Oscar Pistorius - Discussion Thread #62 ~ the appeal~

[Marfa Lights]

Marfa Lights - I meant to say earlier that there was a discussion about the difference between crying and screaming on earlier threads, and the general consensus of opinion was the same as yours - that crying (or even crying out) is nothing like screaming. Nothing at all.

Thanks. I took the time to look back over some older threads, and it really is deja vu all over again.
(Hard to imagine that I let my work distract me from Webseluths for a time.)
Anyway, thanks for the re-assurance I am not alone in this.

 

[JudgeJudi]

This week Gerrie Nel tried to convince the SCA it should read every word of the trial to determine whether OP was guilty of the murder of Reeva Steenkamp rather than of the culpable homicide charge on which he was convicted.

Barry Roux argued that the appeal court judges should read only the “relevant parts” of the court record. The SCA president agreed with Roux that the 31 volumes should be shortened. After this was done, “a good many” fewer volumes were handed to the court.

Nel now has until August 28 – a week after OP is set to be released on corrective supervision – to file the state’s appeal application papers.

However, Advocate Johann Engelbrecht SC said a lot of evidence was presented to Masipa that would play no role in the appeal court judges reaching a decision on whether Pistorius was correctly convicted of culpable homicide or not.

http://www.news24.com/SouthAfrica/News/Oscar-Pistorius-nearly-home-free-20150802

But then there's this from the SCA's own website:

Procedure before the Court

The Court decides cases upon the record of the proceedings before the lower court and after considering the written and oral arguments presented. Witnesses do not appear before the court, and the parties need not be present during the hearing of an appeal. A written judgment is usually handed down shortly after the argument.

The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts. Typically, each judge is allocated cases with about 30 000 pages of evidence and exhibits per year. In addition, each judge is allocated petitions for leave to appeal.

http://www.justice.gov.za/sca/aboutsca.htm

Do you already see the way things are going here? I wouldn't be holding my breath on the outcome. The rules, even those of the SCA, apparently can and do get broken ... in some cases.

Oscar World aka Animal Farm = some are more equal than others.

 

[aftermath]

BIB 1 - If the recording had been accidentally deleted, or it was unclear - why would Nel bother to ask a Netcare employee what was advised if there was no clear recording to refer to?

BIB 2 - It was a lie. He'd just had an allegedly horrifying experience. Now if he couldn't remember who picked him up and who took him back the next day to pick up his car (it was the same person) - don't you think the "friend" would have come forward to confirm the story? After all, it would have helped flesh out OP's tales of fear and paranoia about violence and break-ins. But no. No one came forward because it didn't happen. You say it could have been an "out and out lie". Assuming it was, what logical excuse do you have for it?

For the same reason he called earwitnesses without a recording of the screams they heard: to set pistorius's version in dispute, to undermine his claims, by using one or more Netcare staff to challenge his account. after all, why would Netcare lie about the conversation?

It may well have been a lie. But as I said it may have been either embellished but based on something that happened. (eg perhaps he recalls a time when he thought someone shot at him/someone actually did shoot at him, but he carried on driving , or stopped to calm down then drove home.) or perhaps one of his former friends who turned against him eg fresco picked him up and ppistorius believed he wouldn't back the story up?
(personally, I think it was probably an embellishment to make it all more dramatic)

 

[lithgow1]

For the same reason he called earwitnesses without a recording of the screams they heard: to set pistorius's version in dispute, to undermine his claims, by using one or more Netcare staff to challenge his account. after all, why would Netcare lie about the conversation?

