Oscar Pistorius - Discussion Thread #62 ~ the appeal~

[Trotterly]

5 May 2014 – Session 2 @ 0:00:43

Evidence in Chief of Carice Viljoen (nee Stander)

BR: ... What then was the next event?
CV: ... I was lying on my bed thinking “Oh my gosh, how am I going to sleep now?” because the voice I heard – I know for a – it sounded to be- it’s a man’s voice. I could hear a man shouting means that there must be terrible trouble because then where’s the lady?

I think this was Carice using later knowledge about the case to make a comment which she inserts into her contemporary testimony. She attributes the voice she heard to a man and did not know about OP's phone call until later so could not have known that a woman or anyone who sounded like a woman was involved at that point.

It's a good example of how witness evidence is contaminated by subsequent knowledge of the wider event.

 

[aftermath]

I think this was Carice using later knowledge about the case to make a comment which she inserts into her contemporary testimony. She attributes the voice she heard to a man and did not know about OP's phone call until later so could not have known that a woman or anyone who sounded like a woman was involved at that point.

It's a good example of how witness evidence is contaminated by subsequent knowledge of the wider event.

It could also have been a reasonable guess based on the context of south African home invasions:eg why would a man be shouting like that unless something dreadful had happened to his partner/wife. It suggests a certain tone of voice to me, that something is terribly wrong- so more likely to be a sound of anguish/desperation than anger.

 

[lithgow1]

It could also have been a reasonable guess based on the context of south African home invasions:eg why would a man be shouting like that unless something dreadful had happened to his partner/wife. It suggests a certain tone of voice to me, that something is terribly wrong- so more likely to be a sound of anguish/desperation than anger.

So when people are giving evidence about the events of a night when someone was shot and killed, it is OK to insert a `reasonable guess` into the mix? They should amend the oath to say that in addition `to the truth, the whole truth and nothing but the truth` all my guesses shall be reasonable.

 

[aftermath]

So when people are giving evidence about the events of a night when someone was shot and killed, it is OK to insert a `reasonable guess` into the mix? They should amend the oath to say that in addition `to the truth, the whole truth and nothing but the truth` all my guesses shall be reasonable.

I don't think people can always help it- it's the guess/assumption they made at the time so is part of their testimony of what they thought they heard/how they felt /how they reacted etc.
Was Carice questioned any further?I don't think she was given the chance to elaborate or explain, but I could be wrong. Just like some of the other earwitnesses assuming there was a home invasion involving a couple based on the sounds they heard, it looks like Carice could have jumped to the same conclusion

 

[Marfa Lights]

But some cases might well come down to such a claim and if there was nothing to prove otherwise beyond reasonable doubt, then I think it would have to be accepted however unsatisfactory it might feel to any of us observing. People can't be convicted of murder if it is reasonably possible that they didn't murder anyone. That doesn't mean that the putative self defence claim would lead to an acquittal though - in pistorius's case, although the self defence explanation was accepted, he was found to have acted too hastily and excessively, hence the culp hom.

The ten months in prison plus remaining time of 5year sentence under house arrest is in keeping with the sentence, which was in keeping with the verdict. I don't know whether prison is like boarding school, but I would have thought that someone who psychologists reported to be deeply traumatised by what he had done has already realised the consequences of his actions and is struggling to cope with them.

Well, then society has to be prepared for a lot of unsatisfactory cases where murderers get off with light sentences for CH or walk free just by claiming they held the mistaken belief their life had been threatened when they shot and killed someone. I think there is a problem with the opposing burden of proofs, or at least the wording and interpretation of the standard of "reasonably possibly true." Any halfway decent defense attorney can present a defendant's case so that it has to be considered "reasonably possibly true."

After listening to so many months of testimony and discussion, this phrase "reasonably, possibly true" has become a mantra for anyone supporting the defense, and even though this may be established law in S.A. something does not feel quite right with such a reductive standard. So bear with me here, as I try to think through why this phrase continues to bother me so much (in other words please don't tear me to shreds for thinking out loud a bit-- even if it is another lengthy post!)

