Trial Discussion Thread #48

[AJ_DS]

Would there even have been a trial at all?

Yes most definitely… to establish to extent of the diminished responsibility.

It would have been a battle of psyche-experts and character witnesses.

Defence arguments would have been along the lines of : OP is a good boy, not at all a danger to society, highly unlikely to repeat such an incident, isolated 'perfect-storm' type of circumstances, seeking psychological help, etc…

The funny thing is that MANY of what was heard in testimony which is totally irrelevant to the current Trial would have been relevant to this alternate Trial :

- The $h!tty news OP received that day
- The pressures of Valentine's Day
- The hot and humid day
- The lack of air-conditioning
- The bum shoulder
- The athlete's career who's future was coming to an end which was weighing heavily on OP's mind
- … and who knows what else would have been put forth if OP had told the truth.
- … and many other thing that OP could have 'safely' stated to stretch circumstances in his favor

In this version, the referral would have found many factors to support the Defence's case.

Then bring forth a battery of experts to confirm those allegations : pressures of being a professional athlete, etc...

 

[liesbeth]

Yes most definitely… to establish to extent of the diminished responsibility.

It would have been a battle of psyche-experts and character witnesses.

Defence arguments would have been along the lines of : OP is a good boy, not at all a danger to society, highly unlikely to repeat such an incident, isolated 'perfect-storm' type of circumstances, seeking psychological help, etc…

The funny thing is that MANY of what was heard in testimony which is totally irrelevant to the current Trial would have been relevant to this alternate Trial :

- The $h!tty news OP received that day
- The pressures of Valentine's Day
- The hot and humid day
- The lack of air-conditioning
- The bum shoulder
- The athlete's career who's future was coming to an end which was weighing heavily on OP's mind
- … and who knows what else would have been put forth if OP had told the truth.
- … and many other thing that OP could have 'safely' stated to stretch circumstances in his favor

In this version, the referral would have found many factors to support the Defence's case.

Then bring forth a battery of experts to confirm those allegations : pressures of being a professional athlete, etc...

How about Reeva? Would her character have been a factor?

 

[Greater Than]

Thanks Greater Than … great reference !!

I must say that the professor's explanations are not easy to follow (just as one would expect from the Law, lol)… will have to read it one more time tomorrow, after a good nights sleep with a fresh cup of coffee.

I mostly read SA jurisprudence on PPD and PD… it was explained in simpler terms.

I believe my explanations and understanding does not contradict the professor… I may however be mistaken… if so, I gladly invite posters to set me straight

BIB- I'm sorry AJ. I wasn't at all suggesting that your explanation and understanding of PPD contradict the professor. I apologize if that's how my post was interpreted. Earlier in the trial, I gained a much clearer understanding of SA law in regards to PD/PPD by reading his blog, and just thought others may find it a useful reference as well.

 

[AJ_DS]

How about Reeva? Would her character have been a factor?

Not necessarily…

In a road-rage killing, the victim's character is not very relevant UNLESS the victim's behavior exacerbated the circumstances which led the accused to go into a blind furious uncontrollable anger.

But in this case, it would have been a very slippery slope IMO to allege that Reeva exacerbated the circumstances which led OP to shoot her.

Blaming the victim is usually perceived as poor form… UNLESS the victim is a proven abuser, molester, etc...

 

[AJ_DS]

BIB- I'm sorry AJ. I wasn't at all suggesting that your explanation and understanding of PPD contradict the professor. I apologize if that's how my post was interpreted. Earlier in the trial, I gained a much clearer understanding of SA law in regards to PD/PPD by reading his blog, and just thought others may find it a useful reference as well.

Yes I got that from your post… no worries… no apologies necessary

I simply took the opportunity to invite posters (not you specifically) to correct me if they believed my understanding was incorrect or flawed.

 

[Greater Than]

4. Yes, Masipa has to address the murder charge first… As stated above, the State's contention is that OP is lying… Masipa must first decide that OP has not fabricated his version before analyzing the particulars of his PPD Defence. There is also a legal procedure to be followed… First, the State has laid a charge of murder against OP… Secondly, the State has presented evidence in support of the murder case against OP… Thridly, the Defence has presented evidence in support of the PPD case… The Judge must follow this sequence… she cannot skip ahead to the PPD, say she believes OP, and therefore discard the murder charge on that basis… she will have to first analyze the State's case and evidence (including Defence cross-examination and rebuttal evidence) and come to a decision on the Murder charge.

