Post sentencing discussion and the upcoming appeal

[foxbluff]

http://online.wsj.com/articles/state-prosecutors-appeal-pistorius-verdict-1415108448

I just don't understand how Masipa herself will be the judge to decide whether her ruling can be appealed. Can someone help me please?

Chelly, it's my understanding that it's standard procedure in SA High Court. Further, I've read that the High Court Judge (Masipa in this case) grants leave for appeal if s/he believes that the appeal has the chance to overturn her Judgement. If she doesn't believe that the appeal has a chance of overturning her Judgement, then she'll deny leave to appeal. In the latter case, the attorney can then apply directly to the higher (?Supreme) Court. imo

 

[MURDERER_SERVANT]

I have updated 2.1, 2.1.1 and 2.1.3 in Key questions as per my previous post above.

The stark difference in the scenarios is clear:

Gun before gun - the shots that kill Reeva are a rash action at the climax of an escalating argument.

Bat before gun - two deliberate, considered acts of violence directed at Reeva in that Oscar must both fetch and use the bat and then subsequently fetch and use the gun. This is premeditated however you look at it.

I favour the former. There is, of course, a 'Something else before gun' scenario which falls between the above. And Oscar's version.

RE GUN BEFORE GUN THEORY Very similar to MR Fossil 's in his analysis. only putting OP 's helps between two sets of shots ..as per OP's testimony his helps were after the shots but before the bats..

I'm assuming that after finding out something fishy on OP's phone Reeva locked herself with OP's phone to the toilet and argument escalated. Reeva at this point had to have a good reason for the loud bloodcurdling screams other than verbal quarrel imo. OP couldn't make her come out and maybe he told her that he had the gun in his hand and if she didn't come out , he would shoot and to
show her that he really meant that, he shot three times out of the window after which Reeva started terrified screaming as per Stipps testimony. She was too scared to come out ..OP got the bat and bashed the metal plate and started hitting the door breaking the small portion where he could see inside .. (Noone heard those bat sounds. )Reeva saw the gun and shouted Help and that she would call the police .. Things had gone off the rails , he was in rage and fury. He went to the balcony to shout for help as maybe his first version on his mind at that time could be that they were attacked and the intruders shot Reeva putting all the blame on the intruders this time / Or help there is an intruder in my bathroom who after the shots allegedly turn our to be Reeva. The second set of shots came just after that..

 

[Val1]

Even if the name was changed on 0020 it couldn't have been changed on 4949 as Moller removes the SIM immediately, so remote changes would not be possible.

Except for the slight issue of how long it took for Moller to get the phones to start with to be able to do that(days?). I'm sure there was plenty of time by then for CP to have done the synching or whatever it all was that he did, the rest of the time was probably just trying to figure out how to handle it should the knowledge that there was another phone be discovered and then there's the whole needing it to back up some of the key points for the defense story(ie. calls to security, emergency).

 

[Val1]

With regard to Carl Pistorius tampering with his brother's iPhone, was there any need to connect it to his "titaniumhulk" laptop? Why not delete data right off the phone directly?

If he just deleted the Whatsapp messages and whatever, and then changed the password, what would the advantage be with "synchronising" the phone? Several reports talk about synchronising but synchronised with what exactly?

I think he would need to synch it just so he could make sure all OP's contacts and accompanying messages across all his apple products were consistent, otherwise I would think that would certainly be a large red flag. As for any of the messages between OP and RS, you can bet alot of those were deleted and as long as they kept the account hidden long enough the deletions were likely to never be discovered as the server wipes them every so many days anyway, iirc from what Moller had testified to. I believe the ones that were discovered were simply because they had been deleted so were buried in those files and not just on the whatsapp servers or cell memory.

 

[ColonelMustard]

This is one of the easier explanations to understand with respect to the OP and dolus eventualis controversy.

http://constitutionallyspeaking.co.za/category/oscar-pistorius/

,

Thanks, so much IB, for posting this. I read it somewhere here before and wanted to find it again. Had you not happened to post it, I would have had no shot!