I understand the burden of proof is correctly placed on the Prosecution, but it's almost as if the PPD claim is deemed plausible, then it carries enough weight to negate any evidence to the contrary. That is like saying you must fully accept the defendant's story at face value if it simply COULD be true.

While that makes it acceptable as an admissible defense, I think it is given a disproportionate amount of weight in the final determination of guilt or innocence in the S.A. system. The weakness seems to be with the lack of clarity about the term "reasonable" or "reasonably"-- it seems to be such an evolving or vague concept that there is a tendency to just ignore it, leaving the defense burden of proof to be simply "possibly true."

Don't get me wrong, I don't think Nel made his closing case well at all. I think he blew it as a matter of fact. But it as though Masipa was able to just blow away all those feathers on his side of the scale.

And I do appreciate that she did find Oscar guilty of negligence that bordered on DE, but I also think she knowingly sentenced him to 5 years with the deliberate intent that he would be allowed out after a mere ten months incarceration. Unless OP really blew it, he effectively received a ten month sentence for his actions that took the life of Reeva Steenkamp.

Of course, I don't want to see any innocent people wrongly convicted for a tragic mistake, and it is understandable that the burden of proof is indeed very high for the prosecution. But I find the apparent ease with which a defendant can get off on claims of PPD to be very disturbing.

Aftermath, I admire your generosity of spirit, but I think OP was more traumatized by what he experienced that night and in the costly legal nightmare that ensued. I am not so sure he is yet capable of accepting full responsibility for taking the rest of Reeva's life away from her.

Every time I see someone zipping around town in a Mini-Cooper, I can't help but think that should be Reeva, driving carefree with the wind blowing in her hair, smiling and enjoying life.

Ten months is simply not appropriate... and mansion arrest is a joke, he will do whatever the hell he wants, I am sure.

 

[lithgow1]

I don't think people can always help it- it's the guess/assumption they made at the time so is part of their testimony of what they thought they heard/how they felt /how they reacted etc.
Was Carice questioned any further?I don't think she was given the chance to elaborate or explain, but I could be wrong. Just like some of the other earwitnesses assuming there was a home invasion involving a couple based on the sounds they heard, it looks like Carice could have jumped to the same conclusion

I agree that people may not be able to help being influenced by subsequent knowledge, however her evidence reads very much as what she thought at the time, not a later assumption.

You are right that she wasn`t questioned further which IMO was an oversight on the part of the State. She should have been asked what she meant by that part of her evidence and if it was just a later addition, given the chance to explain that. As is, it is intriguing that she mentioned a woman.

 

[cottonweaver]

5 May 2014 – Session 2 @ 0:00:43

Evidence in Chief of Carice Viljoen (nee Stander)

BR: ... What then was the next event?
CV: ... I was lying on my bed thinking “Oh my gosh, how am I going to sleep now?” because the voice I heard – I know for a – it sounded to be- it’s a man’s voice. I could hear a man shouting means that there must be terrible trouble because then where’s the lady?

If you're tailoring evidence isn't it called "dropping a stitch?"

Of course Daddy Stander did the same - despite copious rehearsals beforehand at Ramsay Weber. ( Well, you'd hope so, when you're shelling out big bucks for Roux's services.) Mr. S. and his " I saw the truth that night" nonsense. ( Also a line from Arnie’s little black notebook if you recall.)

Yes, it struck some of us at the time as significantly "odd". Especially when she was so incredibly detailed on the stand to the extent of her recounting her actual thought processes at the time of the killing.
What also struck the more critical thinkers on the day of her testimony was that strange reaction - "terrible trouble" aka home invasion, how on earth am I going to get back to sleep. (So let’s guess that if it had not been an Oscar problem/phone call, the Standers would have gone back to sleep)

So yes, the two Standers witnesses make some questionable comments, under oath on the stand. Oh wait, are they perhaps mates of OP’s – should the testimony be now treated with caution? Well Stander is estate manager at Silverwoods, so it’s appropriate he be there at 3am. Oh, that’s actually untrue. OP didn’t call the estate manager – he was at home in bed. Does even a newly graduated LLB know the basics of weighing evidence from interested parties. I think so.

