Trial Discussion Thread #48

[saraomar]

I hope Nel will address and emphasize the DATE!!! It is very imp IMO as it was 14 February, valentines day!!! A day when loved ones come together and are intimate(not OP and reeva) or fight and argue and some are silenced by their partners! It is no coincidence this so called accident happened on valentines day and I hope nel will bring this up clearly!

 

[kaos]

I hope Nel will address and emphasize the DATE!!! It is very imp IMO as it was 14 February, valentines day!!! A day when loved ones come together and are intimate(not OP and reeva) or fight and argue and some are silenced by their partners! It is no coincidence this so called accident happened on valentines day and I hope nel will bring this up clearly!

Not forgetting the date of Reeva's birthday when OP claimed he'd finally opened her Valentine's Day gift which wasn't even her correct birthday.

 

[kittychi]

Legal questions on OP being answered right now.

https://mobile.twitter.com/ewnreporter

Thank you, Zwiebel. This looks like answers to questions and by the answer given, you can infer what the question was.

One answer was that he can apply to have his bail extended during the appeals process which could last a year.

I still cannot believe what a fool he was to go to that club last Saturday because the prosecution could argue at least for more restrictions on bail, i.e. ban on alcohol again and travel out of the country.

This is all if he is convicted, of course. If not, I will expect the prosecution to appeal.

 

[liesbeth]

Here's a link to a collection of tweets (in Q and A format) by #AskEWN: Oscar Trial.

https://twitter.com/ewnupdates/timelines/489717039154855937


And here's a link to a post by David Dadic, the guy who answered the questions for EWN. It explains the types of intent (dolus) with specific reference to the OP trial.

http://www.conferencespeakers.co.za/the-oscar-pistorius-trial-what-did-he-do-david-dadic/

 

[AJ_DS]

Snipped by me for space.....

So if you were naked, where would you be hiding your gun? :blushing::laugh:

Uh…… I don't remember M'Lady…. I purchased this gun in 2011 at the gun store near that pet shop in Joburg where they have those cute little dogs… I choose that particular model of gun because it was small and I could easily carried it with me at all times… it's also shiny, like brushed aluminum… so it's easy to find when it's not on my person… Huh

Do you remember what the question was ?

No, M'Lady

If you were naked, where would you be hiding your gun ?

That is incorrect… I wasn't hiding the gun, M'Lady

So where was your gun ?

I don't remember M'Lady

 

[Cherwell]

Here's a link to a collection of tweets (in Q and A format) by #AskEWN: Oscar Trial.

https://twitter.com/ewnupdates/timelines/489717039154855937

Jonathan Meyer ‏@jonathangmeyer 2h

Why hasn't OP's Flappy Bird high score been entered into evidence? #AskEWN

EWN Reporter ‏@ewnreporter 2h

@jonathangmeyer It may not be relevant. #AskEWN DD

:floorlaugh:

 

[liesbeth]

:floorlaugh:

Indeed. Indeed.


From the same link...

 

[Interested Bystander]

More general thoughts Weskoppies psychologist Scholtz’s reports (not the three psychiatrist’s report):

• Over reliance of the defendant’s self-reporting and the reporting (even lying) of family members and supporters of the defendant may unduly affect the clinician’s results.
• The results may tell one about attitudes of the professionals, in terms of bias or subjectivity, than strictly about defendant’s character.The psychometric tests are well devised but can be reductionist and are not infallible. Similar findings may have interpreted differently by professionals.

A separate case which I find problematic is Weskoppies’ Dr Sholtz use of battered woman syndrome in the ‘Advocate Barbie’ Cezanne Visser trial. Dr Sholtz’s Weskoppies observation of Visser claimed she was suffering from battered syndrome and only defrauded children’s homes, indecently assault and made child *advertiser censored* of underage girls aged between 11-14 because of indoctrination from her boyfriend Prinsloo. Prinsloo also made her get a boob job, have sex with children and go on a television reality Idol competition…
http://www.iol.co.za/news/south-africa/from-ice-queen-to-sex-kitten-1.438529#.U8dY5Kjd2BA
http://www.health24.com/Columnists/Flattery-or-battery-20120721

Weskoppies Sholtz’s defense testimony of Visser makes me feel as queasy as Jodi Arias ‘expert’ trying to use battered woman syndrome to excuse murderous intent. While Prinsloo may have strongly influenced Visser, I do not think this is also a textbook coercive case and it sets a worrying precedent of defending sexual predation of children/minors. It also makes you wonder about their knowledge about emotional abuse or intimate partner violence research, in terms of Steenkamp's death.

