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

[delilah]

Just listened to the verdict on count 4 - illegal possession of ammunition. Another bizarre verdict. So it's ok to have a load of ammo in your house without a licence as long as you say it's someone else's - just because it's stored in your house for years it doesn't mean you 'possess' it, apparently. The onus is on the prosecution to prove you had the mental intention/animus to possess it - the fact that it's sitting in your safe is clearly not enough.

That weirdness must just be a reflection of a gun worshipping culture.

 

[RosieC]

Erm! ......
At a loss for words

I've got a plethora of words on Judge Masipa's verdict. It is making my head spin. Here goes:

Controversy has been about her rejection of Dolus Eventualis. The answer to the test whether Oscar knew the possible consequences must be yes. He knew his ammo, he knew the legal boundaries, he knew his tiny toilet cubicle. He had no mental incapacity at the time. There was an error in persona. He said, I killed Reeva. I thought she was an intruder.

Judge Masipa rejected Dolus Eventualis, claiming, if I understood, that Oscar had the intention to shoot at the person behind the door, not to kill. The evidence failed to prove intention to kill. Hence culpable homicide.

Or did she say that Oscar did not have the intention to kill REEVA, hence culpable homicide, in which case if I get it, she did not understand the implications of error in persona?

She said the state hadn't proved that Oscar accepted the possibility of killing someone when he fired a gun four times through the toilet door. How was the state meant to prove it? Did Oscar need to read the terms and conditions and tick the little "I accept" box before he fired the shots?

But did Judge Masipa accept putative self defence as some legal commentators are claiming? She didn't seem to. But if she accepted that Oscar believed that his and Reeva's life were in imminent danger, and this state of his mind is now a determined FACT, then surely the appeal court can overturn the verdict of culpable homicide in favour of not guilty, as his action was not unlawful, even if it accepts that this verdict is perverse, which is in itself perverse

Or is it a combination? She accepted putative self defence but his action was over the top?

Quite frankly, I found Masipa's reasoning, also in determination of facts, so bizarre in general, that I wonder, is there any chance (other than proof of corruption) for the entire evidence and verdict to be re-examined. This does not look good for South Africa.

Does anybody remember the old 70's or 80's TV programme, "Soap", in which every episode ended with "Confused?" That is how I felt when Oscar was in the witness box, and how I felt when I listened to the verdict. Maybe I got it wrong. I stopped taking notes and got a drink

Also, as echoes of OJ continue, can June and Barry Steenkamp file a civil case against Oscar, so that maybe the facts of the matter can emerge?

Final caveat; All of above is IMO. How can it be otherwise? I am not South African, I am not a lawyer or legally trained. I guess I have to be considered a trial observer, a thorn in the side of some in the legal profession, who think that plebs should not express their views, hence lots of Latin (which I happily can follow sufficiently). But on the other hand I have many in the legal profession to thank for my understanding of South African criminal law, such as it is, not least the estimable retired judge, Chris Greenland.

p,p.s, on the illegal possession of ammunition - I thought that was a matter of strict liability so absence of animus not mitigating.

 

[Viper]

Just listened to the verdict on count 4 - illegal possession of ammunition. Another bizarre verdict. So it's ok to have a load of ammo in your house without a licence as long as you say it's someone else's - just because it's stored in your house for years it doesn't mean you 'possess' it, apparently. The onus is on the prosecution to prove you had the mental intention/animus to possess it - the fact that it's sitting in your safe is clearly not enough.

That weirdness must just be a reflection of a gun worshipping culture.

Humm, I wonder if that is the intent of the SA laws that prohibit possession of illegal drugs, elephant tusks, and biological weapons too... I hope word of this doesn't get out to the criminal element.

 

[Ncl1968]

Confused... you will be....
Yes i remember that
Maybe the judge had her arms twisted so tight she left gaps for nel to crawl through..
Just a thought

 

[Sherbert]

For me, this case was never about dolus eventualis - it was always about directus. Yes, we would have struggled to get premeditation, but what most of us wanted was directus, in recognition of the fact that OP purposely shot Reeva.

However, it became clear during closing arguments, when she asked if the timelines were common cause, that Judge Masipa simply wasn't on the same page. Hers was a surprising question, (and a worrying one), because it revealed that she didn't understand the State's case. Unlike us, she hadn't grappled with the timeline, she hadn't tried to reconstruct the events of that night and morning, and she hadn't seriously contemplated the possibility that OP was abusing Reeva.

