Trial Discussion Thread #39 - 14.05.14 Day 32

[Giles]

A judge's training, professionalism and ethics will not allow them to "lean" one "side" or t'other before hearing ALL the evidence and most certainly NOT to the extent that someone outside their inner circle, if then, would be able to "know". And if they did lean and it was "known" that could be cause for a mistrial. So, you you may think you know, just as I sometimes think I "know", but really KNOW, my bet is you do NOT.

Hear Hear!

 

[Nausicaa]

Prove that judges or this judge don't make a decision until the case is over? Really?

Actually I asked for proof that

...judges are not permitted to know their verdict before all the evidence has been heard...

(Emphasis added.)

Apparently you haven't got any.

 

[Viper]

why Judge must commit Oscar for psychiatric assessment - YouTube
why Judge must commit Oscar for psychiatric assessment
Christopher Navavie Greenland Christopher Navavie Greenland
Published on May 14, 2014
Bongani Bingwa and Judge Chris N Greenland discuss why Oscar must be committed for psychiatric assessment.

Thank you for that! Awesome information. I really like that Judge. At about 7:30 he really goes off on the DT for not establishing what their defense is. LOL!

 

[JudgeJudi]

Roux has a monogrammed shopping bag in that photo?

They carry their law books in those bags. The initials on the bag are his.

 

[soozieqtips]

Carmelita - just because the judge noted that OP has been 'emotional throughout' does not mean she thinks he's 'emotionally unstable'. Of course he'd be emotional during his own murder trial, especially if he was thinking of the worst possible outcome for himself.

 

[lithgow1]

I won't quote your whole post Carmelita for space reasons but I do see a major flaw - all you say is dependent on the judge and assessors believing OP's version. Not just that it could be possibly true, but that they believe both it and his retelling of it and find evidence to back it up. In other words, discount the state's independent witnesses in favour of his version. Remember, when all this psych stuff is out of the way the focus and attention will turn back to that version and the state's evidence regarding it.

As a side note, not saying I don't trust you but I would have liked to have been present at your discussion with your lawyer friend just to ensure that your version of the events was fair and balanced.

 

[BritsKate]

I won't quote your whole post Carmelita for space reasons but I do see a major flaw - all you say is dependent on the judge and assessors believing OP's version. Not just that it could be possibly true, but that they believe both it and his retelling of it and find evidence to back it up. In other words, discount the state's independent witnesses in favour of his version. Remember, when all this psych stuff is out of the way the focus and attention will turn back to that version and the state's evidence regarding it.

As a side note, not saying I don't trust you but I would have liked to have been present at your discussion with your lawyer friend just to ensure that your version of the events was fair and balanced.

RBBM

To that end, every single South African legal expert I've read or listened to since this whole issue of evaluation came up have said the same - Roux did not, could not, have seen this coming. He was hoping to have Oscar 'ill but not too ill' to bolster his defence and simply overplayed his hand. This evaluation, unless they know unequivocally what the outcome will be, puts their entire strategy in jeopardy. If they knew an evaluation would be in favour of their client, there was no reason to so strongly object to it.

I am not an attorney (though obviously the law is a passion) and as such will quite gladly defer to the legal experts much more familiar with the South African criminal justice system. I think Roux is a very good attorney (with a bad case and a worse client) but I don't believe he is clairvoyant and if he were, I don't think he'd gamble on this. It's just too risky.

MOO

 

[Carmelita]

I won't quote your whole post Carmelita for space reasons but I do see a major flaw - all you say is dependent on the judge and assessors believing OP's version. Not just that it could be possibly true, but that they believe both it and his retelling of it and find evidence to back it up. In other words, discount the state's independent witnesses in favour of his version. Remember, when all this psych stuff is out of the way the focus and attention will turn back to that version and the state's evidence regarding it.

As a side note, not saying I don't trust you but I would have liked to have been present at your discussion with your lawyer friend just to ensure that your version of the events was fair and balanced.

Fair enough Lithgow but to the best of my abilities I did relay the facts of the case without bias, what would be the use of giving him prejudicial information if I was trying to gather knowledge from his expertise. I'm not stuck on any version my mind is open to the evidence.


