Trial Discussion Thread #51 - 14.11.9, Day 41 ~announcement of the verdict~

[Sherbert]

Didn't OP under oath say he didn't fire a warning shot because he "foresaw" the "possibility" it might ricochet and hit him?

Yes, but he didn't foresee the possibility that he'd kill the person behind the door - I guess that is what Milady is saying.

As I understand it, the difference between Dolus Eventualis and CH is the difference between he must have foreseen and he ought to have foreseen.

Of course, the majority of us feel that, on the facts, he must have foreseen.

 

[Reader]

whaaat??? adjournment til tomorrow 9am

14:43: Pumza Fihlani, Pretoria High Court BBC News Judge Thokozile Masipa appears to be leaning towards the lesser charge of manslaughter, known in South Africa as culpable homicide. Minutes after the lunch break, she seemed to be on the verge of announcing her verdict, only to stop abruptly - leading to sighs and gasps in the overflow court.......

14:11: Former judge Willem Heath tells the BBC the sudden adjournment is "very surprising" and says there must be some unusual situation for her stopping so abruptly.

http://www.bbc.com/news/world-africa-29143544

 

[RosieC]

Two things:

- Firstly, there seems to be hope that Masipa's judgement on murder being dismissed can be appealed on two reasons:

A) She erred on her test of Eventualis by implying OP would have to have known it was Reeva in there as opposed to just 'someone'.

B) She seems to contradict herself with the following two statements:

'Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door - let alone the deceased - as he thought she was in the bedroom,' she told the packed courtroom.

"The accused knew that there was a person behind the toilet door. He chose to use a firearm which was a lethal weapon. He was competent in the use of firearms as he had undergone some training"

Now, The Telegraph quotes a lawyer explaining 'B':

"In finding Pistorius to be negligent, Judge Masipa appeared to suggest that he foresaw consequences of firing shots though the door - which would contradict her earlier ruling against 'dolus eventualis', or murder without premeditation. The decision seems to rest on the difference between 'did' foresee the consequences of firing through the door, and 'should have' forseen the consequences. The prior would invovle a charge of murder and the second a charge of culpable homicide, which she will rule on tomorrow."

So I'll guess we'll find out if she has erred or not regarding 'A' in due course but doesn't seen likely regarding the contradiction part at least.

- Secondly, and even though this judgement goes against all of our common sense and is frustrating beyond belief, has anyone thought that maybe Masipa believes OP knew it was Reeva but knowing the evidence could break under appeal, thinks that going for a tough sentence on culpable homicide is far more watertight in terms of getting him to prison. Of course the evidence is there against him, but you can (if we are really objective about it) understand why you have to avoid anything remotely unreliable in a case of this nature. Perhaps a 15 year culpable homicide sentence with a judgement that SOUNDS like she believes OP would be impossible to appeal against and she's taken the moral path knowing her decision would be ripped to shreds but the result be the right one.

I am new to websleuths, so thank you all for this most interesting forum.

I began with a dispassionate interest in the trial, then followed more and more closely and wrote articles in biznews. I am as perplexed and disturbed by Judge Masipa's verdict as many others on this forum are.

But Gerrie Nel did not help the state's case in several respects. Most notably why was it common cause that the gunshots preceded the bat strikes? That was NOT the evidence of the state's expert witness. Lt Colonel Vermeulen's conclusion only applied to one fracture on the door. Barry Roux must have thought Christmas came early and proceeded to muddy the waters to great effect.

But even admitting weaknesses in the state's argument, I am baffled by Judge Masipa on several issues, legal and common sense. And I cannot think that this is a cunning plan on her part, but let's see if there is a 15 year sentence for culpable homicide. Some time ago, a credible source claimed trial "fixed" so predict a verdict of not guilty to murder, with a non-custodial sentence. I so don't want to believe this is true, but when justice not seen to be done, out come all the conspiracy theorists.

