Discussion Thread #61 ~ the appeal~

[LemonMousse]

No...they were in response to a question about what exactly had happened that night. Lawyers are not allowed to ask hypothetical questions - that would be leading.

Slipping up and referring to a dead person in the present tense is clearly a mistake...using "if" continually to discuss actual events is extremely telling whether you are willing to accept that or not.

Interesting that you cannot summon up an excuse for the issue with the fan lead though. Duly noted.

 

[LemonMousse]

And another poster the other day was telling me how much better juries are...

Not in matters of law, they weren't.

 

[LemonMousse]

BIB replies

Allow me....

Doesn't matter where Mrs VDM thought the voice was coming from...it is a FACT that it was coming from somewhere in the vicinity of hers & OP's house. In the same small area, a woman was also heard screaming in terror an hour later, and shortly after that a murder took place. All just coincidence as far as you're concerned???!!

Three senior pathologists, a well regarded text book and medics the world over all clearly say that a stomach would be empty after 6 hours. Anesthesiologists risk peoples lives daily on this assumption. But you think it's "unreliable". Only the ill-informed non-medic Roux agrees with you. None of the experts do.

Masipa dismissed the idea of police tampering with the scene. She's your hero, usually, why are you disagreeing with her here? Because it's embarrassing for OP if police didn't faff with the curtains and fans because it makes him look like a liar?

Every single piece of circumstantial evidence could have umpteen different explanations. This is why you look at the entirety and see what picture emerges. This is logic.

Masipa dismissed virtually all key circumstantial evidence....and rather a lot of the expert evidence too. She believed no one but OP.

 

[Trotterly]

Allow me....

Doesn't matter where Mrs VDM thought the voice was coming from...it is a FACT that it was coming from somewhere in the vicinity of hers & OP's house. In the same small area, a woman was also heard screaming in terror an hour later, and shortly after that a murder took place. All just coincidence as far as you're concerned???!!

Three senior pathologists, a well regarded text book and medics the world over all clearly say that a stomach would be empty after 6 hours. Anesthesiologists risk peoples lives daily on this assumption. But you think it's "unreliable". Only the ill-informed non-medic Roux agrees with you. None of the experts do.

Masipa dismissed the idea of police tampering with the scene. She's your hero, usually, why are you disagreeing with her here? Because it's embarrassing for OP if police didn't faff with the curtains and fans because it makes him look like a liar?

Every single piece of circumstantial evidence could have umpteen different explanations. This is why you look at the entirety and see what picture emerges. This is logic.

Masipa dismissed virtually all key circumstantial evidence....and rather a lot of the expert evidence too. She believed no one but OP.

It could be a coincidence of course it could. A voice heard in the night is hardly the rarest event. The point is that the prosecution could not link it to OP. Nel had to back down when he tried to do just that suggesting that OP had been involved in an argument.

The well regarded textbook is Knight's Forensic Pathology which in the current edition does not regard stomach content as a reliable indicator. I believe a defence expert made a similar point in court.

No relevantly qualified professional would say that a stomach will be empty after 6 hours. That is ludicrous. There is no international consensus on 6 hrs. I am aware of up to 12 hours. Anesthesiologists will never rely on a safe period and will always be prepared to deal with interference from stomach contents.

Masipa did not dismiss "the idea of the police tampering with the scene" - read the judgement.

Masipa did not dismiss "all key circumstantial evidence" - read the judgement

 

[GR_Turner]

The correct approach to circumstantial evidence.


1. Let's take a piece of the fact pattern. A woman hears an argument between 2-3am - and she thinks its at the accused's house. This is essentially uncontested evidence, and must be accepted by the Court as established. Now of course this piece of evidence does not prove beyond reasonable doubt there was a murder. However it has now proven the witness heard something that sounded like an argument. It is not legitimate for the Court to say "oh it might have been TV noise". That is wild speculation. Rather - the Court must say - we accept as fact, that the witness heard something like a fight.

2. Now let's take a second point. Medical evidence shows Reeva ate late. This is once more circumstantial evidence. It is not open to the Court to say "this proves nothing because OP might have been asleep". Rather, the Court must accept a strong piece of evidence that Reeva ate late.

