Trial Discussion Thread #40

[patCee]

Can someone please explain to me why OP should be found not guilty of shooting someone just because he is a paranoid, double amputee? I have tried to understand but it really makes no sense to me.

Hi, can't help with your main question, but this link may confirm you last sentance if you haven't already seen it.

http://criminallawza.net/2014/03/03/the-pistorius-defence/#comments

 

[Hope4More]

I think burden of proof muddy waters may be due to changes in the CPA. The original 1977 CPA was modified to incorporate rights accorded to defendants in the Constitution and Bill of Rights.

The burden of proof shifted to the State at that time.

Not for the faint at heart, but here is a link to a 140 page SA dissertation (2011) on the burden of proof/ presumption of innocence in SA trials, with a specific focus on defendants claiming mental illness:

upetd.up.ac.za/thesis/.../dissertation.pdf

" Constitutionality of the Onus of Proof...."

 

[DebinGA]

Seeing the list it's so difficult to work out what's going on with the defense other than failing to prove that a women was not heard screaming, bat v shots remains unproven, when RS last ate and the mag rack was moved, or was it? (police disturbed crime scene). I won't even go into Dr V and how that's ended up.

*Roux had to attack the ear witnesses, which he did but not convincingly imo.

*Roux also had to show OP had a verifiable history as a crime victim, justifying his fear of intruders - but Roux couldn't do that because OP hasn't been a crime victim, other than his unverified claim that years ago someone broke into his townhouse, when he wasn't at home and may have been out of the country, and stole a laptop/tv iirc. On the contrary, testimony from Darren Fresco, Samantha Taylor, Kevin Larena, and Reeva herself showed it was OP who created fear in other people.

*Roux absolutely had to refute the police pics of the bedroom post-murder showing the duvet on the floor, fan on duvet, jeans on duvet, the blood trial from jeans-duvet-carpet, the fan blocking the balcony doors he claimed he unlocked one-handed and went through to call for help, etc. ... but so far Roux hasn't called a witness to refute the pics in any way.

I don't know who planned OP's defense, but I don't think it was Roux,

 

[CriLondon]

https://www.youtube.com/watch?v=e3nuFArz0Rk

So worth a watch!

Funny enough i watched this a few hrs ago!!

I found interesting at 2:00 he mentions how his family brought him up...slightly not in line with Dr.V testimony about traumatic events.
He did look genuine in what he declares as being brought up in a normal way.

It is possible Dr.V diagnosed GAD ( back-dating the trigger-incident to his double-amputation)and he was consciously unaware of it or....unable to recognize it due to other psychiatric/psychological factors.

JMO and the last bit my speculation

 

[G.bng]

His own witness ,Prof Vorster has already stated that the disorder she believes he has is treatable and should have been diagnosed and treated for a very very long time. That is not the issue.

It is not the responsibility OR the task of the panel to treat, or manage whatever disorder they may find. Or not. . he would be referred onwards. The panel itself is not formed to the view to treat Oscar's disorder, should he have one. This is the mistake that is being made. Their job is an impartial evaluation. And evaluation ONLY. nothing more. They have no mandate to treat Oscar.. has Oscar expressed a wish to you that he wants to be treated?? Absolutely not. Their impartiality would be compromised should they suddenly become his counsellors. This irrational thinking is probably due to a misreading of the statute, or the concept of court appointed evaluation. Keep in mind, this is not at the request of Oscar. far from.

Catching up on posts so sorry if you already realised your mistake and confusion, but it seems to have caused a confusion in itself so I have to ask, exactly where... by who... what... is this MISTAKE you keep saying is being made and which leads to confusion?

I haven't so far seen any confusion about the evaluation as we all seem researched enough to understand what an evaluation means. And the poster you are replying to is certainly NOT confused saying the court is sending OP to be treated not here nor in previous post I replied to where you had, IMO, also gotten the wrong end of the stick. Indeed unless I'm the one going raving bonkers the poster is agreeing with you, i.e. that it is ONLY an evaluation not a treatment. All the poster added, and I too think it's a probable, that if the panel found something treatable they could recommend OP sought treatment. In fact I'd go even further as they would't even need to recommend this because whether it was treatable or not, would have to be written into the report being the most important detail for the court. But if after the evaluation OP asked about treatment I could well imagine they may give him names of a specialist, refer him or recommend one so long as he was in a position to attend and not in prison. And a thought, if he get's a custodial sentence and the panel have found something treatable wouldn't that put the financial burden on the state to treat him... at least it would here I think.