RSBM

This makes perfect sense when you consider the very definition of the word "defense" - the case presented on behalf of the accused against the charges.

I had been been looking at the defense first, and formulating how the state disproved it. I even began with ruling PPD out first when I posted my opinion on the "Do you think the prosecutor proved their case" thread back in April.
http://www.websleuths.com/forums/sh...cutor-proved-the-case&p=10494484#post10494484

But now that you've pointed this out, I realize how the state's case and charges must be considered first. They do, after all, present their case first during trial. Duh. :blushing:

 

[liesbeth]

RSBM

This makes perfect sense when you consider the very definition of the word "defense" - the case presented on behalf of the accused against the charges.

I had been been looking at the defense first, and formulating how the state disproved it. I even began with ruling PPD out first when I posted my opinion on the "Do you think the prosecutor proved their case" thread back in April.
http://www.websleuths.com/forums/sh...cutor-proved-the-case&p=10494484#post10494484

But now that you've pointed this out, I realize how the state's case and charges must be considered first. They do, after all, present their case first during trial. Duh. :blushing:

You're not wrong. Neither is AJ.

Even if I'm mistaken and you are wrong, you're in good company, Greater Than, because *Gerrie Nel has said he will argue that Oscar is lying and he'll ask the judge to reject his testimony. The judge will have to consider Oscar's version in order to reject it.

I think it's as AJ's said above, it depends on your definition of PPD. And in this case I believe Oscar's version is his defense. You can't separate the two.

I've read your quoted Proved It?-post and I agree with you. The judge will have to decide if she accepts/rejects Oscar's version of PPD before she can decide if it's murder.

What I'm trying to say is that it's true that in a criminal trial the burden of proof usually rests on the State alone. The State must prove its case beyond a reasonable doubt. And all the defense has to do is create reasonable doubt. If they succeed the accused can not be convicted.

But in a case of putative private defense the accused/Oscar also has a burden of proof. Oscar can't just say, "I shot her. I thought she was an intruder." He has to prove that it was an honest mistake.

So AJ is right. And so are you in your Proved-It? post.

* Point 13 in this link:
http://ewn.co.za/2014/02/21/State-to-rely-on-13-facts-in-Oscar-Pistorius-trial

Edit: Added paragraphs and the last sentence. And I welcome correction.

Edit 2: Here's a link that explains it better than I can.
http://newyorkcriminaldefenseblawg....-by-a-criminal-defense-attorney-april-8-2014/

Pistorius’ defense is subtly complicated. The question is not simply whether he intended to kill his girlfriend or believed there was a burglar in his home. The questions presented are more precisely 1) whether he subjectively and genuinely believed that he was under imminent attack upon his life and that he was justified in acting as he did, and then 2) whether his actions in self-defense were objectively reasonable. If he fails to prove the first prong then he will be convicted of pre-meditated murder, and if he fails at the second prong then he will be found guilty of culpable homicide, or a negligent unlawful killing. Of course, if the court does ultimately determine that he knew that his girlfriend was in the bathroom then he loses spectacularly and will get a sentence of life in prison.

 

[Interested Bystander]

What if (a big one) OP fesses up tomorrow (unlikely I know) that in fact he did kill Reeva whilst in a blind rage because she said she was going to leave him and told him a few home truths. His story is he grabbed his gun and threatened her. She screamed, ran into the bathroom, he chased and shot her whilst shouting and raging. He apologises to the court for misleading it but says he can no longer live with his guilt. What would happen, anything? Does this ever happen in a trial such as this?

Other than at the very beginning when I thought there was a possibility this was a dreadful accident, I have always thought he was guilty of murder but I am fascinated by the machinations of the law and wondered what would happen under the above circumstances.

 

[liesbeth]

What if (a big one) OP fesses up tomorrow (unlikely I know) that in fact he did kill Reeva whilst in a blind rage because she said she was going to leave him and told him a few home truths. His story is he grabbed his gun and threatened her. She screamed, ran into the bathroom, he chased and shot her whilst shouting and raging. He apologises to the court for misleading it but says he can no longer live with his guilt. What would happen, anything? Does this ever happen in a trial such as this?

Oscar Trial Channel 199 spoke to advocate Manny Witz about this. He said that Gerrie Nel will not accept a plea bargain, not even for a traffic ticket.

 

[Greater Than]

Good point … I agree

I always believed that if OP had come clean and said that in heated argument that spun out of control, he fired at Reeva in a moment of blind furious anger, OP could have mounted a diminished responsibility Defence similar to to those road-rage incidents.