Aunt Micki Pistorius was also involved in the Advocate Barbie case - hired as the defense psychologist expert in mitigation of sentencing. Micki Pistorius reiterated that Visser, convicted of 11 charges including child molestion, was a “textbook” example of a battered woman and felt remorse as she was back to her “conservative ways and now that she was back to her church.”*


Except it appears that Visser did not later show remorse for molesting the girls; denied intending criminal intent; tried to appeal the conviction and also denied that the underage victims deserved compensation for their rehabilitation and recovery.

Previously it was asked on the forum if Aunt Micki Pistorius might have coached or helped Pistorius with to make a favorable result on this psychological report -

Aunt Micki Pistorius may be helping Pistorius but it’s uncertain to what extent. Uncle Arnold said in multiple interviews the whole family is supporting him ‘in any way possible’. (Evidence Room, interviews, expensive public relation agents etc.). Pistorius is a highly competitive, well-funded and intensely supported defendant. He may feel he has influenced the psychologist Sholtz’s report in his favour from the ‘loyalty’ of his family. Not to imply collusion but forensic psychology is a small community in SA and from working on similar cases in Pretoria Micki Pistorius and Weskoppies Jonathan Scholtz would know of each other.

* The use of Christianity and appearing ‘devout’ in Pistorius’ testimony and the way his religious background is briefly implied in Scholtz’s Pistorius report as beneficial, similar to how Aunt Micki Pistorius thinks a convicted child molester is now morally upright as she has rejoined the church, IMO just other examples of how an expert’s bias may make their findings questionable. The amount of convicts who are religious at the time of committing a crime or become pious and then re-offend, shows religion does not necessarily reveal character or remorse.

So true. One of our born again Christian neighbours took an ex convict under her wing (he was a serial rapist). She married him quite sure he was now "cured". He attended her church regularly. Two years later he raped a poor young girl AND physically assaulted his wife.

Those of us with young daughters were dumstruck at her stupidity. She was warned she could be taking an enormous risk, especially having a young daughter of her own but she was convinced he would never reoffend as he was now a Christian. Sad to say she was so very wrong.

 

[AJ_DS]

Morning folks!

Hi AJ_DS, I am enjoying our friendly discussion. I agree - I think it's interesting, and also important given what's left to come in the trial.

I think it's time to draw breath and take stock and go over where our different understanding lies. I'm gonna suggest that the confusion all stems from something simple. Let's imagine a murder case where the defence argues PPD:

1. You say that putative private defence (PPD) is not a defence against a murder charge. I disagree. I suggest this is the source of all confusion.
3. You therefore say that PPD cannot and will not be considered by the judge in reaching a verdict on the murder charge. I disagree.
5. You therefore say that the mental state of the accused at the time can be ignored in reaching a judgement on the murder charge. I disagree.
7. You therefore say that PPD only comes into play if a not guilty verdict on the murder charge is determined. I disagree.
9. You therefore say that PPD must always pass a test of reasonableness of the mistake as it can only be a defence against culpable homicide. I disagree - while necessary to defend a culpable homicide charge, it is not necessary to pass this test to defend a murder charge.

I am trying to understand and simplify where our disagreement lies. I've numbered the points so we can refer to them easily. Once we know what our 'positions' are, only then can we discuss any rights and wrongs in understanding.

Would you say that I've understood your view correctly? Do you have any Qs about my view?

(I hope this is coming across the right way, just being friendly and respectful and trying to learn and understand. Im always scared of tone coming across wrong on the internet!)

Good idea… no worries, I'm very much enjoying this debate… keep it coming

1. Agreed… PPT is a (valid) Defence against a murder charge… no question about it.

2. Yes and No… perhaps that where some of the confusion lies… Masipa will consider and address the PPD but she must FIRST address the State's charge of murder and the State's evidence (witnesses, experts, etc&#8230… Basically Nel's contention is that OP's version of events is a complete fabrication designed specifically to claim a false PPD scenario that would refute the murder charge. Masipa cannot test the State's version by confronting it against OP's story… it's the other way round… Masipa will test OP's version against the State's version and evidence… so in some ways PPD will be considered : OP's version (PPD) will be tested by the State's evidence.

