Trial Discussion Thread #40

[DebinGA]

Defense witnesses in chronological order:
Jan Botha (pathologist)
OP (killer)
Dixon (Renaissance Man)

Mr. MN (next door neighbor-heard man crying loudly)
Mrs. MN (heard man crying loudly)
Mrs. __ (another neighbor-heard man crying loudly)

Ms. ___ (social worker, witness-wannabe)
Dr. Lungren (anesthesiologist-never asked quantity of food residue)
Wollie Wolmarans (ballistics expert-never spoke to OP)
Dr. Vorster (last minute psych addition)

Was there another witness after Dixon but before Mr. MN? Any other witnesses I missed? Seems like a very odd lineup Roux provided imo, especially WW with his language and hearing difficulties when an equally qualified ballistics expert (Jannie van der W) was on the team.

 

[Hope4More]

Could you , respectfully , elaborate as to why not?

In H4M version (sorry still trying to figure out how to multiquote!) he shoots to eliminate the threat.

That to me is intending to shoot at a perceived intruder still, with intention to.

Thank you in advance for the reply

A very interesting read on the history of Dolus Eventulis in SA courts:

"The Concept of Dolus Eventualis in SA Law" reference.sabinet.co.za/

Succinct summary: Both elements of DE must be proven by the State:

1. a cognitive component. That OP had foresight of the possibility of great harm {not necessarily of death}.

2. a volitional component. That OP acted with a recklessness that suggests he was indifferent whether or not death would result from his actions.


The article focuses on the cognitive component, on foresight. According to this article, since the 1940's SA courts have moved from an objective notion of foresight to a subjective notion of foresight. Hang in there! This is relevant.

Objective foresight meant that the State only had to prove that a reasonable person in the situation would have acted differently. The reason for that standard is obvious....how much easier it is to define a standard and apply it.

Subjective foresight is the standard instead, and what Nel must prove. To do that he must prove that OP had "actual" foresight that his actions could result in another's death.

That is a very difficult burden of proof. The second element of DE, recklessness, is IMO, has been proven. The first? Not yet. The psych eval and how it is handled IMO is pivotal.

 

[G.bng]

Here are your exact words;

Psychiatrists are physicians they take the Hippocratic Oath. If you think that anyone in the mental health field will treat Oscar as Nel did you are simply mistaken. What you are suggesting would be the willful harming of a human being by mental health professionals.

Mental health professionals that are not doctors also have the moral and legal obligation to not harm patients/clients in their care.

It is a simple case of morality.

Agreed absolutely, a simple case of human and professional ethics.

 

[patCee]

Sorry if this has already been asked, but what's to stop OP taking medication before each visit with psychiatrists? If he's an outpatient, he could take stuff that would relax and keep him calm (rather than being his usual argumentative self), and as such, surely this would result in a 'fake' OP being evaluated, rather than the real non-medicated one.

Seems to me that the Cipralex isn't working well anyway, judging by his performance during the trial. I assume he was still taking it when he met with Dr V and she still thought his GAD was increasing and that he could be dangerous with a gun. I can see your point though.

 

[jay-jay]

I am pretty sure he was being treated for depression and anxiety before he met Dr Vorster. The reason I think he testified about it is because I thought he said he was medicated and maybe even listed his medications. I remember thinking ...well that explains why he looks and acts like a zombie sometimes in court.

I could be wrong but that's me recollection and I'm not going back to listen and confirm

Besides, I'm not really sure how this is relevant to anything going on now ?

He definitely did testify that, I remember him saying what medication he was on, too .. but, he was talking about since he killed Reeva, not before.

 

[jay-jay]

If OP is denied preferential treatment for the psyche assessment (i.e moved to the front of the cue), this case could be in for a very long adjournment.

If Mannie Witz is correct, the assessment cannot be done on an outpatient basis. No wonder Roux fought the decision so vigorously.

I cannot see OP coping with a long stay in a mental institution. He may just flip out when the order is finalised on Tuesday.

He will deffo have to be put on suicide watch, imo.

 

[CriLondon]

No worries and thanks for the reply. I see your points re the complete picture and it would have been very interesting and probably illuminating to see OP on the stand, especially your thoughts, but we didn't - but there's the psych report to look fwd to!

I know you weren't saying anything about this next bit but it sort of ties in and that's that I find it a bit odd when people complain about adjournments etc (happens much more on my lurker forum) especially when the break is unavoidable in the interests of a fair trial, such as Nel needing time to look over reports he's just been given and consult with his experts etc. Some people, and again not really here, moan about having to wait to 'see more'. I can't deny some of the breaks don't disappoint me but like just about everyone here I see why they are needed. I'm rambling a bit really but it all sort of ties in with some people seeing this as something that should proceed at the pace they want it to. If they want real reality TV then they just have to accept reality doesn't move at Law and Order's speed and quit moaning about it. Again, definitely not yourself or anyone I've had the pleasure to encounter here - just a wider observation.