 

[PrimeSuspect]

Excerpts from OP's cross with Nel.


Nel: Ready to shoot, if you saw something you would have just pulled the trigger?

OP: I am not sure, my lady.

Nel: And if you saw something, what would you have done?

OP: I am not sure, my lady. I just wanted to protect Reeva and myself. I screamed at the intruders to get out of my house.

Nel: The safety was off and you wanted to shoot someone. If you saw someone you were ready to shoot.

OP: I don't agree, I never wanted to shoot someone.

Nel: IF you were confronted by somebody you would have fired?

OP: I am not sure, my lady. That was not the situation I was dealt with.

Nel: When you walked down the passage, the gun was ready. Any movement and you would have fired?

OP: I am not sure. In a hypothetical environment.

-----------------------------------------------------------------------------------------------------------------


Nel: But you rushed down the passage.

OP: My lady, I felt threatened, I wanted to protect Reeva.

Nel: I found that strange. Instinct would have been to make sure Reeva was safe.

OP: My lady, not every body has the same instinct.

Nel: You went there to shoot somebody?

OP: That is not true. My intention was to make the person flee. I wanted to protect Reeva and myself.


It seems to me that J Masipa has accepted OP's shooting as negligent but accidental, that he never intended to kill anyone. That he shot at the door, not directly at a person, that he had no idea where those bullets would land.

Under cross examination, OP is determined to prove to m'lady he's not sure he would shoot at a person, so I've looked over this again and OP is basically saying those shots were warning shots, he wanted the intruder to flee.

Sorry, I might be bonkers but I think OP and J. Masipa are on the same wave length. JMO


http://news.sky.com/story/1240765/oscar-pistorius-trial-court-transcript

 

[mirage1]

The judge believed OP's tale of running out on the balcony in the pitch dark to call for help, after previously running around the pitch black bedroom feeling all around the bed for Reeva and returning to the dark bathroom to futilely try to shoulder-butt open the wc door, .... despite the pic showing the duvet/fans blocking the way to the balcony and the bedside electrical items upright and totally undisturbed.

this alone should have rendered OP's story untrue. She just ignored it all. Unbelievable.

 

[4MrsB]

14:43: Pumza Fihlani, Pretoria High Court BBC News Judge Thokozile Masipa appears to be leaning towards the lesser charge of manslaughter, known in South Africa as culpable homicide. Minutes after the lunch break, she seemed to be on the verge of announcing her verdict, only to stop abruptly - leading to sighs and gasps in the overflow court.......

14:11: Former judge Willem Heath tells the BBC the sudden adjournment is "very surprising" and says there must be some unusual situation for her stopping so abruptly.

http://www.bbc.com/news/world-africa-29143544

Someone posted that a journalist tweeted that Nel was going to file an appeal based on Judge M's understanding of dolus eventualis (reason for delay in chambers after lunch).

IF THIS WERE TO BE TRUE (big "if"), perhaps Judge M cut end of day short to confer with accessors before handing out sentence. MAYBE ("fingers crossed") she wants to readdress the length of sentence she is going to hand out for CH, after giving some consideration to what Nel has just argued in chambers. Maybe she will add more prison time to what they originally agreed on before this morning. Of course I'm just wildly speculating, but one can hope!)

 

[pandax81]

OMG, I am still shuddering about Masipa saying that if a person wakes up with a silhouette hovering beside their bed, it would be excusable and reasonable if the person shot and killed the silhouette person!!!

Yet, if you forget to put your phone on silent in court, you are dressed down and sent to the gallows in front of a watching world.

The way it's going, the harshest condemnation by this court will be reserved for these innocent people. It's all very bizarre.

You'd have thought the first point to be made wrt negligence, is that a reasonable person would have considered and checked it was the person who shared your bed using the ensuite.... but no. It's just bizarre. I don't get it. The impeccable logic of her earlier decisions in the trial has just vanished, even the points she makes against the defence arguments don't make much sense...

