Trial Discussion Thread #40

[Val1]

You think they'll show him crime scene photos? I honestly don't know whether they can/would/should do that.

bbm -Just catching up again, but yes I would think that since they are to be testing his responses about that night and what could have led up to, it I would expect some of those too(though maybe not start with them...), along with perhaps childhood photos, photos of different family members(father, mother, brother, sister, uncles, aunts), friends, business associates(coach, financial advisors, lawyers) previous girlfriends(if there is one the balloons in the trees for that one valentine's), previous adversaries(Batchelor and his millionaire friend, RS's previous bf's and gf's, the girl in the door incident, the guy he accused of cheating, etc), photos of him both winning and losing the big races, pics of RS modelling, in Tropika and with him, pics of his second home in Italy, his different homes/properties in SA, his current residence, and the prison he may find himself in should he lose.

They should all evoke some kind of response and depending on how they're presented should definitely provide insight as to his personality beyond what his own words may have told them. ie. have him give a brief summary of what they each mean to him upon viewing and weigh that against what his brain activity(EEG) says and whatever facial/body language is revealed.

I sincerely hope they don't just rely on questionnaires and subjective observation, no matter how good they may be. Anyone can google on how a patient typically reacts with any number of disorders/illnesses but his brain activity won't lie.

 

[Nausicaa]

1. He thought there was someone in the toilet (allegedly an intruder)
2. He admitted that he thought that if he shot into the shower, there would be a danger of ricochet.
3. So instead he shot into the toilet - four times.
4. That toilet is a small enclosed tile-lined space.
5. It is his toilet, so he knew that.

Does it for me. :gavel:

Well exactly. What goes without saying goes all the better for being said !

 

[44ALLAN]

Which is why when I found OP's story unbelievable at first. But that perspective is about what a burglar would do, not what OP would do if he heard a noise he couldn't identify. The man has a long history of assuming any noise at night is an intruder....that is fact, not supposition or speculation.

But none of the neighbours have a history of reporting hearing a woman screaming for her life............but 5 of them did that very same night and all at the same time !

Your stance is noble but flawed big time I'm afraid.
IMOOC )

 

[Ncl1968]

A scenario (suspend your disbelief about specifics) and a question.

OP had a bad few days. Reeva comes over totally into VDay, OP not so much. Not a great night and at some point they fight. A lot. OP goes to sleep. Reeva can't. She goes downstairs and gets a snack, then comes back upstairs. OP wakes up and is angry all over again. They fight again, this time more intensely. Reeva considers leaving, but hasn't decided for sure. Both are tense. OP gets up to do whatever.. move fans, go on balcony, go downstairs... whatever. ( Yes, I know what he said he did, but since y'all think he lied about everything, why believe what he said he did here?)

Continuing. Reeve slips out of bed and goes to the loo. She may have decided to leave, or maybe she just had to pee. In either case she's quiet on purpose because she doesn't want the fight to escalate any further.

OP hears a noise in the bathroom. He is already enraged, has not let go of the fight. He doesn't check for Reeva. His first thought isn't protecting her, its that a SOB might be in his house.

He's angry - very - but he also is feeling vulnerable. Not afraid, but vulnerable because he is at a physical disadvantage. Just reality of the matter, and part of the reason he feels compelled to compensate for that disadvantage by always reaching for a gun.

The thought of pushing the panic button or running the other way never occurs to him. It doesn't because response to the panic button isn't instaneous, because if he turned his back to flee he might be overtaken, because he is OP, who isn't going to back down, and because his reasoning is already impaired by rage, increased exponentially by his perception that an intruder dared to threaten him.

He grabs his gun, runs down the hallway screaming get the f out. Reeva has no idea what's going on and stays silent. OP hears her move, perhaps she reaches for the door handle. He doesnt fire a warning shot because it never occurs to him to do so, not because he's afraid of a richocet.

He shoots once. The noise is deafening. Literally.

He doesn't hear her scream because of the deafening noise. He is also literally pumped on adrenaline, and furious. He pauses for a brief moment because the noise hurts his ears, and because the temporary loss of hearing increases his anger and his fear. He fires 3 more shots. He fires them knowing that he is firing them, and yes, hoping that the shots will eliminate the threat. He isn't trying to kill whoever is behind the door, but he knows enough even in that mental state that he is very likely to cause them serious injury.