 

[Karmady]

This is a very common misconception, I believe because that is usually the case in America. This is very different as Oscar has admitted to shooting Reeva 4 times.

Please watch the following with legal expert Judge Greenland (35 years experience) who states at beginning roughly 9:22, Oscar must convince the court rather than simply just raising a story that may be reasonably, possibly true.

http://m.youtube.com/watch?v=hFM3d6sA-SY

Please pardon errors as posted via Tapatalk with a less than stellar user.

This appears to contradict that. I've read some other stuff by this author and it's consistent. This states that only the pathological incapacity defense (not the putative private defense) causes a significant shift in the burden on the defendant. Otherwise, the defendant only has to raise a single reasonable doubt.

snipped from the link- bbm:

It is well known that, in criminal trials, the prosecution bears the onus of proof, to prove its case, that the accused is guilty, beyond a reasonable doubt. This follows from the right to be presumed innocent in the Constitution. There is only one notable[41] exception to this – in respect of a defence of pathological incapacity,[42] in respect of which, the accused must raise more than a reasonable doubt to succeed with this defence. An accused who raises this defence must show, on a balance of probabilities (that it is more likely true than not) that s/he lacked criminal capacity because of a mental illness or defect. Incidentally, even other claims of incapacity (that is, for other reasons) do not place this burden of proof on an accused. Notably, whenever an offence which places such a burden on the accused has been brought to the attention of our Constitutional Court, it has struck the burden down as unconstitutional on the basis that any burden placed on an accused, which allows for his/her conviction, in the face of a reasonable doubt as to his/her guilt, violates the presumption of innocence.[43] It is to be expected that, if challenged, the burden placed on accused people who seek to raise the defence of pathological criminal incapacity, will meet a similar fate.

What though does it mean that the prosecution must prove that the accused is guilty, beyond a reasonable doubt? It means that the accused needs to only raise a reasonable doubt that s/he is guilty – even a single reasonable doubt – even in respect of a single requirement for liability. This is the extent of the onus on the prosecution. It ultimately gives effect to the deeply entrenched principle that, given the serious consequences of a conviction, an accused should be given the benefit of any doubt.[/B]

http://criminallawza.net/overview-of-the-requirements-of-criminal-liability-to-follow/

 

[Karmady]

I think burden of proof muddy waters may be due to changes in the CPA. The original 1977 CPA was modified to incorporate rights accorded to defendants in the Constitution and Bill of Rights.

The burden of proof shifted to the State at that time.

Not for the faint at heart, but here is a link to a 140 page SA dissertation (2011) on the burden of proof/ presumption of innocence in SA trials, with a specific focus on defendants claiming mental illness:

upetd.up.ac.za/thesis/.../dissertation.pdf

" Constitutionality of the Onus of Proof...."

That's what I'm finding, too, Hope. A lot of the literature references the Constitution and Bill of Rights and is adament that, with the one exception mentioned in the piece I quoted above, the heavy burden does lie with the State even in the face of defenses such as putative private defense. I tried to find a reader-friendly link, but there are many others.

 

[Gryffindor]

You're welcome but I feel the same about everyone else - we all add something to the conversation. There are so many times I exclaim 'Why didn't I think of that?!?' at my monitor.

I think a lot of people here probably know the law very well but SA law is very different to American. Even American legal experts have made statements that are correct according to US law but incorrect when applied to SA, which confuses everyone.

Methinks they (the US legal eagles) haven't done their due diligence in terms of research.


Please pardon errors as posted via Tapatalk with a less than stellar user.

And Scottish law is varied further, from England and Wales.

 

[Karmady]

Can someone please explain to me why OP should be found not guilty of shooting someone just because he is a paranoid, double amputee? I have tried to understand but it really makes no sense to me.