3. I believe the 'mental state' is causing the confusion here… In the Murder charge, if it can be inferred from the evidence that OP knew he was shooting at Reeva, then the mental state as in 'perceptions, knowledge, thoughts, foresight and aims' are not necessary because intent and unlawfulness are sufficient… determining whether OP was furious, jealous, embarrassed, wanted to quiet Reeva, etc… is not relevant… when OP drew his gun, removed the safety, pointed at a screaming Reeva behind the toilet door and discharged 4 bullets... OP had the unlawful intent to kill Reeva.

Now in the PPD case… the mental state as in 'perceptions, knowledge, thoughts, foresight and aims' is the crux of the subjective (but mistaken) perception of a life-threatning situation and it must be used to determine if that perception was subjectively reasonable or unreasonable i.e. would a reasonable person in those circumstances have perceived their life was being threatened ?… but for this analysis to even occur, the Judge must FIRST address and reject the murder case… because the murder case implies that those circumstances never occurred, they are a fabrication.

4. Yes, Masipa has to address the murder charge first… As stated above, the State's contention is that OP is lying… Masipa must first decide that OP has not fabricated his version before analyzing the particulars of his PPD Defence. There is also a legal procedure to be followed… First, the State has laid a charge of murder against OP… Secondly, the State has presented evidence in support of the murder case against OP… Thridly, the Defence has presented evidence in support of the PPD case… The Judge must follow this sequence… she cannot skip ahead to the PPD, say she believes OP, and therefore discard the murder charge on that basis… she will have to first analyze the State's case and evidence (including Defence cross-examination and rebuttal evidence) and come to a decision on the Murder charge.

To illustrate this point : why would Masipa entertain the evidence of OP's vulnerability and limited mobility in the scenario where OP terrorized Reeva with a cricket bat, where Reeva was screaming for her life and where OP shot her ?… the same goes for many other statements made by OP : how does the blue LED and the pair of jeans fit into the State's domestic violence scenario ?… it is only relevant and probative in the Defence's PPD case.

5. We are somewhat in agreement… but I suspect not for the same reason, lol

The 3-step test must be passed to avoid culpable homicide… however the 3-step test will not be 'administered' until the murder charge is dealt with and rejected… no sense in administering the test if you determine the circumstances being tested are a fabrication.

The cases are diametrically opposed and mutually exclusive…

A. Masipa must decide first if murder is proven beyond a reasonable doubt.
B. If the answer is YES, then there is no point in analyzing the PDD.
C. If the answer is NO, then she must determine whether it is PPD or culpable homicide.
D. The 3-step test is administered.
E. The 3-step test is failed, it's culpable homicide.
F. The 3-step test is passed, it's PPD.

Masipa cannot look at both cases simultaneously and decide which one is 'more convincing' and discard the other for that reason.

 

[liesbeth]

Good idea… no worries, I'm very much enjoying this debate… keep it coming

respectfully snipped

The cases are diametrically opposed and mutually exclusive…

A. Masipa must decide first if murder is proven beyond a reasonable doubt.
B. If the answer is YES, then there is no point in analyzing the PDD.
C. If the answer is NO, then she must determine whether it is PPD or culpable homicide.
D. The 3-step test is administered.
E. The 3-step test is failed, it's culpable homicide.
F. The 3-step test is passed, it's PPD.

Masipa cannot look at both cases simultaneously and decide which one is 'more convincing' and discard the other for that reason.

Good post as always. Thank you very much.

What you say makes sense. Nel has said that he will argue that Oscar's version should be rejected and, if his version is rejected, the objective facts will prove murder. So it is logical that if the judge rejects OP's version she won't bother to evaluate PPD.

But for the judge to decide if she will reject or accept Oscar's version, she will first have to consider if his version (PPD - what was his intent?) could be true.

So does this mean she's considering the PPD without actually considering the PPD?

 

[liesbeth]

Don't think it's been posted here. Forgive me if it's old news.

On 15 July @MandyWiener tweeted an exclusive photo of OP at The VIP Club where he had an altercation with Jared Mortimer on Saturday.