It may well have been a lie. But as I said it may have been either embellished but based on something that happened. (eg perhaps he recalls a time when he thought someone shot at him/someone actually did shoot at him, but he carried on driving , or stopped to calm down then drove home.) or perhaps one of his former friends who turned against him eg fresco picked him up and ppistorius believed he wouldn't back the story up?
(personally, I think it was probably an embellishment to make it all more dramatic)

Re your second point, I know that Oscar Pistorius lived a more event filled life than I or likely you do but even so, do you not think that he would have told a number of friends, family members and so on had it happened? It is not a typical event to be shot at on the highway so it stands to reason that he would have told many people `You`ll never guess what happened ...`. Nah it is quite obviously a lie and it is disturbing IMO that it doesn`t seem to worry you one little bit when so much of the actual trial rests on believing his story of what happened. I guess you will say something along the lines of it being an error of judgment to try and bolster his core story but if the core story is the truth, why would he need to reinforce it. There had been similar cases to his, South Africa`s crime rate is well known etc so why not just stick to the truth if the truth is as he told it.

 

[GR_Turner]

Just wondering at what point everyone has looked critically at the evidence, both state's and defense? I ask because it seems to be the argument that we can ignore or dismiss any evidence against the screams being Reeva's because when you put all the evidence together it is enough to prove guilt. Is that what you're arguing?

 

[cottonweaver]

I didn’t know that Juror13 had uploaded a transcript for her Judge Greenland interview post conviction and maybe others here might not be aware. Had only heard the audio previously, his comments are very striking now that they are in black and white. So I’m going to post the links again.

https://juror13lw.files.wordpress.com/2014/09/judge-greenland-interview-transcript-part-12.pdf



That’s Part 1, central points he makes are
1.” Firstly, the timeline did not win the case. What won the case was the court's missed appreciation of the legal approach and assessment of evidence.

2. Conviction was absurd and irrational because “in effect the court could have acquitted him in terms of logic had he said nothing, had he not given evidence. Because by giving evidence, he never improved the denial
that he advanced at the scene when he said "I made a mistake". He never improved the denial that he advanced with his bail application. And the detailed evidence of the bail application is part of the state's case.”

3. Why he feels state did a great job, why Oscar had subjective foresight he would kill, why the court should not have accepted his story as reasonably possible.

4. Why Masipa’s conduct at that level surprised him. Televising of trial- why Oscar should have been shown and how “This was done voluntarily by Carte Blanche franchise and they derived no financial benefits from this. They did it purely in the public interest…”,

5. States case for murder was strong “As cases go, as murder cases go, you actually cannot have a stronger case than that. You can say that the state case could not have been improved even if it had a video recording of the shooting.”

6. Masipa’s recognition of her error on day one of reading her reasoning and then trying to correct it on day 2 will make no difference to the SCA “Complete, utter misdirection on her part. The
fact that she came back the very next day and changed the wording, the formulation of that test, will not save the misdirection on appeal.”

 

[Colin de France]

Frank... oh Frank, where are you??

.......Frank.......the one big absent ......

 

[soozieqtips]

~snipped~

It may well have been a lie.

Yes. You've conceded previously "it may well have been a lie" and "it could have been an out and out lie" but you haven't offered a reason for it. Several of us believe he lied to bolster his claims of paranoia and fear of intruders. Forget embellishment, just offer a reason as to why he might have told an "out and out" lie about being shot at on the highway. And if you can admit he "possibly" lied about it, then how do you decide which of his claims were lies, and which were truths?

 

[aftermath]

Re your second point, I know that Oscar Pistorius lived a more event filled life than I or likely you do but even so, do you not think that he would have told a number of friends, family members and so on had it happened? It is not a typical event to be shot at on the highway so it stands to reason that he would have told many people `You`ll never guess what happened ...`. Nah it is quite obviously a lie and it is disturbing IMO that it doesn`t seem to worry you one little bit when so much of the actual trial rests on believing his story of what happened. I guess you will say something along the lines of it being an error of judgment to try and bolster his core story but if the core story is the truth, why would he need to reinforce it. There had been similar cases to his, South Africa`s crime rate is well known etc so why not just stick to the truth if the truth is as he told it.