PS Not trying to sound lofty BTW - I do find the whole thing very interesing and by extension entertaining.

I'm glad i managed to clarify what i meant!

I just highlighted a couple of things you mentioned and part of the first highlighting is answered in some way by your PS.
I think that when we start to find this much interest in something (in the specific this trial) we then get so absorbed , that we ask questions whilst we start to formulate our own thoughts and so forth...
That , i believe , creates some tension and we "need" things to move on so that we can finalize , in our mind, the whole matter.

I'm finding that , overall , things move relatively fast.
i believe that the breaks that have happened were inevitable , especially the very last one.
But the again , i was born in Italy and started to follow cases and trials there before i moved to the UK....believe me if you will , this trial is going at amazing speeds compared to what i was used to....
One example: Meredith Kercher/Amanda Knox

 

[Hope4More]

On solely a legal basis, shooting with intention to kill a perceived intruder is indeed murder, until and unless a putative self-defence claim is proven which, in effect, absolves him of the intent required to establish murder. For that reason, he'll be aqcuitted of murder if his claim is believed.

His testimony alone doesn't prove putative self-defence in my opinion. However, ironically, in most self-defence cases in South Africa usually the accused's testimony is, in of itself, sufficient to show state of mind. Considering that, it's very telling just how bad Oscar's testimony really was that the defence felt compelled to bolster it with psychological testimony.

And, a putative self-defence claim cannot be used to any success, regardless of facts, if the accused kills an intruder while they are in the act of fleeing the premises. That Oscar shot through a closed door may be enough on its own to negate his claim.
JMO

The State has the burden of proof, as you know. OP doesn't have to PROVE that he didn't have intent to kill. His defense just needs to raise reasonable doubt as to his state of mind when he fired those shots.

IMO the psych eval will be a wash.....reasons to believe he had intent, reasons to believe he didn't have that capacity, given x yz mental problems.

i place my bet again on a finding of culpable homicide.

 

[CriLondon]

On solely a legal basis, shooting with intention to kill a perceived intruder is indeed murder, until and unless a putative self-defence claim is proven which, in effect, absolves him of the intent required to establish murder. For that reason, he'll be aqcuitted of murder if his claim is believed.

His testimony alone doesn't prove putative self-defence in my opinion. However, ironically, in most self-defence cases in South Africa usually the accused's testimony is, in of itself, sufficient to show state of mind. Considering that, it's very telling just how bad Oscar's testimony really was that the defence felt compelled to bolster it with psychological testimony.

And, a putative self-defence claim cannot be used to any success, regardless of facts, if the accused kills an intruder while they are in the act of fleeing the premises. That Oscar shot through a closed door may be enough on its own to negate his claim.
JMO

Absolutely but you're talking about the actual case , whereas my question to elaborate was to a "not murder" answer given by another poster to a hypothetical scenario put forward by Hope4More.
Maybe that got confused ?

 

[jay-jay]

SADAG's operations director has spoken out about how people affected by GAD in SA are becoming concerned about stigma after 'recent events'.

What a shame. That's the last thing they need.

http://www.sabreakingnews.co.za/2014/05/16/oscar-trial-know-the-facts-about-gad/

Absolutely! I was thinking that the other day, that it is unfair on people with GAD to have this condition being associated with the capacity to kill. OP may or may not have disorders such as GAD or NPD or whatever, but it's that old thing where the majority of people who have these disorders do not actually kill, and yet a killer themselves will quite often have one or more (or a combination of) such disorders.

 

[BritsKate]

Intending to shoot an intruder and dolus eventualis are separate legal issues.

One necessitates intent be absolved via an affirmative defence for an acquittal - the killing becomes justified and is no longer legally murder - while the other relies on the reasonable person test to establish intent required to prove murder, because such intent isn't already in place (as it would be if Oscar specifically intended to kill anyone).



Please pardon errors as posted via Tapatalk with a less than stellar user.

 

[CriLondon]

Hi. No worries Thank you. My opinion is the scenario alludes to CH rather than intentional murder.

Thank you !

The only problem i have with that is that in H4M's hypothetical scenario OP shoots i quote "hoping to eliminate the threat".
I still see that as shooting at a perceived threat and shoot to eliminate that threat.

Hoping to be successful don't think can be taken into consideration the moment one shoots to eliminate.

Just my opinion , thank you !!

 

[BritsKate]

Intending to shoot an intruder and dolus eventualis are separate legal issues.