Here's a question for the legal eagles among us:

De Vos writes:

During cross-examination Pistorius offered a second defence of involuntary action. If the judge had found that Pistorius had not acted voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”. The judge rejected this argument.

Looking back, would involuntary action have been a better defense for Roux to have used?

1. Oscar seemed most comfortable defending himself this way
2. It would have matched his Tasha's defense
3. He had highly developed fine hair-trigger "muscle memory" for automatic movement (i.e., his years and years of training involved repetitive priming to "go," within a nanosecond - and keep going.

 

[ColonelMustard]

High-profile criminal cases expose inequality in South Africa's justice system
http://www.theguardian.com/world/2014/nov/04/south-africa-crime-oscar-pistorius-wealth-power

Schabir Shaik...served two years and four months of the sentence and was released five years ago because he was allegedly “terminally ill”. He has subsequently been photographed playing golf and allegedly assaulted a man outside a mosque. Five years later, the ‘terminally ill’ Shaik is still alive.

Selebi...jailed for 15 years but released just months after, with the medical parole board saying he was suffering from irreversible kidney failure, a stroke, diabetes, heart and eye disease, and motor function impairment. He has since been photographed shopping, looking healthy.

Modification of the law might include:

- 100% house arrest
- If you're not dead with 6 months, back you go.

 

[ColonelMustard]

The four comments above are from only ONE recent article from ONE media website.

Multiply those same sentiments exponentially across the past 22 months, across South Africa and the world.

Apparently, Websleuthers aren’t the only ones who’ve nailed Masipa’s shell game cold. LOL

If legions of ordinary people (in SA and globally) can instantly decode such clearly biased, irrational, indefensible travesty, I’d say there’s an excellent chance that the SCA will set things right (if for no other reason than to restore the good reputation of common horse sense within the SA Judiciary. LOL). Masipa’s reputation is ruined - it’s doubtful other judges would want to follow suit, not to mention they wouldn’t want to reinforce such a murderous legal precedent.

In the unlikely event that the SCA fails, it will have to explain that dismal failure in great detail to an already highly irate SA public.

Nel and Grant, I have no doubt, would then march right into the Constitutional Court.

Thanks for this, Lux.

Practically-speaking, how might this effect JM, professionally, if she was NOT retiring?

 

[Cherwell]

Was a joke, JJ. See my reply post to Estelle posted before this explaining the whole caboodle in full and explaining why I am not Graham Binge... but you and Cherwell can continue thinking I might be if you like as it gives for a bit more fun ; - )

I never said that.

 

[ColonelMustard]

With regard to Carl Pistorius tampering with his brother's iPhone, was there any need to connect it to his "titaniumhulk" laptop? Why not delete data right off the phone directly?

If he just deleted the Whatsapp messages and whatever, and then changed the password, what would the advantage be with "synchronising" the phone? Several reports talk about synchronising but synchronised with what exactly?

My first instinct would be to synchronize so the information would be available (to analyze later - if needed - for possible value)

I've lost nothing by synchronizing but perhaps much if I don't.

 

[ColonelMustard]

Chelly, it's my understanding that it's standard procedure in SA High Court. Further, I've read that the High Court Judge (Masipa in this case) grants leave for appeal if s/he believes that the appeal has the chance to overturn her Judgement. If she doesn't believe that the appeal has a chance of overturning her Judgement, then she'll deny leave to appeal. In the latter case, the attorney can then apply directly to the higher (?Supreme) Court. imo

Yes, but why? What's the thinking behind establishing that procedure?

 

[ColonelMustard]

Originally Posted by Mr Fossil
I have updated 2.1, 2.1.1 and 2.1.3 in Key questions as per my previous post above.

The stark difference in the scenarios is clear:

Gun before gun - the shots that kill Reeva are a rash action at the climax of an escalating argument.

Bat before gun - two deliberate, considered acts of violence directed at Reeva in that Oscar must both fetch and use the bat and then subsequently fetch and use the gun. This is premeditated however you look at it.

