Oscar Pistorius - Discussion Thread #62 ~ the appeal~

[cottonweaver]

So I am scanning pages 42- 44 for SA context – legal precedent.

“The conclusion, that because an accused is untruthful he is
therefore probably guilty, must be guided against, as a false statement
does not always justify the most extreme conclusion. In the present
case the deceased was killed under very peculiar circumstances.”

So Lies=guilt . Not so fast says Masipa because case is peculiar. Now she tells us why its peculiar …

Proceeds to list Op actions – things he could have done –
BUT, big BUT her account of those things is simply based on his testimony which she has already said is untruthful.

Eg pg 42 “Why he did not ascertain whether the deceased had heard him since he did not get a response from the deceased before making his way to the bathroom.”
Eg “Why the deceased was in the toilet and only a few metres away from the accused, did not communicate with the accused, or phone the police as requested by the accused. This the deceased could have done,”

And the coup de grace conclusion from Masipa
“These questions shall unfortunately remain a matter of conjecture.”

No M’lady it was your job to NOT leave it as a matter of conjecture, you were meant to resolve teh "inconsistencies"

I hope there’s something better as I go further down the pages . So far, it’s as funny as last time I read it.

https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf

 

[cottonweaver]

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.

I agree - huge part of the issue. I didn't even realise they didn't share the same discovery procedures until it started.

Anyway off to read page 43 of my homework ( joke)

 

[Trotterly]

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:

"in a self-defence case, the burden does switch"..... Nope

"when somebody testifies on their own behalf, then reasonable doubt goes out the window".... Nope

"It's a self-defence claim. You have to testify"..... Nope

"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"...... Nope

Oh dear !

 

[cottonweaver]

“There is also the question of onus. No onus rests 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.”
* A novel approach in so far as the SA legals have stated.

Here we have it – back to the same important point
Yes his explanations are improbable
Yes, her doubts, ( or my doubts based on the states evidence) means she could not convict him of DD.
I accepted that a long time ago. But many would claim had she interrogated the evidence properly she might actually have found there wasn’t any “reasonably possibly truth” to his account. She complains the evidence is “purely circumstantial” – ha! ( She wanted a CCTV tape – not the ballistics, pathology, crime scene, ear witnesses which actually should be disparate/potentially conflicting – it’s her job to piece them, wheat from chaff. )

 

[cottonweaver]

posts aren't appearing - trying again with Part 3

“The simple explanation from the accused is that shooting the deceased dead was a genuine mistake, as he thought he was shooting at an intruder behind the toilet door. The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general.
“Viewed in its totality the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding”

Pre-med – as in I identified the victim as RS and I went to get my gun.
And this is where d. eventualis comes in. Her doubts in that respect are entirely unreasonable.

 

[cottonweaver]

part 4 - I'm afraid I'm still Not finding GR's Rosetta stone

End of Page 44
"Counsel for the state submitted that even if the court were to find
that the accused shot the deceased, thinking that he was firing the shots at an intruder, this would not assist him as he had intended to kill a human being. This was so because all the elements of the crime ofmurder had been met, it was argued.
On the other hand counsel for the defence submitted that the state was attempting to reintroduce the concept of transferred malice, which was not part of our law. "

( Error in objecto , she means )

https://juror13lw.files.wordpress.com/2014/09/pistorius-trial-judgement.pdf

 

[cottonweaver]

FINALLY part 5

page 44-45 “error in obecto” explained, but notes clause is irrelevant in SA law, as identity of victim irrelevant in SA law – fine, knew that , as weird as it may seem to GR’s common sense wo/man.

She goes on to define d.eventualis and ask did he foresee killing RS by his actions.?
As James Grant who has been quoted on here til the cows come home, that’s the wrong question. OP’s Defence was he did not intend to kill ANYONE unlawfully. That’s the Q she needed to ask.

And she contradicted herself by next implying error in objecto did matter because he thought RS was elsewhere. Kerching.
( Nothing we do not know in here. )

waste of my time tbh.

But before I go let me allow Grant to paraphrase what many posters have said on thread 61 & 62
“There is something deeply disturbing about many of the attempts that have been made to justify Judge Masipa’s judgment in the Pistorius case.”

http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/

So GR, next time , you pick out the salient points that you think prove your point and state them. I was thinking there was something I had missed that would be a game changer. ( Ultimately, it's not a game, not one worth playing - it's like that crappy game you got as a kid from your great aunt, you read all the instructions, put the time in, for no return and the game was pants.)

