Discussion Thread #60 - 14.9.12 ~ the appeal~

[Estelle]

This is the most sinister photo I have ever seen of Oscar Pistorius

 

[Estelle]

Despite the possibility of Pistorius having his culpable homicide conviction overturned, his father Henke says he's proud of the way South Africa's justice system works.

He says he believes that while the court made a few correct calls during the trial, it also missed a few.

“Were they always right is clearly not the case, were they always wrong is clearly also not the case. But we’re proud of the system. It should not have taken this long.”

Plus short video of Henke, OP's father here:

http://ewn.co.za/2014/12/11/Full-be...viction?utm_source=dlvr.it&utm_medium=twitter

 

[Val1]

I thought I'd read somewhere that this killer (can't bring myself to use his name anymore) couldn't get out of prison until after the appeal was heard? I'm either day dreaming or going dippy!

Someone just after the grant to appeal was given had said that, I think most of us are hoping like heck it's true... you can bet if there's a chance he could be facing another 10+ years in prison he won't be sticking around for it.

 

[mrjitty]

Seems like if Masipa really wanted to help OP out she would have found CH and sentenced him to 10 years. 10 years is what Nel said the state would accept. I still thought that was too little but sensed that if she went that far there wouldn't be an appeal.

Thoughts?

If she really wanted to help him out, she would have held he acted erroneously in self defence (putative private defence)

That would have been a complete defence to murder and not able to be challenged by the state.

She then could have held that the mistake was not reasonable - and nailed him for 5

I think that would have been hard to appeal.

My guess is she thinks she is being tough on a "cowboy" style guy

 

[Fuskier]

Thank you Estelle for providing updates from Professor Grant. Appreciated.

 

[TorisMom003]

Professor Annette van der Merwe, a criminal justice expert at the University of Pretoria, is of the opinion that the State has a bleak chance of winning the appeal against the murder acquittal.

“I don’t think anything in Pistorius’s life is going to change after this appeal. I think the appeal court will simply confirm the judgment as it stands.”

There was a fine line between a guilty finding in accordance with the doctrine of dolus eventualis and negligence (culpable homicide).

“Even if the State’s appeal succeeded, I don’t think it would make a difference to Pistorius’s sentence.”

A five-year jail term, serving 10 months before being released on correctional supervision, was a far harsher sentence than a straight five-year jail term, she said.

As things now stand, Pistorius would be under strict supervision by Correctional Services officials when he was released for the remainder of his sentence - about four years. If he were jailed for a straight five years, he would serve half his term and then be freed on parole, meaning less harsh conditions.

http://www.iol.co.za/news/crime-courts/bleak-christmas-ahead-for-oscar-1.1793982#.VIlQGsn3GrE

I doubt that Professor James Grant would agree with that.

Thanks Estelle for posting all the articles that you do!

I want to know what this chick is smoking. There is no way in hell that serving 10 months before being released is a harsher sentence than a straight 5 year jail term. Maybe it would be for the average, everyday person but this is Oscar Pistorius that we are talking about. It has already been proven that he is exempt from the strict rules when out on bond/bail. Why would correctional supervision be any different? Not to mention the fact that he would be living in the lap of luxury instead of a prison cell. Family and "friends" that can spend all the time they want with him. No worries about a cell mate that may want to kill him. And the list goes on. This woman is out of her mind.

MOO

 

[soozieqtips]

Thanks Estelle for posting all the articles that you do!

I want to know what this chick is smoking. There is no way in hell that serving 10 months before being released is a harsher sentence than a straight 5 year jail term. Maybe it would be for the average, everyday person but this is Oscar Pistorius that we are talking about. It has already been proven that he is exempt from the strict rules when out on bond/bail. Why would correctional supervision be any different? Not to mention the fact that he would be living in the lap of luxury instead of a prison cell. Family and "friends" that can spend all the time they want with him. No worries about a cell mate that may want to kill him. And the list goes on. This woman is out of her mind.

