Trial Discussion Thread #50 - 14.08.8, Day 40 ~final arguments continue~

DNA Solves
DNA Solves
DNA Solves

New Posts

Status
Not open for further replies.
I was thinking about this last night, and one of the thoughts which occurred to me was this:

Roux is an excellent and well respected defense advocate, no doubt about it. But how many times in his career has he had to defend a person accused of murder? With his prices, in the echelons that he moves in, with the type of clientele he has? I have looked this up and I stand corrected, but I can't find any other actual murder cases he has been involved in, only other criminal cases such as tax evasion.

Nel on the other hand will have had thousands of murder cases to prosecute in his career. He knows this territory very, very well, and this is why most times that Nel and Roux have disagreed over a point of law, and Masipa has taken time to decide, she has ruled in Nel's favour. (most times, not all, but the majority).

Nel has more expertise in this area. Roux has less. This is why Nel is so very confident. It is why he could do things like call the defense out on the impossibility of OP's having two contradictory defenses... a basic error that they really should not have made.

Roux has had a very difficult case here and I think he has done his best with it, given the limits of what he was working with and his own experience, but I am absolutely certain that Masipa will hand down a verdict of murder on September 11.
 
It is so weird to me that the sentence will be handed down on 9/11. That is NOT a lucky day for me, nor most Americans. I hope this is not part of the bad luck associated with that day. :eek:
 
jassy writer said:
I was thinking about this last night, and one of the thoughts which occurred to me was this:

Roux is an excellent and well respected defense advocate, no doubt about it. But how many times in his career has he had to defend a person accused of murder? With his prices, in the echelons that he moves in, with the type of clientele he has? I have looked this up and I stand corrected, but I can't find any other actual murder cases he has been involved in, only other criminal cases such as tax evasion.

Nel on the other hand will have had thousands of murder cases to prosecute in his career. He knows this territory very, very well, and this is why most times that Nel and Roux have disagreed over a point of law, and Masipa has taken time to decide, she has ruled in Nel's favour. (most times, not all, but the majority).

Nel has more expertise in this area. Roux has less. This is why Nel is so very confident. It is why he could do things like call the defense out on the impossibility of OP's having two contradictory defenses... a basic error that they really should not have made.

Roux has had a very difficult case here and I think he has done his best with it, given the limits of what he was working with and his own experience, but I am absolutely certain that Masipa will hand down a verdict of murder on September 11.
Click to expand...

But Judging by Uncle Arnold's opinion Roux's performance was compared to that of a Mercedes and Nel just a plain old cheap Fiat. The man is seriously deluded or his hearing apparatus is faulty, as Mr Nel 's performance was absolutely brilliant. The man is a genius IMO and he has gave his all in support of justice for the real victim Reeva. So if Roux is a Mercedes, IMO Nel is a LaFerrari Supercar but he does not come with a big fee.
 
whiterum said:
But Judging by Uncle Arnold's opinion Roux's performance was compared to that of a Mercedes and Nel just a plain old cheap Fiat. The man is seriously deluded or his hearing apparatus is faulty, as Mr Nel 's performance was absolutely brilliant. The man is a genius IMO and he has gave his all in support of justice for the real victim Reeva. So if Roux is a Mercedes, IMO Nel is a LaFerrari Supercar but he does not come with a big fee.
Click to expand...

Like a few other members of his clan Arnold Pistorius seems to have no clue as to what is and what isn't appropriate. His nephew shot someone dead with four bullets and the elder Pistorius tweets about 'the truth destroying evil' in relation to the ensuing trial. WTF. Beyond the fact that it's just another soundbite that doesn't really mean much - 'evil' has triumphed over the truth many many times - what on earth does he consider to be the 'evil' in this instance? The justice system, Prosecutor Nel, Reeva's friends, the Steenkamps, the Stipps? This smirking patriarch strikes me as a very disengenuous person so I guess it should be no surprise that he's his slimy nephew's staunchest defender.
 
whiterum said:
But Judging by Uncle Arnold's opinion Roux's performance was compared to that of a Mercedes and Nel just a plain old cheap Fiat. The man is seriously deluded or his hearing apparatus is faulty, as Mr Nel 's performance was absolutely brilliant. The man is a genius IMO and he has gave his all in support of justice for the real victim Reeva. So if Roux is a Mercedes, IMO Nel is a LaFerrari Supercar but he does not come with a big fee.
Click to expand...