Given that scenario ......(please don't argue about the details...its only a scenario) ....do you think he should be found guilty of murder?

Interesting you mention anger and furious a lot in this innocent scene, why so angry at a supposed noise natural to think fear first before fury... I mean come on if any one here had a similar incident the fear would drive us away from the noise and be angry and furious at a safe distance
Too much of this story depends on Oscar to wildly put him self in the firing line when everyone knows how selfish he is

 

[Emz73]

I

But a reasonable person test doesn't apply when there's a pathological incapacity defense asserted. The court found that there is now evidence offered to support such a defense (by Vorster) and that is why the defendant is being referred for evaluation. That's where his mental health/GAD come into play. Whether those conditions rendered him incapable of acting in a manner consistent with his admitted recognition of right and wrong.

eta: the conditions also would be considered potentially relevant to diminished pathological capacity in mitigation.

Clear as mud?

jmo

That's quoting from SA law professor!! How can he have it wrong?
Nobodies saying they are using pathological incapacity defense. That's made up on here. He's not "ill" enough for that. All Vorster said is he has GAD, it wasn't meant to be a defense.
Once the assessment comes back that he isn't ready for the loony bin, then I think it will the last we hear of the matter. If SA law doesn't recognise a disability in a reasonable person test then I think GAD won't be either. GAD was only brought up for sentencing IMO.

 

[Carmelita]

But none of the neighbours have a history of reporting hearing a woman screaming for her life............but 5 of them did that very same night and all at the same time !

Your stance is noble but flawed big time I'm afraid.
IMOOC )

But his nearest neighbors only heard a man screaming and they believed it was Oscar. They heard no woman. Some of the “screaming woman” neighbors only came forward after the case against Oscar was made in the media.

Hmmm………..


The problem for the state is that with a bench trial they must only argue the law as the judge will not be swayed by emotion and questionable "ear witnesses" as a jury would.

 

[CriLondon]

I didn't catch what was said just before Dr Vorster began her testimony, except that she clearly said "I have no objection". And I didn't hear anything said about her not wishing to be shown on camera, so I did wonder if she was asked about that, and if that was her answer. In which case why wasn't she shown?

(Of course I may have missed something obvious)

I'm not sure but being televised or not would have been agreed before Dr.V took the stand , because the cameras pointing in that direction will have to have been "cut off" before she walked into the courtroom.
So i think it's safe to say , being televised gets agreed before taking the stand not when being sworn in.

 

[patCee]

Well I'm now confused too regarding the what a reasonable person would do, and that it's now subjective. Several of the articles I've read seem to state clearly that the court decide 'what would a reasonable person do' in a broad context. This is what is said by Prof James Grant PhD (Criminal Law), Associate Professor of Law, University of the Witwatersrand, Johannesburg, SA in his article 3.3.14.

Our law has steadfastly refused to take account of any subjective factors peculiar to an accused, including any disability that the accused suffers with. This has been controversial, but it has been a line from which our courts have not wavered. If the reasonable person would not have made the mistake Pistorius claims to have made, even if the court accepts that Pistorius made this mistake, he may be convicted of culpable homicide.

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

I've also heard Judge Greenland (hope the names correct) saying the same on the 'legal panel' recently, in addition to other articles.

Help!

ETA: In the above link, Murder-Intention-Subjective: Culpable Homicide-Reasonability-Objective.

 

[Hope4More]

Perhaps its relevant to ask: what is the correct course for an armed householder who believes there is a potentially aggressive intruder in his W.C.?

I believe I'm correct in saying that the answer is as follows:

1. Intrusion, though very grave, is not in itself an act of aggression against the person, especially if entry was gained without violence, so do not shoot towards the person until there is a positive act of aggression.

2. Instead, either (a) flee, or (b) warn the intruder orally, or at most by shooting into the air, that you are armed.

3. If aggression on the intruder's part begins, aim low, in order to incapacitate, not to kill.

4. Only aim high if all else fails.

5. If you are temperamentally too panic-prone to respect these rules, you should not keep a gun at home.

Amen. Nor should you be allowed to own a gun at all.

