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

[PrimeSuspect]

Remorse, I think this plays the biggest role of why Masipa ended up with her verdict.

I remember reading an article about the case where Masipa handed down 252 years sentence. She said that the perpetrator has shown no sign of remorse as part of the reasons of why she handed out the sentence.

Everything Oscar did on the stand is to prove how remorseful he was. He started off by apologizing to the Steenkamp's family. Then proceed to cry, wail, puke, while looking absolutely miserable. Masipa bought his performance. She believes Oscar is remorseful, thus losing Reeva is more than a punishment for him. That's why she doesn't want to punish him "twice".

It's also easier to feel empathy towards Oscar where all the focus had been on him. We were spood fed with so many information about Oscar, but very few were about Reeva. If I didn't read any articles about Reeva online, I would have known very little about her just from the trial. The entire trial was to make Oscar the ultimate victim, not Reeva. Oscar's family also helped in the theatrics, crying, praying, hugging - they were all to emphasis their victimize status. In the end of the day, Reeva was just an unfortunate person. The true victim here is Oscar.

Masipa has judged the entire case solely based on her emotions. Evidence weights very little for her. I have to agree that she should have stayed as a Social Worker. A Judge should not be swayed by their emotion, they should be looking at all the evidence and analyze them, not thrown them all away in favor for the testimony of the poor crying man right in front of her.

I totally agree and excellent post, it is the Judge who is highly emotional and not rational. She's not a tough cookie by any means.

 

[cottonweaver]

Sorry for long quotation but it's a balanced view from a SA lawyer ( albeit a litigation specialist) who thinks the Judge got it right legally but, in his opinion, has misinterpreted the evidence.

“Before coming to this legal point, let me say that I personally do not agree with factual aspects of the judgement as I have heard it so far. This is not the subject of this article, but in short it is my view that Pistorius’ defence relied upon an extremely implausible version, and that given his various fundamental contradictions in his evidence, taken together with the inherent implausibility of his version, it should not have been accepted as raising a reasonable doubt in relation to murder. However, this is a factual issue which depends on the judicial weighing of evidence – and is not the subject of this article....

We must bear in mind that the Honourable Judge accepted that Pistorius’ version was reasonably, possibly true....

Judge Masipa accepted it as reasonably, possibly true that in the moments leading up to firing the fatal shots, there was no thought whatsoever in Pistorius’ mind that the person behind the door could be anyone other than an intruder, and in particular that it could be Reeva Steenkamp. Again, I have some difficulty with accepting this version as reasonably possibly true, but that is a debate for another time.

The main point of this article is simply to emphasise that the legal criticisms of Judge Masipa which have been advanced by various commentators are mistaken…."

He goes on to explain why but ends with:
….."if I were the Judge in this matter I would have difficulty in accepting his version as reasonably possibly true for many other reasons, but given that the Honourable Judge did indeed accept this, her application of the law relating to intention, dolus, and unlawfulness in the context of a murder charge, was perfectly correct.”




http://www.dailymaverick.co.za/opin...a-was-right-on-dolus-and-murder/#.VBP0J82viPW

Nicholas Taitz article of 12 Sept.

 

[vanatos]

Funny, i heard she hands out tough punishments for rape victims, bordering on things like 200+ years of jailtime, but when a woman is killed in circumstances
that are so obvious it was intentional, at best Pistorius might get 15 years.

Disheartening that she, a woman, just reinforces that age-old problem where sex is sensational, but death is a matter of course.

 

[pandax81]

A frightening thought: would the screams of Reeva have made any difference?

I don't see how. Masipa must still stick by the absurd finding it is reasonably possibly true he didn't even foresee killing. If he threatened her in the heat of argument, adrenaline pumping, grabbed his gun, confronted her so that she fled to the toilet and shot through the door - how is this saliently different to perceiving a threat, adrenaline pumping, grabbing his gun, confronting so that they fled to the toilet and shooting through the door. There is nothing to allow you to suddenly say differently, that in the case of it being Reeva and her screaming he must have foreseen the bullets may kill.

The trump card played by Masipa is this finding of fact. Not just casting of doubt, but a positive finding that "clearly" he did not foresee killing. She has provided no reasoning for this, she has not considered the objective evidence in making this inference - this is surely a failure of justice, and I would argue a question of law and its application, it appears she may well have incorrectly excluded objective evidence as a proper basis for making inferences about what must have been the subjective intention. I'd throw everything at this and appeal.

Even if there was someone else witnessing the whole thing at the time, she must have acquitted of murder by her same reasoning - "it proves he must have intended to shoot, but does not prove he intended or foresaw killing". This sets ridiculous legal precedent, as to how one should consider evidence in determining subjective intention.

 

[Susza]

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.

Thank you, Judgejudi, for this explanation. Do one know in which order argueing will be organized: State first, then Defence?
Is the State allowed to call OP back in the witness stand?
Can the witnesses called in the stand be once again cross examinated?

Hhm, being on holidays at that time, I'll miss the second half of that week.

