Trial Discussion Thread #9 - 14.03.18, Day 12

[04009margaret]

turaj, thank you so much for mentioning this site. It is of particular interest to me as I'm looking for text, due to my s-l-o-w dial-up ISP not being able to stream videos. (Yes, I'm that one who still has dial-up!)

Just FYI to all, this is CourtChatter's recap from yesterday... ETA or is it today? Date above recap says Tuesday March 18??? I'm confused...lol

http://www.courtchatter.com/2014/03/oscar-pistorius-day-12-recap-more.html

The daily telegraph uk is a good source for you. Under the video stream box it gives a very detailed account of the day's testimony.
http://www.telegraph.co.uk/news/wor...ius-murder-trial-March-18-as-it-happened.html

 

[MeeBee]

that was my reading of South African law.. it seemed clear enough to me, but I do want to check with South AFrican posters..

perhaps Meebs, you have a source that will define it more thoroughly???

but so far.. from the statutes and precedents going back to 1949 in SA law, it seems this is so... there is, of course, no '5th amendement ' thingy he can take.. there is no such thing in the SA constitution.


as far as I can tell, unless there has been new law promulgated as at 2013, and stretching way back from there, there is no provision that allows or excuses, or prevents or that Oscar can claim that stops him or allows him to not take the stand..

in other words.. he takes the stand, regardless of his dispositition or choice or preference..

I am happy to be thoroughly corrected on this.. with sources..

I have a source! Sources everyone!

http://en.wikipedia.org/wiki/Right_to_silence#South_Africa

Oscar indeed has the right to remain silent, troops.

 

[minor4th]

Y'all know the saying "the cover up is worse than the crime"? Well think about that in terms of the police witnesses we've heard from so far.

IMO the most trustworthy and straightforward police witness has been Van Rensberg. I did not expect this because I had a preconceived notion that he was sloppy because of the media reports about his retirement. However, he was forthcoming about mistakes that were made on the crime scene; he expressed anger and regret about the mishandling of the scene, and there was really nothing about his testimony that came across as him covering for his mistakes or anyone else's.

On the other hand, all of the other police witnesses have taken the stand and made excuses and changed their testimony midstream and have been shown to be lacking credibility - even raising suspicion that they are covering for themselves and other officers for mistakes that were made - even when those mistakes would not be that significant if they just spoke honestly about it.

It's the appearance of covering up and making excuses that really undermines their credibility.

 

[Trooper]

"Anna Maria can be totally and indisputably rejected as a possible hook for either the defence or the prosecution to hang a hat on. she is certifiable, a vexatious waster of court time, and has been ejected from any and all courts , Magistrate, Provincial and High court that she has stumbled into.

even the conspiratorial theorists cant work her into any position of veracity in any area whatsoever, and that is surely a measure of her nuttiness..

 

[Val1]

"Anna Maria can be totally and indisputably rejected as a possible hook for either the defence or the prosecution to hang a hat on. she is certifiable, a vexatious waster of court time, and has been ejected from any and all courts , Magistrate, Provincial and High court that she has stumbled into.

even the conspiratorial theorists cant work her into any position of veracity in any area whatsoever, and that is surely a measure of her nuttiness..

Lol, sorry I didn't mean her in particular but what she was aiming for, getting OP off the hook due to a previous(2009) brain injury that has possibly impaired his ability to react in a "reasonable" manner to what he claims to be a deep rooted fear of attack.

 

[Trooper]

I have a source! Sources everyone!

http://en.wikipedia.org/wiki/Right_to_silence#South_Africa

Oscar indeed has the right to remain silent, troops.

he has the right not to self incriminate, but he doesn't have the right to NOT TAKE the stand..


this was the bit that surprised me.. I appreciate your take on this.. my contention is that he maybe had the choice not to give any evidence whatsoever, not take the stand.. this is allowed in my own legal system.. I was curious as to whether Oscar could refuse, or not be called..

but it seems. he has to take the stand.. whatever his preference is about it. that is unavoidable and there is no provision for him not to do so.

He does, in law, have to tell his story from the witness stand under oath. certainly at the leading of his attorney, but he also has to undergo x-examination by the prosecutor.. he can refuse to answer questions, but that refusal will be at the discretion of the judge.. not Oscar.. if she directs him to answer that's it..

it did answer my curiosity as to whether he will take the stand or not. answer?? he will.