 

[BritsKate]

Well I've been skimming through some SA case reports involving dolus eventualis and it appears to me that Britskate is out of date in thinking that the "reasonable person" test is currently applied. (I regret this, but I am neither the legislator nor the judge.) It is no longer enough to show what a reasonable person would be expected to notice, because unreasonable people are too numerous for us to send them all to prison until they become reasonable. The court wants to know what the accused himself really did think when acting - subjective.

However, this definitely does not mean that you can kill someone in SA and then claim that you didn't intend to and you didn't notice that shooting into a confined space was liable to prove lethal to the person therein. The current test, so far as I can see, is not: can the prosecution positively prove that the accused knew what he was doing. It is: is it reasonably credible that he didn't?

In other words, the accused is no longer automatically deemed to be a reasonable person, but the judge is. So don't try alleging incredible scenarios.

I am not an attorney and do not live is SA, everything I post is to my best understanding, so I'm quite happy being wrong - here's a link to prove I'm wrong. Page 19 explains what the test is to prove intention via dolus eventualis, if others are curious. Thank you, Nausicaa - your post explains it much better than my link.

http://reference.sabinet.co.za/webx/access/electronic_journals/funda/funda_v14_n2_a2.pdf

 

[CriLondon]

Perhaps its relevant to ask: what is the correct course for an armed householder who believes there is a potentially aggressive intruder in his W.C.?

I believe I'm correct in saying that the answer is as follows:

1. Intrusion, though very grave, is not in itself an act of aggression against the person, especially if entry was gained without violence, so do not shoot towards the person until there is a positive act of aggression.

2. Instead, either (a) flee, or (b) warn the intruder orally, or at most by shooting into the air, that you are armed.

3. If aggression on the intruder's part begins, aim low, in order to incapacitate, not to kill.

4. Only aim high if all else fails.

5. If you are temperamentally too panic-prone to respect these rules, you should not keep a gun at home.

Absolutely relevant to ask imo too.

Points 1-4 never happened or weren't followed.
Point 5 , i'd imagine , will be clear after the referral.

Thank you

 

[Karmady]

I

That's quoting from SA law professor!! How can he have it wrong?
Nobodies saying they are using pathological incapacity defense. That's made up on here. He's not "ill" enough for that. All Vorster said is he has GAD, it wasn't meant to be a defense.
Once the assessment comes back that he isn't ready for the loony bin, then I think it will the last we hear of the matter. If SA law doesn't recognise a disability in a reasonable person test then I think GAD won't be either. GAD was only brought up for sentencing IMO.

Not sure I watched that particular video, but was it before the ruling on the psych referral? If so, they may have been talking about Roux's argument for why it was relevant without requiring a referral.

I don't think they're wrong. I think they were probably talking about a slightly different issue -- whether, absent a psychological incapacity defense (which Roux said he was NOT arguing), evidence of psych factors can be considered. I think the panel is saying psych factors can't be considered absent that defense because they can't be used to diminish the reasonable person standard.

Makes perfect sense to me, but not sure I'm explaining it very well.

eta: I see it's an article, not a video and, yes, well before the referral hearing. I quoted that author earlier today myself

etaa: I've read the article and, yes, he is talking about the defense of "mistake as to unlawfulness" - which applies a reasonableness standard. We're in a whole 'nother kettle of fish now based on the referral.

jmo

 

[Emz73]

Well I'm now confused too regarding the what a reasonable person would do, and that it's now subjective. Several of the articles I've read seem to state clearly that the court decide 'what would a reasonable person do' in a broad context. This is what is said by Prof James Grant PhD (Criminal Law), Associate Professor of Law, University of the Witwatersrand, Johannesburg, SA in his article 3.3.14.



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

I've also heard Judge Greenland (hope the names correct) saying the same on the 'legal panel' recently, in addition to other articles.

Help!

I think we should go by the law professor and the judge, as they are actually talking about OPs case.

 

[Hope4More]

Well I'm now confused too regarding the what a reasonable person would do, and that it's now subjective. Several of the articles I've read seem to state clearly that the court decide 'what would a reasonable person do' in a broad context. This is what is said by Prof James Grant PhD (Criminal Law), Associate Professor of Law, University of the Witwatersrand, Johannesburg, SA in his article 3.3.14.



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

I've also heard Judge Greenland (hope the names correct) saying the same on the 'legal panel' recently, in addition to other articles.