If his core story is true he shouldn't need to bolster his version - the truth should be enough. That's not to say he didn't though, especially since so many people are doubtful about that core story. Whereas some people in his circumstances might rely on the truth being accepted, others (perhaps more cynical or more desperate) might feel the need to embellish a story to affirm a fear of attack. I am not condoning it if that's what he has done, but I'm not comfortable with not exploring alternative explanations to the dominant assumption that a)he told outright lies and b) that this instantly proves he is a murderer.

 

[lithgow1]

If his core story is true he shouldn't need to bolster his version - the truth should be enough. That's not to say he didn't though, especially since so many people are doubtful about that core story. Whereas some people in his circumstances might rely on the truth being accepted, others (perhaps more cynical or more desperate) might feel the need to embellish a story to affirm a fear of attack. I am not condoning it if that's what he has done, but I'm not comfortable with not exploring alternative explanations to the dominant assumption that a)he told outright lies and b) that this instantly proves he is a murderer.

He did tell outright lies though (e.g. the highway incident and Tasha`s defence). This doesn`t mean that everything was a lie but it does show he is quite willing to lie under oath to avoid responsibility for his actions, as with his version of the Tasha`s incident. You are right that these things don`t prove that he is a murderer but they do prove that he will lie, and quite blatantly at that, if he thinks it is to his advantage.

 

[cottonweaver]

Split so the posts are not as long!!!
Part 2 – again I heartily recommend this interview transcript with Greenland.
https://juror13lw.files.wordpress.com/2014/09/judge-greenland-interview-transcript-part-21.pdf

1. SCA should have been able to consider appeals on matters of fact but SA justice is in such a bad state..” recommendation that was made 14 years ago that states should have the right to appeal also on questions of fact, which has not been implemented for no good reason whatsoever. And had it been implemented, it would have affected this trial. And there would have been an opportunity for the Superior Courts to correct the verdict and sentence in this trial. ” and why it matters that the President banned the Scorpions, of which Nel of course was one.

2. There’s one for you GRT in here – where JG picks up the interviewer and say no he doesn’t speak from his heart but from his mind. I’d say it is an impassioned intellect.


3. On Risks for public officials in speaking out “Yes, and in South Africa, if you do stand up, you will be hurt. If you are still a career functionary, you stand to be victimized. So it's dangerous for people that are passionate about truth to stand up and actually support it. I'm retired, so I'm at less risk. But in my case, if you read my book, you'll see that it almost cost me my life.

4. How Masipa should have dealt with evidence as to domestic violence and a rage killing why she should not have dismissed the WhatsApp comments and the house damage.

 

[cottonweaver]

https://juror13lw.files.wordpress.com/2014/09/judge-greenland-interview-transcript-part-21.pdf

Part 2 – more points from J.Greenland interview.
5. “So circumstantial evidence is the best evidence you can have, and in this case the circumstantial evidence could not have been stronger. As I said, we can’t improve the State case by producing a video of the shooting.”

6. On shot grouping, Mangena and his own experience as a soldier – forceful points made.

7. SA Legal fraternity reaction “I can tell you that members of the legal panel that I have been in association with during the course of this coverage by Carte Blanche were shocked. I was unfortunately on the panel when the verdict was being read out. So I was there on camera, it was so difficult for me to conceal my shock and horror. I still haven't watched the tape. I brought the tape home and I haven't dare look at it because I'm terrified that my shocked reaction might actually come across as disgust. I'm not supposed to be that negative about the Superior Court's decision"

8. Oscar as a witness whose lies some wish to defend “In other words, I've seen the state come to court with a case file weaker than that presented against Oscar, and the accused is a far better witness than Oscar, but makes one or two mistakes, and he's found guilty of murder. And in some cases in Zimbabwe, hanged. So, this is extraordinary, this is mind-boggling. I just don't... I'm riddled with cognitive dissonance here.”

 

[Marfa Lights]

Just wondering at what point everyone has looked critically at the evidence, both state's and defense? I ask because it seems to be the argument that we can ignore or dismiss any evidence against the screams being Reeva's because when you put all the evidence together it is enough to prove guilt. Is that what you're arguing?