Doing so would have had the double benefit of being the truth (which is always good) but also avoiding embarrassing and contradicting testimony on the stand.

Pleading guilty to the 3 minor gun related charges would have also greatly helped and avoided further embarrassing and contradicting testimony.

With an honest and voluntary participation to a psyche-eval on those basis, OP would probably have been deemed to have suffered from automatism and his responsibility would have been greatly diminished.

But, as you stated, OP opted for the 'all in' scenario… probably because he believes (incorrectly) that he can always win.

OP admitting to ANY wrongdoing? NEVER!!!

Everyone is a liar or simply mistaken. Let's take a look at the list of people OP accuses of lying.

LIARS
Sam Taylor - liar (shot through sunroof)
Daren Fresco - liar (said "one up" at Tasha's/shot through sunroof)
Baba - liar ("everything is fine, security")
Police - liars (moved evidence)
Dr. Stipp - liar (bathroom light on/woman scream)
Mrs. Stipp - liar (bathroom light on/woman scream)
Burger - liar (woman scream)
Johnson - liar (woman scream)
Van der Merwe - liar (arguing/woman scream)
Reeva - liar (scared of him)
Roux - liar (double taps/mistakes on bail application)
Nel - liar (entire case)

Now let's look at, based on evidence, what OP lied about since the DT did not prove otherwise.

OP LIED ABOUT
Tasha's (I did not pull trigger)
Shot through car sunroof (never happened)
Illegal ammo (it's dads)
Where large fan was and that it was on (blocks access to balcony where he says he called for help/turned off)
Where small fan was and that it was on (in corner, facing curtains/unplugged)
Where the duvet was (jeans on top of it/lines up with blood trail on carpet)
Felt for Reeva behind the curtains (iPad, hair clipper, cords in the way)
Time of shots (his first phone call at 3:19 claimed she was still breathing)
Netcare told him to take her to hospital
Called Stander because he couldn't pick up Reeva (he walked down the stairs carrying her unassisted)
Where the magazine rack was (blood pool around leg of rack)
Magazine rack made a wood noise (she was standing in front of and close to door when first shot-not near rack)
They were asleep (she was fully dressed in gym clothes and had eaten recently)
Reason Olympic roommate requested to be moved

And finally, discrepancies in his own account of what happened (i.e. lying/tailoring evidence).

DISCREPENCIES
Double taps / no double taps
Went onto the balcony / never went onto the balcony
1 fan / 2 fans
She was asleep / she talked to him "can't sleep, baba?"
Heard noise, went into bathroom and noticed window open / heard window slam against frame
Realized intruder was in toilet because he noticed toilet door was closed / heard toilet door slam
Heard movement / heard wood sound and thought it was the door opening
Putative self defense / accident. Didn't intend to fire shots into door

I'm sure this is not a complete list, but at the very least it illustrates that OP is a liar and not credible. If his credibility is called into question by milady, then his entire account of that night is worthless. MOO

 

[liesbeth]

OP admitting to ANY wrongdoing? NEVER!!!

Everyone is a liar or simply mistaken. Let's take a look at the list of people OP accuses of lying.

LIARS
Sam Taylor - liar (shot through sunroof)
Daren Fresco - liar (said "one up" at Tasha's/shot through sunroof)
Baba - liar ("everything is fine, security")
Police - liars (moved evidence)
Dr. Stipp - liar (bathroom light on/woman scream)
Mrs. Stipp - liar (bathroom light on/woman scream)
Burger - liar (woman scream)
Johnson - liar (woman scream)
Van der Merwe - liar (arguing/woman scream)
Reeva - liar (scared of him)
Roux - liar (double taps/mistakes on bail application)
Nel - liar (entire case)

Now let's look at, based on evidence, what OP lied about since the DT did not prove otherwise.

OP LIED ABOUT
Tasha's (I did not pull trigger)
Shot through car sunroof (never happened)
Illegal ammo (it's dads)
Where large fan was and that it was on (blocks access to balcony where he says he called for help/turned off)
Where small fan was and that it was on (in corner, facing curtains/unplugged)
Where the duvet was (jeans on top of it/lines up with blood trail on carpet)
Felt for Reeva behind the curtains (iPad, hair clipper, cords in the way)
Time of shots (his first phone call at 3:19 claimed she was still breathing)
Netcare told him to take her to hospital
Called Stander because he couldn't pick up Reeva (he walked down the stairs carrying her unassisted)
Where the magazine rack was (blood pool around leg of rack)
Magazine rack made a wood noise (she was standing in front of and close to door when first shot-not near rack)
They were asleep (she was fully dressed in gym clothes and had eaten recently)
Reason Olympic roommate requested to be moved

And finally, discrepancies in his own account of what happened (i.e. lying/tailoring evidence).