Help!

What would a reasonable person do is not used to determine intent as to deliberate murder. If intent can't be proved then the question is, even if he didn't intend to kill anyone should he reasonably have known his actions could lead to death?

BBL

 

[patCee]

Originally Posted by Cherwell View Post
I didn't catch what was said just before Dr Vorster began her testimony, except that she clearly said "I have no objection". And I didn't hear anything said about her not wishing to be shown on camera, so I did wonder if she was asked about that, and if that was her answer. In which case why wasn't she shown?

I'm not sure but being televised or not would have been agreed before Dr.V took the stand , because the cameras pointing in that direction will have to have been "cut off" before she walked into the courtroom.
So i think it's safe to say , being televised gets agreed before taking the stand not when being sworn in.

IIRC there was some confusion because Roux had asked for a short adj...overruled by Judge. Meanwhile Dr V had entered the court by another door. I also thought that someone said she didn't object to being televised. Then the judge asked for clarification and then said that Dr V did not wish to be televised, so she wasn't.

 

[Lochlynsmom]

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.

No worries, I am not OP

So the defense is, I thought it was an intruder but I was mistaken because I am paranoid and vulnerable but it's not diminished capacity but kinda is. Yep clear as mud

 

[Nausicaa]

Well I'm now confused too regarding the what a reasonable person would do, and that it's now subjective. Several of the articles I've read seem to state clearly that the court decide 'what would a reasonable person do' in a broad context. This is what is said by Prof James Grant PhD (Criminal Law), Associate Professor of Law, University of the Witwatersrand, Johannesburg, SA in his article 3.3.14.

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

I've also heard Judge Greenland (hope the names correct) saying the same on the 'legal panel' recently, in addition to other articles.

Help!

I think the disagreement is only apparent PatCee. Grant says that subjective factors won't avoid conviction for culpable homicide. They can save you from conviction for murder. But the court has to be convinced that they are true.

If you google "dolus eventualis" with "south africa" you'll get some case reports discussing the issue. (If you omit "south africa" you'll get Lesotho instead.) There's no doubt that the issue is not merely objective "reasonable person" stuff any more. More's the pity IMHO.

 

[BritsKate]

No worries, I am not OP

So the defense is, I thought it was an intruder but I was mistaken because I am paranoid and vulnerable but it's not diminished capacity but kinda is. Yep clear as mud

You nailed it. I think the aim is/was to have Oscar 'ill' enough to experience heightened anxiety and vulnerability but 'not so ill' as to give the defence a higher burden to prove.

JMO

 

[james83]

But his nearest neighbors only heard a man screaming and they believed it was Oscar. They heard no woman. Some of the “screaming woman” neighbors only came forward after the case against Oscar was made in the media.

Hmmm………..


The problem for the state is that with a bench trial they must only argue the law as the judge will not be swayed by emotion and questionable "ear witnesses" as a jury would.

1) The nearest neighbour's very specifically heard a man "crying" not screaming.
2) the nearest neighbours very obviously heard the crying after both set's of sounds had occurred, a time when it was well known oscar was crying, as confirmed by Dr Stipp when he arrived at the scene and Estelle Van Der Merwe hearing the crying from her house.
Also please ponder this, Roux asked Mrs Nhlengethwa and Mrs Motshuane to give a demonstration of the cry that they heard, for some reason he didn't ask Mr Nhlengetwa to give do a demonstration of the cry he heard, now why do you think that was?.

 

[BritsKate]

1) The nearest neighbour's very specifically heard a man "crying" not screaming.
2) the nearest neighbours very obviously heard the crying after both set's of sounds had occurred, a time when it was well known oscar was crying, as confirmed by Dr Stipp when he arrived at the scene and Estelle Van Der Merwe hearing the crying from her house.
Also please ponder this, Roux asked Mrs Nhlengethwa and Mrs Motshuane to give a demonstration of the cry that they heard, for some reason he didn't ask Mr Nhlengetwa to give do a demonstration of the cry he heard, now why do you think that was?.

RBBM

And to your first point, before it turns into a semantics game, Roux himself qualified that there is a difference when crossing one of the State's witnesses. I'm sorry, I don't remember which one, only that he used the argument it wasn't screaming himself to, seemingly, cast doubt on the witness' testimony at the time.

JMO