Yes it’s a shame that Nel did not pick up on the infamous “Where’s the lady” but TBH many of the commentators /posters watching the live feeds didn’t hear it either. And of course a great pity that Carice was not invited to opine on the evidence tampering discussions with Aimee. ( Handbag) The devil is in the detail but sometimes its also in the bleeding obvious.

Indeed when you hear the Standers testimony, analyse their actions incl the calls made and then throw in the alleged reactions of Mrs.S that night the Standers come over badly.

Well not the whole family, Carice’s dogs came out of it rather well.

 

[cottonweaver]

Re. Carice, Definitely not her finest hour *

ie. Not a great start to a career in the legal domain. I wonder how many times will she have been asked about her day on the stand by colleagues and possible clients ?

( Paralegal wasn't it? Maybe she's in house conveyancing now.....)

*And I say that having just reflected that actually I have served as a witness in two criminal trials so I know one can certainly be apprehensive etc.



Re previous post - "reversioning" by witnesses, with hindsight, was discussed openly in court. It's another basic isn't it.

 

[soozieqtips]

I think this was Carice using later knowledge about the case to make a comment which she inserts into her contemporary testimony. She attributes the voice she heard to a man and did not know about OP's phone call until later so could not have known that a woman or anyone who sounded like a woman was involved at that point.

It's a good example of how witness evidence is contaminated by subsequent knowledge of the wider event.

BIB - hell of an assumption! She was under oath and clearly stated what she was thinking at the time of the commotion. "I was thinking... where is the lady". Dismissing what she said because it implies she thought there was some kind of domestic dispute going on is once again trying to throw anything out that puts OP in a negative light.

BIB 2 - No, it is not a good example at all because you've had to throw out her evidence to make this point.

 

[GR_Turner]

It depends on what you mean by the "same circumstances." Are all cases of putative private defense to be simplified to a defendant's unsubstantiated claim "I felt threatened by XYZ. I happened to have a gun handy and I shot impulsively and killed ABC in the mistaken belief that they were about to harm me."

And if they cry convincingly and show remorse, then the courts must excuse one and all?? We would not want to punish them twice, as Masipa said.

I am afraid Oscar's ten month prison sentence will seem more like a couple of semesters in a third-rate boarding school. Somehow I doubt this has been enough time for him to fully appreciate the consequences of his actions that night.

I think you put it wrongly in terms of the language you use - 'happened to have a gun handy' 'shot impulsively'. But yes that's PPD in a nutshell I think. In SA people can have guns and carry them, so yes they can legitimately have a gun to hand. And yes, if they can show they had reason to think they were in danger then yes they can shoot someone with it. All this would be resolved by banning gun ownership and properly funding the police but I don't see that happening there in the near future.

I don't think the decision of a court is anything to do with showing remorse. As I've said before, Masipa's emphasis on OP's reaction was in the section in which she was ruling out DE of Reeva. And I don't think anyone really understands Masipa's comment about not punishing him twice tbh.

 

[GR_Turner]

Well, then society has to be prepared for a lot of unsatisfactory cases where murderers get off with light sentences for CH or walk free just by claiming they held the mistaken belief their life had been threatened when they shot and killed someone. I think there is a problem with the opposing burden of proofs, or at least the wording and interpretation of the standard of "reasonably possibly true." Any halfway decent defense attorney can present a defendant's case so that it has to be considered "reasonably possibly true."

