Trial Discussion Thread #29

[Greater Than]

No, it's not the definition of putative self defense.

Please define it then.

 

[minor4th]

Please define it then.

Ok, but first I'm taking a break from the computer so that I may feed and interact with my family

 

[TorisMom003]

OP's defendant behaviour is uncharacteristic. It's as simple as that.

Uncharacteristic means not typical

Several cases that you may have seen out of the hundreds of thousands of defendant cases does not make OP's actions become typical.

I believe that is wrong. Check out any of the numerous cases here on WS, especially those that are guilty, they all write notes and participate in their defense. What OP has been doing is not uncharacteristic at all.

I'm more than happy to make a list of names of those that have done this if need be.

MOO

 

[Val1]

Oh, that guy was the contractor? I didn't know that - or had forgotten it. So, do we know whether or not he will be called by the defense?

Actually when I said contractor, I really meant the painter who could testify about whether he removed the security beams or not. Although I guess it doesn't really matter so much since Oscar's testimony is that he himself didn't know.

Sorry for replying so late, family needs to eat, who knew it! Anyway, at this point I'm not sure even Roux has decided who he's going to call, the defense seems to be a bit fluid and after Dixon... :/

 

[steveml]

I believe that is wrong. Check out any of the numerous cases here on WS, especially those that are guilty, they all write notes and participate in their defense. What OP has been doing is not uncharacteristic at all.

I'm more than happy to make a list of names of those that have done this if need be.

MOO

If you're forming a court statistic based on the amount of cases on WS there's really no point.

In Oct-Dec 2012 in the UK there were 37,949 trials (in 3 months). If you believe that the defendants in more than half of these cases took notes, passed notes and were heavily involved with defending of their case to the extent that OP is, then I will agree with you that OP's actions are typical.

If not, then I think we can safely say that OP's actions were uncharacteristic.

 

[shane13]

BBM. Not only credibility but also reliability in my opinion.

I have corrected that.

It is re-lie-ability.

 

[Cherwell]

Maybe because he was able to identify the sound as the window opening, and went straight into freeze fight or flight mode. In previous occasions perhaps he was unable to identify where the sound was coming from or what the sound could be. As for the other three couples speaking to one another, they were not in the same state of mind as OP, the sounds they were hearing were coming from someone else's house not their own. I am confident they would have reacted differently if the noise was in their own house, so they were not experiencing a life or death situation that OP believed he was facing. Also we do not always react in exactly the same way to similar situations at all times. We are all different . BTW I am not a supporter of OP and I do not feel I am defending him either. In this particular case the evidence is not as black and white to me as it seems to be for the majority.

Thank you for your answer. I still find it extraordinary that he would not turn to Reeva on hearing the noise. A window being opened could well be a harmless action by his house guest, it's not as though it was the sound of a window being broken.

I don't agree that the other couples "would have reacted differently if the noise was in their own house". I think the natural, instant reaction is to seek reassurance or confirmation: "did you hear that?" Lots of forum members have said on these threads that that's the first thing they do if they hear a noise. Different if one is alone in the house, of course.

 

[liesbeth]

Ok, just because Nel wants to argue that intending to shoot and kill an armed intruder is the same as intending to shoot Reeva, that does not make it true. That is a fallacious argument and will not be the basis for a murder conviction.

Note Nel also refers to Oscar shooting "a helpless unarmed intruder" or words to that effect, but it's Oscar's testimony that he believed it was an intruder who was about to attack him. Nel would have us believe that a totally innocent and well-meaning person snuck in to Oscar's upstairs bathroom merely for the purpose of trespassing and nothing else. That's absurd on its face.

Not in this country. There are many AIDS orphans who roam the streets looking for something to eat.

 

[liesbeth]

I'm not sure about the premeditation - I think that has to be proved in this phase, and there's not a separate phase to determine premeditation.

Franaaz Khan, an attorney and a criminal law and commercial law lecturer at the University of KwaZulu-Natal says that South African law does not recognise a charge called “premeditated murder”, the fact that it was premeditated can be used in court as an argument in aggravation of sentence.