MOO

BIB - she certainly is. How many people do you know who would choose to spend 5 years in prison (even if they could get out in half that time) over spending just a measly 10 months in prison with the rest of the sentence being spent at a fancy house with their family??? And the supervision isn't that strict anyway. OP could still leave to go shopping, to doctor's appointments, training (?) and live a life of luxury with proper food, bedding, heating, with all his family around pandering to him. How the hell can that woman say without a trace of irony that spending LONGER in prison is less harsh than the alternative?

 

[JudgeJudi]

<Respectfully snipped>

Is there discussion with the bench in SA?

Back home this aspect could be fascinating with a full Court of the Court of Appeal

You can get some quite detailed questioning and Counsel really has to be super prepared!

Also is there just one decision?

In NZ often one judge will write the decision - but sometimes multiple judges will write their own judgement - including dissenting judges

The senior judge will preside.

I don't know about discussion with the bench, but counsel will present both oral and written argument.

There may be more than one judgment in a case if there's a difference of opinion. From the SCA judgments I've read, one judge writes the judgment that's presented to the court and pertinent excerpts from the judgments of dissenting judges are included at the end.

The proceedings appear to take only a day or two and the judgment is usually handed down shortly thereafter, i.e. a couple of days.

I don't think I'd care to sit on the SCA bench.

"The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts. Typically, each judge is allocated cases with about 30 000 pages of evidence and exhibits per year. In addition, each judge is allocated petitions for leave to appeal".

Hard yakka I'd say.

 

[JudgeJudi]

"Oscar Pistorius lost his temper and began pumping iron furiously inside prison after learning that the state can appeal against his acquittal of murder and the shortness of his jail sentence for manslaughter".

A fellow inmate revealed how the news hit him.

"He got up and stomped. He went straight to the gym. He started lifting weights like it was going out of fashion. He is pissed off," the source said.

The source said, "Who wouldn't be [angry]? He was definitely expecting to be out by August. Pistorius can barely console himself over the fact that he will be here for Christmas and New Year, instead of [partying] with his family and friends."

Well he won't be home for Christmas and he'll have to party in prison. Too bad, so sad.

http://www.ibtimes.co.uk/furious-oscar-pistorius-pumping-iron-rage-over-appeal-decision-1479107


Martin Hood, a criminal law expert, said it now was highly unlikely Pistorius would be released by August.

http://www.telegraph.co.uk/news/wor...d-state-leave-to-appeal-murder-acquittal.html

 

[Deleted member 102539]

http://www.sueddeutsche.de/panorama...torius-in-einem-neuen-prozess-droht-1.2260591

Die Richterin ließ es allerdings nicht zu, auch das Strafmaß von fünf Jahren Haft, zu dem der 28-Jährige vor sieben Wochen in Pretoria verurteilt wurde, neu zu verhandeln. Deswegen können Pistorius' Anwälte nun keine Freilassung auf Kaution bis zum Berufungsprozess beantragen. "Das heißt allerdings nicht, dass Pistorius nicht zu einer höheren Strafe verurteilt werden kann", so Braun (mehr dazu auf Seite 2).

Google translation:

The judge, however, it did not allow even the sentence of five years in prison, to which the 28-year-old was sentenced to seven weeks in Pretoria to renegotiate. Therefore P's lawyers now can't apply for bail pending the appeal process. * "However, this does not mean that Pistorius can not be sentenced to a higher penalty," said Brown (read more on page 2)

* Google isn't able to translate the bbm, I did it myself.

 

[Deleted member 102539]

What is it there around Nel's wrist, a special bangle?








http://www.bbc.com/news/world-africa-30408424

 

[redheart]

Looks like one of those copper bracelets that some think are beneficial to your health: http://www.amazon.com/Twisted-Powerful-Magnetic-Therapy-Bracelet/dp/B00IHQD0LA

 

[Sherbert]

If she really wanted to help him out, she would have held he acted erroneously in self defence (putative private defence)

That would have been a complete defence to murder and not able to be challenged by the state.