 

[fox1lady]

Apparently, yes. I don't know that having prior training or knowledge is sufficient to prove that he knew in that moment he was committing an illegal act. I think of all the things I did to earn my driver's licence for example - I drive every day but do I remember every concept and rule from the handbook I had to study? I don't. Actually wielding a gun in a perceived life threatening situation to the point of firing is not a typical situation, and many thoughts and emotions would be ahead of a test you filled out to get your gun license at some point in the past.

So South African law suggests that I could kill my boyfriend if he peed me off enough but I would only have to make sure there was noone else in the house. I would then only have to say that I feared that he was going to come out of the toilet and attack me so I got my gun out of the bedroom drawer, walked to the bathroom and as I heard him flush the toilet, I shot at him. I didn't think I would kill him if I shot these four bullets into the toilet door at the very spot where I felt he was probably sitting on the toilet. Would that get me culpable homicide and the possibility of going home to my Uncle Arthur's awaiting my sentence instead of going to jail?

 

[bessie]

My prayer was that Reeva's parents would find peace at the end of the trial, and relief from the excruciating pain at the loss of their beloved daughter. So it was and remains, though I confess to little faith that either will be realized.

C'est la vie?? :tsktsk:

 

[fox1lady]

Thank you, Judgejudi, for this explanation. Do one know in which order argueing will be organized: State first, then Defence?
Is the State allowed to call OP back in the witness stand?
Can the witnesses called in the stand be once again cross examinated?

Hhm, being on holidays at that time, I'll miss the second half of that week.

I don't see the point in Nel trying to do anything, the Judge will rule against him on everything... it's clear OP can hardly do any wrong in her eyes. The only things I've heard her say against him are "you should have called security you naughty boy, you should have shouted out of the balcony, you shouldn't have been so evasive in cross examination... you were doing so well before that, listen to the questions next time and stop trying to have a debate... I don't think you were lying though so that's a good boy. Next time you get peed off with your girlfriend and want to shoot her though, wait until she's hovering above you in bed, you're more likely to get away with it then... much more believable!

 

[fox1lady]

I totally agree and excellent post, it is the Judge who is highly emotional and not rational. She's not a tough cookie by any means.

I really do agree that not enough was said about Reeva in court. The judge perhaps subconsciously just saw her as someone who got her law degree but then went off to become a model. The judge may have seen her as a dumb blonde, wanting to date OP just for status... it's a shame that she didn't have the chance to hear about the real Reeva someone with morals and strong values, someone who like Masipa herself stood up for women, someone who wanted to make a difference. Maybe then she would have realised that this woman would not have just remained silent the way that OP made out that she did... maybe she would realise that this woman would have got up and been proactive in trying to get them out of an intruder situation by trying to flee rather than apparently being totally invisible and silent the whole time.

 

[PrimeSuspect]

I don't see the point in Nel trying to do anything, the Judge will rule against him on everything... it's clear OP can hardly do any wrong in her eyes. The only things I've heard her say against him are "you should have called security you naughty boy, you should have shouted out of the balcony, you shouldn't have been so evasive in cross examination... you were doing so well before that, listen to the questions next time and stop trying to have a debate... I don't think you were lying though so that's a good boy. Next time you get peed off with your girlfriend and want to shoot her though, wait until she's hovering above you in bed, you're more likely to get away with it then... much more believable!

Very tongue in cheek but well said. Also, I'd like to add that the Judge asked Uncle Arnold to keep a tighter reign on Oscar, at least till all the heat dies down, then business as usual. Oscar can't be held responsible for his actions therefore it's everyone else's fault if he goes astray.

As a mother of 3 grown children, one being a 25 yr old young man, I find all this mollycoddling appalling. jmo

 

[Susza]

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...

Good post, akp. Thank you!

 

[Lyra500]

I doubt that she had much say in the matter.

"I always win"
"We piss on Zuma"

Looks like money and power pissed on justice.

Thanks not enough. Quoted for truth.

To quote my mother - the whole thing stinks to high heaven

 

[PrimeSuspect]

I really do agree that not enough was said about Reeva in court. The judge perhaps subconsciously just saw her as someone who got her law degree but then went off to become a model. The judge may have seen her as a dumb blonde, wanting to date OP just for status... it's a shame that she didn't have the chance to hear about the real Reeva someone with morals and strong values, someone who like Masipa herself stood up for women, someone who wanted to make a difference. Maybe then she would have realised that this woman would not have just remained silent the way that OP made out that she did... maybe she would realise that this woman would have got up and been proactive in trying to get them out of an intruder situation by trying to flee rather than apparently being totally invisible and silent the whole time.

Another great post fox, Reeva is just another victim who should have known better. I think the Judge had little respect for Reeva which is sad, OP is the person she respects and believes. She may be of the belief, Reeva had it easy, born beautiful, intelligent, had the world at her feet, OP otoh, struggled with a disability and feared for his own safety in a able bodied world. Something had to give, unfortunately, Reeva lost her life. jmo

BTW, Masipa seems to have overlooked, it was Valentine's Day, when many make or break up. :gaah:

 

[Jake18]

A frightening thought: would the screams of Reeva have made any difference?