Intention can be formed at the instant of committing the crime and does not imply or necessitate any degree of forethought or planning on the part of the accused.

"Our courts have suggested that one would have to examine all the circumstances surrounding any particular murder, including not least the accused’s state of mind. This will allow one to arrive at a conclusion as to whether a particular murder is planned or premeditated,” said Khan.

“Planning and premeditation have long been recognised as aggravating factors in the case of murder, and thus section 51 of the Criminal Law Amendment Act was enacted in an effort to remedy increasing crime rates, increased public dissatisfaction with the criminal justice system and to decrease sentencing disparities,” she said.

Section 51 dictates that a life sentence applies to murder when the offender planned or premeditated the murder.

“Our law suggests that planned criminality is more reprehensible than unplanned, impulsive acts.

“However, there must be evidence that the murder was indeed premeditated or planned,” said Khan.

http://www.iol.co.za/dailynews/opinion/expert-clarifies-premeditated-murder-1.1573253

My apologies if this has been posted before.

 

[wb180]

For me, murder charge has already satisfied if we actually read the wording of the charge. Coupled with the weak arguments of self defense, OP should be spending sometime in jail.

 

[Val1]

Just to clarify, Christo Menelaou is not OP's next door neighbour. IIRC, somewhere in that article he says he drove round to OP's house that morning.

Also, on the plan that has been posted several times, the next door neighbours on both sides are named and they all appeared in the witness list. It will be interesting to hear what they have to say if they appear.

I wonder also if OP's housekeeper and gardener have anything to contribute.

His window looks out onto an empty plot and Olympic and Paralympic athlete Oscar Pistorius’ house.

http://drum.co.za/celebs/hes-heartbroken/

 

[Hope4More]

Thanks. Just to clarify then, what one reasonably possibly believes must correspond to some degree with what society in general believes. So it must correspond to some degree to what any reasonable person would be perceived to believe. That does make sense and seems like a reasonable standard to apply to Oscar.

What a reasonable person believes....There's the rub. I live in an American city that routinely ranks in the top 10 for number of murders and violent crime. Home invasions during the day are fairly common in my neighborhood, as are break ins, car thefts, etc. Police sirens and strobe lights from police helicopters chasing down thugs are also routine. (BTW, I live in a middle class neighborhood mostly populated with academics, attorneys, and political progressives).

Because of where I live I can believe and accept that OP feared intruders, regardless of his gated community and security systems. His fear is made more believable by the fact that he has a history of hearing sounds in his house and leaping to the conclusion the sounds were made by intruders.

IMO, if he wanted to spin the best possible lie, he would have said that Reeva did not wake up when he got up to bring fans in, etc. Having her be asleep would make it more believable that he thought she was still in the bedroom when he heard a noise in the bathroom.

Jumping from point to point, but they are all linked.... I don't think OP was especially in love with Reeva. I think that they may well have argued that night, and that in any case there was little genuine intimacy that night that bound them together. That matters, because I think emotional detachment readily explains how it could be that OP heard a noise in the bathroom and zeroed in on the perceived threat without reassuring Reeva or making contact with her.

Shooting into a closed door. I no longer believe OP thought Reeva was behind that door, nor do I believe OP that he shot to protect Reeva. I think that OP freaked and that shooting a gun in response came naturally to him. In OP's mind the threat was real and immediate and shooting at it was reasonable.

OP didn't treat Reeva well, IMO. But it is equally true that there is no evidence whatsoever that he was physically abusive to Reeva or to any other woman he was ever involved with. He had everything to lose and nothing to gain by hurting Reeva, and no pattern of behavior that would indicate an escalation to extreme violence, much less murder.

He screamed for help minutes after shots were fired, and called for help as well. Not the actions of a man trying to hide anything at the time.

His unwillingness to accept full responsibility for killing Reeva may do him in. However revolting that unwillingness is, though, doesn't mean he is guilty of premeditated murder.