After listening to so many months of testimony and discussion, this phrase "reasonably, possibly true" has become a mantra for anyone supporting the defense, and even though this may be established law in S.A. something does not feel quite right with such a reductive standard. So bear with me here, as I try to think through why this phrase continues to bother me so much (in other words please don't tear me to shreds for thinking out loud a bit-- even if it is another lengthy post!)

I understand the burden of proof is correctly placed on the Prosecution, but it's almost as if the PPD claim is deemed plausible, then it carries enough weight to negate any evidence to the contrary. That is like saying you must fully accept the defendant's story at face value if it simply COULD be true.

While that makes it acceptable as an admissible defense, I think it is given a disproportionate amount of weight in the final determination of guilt or innocence in the S.A. system. The weakness seems to be with the lack of clarity about the term "reasonable" or "reasonably"-- it seems to be such an evolving or vague concept that there is a tendency to just ignore it, leaving the defense burden of proof to be simply "possibly true."

Don't get me wrong, I don't think Nel made his closing case well at all. I think he blew it as a matter of fact. But it as though Masipa was able to just blow away all those feathers on his side of the scale.

And I do appreciate that she did find Oscar guilty of negligence that bordered on DE, but I also think she knowingly sentenced him to 5 years with the deliberate intent that he would be allowed out after a mere ten months incarceration. Unless OP really blew it, he effectively received a ten month sentence for his actions that took the life of Reeva Steenkamp.

Of course, I don't want to see any innocent people wrongly convicted for a tragic mistake, and it is understandable that the burden of proof is indeed very high for the prosecution. But I find the apparent ease with which a defendant can get off on claims of PPD to be very disturbing.

Aftermath, I admire your generosity of spirit, but I think OP was more traumatized by what he experienced that night and in the costly legal nightmare that ensued. I am not so sure he is yet capable of accepting full responsibility for taking the rest of Reeva's life away from her.

Every time I see someone zipping around town in a Mini-Cooper, I can't help but think that should be Reeva, driving carefree with the wind blowing in her hair, smiling and enjoying life.

Ten months is simply not appropriate... and mansion arrest is a joke, he will do whatever the hell he wants, I am sure.

It does seem as though PPD can be open to abuse, yes. But it's hard to see that most people would approach committing a murder with this defense in mind when there must be many less risky ways of doing it, I'd have thought.

I don't agree that people think OP's defense is just 'possibly true'. I suspect most people who think he's guilty just can't get past the screams evidence and that's the bottom line (which is why posters on here are so unwilling it seems to engage with any contrary evidence). Without it, the state's evidence is extremely shaky and that's the real problem with their case.

 

[lithgow1]

It does seem as though PPD can be open to abuse, yes. But it's hard to see that most people would approach committing a murder with this defense in mind when there must be many less risky ways of doing it, I'd have thought.

I don't agree that people think OP's defense is just 'possibly true'. I suspect most people who think he's guilty just can't get past the screams evidence and that's the bottom line (which is why posters on here are so unwilling it seems to engage with any contrary evidence). Without it, the state's evidence is extremely shaky and that's the real problem with their case.

In OP`s case , who is saying he approached committing a murder with this defence in mind? Much more likely he saw red, killed, and then began to think of the intruder/PPD defence. I don`t think he is terribly smart but it doesn`t take a lot of grey cells to come up with `I thought it was someone else`, especially since he would be likely to be aware of similar incidents in his country.

 

[ATasteOfHoney]

Well, then society has to be prepared for a lot of unsatisfactory cases where murderers get off with light sentences for CH or walk free just by claiming they held the mistaken belief their life had been threatened when they shot and killed someone. I think there is a problem with the opposing burden of proofs, or at least the wording and interpretation of the standard of "reasonably possibly true." Any halfway decent defense attorney can present a defendant's case so that it has to be considered "reasonably possibly true."

After listening to so many months of testimony and discussion, this phrase "reasonably, possibly true" has become a mantra for anyone supporting the defense, and even though this may be established law in S.A. something does not feel quite right with such a reductive standard. So bear with me here, as I try to think through why this phrase continues to bother me so much (in other words please don't tear me to shreds for thinking out loud a bit-- even if it is another lengthy post!)