Don't shoot the messenger, but the argument would be that, although he understood right from wrong, his disabilities made him psychologically/mentally incapable of acting in a manner consistent with that knowledge. At least that's my understanding of it.

 

[BritsKate]

But he did intend to kill someone... The intruder story of his acts out dolus to the letter.. He even told Dr van he aimed for the noise in the toilet or the other side reeva was deliberately targeted

If he intended to kill an intruder it is legally presumed murder unless (by believing his defence) the court finds it was a justifiable killing. That means intent to kill an intruder is absolved or 'forgiven' and he cannot be convicted of murder on the basis he intended to kill an intruder.

Dolus eventualis is a different thing altogether. If the court finds he didn't intend to kill Reeva or an intruder - he could still be convicted of murder on the basis that while he didn't intend to kill anyone, he could foresee the consequences and proceeded anyway. That's what dolus eventualis is.

I agree that the doctor admitted dolus eventualis though it was different testimony that did so.
Oscar himself testified he never intended to shoot anyone and stated he didn't shoot at the noise. Or aimed. Or intended to kill anyone. Not intending to shoot an intruder actually negates a putative self-defence claim, which is reliant on the accused to have some intent to do something to defend themselves.


Please pardon errors as posted via Tapatalk with a less than stellar user.

 

[Gryffindor]

Aaaah i see . In that case there's a difference....although i still have , in general , a huge problem with anyone shooting 4 devastating bullets through a closed door. But that's me....

Absolutely. But H4M merely posed a hypothetical situation to discuss.

 

[BritsKate]

And Scottish law is varied further, from England and Wales.

Quite true and I would have to spend hours and days researching Scottish law were it relevant too. Even for Welsh and English law I have to - since it too is so different to American.

I 'knee-jerk' practically everything from an American standpoint and then have to correct myself. I'm proof positive you can take the girl out of America but not America out of the girl.


Please pardon errors as posted via Tapatalk with a less than stellar user.

 

[DebinGA]

I'd hate to be the judge that sets a precedent for future SA defendants that it's legally okay to shoot 4x into an enclosed cubicle at a supposed intruder neither heard nor seen, much less posing a threat.

 

[CriLondon]

Absolutely. But H4M merely posed a hypothetical situation to discuss.

Sure , I understood how you read "eliminate" when you explained earlier...and even agreed it would be a different story.
However i'm sure you can agree that H4M scenario still has, fundamentally, a person shooting 4 times through a closed door after hearing noises..and that is still my problem ,as in the real case.

Just respectfully my opinion , i understood what you meant

 

[Ncl1968]

If he intended to kill an intruder it is legally presumed murder unless (by believing his defence) the court finds it was a justifiable killing. That means intent to kill an intruder is absolved or 'forgiven' and he cannot be convicted of murder on the basis he intended to kill an intruder.

Dolus eventualis is a different thing altogether. If the court finds he didn't intend to kill Reeva or an intruder - he could still be convicted of murder on the basis that while he didn't intend to kill anyone, he could foresee the consequences and proceeded anyway. That's what dolus eventualis is.

I agree that the doctor admitted dolus eventualis though it was different testimony that did so.
Oscar himself testified he never intended to shoot anyone and stated he didn't shoot at the noise. Or aimed. Or intended to kill anyone. Not intending to shoot an intruder actually negates a putative self-defence claim, which is reliant on the accused to have some intent to do something to defend themselves.


Please pardon errors as posted via Tapatalk with a less than stellar user.

thanks for that

 

[Feynman]

https://www.youtube.com/watch?v=e3nuFArz0Rk

So worth a watch!

Larry King interview with OP, around the time I think that he was with Sam as he refers to the golfing in Scotland but at least he says he was very close to his mother and was raised as a normal child
and didn't regard himself as having a disability.

Right, but as he lies all the time, he could have lied there too. Or he could have been in some clinical state of denial that only a fancy psychiatrist can recognize (with large fees).

