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

[liesbeth]

I saw virtually none of today in court. Roux's whining caused me to switch off both TV and Audio. I did pop in here to catch up but I haven't seen anything about the number of times Nel was accused by Roux of calling OP a liar. Roux intimated he was going to bring up the issue today and quoted many pages where he said Nel called OP a liar. Did Roux bring the issue up, anyone? As far as I am aware Nel never said liar, only lying on one occasion. I am sure I heard Roux say exactly that to the earwitnesses when he was cross examining.

I'm not sure if this is the legal reason, but if I call you a liar, I attack your character. If I say that you are lying, I attack the factual content of your statement.

AFAIK Nel said Oscar was lying many times during the case. These were allowed by the judge. But the one time Nel called Oscar a liar the judge called Nel on it and he immediately apologised.

Edit: See post below. Interested Bystander correctly said that Nel never used the words "You are a liar." The link to what happened is in my answer a few posts down.

 

[Interested Bystander]

Thanks you Liesbeth. That makes good sense as you do, always. I have been unable to find the point where Nel actual calls OP a liar. Did you find it? If you have a timestamp or similar I would be grateful to see it. I confess I sometimes have to see/hear the evidence before I can completely let go.

 

[liesbeth]

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.

Thank you for doing this and sharing it with us. It could not have been an easy job. Thank you again.

 

[katydid23]

Thanks you Liesbeth. That makes good sense as you do, always. I have been unable to find the point where Nel actual calls OP a liar. Did you find it? If you have a timestamp or similar I would be grateful to see it. I confess I sometimes have to see/hear the evidence before I can completely let go.

I cannot point out the exact point where Nel calls him a liar. But I do remember it, as I remember clearly seeing My Lady calling Nel out. She scolded him and he was very apologetic.

 

[fox1lady]

Happy Women's Day to all South African Women.... and to all women around the world... we should all celebrate :loveyou:

 

[Cherwell]

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 2 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.

But what if he is given a custodial sentence on the firearms charges, one of which has now been conceded? Hypothetical I know, as he might get away with less, but surely if he's in prison for a different offence, why would he get bail on a murder appeal?

 

[Cherwell]

I just don't see a light sentence for OP. At the end of the day he unloaded 4 rounds into a tiny toilet cubicle with a human being locked inside. Surely it doesn't matter if it was his girlfriend or an intruder? To say he didn't shoot to kill is ludicrous.

It doesn't matter if it was his girlfriend or an intruder? You should have told Nel about this before the trial started.

I think you missed the point. If he unlawfully shot the person dead, then it's murder regardless of the identity of the victim. This point was covered by Nel in his HoA.

 

[liesbeth]

Thanks you Liesbeth. That makes good sense as you do, always. I have been unable to find the point where Nel actual calls OP a liar. Did you find it? If you have a timestamp or similar I would be grateful to see it. I confess I sometimes have to see/hear the evidence before I can completely let go.

http://abcnews.go.com/International/oscar-pistorius-version-shooting-called-lie/story?id=23286292

http://www.citypress.co.za/news/sahrc-complaint-nel-infringed-oscars-rights-calling-liar/

https://twitter.com/SapaNews/status/454551940631113728

Thank you, you are very kind.

I remember this incident because there was a gentleman here in SA who complained to the Human Rights Council about it.


On Friday, 11 April @ about 1:23:50 Nel talks about the top part of the denim lying on the duvet. At 1:26:24 Nel says if the denim was lying like that on the day, Oscar is lying.

At 1:29:30 the judge told Nel to watch his language. Nel sounded a bit surprised but accepted the judge's statement.

At the time I asked my Afrikaans husband about this. Why was Nel so surprised? My husband explained that in Afrikaans and English, both Western cultures, what Nel said was not meant as a personal attack on Oscar, but an attack on the facts.

In my culture, Judge Masipa's culture, if you say someone has eagle eyes you are calling him an eagle. If you say someone is like a rock, you say that he is a rock. We are not big on similes and metaphor, we're more literal.

 

[soozieqtips]

Funny how when Roux was accusing Dr Stipp of perjuring himself because he so 'wanted to help the state's case', that he forgot the small matter of his own 'expert' witness, Roger Dixon, who used a shorter model by 20cm to discredit Dr Stipp's claim of having seen OP walking across the bathroom just after the shooting.

 

[liesbeth]

I've been over the defence heads of argument. This is my summary of the defence’s argument against murder:

1) First and foremost, OP genuinely believed it was an intruder and that it could not possibly be Reeva. This fact alone is sufficient to reject the murder charge, regardless of what he thought or did, even if he set out to murder the intruder and thought he had successfully done so. (10 pages of legal argument are dedicated to this, and it comes first. I was surprised to see this, every single legal expert I have heard discussing the OP case has always flatly rejected this notion.)

2) Second, in addition to above, he fired as an involuntary reflex, which means he lacks criminal capacity. It was an immediate, involuntary, exaggerated, reflexive fight response in which there was inhibited thinking to at least the end of the shots. It was triggered by the noise and a resulting, overlapping, exaggerated startle response. The evidence in support of it being an involuntary reflex comes from the accused’s testimony, and Prof Derman’s evidence that during a fight response there is less thinking, with the least thinking at the start of the response (I’ve been over and over the argument, this really is the only bit of expert evidence they have to try and make a case of reflexive firing of the shots)

3) As a back-up, in case you reject the above, then OP did fire with thinking and intention in putative private defence (Nel said it brilliantly: they are trying to sit on 2 chairs at once, the defences are not just mutually exclusive but mutually destructive)

Excellent summary. Thank you. I'm trying to read the defence's HoA but I keep waking up with the keyboard stuck to my forehead and dried drool on my chin. TMI, I know.

 

[JudgeJudi]

But what if he is given a custodial sentence on the firearms charges, one of which has now been conceded? Hypothetical I know, as he might get away with less, but surely if he's in prison for a different offence, why would he get bail on a murder appeal?

The Court of Appeal judgments don't tell you whether people were out on bail pending appeal, but rather, they do tell you if people have been in custody for a very long time. As OP is a first offender, and if he does appeal the major sentence, I have read more than once where some people have been able to remain on bail. I've tried quite a few times to find the most recent example of this and it was one of our WS people who first raised that particular case. As best I recall it, it was a man who murdered his wife, but I've been unsuccessful in finding it. I'm not a lawyer so I can't presume to know the answer, just that I know it has happened and since OP's a "special" person, you'd have to assume he'll get it too IMO. I really hope you're right and I'm wrong. I'll have another look.

 

[liesbeth]

Funny how when Roux was accusing Dr Stipp of perjuring himself because he so 'wanted to help the state's case', that he forgot the small matter of his own 'expert' witness, Roger Dixon, who used a shorter model by 20cm to discredit Dr Stipp's claim of having seen OP walking across the bathroom just after the shooting.

Dr Stipp's the biggest threat to the defence's case. He was a credible and reliable witness. He acted like a hero on the night. And his testimony destroys Roux's timeline construct.

So it's logical that Roux would try to attack him. But the way Roux did it was offensive. To put it mildly. All those condescending smirks and sighs repulsed me. I'm sure Judge Masipa saw right through the theatrics. She openly laughed when Roux jumped up and tried to get a last bite of the cherry. (After Nel's reply to the defence's final arguments.)

 

[liesbeth]

I was not able to watch the Defense's closing argument. (I'm hoping to watch it this weekend.)

Compared to Nel's closing, did Judge Masipa ask more or less questions of Roux?

What was her general tone and demeanor, compared with hers toward Nel?

Thank you very much.

This is my opinion.

Judge Masipa kept a poker face most of the time.

She asked both Nel and Roux not to repeat the written arguments and to keep it as short as possible.

Nel:

She asked what he meant by saying that Reeva was dressed. Nel explained that he meant her pants were not down to use the toilet, but pulled up. She asked Nel what the relevance of the Whatsapps were. He explained that the timing of the messages were important.

She never challenged any of Nel's statements.

Roux:

She challenged Roux when he talked about Carl Johnson's notes. Reminding him that Johnson never shared the notes with Burger.

When he said Oscar should never have handled the gun at Tashas she asked Roux if Oscar should not have handled the gun or if Oscar should not have asked for the gun.

She challenged Roux on his "slow burn" statement. Asking him to explain how Oscar is similar to an abused woman.

Roux kept repeating that he's not attacking Dr. Saayman, he's just saying be cautious. After the umpteenth time, the judge said that he made his point, implying he was repeating himself.

She asked Roux where he got the information about the mother shooting her child.

And she was very amused when, after Nel's reply, Roux jumped up and commented on Nel's reply. Legally he's not allowed to do this, as far as I know. She gently put him in his place saying that whatever he answered is not what she was about to ask.

 

[Jake18]

Dr Stipp's the biggest threat to the defence's case. He was a credible and reliable witness. He acted like a hero on the night. And his testimony destroys Roux's timeline construct.

So it's logical that Roux would try to attack him. But the way Roux did it was offensive. To put it mildly. All those condescending smirks and sighs repulsed me. I'm sure Judge Masipa saw right through the theatrics. She openly laughed when Roux jumped up and tried to get a last bite of the cherry. (After Nel's reply to the defence's final arguments.)

I agree. Especially because, as a rule, radiology attracts a pragmatic, straightforward type of doctor. Unlike clinicians, who could claim a changing clinical picture, a radiologist's miscalls are there in black and white (and grey). Not a profession where people can try to bend the truth.

I was admiring Roux's efforts until then - obviously all smoke and mirrors but superficially very earnest- which is when I realised just how desperate the DT actually were.

 

[Jake18]

This is my opinion.

Judge Masipa kept a poker face most of the time.

