Oscar Pistorius - Discussion Thread #65~ the appeal~

[lithgow1]

But Reeva won't even feature if he shoots an intruder DE.

Well she doesn`t feature now. She was just the 'collateral damage' of OP's misplaced fears and uncontrollable trigger finger. At least if it gets upped to DE her killer won't be sipping cocktails by the pool.

 

[Trotterly]

Well she doesn`t feature now. She was just the 'collateral damage' of OP's misplaced fears and uncontrollable trigger finger. At least if it gets upped to DE her killer won't be sipping cocktails by the pool.

I've always seen Reeva's death more as an warning against the prevalence of guns in society than anything else. OP killed her and IMO he should be locked up for a long time but the state aren't going to get there on this appeal.

 

[lisasalinger]

Hi guys, here are some pics from the courthouse today. It's so nice to see June and Nel smiling together. It was a good day.

 

[lithgow1]

I've always seen Reeva's death more as an warning against the prevalence of guns in society than anything else. OP killed her and IMO he should be locked up for a long time but the state aren't going to get there on this appeal.

Well going by today's events the court may well come back with the decision to up the verdict to DE in which case, AFAIK, the minimum sentence is 15 years. The court did argue they have the right to change the verdict if they so choose. Doubt they would have gone into those arguments with Roux if there hadn't been at least a chance of that happening. So I think your confidence that the appeal has failed may be a bit, to continue the food theme, pie in the sky.

 

[lisasalinger]

A few more...

 

[Sherbert]

But Reeva won't even feature if he shoots an intruder DE.

Undeniably true.

But isn't it a case of the State saying, 'You're claiming mistaken identity. We don't believe that the evidence supports mistaken identity, but, as we can't prove that you're lying about this, we will do our best to ensure that, at the very least, you do pay the correct price for the crime which you admit to committing'.

 

[sleuth-d-]

Undeniably true.

But isn't it a case of the State saying, 'You're claiming mistaken identity. We don't believe that the evidence supports mistaken identity, but, as we can't prove that you're lying about this, we will do our best to ensure that, at the very least, you do pay the correct price for the crime which you admit to committing'.

and yet, i sensed that leach seemed to be saying that the core scenario/actions - knowledge that there is a person behind the door; the person not presenting a threat; the known confined space; highly destructive ammunition; 4 shots - together constituted dd. and so:
1. if op fired through the door knowing it was reeva = dd of reeva
2. if op fired through the door thinking it was an intruder = dd of the person behind the door

which leads me to thinking that the prosecution over-complicated their case. not so?

 

[mrjitty]

and yet, i sensed that leach seemed to be saying that the core scenario/actions - knowledge that there is a person behind the door; the person not presenting a threat; the known confined space; highly destructive ammunition; 4 shots - together constituted dd. and so:
1. if op fired through the door knowing it was reeva = dd of reeva
2. if op fired through the door thinking it was an intruder = dd of the person behind the door

which leads me to thinking that the prosecution over-complicated their case. not so?

It's worth pointing out that DE isn't a downgrade on DD

Rather DE extends the circumstances that amount to murder - and make it easier for the prosecution to make the case.

 

[Sherbert]

and yet, i sensed that leach seemed to be saying that the core scenario/actions - knowledge that there is a person behind the door; the person not presenting a threat; the known confined space; highly destructive ammunition; 4 shots - together constituted dd. and so:
1. if op fired through the door knowing it was reeva = dd of reeva
2. if op fired through the door thinking it was an intruder = dd of the person behind the door

which leads me to thinking that the prosecution over-complicated their case. not so?

I think they may have got directus, had they asked for it.

But, to some extent, they were forced to make a choice, as they were accused of straddling both chairs.

Arguably, they could have clarified that they were seeking directus at best and eventualis at least.

 

[mrjitty]

I do think the law needs to be clarified, though, as there are quite a few cases where PPD is not established, but the verdict is still CH.

