Oscar Pistorius - Discussion Thread #63 ~ the appeal~

[cottonweaver]

............he may of been thinking that Reeva was on the right near to where he had been hiiting with the bat and so shot towards the other side not knowing that she had slightly changed her position and was hit...............

Think that is an another interesting speculation Colin as to how it actually unfolded that morning. i dunno - but it's definitely interesting ie. shoot to intimidate not kill.
But isn't it a bit like me saying ( Considering that bathroom ricochet, with those bullets, with his knowledge) - "With my eyes closed I plunged the knife in wildly,I was only trying to scare not kill x...... or I tried to avoid the main arteries/heart etc". Does that make sense?

All I can say is that I have thought for a long time now, that shot 1 was initiated by targeted rage at Reeva ie. not incapacity and not a "scare shot" . ( Plus there are 101 reasons for rage in his case. ie. what precipitated this)
I am not convinced about what was in his mind after shot 1 though - I vacillate between " no choice but to finish her off/stop the screams" motive and on the other hand his homicidal rage just following through with shots 2,3,4.

I do think however, there was a panicked, "un-thought through" attempt to "cover-up" minimise culpability and buy time prior to Stipp arriving- it was Op's default - cops are useless, sycophants are useful, expensive lawyers always work.

(No, I'm not saying that there was a formed plan to dump RS in shallow grave in the minutes before Stipp arrived. )

 

[cottonweaver]

A judge is not permitted to do this. If a mistake is made, it must be corrected immediately, not the next day.

Agreed JJ, Greenland stated that she would have had to claim she simply misspoke on the day and correct herself there and then. the fact she attempted to rectify a severe error the next day would be insufficient for SCA.

Looking forward to seeing which judges will be selected for November.

 

[Mr Fossil]

Vermeulen not only suggests that the shoulder height of the person wielding the bat was about OP's height but he also provides a few other insights. Firstly, that the angle of the first strike (which hits the frame) puts OP's position to the left of the door, secondly that the strike that created the hole in the door left angular marks across the end of the bat as a result of a twisting action (he suggests that this may have been to lever the smaller panel out) and thirdly OP's position changed to be more in front of the door. Indeed, the photos of Vermeulen testing the bat against the other strike found by the defence (which he couldn't match to the bat) also show him more in front of the door.

Taking the Stipps's evidence at face value and assuming that the gunshots were fired whilst OP was on his stumps, it would follow that for the first sounds (which only they hear) to be bat strikes then OP must have also been on his stumps at this time. This is consistent with Vermeulen's conclusion.

Dixon tells the court that "My Lady, what I know about the way the recording was done: the gunshots are of a much higher cracking sound, the bat is lower, doesn't travel". This would explain why only the Stipps hear the bat strikes.

OP says that he returns to the bathroom and immediately starts hitting the door with the bat. Well, first of all we know that he has to put the gun down on the bathmat (which is to the right of the toilet door) according to his version, so why would he then move to the left of the door for the first strike? This doesn't make sense. On his stumps though he may well have initially gone to the wall to the left of the toilet to steady himself before wielding the bat (see his Evidence Room re-enactment for examples). It also explains why he misses the panel and hits the thicker frame of the door. He then moves round, close to the door, and hits it higher up and with less force, creating the mark found by the defence. And finally he moves back from the door and throws himself into the third strike, breaking a hole in the door.

His purpose for doing all this may have been to get to Reeva to prevent her doing or seeing something on his or her phone, but on his stumps I doubt he'd be much match for Reeva. He twists the bat, not to break the panel, but to pull the bat out. He realises the futility of breaking the door open and retreats to fetch his gun.

Reeva is screaming throughout and, when she sees (though the hole made by the bat) Oscar leave the bathroom, she comes out of the toilet to follow. She then sees him returning, wielding the gun, and flees back to the toilet, slamming and locking the door, something he later relates in his testimony.

He then fires the gun.

It is after this that his puts his prostheses on and returns to the bathroom to kick out the smaller panel (as per the prosthesis sock mark on the door), causing a crack to split bullet hole D.