DISCREPENCIES
Double taps / no double taps
Went onto the balcony / never went onto the balcony
1 fan / 2 fans
She was asleep / she talked to him "can't sleep, baba?"
Heard noise, went into bathroom and noticed window open / heard window slam against frame
Realized intruder was in toilet because he noticed toilet door was closed / heard toilet door slam
Heard movement / heard wood sound and thought it was the door opening
Putative self defense / accident. Didn't intend to fire shots into door

I'm sure this is not a complete list, but at the very least it illustrates that OP is a liar and not credible. If his credibility is called into question by milady, then his entire account of that night is worthless. MOO

Oh, yeah. What he/she said.

I was going to snip it for space, but I couldn't do it. Great post.

You can add this: Sam Taylor - liar (he doesn't scream like a woman)

 

[Interested Bystander]

op admitting to any wrongdoing? Never!!!

Everyone is a liar or simply mistaken. Let's take a look at the list of people op accuses of lying.

liars
sam taylor - liar (shot through sunroof)
daren fresco - liar (said "one up" at tasha's/shot through sunroof)
baba - liar ("everything is fine, security")
police - liars (moved evidence)
dr. Stipp - liar (bathroom light on/woman scream)
mrs. Stipp - liar (bathroom light on/woman scream)
burger - liar (woman scream)
johnson - liar (woman scream)
van der merwe - liar (arguing/woman scream)
reeva - liar (scared of him)
roux - liar (double taps/mistakes on bail application)
nel - liar (entire case)

now let's look at, based on evidence, what op lied about since the dt did not prove otherwise.

op lied about
tasha's (i did not pull trigger)
shot through car sunroof (never happened)
illegal ammo (it's dads)
where large fan was and that it was on (blocks access to balcony where he says he called for help/turned off)
where small fan was and that it was on (in corner, facing curtains/unplugged)
where the duvet was (jeans on top of it/lines up with blood trail on carpet)
felt for reeva behind the curtains (ipad, hair clipper, cords in the way)
time of shots (his first phone call at 3:19 claimed she was still breathing)
netcare told him to take her to hospital
called stander because he couldn't pick up reeva (he walked down the stairs carrying her unassisted)
where the magazine rack was (blood pool around leg of rack)
magazine rack made a wood noise (she was standing in front of and close to door when first shot-not near rack)
they were asleep (she was fully dressed in gym clothes and had eaten recently)
reason olympic roommate requested to be moved

and finally, discrepancies in his own account of what happened (i.e. Lying/tailoring evidence).

discrepencies
double taps / no double taps
went onto the balcony / never went onto the balcony
1 fan / 2 fans
she was asleep / she talked to him "can't sleep, baba?"
heard noise, went into bathroom and noticed window open / heard window slam against frame
realized intruder was in toilet because he noticed toilet door was closed / heard toilet door slam
heard movement / heard wood sound and thought it was the door opening
putative self defense / accident. Didn't intend to fire shots into door

i'm sure this is not a complete list, but at the very least it illustrates that op is a liar and not credible. If his credibility is called into question by milady, then his entire account of that night is worthless. Moo

excellent!

 

[soozieqtips]

Don't think it's been posted here. Forgive me if it's old news.

On 15 July @MandyWiener tweeted an exclusive photo of OP at The VIP Club where he had an altercation with Jared Mortimer on Saturday.

Edit: Some local gossip....Mortimer has challenged Oscar to take a polygraph test.

http://www.channel4.com/news/pistorius-nightclub-brawl-fight-jared-mortimer

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?

 

[AJ_DS]

What if (a big one) OP fesses up tomorrow (unlikely I know) that in fact he did kill Reeva whilst in a blind rage because she said she was going to leave him and told him a few home truths. His story is he grabbed his gun and threatened her. She screamed, ran into the bathroom, he chased and shot her whilst shouting and raging. He apologises to the court for misleading it but says he can no longer live with his guilt. What would happen, anything? Does this ever happen in a trial such as this?