3. Now we have a crime scene photo showing the curtains open. A fact not seriously placed in doubt by the defence. Therefore again - it ought to be accepted by the Court that the curtains were open.

4. And next we have a photos showing a duvet on the floor and 5. a fan not plugged in.

Lets cut it there (though there are many more pieces of the puzzle).

The Court must now evaluate the accepted pieces of circumstantial evidence together - not pick them off with individual speculative points.

So the accused contends he woke up, and the victim went to bathroom unknown to him while he re-arranged the fans and it was too dark.

Against his story are 5 uncontested evidential points.

Taken together as a net or web of evidence, this of course makes his story highly improbable - especially when the Court also found he was an unreliable witness.

And this is precisely why the State is appealing on this point.

Simply to dismiss the key circumstantial evidence is logically incorrect.

There is no reliable evidence Reeva went to the toilet unnoticed.

And there are about a dozen uncontested circumstantial points which taken together prove beyond reasonable doubt OP knew where she was.

OK let's explore your argument above with those 5 examples. I'll explain what I'd expect any court to do and then you can tell why I'm wrong. So the court should first query whether the evidence has been contested and if so how successfully:

1. Do we believe this was OP and RS fighting? It would be an astonishing coincidence that the neighbour heard something like a fight just then so that strongly increases the likelihood that it was them fighting. But the likelihood is lessened because her evidence was rather vague and she couldn't say where the sounds were coming from. If they were fighting loud enough for Mrs VdM to hear 100m away, you'd think that the security patrols in the area would have heard something as well. So it's all rather inconclusive. Some room for suspicion.

2. Reeva may (or may not) have eaten in the night or just earlier, perhaps before going to bed depending on how reliable you think this evidence is. Even if it is true, would OP necessarily know this? It doesn't prove that he was awake. It also doesn't prove that she was awake for anything more than a few minutes. Also some room for suspicion.

3. The open curtains - we know at least 2 people went onto the balcony after OP said he got the fans in so I'd dismiss that as proof that OP lied about the dark.

4. The fact that the duvet was on the floor with the trail of blood shows that the duvet had been there when Reeva was carried over it for sure. But does it show OP was lying about the position of the duvet or the fan or was he just mistaken? OP stated that the duvet was on the bed so it doesn't look good. However, it became clear under cross that his reason for thinking the duvet was on the bed was partly because he didn't remember putting it on the floor, partly his belief that Botha had said it was there when he arrived and OP's belief that the police had not preserved the scene. So now it's just not clear whether he is just confused. I don't think it's at all reasonable to expect OP to remember exactly where everything was and to assume he's lying if he's proved wrong. And there was no need to lie about this as he could have moved the duvet between the shots and the bats on his version.

With regard to the fan, he said it was further to his right (and where the duvet was). But as he made a mistake about the position of the duvet then his positioning of the fan is unclear except that it was further over to his right in his evidence. However, if he knew all along that the duvet was in fact in that position then why say the fan was there when he could have just said it was to the right but not said anything about it's position in relation to the duvet? So again it's rather unclear. In this case we also have Van Rensberg's evidence. He said that he went upstairs and looked at the bathroom and then went to check the balcony. In his cross, he said that he picked up the fan, the large silver fan, when he was a few metres away from the bed. If we are in the business of assuming that evidence that isn't contested is true then the fan couldn't be where it was in the photos.

5. Hard to know what to make of this. Yes, it looks bad but I'd want to know how much I can trust the photos and given that the police produced no evidence of having taken care with the scene and didn't put all the police on the stand to testify that they touched nothing, it's just another one that's hard to interpret.

So in short, we have 2 things that are a bit suspicious and two things that are hard to interpret given the evidence.

You will I expect disagree with my analysis and also tell me that there are numerous other suspicious things to consider and that together they prove the state's case. But on the other hand we have the question of how likely it is if the state's version is true that we would have seen so much evidence that supports OP's version. Mrs Vdm heard 4 shots in a row - the only witness everyone agrees heard the real shots. OP on his stumps - rather odd if he was having a long fight with a girlfriend but not odd if he went into the bathroom in a panic as he said. If Johnson's phone time is right, the ear witness evidence fits together very well (despite the close neighbours not hearing the bats). If we are looking at likelihoods this is astonishing.