 

[Forensics]

http:// http://criminallawza.net/2014/04/08/the-perplexing-problem-of-proof/"]http:// http://criminallawza.net/

Criminal law professor James Grant sent me this today, when I asked if the defence could discredit the 3.00 am bangs as not the bat/shots then would the screaming be discredited too. How would they manage it.

He said its mainly the screaming that's fatal to Oscars version. Not the bat/gun sounds etc etc

I haven't read it yet, bit over my head.

If it doesnt work then I guess Google it. I'm not good as this!

In this article, Professor James Grant says.... "For me this gives rise to a crucial question: Why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?

My take on this is that he is willing to mislead the court at any cost rather than testify to anything he perceives to be detrimental to his case... even if he has to change his testimony ad hoc on the stand (tailoring evidence). This troubles me greatly. I have been willing to keep an open mind regarding the events of that night but his histrionics, avoidance of contentious questions, along with variations to his testimony detract from the veracity of his version. Furthermore, his pleading of not guilty to the minor charges (which I think have been proven) further undermine his credibility on the whole.

The defence is not yet through its case, so I have not conclusively made up my mind. It's just that I am becoming less sure of his innocence as the case proceeds. Whether he is indeed found guilty of murder based on the evidence to date is another matter.
:banghead:

 

[Forensics]

I don't know - maybe? What SA crim law professor and at what point did he say that OP definitely changed his defense?

He is Prof James Grant PhD (Criminal Law), Associate Professor of Law, University of the Witwatersrand, Johannesburg, SA.

This is his blog:

http://criminallawza.net/

 

[K.T]

I posted this before, but as with the writing of Professor Grant, Pierre des Vos, and a bunch of other quotes from a variety of legal experts in South Africa there is a lot of information out there about thecharges in Pistoirus case.

If you want more clarity, I would suggest its best to just read about what they are saying rather than rely on interpretations of the law here.

I'll post a few more of these type articles too if I get time, but SA lawyer David Dadic's blog post is fairly clear and perhaps easier to understand for many:

http://whosyourdadic.com/

Murder - Dolus Directus:

I would think that, if anything, premeditated murder would fall within this category as it’s defined as the crime of wrongfully and intentionally causing the death of another human being after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension (I’m still to be convinced that this crime actually exists in SA). So, it’s not necessarily the planning of committing the crime beforehand, but can also be the calculated strategy in avoiding prosecution. So, is there evidence of this crime I hear you shouting? Well the State has lead some evidence that he intended to kill Reeva and had motive to do so, namely: screams of hers as heard by neighbors before and during shooting, text messages of alleged problems in their relationship and timing between bullets where he could have stopped but continued to fire. But most importantly I think is the evidence they will try show that he is lying under oath in an attempt to avoid prosecution i.e. the strenuous cross examination of his version.

Murder - Dolus Eventualis

I would suggest the evidence lead in this regard comprise the following: firing four bullets into a confined area, using black talon bullets, distance from the door when shooting, type of firearm used. It’s important to understand that in this crime, the identity of victim and existence of motive are not in question, what is in question is whether the conduct itself and the way it was done suffices as in intent to kill. Also it’s said that the more the combined objective factors point in the direction of foreseeability the more the existence of subjective intent.

Culpable Homicide

But this reasonable man test doesn’t lie in isolation, one must still look at certain subjective factors relating to the accused himself which could elevate or decrease his reasonability. In this case Oscar is a certified and licensed firearm owner, which comes from writing certain formal tests where he was given exact violent or possibly violent situations, and asked how he would react in each situation. So, he is no longer tested as simply the reasonable person but rather as the “reasonable gun owner”. Would other reasonable gun owners have done the same thing? The evidence of Sean Rens relating to the gun tests taken by Oscar obviously set up the state’s case in this regard.

In my opinion he has moved beyond of the Culpable Homicide charge and is in the Murder - Dolus Eventualis charge. I think this from the evidence so far - will analyse further if the defence case can bring reasonable doubt or new evidence into play.

