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

[OZe]

Having stepped away from the case for a week or so I tend to think we have all headed down the rabbit hole with Masipa

This was exemplified in last nights debate where lots of effort gets expended on matters which don't have much to do with guilt or innocence.

In the end, the bullet hole business proves precisely nothing.

The case is simple at its heart and Nel as an experienced prosecutor stuck close to the matters he must prove.

The key point is that with a correct interpretation of the law, the defence must show a lawful justification for the shooting.

Second the defence must show an evidential basis for mistake.

....

The problem is not timeline, but the way in which the judge simply ignores the evidential onus, and the weight of circumstantial evidence.

To put it country simple - the failure to make out self defence should have been instantly fatal to the defence.

But somehow it wasn't.

Masipa's rabbit hole is that somehow, even though OPs' version was pure nonsense, the prosecution must nevertheless definitively prove beyond reasonable doubt he knew Reeva was in there.

But how is such proof ever possible?

Somehow Masipa resists making obvious and natural inferences of the type courts usually make.

And bizarrely Masipa concludes that OPs version was reasonably possible - even though it clearly was a lie!

I don't see what hope Nel has against such poor quality analysis.

[rsbm]

Brilliant post!

It would be hard to find a more informed court gallery than here on WS. I've been astounded by the mix of dedication, reasoned insights, patient explanations and obvious humanity of posters like Zwiebel, Mr. Fossil, JudgeJudi, AJ-DS, Lux, Pandax, Jay-Jay, BritsKate, mrjitty and the many others I've neglected to mention.

I'm sure I wasn't alone watching Masipa's judgement and feeling a strange sense that reality had somehow been suspended; in particular, her findings that the ear-witnesses were all mistaken, that the testimony of credible expert witnesses for the PT could be ignored, and, most alarmingly that an incredible accused was genuinely remorseful.

The outrage that followed her judgement, not just on WS and in much of the legal world, but also in the comments sections of almost any online article anywhere in the world make it self-evident that mrjitty has hit the nail in the epicentre of it's head: Masipa got it wrong. The fault lies not in Nel's strategy, Roux's cunning, Oscar's snotty sniveling, or narrow-minded insistence that a bullet hole with a crack through is some wholly incontrovertible Shroud of Turin. The buck stops with Masipa and she'll be doing herself a big favour handing down a stiff sentence. It's her only chance of unwinding the coiled cobra, Gerrie Nel.

Speaking of religious relics (and not meaning to disparage clear-thinking folks of faith), the overwhelming majority of support for OP appears to come from people who are impressed with his public displays of piety: his exhortations to God (rather than paramedics), his humble tweets (while recovering from hangovers) and his his in-court Kumbaya prayer sessions. It's not surprising that they accept his nightclubbing and girl-on-knee bouncing; it's to be expected. It's part of the redemption narrative central to their beliefs. The further he falls the higher he soars.

While I agree that he has lost all that he had (still a droplet in the sea of the Steenkamp's suffering), I'm convinced that he will be welcomed with open arms by those that have stood by him because of their faith, and not because they are expert in reasoning or objectively assessing evidence that refutes their strongly-held beliefs. Whether or not he goes to jail, Pistorius, the convicted killer, will have a long and lucrative career speaking up and down the bible belt, signing autographs for adoring fans, performing miracle cures on the broken and twisted limbs of the devout and, every now and then, if the mood is right and the audience suitably in awe, wailing like a woman possessed.

The tarnished hero will once again fly high on the wings of angels, unless of course he gets a tap on the shoulder from brawny justice down here on earth.

jmho

Thank you all so much for this forum. It's been a welcome voice of reason and, though I've been very quiet, a home of abundant good will and delicious breakfasts throughout this long, amazing trial.

'Til Tuesday, then.

 

[soozieqtips]

Correction: OP is The Victim. Reeva is dead and gone, so she need not be considered any more. :shakehead:

That's right. She is now the "deceased" because of the "victim".

How could I have forgotten! Well, it was dark...