What on earth were she and her assessors doing all those weeks, whilst the rest of us were unravelling timelines and wrestling with the discrepancies in OP's evidence? Obviously, it isn't their role to play detective, but, if she didn't understand the timeline, why didn't she ask some questions? I fear that she was completely unaware that she didn't understand the timeline. Her reasoning was simplistic: Reeva could not have screamed much after the shots. Therefore, given that it was common cause that the shots came before the screams, it could not have been Reeva who was doing the screaming.

Murder directus pretty much depended on the screams being Reeva's screams. The witness evidence presented by the State was compelling. I can only surmise that Mr Nel thought Masipa, like most of us, understood the power of this evidence and was convinced, when, in fact, not only was she not convinced, but she was happily mistaking Reeva's screams of horror and desperation for OP's post-event hysterics.

In a sense, once she made the finding that the State's witnesses were unreliable, it was all over: There's a very fine line between murder eventualis and culpable homicide - I've come across quite a few cases where I would have expected a verdict of eventualis, but there has been a finding of CH; and vice versa.

This does not alter the fact that the construction of the Judgement leaves a lot to be desired: As far as I can remember, although Masipa accepted that OP acted in PPD, she failed to spell out (1) why she considered four shots to be a proportionate response and (2) why an intruder behind a locked door would pose a sufficiently imminent threat to warrant such an attack. Instead, she allowed herself to get bogged down in making unnecessary and bizarre findings on intention, upsetting everyone in the process.

However, for me the real catastrophe is her failure to comprehend the State's alternative timeline and, in particular, her finding that Reeva's screams belonged to OP. Always providing that she had an open mind, IMO this catastrophe could have been avoided, had the State taken the time to produce a timeline that she could comprehend. Many people said it and, unfortunately, they have been proved right.

 

[vansleuths]

I've got a plethora of words on Judge Masipa's verdict. It is turning my head. Here goes:
Controversy has been about Judge Masipa's rejection of Dolus Eventualis. The answer to the test whether Oscar knew the possible consequences must be yes. He knew his ammo, he knew the legal boundaries, he knew his tiny toilet cubicle. He had no mental incapacity at the time. There was an error in persona. He said, I killed Reeva. I thought she was an intruder.

Judge Masipa rejected Dolus Eventualis, claiming, if I understood, that Oscar had the intention to shoot at the person behind the door, not to kill. The evidence failed to prove intention to kill. Hence culpable homicide.

Or did she say that Oscar did not have the intention to kill REEVA, hence culpable homicide, in which case if I get it, she did not understand the implications of error in persona?

She said the state hadn't proved that Oscar accepted the possibility of killing someone when he fired a gun four times through the toilet door. How was the state meant to prove it? Did Oscar need to read the terms and conditions and tick the little "I accept" box before he fired the shots?

But did Judge Masipa accept putative self defence as some legal commentators are claiming? She didn't seem to be. But if she accepted that Oscar believed that his and Reeva's life were in imminent danger, and this state of his mind is now a determined FACT, then surely the appeal court can overturn the verdict of culpable homicide in favour of not guilty, as his action was not unlawful, even if it accepts that this verdict is perverse, which is in itself perverse

Or is it a combination? She accepted putative self defence but his action was over the top?

Quite frankly, I found Masipa's reasoning, also in determination of facts, so bizarre in general, that I wonder, is there any chance (other than proof of corruption) for the entire evidence and verdict to be re-examined. This does not look good for South Africa.

Does anybody remember the old 70's or 80's TV programme, "Soap", in which every episode ended with "Confused?" That is how I felt when Oscar was in the witness box, and how I felt when I listened to the verdict. Maybe I got it wrong. I stopped taking notes and got a drink

Also, as echoes of OJ continue, can June and Barry Steenkamp file a civil case against Oscar, so that maybe the facts of the matter can emerge?

I don't know what the rules are in SA and whether they have such a thing as wrongful death lawsuits, but this is an avenue for the Steenkamps if they want to take it. The Goldman's did this to OJ and were in his face till this day.

While it puts a lot of pressure on the convicted person, it also does put a lot of pressure on the family trying to collect the money and I don't know if Mr. Steenkamp's heart could withstand this pressure.