I'm hoping he will read some about it but he really isn't interested. I mostly questioned him as to why he thought Roux would bring in Oscar's mental state in the way he did, so there really isn't a bias I could have thrown into it as it was a pretty straight forward question.

And I am glad to hear that you trust me

 

[crowmarsh]

This is my understanding of how this will play out...if something incriminating is found in the evaluation (that doesn't work in the defence's favour, like malingering) the State will only be able to present it at such time as to rebut the defence. I doubt Nel will be allowed to call Oscar a liar full on, regardless, but he'd very likely be able to present an expert to testify to malingering or deceit being a core feature of something Oscar is diagnosed with. To this end, Nel may also put up his own character witnesses since he was precluded from doing so in his CIC.

I believe his version is already worthless and what's more, I believe his defence team thinks so too and that's why Vorster was brought in to begin with. Even IF GAD is established, it has to be to such a degree that it impacts Oscar so severely I don't think he could maintain everyday, normal life without exhibiting it to a great many people and without it severely impacting his life. Vorster pretty much said his disorder doesn't rise to such a severe level so I expect that either to be confirmed or such a diagnosis to be dismissed entirely.

JMO

Can you answer a question for me? Once the evaluation is concluded and the report submitted to the court would the defence be allowed to call other experts to dispute the findings of the report. For example if the report found no evidence of a disorder which would diminish responsibility, can the defence contest that finding.Or is this report the end of all testimony on the mental health issues. I hope that makes sense

 

[Viper]

snipped

Now for the next chapter, he over comes the debilitating mental disorder that made him have such an unreasonable response to a noise in a bathroom , he overcomes the grief of having tragically killed Reeva, and he emerges as a champion of the disabled both physically and mentally as he puts his life back together.

Stranger things have happened.

Wow. You really do believe that Roux set this up so that Mr. Nel would seek the psychological evaluation of OP, don't you? :scared: Simple question, if Roux wanted this to happen, why did he not just ask the Court himself? He would have gotten it you know.

Regarding the next chapter in your fairy tale, to kick off his confinement in a mental institution OP would have to be found insane. Think about this, OPs own psychiatrist has just finished testifying that he is sane but has anxiety issues. To go from that to insane OP would have to behave like a complete maniac during the coming 30 days observation. If he did that, the doctors there would find him a bed and make him comfortable for the next 4 weeks while they complete their observation and submit their report to the court. OP would not be allowed to leave.

anic:

 

[Carmelita]

RBBM

To that end, every single South African legal expert I've read or listened to since this whole issue of evaluation came up have said the same - Roux did not, could not, have seen this coming. He was hoping to have Oscar 'ill but not too ill' to bolster his defence and simply overplayed his hand. This evaluation, unless they know unequivocally what the outcome will be, puts their entire strategy in jeopardy. If they knew an evaluation would be in favour of their client, there was no reason to so strongly object to it.

I am not an attorney (though obviously the law is a passion) and as such will quite gladly defer to the legal experts much more familiar with the South African criminal justice system. I think Roux is a very good attorney (with a bad case and a worse client) but I don't believe he is clairvoyant and if he were, I don't think he'd gamble on this. It's just too risky.

MOO

As I've said I don't think Roux expected the extensive evaluation that is to come but I do think he expected the state to request it's own evaluation there is no way he could not have known it was going to happen.

I admire your passion and knowledge of the law

 

[Deleted member 102539]

but the 'everything is fine', is not coming directly from op.

the recurring theme:

petulant, uncontrolled outbursts by op. followed by reassuring soothing and apologies by others. op doesn't make the apologies.

outbursts:
starting with the party/door/damages incident; the rant at the brazilian [london 2012]; to the police [gun/sunroof incident]; marc batchelor; in public towards reeva; to myers; to the press yesterday; ...

the soothers/apologists:
circle of friends to cover/take the rap
public relations agency
lawyers
psychologist
uncle arnold/family
and also reeva...

I could imagine, uncle arnold and siblings and the rest of the family, the PR agency, the personal psychologist and at least the remaining friends are very relieved, someone has taken from them to send OP to a thorough psychological examination. Possibly they already 10 years or so wanted to do so, but couldn't because they didn't dare to suggest that to OP.
I could think, they are tired of always taking care of him and always trying to prevent outbursts.

Thank you all for your input/output today! :loveyou:

My program doesn't work as I would want, too slooooowlllly.
I have to log out immediately.

 

[soozieqtips]

Wow. You really do believe that Roux set this up so that Mr. Nel would seek the psychological evaluation of OP, don't you? :scared: Simple question, if Roux wanted this to happen, why did he not just ask the Court himself? He would have gotten it you know.

~snipped~

BBM - I honestly don't think Roux had a clue (ooh, that rhymed) what was going to happen. He was extremely agitated when he realised what was coming, and was also extremely emotional when arguing against the referral. Unless he's been taking acting lessons, I think he was totally caught on the hop.

 

[Interested Bystander]

I'd defer to South Africans as most of my legal knowledge comes from US cases, though thank you kindly for the lovely comment. I'm quite happy to be proven wrong. It seems very unfair though to have allowed the entire State's CIC on the presumption he wasn't mentally ill and not allow them to pursue a retrial on the basis he is.

Either way though, the point is the same - a not guilty by mental disease or defect verdict - whether it's at the end of this evaluation or at the potential culmination of a retrial does NOT mean Oscar receives no punishment at all for his crimes. As you so correctly posted, he would be committed. And in some cases, convicted murderers have spent longer hospitalised than they would have incarcerated as the decision to release them is wholly determined by a different set of criteria. He absolutely does not simply walk out of court a free man, which seemed to me (apologies if I'm mistaken) to be the implication.

MOO

To me it seems it would be viewed that his term in a mental hospital would be deemed his punishment. I agree it could be for a long term but you can imagine OP will be on his best behaviour and "cured" quickly. I just cannot see the law trying him again. It would be tantamount to saying we are going to try you again for murder even though we know you were mentally unwell at the time. I just cannot see it happening.

How insane is insane? How insane would he have to be to get that diagnosis. Are there levels of insanity? I think it was pretty insane to have killed Reeva the way he did but I don't view him as insane as if he were a psychopath but how will the professionals adjudicate?

What also troubles me is if Vorster (a well known and well respected psychiatrist) feels that his condition may have precipitated the murder, then all the psychiatrists will tend to agree and he will not be convicted. I am not too sure Nel will be happy about that. I think he brought this up to prove that OP doesn't have a problem so the book could be thrown at him.

IMO he is not truly mentally sick and knew what he was doing and I want to see him receive a proper punishment but I think that mental illness carries great weight in these cases and if 3 or 4 more psychiatrists agree the diagnosis he could spend a number of years in a psychiatric hospital. I expect Uncle Pistorius will build a new unit for him, somewhat resembling a hotel.

One other alternative is that he is considered to have a marginal condition and it gets him a sentence reduction to CH.

At the moment I see Murder 6 won't figure, Murder 5 might, CH a good possibility but with a relatively short term, say 5 years unless the gun crimes bump it up. I HOPE I AM TOTALLY WRONG!

 

[Carmelita]

Wow. You really do believe that Roux set this up so that Mr. Nel would seek the psychological evaluation of OP, don't you? :scared: Simple question, if Roux wanted this to happen, why did he not just ask the Court himself? He would have gotten it you know.

Regarding the next chapter in your fairy tale, to kick off his confinement in a mental institution OP would have to be found insane. Think about this, OPs own psychiatrist has just finished testifying that he is sane but has anxiety issues. To go from that to insane OP would have to behave like a complete maniac during the coming 30 days observation. If he did that, the doctors there would find him a bed and make him comfortable for the next 4 weeks while they complete their observation and submit their report to the court. OP would not be allowed to leave.

anic:

I have already explained the reason why it would be a master move for Roux to have Nel make the mental health issue foremost in the case. It should not be lost that the prosecution is arguing that Oscar be evaluated because his mental illness may have an impact on the case.

Oscar would not have to be found insane to be confined to a mental ward (and insane is a legal word not a medical word) a doctor never finds someone insane they find them mentally ill and label that illness, it is up to the court to determine whether that mental illness meets the legal definition of insanity.

I can't address the rest of your post as it is not in accordance with what I know to be reality so it simply makes no sense to me.

 

[BritsKate]

Can you answer a question for me? Once the evaluation is concluded and the report submitted to the court would the defence be allowed to call other experts to dispute the findings of the report. For example if the report found no evidence of a disorder which would diminish responsibility, can the defence contest that finding.Or is this report the end of all testimony on the mental health issues. I hope that makes sense

On the understanding I have never seen the State bring a motion for an independent psychiatric evaluation midtrial ever? Defence, but not State.

Totally new ground for me too - based on a 2005 appeal out of Nevada, I would presume that the evaluation lays the groundwork for any subsequent psychological testimony. So, if the dx is upheld, Vorster's testimony remains and Nel can present his own expert to refute it. If a new dx is determined, Roux can put forth a new expert to testify how that impacted the accused (especially since they haven't rested) and Nel can rebut that. If no dx at all is found, Vorster's testimony would likely be stricken from the record and not entertained.

Because it's an independent psych eval neither side can really contest the findings, per se, but both can certainly construe the findings to the best advantage of their case. If it's a dx which is really bad for the defence, I'd expect Roux to not proceed with any psych testimony simply because, if I'm correct - it would open the door for the State to rebut. If Vorster's testimony stands - they've already opened that door as far as I know. I don't know if the State can rebut with the findings of the evaluation, based solely on the evidence the defence has put forth so far or if the defence has to put evidence forth from the evaluation itself before the State is able to.

This is all assuming any condition he's diagnosed with is relatively minor and the trial continues, of course.

HTH (Hope I'm right. ) JMO and AFAIK

 

[JudgeJudi]

The lack of space in state institutions is going to allow OP to take his treatment at home.

If he attends hospital as an out-patient on a daily basis, is it likely to be all day, 7 days a week? Ah, then home to Uncle Arnie's each evening for a nice home cooked meal.

 

[minor4th]

So after all the anticipation I fell asleep before Masipa gave her ruling.

I've now listened and her decision and reasoning are very sound.

Interesting that she wants OP to be observed as an outpatient. I bet that pisses Nel off - I do think he was making this application in the hopes of "punishing" OP by having him confined involuntarily.

 

[lithgow1]

To me it seems it would be viewed that his term in a mental hospital would be deemed his punishment. I agree it could be for a long term but you can imagine OP will be on his best behaviour and "cured" quickly. I just cannot see the law trying him again. It would be tantamount to saying we are going to try you again for murder even though we know you were mentally unwell at the time. I just cannot see it happening.

How insane is insane? How insane would he have to be to get that diagnosis. Are there levels of insanity? I think it was pretty insane to have killed Reeva the way he did but I don't view him as insane as if he were a psychopath but how will the professionals adjudicate?

What also troubles me is if Vorster (a well known and well respected psychiatrist) feels that his condition may have precipitated the murder, then all the psychiatrists will tend to agree and he will not be convicted. I am not too sure Nel will be happy about that. I think he brought this up to prove that OP doesn't have a problem so the book could be thrown at him.

IMO he is not truly mentally sick and knew what he was doing and I want to see him receive a proper punishment but I think that mental illness carries great weight in these cases and if 3 or 4 more psychiatrists agree the diagnosis he could spend a number of years in a psychiatric hospital. I expect Uncle Pistorius will build a new unit for him, somewhat resembling a hotel.

One other alternative is that he is considered to have a marginal condition and it gets him a sentence reduction to CH.

At the moment I see Murder 6 won't figure, Murder 5 might, CH a good possibility but with a relatively short term, say 5 years unless the gun crimes bump it up. I HOPE I AM TOTALLY WRONG!

I share your concerns but again, this only applies if the court accepts OP's version and disregards the state's evidence. It seems a big deal now I know but the state have built a solid case against him and I can't see the court completely pushing that to one side because it believes OP's story and found him to be a credible and truthful witness. Glass half full I guess is MO.

 

[soozieqtips]

So after all the anticipation I feel asleep before Masipa gave her ruling.

I've now listened and her decision and reasoning are very sound.

Interesting that she wants OP to be observed as an outpatient. I bet that pisses Nel off - I do think he was making this application in the hopes of "punishing" OP by having him confined involuntarily.

BBM - what's with the vitriol towards Nel? He's not the bad guy here.