Trial Discussion Thread #59 - 14.21.10, Day 48 ~ sentencing~

[JudgeJudi]

http://www.expressandstar.com/news/...-pistorius-be-banned-from-competing-for-life/

POLL: Should OP be banned from competing for life?

Yes 80%

No 20%

Well he pretty much has been banned for life. He can't compete in the Paralympics until 2019, i.e. at the completion of the 5 year sentence irrespective of the fact that he may leave prison in 10 months and then go on to house arrest. The International Paralympics Committee have stated as much.

The IOC hasn’t yet made a decision whether they’ll allow him to compete again. The next Games are in Rio in 2016.

The Brussels chief of the IAAF Diamond League, an annual series of track and field meetings now held in Europe, China, Qatar and the United States, said he wouldn’t be inviting him. He’s spoken to many other Diamond League promoters and they’re not keen to accept him either.

Lots of runners are now beating his previous times, he hasn't trained for 18 months, won't be running for the next 10 months, and he's already in his twilight years so far as his age is concerned. The prospect of mass booing wouldn't be something he'd look forward to. At the moment he's in his own little twilight zone.

 

[AW2B]

This is really the key point.

The judge stated yesterday in black and white that OP intended to shoot the intruder.

So that is the intentional use of lethal force against a person. So the logical inference is that an experienced firearms expert knows this can kill. Even an idiot knows that.

Yet she says he didn't intend to kill anyone.

How is that possible?

Well all the judgement says is this.



So clearly we have an error of law here. By failing to apply Dolus E to the intruder.

We can't invent other ways that OP intentionally shot the intruder without meaning to kill if the judge herself did not articulate them.

BBM

Masipa has a very odd way of thinking/reasoning when it comes to Pistorius. IMO..she wanted to help him at all costs..even at the cost of making a fool of herself.

You asked "how is that possible?"

Masipa will say .."he did intend to shoot..but he intended to miss..therefore he didn't intend to kill"..

Unfortunately..that's how she reasoned to explain away things that incriminate Pistorius..

 

[Paul_1900]

Hi,

just popping in . .

VERY SPECIAL THANKS to all users who contributed to the legal aspects of this case. It's so mindwarping that I don't dare to get involved, so I read all these brilliant posts with much respect and admiration.

YOU ARE AMAZING !!!

:fireworks:

 

[pandax81]

OK - lets leave it there.

I disagree with you that we can say the Judge held self defence.

She might have thought she did - but it is nowhere in the judgement

In the end, the defence must be one of justification, or one of lack of intent.

It cannot be 50/50

When I say the court made a finding of X, that's all I mean, I do not mean I believe it properly applied legal principles and correctly found X.

One can intend to use force in putative self defence without intention to kill. It is not contradictory. It is also possible that one did not have intention to kill, but one would have been justified if he had: so it can be both.

 

[alioop]

Mrjitty, I want to say thank you for breaking down the parts of the judgement that appear to most of us to be very questionable. I have been thinking along the same lines as you about the self defence part and that she mentioned it but then skipped to something else.

In my opinion there was no self defence as he was not being immediately threatened in any way. Even if he thought he would be threatened by an intruder in the toilet ( presumably only when they came out of the toilet and did something to threaten him), he never was because he took action to eliminate that possible threat. So unless self defence can apply to a possible but yet to eventuate threat, then there can't be a claim of self defence I would think. At best it could be said he was scared that there was an intruder in the toilet. But being scared of the unknown isn't sufficient justification for claiming self defence.

Then if there is no self defence test ticked off, he can't escape the dolus eventualis. So I find the judgement very concerning and I hope it is appealed.

 

[Gbtaketwo]

Someone just posted a comment on a Facebook page that there is a link to the jail time and having his bail money refunded . I don't know if this is the case .Does anyone know anything about this ?
I would hate to think that the inadequate sentence has also made him financially better off and that a slightly tougher sentence would have meant he lost his bail money .
It is awful thinking that if he had been sentenced to an extra week in prison he would have at least had to serve half and would not have had the option of house arrest.

 

[mrjitty]

Thank you mr jitty! Quote is long but worth repeating in case anyone missed it. This is turning my head in!

But just before page 3327 from where you start, JM raises Oliveira and the difference between private defence and putative private defence. The test for private defence is objective. Then p 3326 quoting Smallberger JA on the significant difference between them: "In putative private defence it is not lawfulness that is in issue but culpability.. his erroneous belief that his life ... was in danger may ... exclude dolus ... At worst .... he can be convicted of culpable homicide."

JM continues, in PPD the test to determine intention is subjective, the accused is the only person who can say what his state of mind was ....