The one advantage that the Steenkamp's have that the Goldman's didn't is OJ was retired and his pension was off the table. OP has lots of years left to generate income and any future income would be part of the claim.

 

[soozieqtips]

Just listened to the verdict on count 4 - illegal possession of ammunition. Another bizarre verdict. So it's ok to have a load of ammo in your house without a licence as long as you say it's someone else's - just because it's stored in your house for years it doesn't mean you 'possess' it, apparently. The onus is on the prosecution to prove you had the mental intention/animus to possess it - the fact that it's sitting in your safe is clearly not enough.
That weirdness must just be a reflection of a gun worshipping culture.

BIB - Nor is having the receipt for the gun that uses that ammo.

 

[foxbluff]

partial quote:

May I ask: What makes you say that? What does "in fact" mean? Do you mean to imply a professor of law is automatically lower in legal ability than a judge?

Masipa is a cipher as far as I can see. Quiet, reserved, polite, inscrutable. During the entirety of the trial prior to verdict, I could really form no opinion of her except "well she is a high ranking judge, so I guess she knows what she's doing ..." Now that the verdict is in, I have reservations about her ability.

The "in fact" part refers to there being only one him, only one you, only one me and only one Judge Masipa... meant in that vein.

As to whether a law prof is lower in legal ability than a judge is something I've, quite frankly, never pondered and don't plan to now.

What I do believe, is that a judge who has sat in court everyday of the trial and heard/saw all evidence, witnesses, etc. and has a full transcript to study, is much better able to judge the case than any legal expert who wasn't sitting on the bench everyday.

Also, I don't believe the "legal experts" who are eager to weigh-in with their opinions are privy to a transcript of Judge Masipa's verdict. I think the written version is going to be clearer to all than the Judge's verbal summary... where mistakes in translation may have added confusion.

 

[jilly]

Just listened to the verdict on count 4 - illegal possession of ammunition. Another bizarre verdict. So it's ok to have a load of ammo in your house without a licence as long as you say it's someone else's - just because it's stored in your house for years it doesn't mean you 'possess' it, apparently. The onus is on the prosecution to prove you had the mental intention/animus to possess it - the fact that it's sitting in your safe is clearly not enough.

That weirdness must just be a reflection of a gun worshipping culture.

I remember the Judge questioning this possession when Nel was giving his argument. I looked up the legal definition of possession and it's not a simple explanation. It appears that the Judge based her verdict on Oscar not having ownership. Iirc, Oscar had ordered a gun for that ammo? So Judge ignored that factor. Very selective reasoning here imo.

 

[vanatos]

If that's true Vanatos, then you're right but surely it can't be that simple. She has applied the law to the facts, but she has got it wrong, the law is apparently complex* in this area and maybe she is simply not experienced enough. Of course, we also take into account the fact that male judges get it wrong too.

*"Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them." Sorry to quote prof Grant again but it's a salutary warning to other legal experts. Where she then got mixed up follows in the extract linked below- if he is right?!

http://criminallawza.net/

The problem i have with Masipa is that she arbitrarily goes from logical deduction and application and law, WHERE IT SUITS PISTORIUS, and then arbitrarily
hands out judgement without clear explanation (or in this case of eventualis faulty application) where it suits pistorius.

The law in this regard is not complex, it simply seems complex because it is codified, even a simpleton understands the stupidity in her errors of judgement, precisely because it goes against common-sense.

Her two glaring flaws in judgement are:

1. If i intentionally go out to kill SOMEONE but do not actually name the person, by her logic it cannot be a murder charge, this already flies in the face
of common-sense, because everyone can simply claim they wanted to kill someone, just not the actual person who died.

2. Pistorius did not intentionally kill Reeva purely because he was crying afterwards, hence this alone means he must not have intended to kill Reeva.
This is by far the most subjective and silly judgement she could make, virtually every legal expert has stated that Pistorius' frame of mind AFTER the incident
cannot be used to infer his frame of mind BEFORE the incident.

And on another note, various times Masipa has thrown out the various evidence of conflict between Reeva and Pistorius, stating that humans are fickle,
how does she become a super-expert on psychology when it suits pistorius, yet can say we cannot make judgement between the two when there is clear evidence
of relationship problems?

The reason why this is so bad, is because every adult and parent and teenager in their life has used or experienced the tactic of crying and saying 'i didnt do it' when their found out to do something wrong.

When a judge does something this stupid, it should be criticized heavily.

