Trial Discussion Thread #53 - 14.12.9, Day 42 ~ final verdict~

[ApplesInMyBra]

I think she is looking in the mirror and saying "I did what I had to do"....I think she has "pressure" big time from many above her...same with the sentence...I would like to know from those on the ground in SA as to what the majority of people think about this verdict? Just the average people on the street. I am thinking it is not going over well and there is a glimmer of hope that in order to "passify the masses" she may be encouraged to give him a short stint in prison...but that is remote.

All my friends who still live in South Africa and who are just average people on the street are absolutely outraged, shocked and appalled by this verdict.

 

[mirage1]

Here is an article that explains why Masipa was RIGHT about Dolus Eventualis
http://www.dailymaverick.co.za/opin...a-was-right-on-dolus-and-murder/#.VBMi5_ldVNR

What does everyone think about it?

He basically argues that intention to kill unlawfully is required for dolus eventualis, yet from what I understand and from what other legal experts have been saying, you need EITHER intention to kill unlawfully OR you don't have intention to kill, but understand it might possibly happen if you proceed. Confusing.

 

[ApplesInMyBra]

It's sort of like a mini-trial. The defence team will argue mitigation, i.e. why he should get a lesser sentence. The State will argue aggravation, i.e. why he should get a longer sentence. These are the factors that will take up nearly all the time, not the handing down of the actual sentences themselves.

And then will Judge Masipa, after hearing the DT and the PT take another month again to decide the actual sentence????? FFS

 

[Fuskier]

http://www.abc.net.au/news/2014-09-13/south-african-society-disappointed-over-pistorious/5741406

South African society 'disappointed' over Pistorious decision
Posted earlier today at 12:43am

"...many in south africa believe Pistorious got off lightly"...

 

[Interested Bystander]

Thank you Giles for this excellent link. This brilliant interview covers so many issues that we're all discussing here. I recommend everyone should listen to this.

I agree. Excellent. I am concerned that it now looks as though there cannot be an appeal due to Masipa's comments of yesterday morning. Those few words that managed to change an error in law to an error in fact. I hope the PT can find some way round the situation. If you have time, please listen carefully at least to the first 15 minutes. Not only will you hear the Legal round table discuss this point but also clearly describe the reason why she was wrong in law. She seems to have shut the door to an Appeal unless the PT can find a way round the problem. Really, it is best to listen to the whole recording if you can.

 

[ApplesInMyBra]

I had a weird feeling when I first heard the translator translate the evidence of Michele Burger, who testified in Afirkaans. I am Afrikaans speaking, and the translator left out several nuances in her translation. It reminded me of the fake interpreter at the Nelson Mandela funeral!!!!! It was just bizarre. I wonder if that is one of the reasons Masipa threw out the witnesses' testimonies????

 

[mirage1]

Masipa has found that, although the imaginary intruder was behind a locked door, OP perceived the threat to be sufficiently imminent to warrant approaching the bathroom and firing four shots at that locked door. Essentially, this is an acceptance of his claim that he was acting in putative private defence. PPD negates intention, so there is no need to go into intention, other than for the purpose of confirming that OP shot without the intention to kill unlawfully because he shot in the belief that his life was in danger. However, she then proceeds to muddy the waters by mentioning that he intended to shoot, but not to kill. She also mixes in his remorse and his attempts to resuscitate Reeva as further evidence that he lacked intent to kill. She then proceeds to find that he did not foresee the possibility that his shots would kill the intruder.

And so, in this manner, her judgement loses focus and becomes extremely messy and confusing for everyone. At least, that is how it appears to me.

So if the Judge accepted Oscars version, that his intention was 'legitimate', dolus eventualis does not even apply? As long as he thought his act was lawful to begin with. That makes sense, but why would so many legal experts be arguing against this?

 

[PrimeSuspect]

Gerrie Nel as verdict read.



http://www.dailymail.co.uk/sport/ar...us-arrives-court-hear-second-day-verdict.html

 

[akp]

Now that the verdict is out, slowly criticisms will start appearing against the Prosecution Team - they didn't do this, didn't do that, should have done this etc. I still feel Nel did a brilliant job. Will try to elaborate why I say so.