 

[sleuth-d-]

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.

nel has asked today for a minimum of 10 years, so if the judge gives a ten year sentence he won't be appealing.

i don't think op has ever wanted to do any jail time... so, if the sentence is anything below that 10 years, i wonder which side gets to throw in their appeal first. form an orderly queue.

 

[Marfa Lights]

Thank you OZe and Mr Jitty too for both of the posts above. I am not sure why but I feel so much better after reading them. It's been amazing how much anxiety and frustration this trial has generated for me. And like the author of the article in the Daily Maverick yesterday, I will be glad to be done with Oscar soon.

 

[Fuskier]

:goodpost:

It was OP's choice to hire a top flight legal team, expert witnesses, video re-enactment etc. He made an all or nothing gamble that a clever advocate would win his case for him in spite of his lack of truthfulness, changing versions etc. He lost - he was found guilty of CH, but in another sense he won: without Roux et al he may well have been found guilty as charged.

He gambled, he lost - he was found guilty of CH.

 

[Sherbert]

Regardless of the fact that the state did not win its case, the state still feels (like many of us) that OP committed murder. Since the court did not agree, yes, Nel had no choice but to work within the parameters of CH. But the parameters of CH include up to 15 years imprisonment.

So the point I'm trying to make is since the state feels OP should have been convicted of murder, which carries a 15 year to life sentence, I'm surprised Nel didn't respond to Masipa's question by stating unequivocally, "15 years."

Whether or not Nel or anyone else thinks Masipa would ever sentence OP the maximum allowable (or any prison term at all) is irrelevant. I just feel that since the state believes OP committed an offense that should've landed him in prison for a minimum of 15 years, that Nel should have requested the court sentence him the maximum prison term that the lesser charge of CH allows - 15 years.

Yes, I agree totally. And there is also the consideration that she is bound to award less than he requests.

 

[Cloen]

Just to clarify ---

Oscar said when he testified that he saved opening Reeva's Valentine's Gift till her birthday to open it BUT
Reeva's Cousin, Kim Martin confirms that Oscar did get Reeva's birthday WRONG :

Kim Martin retweeted
Rebecca Davis @becsplanb · Apr 8
OP said he saved Reeva's V-day present to open on her birthday, August 8th, last year. Have just confirmed with R's cousin: her bday 19 Aug



He wasn't in love with Reeva - it was early days and she would have dumped this idiot , had she been given the chance

He has to go to prison, Nel gave all the reasons why. If he doesn't then the whole trial will just continue to stink of Masipa being a puppet to Roux.

 

[JudgeJudi]

Nel - still quietly seething about the earlier verdict - insisted that OP's crime came so close to that of murder that only a minimum 10-year prison sentence would satisfy South African society.

He suggested that the public might "take the law into their own hands" if the judge showed any greater leniency.

OP’s lawyers and family quickly voiced their outrage with one saying "this isn't the Colosseum."

http://www.bbc.co.uk/news/world-africa-29664618

 

[LemonMousse]

[rsbm]

Brilliant post!

It would be hard to find a more informed court gallery than here on WS. I've been astounded by the mix of dedication, reasoned insights, patient explanations and obvious humanity of posters like Zwiebel, Mr. Fossil, JudgeJudi, AJ-DS, Lux, Pandax, Jay-Jay, BritsKate, mrjitty and the many others I've neglected to mention.

I'm sure I wasn't alone watching Masipa's judgement and feeling a strange sense that reality had somehow been suspended; in particular, her findings that the ear-witnesses were all mistaken, that the testimony of credible expert witnesses for the PT could be ignored, and, most alarmingly that an incredible accused was genuinely remorseful.

The outrage that followed her judgement, not just on WS and in much of the legal world, but also in the comments sections of almost any online article anywhere in the world make it self-evident that mrjitty has hit the nail in the epicentre of it's head: Masipa got it wrong. The fault lies not in Nel's strategy, Roux's cunning, Oscar's snotty sniveling, or narrow-minded insistence that a bullet hole with a crack through is some wholly incontrovertible Shroud of Turin. The buck stops with Masipa and she'll be doing herself a big favour handing down a stiff sentence. It's her only chance of unwinding the coiled cobra, Gerrie Nel.