I favour the former. There is, of course, a 'Something else before gun' scenario which falls between the above. And Oscar's version.​

While I, generally go with Bat before Gun, I've realized that's based on my assumption that he went and fetched the gun.

If he was wearing his gun the whole time, I could absolutely see Gun before Bat as a possibility.

 

[Val1]

While I, generally go with Bat before Gun, I've realized that's based on my assumption that he went and fetched the gun.

If he was wearing his gun the whole time, I could absolutely see Gun before Bat as a possibility.

Yet many of those who stand by gun first use that same argument against him having used the bat first.... yet the bat was more available to him than the gun supposedly holstered and hidden underneath his bed. Personally I think RS had probably gone down for a snack(perhaps saw a msg on OP's cell while there) and OP woke, grabbed his bat(which RS would have had to have moved from wedging the door, according to OP) and went looking to see what the disturbance was... they argued and he came chasing after her as she tried to get her stuff and leave(see unexplained bruises), she ran to the bathroom slammed open the window and called for help then as OP came after her slamming the crap out of the room with the bat and mocking her, she closed herself up in the toilet room hoping he'd calm down after his tirade but instead he locked her in there and went and got his gun. After all, if he confronted a cop about daring to touch his "private" handgun, he probably was just as protective and secretive about his "private" cellphone especially if he had reasons for RS to not see who he'd been talking to or whose pics were on it and we all know he had no qualms about firing his gun over that incident.

 

[JudgeJudi]

The decision by Pistorius' team to oppose the appeal means Judge Masipa will have to hear arguments from both sides, which will take more time than a regular appeal procedure - See more at:

http://www.straitstimes.com/news/wo...ormally-oppose-verdict-jail-sentence-appeal-2

 

[JudgeJudi]

David Dadic @DavidDadic · 15h 15 hours ago

Just going through the responses to my Pistorius appeal opposition tweet from earlier. Some people actually believe Roux working pro bono.


David Dadic @DavidDadic · 15h 15 hours ago

I'm not one of them.

 

[lithgow1]

http://www.abc.net.au/news/2014-11-...-oppose-prosecutors-appeal-of-verdict/5876500

In terms of the State needing to 'convince her another court could reach a different verdict' surely Masipa would have no choice but to green light an appeal. She herself said that his actions bordered on dolus eventualis and also that he was a poor witness and his story was 'unusual' (can't recall her exact wording on that). Given those words of hers, I don't see how she could plausibly, or even possibly, deny that another court may come to a different conclusion. From my understanding, using her summation of Pistorius as a witness another court could have rejected his testimony entirely. Seems to me that her own wording in delivering her verdict and sentence now leaves her no choice but to OK an appeal but am interested to hear anyone's ideas as to why I might be off the mark with this line of thinking.

 

[Mr Fossil]

With regard to Carl Pistorius tampering with his brother's iPhone, was there any need to connect it to his "titaniumhulk" laptop? Why not delete data right off the phone directly?

If he just deleted the Whatsapp messages and whatever, and then changed the password, what would the advantage be with "synchronising" the phone? Several reports talk about synchronising but synchronised with what exactly?

In my experiment to change the WhatsApp data sender/receiver, time and content I needed to access one of the files (the WhatsApp database) that was backed up on my PC after I'd sync'd my phone with iTunes. Then it would have been a simple matter to restore the phone from the revised backup and replace the WhatsApp file in doing so. The only problem I had was that the date and time stamp on the file I'd amended changed but I found that there are tools to fix that if I'd wanted to. So what he did is consistent with how I had figured doing it myself. Maybe it worked or maybe he cocked it up. See 1.5 'What is the significance of the Cousin Binge WhatsApp exchange' in Key questions for more background.

 

[Mr Fossil]

Except for the slight issue of how long it took for Moller to get the phones to start with to be able to do that(days?). I'm sure there was plenty of time by then for CP to have done the synching or whatever it all was that he did, the rest of the time was probably just trying to figure out how to handle it should the knowledge that there was another phone be discovered and then there's the whole needing it to back up some of the key points for the defense story(ie. calls to security, emergency).