I have always thought he was guilty of murder but I am fascinated by the machinations of the law and wondered what would happen under the above circumstances.

Not a lawyer but I can speculate :

- OP can change his version whenever he chooses.

- If OP comes clean, he would be charged first with perjury… those many days on the stand, under oath, proffering lies with malice aforethought is perjury.

- Both State and Defence have rested their case… so too late to change the outcome.

- Also the PPD and culpable homicide would be out the window and with no evidence of diminished responsibility, Murder is the only thing remaining.

- Masipa would probably come down harder on OP with concrete proof that OP lied to her face, perverted the administration of Justice and wasted the Court's and the State's valuable time.

 

[Val1]

Not a lawyer but I can speculate :

- OP can change his version whenever he chooses.

- If OP comes clean, he would be charged first with perjury… those many days on the stand, under oath, proffering lies with malice aforethought is perjury.

- Both State and Defence have rested their case… so too late to change the outcome.

- Also the PPD and culpable homicide would be out the window and with no evidence of diminished responsibility, Murder is the only thing remaining.

- Masipa would probably come down harder on OP with concrete proof that OP lied to her face, perverted the administration of Justice and wasted the Court's and the State's valuable time.

I would hope he'd also receive a massive bill for the court proceedings to date.

 

[liesbeth]

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?

And if this is how the family usually treats him - protecting him and excusing his actions - no wonder he refuses to take responsibility for killing Reeva.

MOO.

 

[liesbeth]

http://criminallawza.net/2014/07/12/205/

Prof James Grant on: Is Pistorius guilty of murder?

He explains it by using an analogy : Does James Grant think he is an alien? 1/

Pistorius needs only to raise a reasonable doubt that he intended to UNLAWFULLY kill whoever was behind the door 2/

Intention is judged subjectively – what was he actually thinking; A doubt = a possibility. Thus a reasonable doubt = a reasonable possibility. 3/

There must always be doubt about anything in the universe. It’s possible that Grant is an alien… 4/

But is it reasonably possible? We may dismiss this possibility as unreasonable, but can we dismiss the possibility that Grant THINKS he is an alien as unreasonable? Probably (I hope)5/

Similarly, for Pistorius, he has conceded that there is no reasonable possibility that he was, in fact, entitled to kill in private defence 6/

But, can we dismiss the possibility that Pistorius THOUGHT he was entitled to kill in private defence as unreasonable? 7/7

Edit: Apologies. I keep getting logged off before I can finish. I wanted to add...
And then I saw that NASA predicts finding evidence of extraterrestrial life within 20 years.

 

[Lux et Veritas]

Oscar Mystery #948 - OP actually expected to find Reeva still in bed after FOUR LOUD gunshots?!! Seriously???

Wouldn’t a reasonable woman be terrified and scream out to her boyfriend to confirm he was safe - not knowing if it was HE who had been shot?!!! (Remember, it was “pitch black” and Reeva couldn’t possibly see who was shooting in the bathroom.)

Yet OP insists that Reeva never, ever said one word, never made one sound and never screamed that entire time. Not only that, she NEVER called the police as OP repeatedly instructed her! 100% pure bullsh#t. His version is simply not in the realm of possibility. If I heard even one gunshot, never mind four, I’d be hiding, running, screaming, calling 911 or all of the above.

Gunshots do not elicit silence - they elicit raw, primal FEAR.

 

[Cherwell]

Prof James Grant on: Is Pistorius guilty of murder?
.........

But, can we dismiss the possibility that Pistorius THOUGHT he was entitled to kill in private defence as unreasonable?

I think Sean Rens's evidence shot that down, if you'll pardon the expression.

 

[soozieqtips]

Oscar Mystery #948 - OP actually expected to find Reeva still in bed after FOUR LOUD gunshots?!! Seriously???

Wouldn’t a reasonable woman be terrified and scream out to her boyfriend to confirm he was safe - not knowing if it was HE who had been shot?!!! (Remember, it was “pitch black” and Reeva couldn’t possibly see who was shooting in the bathroom.)

Yet OP insists that Reeva never, ever said one word, never made one sound and never screamed that entire time. Not only that, she NEVER called the police as OP repeatedly instructed her! 100% pure bullsh#t. His version is simply not in the realm of possibility. If I heard even one gunshot, never mind four, I’d be hiding, running, screaming, calling 911 or all of the above.

Gunshots do not elicit silence - they elicit raw, primal FEAR.

Reeva was struck mute and invisible from the moment OP heard a 'noise'.