 

[nastasya]

As snippets are revealed by testimony, speculation about the events of the night of the shooting flares in the media, but back at Court little has changed overall.
We still have the initial question of "Is OP lying?" I am 50/50 on that still. I can see many people are surer than 50%, but "beyond reasonable doubt" requires a lot more than just "more than 50% convinced."
Anyway.... the initial burden on the State is to disprove OP's version and claim (in his mind) he was acting in self defense.

If State can disprove OP's claim... and the Judge regards that OP is lying.. then OP should be found guilty of Premeditated Murder (or SA equivalent) because in that case he most likely assaulted, and threatened and chased Reeva into the toilet, and shot 4 times knowing she was behind the door. Quite horrendous and deserving of a lengthy sentence (quite likely DP in some US States).

However... if the State fall short in THEIR BURDEN to disprove OP's claim, then the Judge has to accept that OP believed the whole "Intruder" scenario, genuinely. Any evaluation of crimes committed by OP will have to be evaluated from the point of view of there BEING an intruder, and how OP's actions stack up under SA law. I do think that had there in fact been an intruder, shot in the circumstances of this case, then the shooter, would never have been charged, and so a complete acquittal of OP is a possibility. If there is a guilty verdict of some lesser type of homicide, that in itself must validate/confirm that OP believed he was shooting at an intruder. A lesser charge should not be an option if the Judge believes that OP was shooting at the door KNOWING Reeva was behind it.

The state does not have the burden to disprove anything, least of all OP's claim.

The state has the burden to prove OP planned and killed RS. They already have a prima facie case without any statement by OP. The state is not required to disprove OP's fairy tales.

When the defendant is faced with a prima facie case, the defendant must present evidence. Otherwise the defendant will be found guilty.

Here's an easy way to look at it.

If OP said space aliens came through his bathroom window and possessed him to pull the trigger, it would NOT be up to the state to disprove that story. The burden would be up to OP to prove his version rebuts the state's prima facie case.

 

[AlwaysShocked]

Oh, dear. Go away for a little bit and things change! When did it go from 2 wrist watches stolen to 3?

My understanding of the watches: 8 in box, 1 on top of stereo set. Sister known to take one watch. Box with only 7 watches, so one missing that all police were searched for, with nothing found. Later claim by OP of watch on top of electrical equipment being missing. That totals 2 watches missing according to OP, with sister taking 1 watch.

Did this change?

 

[MeeBee]

he has the right not to self incriminate, but he doesn't have the right to NOT TAKE the stand..


this was the bit that surprised me.. I appreciate your take on this.. my contention is that he maybe had the choice not to give any evidence whatsoever, not take the stand.. this is allowed in my own legal system.. I was curious as to whether Oscar could refuse, or not be called..

but it seems. he has to take the stand.. whatever his preference is about it. that is unavoidable and there is no provision for him not to do so.

He does, in law, have to tell his story from the witness stand under oath. certainly at the leading of his attorney, but he also has to undergo x-examination by the prosecutor.. he can refuse to answer questions, but that refusal will be at the discretion of the judge.. not Oscar.. if she directs him to answer that's it..

it did answer my curiosity as to whether he will take the stand or not. answer?? he will.

Yes he does. I've done a fair bit of googling on this and he has the right not to incriminate himself BEFORE and DURING his trial. He will take the stand, I think, but not because he has to.

 

[sorrell skye]

Y'all know the saying "the cover up is worse than the crime"? Well think about that in terms of the police witnesses we've heard from so far.

IMO the most trustworthy and straightforward police witness has been Van Rensberg. I did not expect this because I had a preconceived notion that he was sloppy because of the media reports about his retirement. However, he was forthcoming about mistakes that were made on the crime scene; he expressed anger and regret about the mishandling of the scene, and there was really nothing about his testimony that came across as him covering for his mistakes or anyone else's.

On the other hand, all of the other police witnesses have taken the stand and made excuses and changed their testimony midstream and have been shown to be lacking credibility - even raising suspicion that they are covering for themselves and other officers for mistakes that were made - even when those mistakes would not be that significant if they just spoke honestly about it.