I agree that Nel has done an excellent job. Roux is the desperate one and really hanging his hat on a risky strategy. The reasonable man test will have to be changed for Oscar or a dual defence of he shot because of 2 separate reasons. I hope the judge coldly rejects the OP defence as not relevant to modern SA disabled or able bodied society (even if they are rich and entitled).

Interesting that he holds Mercedes up to the Gold standard .... didn't they fill their seats with holocaust victims hair in WWII? Fiat don't have any such stories just good old honest mechanical failure with no bodies lost in their manufacture. :moo:
 
Judgejudi said:
If he's found guilty of the main charge and if he appeals, which I'm positive he will, in all probability his bail will continue even if he's found guilty of all the lesser charges. I think it's so wrong that a convicted murderer anywhere in the world should be allowed out on bail. It's just not right. There's also the possibility that Roux will lodge his appeal at the time the verdict is handed down. I think he has 3 weeks in which to do so. If all this happens, it won't be special treatment because it's happened before in SA. And if you don't like that, and I certainly don't, you'll like it even less when you find out that all his sentences will probably run concurrently, not consecutively.
Click to expand...

Yeah, this is a really sick mind blower. Any idea how long the appeals process is in SA? Could the sweet, traumatized Oscar be out partying & clubbing for years while he 'fights' a guilty verdict? :sick:
 
It's getting very quiet here now so I'm going to post a series of things for you to read. No doubt I'll have to re-post them after the verdict has been handed down.

I believe OP will be convicted and, hopefully, receive a lengthy sentence. If so, I think Roux has 14 days in which to file for an appeal but he can also do it at the time judgment is delivered.

As for the grounds of appeal, I can think of two that Roux will probably use:

1) OP’s trial was unfair because it was televised;

2) A number of defence witnesses refused to testify because they didn’t want their voices heard.

3) In practice a ground of appeal would be that the Judge erred in applying the law.
Judges and Magistrates allow the accused to bring an appeal when they are confident about their ruling as a higher court will of course confirm their finding should they have acquitted themselves well of their task in applying the law to the evidence placed before court.

The defence team will allege numerous reasons for their application relating to both fact and law. It’s very unlikely that the application will be refused because inasmuch as Masipa will feel confident in her handling of the matter and her judgment she will also know that the appeal process is a natural step in trial process and a full bench of 3/5 judges could find differently to her.

In fact the irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it.

A date for appeal to the SCA should be provided within 18 months after conviction.

According to the Constitution, the Supreme Court of Appeal -
* functions only as a court of appeal
* may decide any matter on appeal and,
* is, except for constitutional matters, the highest court of appeal.
 
If OP is granted leave to appeal, he can appeal both conviction and sentence.
The State however cannot appeal a not guilty verdict except on the basis that Masipa made an error of law in arriving at the decision. If OP appealed against conviction and sentence, the State can cross-appeal to have the sentence increased.

I'm going to post a series of judgments, links attached. They're very interesting to read IMO.

1. Mkhize v The State

The following is from the South African Court of Appeal on murder, private defence, putative private defence and culpable homicide:

“To secure a conviction, the State had to prove beyond a reasonable doubt that the appellant unlawfully and intentionally killed the deceased. The State must show that he did not act in private defence or in terms of a putative private defence. The distinction between the two defences has been accepted by our courts. In S v De Oliveira this court said the following:

‘The test for private defence is objective – would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative private defence it is not lawfulness that is in issue but culpability (“skuld”). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.’