 

[G.bng]

Since Oscar would be presenting himself to mental health professionals on an entirely different basis ( that is, as a court orderderd patient mandatorily sent by the court, and not a private patient concerned about his own mental health , and paying the required bill for services rendered) ...

and his presentation to Nel as the accused person , being prosecuted for the crime of deliberate murder, and Nel required by the RSA Jurisprudence to prosecute Oscar on this basis, I fail to comprehend how your comparison has logic. Or even relevance.

Then perhaps you did not see the post that appears to have started it:

And his own attorneys for having Dr. V do an eval of OP and then put her on the stand for Nel to crush and get OP sent to the looney bin to be evaluated for 30 days by at least 4 people that will use his testimony to test him. Can you imagine 4 Mr. Nels with psychiatric experience questioning and probing OP over and over and over again for 30 days!?

anic:

And a poster had replied, imo correctly, to the: "Can you imagine 4 Mr. Nels with psychiatric experience questioning and probing OP over and over and over again for 30 days!" saying that it was never going to happen because physicians take a hippocratic oath to do no harm, therefore the kind of gruelling OP underwent with Nel, and for 30 days, would be contrary to that oath. From there and with their mention of the panel maybe recommending and/or referring him for treatment if he were found to have a treatable condition, a few posters, or maybe one or two, seemed to have somehow got confused, (probably reading too quickly!), and thought the poster was saying that the court ordered evaluation was to treat OP... all of which seems to have turned into a babelic series of posts, replies, and counter replies, with posters arguing at a cross while they were in fact agreeing. Quite funny, albeit a bit time consuming reading them... ;-)

 

[toevlugsoord]

OP has a history of irritation/s causing him to instantly "lose it" and start yelling at people. His constantly interrupting witness testimony with "Liar! or even "That's a joke!" or "Go read the law!" as he yelled leaving court last week wouldn't help his case, so he's taking something to calm him enough to get through testimony until the next frequent break when his cadre of soothers rush in. OP's courtroom demeanor is nothing like he was the months preceding Reeva's death, and certainly not the night he killed her.

Wow, I missed the "go read the law" one so I looked it up, and wow. Seriously wow.
Who did he interrupt and call a liar?

 

[Hope4More]

If he intended to kill an intruder it is legally presumed murder unless (by believing his defence) the court finds it was a justifiable killing. That means intent to kill an intruder is absolved or 'forgiven' and he cannot be convicted of murder on the basis he intended to kill an intruder.

Dolus eventualis is a different thing altogether. If the court finds he didn't intend to kill Reeva or an intruder - he could still be convicted of murder on the basis that while he didn't intend to kill anyone, he could foresee the consequences and proceeded anyway. That's what dolus eventualis is.

I agree that the doctor admitted dolus eventualis though it was different testimony that did so.
Oscar himself testified he never intended to shoot anyone and stated he didn't shoot at the noise. Or aimed. Or intended to kill anyone. Not intending to shoot an intruder actually negates a putative self-defence claim, which is reliant on the accused to have some intent to do something to defend themselves.


Please pardon errors as posted via Tapatalk with a less than stellar user.

Again I disagree. If the State can prove that OP intended to kill Reeva he is guilty of premeditated murder. Burden of proof: that he knew Reeva was behind the door, that he shot to kill her.

If the state can prove OP shot to kill an intruder he is guilty of murder, period. Burden of proof: that OP had other options but chose to pursue the intruder, that he intentionally shot to kill the person on the other side of the door.

DE is used in that original determination of intent. Did he INTEND to kill whoever was behind that door?

And no, not what a reasonable person would do (objective) but subjective.... what was OP's state of mind?

He can be found guilty of culpable homicide if the state doesn't meet its burden of proving intent but the judge finds that OP, even without intent, should have been aware that his actions would result in death.

 

[DebinGA]

Wow, I missed the "go read the law" one so I looked it up, and wow. Seriously wow.
Who did he interrupt and call a liar?

He didn't, and I should have made that clearer. I used that as an example of what he would have said, for example, when Dr. Stipp testified that the bathroom light was clearly ON when OP swore it was OFF for some time after he killed Reeva, if OP wasn't on some "calming" meds at trial.