I understand the burden of proof is correctly placed on the Prosecution, but it's almost as if the PPD claim is deemed plausible, then it carries enough weight to negate any evidence to the contrary. That is like saying you must fully accept the defendant's story at face value if it simply COULD be true.

While that makes it acceptable as an admissible defense, I think it is given a disproportionate amount of weight in the final determination of guilt or innocence in the S.A. system. The weakness seems to be with the lack of clarity about the term "reasonable" or "reasonably"-- it seems to be such an evolving or vague concept that there is a tendency to just ignore it, leaving the defense burden of proof to be simply "possibly true."

Don't get me wrong, I don't think Nel made his closing case well at all. I think he blew it as a matter of fact. But it as though Masipa was able to just blow away all those feathers on his side of the scale.

And I do appreciate that she did find Oscar guilty of negligence that bordered on DE, but I also think she knowingly sentenced him to 5 years with the deliberate intent that he would be allowed out after a mere ten months incarceration. Unless OP really blew it, he effectively received a ten month sentence for his actions that took the life of Reeva Steenkamp.

Of course, I don't want to see any innocent people wrongly convicted for a tragic mistake, and it is understandable that the burden of proof is indeed very high for the prosecution. But I find the apparent ease with which a defendant can get off on claims of PPD to be very disturbing.

Aftermath, I admire your generosity of spirit, but I think OP was more traumatized by what he experienced that night and in the costly legal nightmare that ensued. I am not so sure he is yet capable of accepting full responsibility for taking the rest of Reeva's life away from her.

Every time I see someone zipping around town in a Mini-Cooper, I can't help but think that should be Reeva, driving carefree with the wind blowing in her hair, smiling and enjoying life.

Ten months is simply not appropriate... and mansion arrest is a joke, he will do whatever the hell he wants, I am sure.

In my opinion, it would make the cases easier for that country to define if one little word was change! Change it to "reasonably, probably true" instead of the current "reasonably, possibly true" and voila!---a streamlining for that country's justice system will unfold.

....one little word....

 

[Marfa Lights]

It does seem as though PPD can be open to abuse, yes. But it's hard to see that most people would approach committing a murder with this defense in mind when there must be many less risky ways of doing it, I'd have thought.

I don't agree that people think OP's defense is just 'possibly true'. I suspect most people who think he's guilty just can't get past the screams evidence and that's the bottom line (which is why posters on here are so unwilling it seems to engage with any contrary evidence). Without it, the state's evidence is extremely shaky and that's the real problem with their case.

Yes, it does not lend itself well to calculated pre-meditated types of murder where advance planning is involved, but it can (and often does) work extremely well in crimes of passion with no surviving witnesses.

How do you determine what is unreasonable about a defendant's story that is already accepted as "possibly true"? By definition, if it's possible, doesn't that imply that it is "reasonably" considered possible? If it is unreasonable, then it should be considered impossible and would not be an admissible defense. To me it still comes across as merely needing to be "possibly true." It's a low standard IMO.

Please remind me of how it works-- isn't there a higher burden on the defense when the claim is self-defense or PPD?

I am certainly one of those people who can't get beyond the screams evidence, but I also cannot engage with the defense version without encountering manipulated timelines (I know you disagree with me). Without being able to see the actual call data records that would support their claims, I can't consider their timeline as factual evidence.

 

[GR_Turner]

Yes, it does not lend itself well to calculated pre-meditated types of murder where advance planning is involved, but it can (and often does) work extremely well in crimes of passion with no surviving witnesses.

How do you determine what is unreasonable about a defendant's story that is already accepted as "possibly true"? By definition, if it's possible, doesn't that imply that it is "reasonably" considered possible? If it is unreasonable, then it should be considered impossible and would not be an admissible defense. To me it still comes across as merely needing to be "possibly true." It's a low standard IMO.

