Oscar Pistorius - Discussion Thread #62 ~ the appeal~

[GR_Turner]

looking back - am re-posting this for the retrospective view:

the very famous DA Robert Shapiro on reasonable doubt & defendant credibility, just before the start of the OP trial.
( Remember he had defended OJ and lots of celeb athletes),US top list lawyer etc etc ...and getting it wrong- for "the SA context" as people like to say

"Although the burden is never [usually] on the defence to prove innocence, in a self-defence case, the burden does switch, and in this case, the burden does switch. We've talked before about reasonable doubt, well, in a self-defence case, when somebody testifies on their own behalf, then reasonable doubt goes out the window, because then it becomes a credibility issue ... who do you believe, rather than, has the prosecution proven this beyond a reasonable doubt."

"It's a self-defence claim. You have to testify. ... No judge is going to rule in your favour unless they hear you reiterate your self-defence claim. The judge will think, now I have certain facts, I have an affidavit, and i'm going to judge it so ... it will be imperative he take the witness stand"

Q: Do you think Oscar would be better served if there were a jury in this case?

A: If I had this choice between it being heard by a judge or jury, that would be one of the easiest decisions I would ever make. I would take a jury every day of the week. With a judge, there's no hung jury. You're either going to get found guilty, or acquitted, or a lesser included charge. And it's a very very tough thing to do. The other thing is this. Judges are professionals. Who has a greater motive to lie than someone accused of murder. A judge is going to look Oscar Pistorius in the eye, is going to hear all the forensic evidence, and if she comes up with one thing that they conclude was a lie, this case is going to have a very bad result for Oscar Pistorius.

:shame:

You prefer his opinion to Masipa's explanation for why she accepted his testimony despite its poor quality? She was quoting from a judgement by the SCA (I think it was an SCA judgement) about the circumstances in which a judge can accept an accused' evidence.

 

[cottonweaver]

I think you're entirely wrong because I looked at the objective evidence and concluded that it leads towards OP's version being possible and then re-examined OP's evidence to see whether it was as bad as it looked on first sight. I concluded that there were possible explanations for it even though that might look like reaching to some. Let's not forget where the burden of proof lies.

I suspect most posters have approached it from the other direction and thought that the screams evidence pretty much proved it and then that OP's evidence made it 100% but then stopped hearing the defense evidence. I don't understand dismissals of key evidence like the 3.17 phone calls (two not one) and the evidence from neighbours who didn't hear female screaming and one who heard OP as female. Comments like 'its obvious' or 'it's common sense' do nothing to explain away this evidence and just serve to show that there is no logical response I'm afraid.

BIB 1- see my previous post. Shapiro is still practising - I'd better phone him and tell him he's wrong on that one too!
BIB2 - I started out , from the other direction, like a great deal probably did, continually comparing during trial, that's where the interest in trial's is - guess that's true for most posters too.

common sense is a ref to reasonability - basis of a legal concept .
And Nothing is ever obvious as has been proved in this case - we can all agree on that. You can't connect those points to lack of logic.

 

[GR_Turner]

BIB 1- see my previous post. Shapiro is still practising - I'd better phone him and tell him he's wrong on that one too!
BIB2 - I started out , from the other direction, like a great deal probably did, continually comparing during trial, that's where the interest in trial's is - guess that's true for most posters too.

common sense is a ref to reasonability - basis of a legal concept .
And Nothing is ever obvious as has been proved in this case - we can all agree on that. You can't connect those points to lack of logic.

Well, see my post above about Shapiro vs Masipa and the SCA. I'd rather look at what the SCA or other SA court judgements have said over a US lawyer's opinion (!) And he is wrong about the burden of proof in SA. It doesn't shift to the defense. They only have to produce a reasonably possibly true version of events, not prove it beyond reasonable doubt. Don't believe me - read what the SA courts have said.

I agree that common sense must be used but where there is evidence to contradict something people say is 'common sense' then there must be more of an argument than that. Can you explain why how the other neighbours' evidence doesn't raise doubts that the screams were Reeva's? I can explain logically why it raises the possibility that they all heard OP. Can you explain logically why it doesn't?

 

[cottonweaver]

You prefer his opinion to Masipa's explanation for why she accepted his testimony despite its poor quality? She was quoting from a judgement by the SCA (I think it was an SCA judgement) about the circumstances in which a judge can accept an accused' evidence.

I'm not expecting word for word accuracy, but paraphrase the circumstances for me then...

 

[GR_Turner]

I'm not expecting word for word accuracy, but paraphrase the circumstances for me then...

She says it very clearly in her judgement you know.

 

[Colin de France]

.......did Pistorius ever explain what was the cause of the bruising on Reeva before she was shot......also tie this is in with the couple who heard a dispute before.....i'm also wondering if Reeva had tried to phone the police and if the telephone disapearing was to wipe of any trace of having tried or even having tried anyone for help........

 

[cottonweaver]

Well, see my post above about Shapiro vs Masipa and the SCA. I'd rather look at what the SCA or other SA court judgements have said over a US lawyer's opinion (!)

For me the exclamation mark is very apt. but in another way entirely
A court case held at that level, assisted by assessors, one of whom was fresh out of law school.