I am trying my "damndest" G.R. but I really can't get beyond the recorded call times for Dr. Stipp at 3:15:59 and Michael N. at 3:16:13/3:16:36 reporting the final shot sounds to Silverwoods Security (Pieter Baba).

The woman's blood curdling screams were heard by four witnesses, two of whom were out on their balconies in the still of the night listening intently. The Stipps also reported hearing both a man and a woman's voice just before the final shots were fired.

The only actual "evidence" offered to negate the screams testimony is Roux's unproven assertion that Oscar sounds like a woman when he screams (really hard to believe he never entered into evidence the "decibel test" he said the Defense had completed and would furnish later since this is the crux of their case.) Otherwise, you seem to insist on conflating reports of hearing a man (identified as Oscar) "crying" which clearly occurred after the final shot sounds with earlier reports of a woman screaming out of her mind in fear for her life reported by 4+ witnesses before the final shot sounds.

You can screw around with that timeline until the cows come home, but the screams testimony and those logged call times at 3:15:59 and 3:16:13 tell me all I need to know.

 

[cottonweaver]

getting down in the weeds with the Defence

As many of us are experiencing deja-vu, may as well let Greenland take the strain and paste up the end of his interview.

Main concluding points from J.Greenland interview.
9. Masipa should have intervened re. lack of stated defence “Because I thought that the stage had long passed when the court should have said to the defense, what's going on here? What is the defense? I mean, it's just unbelievable. The whole legal panel of experts over a trial that took what, 46 days or something... 90 days, I can't remember. But the whole time, could never work out what the defense was until the very very last moment. And in effect, the court still hasn't told us what the defense was.
….”
10. on the Defence’s success “I was totally unimpressed with the defense. But they pulled it off and they must be commended for that. And as some people have observed, it would appear that what happened is that the strategy was to confuse the court and they succeeded spectacularly”

11. “I bang on about this issue about truth. About getting to the real issue... about people using their minds and being concerned with truth. As I've said, and you picked this up, all injustice starts with a lie, with a perversion of the truth.”


12. Why it matters “Was the trial conducted properly? Was the necessary degree of competence in place? Was the verdict rational? Was it right? Was the test for justice satisified? Because if it was not in this case with such high-powered, qualified, skilled people, what will happen in other cases? You know. So we do need to be concerned.”

13. When the interviewer asks about possible corruption & Masipa “: It's unavoidable that that degree of skepticism is going to present itself. It's unavoidable. Because the decision is that irrational. And I'm going to go back to what I said right at the beginning... the terrible harsh reality is that it would appear that the court would have acquitted him at the end of the state's case because Oscar did nothing whatsoever to improve his denial of murder. He's such a bad witness. So, we have to logically conclude that the defense case was actually irrelevant. They might as well have said we're sticking with his behavior at the scene, we're sticking with what he said at the bail application and the court would have acquitted him. Because there's nothing that he presented that improves that whatsoever.”


And buy his book ! I might in fact, the synopsis sound great on Amazon.

https://juror13lw.files.wordpress.com/2014/09/judge-greenland-interview-transcript-part-21.pdf

Lots of comments, albeit moderated about how Masipa's lack of experience showed which I know a couple of you still don't agree with as per thread 61!

 

[Trotterly]

~snipped~

Yes. You've conceded previously "it may well have been a lie" and "it could have been an out and out lie" but you haven't offered a reason for it. Several of us believe he lied to bolster his claims of paranoia and fear of intruders. Forget embellishment, just offer a reason as to why he might have told an "out and out" lie about being shot at on the highway. And if you can admit he "possibly" lied about it, then how do you decide which of his claims were lies, and which were truths?

This is easy to answer if you believe that his version is reasonably possibly true.

He shoots Reeva by mistake then is suddenly facing a murder charge. The circumstances make it look bad for him and he knows that the only way out is to make a court believe that was what really happened. The temptation to lie where you felt the ends would justify the means would be great especially if you had no faith in the system that was testing you. If you were a despicable character it would probably be even easier.