 

[soozieqtips]

Does anyone know how soon OP would have to back to prison if Masipa's judgement is overturned? I know he has at least 3 months of tough house arrest living with Uncle A and going shopping, training, with a bit of time left over for praying... but does the law state he'd have to go straight back to jail if found guilty of murder, or does he live outside that law as well? And who's responsible for checking Uncle's house is free of guns, or that OP doesn't drink alcohol (if that's one of the conditions of his house arrest). I just wonder who's going to enforce the conditions.

 

[cottonweaver]

To the normal posters - sorry about all TEDIOUS those - I know none of you want to hear Masipa's pearls again but GR wanted them

 

[Deleted member 102539]

BIB1: We don't need any imagination at all in fact and there is evidence from Mrs VdM and from the Stipps' housekeeper via Mrs Stipp's testimony that OP crying sounded like female crying and also that female screaming and female crying were heard at the same time by different witnesses in the same house. If you are going to say that Roux promised a tape and didn't deliver, then I'd just say that the above evidence is better and a tape couldn't have replicated the situation in any reasonable way so would have been useless. And yes, Roux shouldn't have promised the tape but it doesn't change the above.

BIB2: yes a woman a long way away, angry sounding like in an argument. No man arguing however. And the defense HoA point out that she looked out in the opposite direction from OP's house to locate those sounds while on the screams test night that the defense did she looked out that way and towards OP's house.

I just think of the following situation: Maybe Reeva and OP were at this time at different locations in the house and argued via phone??? Then it's possible the witness heard only the female voice if nearby and didn't hear the male voice because OP was in another room?? On the phone you (Reeva) can very well loudly shout and argue without a pause, if you (Reeva) have main things to say. Even if OP had answered a few sentences, the witness wouldn't have heard something. Maybe the allegations and accusations from Reeva to OP via phone had triggered the whole violent and deadly end. May also be, this call had been deleted by a nice and savvy brother.

 

[cottonweaver]

Does anyone know how soon OP would have to back to prison if Masipa's judgement is overturned? I know he has at least 3 months of tough house arrest living with Uncle A and going shopping, training, with a bit of time left over for praying... but does the law state he'd have to go straight back to jail if found guilty of murder, or does he live outside that law as well? And who's responsible for checking Uncle's house is free of guns, or that OP doesn't drink alcohol (if that's one of the conditions of his house arrest). I just wonder who's going to enforce the conditions.

I'm not sure, but yes please let's look forward instead of backwards.
They are interesting questions. I know JJ would have the answers but.......

OP family own 55 guns between them, can't remember how many Arnie has. Regardless of them being in a locked gunstore how does one safeguard the key?

He can't leave the country obviously - no Mozambique elephant killing en famille. ( Remember the photo of the uncle straddling the dead elephant? As my old SA friends used to say "Life is cheap here.")

If they hear the Appeal in November how long will it take?A month ( I am not optimistic of outcome since I saw SCA credentials, sorry, but hope still exists for sure. )

BIB I figure he will try and wangle some of his community service in a religious capacity even though he didn't actually attend services previously.

 

[cottonweaver]

@Soozie - house arrest stuff

1. Correctional officials working at Community Corrections offices Countrywide are responsible for the performance of various functions with regard to offenders who are serving their sentences in the community. These functions include, inter alias, the following:

· Submission of pre-sentence reports to courts

Staff members with qualifications in behavioural sciences or experts in behavioural/social sciences are placed at courts for the drafting of pre-sentence reports which contain the basic/background information about an accused person, which may assist the court in determining a suitable sentence for the person concerned.

The Community Corrections Offices manage supervision over the above-mentioned persons in accordance with the conditions that have been set by the courts. In these cases where the court has left the setting of conditions to the discretion of the Department of Correctional Services, the Head of Community Corrections may set the necessary conditions in order to exercise control over the offender, to protect the community and to address the individual treatment needs of each case.

So the compiling of reports is going to take some time.

he'll be going to the doc a lot and that'll include psyc therapy, stump treatments and prosthetic adjustments unless they are asked to visit him there?. No, I doubt that too.

 

[Deleted member 102539]

Does anyone know how soon OP would have to back to prison if Masipa's judgement is overturned? I know he has at least 3 months of tough house arrest living with Uncle A and going shopping, training, with a bit of time left over for praying... but does the law state he'd have to go straight back to jail if found guilty of murder, or does he live outside that law as well? And who's responsible for checking Uncle's house is free of guns, or that OP doesn't drink alcohol (if that's one of the conditions of his house arrest). I just wonder who's going to enforce the conditions.

bbm
IF OP (the murderer) is just looking after disadvantaged disabled children and is teaching them wrongdoing, then you can not immediately tear him out there! The state/prison has to wait, I think.