Prior to the trial there were legal experts discussing (as an intellectual exercise not in any way to affect the court and in very measured with caveats ) if Pistorius case was already guilty of CH just by his Bail Affidavit.

Now that the trial is halfway the discussion has changed quite dramatically.
As I said in a previous post, there are some discussing the case with the argument for Murder - Dolus Directus (of course all would say the trial is not over, there may be new evidence etc etc.) because of his damaged credibility from the stand.

The strongest element for defence was Pistorius testimony. Now, his apparent lying, blame shifting, definite inconsistencies, vagueness of defence, argumentative and evasive demeanor coupled by his seeming use of emotions as a legal crux is seen as highly damaging by many experts.

Innocent people and alleged criminals often lie on the stand or make mistakes/have selective memory.

Think of the problems of abuse victims who face their alleged attackers and even though they may be suffering from PSTD or fear, and yes the majority of their cases are thrown-out as they are seen as unreliable or an inconsistent witnesses.

Pistorius has gone beyond a few omissions and singular lie and the defense team really appears to have so many problems right now.

 

[Linda7NJ]

Again I haven't read anyone that believes Oscars testimony is gospel. If events occurred much as he said they did I believe his testimony would have been much as it was, given our limited knowledge of him. I do not think he is capable emotionally/mentally of accepting that he killed Reeva even accidentally.

Mentally accepting is IMO different from refusing to accept responsibility for his actions. It's not because he can't, it's because he doesn't want to. IMO

There certainly is a pattern of that.
My personal favorite...the magical self firing gun!


Sent from my iPhone using Tapatalk

 

[Apollo]

Does anyone recall the measurements of the bathroom window that the phantom intruder was suppose to have climbed through?

 

[liesbeth]

Thank you, K.T. Good post.

O.P. admits that he pulled the trigger. He admits he intended to kill the person behind the door.

So let's suppose there really was an armed intruder behind the door. Or an orphan looking for something to eat or his father coming to stash some more ammo or...this could go on and on because it could have been anyone behind that door. He didn't know because he didn't switch on the bathroom light to look. And he didn't ask either.

Even though he knew Reeva was with him in the house he didn't know where she was before he shot because again he didn't switch on the bedroom light to look or ask her where she was either.

All this because it was dark. He was on his stumps. He heard a noise. He was scared.

Never mind that any reasonable man would have assumed it was his lover in the toilet.

Never mind that he has been trained to find an intruder in the house (to clear the house, code red training). Never mind that he knew the laws for shooting and not shooting someone. Never mind that this scenario has played itself out twice before and he didn't panic on either of those occasions. Never mind that he grew up on stumps. Never mind that he is not only a Para-Olympian- but an Olympian athlete. Never mind he lived in a high security estate with almost no crime.

And just forget that he left the door open while he slept that night and forget that he didn't care enough to check if the outside alarm censors worked before he went to bed.

Somehow that night was special. And when he heard that noise he forgot his training and he forgot about Reeva's safety. He forgot he had a panic button.

He forgot everything. Because he was scared. So scared that he even forgot to run away.

How is this possible?

 

[nastasya]

Does anyone recall the measurements of the bathroom window that the phantom intruder was suppose to have climbed through?

Why don't you just make up the size to fit your version of what you want people to think happen.

Then if they question you, just say you don't know why you made it up, or you don't remember, or that you didn't have time to think.

 

[Val1]

BIB 1

I think it had more to do with vanity, quite honestly. After all, the one person who decides his fate could see his body language.

BIB 2

Adrenaline. He may have puked later once that left his body. Or not. I felt his extreme puking in court had more to do with nerves and confrontation with his own psyche. No one is all evil, just as no one is a pure saint. I do think some of his remorse is genuine. I'm not in the camp that believes this was an execution or well thought out murder. I've maintained all along that I believe it was fueled by rage and he snapped while holding his gun.

Hmm any guesses as to what this display of body language says?

http://www.dailymaverick.co.za/article/2014-04-16-pistorius-trial-week-6-day-3/