Edit: Some local gossip....Mortimer has challenged Oscar to take a polygraph test.

http://www.channel4.com/news/pistorius-nightclub-brawl-fight-jared-mortimer

 

[BritsKate]

Could one of our legal eagles (or one of our learned members) explain to me whether a different charge would be in place if OP had honestly owned up to having a furious fight with Reeva, screaming and shouting for her to get out of his house, chasing her to the bathroom, she locking herself in the toilet cubicle and, in his rage, he shooting through the door 4 times. Would the "shooting in a rage after a dreadful argument" situation have allowed the charge to be CH rather than murder and, given his show of grief, have enabled him to cop a short prison term? Does a Crime of Passion charge exist in SA?

This is old but relevant

http://www.news24.com/SouthAfrica/News/Pistorius-Crime-of-passion-not-ruled-out-20130610

Pistorius: Crime of passion not ruled out
2013-06-10 09:11

In SA, a crime of passion is considered a mitigating circumstance but it's not, tmk, recognised as an actual defence. It may have lessened the actual charge from murder but I believe it would have not allowed any possibility for an outright acquittal (imo, there was a chance of an acquittal prior to OP's testimony - now I doubt it though).

OP took the 'all or nothing' route and now he's stuck with it.

JMO and FWIW

 

[AJ_DS]

Good post as always. Thank you very much.

What you say makes sense. Nel has said that he will argue that Oscar's version should be rejected and, if his version is rejected, the objective facts will prove murder. So it is logical that if the judge rejects OP's version she won't bother to evaluate PPD.

But for the judge to decide if she will reject or accept Oscar's version, she will first have to consider if his version (PPD - what was his intent?) could be true.

So does this mean she's considering the PPD without actually considering the PPD?

Thanks Liesbeth !

I believe some of the confusion comes from how each of us define "considering PPD"

For me at least, it means having rejected the killing of Reeva as a Murder and considering whether killing of Reeva was PPD or culpable homicide… because if murder is adopted, then PPD and culpable homicide are intrinsically rejected.

It does not mean, that all of the evidence presented by the Defence regarding PPD will be boxed and not looked at until the murder charge is addressed and ruled upon.

I'll illustrate with a succinct example :

Masipa will address the screaming… she has to express the evidence before her… on the State's side the evidence emanates from 4 ear-witnesses, Stipp, Stipp, Johnson and Burger who say that they heard a woman screaming for her life… the Defence rejects this evidence and refutes it by stating that the accused was the sole source of all the screaming… the only evidence regarding this allegation is provided by the accused.

I have deemed the 4 witnesses credible and reliable… Furthermore, I find the credibility of the accused and the plausibility of his account lacking, also the Defence has not provided any other credible or reliable evidence that could refute the evidence provided by the State.

I therefore must conclude that Reeva was in fact screaming for her life and that she was heard by those 4 witnesses.

………………

Evidence from both sides will be addressed (considered) simultaneously but in regards to the murder charge first

 

[liesbeth]

Thanks Liesbeth !

I believe some of the confusion comes from how each of us define "considering PPD"

For me at least, it means having rejected the killing of Reeva as a Murder and considering whether killing of Reeva was PPD or culpable homicide… because if murder is adopted, then PPD and culpable homicide are intrinsically rejected.

It does not mean, that all of the evidence presented by the Defence regarding PPD will boxed and not looked at until the murder charge is addressed and ruled upon.

I'll illustrate with a succinct example :

Masipa will address the screaming… she has to express the evidence before her… on the State's side the evidence emanates from 4 ear-witnesses, Stipp, Stipp, Johnson and Burger who say that they heard a woman screaming for her life… the Defence rejects this evidence and refutes it by stating that the accused was the sole source of all the screaming… the only evidence regarding this allegation is provided by the accused.

I have deemed the 4 witnesses credible and reliable… Furthermore, I find the credibility of the accused lacking on this matter and the Defence has not provided any other credible or reliable evidence that could refute the evidence provided by the State.

I therefore must conclude that Reeva was in fact dreaming for her life and that she was heard by those 4 witnesses.

………………

Evidence from both sides will be addressed (considered) simultaneously but in regards to the murder charge first

Absolutely. I agree 100%. Thank you for explaining, AJ.