One necessitates intent be absolved via an affirmative defence for an acquittal - the killing becomes justified and is no longer legally murder - while the other relies on the reasonable person test to establish intent required to prove murder, because such intent isn't already in place (as it would be if Oscar specifically intended to kill anyone).

Because with dolus eventualis, of course, there doesn't need to be intent to kill. Its a determination of whether he could foresee his actions and did he proceed anyway.


Please pardon errors as posted via Tapatalk with a less than stellar user.

Sorry guys. Tapatalk is besting me today. I was trying to edit my previous post to add a definition for eventualis and ended up quoting myself. Grrr..

 

[jay-jay]

Nel didn't give birth to the diminished capacity claim, the defence did when they called Prof V to the stand.

I don't even recall that happening because, iirc, Dr V made it clear that OP would've known exactly what he was doing .. I understood the reason why GAD had been brought into play was to explain his supposed 'hypervigilance', etc, and why he was more inclined to 'fight' than 'take flight'. I don't think that 'diminished capacity' has be brought into it at all, has it?

 

[Hatfield]

A scenario (suspend your disbelief about specifics) and a question.

OP had a bad few days. Reeva comes over totally into VDay, OP not so much. Not a great night and at some point they fight. A lot. OP goes to sleep. Reeva can't. She goes downstairs and gets a snack, then comes back upstairs. OP wakes up and is angry all over again. They fight again, this time more intensely. Reeva considers leaving, but hasn't decided for sure. Both are tense. OP gets up to do whatever.. move fans, go on balcony, go downstairs... whatever. ( Yes, I know what he said he did, but since y'all think he lied about everything, why believe what he said he did here?)

Continuing. Reeve slips out of bed and goes to the loo. She may have decided to leave, or maybe she just had to pee. In either case she's quiet on purpose because she doesn't want the fight to escalate any further.

OP hears a noise in the bathroom. He is already enraged, has not let go of the fight. He doesn't check for Reeva. His first thought isn't protecting her, its that a SOB might be in his house.

He's angry - very - but he also is feeling vulnerable. Not afraid, but vulnerable because he is at a physical disadvantage. Just reality of the matter, and part of the reason he feels compelled to compensate for that disadvantage by always reaching for a gun.

The thought of pushing the panic button or running the other way never occurs to him. It doesn't because response to the panic button isn't instaneous, because if he turned his back to flee he might be overtaken, because he is OP, who isn't going to back down, and because his reasoning is already impaired by rage, increased exponentially by his perception that an intruder dared to threaten him.

He grabs his gun, runs down the hallway screaming get the f out. Reeva has no idea what's going on and stays silent. OP hears her move, perhaps she reaches for the door handle. He doesnt fire a warning shot because it never occurs to him to do so, not because he's afraid of a richocet.

He shoots once. The noise is deafening. Literally.

He doesn't hear her scream because of the deafening noise. He is also literally pumped on adrenaline, and furious. He pauses for a brief moment because the noise hurts his ears, and because the temporary loss of hearing increases his anger and his fear. He fires 3 more shots. He fires them knowing that he is firing them, and yes, hoping that the shots will eliminate the threat. He isn't trying to kill whoever is behind the door, but he knows enough even in that mental state that he is very likely to cause them serious injury.

Given that scenario ......(please don't argue about the details...its only a scenario) ....do you think he should be found guilty of murder?

IMO
If I go with your scenerio, YES, I would still convict him of "culpable homicide" because of the part I highlighted which is basically wrong what you indicated there.

He had gun training and any responsible gun owner absolutely knows that by firing shots at what he believed to be a person behind that door will likely KILL that person. There is no ifs/ands/or buts about that part.

Anybody and especially him with training would know that it is a lethal weapon he has and by firing shots at the person behind the door the likely result is DEATH (not just injury).

He is culpbable because even if he made a mistake of thinking it was an intruder, he is still culpbable of that mistake. Its no different than if the senile old lady came to his house thinking it was her house and went to use the bathroom and he killed the old lady. Or the drunken neighbor kid that used his bathroom (this actually happened in another case----we may be able to find the court resolution of this).

For me personally, i just dont believe his story and so I would convict based more on what I feel his lying testimony but if we go with your scenerio and believe him then to me its just a culpable homicide due to his mistake of the identification of the person. It is an interesting topic of discussion and that is why this case is so fascinating.

 

[CriLondon]

A very interesting read on the history of Dolus Eventulis in SA courts:

"The Concept of Dolus Eventualis in SA Law" reference.sabinet.co.za/

Succinct summary: Both elements of DE must be proven by the State:

1. a cognitive component. That OP had foresight of the possibility of great harm {not necessarily of death}.