Completely agree.

In the end the current laws of self Defence are not compatible with the way citizens are tooling up to defend themselves.

You can really only shoot as a last resort.

It's not like the US.

 

[mrjitty]

If the primary purpose of the Appeal is to clarify the law on DE, I'm not sure how this aim can be achieved if the facts actually point to directus.

PPD is a difficult Defence to run because, unlike PD, it's invariably going to be tricky to satisfy all three elements, due to the fact that the threat isn't real. Of course, in this case, none of the elements were satisfied because OP overreacted to a threat that existed only in his mind - if, indeed, it existed at all.

What needs to be cleared up, IMO, is, what happens if all three elements are not satisfied, but the TJ finds that the killer was genuinely motivated by fear. Should it be DE or CH?

The caselaw points in both directions.

I think the problem is that Masipa didn't complete the factual inquiry properly as the answer to your question should depend on the exact nature of the mistake.

OP claimed to be genuinely fearful of an intruder in the toilet. But there was no real evidence he perceived an immediate threat and it was more than obvious that he could simply run off - he had every chance to do so.

Masipa herself compared this to a scenario where you wake up from a strange noise - see a shadow loom over you in bed and shoot your girlfriend in terror.

In that later the case, the mistake goes to identity and to immediate threat and to reasonable reaction.

Even given OPs fear, and even given the noise in the toilet - he knew he could just leave.

That's the part Roux is trying to gloss over.

 

[Trotterly]

Undeniably true.

But isn't it a case of the State saying, 'You're claiming mistaken identity. We don't believe that the evidence supports mistaken identity, but, as we can't prove that you're lying about this, we will do our best to ensure that, at the very least, you do pay the correct price for the crime which you admit to committing'.

Absolutely right.

 

[jimmy73]

Thanks to you OP websleuthers for your commentary and allowing me to catch up. I can't believe I missed the proceeding after the long wait. Haven't been on here since the main trial but pleased to see old crowd still in attendance

 

[mrjitty]

Why would you refer to this appeal as sour grapes on Nel's behalf? His department, after seeking advice, decided Masipa's decision was so flawed it warranted an appeal. And, going by their comments, the judges today don`t seem to see it as 'sour grapes' but rather as a legitimate appeal. Do you mean that because he didn't get the DD verdict he is after something, anything? If so, I totally disagree. Nothing sour grape'ish about appealing a perceived miscarriage of justice because of an incompetent judge IMO. Simply the right thing to do, whether the beneficiary of the original poor decision is Oscar Pistorius or Joe Bloggs.

I think we talked about this one time before.

In the adversarial system the law is developed by the accident of litigation. There are not automatic appeals (e.g. in Italy) where everything gets checked over.

So one can legitimately say the state had a duty to appeal this case, in order to clarify the law. Not to mention that the judgement was technically flawed.

The level of snark in the appeal dox is unusual, however this is the state showing how angry it is with the very poor quality of the decision (more so than the result IMO).

The state is entitled to expect that the evidence is carefully assessed and discussed, and that the judge provides a carefully reasoned decision.

Where a judge shows such incompetence, and indeed lack of respect to the state's case, a certainly level of scorn is warranted IMO.

The prosecution is a separate arm of government and is more than entitled to be irate where the judiciary does not do its job properly - especially given taxpayer investment.

Remember also that the state is making its complaints in the appropriate forum rather than the media.

For a similar case - see the first Amanda Knox decision in the Supreme Court

In those proceedings, the prosecution submitted withering appeal documents which openly mocked the Court of Appeal judges. The SC ended up echoing many of those remarks.

So in this case, State is wanting to send a clear message to the trial judge - and is asking for the Supreme Court to send that message.

It seems at least one or two of the judges agree with Nel's submissions as well.

Leach comes close to mocking the Judge's reasoning IMO

 

[L2L]

Even though Nel is going for DE, could the SC judges make a decision of DD? Absolutely appreciate all wonderful comments and insight posted here ... thank you all!