 

[Love Never Fails]

BBM- This I absolutely disagreed with and is really disturbing reading it. You as a gun owner have a responsibility to lawfully discharge. I don't care if you made a mistake, you chose to fire the weapon and kill someone so suffer the consequences. Why do gun owners feel they have the right to shoot first and ask questions later... it's beyond me.

Agree totally with MeeBee. You come into my home unwelcome during the night and I am supposed to offer you cookies and milk...in THIS day and time? Why should anyone feel they have the right to break and enter and not suffer consequences of their own? Your reasoning is beyond me. Just wait until this happens to you once. You might change your mind.

 

[Sherbert]

Didn't the State clarify that the screams came before the shots? I don't think Milady took that onboard at all. She also appears to have ignored Prof Saayman's evidence that Reeva definitely would have screamed after the first shot.

 

[mirage1]

Didn't the State clarify that the screams came before the shots? I don't think Milady took that onboard at all. She also appears to have ignored Prof Saayman's evidence that Reeva definitely would have screamed after the first shot.

she concluded that the shots were fired too quickly for her to scream.

 

[PrimeSuspect]

I am new to websleuths, so thank you all for this most interesting forum.

I began with a dispassionate interest in the trial, then followed more and more closely and wrote articles in biznews. I am as perplexed and disturbed by Judge Masipa's verdict as many others on this forum are.

But Gerrie Nel did not help the state's case in several respects. Most notably why was it common cause that the gunshots preceded the bat strikes? That was NOT the evidence of the state's expert witness. Lt Colonel Vermeulen's conclusion only applied to one fracture on the door. Barry Roux must have thought Christmas came early and proceeded to muddy the waters to great effect.

But even admitting weaknesses in the state's argument, I am baffled by Judge Masipa on several issues, legal and common sense. And I cannot think that this is a cunning plan on her part, but let's see if there is a 15 year sentence for culpable homicide. Some time ago, a credible source claimed trial "fixed" so predict a verdict of not guilty to murder, with a non-custodial sentence. I so don't want to believe this is true, but when justice not seen to be done, out come all the conspiracy theorists.

Hi and :welcome: RosieC

I agree, OP is not going to jail. What most of us feared. :sigh:

 

[passionflower]

Unbelieveable, the only word that comes to my mind..................

 

[whiterum]

OMG, I am still shuddering about Masipa saying that if a person wakes up with a silhouette hovering beside their bed, it would be excusable and reasonable if the person shot and killed the silhouette person!!!

Heaven forbid if her husband leaned over her in the dark to check if she was still breathing, he could get a bullet between the eyes.

 

[04009margaret]

Poor Reeva, still invisible and silent. So sad

Totally agree.......today this judge made her "irrelevant"

 

[Sherbert]

she concluded that the shots were fired too quickly for her to scream.

Yes, but this doesn't mean that Reeva didn't scream before OP started firing! Has she misunderstood the evidence?

 

[Mr Fossil]

A very interesting paper (two extracts below). Well worth a read.

"The relationship between intention and negligence (dolus and culpa), in the context of the crimes of murder and culpable homicide, has become somewhat clouded since the decision of S v Ngubane 1985 (3) SA 677 (A) at 687E-I. This is due to the fact that the Appellate Division (as it was then), ruled that it is incorrect to assume, on the same facts, that proof of intention excludes the possibility that the accused was negligent – thus resulting in the inevitable inference that intention and negligence could overlap or co-exist on the same facts"

http://repository.up.ac.za/bitstream/handle/2263/37009/Carstens_Revisiting_2013.pdf?sequence=2