He then comes up with the intruder story (his only option), works the bat strikes into his version (they could hardly have happened before the gun and would be unlikely to have happened on stumps with a possible intruder still lurking) and carries out actions which he instantly perceives fit such a story, like calling for help from the balcony. This explains why he calls help in his version without yet knowing it is Reeva in the toilet - the reality is that in the above scenario he does know it's Reeva.

Most witness testimony fits the above except some of that by Johnson and Burger. I have pointed out previously the problems with their testimony (the time of his call, that they make their statements after hearing the first day of the bail application, that Johnson says that afterwards they think that the helps are because robbers were attacking someone and had left - yet he places the helps before the gun which is contradictory), so in the manner of Roux and Masipa I'll dismiss it as it doesn't help.

None of the above proves anything but is perhaps a viable alternative scenario?

 

[Colin de France]

Think that is an another interesting speculation Colin as to how it actually unfolded that morning. i dunno - but it's definitely interesting ie. shoot to intimidate not kill.
But isn't it a bit like me saying ( Considering that bathroom ricochet, with those bullets, with his knowledge) - "With my eyes closed I plunged the knife in wildly,I was only trying to scare not kill x...... or I tried to avoid the main arteries/heart etc". Does that make sense?

All I can say is that I have thought for a long time now, that shot 1 was initiated by targeted rage at Reeva ie. not incapacity and not a "scare shot" . ( Plus there are 101 reasons for rage in his case. ie. what precipitated this)
I am not convinced about what was in his mind after shot 1 though - I vacillate between " no choice but to finish her off/stop the screams" motive and on the other hand his homicidal rage just following through with shots 2,3,4.

I do think however, there was a panicked, "un-thought through" attempt to "cover-up" minimise culpability and buy time prior to Stipp arriving- it was Op's default - cops are useless, sycophants are useful, expensive lawyers always work.

(No, I'm not saying that there was a formed plan to dump RS in shallow grave in the minutes before Stipp arrived. )

......i think it's a more than viable third theory in between the intruder and Reeva ........and it ticks all the boxes............with a flashing red light ...

 

[cottonweaver]

You'll also recall that people who were familiar with her wording of judgments found this one out of character which gave rise to speculation that one of the assessors had written it. She paused numerous times while reading it and made corrections as she went. She had more than enough time to read it prior to delivering it in court, so why weren't these errors picked up earlier?

IMO we, like others, are entitled to speculate.

BIB 1 - I would love to know who those people were

BIB2 - Yes I remember all that. The bloke had the least experience. The female assessor had years of experience but that's all relative over there. And people started sniffing "corruption" in the posts. Greenland said it wasn't surprising that the public were whispering "corruption" because the entire judgment was bizarre so he definitely thinks it was natural to suspect nefarious motives. It's irrelevant what the Chief Justice said about "personal attacks" in the context of the inadequacies revealed.

 

[cottonweaver]

Thanks Mr. F - that is so useful - I am going to digest that whilst I paint this door and return to the points shortly

 

[Colin de France]

Thanks Mr. F - that is so useful - I am going to digest that whilst I paint this door and return to the points shortly

....and i would also like to say a big thanks for that..........bat/screams/shots/nothing.......feels so right...

 

[cottonweaver]

....and i would also like to say a big thanks for that..........bat/screams/shots/nothing.......feels so right...

And if by any chance at all, Fossil's TL research is in the Carte Blanches programme I will certainly be watching!

 

[JudgeJudi]

:blowkiss: and :grouphug: to all my good friends

:takeabow: and :tyou: for all your :goodpost: over the last few weeks.

You know you’ve been flogging a :deadhorse: with those who want to :sweep: everything under the carpet. While everyone is entitled to their opinion, some of those posts have been simply :jawdrop: And then there were the grammar lessons!!!

OP has only

:behindbar :behindbar :behindbar :behindbar :behindbar :behindbar
:behindbar :behindbar :behindbar :behindbar :behindbar :behindbar

more days and nights to go and then it's back to the oh so harsh confines of Uncle Arnold's luxury mansion where he'll serve out the remainder of his sentence under house arrest. Life is certainly tough at the top.