And the rest is history. Had Oscar intended to kill he would have aimed higher. So he didn't intend to kill blah blah blah
If there had been an armed intruder in the toilet, the reasoning would have been different, because it would have been private defence, not PPD.

Yes, all in all, the verdict is a mess. So my questions are:

Any comments to this please? Anyone? And:

Are there any circumstances in which a verdict is so perverse that it can be overturned in its entirety?

Hi

Yes so I think this is clearly where she simply got the law wrong.

The two aspects need to be considered sequentially.

First assume the mistake and just look at Self Defence.

Given the mistake as pleaded, was this self defence?

Then if it was self defence, look at the culpability around the mistake.

But you can't just assume the mistake amounts to self defence.

Even in the circumstances as OP believed them to be - firing on the person in the toilet would appear to be excessive use of force.

So we would at the very least expect the judge to rule on that point. Her failure to even consider it would appear to indicate she thought that OP only needed to subjectively believe he was acting in self defence. But that is not correct.

 

[mrjitty]

Mrjitty, I want to say thank you for breaking down the parts of the judgement that appear to most of us to be very questionable. I have been thinking along the same lines as you about the self defence part and that she mentioned it but then skipped to something else.

In my opinion there was no self defence as he was not being immediately threatened in any way. Even if he thought he would be threatened by an intruder in the toilet ( presumably only when they came out of the toilet and did something to threaten him), he never was because he took action to eliminate that possible threat. So unless self defence can apply to a possible but yet to eventuate threat, then there can't be a claim of self defence I would think.

Then if there is no self defence test ticked off, he can't escape the dolus eventualis.

Hi

I agree entirely.

What troubles me the most, is the failure to work through the test. Even if Masipa decides there was an imminent threat - you'd at least expect her to articulate the test and the finding.

 

[mirage1]

Masipa will say .."he did intend to shoot..but he intended to miss..therefore he didn't intend to kill"..

Unfortunately..that's how she reasoned to explain away things that incriminate Pistorius..

She said the court accepted OP when he claimed if he did intent to shoot to kill he would have aimed higher. laughable distinction there clearly which I doubt would have been given to some poor random person off the street.

 

[mrjitty]

When I say the court made a finding of X, that's all I mean, I do not mean I believe it properly applied legal principles and correctly found X.

One can intend to use force in putative self defence without intention to kill. It is not contradictory. It is also possible that one did not have intention to kill, but one would have been justified if he had: so it can be both.

OK - i agree in general terms.

However i don't believe specifically one can deploy lethal force, namely 4 shots with black talon, with intention to hit the victim, without having legal intention to kill.

I just don't see how it is logically possible.

So I see only a defence via justification as legally available.

Otherwise are we going to say that when a street shoots a passer by in a holdup, that the prosecution must show that the street actually positively considered whether the victim might be killed?

How will such a proof ever be possible?

 

[AW2B]

Reeva's mother said the only time daughter was "made visible" during the trial was when her niece, Kim Martin, took to the stand to explain how much the family had lost.

From your link jay-jay. Imo this lies sorely with the judge. The trial was conducted like OP was some poor, decrepit, broken shell of man who shouldn't be there to answer any questions, and JM tried to make it as comfortable for him as she could.
I will never forget her asking Uncle Arnold to keep an eye on his wayward nephew when Nel brought up about OP's altercation at the VIP club. I have a 25 yr old son, he's a man fps!!! Makes me irritable just thinking about it. She should have been reprimanding OP in a stern way, that's tough love if she's wants to practice love towards the accused. :gaah:

BBM..she views Pistorius as the victim that needs to be protected. She's probably blaming Reeva for this..she made him kill her..:steamed:

 

[alioop]

Hi

I agree entirely.

What troubles me the most, is the failure to work through the test. Even if Masipa decides there was an imminent threat - you'd at least expect her to articulate the test and the finding.

Yes, it begs the question why she didn't. Also I edited my post and added him at best being scared of an intruder which you might like to go back and look at it and give me your thoughts.

 

[pandax81]

You know having gone through this I think I can see what one of the Judge's mistakes clearly was.

According to Grant with putative private defence, two aspects must be considered.

First - did the circumstances as the accused mistakenly believe them to be, amount to private defence? (self defence)
Second - was the mistake reasonable?

So on that analysis, you have to examine whether self defence has actually been shown, then you consider the nature of the mistake.

I think Masipa didn't realise she has to work through the test for self defence.

She thought it is enough if the defendant genuinely held a belief in SD, then she can move straight on to the putative part.

But that is 100% incorrect.

You are getting a bit mixed up with the terminology I think.

Private defence only exists when there was a real attack.

Putative private defence means you mistakenly believed you were acting in private defence.