"However, what the accused actually subjectively foresaw , as opposed to what he should or ought to have foreseen becomes a slippery slope, and courts often fall into the trap by applying the yardstick of ‘what the accused should or ought to have foreseen’ (the objective yardstick for negligence) to determine dolus eventualis, instead of ‘what the accused subjectively actually foresaw’ (the subjective yardstick for intention) (see S v Mamba 1990 (1) SACR 227 (A) at 237 where the court cautioned that where an accused ‘must have’ (in the sense of ‘ought to have’) foreseen that his victim could die, a court should not too lightly make the jump from ‘must have foreseen’ in that sense to ‘did indeed foresee’; also see S v De Oliveira 1993 (2) SACR 59 (A) at 65i-j; S v Maritz supra at 416f-g S v Campos2002 (1) SACR 233 (SCA) at 247e; compare CR Snyman Strafreg 6ed (2012) 195-197). "

 

[jacalyn]

I have been reading all of this and I am extremely angry.......this is exactly what is wrong with the world today..........our politically correct legal systems in the western world. Common sense has gone out the window and the prosecution must bend over backwards and then do cartwheels as well to prove "beyond reasonable doubt"................well I say, the word "reasonable" needs to be re-established and based on common sense. Too many of these murderers and that is what they are, are getting off because of these strict guidelines. We don't want to go back to times when people were executed for ridiculous reasons, but like many other things in this world, the freaking do gooders have taken it too far the other way................and what is lost in all of this is the rights of the victims of the crime........I am furious.

BRAVO said perfectly, you totally nailed it! Thank-you for your blunt honesty.

 

[Interested Bystander]

Yet, if you forget to put your phone on silent in court, you are dressed down and sent to the gallows in front of a watching world.

The way it's going, the harshest condemnation by this court will be reserved for these innocent people. It's all very bizarre.

You'd have thought the first point to be made wrt negligence, is that a reasonable person would have considered and checked it was the person who shared your bed using the ensuite.... but no. It's just bizarre. I don't get it. The impeccable logic of her earlier decisions in the trial has just vanished, even the points she makes against the defence arguments don't make much sense...

Has anyone wondered whether this is the doing of the two assessors? They can overrule Masipa on the verdict BUT Masipa can determine the sentence. Du Toit is a name well known in legal circles and it was another Du Toit, was it not, who said it would be CH. I am just pondering possibilities - a long shot perhaps. The other assessor is straight out of university and nobody seems to know anything about him.

What I am saying is that Judge Masipa may have had no choice in the verdict. If she comes in with a hefty prison sentence tomorrow I shall begin to think there may be something fishy about it. I think Shane13 always said something fishy would happen.

Conversely, if she comes in with a short/non existent prison sentence I shall believe she is an incredibly naive woman.

 

[MeeBee]

Yes, but this doesn't mean that Reeva didn't scream before OP started firing! Has she misunderstood the evidence?

Since she is of the belief the gunshots were the first bangs heard, and the cricket bat the last set, she didn't see how the screams the witnesses heard could have been Reeva's.

 

[LietKynes]

abcnews.go.com/International/verdict-due-oscar-pistorius-murder-trial/story?id=25422654
"...Masipa called Pistorius a “very poor witness” during the murder trial and found he was at times vague and avoided answering some of the prosecution's questions. Despite that, she says this does not necessarily indicate his guilt...."
BBM

abcnews.go.com/International/oscar-pistorius-trial-verdict-read/story?id=25427898

"...After a marathon trial filled with vomit, screams and tears, Oscar Pistorius will have to wait another day to find out if he will be held criminally responsible for the death of his girlfriend, Reeva Steenkamp...."
BBM

IMO, am very tired of Oscar's histrionics. Could the press possibly NOT showcase Oscar's faux tears ?
Sad day for Reeva's family ; my condolences to them for the loss of their precious babygirl !

Also IMO --- I still think Oscar shot her in a rage ; and it's possible she was trying to leave him. Early on in the trial, it was stated that Reeva was dressed in her street clothes -- not pj's. Who gets dressed to leave while just going to use the bathroom ?
My god I hope he gets some prison time.
:moo: