Trial Discussion Thread #39 - 14.05.14 Day 32

[minor4th]

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

I think you've hit on one flaw in the SA judicial system IMO. These bizarre happenings mid-trial could not happen if there were reciprocal discovery - meaning both sides have to disclose all witnesses and provide expert reports 30-60 days prior to trial.

 

[minor4th]

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

Sorry, I didn't mean any vitriol towards Nel.

I do think he would be upset at OP being treated as an outpatient, as I believe it was his intent and desire to have him locked up.

 

[jay-jay]

Thanks G.bng. I see where you are coming from and would agree with all you say in a general sense. I would not make light or fun of someone's mental health issues as, as with any other disease, the person generally is not responsible for what they suffer from.

Why I have no qualms being snarky about OP is because I think he has revealed himself to be a thoroughly unpleasant and unlikable person. At the start of the trial I had no impression of him other than someone charged with a serious crime and a very suspect story as per the bail application. Since then I've come to the point of not believing his story whatsoever and at the same time have gotten the impression of someone who would do, say and pay anything to get out of this situation. Even the early comment about 'I've put my life on hold' made me squirm in a 'well guess what mate, you are charged with murder and your life being disrupted is a by-product of that' kind of way. And as I've mentioned before I did have sympathy for him early on because of his distress, but that has evaporated as I now see it as much more about his own predicament than over what he actually did. But of course I don't know that, it's just an impression I've gained.

The other reason why I would have liked to see him dragged off would have been to highlight that being famous and wealthy does not necessarilly get you special privileges, though I know that is very rose-coloured of me as of course it does and we all know that. It would also have been a nice juxtaposition to his response that the state's claim was a joke and the reporter should go read the law. Call me mean, but it's always somewhat satisfying to see an arrogant person taken down a peg or two, or down to the cells in the basement in this instance. But it didn't happen as you say and therefore the way the court is dealing with it must be appropriate. Still seems a bit odd to me that a person charged with murder who is now being sent for a psych evaluation is allowed to remain out on bail, especially after his psychiatrist said he could be dnagerous. I don't think for a minute he's about to shoot anyone else but even so it seems strange that he still has his basic freedoms.

Anyway, I shall continue to make jokes about Mr P and be snarky from time to time I am sure but the remarks will only be directed at an unpleasant and overprivileged individual who at this point in time is still classed as 'sane'. If that changes then I'll cease and desist as ultimately I agree with you. Thanks again and sorry for the long post but I felt that your's deserved a considered response and wanted to try and make my thinking and comments clear.

:goodpost:

 

[crowmarsh]

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

Thank you for your reply. This is the first trial I have watched so all of this is new to me. I appreciate your posts they do answer a lot of questions for me.

 

[soozieqtips]

Sorry, I didn't mean any vitriol towards Nel.

I do think he would be upset at OP being treated as an outpatient, as I believe it was his intent and desire to have him locked up.

I doubt he cares one way or another so long as the evaluation is thorough and puts to bed any uncertainty of the state of OP's mind at the time of the murder. I'm sure Nel has better things to do with his time than to plot against OP.

 

[BritsKate]

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.


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.

They can only try him again if a mistrial is declared. If he's found not guilty by mental disease or defect, that's it. His commitment is his punishment but the criteria for release isn't quite so easily surpassed and there are rules, in most jurisdictions, as to the length of detention.

I have to say that is absolutely worst case scenario and something I absolutely believe will NOT happen. I fully anticipate a very minor psychiatric disorder or a cluster B diagnosis and us moving forward in the trial. I've followed a few trials that ended in not guilty by mental disease or defect verdicts and, though its only my opinion, Oscar's case doesn't even come close to the substantial evidence presented by the defence in those cases.

I'd really urge anyone with serious doubts to the contrary - or even hopes that this will be the case - to read up on the M'Naghten rule. I've said the whole way along proving involuntary (or automatism) is really quite difficult because the legal burden is just so high - hence, I really don't see it as anywhere near a possibility. Oscar would have very likely had a documented, lengthy history of psychiatric issues almost impossible to conceal.

Culpable homicide's always been a possibility, of course, but until and unless this evaluation exposes something I don't believe exists, I'm still sold on murder, dolus directus, with premeditation.

 

[TorisMom003]

Sorry, I didn't mean any vitriol towards Nel.

I do think he would be upset at OP being treated as an outpatient, as I believe it was his intent and desire to have him locked up.

I think that it was his intent to make sure that whatever the sentence is for OP, that it sticks. If the defense were able to fight the order for OP to be evaluated then he could use that as a claim in an appeal.

Nel has not shown that he is a vindictive man. If anything, Nel has done more than his share of standing up for Roux when OP threw him under the bus repeatedly. It always amazes me the levels to which Nel is accused of wrong doings. For instance, yesterday he was accused of putting forth this application for reasons other than making sure that the case against OP was bullet (appeal) proof. Now today Nel's decision was not for his benefit, he was simply coaxed into doing it because of the Defense.

It appears to me that there is an obvious disdain for prosecutors. The ones that are simply doing their jobs, trying to get justice for the victims and their families, trying to abide by the laws. Really pathetic IMO.

MOO

 

[MeeBee]

So if he's malingering, he only has to keep up appearances so many hours a day, 5 days a week? :waitasec:

If he is malingering, the psychologists will know.

 

[BritsKate]

I think you've hit on one flaw in the SA judicial system IMO. These bizarre happenings mid-trial could not happen if there were reciprocal discovery - meaning both sides have to disclose all witnesses and provide expert reports 30-60 days prior to trial.

It's in the rumour mill that they're looking to change this due to the amount of time being wasted and the court's already incredible backlog. I think it could only be a good thing.

 

[Hope4More]

I can't understand why there isn't 100% agreement that a psych eval of OP is a good and fair thing, regardless of what the evaluation produces.

Reeva's loved ones deserve that the trial be fair. OP deserves a fair trial. Since much of the case rests upon OP's state of mind, what could be more logical than having his state of mind examined? The judge's point of having him examined isn't to bolster either the State's case or the defense, nor to harm either, whatever Nell was or was not trying to accomplish.

Examine him and let the chips fall where they may.

 

[minor4th]

I think that it was his intent to make sure that whatever the sentence is for OP, that it sticks. If the defense were able to fight the order for OP to be evaluated then he could use that as a claim in an appeal.



Nel has not shown that he is a vindictive man. If anything, Nel has done more than his share of standing up for Roux when OP threw him under the bus repeatedly. It always amazes me the levels to which Nel is accused of wrong doings. For instance, yesterday he was accused of putting forth this application for reasons other than making sure that the case against OP was bullet (appeal) proof. Now today Nel's decision was not for his benefit, he was simply coaxed into doing it because of the Defense.



It appears to me that there is an obvious disdain for prosecutors. The ones that are simply doing their jobs, trying to get justice for the victims and their families, trying to abide by the laws. Really pathetic IMO.



MOO

Perhaps you're right. I view everything attorneys do with skepticism

 

[jay-jay]

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.

I'm looking forward to that happening because, at the moment, the psychological thing is swamping everything and it's as if the facts and evidence of the case have been forgotten about (I know they haven't been .. at least I dearly hope not :scared .. just that, to me, they are the most important things about this case, not some made up* mental condition (GAD) which OP clearly does not suffer from.

* I don't mean the condition itself is made up, I mean it's been made up that OP suffers from it.

 

[minor4th]

It's in the rumour mill that they're looking to change this due to the amount of time being wasted and the court's already incredible backlog. I think it could only be a good thing.

Just seems like it would be a more fair trial all the way around.

 

[TorisMom003]

Perhaps you're right. I view everything attorneys do with skepticism

Including yourself?? :blushing:

 

[MeeBee]

I can't understand why there isn't 100% agreement that a psych eval of OP is a good and fair thing, regardless of what the evaluation produces.

Reeva's loved ones deserve that the trial be fair. OP deserves a fair trial. Since much of the case rests upon OP's state of mind, what could be more logical than having his state of mind examined? The judge's point of having him examined isn't to bolster either the State's case or the defense, nor to harm either, whatever Nell was or was not trying to accomplish.

Examine him and let the chips fall where they may.

Agreed! Can't see why people think this bodes well for one side (based on judge's decision) or hurts one side more than the other. I would think it is totally natural and normal for the judge to want all the information she could possible have about a defendant's mental state before making her decision. It's kind of important! If there is anything to the Dr.'s diagnosis, then the judge probably wants to know, as I'm sure Nel does, too. And not to worry. If he's malingering or lying then the psychologist will probably know. I don't know about SA but in the US forensic psychologist are specifically trained to look for and test for malingering since they're dealing with criminals with an incentive to lie or exaggerate. Outpatient or not, it won't matter.

 

[minor4th]

Including yourself?? :blushing:

Well I always know what my intentions and motivations are - so I don't have to wonder. but yes in a trial I'm sure opposing counsel would naturally be skeptical of my actions and motivations.

 

[minor4th]

Agreed! Can't see why people think this bodes well for one side (based on judge's decision) or hurts one side more than the other. I would think it is totally natural and normal for the judge to want all the information she could possible have about a defendant's mental state before making her decision. It's kind of important! If there is anything to the Dr.'s diagnosis, then the judge probably wants to know, as I'm sure Nel does, too. And not to worry. If he's malingering or lying then the psychologist will probably know. I don't know about SA but in the US forensic psychologist are specifically trained to look for and test for malingering since they're dealing with criminals with an incentive to lie or exaggerate.

I'm actually looking forward to the findings when all of this is concluded. I think there are some complex psych issues going on within OP

 

[TorisMom003]

Only thing is polygraphs cannot and are not used in court matters.

Polygraph was not brought up in the post that was responded to. I hope that it is known that someone (esp a professional) can spot a liar without the use of a polygraph. Compulsive liars have been diagnosed as such before, and will continue to be diagnosed as such, without need of a polygraph.

MOO

 

[Nausicaa]

[snip]

It appears to me that there is an obvious disdain for prosecutors. The ones that are simply doing their jobs, trying to get justice for the victims and their families, trying to abide by the laws. Really pathetic IMO.

MOO

Yes indeed, TorisMom. A prosecutor's job is to prosecute just as the defence counsel's job is to defend. There are no grounds for thinking that Nel is animated by personal hostility towards OP and there are no grounds for supposing that Roux really believes that his client is innocent. Two skilled men doing their jobs to the best of their ability.

 

[jay-jay]

I can't understand why there isn't 100% agreement that a psych eval of OP is a good and fair thing, regardless of what the evaluation produces.

Reeva's loved ones deserve that the trial be fair. OP deserves a fair trial. Since much of the case rests upon OP's state of mind, what could be more logical than having his state of mind examined? The judge's point of having him examined isn't to bolster either the State's case or the defense, nor to harm either, whatever Nell was or was not trying to accomplish.

Examine him and let the chips fall where they may.

That's fine if you hold a lot of faith in psychologists .. I personally don't, and I'm not fully confident that they will determine the correct diagnosis for OP. There is a lot riding on this with regard to whether they assess him correctly or not, and they may well assess him incorrectly as having GAD which in turn will bolster his version.