 

[Mr Fossil]

Following on from my penultimate paragraph in post #263, I have revisited Burger and Johnson’s testimony. I think I have failed to follow my own argument in Witness Testimony Analysis 2 (WTA2) to its logical conclusion. In now doing so, I am able to reconstruct the Burger / Johnson sequence of events to support the rest of WTA2 and the ‘bat then gun’ scenario by making just one change to their sequence.

WTA2 was based on the premise that Johnson’s call time was wrong. I no longer think this has to be the case, at least not to the extent that it is minutes out. It is seconds out.

Call times taken from a mobile phone’s recent call list often only record the call start time to the last minute (i.e. seconds are truncated). My iPhone does this. So when Johnson sees the call start time of 03:16 the fact is that the start time can be anywhere between 03:16:00 and 03:16:59. This range is in accord with other call times (Dr Stipp at 03:15:51 and Nhlengethwa at 03:16:13 and 03:16:36). The call duration of 58 seconds then gives an end time of between 03:16:58 and 03:17:57.

Johnson says the following to Nel, when, explaining why he was surprised to hear it was a domestic violence incident and not an armed robbery or a house break-in:

"I think the, the fact that we had heard, distinctly heard two different persons: a male and a female lady calling for help and when, when we heard their calls for help the impression I was under that they, maybe the attackers had left the, the house and they were tied up or locked in a room and they were trying to alert the, the neighbours. That, that's just the impression that we were under."

How can they possibly be under the impression days later that the attackers had left the house if they say they subsequently hear gunshots? Have they muddled the sequence?

Burger and Johnson both hear and read media reports, talk to family and friends, and listen to at least the first day of the Bail application (in which OP’s Bail Affidavit is read out, giving his version and sequence of events) before deciding to contact anyone or make any notes. Johnson’s notes (Exhibits 01, O2 and O3) were not made until some 3 weeks later, on 6 March 2013, and his statement was given to Van Aardt on 13 March 2013. I believe that they have confused their sequence of events with what they have heard on the radio but the trigger for them coming forward, their impression that when they heard the helps the attacker had left the house, remains and is where I have misapplied my logic.

It is not the call that needs to move nor the helps (the trigger for the call): it is the shots that must move to be before both the helps and the call. This is then in accord with Johnson’s own testimony: when we heard their calls for help the impression I was under [was that] the attackers had left the house.

By just moving when Burger and Johnson hear the shots, their testimony falls into line with other testimony and also supports the ‘bat then gun’ scenario. Both hear the pause after the first shot, Burger hears the correct number (I can’t account for why Johnson thinks 5-6 shots) and Burger, like Dr Stipp, agrees she couldn’t wield a bat with the rapidity of the final three shots. It also makes slightly more sense to go back to bed after calling (the wrong) security than after hearing the shots.

It goes further. WTA2 now no longer needs to make excuses for why witnesses don’t hear the bat strikes after the gun shots. It is simply because they aren’t after the gun shots.

I will revise WTA2 to demonstrate this and post again, with a new link (WTA3?), when this is done.

I do have one problem with the 'bat then gun' scenario and OP being on his stumps for both but that entails discussing another significant part of what I believe may have happened earlier that night, which I need to reconcile before posting here.

In the meantime, what do fellow websleuthers think? I welcome constructive criticism and debate to both this and my previous post. Is it fantasy? Does the evidence and other witness testimony really support this sequence of events? Is it likely?

Again, none of the above disproves OP's version of events.

 

[Suthrnqt]

Marking my spot......