Moller received the phone on 15 Feb. It was not connected to the network when it left OP's house. See Phone usage charts.

Botha testifies at the bail hearing that he had checked Reeva's 5353 phone and Oscar's 4949 phone and neither had made calls. We know that he accessed Reeva's phone when Sam Greyvenstein entered the Passcode for him. Did Oscar provide the passcode for his 4949 phone at the scene?

I surmised in an early dialogue with Moller that it wouldn't have surprised me if the 4949 phone was also left overnight in Airplane mode (and had been found in that state) rather than switched off. If Botha accessed the phone prior to 08:00 then this supports the view that it must have already been switched on and in Airplane mode because there is no signal shown in the usage charts.

 

[Mr Fossil]

I think he would need to synch it just so he could make sure all OP's contacts and accompanying messages across all his apple products were consistent, otherwise I would think that would certainly be a large red flag. As for any of the messages between OP and RS, you can bet alot of those were deleted and as long as they kept the account hidden long enough the deletions were likely to never be discovered as the server wipes them every so many days anyway, iirc from what Moller had testified to. I believe the ones that were discovered were simply because they had been deleted so were buried in those files and not just on the whatsapp servers or cell memory.

All WhatsApp messages to and from OP were taken from Reeva's phone. They are kept on the phone for as long as you don't delete them (or could be recovered if deleted and the space had not be reallocated). I have never deleted any messages on mine, and they go back years. The message numbers would tell us if any were missing.

 

[ckra1000]

RE GUN BEFORE GUN THEORY Very similar to MR Fossil 's in his analysis. only putting OP 's helps between two sets of shots ..as per OP's testimony his helps were after the shots but before the bats..

I'm assuming that after finding out something fishy on OP's phone Reeva locked herself with OP's phone to the toilet and argument escalated. Reeva at this point had to have a good reason for the loud bloodcurdling screams other than verbal quarrel imo. OP couldn't make her come out and maybe he told her that he had the gun in his hand and if she didn't come out , he would shoot and to
show her that he really meant that, he shot three times out of the window after which Reeva started terrified screaming as per Stipps testimony. She was too scared to come out ..OP got the bat and bashed the metal plate and started hitting the door breaking the small portion where he could see inside .. (Noone heard those bat sounds. )Reeva saw the gun and shouted Help and that she would call the police .. Things had gone off the rails , he was in rage and fury. He went to the balcony to shout for help as maybe his first version on his mind at that time could be that they were attacked and the intruders shot Reeva putting all the blame on the intruders this time / Or help there is an intruder in my bathroom who after the shots allegedly turn our to be Reeva. The second set of shots came just after that..

BBM - I'm not sure why he would draw the neighbours attention to the house before he shot Reeva. He's lost control of the situation once he has alerted the neighbours. He would be taking a risk that neighbours may come to the house before he was ready or that the neighbours would now be awake and hear much more. IMO.

 

[ckra1000]

,

Thanks, so much IB, for posting this. I read it somewhere here before and wanted to find it again. Had you not happened to post it, I would have had no shot!

Here's a question for the legal eagles among us:

De Vos writes:

During cross-examination Pistorius offered a second defence of involuntary action. If the judge had found that Pistorius had not acted voluntary he would be entitled to an acquittal if his actions were attributable “to mechanical behaviour or muscular movements of which he was unaware and over which he had no control”. The judge rejected this argument.

Looking back, would involuntary action have been a better defense for Roux to have used?

1. Oscar seemed most comfortable defending himself this way
2. It would have matched his Tasha's defense
3. He had highly developed fine hair-trigger "muscle memory" for automatic movement (i.e., his years and years of training involved repetitive priming to "go," within a nanosecond - and keep going.

At a push, he may have got away with involuntary action on one shot, but I think it would have been impossible to argue four involuntary shots.