Nel:

She asked what he meant by saying that Reeva was dressed. Nel explained that he meant her pants were not down to use the toilet, but pulled up. She asked Nel what the relevance of the Whatsapps were. He explained that the timing of the messages were important.

She never challenged any of Nel's statements.

Roux:

She challenged Roux when he talked about Carl Johnson's notes. Reminding him that Johnson never shared the notes with Burger.

When he said Oscar should never have handled the gun at Tashas she asked Roux if Oscar should not have handled the gun or if Oscar should not have asked for the gun.

She challenged Roux on his "slow burn" statement. Asking him to explain how Oscar is similar to an abused woman.

She asked Roux where he got the information about the mother shooting her child.

And she was very amused when, after Nel's reply, Roux jumped up and commented on Nel's reply. She gently put him in his place saying that whatever he answered is not what she was about to ask.

I also agree about the poker face and I agree that her interjections were largely supportive of the PT efforts. It's sort of amused me during the course of the trial how the Judge's demeanour has been analysed and interpreted and found to be either pro or anti OP depending on the personal opinion of the poster. Overall, I don't think we'll know until the verdict. It reminds me of my clinical exam days when the strictest, most stern examiner was often a kind marker versus a particular specialist who was nicknamed "the smiling death" - he'd seem encouraging and supportive until his marks were revealed.

 

[liesbeth]

Same here..Nel's closing was breathtaking.. I couldn catch up with yesterday's thread as well ..
OTOH the uncle, aunt next to him, and the lady next to father appeared smiling to me most of the time..
they looked almost pleased and happy... is it just me ???

Oh, it's not just you.

When Roux talked about the photo of the extension cord, Kenny Oldwage's head was bobbing from Roux to Nel. My guess is that Roux and Oldwadge and the Family thought that the photo was their ace in the hole. Hence the grinning the day before.

When Nel got up afterwards and mentioned the photo there was a visible straightening of spines in the defence's corner.

I couldn't help smiling when Nel said that the length of the cord had nothing to do with his case. So while he should object to the photo on technical, legal grounds, he won't because it will be a waste of time.

 

[liesbeth]

I also agree about the poker face and I agree that her interjections were largely supportive of the PT efforts. It's sort of amused me during the course of the trial how the Judge's demeanour has been analysed and interpreted and found to be either pro or anti OP depending on the personal opinion of the poster. Overall, I don't think we'll know until the verdict. It reminds me of my clinical exam days when the strictest, most stern examiner was often a kind marker versus a particular specialist who was nicknamed "the smiling death" - he'd seem encouraging and supportive until his marks were revealed.

BBM: Oh, yes. I met her too. Class of '95.

I think you've hit the nail on the head.

There's been some discussion in local media about how a judge usually reveals her/his hand by the questions asked in final arguments. Most agree that Judge Masipa has been hard to read from start to finish.

 

[Susza]

WOW… Thanks, but what brought this on… can you tell me ?

As I was logging in, I was contemplating giving all you folks my adieu, my farewells, etc… when I opened the last page of this thread, your post Susza was staring me in the face and I was taken aback.

A clear mind, immense knowledge, generosity in sharing it in a factual way. All this and more combined with a good sense of humor: A precious mix!

 

[Susza]

(bit highlighted in red)
No, I don't think that's right. It's murder if he intended to kill the person behind the door - whether it was Reeva or some other unknown person.

Even if it had been a burglar, he could only lawfully have shot the person if certain conditions were fulfilled, eg he was being directly threatened by the person and he had no means of escape.
Well of course he wasn't threatened, he never even saw an intruder (because there was none) and as Nel described, he could have retreated to the bedroom door, taken cover (with Reeva) behind the passage wall and covered the exit to the bathroom. None of which he did.

Thank you, Cherwell. I understand your explanation and it appeases me...

 

[Susza]

Not exactly. In SA, there are different ways to convict on a murder charge. If he knew he was shooting at Reeva, he will be found guilty of murder, dolus directus. If it's proven he believed he was shooting at an intruder, and intended to cause that intruder's death, he could be found guilty of murder, dolus eventualis, assuming Masipa also rejects OP's defence(s).

CH is akin to negligent homicide. CH lacks any intent but it must be proven that OP could have/should have foreseen the consequences of his actions and proceeded anyway (shooting 4 hollow point bullets into a closed door in a dark room immediately after screaming at the intruder to get out goes a very long way, imo). In SA, a defendant is unable to utilise a self-defence argument when causing the death of an intruder fleeing, or attempting to flee, the premises.

As far as reasonable goes...SA uses the reasonable person standard. Effectively, how a theoretical reasonable person would have acted is placed against Oscar's actions. IMO, this is the reason for the emphasis on his disability driven anxiety. Roux knows OP can't pass the reasonable person standard on its own merits.

All JMO and FWIW - and IANAL. My law degree came with a free decoder ring. :biggrin:

Thanks a lot, Britskate, for your clear and helpfull answer!