This was a situation where there were only two people present at the scene. One of them is no more. So it is Oscar who is the only one who knows exactly what unfolded that day. Others, the State, can only draw inferences from various `observations' (by ear-witnesses, phone records, content of phone conversations etc. It is quite likely that if the State `reconstructs' a possible scenario from all those available evidence, even though it is correct by and large, it might and in all probability it would differ from what actually happened in small details, and Oscar would know precisely what those small details are where the State's version is wrong and his team then can exploit those to refute State's entire version. Under these circumstances, I thought Nel was spot on by sticking to his theme, namely

1. he established without an iota of doubt that Oscar was inconsistent in his versions, he was tailoring his evidence, he was unreliable.

2. And then there were these screams that 4 of the witnesses heard before coming to a stop with the Bangs, and intermittent arguments that one close neighbour heard,

3. forensic and pathological evidence that was sound,

4. offered an opportunity by the Defense team, he made sure Oscar was sent for psychological/psychiatric evaluation and reduced criminal capacity was ruled out.


Of course, there was also plenty of other little details as well (like Oscar's phone calls after the event, conversation with Baba etc), but he did not dwell on those much because it would be possible for the Defence to present some counter arguments there and thus distract the judge from the main points 1-4 above. Some of the points he didn't venture into (jeans outside, Oscar's missing phone) would have probably been the result of shoddy investigation work by the Police in the initial stages (I believe someone in the Police force was definitely compromised, by the way).

In the end of course, everything became a total farce, as the judge summarily disregarded (2) and (3), accepted (4), and accepted (1) but still chose to go by one of Oscar's versions (actually I am not even sure she chose ONE version of Oscar, I have to look carefully but seems to me more like she chose bits and pieces from Oscar's different versions).

Normally it is fine to say that the onus is completely on the State to prove guilt and the accused has to just raise this tiny bit of doubt. In a situation such as the one we have here, where it is common cause that there was nobody else except the two of them there that night, and the accused and the deceased were together the entire time till the event, and the accused ended up shooting her to death, there should be (and I am sure there is, in any legar system worth the name) an increased onus on the accused to present a coherent version of events. Oscar utterly failed to do so.
And yet...

 

[JudgeJudi]

Does SA not have any restrictions on criminals profiting from activities such as writing autobiographies, or other writings in which their crimes are described, or from selling their stories to newspapers or magazines. I believe such restrictions are in place in the UK.

It's the same here in Oz. Convicted criminals are not allowed to profit by selling their stories, interviews etc etc

 

[PrimeSuspect]

Message to Frank - Please come out of hiding and tell us what REALLY happened. :gthanks:

 

[akp]

Roux had the worst kind of client you could ever wish for. Nel had to make a case out of virtually nothing.

I think Nel did a brilliant cross-examination of all the defence’s witnesses and totally destroyed OP and all his versions.

Where I think the State came unstuck was running with the shots came first version.

IMO Roux’s Heads of Argument were ludicrous in part. However it was a really clever manoeuvre to put the timeline together, and it was, according to Masipa, this timeline that swayed her to disbelieve all the ear witnesses. All the experts stated that the ear witnesses were crucial to the State’s case.

For my part, I was very disappointed in Nel’s Heads of Argument. The baker’s dozen didn’t do it for me. A couple of posters here did a better job. He should have pointed out every inconsistency in OP’s testimony by dot point not scattered throughout the entire document, rammed home the poor quality of the defence’s witnesses and torn to shreds every piece of the defence’s evidence. I truly believe he could have done a lot more to show the strength of his case.

Having said all that, it probably wouldn’t have made an iota of difference from what we’ve just seen. I could just weep.

Exactly! It wouldn't have made a difference. The judge did admit that Oscar was unreliable, evasive, presented a plethora of defences.
Even with the timeline that she arrived at mainly from DT's HOA, the conclusion should have been very different. But unfortunately, her logical reasoning leaves a lot to be desired. And that is an understatement. For example, according to her, it was common cause that there were gunshots and then there were bat sounds. On that basis alone, she infers that the fist sounds that Ms Stipp heard must have been the gunshots and thus her timeline was unreliable. Now, it is definitely not common cause that there was no other loud sound or bang emanating from that house that entire night. So inferring that what Ms Stipp heard the first time were the gunshots at 3:12-3:14 is ludicrous.

 

[PrimeSuspect]

Exactly! It wouldn't have made a difference. The judge did admit that Oscar was unreliably, evasive, presented a plethora of defences.
Even with the timeline that she arrived at mainly from DT's HOA, the conclusion should have been very different. But unfortunately, her logical reasoning leaves a lot to be desired. And that is an understatement. For example, according to her, it was common cause that there were gunshots and then there were bat sounds. On that basis alone, she infers that the fist sounds that Ms Stipp heard must have been the gunshots and thus her timeline was unreliable. Now, it is definitely not common cause that there was no other loud sound or bang emanating from that house that entire night. So inferring that what Ms Stipp heard the first time were the gunshots at 3:12-3:14 is ludicrous.