Sorry for the long post(!)

 

[GR_Turner]

Not in matters of law, they weren't.

I was being facetious.

 

[Colin de France]

I was being facetious.

...so what was the frown for ? ......post 551

 

[LemonMousse]

It could be a coincidence of course it could. A voice heard in the night is hardly the rarest event. The point is that the prosecution could not link it to OP. Nel had to back down when he tried to do just that suggesting that OP had been involved in an argument.

The well regarded textbook is Knight's Forensic Pathology which in the current edition does not regard stomach content as a reliable indicator. I believe a defence expert made a similar point in court.

No relevantly qualified professional would say that a stomach will be empty after 6 hours. That is ludicrous. There is no international consensus on 6 hrs. I am aware of up to 12 hours. Anesthesiologists will never rely on a safe period and will always be prepared to deal with interference from stomach contents.

Masipa did not dismiss "the idea of the police tampering with the scene" - read the judgement.

Masipa did not dismiss "all key circumstantial evidence" - read the judgement

Masipa found no evidence of police tampering.

I have read the judgement, and yes she did dismiss the circumstantial evidence. Well, she addressed it before dismissing it. her reasons for setting aside the witness testimony was that none of them had ever heard OP scream! Well, no, that's true....although she stunningly failed to mention that the defence had promised that the court would, and didn't follow through. Believe it or not, this would bother most judges.

Everything that ever happens could be a "coincidence". The man standing over a dead body could have "coincidentally" come across it while he was holding a smoking gun. But no one sensible would really believe that.

The fact remains that within approximately one hour, in one street in South Africa, a woman was heard talking very loudly sounding upset, then female screams were heard very shortly before a woman was murdered in a truly horrific way. If your best explanation for this is "coincidence" then words fail me.

No expert says that all stomach's are empty after exactly 6 hours...but it's a reliable guideline. What you're forgetting is that the food in Reeva's stomach was so undigested it was still recognisable. This would be quite an extraordinary thing and generally only seen in people with specific digestive problems - and there's no evidence that Reeva was anything but entirely healthy. Yet another "coincidence"?

Let's add to that OP, for the first time in his life (by his own admission) emitting noises that sounded exactly like the noises his victim would emit if she knew she was about to be shot. You'd think that if he was hoping to scare off an attacker by screaming at them, he'd want to sound manly and threatening but, nope, screaming like a girl was his preferred option.

Poor old OP...just a victim of circumstance, wasn't he? Everything conspired that night to make him look like a killer. Which, actually, is precisely what he is.

 

[LemonMousse]

I was being facetious.

I'd believe that if it wasn't for the sad face.

 

[mrjitty]

Allow me....

Doesn't matter where Mrs VDM thought the voice was coming from...it is a FACT that it was coming from somewhere in the vicinity of hers & OP's house. In the same small area, a woman was also heard screaming in terror an hour later, and shortly after that a murder took place. All just coincidence as far as you're concerned???!!

Three senior pathologists, a well regarded text book and medics the world over all clearly say that a stomach would be empty after 6 hours. Anesthesiologists risk peoples lives daily on this assumption. But you think it's "unreliable". Only the ill-informed non-medic Roux agrees with you. None of the experts do.

Masipa dismissed the idea of police tampering with the scene. She's your hero, usually, why are you disagreeing with her here? Because it's embarrassing for OP if police didn't faff with the curtains and fans because it makes him look like a liar?

Every single piece of circumstantial evidence could have umpteen different explanations. This is why you look at the entirety and see what picture emerges. This is logic.

Masipa dismissed virtually all key circumstantial evidence....and rather a lot of the expert evidence too. She believed no one but OP.

Yes - exactly. In the end is it not a good use of our time to discuss fantasy or speculation.

The shortcomings of the judgement have also been well mapped out.

What is perhaps far more interesting are the future opportunities to use data and statistics far more powerfully than we do currently.