 

[mrjitty]

Snipped from your post mrjitty. I don't get this bit below. If the SCA tear down the judgement how can they then let it stand without it making it appear they are complicit in that poor judgement. Wouldn't they need to find another way to then arrive at her ultimate conclusion. I guess what I am asking in layman's terms is how could you deliver a tongue lashing on a judge`s decision making without then rectifying the error/s that judge made.

I think as a minimum we will see the Supreme Court deliver a legal tongue lashing for Masipa - as it is critical to maintain the integrity of the law

I still would not be surprised if they tear down the judgement, but find some way to avoid changing the result much.

There are at least 3 components

1. Procedural - Does the SC have standing (my guess is they will find they do)

2. Errors of law - Did Masipa make errors of law? My guess is they will find at least one or two and deliver Obiter complaining about poor reasoning, confused structure, confused findings etc. Leach has already done this to some extent in his oral questioning.

3. What now? This part could get murky.

The shortest route to justice is for them to say he must have foreseen killing this person in the toilet and Masipa/Roux are wrong that identity matters. Therefore murder unless PPD. And PPD not proven.

What i worry about is they say something like DE applies - but the whole PPD findings are too messed up and we can't fix it (because facts).

Or some other way to wiggle off the hook.

 

[mrjitty]

Even though Nel is going for DE, could the SC judges make a decision of DD? Absolutely appreciate all wonderful comments and insight posted here ... thank you all!

This is a really interesting question.

If the SC accepts Nel's argument that Masipa mishandled all the circumstantial evidence (i.e. that shows he intentionally murdered Reeva) then that kind of verdict is back on the table.

However I doubt the SC would substitute that finding.

I think they would have to order a retrial.

One possibility in that circumstance, is they might just find it easier to tag him for DE so then no need to have a retrial as he is already on the hook for murder.

 

[L2L]

This is a really interesting question.

If the SC accepts Nel's argument that Masipa mishandled all the circumstantial evidence (i.e. that shows he intentionally murdered Reeva) then that kind of verdict is back on the table.

However I doubt the SC would substitute that finding.

I think they would have to order a retrial.

One possibility in that circumstance, is they might just find it easier to tag him for DE so then no need to have a retrial as he is already on the hook for murder.

And if DE is ruled, do you think OP would immediately (within 48 hours) return to prison or would he remain at AP's home until and if a further appeal (Constitutional Court) gets underway? How long would that be likely to take? Years?

 

[cottonweaver]

and yet, i sensed that leach seemed to be saying that the core scenario/actions - knowledge that there is a person behind the door; the person not presenting a threat; the known confined space; highly destructive ammunition; 4 shots - together constituted dd. and so:
1. if op fired through the door knowing it was reeva = dd of reeva
2. if op fired through the door thinking it was an intruder = dd of the person behind the door

which leads me to thinking that the prosecution over-complicated their case. not so?

Yes, and this is what Judge Greenland said in that prog I linked to recently. ( radio sittingbourne, kent , DJ interview link, a few pages back, radio chatter?)
JGrrenland remarked that as he sat on the Carte Blanche he wondered to himself "Am I going crackers? This DD, whoever t is. The court has confused itself over Dolus Eventualis. ( Due to error in objecto, so i completely agree with you sleuth-d.)

 

[L2L]

Yes, and this is what Judge Greenland said in that prog I linked to recently. ( radio sittingbourne, kent , DJ interview link, a few pages back, radio chatter?)
JGrrenland remarked that as he sat on the Carte Blanche he wondered to himself "Am I going crackers? This DD, whoever t is. The court has confused itself over Dolus Eventualis. ( Due to error in objecto, so i completely agree with you sleuth-d.)

Why, then, did a very experienced prosecution not ask for DD? Even I, an old lady(!!), thought I could pick up that that the SC judges would have considered DD!