Trial Discussion Thread #48

[Val1]

Masipa indicated she would be happy for him to be an outpatient, saying she did not intend for Pistorius to be "punished twice".
http://www.theguardian.com/world/2014/may/14/oscar-pistorius-trial-judge-mental-health-live

I took the "punished twice" to mean his big stretch in the Pretoria Jail. 40 years should be enough punishment for his crimes, that extra month in the funny farm would be the second punishment. :jail:

Thanks for the linked correction, I'd go back and edit my post if I could... :/

 

[jillondon]

In total agreement with everything you said…

…except BiB

It has been explained that one can optimize search engine results to favor on site over others… there are companies that specialize in that alone.

It's not about being 'powerful' or 'influential' enough to modify Google results… it's simply about paying professionals to expertly exploit Google's search algorithms to produce the desired results.

… and we have seen the Pistorius clan doesn't shy from expensive professional services when OP is concerned, not even with seemingly frivolous inconsequential ones.

I thought this link might contribute to the debate: http://www.theguardian.com/commentisfree/2014/jul/16/brand-pistorius-tweeting-brands-pr

There are some very clever/funny comments at the bottom of the article.

 

[AJ_DS]

BIB - I say yes to both. This isn't a case of "whodunit." We know who did it. He's admitted he shot and killed Reeva. The question to be answered is why.

He claims the reason is because he was acting in PPD - that he intentionally fired the lethal shots because he genuinely believed his life was in danger.

The state claims the reason is because he intentionally murdered - that he fired the lethal shots because he wanted Reeva dead.

It has to be one or the other. If the judge accepts one, it means she rejects the other.

It's only after if she rejects intentional murder and accepts PPD that she would then apply the objective reasonable man test to determine, even though she accepted that OP genuinely thought he acted lawfully when used lethal force, if the reasonable man in the same circumstances would have also believed an attack was imminent and would have also used the same deadly force OP did. If the answer is yes, she will find him not guilty. If the answer is no, she will find him guilty of CH.

Not the specific topic of our discussion, but him stupidly changing his defense on the stand will probably have implications too. Saying he didn't intend to shoot proves negligence, at the very least, to me. It may also be viewed by milady as yet another discrepancy in his versions, decide he's not credible at all, dismiss his entire version thereby accepting the state's version, and convict him of murder.

MOO

Not rehashing a previous subject… I just missed the BiB

IMO, BiB is incorrect… Masipa will not be addressing the WHY Reeva was killed

The important thing to address and decide is the WHAT happened :

i.e.

- Was Reeva in bed sleeping with OP or was Reeva awake and arguing with OP
- Was Reeva screaming in fear or was OP the only one shouting whilst Reeva remained silent
- etc…

Masipa has 2 very different versions of WHAT happened that night, but only 1 can be believed

The WHY would be motive for murder which is NOT necessary to the PT's case

The WHY would be the subjective perceptions of OP in his own version which is ONLY necessary to the DT's case IF Masipa rejects the PT's version

 

[Cherwell]

BIB, while the judge and assessors do have access to all the material (eg text messages) that have been submitted, I wonder if they would actually go through all of this information. There is mountains of information and if the PT or the DT didn't feel it was important enough for them to highlight it during the trial itself, what point would there be for the judge and assessors to go through it as well.

Surely they would be looking through it day by day.

There was quite a bit of criticism throughout the trial about the shortness of the time spent in court each day, but a lot of work is done outside that time, and I imagine that studying the evidence would be part of that.

 

[Cherwell]

I was thinking about the same thing. A truly scary thought as I'd assume a not guilty verdict would also mean he's free to start gun collecting again

He's got to be found guilty on the gun charges, though, surely?

 

[AJ_DS]

Unfortunately this type of evidence would not have been admissible in court. The prosection was not allowed to bring character witnesses against the defendant.

I understand the Westkoppies examination was solely to find whether or not he had GAD at the time of the shooting. They concluded that he did not. Anything else was not really relevant.

BiB is incorrect.

Character evidence can be led in Court BUT it has to be done by the Defence FIRST… if Defence does not open the door to character evidence, the State cannot lead some on its own… but if Defence opens the door to it, the State can cross-examine that evidence and produce some of their own.

That's why some believed Nel might reopen the State's case on that basis.

The State choose to focus on the WHAT happened and, as much as possible, steer clear from the WHY it happened… a wise decision IMO

 

[Cherwell]

Not rehashing a previous subject… I just missed the BiB

IMO, BiB is incorrect… Masipa will not be addressing the WHY Reeva was killed

The important thing to address and decide is the WHAT happened :

i.e.