So, the putative element of putative private defence starts from the beginning in a case like this. If one acted fully in putative private defence, then one did not commit murder and negligence is considered.

 

[ColonelMustard]

:goodpost: .. espesh BBM

.. it will now be written into history that Pistorius's version of events was the absolute truth

...

I'd compare it to the assassination of John F. Kennedy (US President) in 1963 by alleged "lone gunman," Lee Harvey Oswald. Very few people believed that then and, even after all these decades, fewer still buy that cr@p.

I'd also, of course, compare it to OJ Simpson. Almost no one ever believed that he didn't do it, even most African Americans.

As people, we can be often be :thud:dumb :thud:but we're not always stupid. :scale:

 

[mrjitty]

Yes, it begs the question why she didn't. Also I edited my post and added him at best being scared of an intruder which you might like to go back and look at it and give me your thoughts.

Yes I suppose the issues are as follows

1. It looks like a pre-emptive strike. What if it was just an unarmed kid in there?
2. The force is excessive
3. The force was not necessary, as he can simply leave the scene

Of course this is all artificial as he never perceived a threat anyway in my view.

 

[alioop]

OK - i agree in general terms.

However i don't believe specifically one can deploy lethal force, namely 4 shots with black talon, with intention to hit the victim, without having legal intention to kill.

I just don't see how it is logically possible.

So I see only a defence via justification as legally available.

Otherwise are we going to say that when a street shoots a passer by in a holdup, that the prosecution must show that the street actually positively considered whether the victim might be killed?

How will such a proof ever be possible?

Very true. And not only 4 lethal killing designed bullets, but in a closed very small toilet with tiles on the walls. It was actually extremely unlikely that a person in the room could survive it. In fact 3 bullets hit her and any one of them could have killed her from the injuries sustained. So how he could be found not to have intended to kill is mind boggling to me.

 

[mrjitty]

You are getting a bit mixed up with the terminology I think.

Private defence only exists when there was a real attack.

Putative private defence means you mistakenly believed you were acting in private defence.

So, the putative element of putative private defence starts from the beginning in a case like this. If one acted fully in putative private defence, then one did not commit murder and negligence is considered.

I agree 100%

But in order to act fully in putative private defence, the limitations of private defence apply (on the facts as you mistakenly believe them to be).

So therefore one cannot act in putative private defence if one deploys excessive or unnecessary force.

If the Court find that you acted (mistakenly, but genuinely) in private defence - then the question of whether the mistake was reasonable arises.

We call this self defence elsewhere - but the law is basically the same.

The problem remains the same.

Where does Masipa work through the test for private defence?

Even on the facts as OP testifies them to be

1. Where is the imminent threat?

2. How is the force not excessive?

3. How is the force necessary?

Masipa fails to address these points.

 

[pandax81]

OK - i agree in general terms.

However i don't believe specifically one can deploy lethal force, namely 4 shots with black talon, with intention to hit the victim, without having legal intention to kill.

I just don't see how it is logically possible.

So I see only a defence via justification as legally available.

Otherwise are we going to say that when a street shoots a passer by in a holdup, that the prosecution must show that the street actually positively considered whether the victim might be killed?

How will such a proof ever be possible?

This is a totally different point to the one you made.

You said one cannot claim justification in killing and also claim lack of intention to kill. I showed you can.

This is different to your new point: if one did have intention to kill, one must be justified. I think this is obvious, I do not disagree.

I have already showed you and quoted myself: I have always been of the view OP must have had legal intention to kill! why do you keep arguing with me as though I don't? lol :scared:

(I really am unsure why you direct these points at me in the first place, to be honest, I am not the court! But I answer them anyway, foolish as I am, haha)

 

[alioop]

Yes I suppose the issues are as follows

1. It looks like a pre-emptive strike. What if it was just an unarmed kid in there?
2. The force is excessive
3. The force was not necessary, as he can simply leave the scene

Of course this is all artificial as he never perceived a threat anyway in my view.

Agreed. Good way to put what I was thinking, a pre-emptive strike, exactly. Add I would make your 2. The force is excessive and was with intention to kill.

I also have no doubt he knew it was Reeva, though maybe he was feeling threatened if she was saying she was calling the police. In any event, even on his own version/s, he should have been found guilty of murder in my opinion for these reasons we are discussing.

 

[mrjitty]

Very true. And not only 4 lethal killing designed bullets, but in a closed very small toilet with tiles on the walls. It was actually extremely unlikely that a person in the room could survive it. In fact 3 bullets hit her and any one of them could have killed her from the injuries sustained. So how he could be found not to have intended to kill is mind boggling to me.

Which is of course why she avoids explaining how it is possible.