Speaking of religious relics (and not meaning to disparage clear-thinking folks of faith), the overwhelming majority of support for OP appears to come from people who are impressed with his public displays of piety: his exhortations to God (rather than paramedics), his humble tweets (while recovering from hangovers) and his his in-court Kumbaya prayer sessions. It's not surprising that they accept his nightclubbing and girl-on-knee bouncing; it's to be expected. It's part of the redemption narrative central to their beliefs. The further he falls the higher he soars.

While I agree that he has lost all that he had (still a droplet in the sea of the Steenkamp's suffering), I'm convinced that he will be welcomed with open arms by those that have stood by him because of their faith, and not because they are expert in reasoning or objectively assessing evidence that refutes their strongly-held beliefs. Whether or not he goes to jail, Pistorius, the convicted killer, will have a long and lucrative career speaking up and down the bible belt, signing autographs for adoring fans, performing miracle cures on the broken and twisted limbs of the devout and, every now and then, if the mood is right and the audience suitably in awe, wailing like a woman possessed.

The tarnished hero will once again fly high on the wings of angels, unless of course he gets a tap on the shoulder from brawny justice down here on earth.

jmho

Thank you all so much for this forum. It's been a welcome voice of reason and, though I've been very quiet, a home of abundant good will and delicious breakfasts throughout this long, amazing trial.

'Til Tuesday, then.

Oh my goodness....what an outstandingly fantastic post. Best I think I have ever read on any forum discussing this.

Thank you.

 

[JudgeJudi]

OP testified that he doesn’t read about himself in the media, but according to Roux he does. Did we ever doubt it. I hope he and his family, Masipa and the assessors, the DT and the general public at large read this letter from the CEO of the QuadPara Association of South Africa who says OP must go to jail.

http://ewn.co.za/2014/10/17/OPINION-Ari-Seirlis-Oscar-heres-how-you-can-still-make-a-difference

 

[OZe]

Oh my goodness....what an outstandingly fantastic post. Best I think I have ever read on any forum discussing this.

Thank you.

LemonMousse, one of the many I forgot to thank. Thanks for your reply, truly gracious.

 

[JudgeJudi]

Like an unnecessary plot twist in a Shonda Rhimes series, the trial saw drama on Thursday featuring a brute, a grieving sister and the fallen athlete. I saw none of it myself – it's hard to see anything beyond the shoulders of Marc Batchelor and his proteined cohorts – so the story is second-hand, from the mouth of Carl Pistorius.

Schultz arrived mid-session on Thursday, missing the applause for Judge Thokozile Masipa's birthday, and joined Batchelor and Taylor, as well as Jared Mortimer, who has had a run-in with Pistorius, and Schultz's friend, heavyweight boxer Mark Strydom.

Together they looked like Ultimate Fighting Championship competitors in shirts from Biceps, Biceps & Pectoral.

http://www.dailymaverick.co.za/arti...ay-of-tears-threats-and-anguish/#.VEHbhyxxnBw

 

[ColonelMustard]

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.

What's the downside of appealing, no matter the sentence is?

Tuesday - sentence
Tues/Wed - submit appeal
Wed/Thurs/Fri. - if necessary, appeal her denial of appeal
Following week - appeal "heard" / read / considered by panel and their decision is given

 

[ColonelMustard]

Having stepped away from the case for a week or so I tend to think we have all headed down the rabbit hole with Masipa

This was exemplified in last nights debate where lots of effort gets expended on matters which don't have much to do with guilt or innocence.

In the end, the bullet hole business proves precisely nothing.

The case is simple at its heart and Nel as an experienced prosecutor stuck close to the matters he must prove.

The key point is that with a correct interpretation of the law, the defence must show a lawful justification for the shooting.

Second the defence must show an evidential basis for mistake.

OP's testimony spectacularly failed on two points.

First no lawful justification was shown. This should have lead inexorably to a conviction for murder, except the judge screwed the law up.

Second, there was no reliable evidence of a mistake.

OP failed to show how Reeva got in the toilet without him knowing.

In fact his entire story was manufactured and deceptive.