She then could have held that the mistake was not reasonable - and nailed him for 5

I think that would have been hard to appeal.

My guess is she thinks she is being tough on a "cowboy" style guy

BBM

Hello Mr Jitty! Actually, I think she did her level best to help him out by finding that he may have genuinely believed that he was acting in self defence, that he didn't intend to kill the intruder and didn't know that the force he used was disproportionate and unlawful.

 

[Sherbert]

Professor Annette van der Merwe, a criminal justice expert at the University of Pretoria, is of the opinion that the State has a bleak chance of winning the appeal against the murder acquittal.

&#8220;I don&#8217;t think anything in Pistorius&#8217;s life is going to change after this appeal. I think the appeal court will simply confirm the judgment as it stands.&#8221;

There was a fine line between a guilty finding in accordance with the doctrine of dolus eventualis and negligence (culpable homicide).

&#8220;Even if the State&#8217;s appeal succeeded, I don&#8217;t think it would make a difference to Pistorius&#8217;s sentence.&#8221;

A five-year jail term, serving 10 months before being released on correctional supervision, was a far harsher sentence than a straight five-year jail term, she said.

As things now stand, Pistorius would be under strict supervision by Correctional Services officials when he was released for the remainder of his sentence - about four years. If he were jailed for a straight five years, he would serve half his term and then be freed on parole, meaning less harsh conditions.

http://www.iol.co.za/news/crime-courts/bleak-christmas-ahead-for-oscar-1.1793982#.VIlQGsn3GrE

I doubt that Professor James Grant would agree with that.

Looking at the caselaw, in practice, there does seem to be a very fine line indeed between CH and Dolus eventualis, which is one of the reasons why I wish the State would aim high and go for Directus. We keep hearing that Directus was always a longshot, but, surely, all that is needed is a finding of intention to kill, be it Reeva or the intruder?

The best result of all, of course, would be a Judgement that recognises that there never was any intruder - neither in reality, nor in OP's head.

 

[Lux et Veritas]

Mrjitty aptly refers to Masipa’s verdict as a “mess”.

This mess was no accident. I believe she deliberately crafted her ruling to disguise her true intent. She cared NOTHING for the law, justice or truth. She was on a mission of mercy* to save the Bladerunner.

(Judge or not, I’d criminally charge her with: 1) accessory to murder after the fact 2) obstruction of justice 3) tampering with evidence and 4) aiding, abetting, comforting and assisting a known murderer*. Oh, yes I would. :lol: )

OP tailored multiple versions and defenses. Masipa very kindly created Oscar’s ‘official’ defense - a stapled-and-duck-taped composite from all the bits and pieces he tossed out. From his Big Lie she crafted her Big Lie.

She was rather like Dr. Frankenstein - one piece here, another piece there, a few stitches all around, flip the switch ... voila!

She completely ignored the hard fact that, as Nel perfectly nails, OP’s various defenses were ‘mutually destructive’. This, along with his constant evasions, highly selective memory and contradictions should have sent him to prison for murder. Innocence has only ONE story, ONE defense. No matter. She simply cobbled it all together into a hideous montage to prop up her chosen verdict. Geezus, even as she was reading it, she herself seemed rather lost and confused by the words, befuddled by her own “logic”. LOL

One of Masipa’s faux “factual findings” (based entirely on bullsh#t):

She eagerly cited OP’s “remorse” as proof of his innocence of murder (Stipp was her star witness!). “Remorse” AFTER the shooting is proof of nothing. Domestic abusers are masters of remorse (real and fake). Even genuine remorse doesn’t get one off the hook. One can brutally murder in an instant, yet still be genuinely remorseful afterwards - the two are not mutually exclusive. Tears do not magically transform ice-cold murder into negligent accident. Remorse has NO place in a verdict.

How could any rational, seasoned judge - one who’s sent rapists and killers to prison for life - believe such a grossly ridiculous fairytale? She knows very well he murdered Reeva - but she would not ship SA’s Heroic Golden Boy off to rot in prison for that murder.