It's the appearance of covering up and making excuses that really undermines their credibility.

Ya know, I felt sorry for Van Rensburg - especially when he choked up as he was telling the Court that he is no longer on the police force, but now works as a sports coach. I could tell from his demeanor that his real passion was crime investigation and not, as he said, coaching sports.

I don't agree that all the other police witnesses made excuses or changed their testimony. I think it just seems that way because Roux is VERY good at his job of defense attorney - Roux is an expert at trying to cause confusion, which compels me to pay close attention (which can be challenging when I'm utterly exhausted from staying up all night. Thank Goodness for trial archives lol!).

I'm sure My Lady is paying very close attention. She also has the benefit of trial transcripts, all the evidence exhibits, and a good night's sleep.

 

[Rumpole]

The state does not have the burden to disprove anything, least of all OP's claim.

The state has the burden to prove OP planned and killed RS. They already have a prima facie case without any statement by OP. The state is not required to disprove OP's fairy tales.

When the defendant is faced with a prima facie case, the defendant must present evidence. Otherwise the defendant will be found guilty.

Here's an easy way to look at it.

If OP said space aliens came through his bathroom window and possessed him to pull the trigger, it would NOT be up to the state to disprove that story. The burden would be up to OP to prove his version rebuts the state's prima facie case.

If a defendant claims self defense then the Burden is on the State to disprove it. We have that sort of situation here.

When a defendant is charged he remains INNOCENT until PROVEN guilty beyond reasonable doubt. The defendant can (but usually doesn't) present no defense explanation at all

I agree... if OP claimed Space Aliens then it's a "no-brainer"... 100% sure he is lying. The State would walk it as far as disproving that claim beyond reasonable doubt. However, in the real world there are a range of things people might claim, in some circumstances not so easy to dismiss beyond reasonable doubt.. like we have in this case.

 

[MeeBee]

If a defendant claims self defense then the Burden is on the State to disprove it. We have that sort of situation here.

I agree... if OP claimed Space Aliens then it's a "no-brainer"... 100% sure he is lying. The State would walk it as far as disproving that claim beyond reasonable doubt. However, in the real world there are a range of things people might claim, in some circumstances not so easy to dismiss beyond reasonable doubt.. like we have in this case.

If a defendant claims self defense, then the burden shifts to the defense, no? It is now up to them to prove that the defendant is in fear for their life? But OP is not claiming self defense, is he? Right now the burden of proof is on the state to prove that the murder was premeditated, not that Oscar is lying.

 

[Trooper]

Yes he does. I've done a fair bit of googling on this and he has the right not to incriminate himself BEFORE and DURING his trial. He will take the stand, I think, but not because he has to.

I believe we will have to agree that we disagree on this aspect, Meebee... the fact that he has pleaded not guilty seems to appear by the Law statutes of SA that he is obliged to take the stand.. no choice, and no alternative.

one of those reasons is..

' If the accused's legal adviser replies to any question by the court, the court will require the accused to provide confirmation'

that is.. Oscar has to confirm any claims his Attorney makes to the court , under oath and on the stand..

 

[minor4th]

If a defendant claims self defense, then the burden shifts to the defense, no? It is now up to them to prove that the defendant is in fear for their life? But OP is not claiming self defense, is he? Right now the burden of proof is on the state to prove that the murder was premeditated, not that Oscar is lying.

No, not necessarily. Usually the way it works is if the defendant claims self defense, then the defendant must allege facts that facially support self defense if taken as true. OP has done that by his bail affidavit and plea statement. Typically the burden is then on the prosecution to prove that it was not self defense or justified. I'm not sure that is how it goes in SA but that is the way it is done in most US jurisdictions.

 

[Rumpole]

If a defendant claims self defense, then the burden shifts to the defense, no? It is now up to them to prove that the defendant is in fear for their life? But OP is not claiming self defense, is he? Right now the burden of proof is on the state to prove that the murder was premeditated, not that Oscar is lying.

my understanding is YES.. the defendant does need to present a case that he acted in self defense... the State have to disprove it though.
Unless the State can prove that Oscar is lying (or not) how can the case proceed? It is a completely different set of circumstances if OP genuinely believed there was an intruder. His actions in that context would be regarded differently from those same actions in pursuit of Reeva, trapping her in the toilet and shooting her.