… A court of appeal will not disturb the factual findings of a trial court unless the latter had committed a material misdirection. Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct. The appeal court will only reverse it where it is convinced that it is wrong. In such a case, if the appeal court is merely left in doubt as to the correctness of the conclusion, then it will uphold it. This court in S v Naidoo & others reiterated this principle as follows:

‘In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the
record to be wrong.’

The test that applies, and what was required to be shown by the appellant in order to avoid a conviction on culpable homicide is that a reasonable person in the same circumstances in which he found himself would have believed that his life was in danger and would have acted as he did. The only issue was whether the State had proved beyond reasonable doubt that the appellant did not, subjectively, entertain an honest belief that his life was in danger and thus not justified to act in putative private defence.”

Trial was held in a regional court.
Convicted of murder and sentenced to 12 years

Appeal to the High Court against conviction and sentence was dismissed.
Appeal to Court of Appeal: Conviction and sentence set aside and appellant convicted of culpable homicide.
Sentence: 5 years wholly suspended on condition that he’s not convicted of culpable homicide or any competent verdict of culpable homicide, and for which he is sentenced to a term of imprisonment without the option of a fine, committed during the period of suspension.

http://www.justice.gov.za/sca/judgments/sca_2014/sca2014-052.pdf
 
2. DPP v Phillips

Convicted of premeditated murder (dolus directus) of wife plus other offences
Sentence: 12 years, other sentences to run concurrently
Pleaded guilty of murder at trial.

On the premeditation, the Court found that the intention to kill was formed a short while earlier.
Mitigating factors: The evidence of the psychologist in the court below emphasised that he was not in a position to deal with and handle the intense emotional state thrust
upon him by the vicissitudes of life not least the lack of parental love and nurturing during his early childhood. He was abandoned by his parents at the age of six months and consequently grew up with his paternal grandmother; that as a child he lacked emotional security; and that because of his emotional upheavals he had low self-esteem. Over a period of a year he had been without a source of income as a result of which he was unable to provide for his wife, children and household. His first marriage had ended in divorce. He had also suffered sustained emotional torture and betrayal at the hands of the deceased and that he was so traumatised during the eight hour session with the psychologist that he, at times, burst into tears thus manifesting remorse for what he did to the deceased and his family. The psychologist and pre-sentence reports were testimony to the fact that the respondent’s life at the critical moment was disintegrating.

Appeal by the State against leniency of the sentence
Sentence set aside and increased to 18 years, other sentences to run concurrently

http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-192.pdf
 
3. Meyer v The State

Convicted of murder (x 3) plus other offences
Sentence: 2 life sentences

The trial court rejected the applicant’s version as false beyond reasonable doubt, finding that it was riddled with inconsistencies, improbabilities and contradictions. The applicant alleged manipulation of the evidence by the investigating officer, in particular the alleged tampering with the ballistic evidence. There was no evidence to suggest that the applicant had planned the shooting. The evidence of independent witnesses was overwhelming on convictions.

Appeal against convictions – dismissed
Leave to lead new evidence on appeal – dismissed
Appeal against sentence partly upheld – 24 years, other sentences to run concurrently. (Appellant had already been in custody for 14 years)

http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-208.pdf
 
4. Makgatho v The State

Convicted or murder (dolus eventualis) plus other offences
Sentence: 15 years

Discharging a firearm fully aware and reckless of the danger posed to those in vicinity and deceased in particular

Appeal against conviction and sentence – dismissed

http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-034.pdf


5. The State v Romer

Convicted of murder and attempted murder
Sentence: 10 years wholly suspended for 5 years and also sentenced to 3 years correctional supervision

Diminished responsibility (though not acting as a sane automaton) at the time of the shootings.

Appeal by the State against leniency of the sentence – dismissed
Leave to lead further evidence by the respondent – dismissed

http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-046.pdf
 
If I were My Lady, I would throw Roux into prison along with Oscar for monumental, brass-balls MENDACITY (oh how I love Nel).

A terrified, trapped, abused woman screams for her life as she is shot to death by Oscar Pistorius ... and somehow Oscar Pistorius is suddenly the “abused” party at closing arguments!!! WTF???