 

[AJ_DS]

In SA, a crime of passion is considered a mitigating circumstance but it's not, tmk, recognised as an actual defence. It may have lessened the actual charge from murder but I believe it would have not allowed any possibility for an outright acquittal (imo, there was a chance of an acquittal prior to OP's testimony - now I doubt it though).

OP took the 'all or nothing' route and now he's stuck with it.

JMO and FWIW

Good point … I agree

I always believed that if OP had come clean and said that in heated argument that spun out of control, he fired at Reeva in a moment of blind furious anger, OP could have mounted a diminished responsibility Defence similar to to those road-rage incidents.

Doing so would have had the double benefit of being the truth (which is always good) but also avoiding embarrassing and contradicting testimony on the stand.

Pleading guilty to the 3 minor gun related charges would have also greatly helped and avoided further embarrassing and contradicting testimony.

With an honest and voluntary participation to a psyche-eval on those basis, OP would probably have been deemed to have suffered from automatism and his responsibility would have been greatly diminished.

But, as you stated, OP opted for the 'all in' scenario… probably because he believes (incorrectly) that he can always win.

 

[AJ_DS]

As per my previous post…

The Trial would have been so much different

Many State witnesses would probably not have been called : Burger, Johnson, Stipp, Stipp, EDVM, Sam Taylor, Fresco, etc…

The Trial's focus would have completely shifted… instead of focusing on WHAT happened, the Trial would have focused on the WHY it happened… State would not have been in a position of strength in that scenario.

 

[Cherwell]

I always believed that if OP had come clean and said that in heated argument that spun out of control, he fired at Reeva in a moment of blind furious anger, OP could have mounted a diminished responsibility Defence similar to to those road-rage incidents.

Doing so would have had the double benefit of being the truth (which is always good) but also avoiding embarrassing and contradicting testimony on the stand.

Pleading guilty to the 3 minor gun related charges would have also greatly helped and avoided further embarrassing and contradicting testimony.

With an honest and voluntary participation to a psyche-eval on those basis, OP would probably have been deemed to have suffered from automatism and his responsibility would have been greatly diminished.

This is what I would have expected from someone who truly felt genuine remorse and grief.

 

[Cherwell]

As per my previous post…

The Trial would have been so much different

Many State witnesses would probably not have been called : Burger, Johnson, Stipp, Stipp, EDVM, Sam Taylor, Fresco, etc…

The Trial's focus would have completely shifted… instead of focusing on WHAT happened, the Trial would have focused on the WHY it happened… State would not have been in a position of strength in that scenario.

Would there even have been a trial at all?

 

[liesbeth]

I'm watching it from the start. I missed all the opening but transferred all the sabcdigitalnews youtube videos over to my tv. It took over an hour to do and there's 102 video clips

One thing I noticed about Michelle Burger's testimony was she was quite adamant about the 4 shots and the pause between the first and second and if you think about the bullet holes in the door, they do seem to back up her version where you can tell one shot seemed apart from the rest of the grouping.

I'm not on twitter so couldn't get your original link but I took out the word "mobile" and the tweets showed up. It's not really easy to follow the relevant tweets but that's probably just me

BBM. I'm re-watching too. I have videos are on my P.C...edit: oh, ffs. there I go again...all your base are belong to us. I meant to say: I have the videos on my PC.

Best tip ever? My media player (VLC player) has an option to speed up the video. Listening at one and a half times normal speed makes the hours go by and some of the testimony much, much easier to endure. Maybe your TV has the same option?

About the grouping of the four shots? I think it Nel will use this to argue premeditation. Roger Dixon said that the grouping of holes C and D showed that OP had to deliberately bring the gun under control. Chilling thought.

 

[Val1]

In SA, a crime of passion is considered a mitigating circumstance but it's not, tmk, recognised as an actual defence. It may have lessened the actual charge from murder but I believe it would have not allowed any possibility for an outright acquittal (imo, there was a chance of an acquittal prior to OP's testimony - now I doubt it though).

OP took the 'all or nothing' route and now he's stuck with it.

JMO and FWIW

Yup, if he'd "fessed up" at the beginning, he might even have gotten off with probation as his penalty, since the penalty is up to the judge's discretion and she's already made that comment about not wanting him to "suffer twice".....