Especially when a Judge's so called common sense view of half a dozen "inconclusive" circumstantial evidence points can be wildly different to what probability analysis suggests.

The issue is that humans are often poor judges of probability, and frequently deploy semantic arguments in illogical ways based on narrative.

For example Johnson's call time doesn't actually prove anything about whether Reeva screamed. You can quite equally deploy the screaming evidence in reverse to find that Johnson must be wrong about when he heard 5-6 shots. Or say that the N's evidence clearly proves Johnson is wrong.

What a judge is really doing is simply preferring Johnson to Stipp. Yet even if (big if) the call times are using the same clock - there is no way we can know whether which witnesses gets the exact order of events right in comparison to the clock.

So if the clock is right, Stipp or Johnson must have the sequence wrong.

Or if they both have the sequences right - then Johnson's clock must be wrong.

Then for the judge to use this to decide whether there are two voices heard or one?

What I like about mr fossils timeline is one can evaluate different possibilities.

What I find interesting is that Stipp & the N's corroborate each other strongly. Both of them together establish a same clear & continuous timeline, and they are the nearest witnesses.

Stipp & the N's also fit nicely with the physical evidence discovered.

Yet to believe in Johnson, not only do you have to essentially change all the Stipp's timing and what they directly observed, you also have to invent sounds not heard by either Stipp or Ns

So how confident are we about Johnsons 3.17?

One hearsay document?

Then a critical point I am sure you haven't missed.

It is actually the defence that needed to prove the 3.17 time - and they did it with hearsay?

It's embarrassing really.

 

[mrjitty]

So in short, we have 2 things that are a bit suspicious and two things that are hard to interpret given the evidence.

You just did the exact thing i warned against.

Defeat each piece of circumstantial evidence with speculation. Then claim they prove nothing.

That is not how circumstantial evidence is evaluated - which is why I keep saying the discussion is valueless.

On its own, circumstantial evidence allows for more than one explanation. Different pieces of circumstantial evidence may be required, so that each corroborates the conclusions drawn from the others. Together, they may more strongly support one particular inference over another. An explanation involving circumstantial evidence becomes more likely once alternative explanations have been ruled out.

Taken together, all the circumstantial evidence strongly supports the inference that OP is lying.

This inference does not need to be "beyond reasonable doubt" - it is merely a logical inference the Court may draw. In making such an inference, normally a Court would dismiss the accused evidence as unreliable.

Given the evidential burden is on the defence to show a mistake (mainly via OPs direct testimony) , where the accused admits shooting the victim - we therefore have no reliable evidence of a mistake.

In which case the only logical inference a Court can reach is that OP shot Reeva intentionally.

Again this is simply a logical inference that a Court is entitled to draw given the lack of plausible explanation.

Each circumstantial point and evidential inference does not need to be established BRD

That is merely the overall burden on prosecution

 

[mrjitty]

given that the police produced no evidence of having taken care with the scene and didn't put all the police on the stand to testify that they touched nothing, it's just another one that's hard to interpret.

This is where the standard apparently required by some posters for a murder trial becomes impossible.

The Crime Scene photos are the evidence of how the scene looked.

But now you want an extra set of evidence of how it looked before they took the photos?

How are the police ever supposed to prove that they didn't quickly move everything around and frame OP by opening the curtains and throwing the duvet on the floor?

 

[mrjitty]

No...they were in response to a question about what exactly had happened that night. Lawyers are not allowed to ask hypothetical questions - that would be leading.

Slipping up and referring to a dead person in the present tense is clearly a mistake...using "if" continually to discuss actual events is extremely telling whether you are willing to accept that or not.

Interesting that you cannot summon up an excuse for the issue with the fan lead though. Duly noted.

I thought the use of the hypothetical in describing how he might have exited thru the curtains was an outrageously clever piece of X from Nel.

It was obvious OP was not recounting from experiential memory there - but rather working out how he might have done such a thing

You can clearly see in any event that he didn't need to do this as the curtains were open.

 

[Trotterly]

Yes - exactly. In the end is it not a good use of our time to discuss fantasy or speculation.

The shortcomings of the judgement have also been well mapped out.

