, I don't think OP has proved that he genuinely believed that he was in imminent danger. He used the words terrified, scared, etc., but other than that, he hasn't provided evidence to support his alleged state of mind when he shot & killed Reeva.

He really likes the word terror, he used that to describe his emotions when he opened the door and saw RS.... terror and sadness...

 

[minor4th]

Do you think its possible some may confuse premeditation and intent?

No question about it.

 

[Emz73]

I think the following redirect examination well establishes that OP's defense is putative self defense and not involuntary action. If anyone else is still confused and thinks the defense has changed, that's fine, but I obviously disagree.


Oscar Pistorius Trial: Tuesday 15 April 2014, Session 2 - YouTube

Still not saying he intentionally pulled the trigger in self defence though. Still I didn't think and pulled the trigger. Involuntariness defence.