- Was Reeva in bed sleeping with OP or was Reeva awake and arguing with OP
- Was Reeva screaming in fear or was OP the only one shouting whilst Reeva remanned silent
- etc…

Masipa has 2 very different versions of WHAT happened that night, but only 1 can be believed

The WHY would be motive for murder which is NOT necessary to the PT's case

The WHY would be the subjective perceptions of OP in his own version which is ONLY necessary to the DT's case IF Masipa rejects the PT's version

No, the prosecution doesn't have to explain motive, but with respect I think this is semantics. "Why" and "what happened" amount to the same thing here.

"He's admitted he shot and killed Reeva. The question to be answered is why."

It is WHY. Why did he shoot Reeva? Quite simply, either because

1. he genuinely thought she was a burglar or
2. he knowingly shot her because of ..... whatever reason which the prosecution doesn't need to explain in detail.

 

[Cherwell]

BiB is incorrect.

Character evidence can be led in Court BUT it has to be done by the Defence FIRST… if Defence does not open the door to character evidence, the State cannot lead some on its own… but if Defence opens the door to it, the State can cross-examine that evidence and produce some of their own.

That's why some believed Nel might reopen the State's case on that basis.

The State choose to focus on the WHAT happened and, as much as possible, steer clear from the WHY it happened… a wise decision IMO

Yes, I realise that, but it could not have formed part of the main prosecution case. Nel could have argued that that "door" had been opened right at the end by a so-called expert witness. But I agree it was probably better left where it was. The evidence that was referred to has emerged subsequently anyway.

 

[AJ_DS]

No, the prosecution doesn't have to explain motive, but with respect I think this is semantics. "Why" and "what happened" amount to the same thing here.

"He's admitted he shot and killed Reeva. The question to be answered is why."

It is WHY. Why did he shoot Reeva? Quite simply, either because

1. he genuinely thought she was a burglar or
2. he knowingly shot her because of ..... whatever reason which the prosecution doesn't need to explain in detail.

BiB… that's exactly what I said : " The WHY would be motive for murder which is NOT necessary to the PT's case "

As for WHAT and WHY being semantics, I respectfully disagree… they are worlds apart.

WHAT : is the physical reality of events and it is purely objective e.g. OP fired 4 bullets into the toilet door

WHY : is the reason behind the events and it is mostly subjective e.g. Why did OP fire 4 bullets ? Why did he not fire only 1 bullet ?

The WHY something happened remains in the realm of possible theories UNTIL the WHAT happened is determined.

This is precisely the case in OP's Trial : the ONLY way fear, vulnerability, reduced mobility, etc… become relevant is if one adopts the WHAT happened in DT's version and reject the PT's version.

If one determines that the lights were ON in the bathroom, that Reeva was screaming in fear whilst OP was terrorizing her and that OP paused between gunshot #1 and #2-3-4, then OP's version is a fabrication and the WHY he would have acted as he described in his fictitious version is beyond irrelevant.

 

[kittychi]

OP would never take it!! Doesn't anyone think it's beyond laughable that the family continue to portray OP as an innocent victim who was just sitting there minding his own business, when for no apparent reason, Jared Mortimer thought he'd go over and "aggressively engaged" him with regards to the trial, while inventing a whole conversation about Zuma that allegedly never took place? The whole OP clan's stock defence is deny deny deny, even when it's flipping obvious that OP can't control his drink and becomes an obnoxious git once he's drunk. Having NOT tested him for alcohol after the mysterious boat accident (in which OP once again, bless his cotton socks, was the victim) and not tested him for so many hours after the murder, that the results would have read zilch anyway - I'd like to know who decides blood tests aren't necessary in cases like these. Was the guy (distant family member?) who showed up after the murder, who said he'd "look after OP", was he the one who decided to delay the testing that day?

IMO the entire Pistorius family was, is, and probably will continue to be in denial. Emotionally they already have so much invested in OP, I am not sure their humanity will allow them out of the denial meme amongst themselves.

I also think it is possible that OP has blackouts and does not remember the evening at all. It may be one true thing he is telling his family--that it never happened [because he blacked out]. You would think the cousin would tell the truth to the family, no?

:gaah:

.

I still think the entire scenario with Reeva was fueled by alcohol.

.

 

[Cherwell]

BiB… that's exactly what I said : " The WHY would be motive for murder which is NOT necessary to the PT's case "

As for WHAT and WHY being semantics, I respectfully disagree… they are worlds apart.

WHAT : is the physical reality of events and it is purely objective e.g. OP fired 4 bullets into the toilet door

WHY : is the reason behind the events and it is mostly subjective e.g. Why did OP fire 4 bullets ? Why did he not fire only 1 bullet ?

The WHY something happened remains in the realm of possible theories UNTIL the WHAT happened is determined.

This is precisely the case in OP's Trial : the ONLY way fear, vulnerability, reduced mobility, etc… become relevant is if one adopts the WHAT happened in DT's version and reject the PT's version.