I do not want to entertain the notion she was bought out, so my most lenient judgement on her conduct is that she was totally guided by emotion, where
law was inconvenient for her belief Pistorius was innocent, she just arbitrarily goes the other way.

 

[AlwaysShocked]

I think nel will try and argue that a hard sentence would prevent any appeal that is so forthcoming
Just a thought

Ummmm....would that not be a form of coercion?

 

[foxbluff]

Snipped....
She never heard public opinion.. shes a judge in a high profile case she would have avoided all media about it..she got it wrong all on her own...

BBM... she would have avoided all media

Yes, and I feel confident that she did.

She didn't however hide out in a spider hole in the ground... she had to go to work every court day and be exposed to the public. I would be astounded if public opinion didn't accidently seep into her knowledge. And, if I'm right that it did, then I say again 'I applaud her that she didn't let majority public opinion influence her verdict.'

 

[PrimeSuspect]

BBM... she would have avoided all media

Yes, and I feel confident that she did.

She didn't however hide out in a spider hole in the ground... she had to go to work every court day and be exposed to the public. I would be astounded if public opinion didn't accidently seep into her knowledge. And, if I'm right that it did, then I say again 'I applaud her that she didn't let majority public opinion influence her verdict.'

The funny thing is it might have had the opposite effect. There were crowds of supporters outside, she may think she's pleasing the masses by her verdict. jmo

 

[delilah]

What on earth were she and her assessors doing all those weeks, whilst the rest of us were unravelling timelines and wrestling with the discrepancies in OP's evidence? Obviously, it isn't their role to play detective, but, if she didn't understand the timeline, why didn't she ask some questions? I fear that she was completely unaware that she didn't understand the timeline. Her reasoning was simplistic: Reeva could not have screamed much after the shots. Therefore, given that it was common cause that the shots came before the screams, it could not have been Reeva who was doing the screaming.

However, for me the real catastrophe is her failure to comprehend the State's alternative timeline and, in particular, her finding that Reeva's screams belonged to OP. Always providing that she had an open mind, IMO this catastrophe could have been avoided, had the State taken the time to produce a timeline that she could comprehend. Many people said it and, unfortunately, they have been proved right.

Snipped

Problem was the state couldn't present a coherent timeline, because Nel had no explanation for the first set of bangs, and that was one of the biggest problems for the prosecution.

it wasn't common cause that the shots came before the screams. The alleged blood curdling screams would have been before the second set of bangs so, in the state's version, before the shots. Those screams were separate to the possible scream between the first and second shots, as per the state's version.

 

[soozieqtips]

In acquitting Pistorius of murder, Judge Masipa seems to be saying that brutality is part and parcel of ordinary life.

What is a “normal relationship”? Excitingly, this long-mulled-over question has at last been resolved. “Normal relationships are dynamic and unpredictable most of the time, and human beings are fickle,” Judge Thokozile Masipa said on Thursday, explaining why she was not convicting Oscar Pistorius of the murder of Reeva Steenkamp.

This dynamism, according to Masipa, is why Steenkamp professed herself in messages to Pistorius to be “scared of you sometimes and how u snap at me and of how you will react to me”. (This message was prescient, seeing as, on 14 February 2013, Pistorius was to pump her full of bullets.) Steenkamp felt “attacked”, she wrote, by the person she “deserved protection from.” This, according to the judge, is a normal relationship. And thus, even though Pistorius killed Steenkamp, he did not murder her, according to the judge. Instead, she convicted him of culpable homicide.

http://www.theguardian.com/commenti...us-reeva-steenkamp-murder-normal-relationship

 

[RosieC]

For me, this case was never about dolus eventualis - it was always about directus. Yes, we would have struggled to get premeditation, but what most of us wanted was directus, in recognition of the fact that OP purposely shot Reeva.

However, it became clear during closing arguments, when she asked if the timelines were common cause, that Judge Masipa simply wasn't on the same page. Hers was a surprising question, (and a worrying one), because it revealed that she didn't understand the State's case. Unlike us, she hadn't grappled with the timeline, she hadn't tried to reconstruct the events of that night and morning, and she hadn't seriously contemplated the possibility that OP was abusing Reeva.