Masipa and her “mercy” are a fraud and so is her judgement.


* She didn’t want to “punish” him “twice” at Westkoppies.

 

[ApplesInMyBra]

Hi everyone,
Does someone perhaps have a link to the video clip where Carise Stander says "I wondered what happened to the lady" (or something similar) - indicating that she heard two different voices?

Thank you very much in advance!

 

[Lux et Veritas]

More likely hoping that Nel won't appeal the sentence in the SCA and is unsuccessful in having the conviction set aside, thereby allowing OP to walk out of prison after 10 months if the Commissioner agrees.

Nel must appeal the sentence, that way even if he loses with the conviction, he gets a second bite at the cherry by arguing for a lengthier sentence for CH.

I agree, Judi. The door is wide open now. This is Nel and Grant’s golden moment. No way will they not go for broke and also petition the SCA to appeal the CH sentence and ammo acquittal.

 

[Lux et Veritas]

I shouldn't hope, but reading some of her decision today, I wonder if there is a unfavourable judicial wind blowing?

I would have expected her simply to deal with Nel's application and announce it properly raised a legal issue capable of appeal.

It seemed strange for her to flag up that her decision might be reversed

"I cannot say... that the prospect of success at the Supreme Court of Appeal is remote."
- Judge Masipa Dec 10 2014

Put another way, she admits that the chance of a murder conviction is good.

She knows her ruling/sentence is biased and bogus. She&#8217;s been publicly called out on it, raked over the coals and even she knows it will not withstand harsh SCA scrutiny.

I think this huge admission by Masipa bodes very well for Nel and Grant.

 

[Lux et Veritas]

Pretoria lawyer Konrad Rontgen agreed with this time estimate.

“Due to the appeal court’s roll being so congested, I don’t foresee this appeal being heard before the last court term for next year (around October/November).

“By implication, this may have the effect that Pistorius might already have been released by the time judgment is handed down.”

http://www.iol.co.za/news/crime-courts/bleak-christmas-ahead-for-oscar-1.1793982#.VIlQGsn3GrE

I do not see this happening. Makes no logistical or judicial sense. (Keep in mind that OP is not guaranteed parole at 10 months, only eligible.)

Common sense dictates he be denied parole, pending the SCA verdict.

Who’s a greater flight risk than a convicted killer fresh out of prison, looking at 15 YEARS more?

Of course an easy 10 months prison is “acceptable” as societal “penance” in the view of Camp Pistorius, but 15 years is something else altogether.

Out on parole after 10 months and subsequently convicted of murder by the SCA, OP would hop one of Uncle Theo’s charter planes headed for the sunny beaches of Mozambique before the ink was dry.

 

[Lux et Veritas]

Professor Annette van der Merwe, a criminal justice expert at the University of Pretoria, is of the opinion that the State has a bleak chance of winning the appeal against the murder acquittal.

&#8220;I don&#8217;t think anything in Pistorius&#8217;s life is going to change after this appeal. I think the appeal court will simply confirm the judgment as it stands.&#8221;

There was a fine line between a guilty finding in accordance with the doctrine of dolus eventualis and negligence (culpable homicide).

&#8220;Even if the State&#8217;s appeal succeeded, I don&#8217;t think it would make a difference to Pistorius&#8217;s sentence.&#8221;

A five-year jail term, serving 10 months before being released on correctional supervision, was a far harsher sentence than a straight five-year jail term, she said.

As things now stand, Pistorius would be under strict supervision by Correctional Services officials when he was released for the remainder of his sentence - about four years. If he were jailed for a straight five years, he would serve half his term and then be freed on parole, meaning less harsh conditions.

http://www.iol.co.za/news/crime-courts/bleak-christmas-ahead-for-oscar-1.1793982#.VIlQGsn3GrE

I doubt that Professor James Grant would agree with that.

Agreed. There was no &#8220;fine line&#8221;. LOL

It was a morass, a judicial Grand Canyon of bias / incompetence / corruption, take your pick.