No actually, as this case outcome has roundly been described as a "stain" for SA, as I had my eyes opened regarding Masipa's misinterpretation of the SA law , and having seen the qual level of some of the SCA judges I would not agree that SA is the pinnacle in terms of judicial standards.
Obviously SA law applies in SA- Der!! That is not my point. Shapiro's points do apply internationally- he's not citing legal cases that have no bearing in SA. ( !)

 

[Colin de France]

She says it very clearly in her judgement you know.

....did you find her judgement clear....i certainly didn't ....

 

[cottonweaver]

She says it very clearly in her judgement you know.

Ha. You seriously doubt that I read the judgement, read it the day it was released, like most posters.

So, if we're going do that path - I take that as a deflection ?

 

[GR_Turner]

I'm not expecting word for word accuracy, but paraphrase the circumstances for me then...

She covers it in pages 42-44 of the pdf and explains why she was cautious about the neighbours evidence earlier.

 

[GR_Turner]

Ha. You seriously doubt that I read the judgement, read it the day it was released, like most posters.

So, if we're going do that path - I take that as a deflection ?

No it's just that the judgement is long and she explains her attitude to evidence in several places - it's better you read it in context anyway.

If you know the judgment well then you wouldn't need to ask me about this.

 

[cottonweaver]

so You raise a point in a post but then won't specify it and expect the recipient to go and open the judgement and re -read it to make you points for you.

No thankyou - saw enough of that going on in thread 61!

 

[cottonweaver]

No it's just that the judgement is long and she explains her attitude to evidence in several places - it's better you read it in context anyway.

If you know the judgment well then you wouldn't need to ask me about this.

Now I know here you are coming from, you heard a lot of that in thread 61- I understand your issue.

 

[GR_Turner]

Well, see my post above about Shapiro vs Masipa and the SCA. I'd rather look at what the SCA or other SA court judgements have said over a US lawyer's opinion (!)

For me the exclamation mark is very apt. but in another way entirely
A court case held at that level, assisted by assessors, one of whom was fresh out of law school.

No actually, as this case outcome has roundly been described as a "stain" for SA, as I had my eyes opened regarding Masipa's misinterpretation of the SA law , and having seen the qual level of some of the SCA judges I would not agree that SA is the pinnacle in terms of judicial standards.
Obviously SA law applies in SA- Der!! That is not my point. Shapiro's points do apply internationally- he's not citing legal cases that have no bearing in SA. ( !)

Well his points do not apply in SA law.

 

[cottonweaver]

She covers it in pages 42-44 of the pdf and explains why she was cautious about the neighbours evidence earlier.

Ok. I'm off to re-read page 42-44 ( I don't have it saved on my phone/hard drive)


Actually I did have it on my desktop but I dumped it in 2015

 

[Interested Bystander]

I agree, Birds of a feather flock together. ( Remember the female owner of Tasha's saying saying about Carl & Aimee too , but that's by the by..)

But remember in her breathless testimony she goofed up when she recalled first hearing the commotion before her father got a call, with the "where's the lady.." quip but was never pulled up on it.

And this is how the neighbourhood diagram far away Standers live
https://juror13lw.files.wordpress.com/2014/03/op-neighborhood.jpg

As a witness I thought she was appalling. As you say there were several points that were suspect but Nel failed to take her up on any of them. I think we need a rerun LOL.

Part of the problem in SA (and elsewhere) is that the PT do not get to see the DT court papers. Had Nel had access to their intentions he surely would have had an acoustic specialist on tap and would not have missed so many small but important points.

 

[GR_Turner]

Now I know here you are coming from, you heard a lot of that in thread 61- I understand your issue.

I can't understand your attitude. I have told you which pages to read but you aren't happy unless I cut and paste things that you could just read for yourself in context. Here's the point I was making.

However, as stated above, untruthful evidence does not always
justify the conclusion that the accused is guilty. The weight to be
10 attached thereto must be related to the circumstances of each case. (S
v Mtswene 1985 (1) SA 590 (A)).
There is also the question of onus. No onus rest on the accused
to convince this court of the truth of any explanation that he gives. If he
gives an explanation, even if that explanation be improbable, the court
is not entitled to convict, unless it is satisfied not only that the
explanation is improbable but that beyond any reasonable doubt it is
false.
If there is any possibility therefore of his explanation being true
then he is entitled to his acquittal. (See Diffort 1937 (AD) 370). The
20 onus is on the state throughout to prove beyond reasonable doubt that
the accused is guilty of the offence with which he has been charged.
Should the accused’s version or evidence be found to be reasonably
possibly true, he would be entitled to his acquittal.

 

[GR_Turner]

As a witness I thought she was appalling. As you say there were several points that were suspect but Nel failed to take her up on any of them. I think we need a rerun LOL.

Part of the problem in SA (and elsewhere) is that the PT do not get to see the DT court papers. Had Nel had access to their intentions he surely would have had an acoustic specialist on tap and would not have missed so many small but important points.

They must have known this would be the defense approach from the bail affidavit. They didn't just overlook small points - they overlooked several key phone records that might have proven their case - or proven it was wrong.

 

[GR_Turner]

Ok. I'm off to re-read page 42-44 ( I don't have it saved on my phone/hard drive)


Actually I did have it on my desktop but I dumped it in 2015

You can find it here:
http://citizen.co.za/wp-content/uploads/sites/18/2014/09/140915OPJudgment.pdf?c121c0

or juror13 has it.

 

[Colin de France]

.......so as the situation stands there is nothing to prove he is guilty and nothing to prove he is innocent..........is that it ? ...