Sorry, I'm not able to answer your question as you would like to read, don't know that things.

 

[cottonweaver]

I just think of the following situation: Maybe Reeva and OP were at this time at different locations in the house and argued via phone??? Then it's possible the witness heard only the female voice if nearby and didn't hear the male voice because OP was in another room?? On the phone you (Reeva) can very well loudly shout and argue without a pause, if you (Reeva) have main things to say. Even if OP had answered a few sentences, the witness wouldn't have heard something. Maybe the allegations and accusations from Reeva to OP via phone had triggered the whole violent and deadly end. May also be, this call had been deleted by a nice and savvy brother.

You're certainly thinking outside the box there FG.( creatively )

I personally have never had a row by phone in the same house but I bet someone has! If R had locked herself in a room or just retreated to another room, I could certainly see why it could be possible. Even once at work I have seen a colleague argue with another, yelling from a different room to a person in another office!

But, i think the more likely reasons than phones are still location and arguing style which is so variable - yes they certainly could be arguing from different rooms, even on different floors of the house. People definitely don't always argue face - to -face, especially where it is a long protracted argument, that stops and starts up again. Many people leave the room and there are pauses, sulks, crescendoes etc..

Arguing style - there are many possible reasons - all plausible why RS was louder and OP quieter, almost too many to list.
- location of EVDM's bedroom compared to other neighbours etc. is only one factor.
- atmospheric conditions are very significant. (Where I live, I hear my neighbours cattle only on certain days purely depending on the weather despite distance and altitude differences from mine. So suddenly they can sound as if they are in the next field but they are almost 2 miles away as the crow flies. )

TBH I have never had a new relationship where there have been arguments so early on in the relationship as RS & OP were. That would be a big "red flag " ( warning sign) to end it , for me personally.

 

[Marfa Lights]

TBH I have never had a new relationship where there have been arguments so early on in the relationship as RS & OP were. That would be a big "red flag " ( warning sign) to end it , for me personally.

Ditto-- seemed like a lot of conflict for such a new relationship, especially considering how much time they spent apart in the 3-4 months they knew each other.

 

[aftermath]

To the normal posters - sorry about all TEDIOUS those - I know none of you want to hear Masipa's pearls again but GR wanted them

Gr turner quoted the bit he/she was referring to before you starting post-quoting chunks from the judgement.

 

[cottonweaver]

apols - see edit below

 

[aftermath]

No. gr_turner had not posted his point/bit until AFTER he'd request that I'd gone to download and start to read it myself and referred to page numbers.
(I'm not going to build you a "timeline" of posts, as his inference at the outset was clear to any "reasonable" poster , so let's give it a rest shall we and move on.)

Mmmm - suitable "community service"....?

Yes. Gr turner referred to the judgement, mentioned specific pages, and eventually posted the bit he/she particularly meant and then you started posting chunks from the judgement. There was no expectation/request for you to do that.

Suitable community service? Depends on the options, I suppose...

 

[cottonweaver]

My last post is unresponsive to editing so I'll have to go again and then delete the last one.
so i meant to add

Gr turner quoted the bit he/she was referring to before you starting post-quoting chunks from the judgement.

No. gr_turner had not posted his point/bit until 25 minutes AFTER he suggested that I read it myself and referred to page numbers. By the time 'd d gone to downloaded , read, copied, starting pasting I didn't see he had actually then posted the points I had been asking for.

(Is this a Rouxism? I'm not going to build you a detailed "timeline" of posts, as his inference at the outset was clear , so let us give it a rest shall we and move on.)

Mmmm - suitable "community service" was suggested on the last page....? The rigour of monitoring in the home beyond a tag and the odd home visit spot check in SA?

I'm also wondering for example, how much it costs to process this case to the Constitutional Court if it ends up dragging on for years.

or any novel topic that "we" haven't been posting on for last 40 threads? Anything will do.

 

[cottonweaver]

Yes. Gr turner referred to the judgement, mentioned specific pages, and eventually posted the bit he/she particularly meant and then you started posting chunks from the judgement. There was no expectation/request for you to do that.

Suitable community service? Depends on the options, I suppose...

BIB1 - how can you know what h/she is thinking?
BIB2 - mmmm, I think you're right