And that is the key to the whole case.

There is in fact no reliable evidence that any mistake was made.

So in the ordinary course, a conviction for direct murder should have followed.

Nel took the shortest and safest route to the conviction, and on any rational basis, he did in fact make out the case beyond reasonable doubt.

This is simply because the evidential onus was on the defence to make out self defence and mistake.

To now criticise Nel over timeline, or for not engaging in speculation with witnesses, is improper in my view.

The problem is not timeline, but the way in which the judge simply ignores the evidential onus, and the weight of circumstantial evidence.

To put it country simple - the failure to make out self defence should have been instantly fatal to the defence.

But somehow it wasn't.

Masipa's rabbit hole is that somehow, even though OPs' version was pure nonsense, the prosecution must nevertheless definitively prove beyond reasonable doubt he knew Reeva was in there.

But how is such proof ever possible?

Somehow Masipa resists making obvious and natural inferences of the type courts usually make.

And bizarrely Masipa concludes that OPs version was reasonably possible - even though it clearly was a lie!

I don't see what hope Nel has against such poor quality analysis.

Mr. J, you stopped short on your exceptional analysis.

I'd love your take on the "why"?

Why do you think she made such a poor quality analysis?

 

[ColonelMustard]

[rsbm]

Brilliant post!

It would be hard to find a more informed court gallery than here on WS. I've been astounded by the mix of dedication, reasoned insights, patient explanations and obvious humanity of posters like Zwiebel, Mr. Fossil, JudgeJudi, AJ-DS, Lux, Pandax, Jay-Jay, BritsKate, mrjitty and the many others I've neglected to mention.

I'm sure I wasn't alone watching Masipa's judgement and feeling a strange sense that reality had somehow been suspended; in particular, her findings that the ear-witnesses were all mistaken, that the testimony of credible expert witnesses for the PT could be ignored, and, most alarmingly that an incredible accused was genuinely remorseful.

The outrage that followed her judgement, not just on WS and in much of the legal world, but also in the comments sections of almost any online article anywhere in the world make it self-evident that mrjitty has hit the nail in the epicentre of it's head: Masipa got it wrong. The fault lies not in Nel's strategy, Roux's cunning, Oscar's snotty sniveling, or narrow-minded insistence that a bullet hole with a crack through is some wholly incontrovertible Shroud of Turin. The buck stops with Masipa and she'll be doing herself a big favour handing down a stiff sentence. It's her only chance of unwinding the coiled cobra, Gerrie Nel.

Speaking of religious relics (and not meaning to disparage clear-thinking folks of faith), the overwhelming majority of support for OP appears to come from people who are impressed with his public displays of piety: his exhortations to God (rather than paramedics), his humble tweets (while recovering from hangovers) and his his in-court Kumbaya prayer sessions. It's not surprising that they accept his nightclubbing and girl-on-knee bouncing; it's to be expected. It's part of the redemption narrative central to their beliefs. The further he falls the higher he soars.

While I agree that he has lost all that he had (still a droplet in the sea of the Steenkamp's suffering), I'm convinced that he will be welcomed with open arms by those that have stood by him because of their faith, and not because they are expert in reasoning or objectively assessing evidence that refutes their strongly-held beliefs. Whether or not he goes to jail, Pistorius, the convicted killer, will have a long and lucrative career speaking up and down the bible belt, signing autographs for adoring fans, performing miracle cures on the broken and twisted limbs of the devout and, every now and then, if the mood is right and the audience suitably in awe, wailing like a woman possessed.

The tarnished hero will once again fly high on the wings of angels, unless of course he gets a tap on the shoulder from brawny justice down here on earth.

jmho

Thank you all so much for this forum. It's been a welcome voice of reason and, though I've been very quiet, a home of abundant good will and delicious breakfasts throughout this long, amazing trial.

'Til Tuesday, then.

Exceptionally articulate and eloquent.

 

[JudgeJudi]

What's the downside of appealing, no matter the sentence is?