 

[Trotterly]

This week Gerrie Nel tried to convince the SCA it should read every word of the trial to determine whether OP was guilty of the murder of Reeva Steenkamp rather than of the culpable homicide charge on which he was convicted.

Barry Roux argued that the appeal court judges should read only the “relevant parts” of the court record. The SCA president agreed with Roux that the 31 volumes should be shortened. After this was done, “a good many” fewer volumes were handed to the court.

Nel now has until August 28 – a week after OP is set to be released on corrective supervision – to file the state’s appeal application papers.

However, Advocate Johann Engelbrecht SC said a lot of evidence was presented to Masipa that would play no role in the appeal court judges reaching a decision on whether Pistorius was correctly convicted of culpable homicide or not.

http://www.news24.com/SouthAfrica/News/Oscar-Pistorius-nearly-home-free-20150802

But then there's this from the SCA's own website:

Procedure before the Court

The Court decides cases upon the record of the proceedings before the lower court and after considering the written and oral arguments presented. Witnesses do not appear before the court, and the parties need not be present during the hearing of an appeal. A written judgment is usually handed down shortly after the argument.

The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts. Typically, each judge is allocated cases with about 30 000 pages of evidence and exhibits per year. In addition, each judge is allocated petitions for leave to appeal.

http://www.justice.gov.za/sca/aboutsca.htm

Do you already see the way things are going here? I wouldn't be holding my breath on the outcome. The rules, even those of the SCA, apparently can and do get broken ... in some cases.

Oscar World aka Animal Farm = some are more equal than others.

Nel just shot too high if you pardon the pun. The murder was always going to be a reach and I don't know why he didn't just settle. He doesn't seem one for the limelight so I think it was just his public avenger side coming out.

No doubt there will be howls of protest when the SCA uphold Masipa's decision but I think this will say more about misunderstanding the legal process than anything else.

At the end of the day we have to be sure before we label someone a murderer and lock them up for a long time.

 

[lithgow1]

Nel just shot too high if you pardon the pun. The murder was always going to be a reach and I don't know why he didn't just settle. He doesn't seem one for the limelight so I think it was just his public avenger side coming out.

No doubt there will be howls of protest when the SCA uphold Masipa's decision but I think this will say more about misunderstanding the legal process than anything else.

At the end of the day we have to be sure before we label someone a murderer and lock them up for a long time.

Shouldn`t that be `if`?

 

[Marfa Lights]

Nel just shot too high if you pardon the pun. The murder was always going to be a reach and I don't know why he didn't just settle. He doesn't seem one for the limelight so I think it was just his public avenger side coming out.

No doubt there will be howls of protest when the SCA uphold Masipa's decision but I think this will say more about misunderstanding the legal process than anything else.

At the end of the day we have to be sure before we label someone a murderer and lock them up for a long time.

At the very least it should help clarify the application of Dolus eventualis.
I wish it could address the issue of animus in the illegal possession of ammunition charge, but I guess that's not happening.

If Pistorius gets off again, I think we may get to see what happens when you release a loaded gun like Oscar back into society.
I know, he is going to stay in Arnie's mansion reading his bible and working with disabled children.

Rehabilitated? Doubt it.

 

[Colin de France]

This is easy to answer if you believe that his version is reasonably possibly true.

He shoots Reeva by mistake then is suddenly facing a murder charge. The circumstances make it look bad for him and he knows that the only way out is to make a court believe that was what really happened. The temptation to lie where you felt the ends would justify the means would be great especially if you had no faith in the system that was testing you. If you were a despicable character it would probably be even easier.

.....i think it would be fair to say Pistorius has a major problem with accepting responsibility.......

 

[Trotterly]

Shouldn`t that be `if`?

I'm sure there will be no significant changes to OP's situation as a result of the SCA's actions.