 

[Marfa Lights]

After reading Alfred Jack's comment below the Daily Maverick article by Nicholas Taitz, I am starting to believe there may be an escape hatch here for Oscar after all-- if the Court excuses his intent to kill whoever was behind the door (Intruder X) on the basis of PPD, then does it follow that he cannot be culpable for the unintended murder of Reeva (Y) that was the result of an error in objecto or mistaken identity?

http://www.dailymaverick.co.za/opin...a-was-right-on-dolus-and-murder/#.Vcc973g-B8d

Reader Comment by: alfred jack • a year ago
I believe this was in fact the key point. Paradoxically, in this case, it may be easier to prove premeditated murder than to prove dolus eventualis murder. The reason is that in premeditated murder, whether you kill the person you intend to kill (eg. it was really Joe wearing a face-mask of Sue!) or not is not important, as long as you have the primary intent to kill that person (whomever it may be and whomever you believe it to be).

But for dolus eventualis murder, the identity of the person becomes important. If you do something dangerous (eg. shoot a bullet) without primarily intending to kill someone, and X dies, you can only be guilty of dolus eventualis murder if you had foreseen, and reconciled yourself with, the idea that X could conceivably die from your actions. You must have entered into a specific bargain with yourself, eg. "I'm going to shoot this bullet, even though I know X could die as a result."

It's like playing poker! If X does die, you're in big trouble. Guilty of dolus eventualis murder. But if it turns out that X was really Y, then you're only guilty of culpable homicide. Because you never entered into that mental bargain with Y, only with X.


Then I found this article that contradicts the above explanation (although they have reversed the Xs and Ys):
http://constitutionallyspeaking.co....ntion-to-kill-someone-behind-the-toilet-door/

In South African law it is not a valid defence to claim that you did not have the intention to kill X because you had in fact intended to kill Y and had killed X by mistake. Thus if Pistorius had intended to kill an intruder (and not Reeva Steenkamp), he would still be guilty of murder as long as the state had proven beyond reasonable doubt that he had intended to kill the person behind the door whom he might (or might not) have thought to be an intruder.


No wonder I am confused... which one of these theories is correct in S.A.? Do we need to insert the issue of lawfully or unlawfully intending to kill Y in the second example? Once Masipa accepts the PPD claim then is it no longer an "unlawful" killing-- just a mistake, as Oscar so often reminded us?


I think Cottonweaver tried to clarify a page or two back and I will reread that. But would love a legal opinion here. Does transfer of malice apply here for a DE verdict?

 

[cottonweaver]

@ Marfa

My connection has been down over here.........We need Mr Jitty perhaps? If you're out there.
If he doesn't return I will try and research later tonight unless someone else wants to have a bash.

If you're on Twitter Marfa ( or anyone else) , I do think that David Dadic would actually reply to a brief legal question

 

[Deleted member 102539]

David Dadic ‏@DavidDadic 7. Aug.
Here's a Friday night thought, in two weeks time you might bump into Oscar Pistorius doing his groceries at the local Spar. Sleep well.

 

[Deleted member 102539]

David Dadic ‏@DavidDadic 2. Aug.
BDK Attorneys vs City Press journalists re Zuma's wife's alleged poison accusation. Pistorius commentary colleagues now rivals. Small world

 

[Deleted member 102539]

@ Marfa

My connection has been down over here.........We need Mr Jitty perhaps? If you're out there.
If he doesn't return I will try and research later tonight unless someone else wants to have a bash.

If you're on Twitter Marfa ( or anyone else) , I do think that David Dadic would actually reply to a brief legal question

I can't find anything you could mean ....

 

[JudgeJudi]

RSBM

No wonder I am confused... which one of these theories is correct in S.A.? Do we need to insert the issue of lawfully or unlawfully intending to kill Y in the second example? Once Masipa accepts the PPD claim then is it no longer an "unlawful" killing-- just a mistake, as Oscar so often reminded us?

I think Cottonweaver tried to clarify a page or two back and I will reread that. But would love a legal opinion here. Does transfer of malice apply here for a DE verdict?

If it's tricky for lawyers, counsel, magistrates and judges, no wonder we find it confusing. David Dadic looks up to Prof. James Grant who, as you know, is assisting Nel. The link I've attached is the most comprehensive explanation on this whole subject. He also explains how Masipa has misinterpreted the law. I hope it helps both you, Cotton, and anyone else trying to get their head around this matter.