If one determines that the lights were ON in the bathroom, that Reeva was screaming in fear whilst OP was terrorizing her and that OP paused between gunshot #1 and #2-3-4, then OP's version is a fabrication and the WHY he would have acted as he described in his fictitious version is beyond irrelevant.

I don't understand what you're arguing about. Either OP shot RS because he thought she was a burglar, or he knew it was her and he shot her for some other reason. That is what I understood Greater Than to be saying. If I'm wrong, no doubt s/he will correct me.

 

[Greater Than]

BIB I don't believe this is quite correct.

My understanding on this is that PPD is a legitimate defence to murder and if the judge finds OP's claim of PPD as valid, that is the end of the case. There is no murder charge, no CH and OP is innocent of all charges. The reason why is PPD is the lawful killing to defend yourself or property whereas murder is the unlawful killing of a person.

Here is a short excerpt from http://criminallawza.net/2014/04/13/pistoriuss-new-defence/

For murder, you must intend to unlawfully kill. If you are mistaken, and genuinely believe you are acting lawfully (such as in private-defence (the technical name for the defence under which self-defence is located)), whereas you are not acting lawfully, you cannot be convicted of murder because you don’t intend to act unlawfully. To escape a conviction of culpable homicide this mistake must be reasonable – one which the reasonable person may make. But on a murder charge, it is enough, for an acquittal, if the accused was subjectively mistaken.

Yes, PPD is a legitimate defense against the charge of murder, but even if the judge finds that he meets all the requirements of and did act in PPD, that isn't the end of it. That's when she will apply the reasonable man test and although he escaped the intent requirement for murder, he may still be found guilty of CH if the reasonable man would not have made the mistake he did. If the reasonable man wouldn't, it means OP acted negligently and thus, will be found guilty of CH.

If one did not intend to act unlawfully, one has a valid defence. Thus – and this is what Pistorius appears to be claiming – if one mistakenly believes that one was acting lawfully, in self/private defence, one has a valid and complete defence. Here is the catch – actually, there are two.

[...]

...even if Pistorius succeeds in his defence (of mistake as to unlawfulness) against the murder charge, the next automatic question will be whether this mistake was a reasonable one. This is the question of culpable homicide. It is judged objectively – whereas intention is judged subjectively. The objective standard of the reasonable person is the basis on which our courts judge negligence. At its essence it is a hypothetical comparison of the actual conduct of the accused against what a reasonable person, in the circumstances of the accused, would have done. If there is any deviation on the part of an accused from what the reasonable person would have done, the accused will be judged to have acted negligently.
http://criminallawza.net/2014/03/03/the-pistorius-defence/

The state has charged OP with murder, not the lesser charge of CH. CH is only a possibility if she accepts PPD.

 

[geevee]

I hope in Nel's closing he makes a very large point of what Reeva was wearing when she was shot, combined with the ear witnesses I don't see how the judge could rule it anything but intentionally killing her and not OP fearfully letting his gun go off at some noisy and very incompentent burgular who locks himself in a toilet closet screaming like a woman.

Going back into the replay now...

 

[Greater Than]

Not rehashing a previous subject… I just missed the BiB

IMO, BiB is incorrect… Masipa will not be addressing the WHY Reeva was killed

The important thing to address and decide is the WHAT happened :

i.e.

- Was Reeva in bed sleeping with OP or was Reeva awake and arguing with OP
- Was Reeva screaming in fear or was OP the only one shouting whilst Reeva remained silent
- etc…

Masipa has 2 very different versions of WHAT happened that night, but only 1 can be believed

The WHY would be motive for murder which is NOT necessary to the PT's case

The WHY would be the subjective perceptions of OP in his own version which is ONLY necessary to the DT's case IF Masipa rejects the PT's version

I didn't say Masipa will address WHY Reeva was killed, what I said is she will address WHY he pulled the trigger.

He claims he pulled the trigger because he thought she was an intruder.

The state claims he pulled the trigger because he wanted her dead.

WHY he wanted her dead is the motive.

 

[Greater Than]

BiB is incorrect.

Character evidence can be led in Court BUT it has to be done by the Defence FIRST… if Defence does not open the door to character evidence, the State cannot lead some on its own… but if Defence opens the door to it, the State can cross-examine that evidence and produce some of their own.

That's why some believed Nel might reopen the State's case on that basis.

The State choose to focus on the WHAT happened and, as much as possible, steer clear from the WHY it happened… a wise decision IMO

The state did not steer clear of why it happened at all. They addressed it to suggest premeditation. The state introduced the following evidence about why it happened:

The ear witness testimony about hearing an argument for an hour points to why it happened.

Their text messages showing all their arguments points to why it happened.

Reeva's text messages about how critical he is of her and how she is afraid of him points to why it happened.