2. a volitional component. That OP acted with a recklessness that suggests he was indifferent whether or not death would result from his actions.


The article focuses on the cognitive component, on foresight. According to this article, since the 1940's SA courts have moved from an objective notion of foresight to a subjective notion of foresight. Hang in there! This is relevant.

Objective foresight meant that the State only had to prove that a reasonable person in the situation would have acted differently. The reason for that standard is obvious....how much easier it is to define a standard and apply it.

Subjective foresight is the standard instead, and what Nel must prove. To do that he must prove that OP had "actual" foresight that his actions could result in another's death.

That is a very difficult burden of proof. The second element of DE, recklessness, is IMO, has been proven. The first? Not yet. The psych eval and how it is handled IMO is pivotal.

Thank you , it is an interesting read.
IIRC Nel got OP to admit that he discharged his firearm at what "i perceived as somebody coming out to attack me" so effectively at what he perceived as an intruder.
As to whether he could foresee the possibility of causing great harm , I think Nel tried to cover that whilst finalizing his cross-exam and asking OP who should be held responsible for the black talon ammo he used.
Implying that the type of ammo do cause great harm.

JMO

 

[Nausicaa]

A very interesting read on the history of Dolus Eventulis in SA courts:

"The Concept of Dolus Eventualis in SA Law" reference.sabinet.co.za/

Succinct summary: Both elements of DE must be proven by the State:

1. a cognitive component. That OP had foresight of the possibility of great harm {not necessarily of death}.

2. a volitional component. That OP acted with a recklessness that suggests he was indifferent whether or not death would result from his actions.


The article focuses on the cognitive component, on foresight. According to this article, since the 1940's SA courts have moved from an objective notion of foresight to a subjective notion of foresight. Hang in there! This is relevant.

Objective foresight meant that the State only had to prove that a reasonable person in the situation would have acted differently. The reason for that standard is obvious....how much easier it is to define a standard and apply it.

Subjective foresight is the standard instead, and what Nel must prove. To do that he must prove that OP had "actual" foresight that his actions could result in another's death.

That is a very difficult burden of proof. The second element of DE, recklessness, is IMO, has been proven. The first? Not yet. The psych eval and how it is handled IMO is pivotal.

Thanks for this interesting though brief source. The link you forgot to include is http://reference.sabinet.co.za/sa_epublication_article/funda_v14_n2_a2
I found the following statement enlightening:

The notion of dolus eventualis provides a very significant counterweight to defences excluding liability based on mental state...

The point is that whatever it means to say that the prosecution have to prove mens rea as well as actus reus, it cannot mean something that is practically impossible and would allow any murderer to go free by claiming temporary zombification as OP has. The law must be a zombie-stopper, to borrow a term I came across lately, and it must be applied as such.

BTW, as with your remarks about the presumption of innocence, I am not accusing you of not knowing what I point out - I am simultaneously addressing everyone on the forum, whatever their levels of knowledge. There's a proverb here in France that what goes without saying goes better still for being said.

 

[Gryffindor]

Thank you !

The only problem i have with that is that in H4M's hypothetical scenario OP shoots i quote "hoping to eliminate the threat".
I still see that as shooting at a perceived threat and shoot to eliminate that threat.

Hoping to be successful don't think can be taken into consideration the moment one shoots to eliminate.

Just my opinion , thank you !!

You're welcome I thought H4M said he wants to shoot to eliminate (impede) not specifically kill. i.e. in self defence mode. I factored that in my reasoning too. Was a fun exercise ;-)

 

[BritsKate]

The State has the burden of proof, as you know. OP doesn't have to PROVE that he didn't have intent to kill. His defense just needs to raise reasonable doubt as to his state of mind when he fired those shots.



IMO the psych eval will be a wash.....reasons to believe he had intent, reasons to believe he didn't have that capacity, given x yz mental problems.



i place my bet again on a finding of culpable homicide.

This is a very common misconception, I believe because that is usually the case in America. This is very different as Oscar has admitted to shooting Reeva 4 times.

Please watch the following with legal expert Judge Greenland (35 years experience) who states at beginning roughly 9:22, Oscar must convince the court rather than simply just raising a story that may be reasonably, possibly true.

http://m.youtube.com/watch?v=hFM3d6sA-SY

Please pardon errors as posted via Tapatalk with a less than stellar user.

 

[CriLondon]

You're welcome I thought H4M said he wants to shoot to eliminate (impede) not specifically kill. i.e. in self defence mode. I factored that in my reasoning too. Was a fun exercise ;-)

Aaaah i see . In that case there's a difference....although i still have , in general , a huge problem with anyone shooting 4 devastating bullets through a closed door. But that's me....