What I would like to know, were the gunshots and bat sounds proven to sound exactly alike? Was that proven without a doubt? Because Masipa seems to believe so. As I remember the tests reenacting the bat and gunshot sounds were done in an open field?! Masipa didn't visit the house, the scene of the crime??!!

:banghead:

 

[akp]

What I would like to know, were the gunshots and bat sounds proven to sound exactly alike? Was that proven without a doubt? Because Masipa seems to believe so. As I remember the tests reenacting the bat and gunshot sounds were done in an open field?! Masipa didn't visit the house, the scene of the crime??!!

:banghead:

I don't think it was. But then the judge has shown least interest in any kind of proofs - she didn't bother about the fact that despite their promise, the DT never produced any evidence supporting their claim that Oscar screams like a woman, which I think was even more important and serious - she just discarded all State evidence, chose a combination of versions from the `unreliable' Oscar, and applied some legal principles!

 

[mirage1]

I think I understand the judges reasoning now. At the end of day, she believed his intent was for genuine self defence, so whether he could foresee the possibility of killing someone, is irrelevant in terms of a murder charge. As Sherbert said, she does get confusing when she goes on to say he actually did not foresee that anyway. Like she was trying to cover every base possible.

 

[Jake18]

I agree. Excellent. I am concerned that it now looks as though there cannot be an appeal due to Masipa's comments of yesterday morning. Those few words that managed to change an error in law to an error in fact. I hope the PT can find some way round the situation. If you have time, please listen carefully at least to the first 15 minutes. Not only will you hear the Legal round table discuss this point but also clearly describe the reason why she was wrong in law. She seems to have shut the door to an Appeal unless the PT can find a way round the problem. Really, it is best to listen to the whole recording if you can.

Is that possible though? If there's been an error in law - which most SA lawyers agree there was - can you make a judgement based on this error (not eventualis) and then try to rectify things a day later? Presumably after the error had been pointed out to her?

 

[JudgeJudi]

will the judge need time to consider these mitigators and aggravtors and the witnesses and then we will have to wait again? I doubt that anything said will make any difference to her...just more people on the state's side to not believe but wondering on the timing.

Sorry, but I don't know the answer to this. I'm guessing the day following the conclusion of the witnesses.

 

[aa9511]

http://www.dailymail.co.uk/news/art...feared-gun-crazy-Pistorius-kill-daughter.html

Have you all read this yet? As I was reading it, I could imagine Oscar doing everything she said he did. It explains a lot of his courtroom behavior too - the crying and the lying. Explains his jealousy and his controlling as well. He exhibited all these behaviors in court - lying, crying, acting - while all the while behind-the-scenes trying to control his whole case. I have no doubt that he was not the basketcase that he made himself out to seem in court. I am sure that he was on the phone daily with his publicity people trying to portray an image of himself as a victim.

Oh well, he is an innocent man in my book as I feel sure he will not see a single day in prison. Masipa will give him some kind of house arrest and community service, or something like that.

 

[Angela Carr]

For what it's worth, I do understand Masipa not wanting to send him to a South African prison for murder. The prisons are a disgrace, and no normal person would want to even spend a weekend there, let alone 15-25 years housed with some of the country's worst offenders, a lot of who are HIV positive and have TB. By finding him guilty of culpable homicide allows her to send him to a more open prison, where the offenders a are a better class of inmates. Is she going to suspend his sentence? That will be insulting to the steenkamp family. I will be shocked if he gets no jail time, clearly there was an argument before the shooting, but she is disregarding these witnesses. She seems to have favoured the defence throughout the trial, but I thought she was just trying to appear unbiased against OP, but I was wrong. I thought people saying he will get off were just crazy, and hadn't listened to all the evidence. Now I don't know what to think anymore. Maybe he will get off Scott free, and maybe he will run in the next Olympics.

 

[aa9511]

I think I understand the judges reasoning now. At the end of day, she believed his intent was for genuine self defence, so whether he could foresee the possibility of killing someone, is irrelevant in terms of a murder charge. As Sherbert said, she does get confusing when she goes on to say he actually did not foresee that anyway. Like she was trying to cover every base possible.

So, in other words, she believed his story.