Please remind me of how it works-- isn't there a higher burden on the defense when the claim is self-defense or PPD?

I am certainly one of those people who can't get beyond the screams evidence, but I also cannot engage with the defense version without encountering manipulated timelines (I know you disagree with me). Without being able to see the actual call data records that would support their claims, I can't consider their timeline as factual evidence.

You just need to go to the trial evidence to see what's in the timelines. Nothing else. Arguments about where the information has come from are interesting but ultimately if the defense have evidence that something happened at a particular time and the state don't produce the evidence to show it's wrong (or even argue this!) then the court must deem it to be right.

 

[Marfa Lights]

Speaking of the screams evidence and why I find it so convincing-- I think there is little difficulty in recognizing a woman's voice screaming in mortal fear for her life. It is high and shrill and pitched to an unmistakable degree. It would be extremely rare that a man would be capable of replicating those notes especially without the SAME INTENSE AND IMMEDIATE FEAR EXPERIENCED WHILE STARING DEATH IN THE FACE-- this was not Oscar's situation that night. He never faced down an intruder about to kill him.

His cries of anguish after he realized he had shot Reeva could easily sound like a woman. Crying or wailing and sobbing is a very different kind of vocalization-- it comes more from the back of your throat and up from your gut, not from high in your lungs like a woman screaming bloody murder. Cries of anguish feel like they lock up your vocal chords which distorts the sound making it harder to determine gender.

As I interpret the testimony, a woman's "blood-curdling" screams were heard before the final shots. The "crying" sounds were reported afterwards and could easily have been Oscar. It is not ambiguous for me at all.

 

[soozieqtips]

In OP`s case , who is saying he approached committing a murder with this defence in mind? Much more likely he saw red, killed, and then began to think of the intruder/PPD defence. I don`t think he is terribly smart but it doesn`t take a lot of grey cells to come up with `I thought it was someone else`, especially since he would be likely to be aware of similar incidents in his country.

After he killed her, he had two options: admit to murder, or invent the intruder story. Not hard to imagine which one he'd choose. The fact he phoned a friend (rather than medical help) indicates his thoughts were not with Reeva at that time. Why did he want help "lifting" her anyway? Why not just call the emergency services immediately?

 

[Marfa Lights]

You just need to go to the trial evidence to see what's in the timelines. Nothing else. Arguments about where the information has come from are interesting but ultimately if the defense have evidence that something happened at a particular time and the state don't produce the evidence to show it's wrong (or even argue this!) then the court must deem it to be right.

Unsupported statements by the defense do not constitute "evidence" in my book. Whether or not the State countered it is another matter, but shouldn't the court independently verify important details of the timeline? If this were a jury trial, would not the jurors feel obligated to examine the evidence in more detail if any call times appeared to be unsupported by verifiable call data?

 

[cottonweaver]

Every time I see someone zipping around town in a Mini-Cooper, I can't help but think that should be Reeva, driving carefree with the wind blowing in her hair, smiling and enjoying life.

RSBM

Just have to say that that is genuinely moving IMO. That image sums up the joie-de-vivre she apparently had.
Thanks for reminding us all.

 

[GR_Turner]

Unsupported statements by the defense do not constitute "evidence" in my book. Whether or not the State countered it is another matter, but shouldn't the court independently verify important details of the timeline? If this were a jury trial, would not the jurors feel obligated to examine the evidence in more detail if any call times appeared to be unsupported by verifiable call data?

Can you define unsubstantiated? The times the defense used must have been from the state's evidence. They couldn't have been from anywhere else. And Nel just sat there while Roux used this evidence and he also didn't try to argue it was wrong during the heads of argument. Just because we don't know exactly where something is from doesn't mean that Roux, Nel and the court don't and I just find it very hard to believe any of this can ben regarded as 'made up'.

Some posters have argued that the defense timeline may be wrong but that's irrelevant. It must be wrong for the state to succeed.