Tuesday - sentence
Tues/Wed - submit appeal
Wed/Thurs/Fri. - if necessary, appeal her denial of appeal
Following week - appeal "heard" / read / considered by panel and their decision is given

Tuesday sentence. State or DT may verbally inform the Court that they will be filing a Notice of Appeal. In any event I think they have 2 or 3 weeks to do this once the sentence has been handed down.

Masipa (not a panel) will then decide whether to allow the appeal. I'm unaware as to whether she decides immediately or not, but I believe it would be granted in any event regardless of who's appealing.

The appeal can be heard by either a full bench (3 judges) of the same court (which would not include Masipa) or it could possibly go direct to the Supreme Court of Appeal (3-5 judges) which is the highest court other than the Constitutional Court which deals with constitutional matters. This would probably take 18 months, maybe longer, to be heard and is very costly.

As OP has been out on bail for 18 months, I think the DT will apply for bail and as he's been convicted of CH as opposed to murder and I think he'll probably be granted bail. I know, we've been here before, and yes it is appalling but there are precedents.

 

[ColonelMustard]

Tuesday sentence. State or DT may verbally inform the Court that they will be filing a Notice of Appeal. In any event I think they have 2 or 3 weeks to do this once the sentence has been handed down.

Masipa (not a panel) will then decide whether to allow the appeal. I'm unaware as to whether she decides immediately or not, but I believe it would be granted in any event regardless of who's appealing.

The appeal can be heard by either a full bench (3 judges) of the same court (which would not include Masipa) or it could possibly go direct to the Supreme Court of Appeal which is the highest court other than the Constitutional Court which deals with constitutional matters. This would probably take 18 months, maybe longer, to be heard and is very costly.

As OP has been out on bail for 18 months, I think the DT will apply for bail and as he's been convicted of CH as opposed to murder, I think he'll probably be granted bail. I know, we've been here before, and yes it is appalling but there are precedents.

Because it's Pistorius, do you think there'd be any chance they'd move faster than 18 months?

 

[JudgeJudi]

Because it's Pistorius, do you think there'd be any chance they'd move faster than 18 months?

No, definitely not.

 

[JudgeJudi]

Pistorius should get at least 10 years in prison

“His suggestion prompted gasps from Pistorius's family and further tears from the athlete, who was more emotional in court than he had been for weeks, weeping throughout the sentencing arguments”.

http://www.independent.ie/world-new...get-at-least-10-years-in-prison-30673637.html

Once again, there are only tears when it's about him. If he was truly remorseful:

1. While he was still in his home after the shooting he would have asked Aimee, Carl ... anyone in fact ... to ring June and let her know immediately that he'd "accidentally shot and killed her" and that the police would be seeing them shortly. Can you imagine waking up and hearing it first on the radio or TV?

2. Since the bail application he had just over a year to write the Steenkamps a letter. He could never "find words eloquent enough" or didn't have the time, whatever, to do this. If he was remorseful, he didn't have to find eloquent words, he only needed to speak from his heart. He said they said they weren't ready to meet him. That does not prevent him from writing. Totally disingenuous. And then to apologize in open court in front of the whole world. He's disgusting.

3. He would not have lied, fabricated and tailored his version/s but told the truth to the best of his ability.

4. He would not have made this trial about him and how he's the victim.

I could go on and on but there's no need because we all know what he is, and one thing he is not is remorseful for killing her.

 

[Val1]

Thank you OZe and Mr Jitty too for both of the posts above. I am not sure why but I feel so much better after reading them. It's been amazing how much anxiety and frustration this trial has generated for me. And like the author of the article in the Daily Maverick yesterday, I will be glad to be done with Oscar soon.

I agree, I haven't even followed since the judge ruled against murder ... due to current health concerns(I have somehow developed high blood pressure for the first time in my life though it could be at least partially due to the osteo my doc said I have vis a vis a degenerative shoulder joint also newly diagnosed) so I just can't take the emotional rollercoaster that this trial took me through. This was surely especially emotional for anyone else who'd experienced any kind of relationship abuse too so I'm not surprised at the public response to the judge's decision and only hope she ends up doing the right thing for RS.

May those who preach "forgiveness" remember that atonement is the first step to that end.