Who came up with this twisted, putrid sh#t?!! Nel was right - it’s always, always, always about OSCAR.

That Defense/OP would even have the brazen cojones to come up with this obscene argument shows how utterly devoid of empathy and conscience OP truly is. It not only makes a MOCKERY of true domestic violence victims but also the advocacy work Reeva was doing! She was to speak of this very thing the day she was killed!

But being the good narcissistic sociopath that he is, Oscar’s a master at twisting his own transgressions to portray himself as the grievously injured party.

He makes me want to puke.
 
I've waded through 763 judgments handed down by the SA Supreme Court of Appeal. Of those relating to murder I selected the 5 listed above as the only relevant ones to look at. All the others had multiple accused and situations that were vastly different to what we're looking at here.

2011 - 249 appeals
2012 - 208
2013 - 208
2014 - 98 (up to and including July)

I don't like OP's chances if he goes down this route, and it's even more dire if he continues on to the Constitutional Court. I'm not sure if he could do this, but if he does, I've got some grim statistics for him.
 
Judgejudi said:
It's getting very quiet here now so I'm going to post a series of things for you to read. No doubt I'll have to re-post them after the verdict has been handed down.

I believe OP will be convicted and, hopefully, receive a lengthy sentence. If so, I think Roux has 14 days in which to file for an appeal but he can also do it at the time judgment is delivered.

As for the grounds of appeal, I can think of two that Roux will probably use:

1) OP’s trial was unfair because it was televised;

2) A number of defence witnesses refused to testify because they didn’t want their voices heard.

3) In practice a ground of appeal would be that the Judge erred in applying the law.
Judges and Magistrates allow the accused to bring an appeal when they are confident about their ruling as a higher court will of course confirm their finding should they have acquitted themselves well of their task in applying the law to the evidence placed before court.

The defence team will allege numerous reasons for their application relating to both fact and law. It’s very unlikely that the application will be refused because inasmuch as Masipa will feel confident in her handling of the matter and her judgment she will also know that the appeal process is a natural step in trial process and a full bench of 3/5 judges could find differently to her.

In fact the irony exists that the more confident a trial judge is with their decision the more confident they are in referring a matter to appeal. It’s usually the weak judges who in an attempt to avoid some kind of embarrassment will refuse it.

A date for appeal to the SCA should be provided within 18 months after conviction.

According to the Constitution, the Supreme Court of Appeal -
* functions only as a court of appeal
* may decide any matter on appeal and,
* is, except for constitutional matters, the highest court of appeal.
Click to expand...


Roux purposefully read out Dr Stipps cell number in a televised trial, they used it to their advantage. Dr Stipp was later inundated with calls from harassers and the like. Well now I've heard Roux basically calling Dr Stipp a liar, I can see why his number was read out. Pretty nasty and underhanded.

Imo, it was Roux and his team who frightened off potential witnesses.

I found Roux untrustworthy and full of empty promises, I certainly wouldn't have signed up with him. I also found his begging and pleading manner during his closing so irritating and unnerving.

Whatever the outcome with regards to the verdict, for some reason I feel that OP will never see the inside of a prison cell. I underestimated the power and influence of his family.

Imo, Gerrie Nel and the state were hobbled from the start, for instance, the phone missing for 11 days with no explanation, items removed from the scene by OP's family members, claims police stole OP's watch, Botha being discredited, sacked and charges reinstated that had initially been dropped, Frank's no show, OP receiving bail with no restrictions, OP cleared in his psych report, there's more but can't think at the moment.
There was frequent poster when I use to lurk here who thought there was some kind of conspiracy and I'm worried he is right.

All my own personal opinion.
 
G.bng said:
But the State had already charged premeditated murder at the bail hearing and Burger/Johnson didn't give their statement until several weeks later! And when Burger did give her first statement iirc Roux noted she never described "bloodcurdling screams", simply "screams", with all the other descriptors appearing much later. So I am not so sure the police or prosecution actually gave the option of a plea for CH, (it takes two to tango) and Roux said they didn't. And if there were the need I'm sure that could easily be checked since the prosecution are in effect servants of the court, they give oath to serve the court, the same as all advocates, not the other way around, so notes and records will exist of any plea bargaining offers whether by prosecution or defence.
Click to expand...

I agree with this. There was far too much surety placed on the initial findings of Detective Hilton Botha and the belief that OP shot whilst wearing prosthesis. This drove the states claim over and above that of CH. The impossibility of the first sounds happening at approx. 3:02 has effectively destroyed any potential credibility of the states version being reasonable.

Each element of the states claim simply falls apart due to the telephone log of phone calls made by witnesses. This is evidence that cannot be disputed and is the reason Nel was unable to provide a time-frame as this would only serve to highlight this major flaw. Nel didn't forget to discuss many of the states original beliefs regarding intent (use of cricket bat etc. etc.) from his closing argument - he simply had nowhere to go with them.
 
PrimeSuspect said:
Roux purposefully read out Dr Stipps cell number in a televised trial, they used it to their advantage. Dr Stipp was later inundated with calls from harassers and the like. Well now I've heard Roux basically calling Dr Stipp a liar, I can see why his number was read out. Pretty nasty and underhanded.

Imo, it was Roux and his team who frightened off potential witnesses.

I found Roux untrustworthy and full of empty promises, I certainly wouldn't have signed up with him. I also found his begging and pleading manner during his closing so irritating and unnerving.

Whatever the outcome with regards to the verdict, for some reason I feel that OP will never see the inside of a prison cell. I underestimated the power and influence of his family.

Imo, Gerrie Nel and the state were hobbled from the start, for instance, the phone missing for 11 days with no explanation, items removed from the scene by OP's family members, claims police stole OP's watch, Botha being discredited, sacked and charges reinstated that had initially been dropped, Frank's no show, OP receiving bail with no restrictions, OP cleared in his psych report, there's more but can't think at the moment.
There was frequent poster when I use to lurk here who thought there was some kind of conspiracy and I'm worried he is right.

All my own personal opinion.
Click to expand...

Oh IB, take heart and trust in Nel. Didn't you notice how super relaxed he was at the end. He had the opportunity to say more and then decided it wasn't necessary. I think he's more than happy with the way it's ended up. I truly believe a prison sentence is going to be the outcome and it better be a decent one. I can't see Masipa letting him off the hook because every Tom, Dick and Harry will use this case as a precedent, and SA is dishing out harsh sentences in an attempt to reduce the violence against women.

I remember at the very beginning of this case many posters seemed to have a pretty low opinion of Nel. I'd read about his reputation and I knew he would show his true colours during cross-examination. Look what happened. Suddenly everyone thought he was brilliant. Keep the faith.
 
Judgejudi said:
Oh IB, take heart and trust in Nel. Didn't you notice how super relaxed he was at the end. He had the opportunity to say more and then decided it wasn't necessary. I think he's more than happy with the way it's ended up. I truly believe a prison sentence is going to be the outcome and it better be a decent one. I can't see Masipa letting him off the hook because every Tom, Dick and Harry will use this case as a precedent, and SA is dishing out harsh sentences in an attempt to reduce the violence against women.

I remember at the very beginning of this case many posters seemed to have a pretty low opinion of Nel. I'd read about his reputation and I knew he would show his true colours during cross-examination. Look what happened. Suddenly everyone thought he was brilliant. Keep the faith.
Click to expand...

I hope you are right JJ :), I'll keep the faith, sorry for being such a negative nelly, :loveyou:
 
Status
Not open for further replies.

DNASolves

Who is Escambia County John Doe (1989)?

Members online

... and 117 more.
Total: 2,658 (members: 118, guests: 2,540)

Online statistics

Members online
118
Guests online
2,540
Total visitors
2,658
Totals may include hidden visitors.

Forum statistics

Threads
600,741
Messages
18,112,750
Members
230,991
Latest member
DeeKay
Back
Top