I don't see how. Masipa must still stick by the absurd finding it is reasonably possibly true he didn't even foresee killing. If he threatened her in the heat of argument, adrenaline pumping, grabbed his gun, confronted her so that she fled to the toilet and shot through the door - how is this saliently different to perceiving a threat, adrenaline pumping, grabbing his gun, confronting so that they fled to the toilet and shooting through the door. There is nothing to allow you to suddenly say differently, that in the case of it being Reeva and her screaming he must have foreseen the bullets may kill.

The trump card played by Masipa is this finding of fact. Not just casting of doubt, but a positive finding that "clearly" he did not foresee killing. She has provided no reasoning for this, she has not considered the objective evidence in making this inference - this is surely a failure of justice, and I would argue a question of law and its application, it appears she may well have incorrectly excluded objective evidence as a proper basis for making inferences about what must have been the subjective intention. I'd throw everything at this and appeal.

Even if there was someone else witnessing the whole thing at the time, she must have acquitted of murder by her same reasoning - "it proves he must have intended to shoot, but does not prove he intended or foresaw killing". This sets ridiculous legal precedent, as to how one should consider evidence in determining subjective intention.

BIB I think this is the crux of it. Of course, the matter's been confuddled by every legal Tom, Dick and Harry wanting to have their 15 minutes but this is what those with criminal law backgrounds seem to be saying. The judge decided that Oscar did not foresee that pumping 4 bullets into a tiny toilet would kill the person inside but this wasn't actually part of his defence, ever. His first defence was that of autonomism, the second was of a "startled" self defence but he didn't ever state that he wanted to warn or wound the intruder rather than kill them.

I personally don't think a beautifully documented timeline from Nel, recorded screams from Oscar that sounded nothing like a woman or anything at all would have made a difference. Oscar's "remorse" and post murdering prayers to god convinced her of his innocence. Roux and co had done their homework, they knew that grief and remorse were important to her and they gave it to her - in (green) buckets.

For the SA NPA to publicly state on widespread media (they were broadcast on Aussie radio today) that they are unhappy and will consider an appeal after sentencing indicates that the chances of this being appealed are high.

 

[fox1lady]

I can't believe that I am going to say this but I can see why there are only a few high court judges. This shows that a female judge got too caught up by her own emotions and feeling sorry for the accused when making a judgement. All the defence had to do was ensure that OP cried and did a lot of acting with the help of a coach, practised puking on cue, the family did a lot of crying and praying, the defence witnesses spoke about how remorseful OP was and that he was praying to God, OP had to remember to include that during the time when he didn't have time to think he prayed to God to help him and Reeva and that he would give his life to God. They had all done their homework like Jake18 said about Masipa a God fearing woman who would let anyone off the hook if they only showed remorse (in any form) and a Christian faith.

There is no way on earth that I can see this woman giving OP any amount of jail time if she can help it. It seems she will put herself on the line for every ounce of criticism and the hard work that she has put into getting this career for herself in order to save him from jail.

 

[soozieqtips]

I'm confused. Didn't Masipa say that OP said he fired the shots "without thinking", but that the grouping of shots indicated he was thinking, and that she'd get back to that point later? Did she ever get back to it? What was the point of her bringing it up?

 

[fox1lady]

This is a great article, my thoughts exactly in most part...

www.health24.com/Columnists/Is-Judge-Masipa-letting-Oscar-get-away-with-murder-20140912

A small excerpt taken from this article...

"Puzzles remain

- The judge took it as fact that the light in the toilet was out. Why were the police and others not asked about this?
- Oscar fell asleep with lights on, why did he suddenly want total darkness to the extreme extent of wanting to hide the tiny blue LED light?
- Did she conclude that Oscar couldn’t have known that firing four highly destructive bullets at someone would not be likely to kill them?
- Was it not believable when considering a charge of murder, but obvious when considering Culpable Homicide?
- Why was she quoting evidence of Oscar’s distress, as somehow establishing innocence?

I don’t recall anyone suggesting it was entirely faked, what had it to do with guilt or innocence?

The judge’s reasoning may be profoundly wise, but got too abbreviated in the delivery to be comprehensible to the rest of us, and maybe it’ll be further explained before the end of the judgement.

With a great sense of drama, she stopped early, and we’ll have to wait for the verdicts.

An interesting point arises. If Oscar is found guilty of anything at all, and receives any sentence other than a medal, it’s very likely his team will want to appeal promptly.

But if they do, surely there’d be a very real risk that a higher court would disagree with Judge Masipa’s view on murder, and correct his conviction to that. "

 

[buntspecht]

if the verdict would be 2 years, and it's his 1st crime, can OP go free (as for example in Switzerland)?

 

[james83]

This lousy gutless judge spent more time talking about Fresco's indemnity than she did talking about every other witness in the trial put together, she was a joke.

 

[Interested Bystander]

From one of the most eminently sensible retired judges in SA, Judge Christopher Greenland

https://twitter.com/Chrisng53

Chris N Greenland@Chrisng53 • 24h
#JusticeForReevaSteenkamp ---- I join the whole world in lamenting this travesty of justice. The Court failed Reeva.