 

[MeeBee]

I believe we will have to agree that we disagree on this aspect, Meebee... the fact that he has pleaded not guilty seems to appear by the Law statutes of SA that he is obliged to take the stand.. no choice, and no alternative.

one of those reasons is..

' If the accused's legal adviser replies to any question by the court, the court will require the accused to provide confirmation'

that is.. Oscar has to confirm any claims his Attorney makes to the court , under oath and on the stand..

I mean I get that he will have to take the stand to help prove the defense's claims. But this isn't really something to agree to disagree on. It is in the South African constitution, in section 35.

http://ossafrica.com/esst/index.php..._35:_Arrested.2C_detained_and_accused_persons

There is a difference between the necessity of testifying due to him being the only one that can tell his story, and not having the legal right to remain silent during his trial. He could decline to testify if he wanted to. That's his constitutional right.

 

[MeeBee]

my understanding is YES.. the defendant does need to present a case that he acted in self defense... the State have to disprove it though.
Unless the State can prove that Oscar is lying (or not) how can the case proceed? It is a completely different set of circumstances if OP genuinely believed there was an intruder. His actions in that context would be regarded differently from those same actions in pursuit of Reeva, trapping her in the toilet and shooting her.

My understanding is that the state must put on their case which is the murder was premeditated. Naturally, that means they believe Oscar is lying. But they don't have to prove he is lying, they have to prove their case. I'm not making any sense but it makes sense in my head. Their case is not he is lying, it's this murder is premeditated, here's why.

 

[G.bng]

Maybe SA is different, but in the US if a police officer takes crime scene photos - irrespective of what his intent is - those photos are evidence and have to be turned over to the defense. Withholding them would be prosecutorial misconduct and would result in an acquittal or a reversal of a conviction.

Motha's photos were handed over to the defence in the State's disclosure. Nel objected to them being admitted because he thought they were new but once Roux clarified that the photos were Motha's and that they had been received from the state Nel realised his mistake. However as they were not a part of the State's case he objected to their admission unless the Defence undertook to call Motha to testify to them. Iirc Roux agreed and judge accepted so Motha's photos were admitted temporarily... presumably if the defence fails to call Motha they could be barred.

In any case, in respect of some of the photos Roux seriously misled the court, and I am not convinced he didn't do so knowingly. Several of the paired photos he used to assert an object had been moved were shot from a different distance, angle, and direction making for an impossible comparison.

For example, the two cricket bat photos Roux used to assert the bat had been moved on the basis that the text lined up with the tiles in one but not in the other was a complete load of rubbish since in one photo the bat had been shot from the front and in the other from the tail (for clarity I mean my front and my tail!) when since the renaissance representational discoveries of perspective and foreshortening it is a known fact that perspective is the distortion of reality as our 2D vision interprets, e.g. we see parallel lines meet at the horizon when factually they don't, and apart from the fact that from behind due to the optical illusion of perspective the tip of the bat appears to overhang and touch the blood spot anyway, even if the factual distance between spot and bat were visible the distance would be foreshortened by the eye, (human or photographic), anyway and therefore the distances between photos are not comparable.

Nel did try to go some way to rebutting Roux's fake comparisons and false conclusions, noting how the different direction and angle of the two photos causes the illusion of movement, but I am not sure the judge understood, (from what I have read most of the press didn't) which is unfortunate as I believe Roux is set on obfuscating and creating as much confusion as possible, most likely with a view to getting a mistrial and/or grounds for appeal, and with more falsities like this he will likely get there.

 

[MeeBee]

More sources, troops.

http://unmis.unmissions.org/Portals...m/The Constitution of South Africa (1996).pdf

Page 17 35.3.h

Every accused person has a right to a fair trial, which includes the right to-

h. Be presumed innocent, to remain silent, and not to testify during the proceedings.

ETA: sorry, page 18.

 

[04009margaret]

Maybe it was someone from OP's camp that strategically made the decision to steal watches, so they could tarnish the police during the later trial?

Like maybe his brother & what his name? Oldwage. Let's not forget that OP handed over his extra phone, that the police didn't know about, to his lawyer. His lawyer didn't hand it over to police straight away either.