We know the state doesn't have to prove a motive to get a conviction on the murder charge, but they have definitely contended that there was an argument between them that night, which led to him murdering her.

 

[AJ_DS]

I believe there is some confusion on the distinction between WHAT and WHY… perhaps I did not express my POV clearly

Apologies in advance to those that may find this post redundant.

The WHY is by definition a personal and subjective concept, whereas the WHAT is by definition a factual and objective concept.

The WHAT can be photographed or filmed with a camera, whereas the WHY cannot.


In OP's case, the DT alleges that OP shot and killed Reeva because he mistakenly thought she was an intruder… Yes, that is the WHY which is proffered by the Defence…

BUT this WHY rests solely on OP's version of events : Reeva in bed, pitch-darkness, sound of bathroom window opening, fear and panic, vulnerability, reduced mobility, etc…

OP's version of events is the WHAT which is proffered by the Defence.


The WHY is entirely predicated on the WHAT… never the other way round : e.g. without the sound of the bathroom window opening, there would be no fear or panic

The State has provided much evidence that contradicts OP's version of events… the State alleges that the WHAT proffered by the Defence is a fabrication.


Masipa will NOT decide the WHAT happened that night based on OP's alleged reasons behind his alleged actions…. i.e. Masipa will not use the alleged WHY to determine the WHAT.


Masipa will first have to decide the WHAT happened that night… to do so she will have to examine, address and reconcile the following evidence :

- State side : ear-witness testimony, eye-witness testimony, forensics, ballistics, etc…

- Defence side : OP's testimony

… at the end of which, she only has 2 options :

1. She does not believe OP's version of events because a) OP's credibility is lacking and/or b) OP's version is unreconcilable with the evidence

2. She believes OP's version of events, in which case she will then determine if OP's reasons (the WHY) for acting as described in his version of events were reasonable (PPD) or unreasonable (culpable homicide).

 

[AJ_DS]

I didn't say Masipa will address WHY Reeva was killed, what I said is she will address WHY he pulled the trigger.

He claims he pulled the trigger because he thought she was an intruder.

The state claims he pulled the trigger because he wanted her dead.

WHY he wanted her dead is the motive.

Agreed

 

[AJ_DS]

The state did not steer clear of why it happened at all. They addressed it to suggest premeditation. The state introduced the following evidence about why it happened:

The ear witness testimony about hearing an argument for an hour points to why it happened.

Their text messages showing all their arguments points to why it happened.

Reeva's text messages about how critical he is of her and how she is afraid of him points to why it happened.

We know the state doesn't have to prove a motive to get a conviction on the murder charge, but they have definitely contended that there was an argument between them that night, which led to him murdering her.

I believe this may be the source of our divergent point of view…

IMO…

- the 'hearing an argument for an hour' evidence was not led as a motive for murder but as contradictory evidence to OP's version of events… same as the stomach content

- the 'Whatsapp argument messages' and 'I'm scared of you' evidence was not led as a motive for murder but as contradictory evidence to OP's loving and caring relationship with Reeva.

As I see it, it will be much easier and useful for Nel to completely disprove OP's version of events (which leads to the only alternative : murder), than to convince Masipa that an argument between Reeva and OP was the cause of OP shooting and killing Reeva.

 

[Greater Than]

I believe this may be the source of our divergent point of view…

IMO…

- the 'hearing an argument for an hour' evidence was not led as a motive for murder but as contradictory evidence to OP's version of events… same as the stomach content

- the 'Whatsapp argument messages' and 'I'm scared of you' evidence was not led as a motive for murder but as contradictory evidence to OP's loving and caring relationship with Reeva.

The leading of that evidence was twofold- to discredit OP's version, and to suggest motive

I see it, it will be much easier and useful for Nel to completely disprove OP's version of events (which leads to the only alternative : murder), than to convince Masipa that an argument between Reeva and OP was the cause of OP shooting and killing Reeva.

I would just like to point out that this is exactly what I was saying pages ago when you told me I was looking at it backwards by disproving OP's defense first rather than proving the PT's case first.

 

[AJ_DS]

The leading of that evidence was twofold- to discredit OP's version, and to suggest motive

I would just like to point out that this is exactly what I was saying pages ago when you told me I was looking at it backwards by disproving OP's defense first rather than proving the PT's case first.

I get what you are saying but I stated that I was not sure if disproving OP's version was enough by itself to prove murder beyond a reasonable doubt… I'm still not sure.

The 'Reeva screaming in fear' evidence is also twofold :

- It disproves OP's version of events (as the 'argument at 2AM' and the 'stomach content' evidence)

- It is circumstantial evidence of murder

Naturally, an argument between a couple is a possible motive for a murder… but if instead of an argument, a passionate and loud sex-romp was heard between 2AM and 3AM, the motive aspect would disappear completely but the disproving aspect would remain.