What is perhaps far more interesting are the future opportunities to use data and statistics far more powerfully than we do currently.

Especially when a Judge's so called common sense view of half a dozen "inconclusive" circumstantial evidence points can be wildly different to what probability analysis suggests.

The issue is that humans are often poor judges of probability, and frequently deploy semantic arguments in illogical ways based on narrative.

For example Johnson's call time doesn't actually prove anything about whether Reeva screamed. You can quite equally deploy the screaming evidence in reverse to find that Johnson must be wrong about when he heard 5-6 shots. Or say that the N's evidence clearly proves Johnson is wrong.

What a judge is really doing is simply preferring Johnson to Stipp. Yet even if (big if) the call times are using the same clock - there is no way we can know whether which witnesses gets the exact order of events right in comparison to the clock.

So if the clock is right, Stipp or Johnson must have the sequence wrong.

Or if they both have the sequences right - then Johnson's clock must be wrong.

Then for the judge to use this to decide whether there are two voices heard or one?

What I like about mr fossils timeline is one can evaluate different possibilities.

What I find interesting is that Stipp & the N's corroborate each other strongly. Both of them together establish a same clear & continuous timeline, and they are the nearest witnesses.

Stipp & the N's also fit nicely with the physical evidence discovered.

Yet to believe in Johnson, not only do you have to essentially change all the Stipp's timing and what they directly observed, you also have to invent sounds not heard by either Stipp or Ns

So how confident are we about Johnsons 3.17?

One hearsay document?

Then a critical point I am sure you haven't missed.

It is actually the defence that needed to prove the 3.17 time - and they did it with hearsay?

It's embarrassing really.

I'm not sure you have fully grasped the standard required for a successful conviction.

The prosecution have to do all the running, the defence don't have to do anything. They have to prove how the crime happened and that it could not have been any other reasonably possible way. Anyone can come up with an alternative theory on how it happened, even the judge and as long as its reasonably possible then OP's not guilty.

 

[Trotterly]

This is where the standard apparently required by some posters for a murder trial becomes impossible.

The Crime Scene photos are the evidence of how the scene looked.

But now you want an extra set of evidence of how it looked before they took the photos?

How are the police ever supposed to prove that they didn't quickly move everything around and frame OP by opening the curtains and throwing the duvet on the floor?

That's an easy one - by following the correct procedures, and not stealing from the crime scene. That kind of thing.

 

[LemonMousse]

I'm not sure you have fully grasped the standard required for a successful conviction.

The prosecution have to do all the running, the defence don't have to do anything. They have to prove how the crime happened and that it could not have been any other reasonably possible way. Anyone can come up with an alternative theory on how it happened, even the judge and as long as its reasonably possible then OP's not guilty.

You're wrong.

Yes, the burden of proof rests with the prosecution. But when there's a self-defence claim, the onus to prove that shifts to the defence.

 

[GR_Turner]

You just did the exact thing i warned against.

Defeat each piece of circumstantial evidence with speculation. Then claim they prove nothing.

That is not how circumstantial evidence is evaluated - which is why I keep saying the discussion is valueless.



Taken together, all the circumstantial evidence strongly supports the inference that OP is lying.

This inference does not need to be "beyond reasonable doubt" - it is merely a logical inference the Court may draw. In making such an inference, normally a Court would dismiss the accused evidence as unreliable.

Given the evidential burden is on the defence to show a mistake (mainly via OPs direct testimony) , where the accused admits shooting the victim - we therefore have no reliable evidence of a mistake.

In which case the only logical inference a Court can reach is that OP shot Reeva intentionally.

Again this is simply a logical inference that a Court is entitled to draw given the lack of plausible explanation.

Each circumstantial point and evidential inference does not need to be established BRD

That is merely the overall burden on prosecution

So you really are saying that we should not evaluate each piece of evidence and test whether it can be right or not before we put it together?? This is just madness. I don't dismiss evidence as impossible just because I'm not sure what it means - I note that and consider it with other evidence. Neither do I accept evidence as being true when there is reason to think that it is tainted.