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

 

[Deleted member 102539]

Following on from my penultimate paragraph in post #263, I have revisited Burger and Johnson’s testimony. I think I have failed to follow my own argument in Witness Testimony Analysis 2 (WTA2) to its logical conclusion. In now doing so, I am able to reconstruct the Burger / Johnson sequence of events to support the rest of WTA2 and the ‘bat then gun’ scenario by making just one change to their sequence.

WTA2 was based on the premise that Johnson’s call time was wrong. I no longer think this has to be the case, at least not to the extent that it is minutes out. It is seconds out.

Call times taken from a mobile phone’s recent call list often only record the call start time to the last minute (i.e. seconds are truncated). My iPhone does this. So when Johnson sees the call start time of 03:16 the fact is that the start time can be anywhere between 03:16:00 and 03:16:59. This range is in accord with other call times (Dr Stipp at 03:15:51 and Nhlengethwa at 03:16:13 and 03:16:36). The call duration of 58 seconds then gives an end time of between 03:16:58 and 03:17:57.

Johnson says the following to Nel, when, explaining why he was surprised to hear it was a domestic violence incident and not an armed robbery or a house break-in:

"I think the, the fact that we had heard, distinctly heard two different persons: a male and a female lady calling for help and when, when we heard their calls for help the impression I was under that they, maybe the attackers had left the, the house and they were tied up or locked in a room and they were trying to alert the, the neighbours. That, that's just the impression that we were under."

How can they possibly be under the impression days later that the attackers had left the house if they say they subsequently hear gunshots? Have they muddled the sequence?

Burger and Johnson both hear and read media reports, talk to family and friends, and listen to at least the first day of the Bail application (in which OP’s Bail Affidavit is read out, giving his version and sequence of events) before deciding to contact anyone or make any notes. Johnson’s notes (Exhibits 01, O2 and O3) were not made until some 3 weeks later, on 6 March 2013, and his statement was given to Van Aardt on 13 March 2013. I believe that they have confused their sequence of events with what they have heard on the radio but the trigger for them coming forward, their impression that when they heard the helps the attacker had left the house, remains and is where I have misapplied my logic.

It is not the call that needs to move nor the helps (the trigger for the call): it is the shots that must move to be before both the helps and the call. This is then in accord with Johnson’s own testimony: when we heard their calls for help the impression I was under [was that] the attackers had left the house.

By just moving when Burger and Johnson hear the shots, their testimony falls into line with other testimony and also supports the ‘bat then gun’ scenario. Both hear the pause after the first shot, Burger hears the correct number (I can’t account for why Johnson thinks 5-6 shots) and Burger, like Dr Stipp, agrees she couldn’t wield a bat with the rapidity of the final three shots. It also makes slightly more sense to go back to bed after calling (the wrong) security than after hearing the shots.

It goes further. WTA2 now no longer needs to make excuses for why witnesses don’t hear the bat strikes after the gun shots. It is simply because they aren’t after the gun shots.

I will revise WTA2 to demonstrate this and post again, with a new link (WTA3?), when this is done.

I do have one problem with the 'bat then gun' scenario and OP being on his stumps for both but that entails discussing another significant part of what I believe may have happened earlier that night, which I need to reconcile before posting here.

In the meantime, what do fellow websleuthers think? I welcome constructive criticism and debate to both this and my previous post. Is it fantasy? Does the evidence and other witness testimony really support this sequence of events? Is it likely?

Again, none of the above disproves OP's version of events.

Who am I, that I could tell?!

You have to wait for other members. - It sounds right for my ears/eyes! Thanks!

 

[Deleted member 102539]

And if by any chance at all, Fossil's TL research is in the Carte Blanches programme I will certainly be watching!

David Dadic ‏@DavidDadic 2. Aug.
Have to say, you can hate the music all you want, but@carteblanchetv does seriously kick great work!

 

[Deleted member 102539]

Lois Pistorius ‏@loispistorius 27. März
Which professions have the most psychopaths? The fewest? http://www.bakadesuyo.com/2012/11/professions-most-fewest-psychopaths/ …