Trial Discussion Thread #58 - 14.17.10, Day 47 ~ sentencing~

[JudgeJudi]

I am not sure why Nel said this case bordered on Dolus Eventualis. That suggested to me that he may not be going for an appeal?? Surely he would/should have said that in his opinion this was Dolus Eventualis or can he not do that because a judgement already has been made. Somebody tell me I am wrong with respect to Nel giving up - pleeeeease!

I think everything will hinge on the sentence imposed. I think Nel used the findings in the judgment, as opposed to what believed the judgment should have been, and based all his argument on those findings. It would be pointless to do otherwise. Ever since Masipa's verdict, I thought the question of whether or not the State would appeal would rest on how light a sentence she handed down. I haven't seen any judgments for CH where there was a 15 year sentence. They're usually more in the order of 8 years or less. It was pretty obvious the DT wanted a non-custodial sentence, but Masipa has already stated that he used excessive force and used a firearm so some prison time is possible.

My view since the judgment has been that if he got 10 years or more the state probably wouldn't appeal.

If he did get a 10 year sentence, the defence could possibly appeal in the hope of reducing it but they would then run the risk that another court could impose a harsher sentence or change the verdict to murder.

If the sentence is very light, I believe Nel will use Masipa's misinterpretation of the law as the basis of an appeal and go for dolus eventualis.

Of course like everything else in this case, anything and everything is possible.

 

[Interested Bystander]

Masipa's bias for OP is more than obvious…

When State witnesses testify or Nel makes submissions, Masipa leans back into her chair, crosses her arms and has a stern expression on her face.

When Defence witnesses testify or Roux makes submissions, Masipa hunches forward, rests her head on 1 and then 2 hands, and has an expression on her face of a compassionate grand-mother listening to her grandchildren.

… even when Defence witnesses are grossly misinformed, rely on hearsay, and severely obfuscate during cross-examination… Masipa remains smitten with them.

Shame on you Masipa… you are a disgrace to South Africa and do not deserve the tittle of Judge or the respect it commands.

I think it is a little more than that - LOL. There is only 8 years between their ages (Roux is 59 on November 21st). I think her rather "little girl" pose shows an affection for Roux that she does definitely not have for Nel. How anyone can find anything to like in that ingratiating advocate I shall never know.

JM :loveyou: BR (hehe!)

 

[JudgeJudi]

Thank you LM. I have read on a number of occasions that even if Nel appeals that the sentence cannot be changed, only the judgement. If a sentence anywhere near 10 years is given I am sure Pistorius will want to appeal but I understand if he does he runs the risk of a murder conviction being imposed and the sentence then can be changed. Is that correct?

My understanding is that the State cannot appeal on facts, but it can appeal on sentence. The State rarely appeals a conviction but if there was an error or misinterpretation of the law it can appeal and the sentence changed accordingly.

 

[WilliamMunter]

Roxanne is shaking her head. She's a real piece of work, rude and arrogant.

She's picked this up from Olwadage. It's appaling behaviour that will do her no favours in the future.

Talking of Oldwadge...why is he not here?

 

[zwiebel]

Is it Tuesday yet?

 

[Cherwell]

She's picked this up from Olwadage. It's appaling behaviour that will do her no favours in the future.

She has come over as an unpleasant piece of work. She seemed to have attracted some fans in the beginning, but some people can't see past long blonde hair.

:cat: miaow

 

[AlexUK]

Anyone know what likely form Tuesday will take? Will we all be kept in suspenders with lots of yadayadayada from Milady followed by the pronouncement of the sentence or does she just dive in? If JP gets jail time and does not lodge an appeal will he be carted off there and then? If he gets jail time and does lodge an appeal will he be free in the meantime?

 

[JudgeJudi]

I don't know for sure, but I think if he'd said "In my view, this was dolus eventualis" it would have been considered highly disrespectful because that was not the courts finding. He'd effectively have been saying he considered her judgement wrong - and it was neither the time or place for that.

Most legal people are certain that if Pistorius doesn't get a solid custodial sentence, the State will appeal. Not the sentence, but the judgement itself.

So don't panic!

I thought he said it "was close to dolus eventualis". You're right LM, the place for doing this would be in a notice of grounds of appeal.

 

[patCee]

I think everything will hinge on the sentence imposed. I think Nel used the findings in the judgment, as opposed to what believed the judgment should have been, and based all his argument on those findings. It would be pointless to do otherwise. Ever since Masipa's verdict, I thought the question of whether or not the State would appeal would rest on how light a sentence she handed down. I haven't seen any judgments for CH where there was a 15 year sentence. They're usually more in the order of 8 years or less. It was pretty obvious the DT wanted a non-custodial sentence, but Masipa has already stated that he used excessive force and used a firearm so some prison time is possible.

My view since the judgment has been that if he got 10 years or more the state probably wouldn't appeal.

If he did get a 10 year sentence, the defence could possibly appeal in the hope of reducing it but they would then run the risk that another court could impose a harsher sentence or change the verdict to murder.

If the sentence is very light, I believe Nel will use Masipa's misinterpretation of the law as the basis of an appeal and go for dolus eventualis.

Of course like everything else in this case, anything and everything is possible.

I agree with all of this. The issue of CH and what sentence is handed down was discussed previously. Some of the legal experts also speculated that an appeal by the PT may depend upon on the sentence given for CH. Therefore Nel referred to Dolus Eventualis, and the minimum sentence he wanted for CH, backing this up with evidence. It was a message to the court and creating grounds for a future appeal if necessary. So leaving his options open. MOO

 

[04009margaret]

Another reporter also tweeted during heads of argument that Roux had lost a child. Can't find anything on it though......

Alex Crawford from Twitter16h
#PistoriusTrial Barry Roux is up first for the defence. 'The loss of a child is absolute devastation' (He knows. He's lost one)

 

[Mr Fossil]

Unfortunately, Nel's whole point about the timing of the Pistorius offer appears to be erroneous. It was the Steenkamps' lawyers who approached the Pistorius camp without the Steenkamps' knowledge to see if a settlement could be reached. A figure was proposed and this was then put to the Steenkamps, who rejected it. The only wriggle room in this would be if the approach was made a long time ago and the Pistorius camp then only chose to respond 2 weeks ago.

http://www.algoafm.co.za/article.aspx?id=10904

Notwithstanding this, I think Nel was on top form today (particularly when he came back fortified with tea).

 

[kaos]

Another reporter also tweeted during heads of argument that Roux had lost a child. Can't find anything on it though......

Alex Crawford from Twitter16h
#PistoriusTrial Barry Roux is up first for the defence. 'The loss of a child is absolute devastation' (He knows. He's lost one)

The only thing I could find was in google pointing towards a facebook posting. Apparently his 31 year old son died from a choking incident. Couldn't actually find the post itself though.

 

[04009margaret]

The only thing I could find was in google pointing towards a facebook posting. Apparently his 31 year old son died from a choking incident. Couldn't actually find the post itself though.

You did better than me lol. I could find the name os his wife & that he had 2 children but that's it.

 

[K.T]

Unfortunately, Nel's whole point about the timing of the Pistorius offer appears to be erroneous. It was the Steenkamps' lawyers who approached the Pistorius camp without the Steenkamps' knowledge to see if a settlement could be reached. A figure was proposed and this was then put to the Steenkamps, who rejected it. The only wriggle room in this would be if the approach was made a long time ago and the Pistorius camp then only chose to respond 2 weeks ago.

http://www.algoafm.co.za/article.aspx?id=10904

Notwithstanding this, I think Nel was on top form today (particularly when he came back fortified with tea).

I'm curious about this as well. Also, I'm exasperated that this 'settlement' issue has been created and amplified by Roux and Pistorius at that stage of mitigation - manipulative and damaging to a devastated family. Shows Pistorius true level of interest in Steenkamp's family...namely they're defense canon fodder.

About Nel's statement and time frame:

There seems to be two separate payments. One was a small monthly sum. Accepted by Steenkamps in March 2013, they saw it as foward to a later civil claim settlement.

The other offer from Pistorius was the 'sell the car' lump sum of $30,000. Rejected immediately by Steenkamps.

Maybe Nel means the larger $30,000 was the 'settlement' offer made directly after judgement as a implicit coercion tactic to keep Steenkamps from being proactive in sentencing. So that they remain "neutral"...

 

[newone]

Is it Tuesday yet?

perhaps we should have a poll ----

ranging from 1 to 10 yrs and vote

appeal or not

community service

suspended sentence?

 

[WilliamMunter]

I'm driving myself to distraction here. I hope someone can help.

I convinced myself I have seen a picture of a stainless steel fold up seat in the shower room. It had perforations to let the water through and was wall mounted. It now transpires that he has a built-in ledge in the shower cubicle. Has anyone else seen the photograph of the metal shower seat or did I dream it?

 

[Mr Fossil]

I assume if OP is given a custodial sentence on Tuesday and the inevitable Defence appeal application is made, it will then be up to Masipa whether to extend bail or not?

However, I remain to be convinced that OP will be locked up - Masipa will have already decided the sentence before today's arguments and, if she runs true to form, OP will get 3 years house arrest with 8 hours/week community service (and a fine for the firearms offence). So then the State will appeal and OP will be out on bail until the appeal is heard.

 

[mirage1]

If the state does appeal and it wins what happens? A retrial? Same legal teams?

 

[IndianSummer]

“He’s not only broke, but he’s broken. There is nothing left of this man,” Roux said. He said that Pistorius “hasn’t even the money to pay for legal expenses. He has nothing left.”
http://www.wildabouttrial.com/one_off/prosecutor-wants-10-years-in-prison-for-pistorius/

Seriously? Nothing left?
FGS Reeva was floating out in the morning tide because he murdered her.

 

[JudgeJudi]

If the state does appeal and it wins what happens? A retrial? Same legal teams?

If Masipa grants leave to appeal, the matter will be heard by a full court comprising 3 judges. The entire court transcript and exhibits have to be provided and the judges have to read it in its entirety. Heads of Argument will be presented by, in all probability but not necessarily, Nel and Roux. OP is not required to be present. I believe argument usually takes about 2 days. The Court will make it's decision within a matter of days and it's a majority verdict. No retrial.