As Trotterly said, all the police needed to do was not screw up the crime scene - this is incredibly basic stuff. What normally happens at some time after someone is arrested at the scene of a crime? A trial. Why do the police have procedures to make sure that they can demonstrate to the court that the scene they present is as they first found it or can demonstrate in which way things were changed? Because the court won't accept evidence that is tainted. It is clear that the police didn't follow any such procedures, at least one thing was stolen, a policeman either lied about being the first on the scene or the ex-policeman on the stand wasn't being straight. They hid Botha in effect. It's a mess but you keep saying otherwise. You don't address Van Rensberg's evidence. It seems as though you just want to believe the photos are correct, to be honest.

 

[GR_Turner]

You're wrong.

Yes, the burden of proof rests with the prosecution. But when there's a self-defence claim, the onus to prove that shifts to the defence.

That's not what I've heard. The onus always rests with the prosecution I believe.

 

[GR_Turner]

Yes - exactly. In the end is it not a good use of our time to discuss fantasy or speculation.

The shortcomings of the judgement have also been well mapped out.

What is perhaps far more interesting are the future opportunities to use data and statistics far more powerfully than we do currently.

Especially when a Judge's so called common sense view of half a dozen "inconclusive" circumstantial evidence points can be wildly different to what probability analysis suggests.

The issue is that humans are often poor judges of probability, and frequently deploy semantic arguments in illogical ways based on narrative.

For example Johnson's call time doesn't actually prove anything about whether Reeva screamed. You can quite equally deploy the screaming evidence in reverse to find that Johnson must be wrong about when he heard 5-6 shots. Or say that the N's evidence clearly proves Johnson is wrong.

What a judge is really doing is simply preferring Johnson to Stipp. Yet even if (big if) the call times are using the same clock - there is no way we can know whether which witnesses gets the exact order of events right in comparison to the clock.

So if the clock is right, Stipp or Johnson must have the sequence wrong.

Or if they both have the sequences right - then Johnson's clock must be wrong.

Then for the judge to use this to decide whether there are two voices heard or one?

What I like about mr fossils timeline is one can evaluate different possibilities.

What I find interesting is that Stipp & the N's corroborate each other strongly. Both of them together establish a same clear & continuous timeline, and they are the nearest witnesses.

Stipp & the N's also fit nicely with the physical evidence discovered.

Yet to believe in Johnson, not only do you have to essentially change all the Stipp's timing and what they directly observed, you also have to invent sounds not heard by either Stipp or Ns

So how confident are we about Johnsons 3.17?

One hearsay document?

Then a critical point I am sure you haven't missed.

It is actually the defence that needed to prove the 3.17 time - and they did it with hearsay?

It's embarrassing really.

[modsnip]

All evidence is surely judged on its own merit and the judge did indeed prefer Johnson to Stipp. Stipp's evidence is inconsistent with the phones evidence. In fact it's Johnson/Burger and Mr and Mrs N together who are consistent in that they both place the 3 male helps at the same time and Dr Stipp puts them elsewhere. They also both tell a consistent story that is unlikely to be wrong in relation to their timing of the shots.

If the evidence supports either the state or defense depending on how you look at this, then the state have not proved that their version is the only possible version. The defense didn't need to prove their version.

 

[GR_Turner]

No...they were in response to a question about what exactly had happened that night. Lawyers are not allowed to ask hypothetical questions - that would be leading.

Slipping up and referring to a dead person in the present tense is clearly a mistake...using "if" continually to discuss actual events is extremely telling whether you are willing to accept that or not.

Interesting that you cannot summon up an excuse for the issue with the fan lead though. Duly noted.

They can ask leading questions in cross though.

He didn't refer to her in the present tense - he used the present perfect which you don't use once someone is dead. Contrast 'I have met Madonna', with 'I met Mrs Thatcher' and consider the difference between the latter and 'I have met Mrs Thatcher' if said in 2015. This may be a difference in SA English but I haven't noticed it anywhere else. He did this repeatedly in one section, but I'd have to look again to see whether he did this elsewhere.

I'd have to look up exactly what OP said to comment on your 'if' testimony. Do you know when it was?

It's not reasonable to expect an explanation for where things were if the police didn't secure the scene properly.