What on earth were she and her assessors doing all those weeks, whilst the rest of us were unravelling timelines and wrestling with the discrepancies in OP's evidence? Obviously, it isn't their role to play detective, but, if she didn't understand the timeline, why didn't she ask some questions? I fear that she was completely unaware that she didn't understand the timeline. Her reasoning was simplistic: Reeva could not have screamed much after the shots. Therefore, given that it was common cause that the shots came before the screams, it could not have been Reeva who was doing the screaming.

Murder directus pretty much depended on the screams being Reeva's screams. The witness evidence presented by the State was compelling. I can only surmise that Mr Nel thought Masipa, like most of us, understood the power of this evidence and was convinced, when, in fact, not only was she not convinced, but she was happily mistaking Reeva's screams of horror and desperation for OP's post-event hysterics.

In a sense, once she made the finding that the State's witnesses were unreliable, it was all over: There's a very fine line between murder eventualis and culpable homicide - I've come across quite a few cases where I would have expected a verdict of eventualis, but there has been a finding of CH; and vice versa.

This does not alter the fact that the construction of the Judgement leaves a lot to be desired: As far as I can remember, although Masipa accepted that OP acted in PPD, she failed to spell out (1) why she considered four shots to be a proportionate response and (2) why an intruder behind a locked door would pose a sufficiently imminent threat to warrant such an attack. Instead, she allowed herself to get bogged down in making unnecessary and bizarre findings on intention, upsetting everyone in the process.

However, for me the real catastrophe is her failure to comprehend the State's alternative timeline and, in particular, her finding that Reeva's screams belonged to OP. Always providing that she had an open mind, IMO this catastrophe could have been avoided, had the State taken the time to produce a timeline that she could comprehend. Many people said it and, unfortunately, they have been proved right.

I agree about dolus directus. Please see my articles in biznews. http://www.biznews.com/oscar-pistorius-trial/2014/05/oscar-pistorius-i-know-what-really-happened/

However Gerrie Nel did not argue the case sufficiently for this to be proved beyond a reasonable doubt. I am busy scribbling away on this issue and hope to publish further. However I could not see how the case for dolus eventualist could be anything but a slam dunk, unless putative self defence or mental incapacity was accepted.

I agree Masipa was worrying. I expected her to ask Barry Roux which verdict he recommended. I also have to say, I am not a conspiracy theory junkie, however a seemingly sane and rational person told me back in April I think it was, that he learnt that Pistorius's uncle bought the trial and it would be Not Guilty and non-custodial sentence with a life ban on owning firearms. I found it too incredible then, and supposed it little more than rumour. Now I am baffled. I wish I'd put a tenner or more on it though. I would have got good odds - then, not now.

 

[K.T]

I'm still reading a lot and trying to unpack Masipa's reasoning, the legalese from previous rulings/ articles and the "unanimous" decision. It's extremely contradictory. It needs to go to Supreme Court because this is a terrible precedent. Also, I think that 'subjective foresight' is a problematic part of intention and think that part of the law should be replaced by objective foresight...

The idea of Pistorius writing a book is just wrong. South Africa needs to also introduce a law where the convicted cannot profit from their crime, especially given the extremely high rate of homicide.

Yes, I'm introducing laws now

 

[Ncl1968]

BBM... she would have avoided all media

Yes, and I feel confident that she did.

She didn't however hide out in a spider hole in the ground... she had to go to work every court day and be exposed to the public. I would be astounded if public opinion didn't accidently seep into her knowledge. And, if I'm right that it did, then I say again 'I applaud her that she didn't let majority public opinion influence her verdict.'

How can a majority be seeped?... surely seeping means going through the cracks....and so a minority...
Yes she may have heard a little of the real world but it is not the whole sum of the equation

 

[vansleuths]

Well, at least there is a bit of fallout for OP

"Nike has terminated its second endorsement contract in a week. First, Ray Rice. Now Oscar Pistorius." https://twitter.com/darrenrovell/status/510939359240261632

 

[K.T]

How can a majority be seeped?... surely seeping means going through the cracks....and so a minority...
Yes she may have heard a little of the real world but it is not the whole sum of the equation

Yes. Law is not static, let's repeat that, and the legal system serve the best interests of society not that society has to be straightjacketed by legal technicalities which may be interpreted incorrectly or not work within the spirit of the law.

Frankly, this trial was televised as a majority of South Africa needed to find confidence in the courts after insane levels of corruption, ineptitude, prejudice and accusations of 'kangaroo courts'. The 'majority of public opinion' is very important for the courts, the government and for social order.