Trial Discussion Thread #29

[sorrell skye]

Yes, I think he intended to kill what he thought was an intruder coming out to attack him - even though he refuses to use the word "intent." Even if he didn't have time to think about whether he wanted the intruder to die or not, he certainly was aware that shooting 4 shots into a tiny space would likely result in death. Either way, that's intent.

If he thought he was shooting to defend himself from imminent harm, then he does not have the necessary "intent" or mental state or mens rea, as we say here in the US, to commit murder. At best it is a negligent killing - i.e. culpable homicide.

I understand what you're saying. So do you believe that OP is guilty of culpable homicide?

To me, the fact that he refuses to say that he intended to shoot suggests to me that he didn't truly believe that his life was in imminent danger from what he allegedly believed was an intruder.

I think a person who genuinely believed they were in imminent danger wouldn't hesitate to say they had intended to kill the person they believed was about to harm/kill them.

 

[Emz73]

Well, I agree that he should have just said it, and trying to talk his way around it didn't help him at all.

So in your opinion, why was he doing that?

 

[minor4th]

I understand what you're saying. So do you believe that OP is guilty of culpable homicide?

To me, the fact that he refuses to utter the word 'intent' (or any other form of the word) suggests to me that he didn't truly believe that his life was in imminent danger from what he allegedly believed was an intruder.

I think a person who genuinely believed they were in imminent danger wouldn't hesitate to say they had intended to kill the person they believed was about to harm/kill them.

I believe he could be found guilty of culpable homicide.

And you've made a very good point - his refusal to just say "He!! yes I intended to kill a person who I thought was about to kill me", does detract from his defense.

 

[minor4th]

So in your opinion, why was he doing that?

Because he thinks if he avoids saying those words it will help his defense against all the charges, including culpable homicide. I believe he has miscalculated, however.

 

[Greater Than]

Yes, it can be both: he intended to kill the person in the toilet and if that's believed then at best it's culpable homicide. He can intend to kill the person, genuinely, but erroneously, believing that he is lawfully acting in self defense. That takes out the "intent" for murder.

Whether it's culpable homicide or not depends on whether or not it is a reasonable response to shoot through the door, based on the belief that an intruder is coming out to attack him. That I cannot say - I think he could be found guilty of culpable homicide.

BIB - With all due respect, that is the definition of putative self defense, not culpable homicide!

 

[Hatfield]

Is this really so? If I, for example, reasonably believe Martians are attacking me (hey, it's reasonable in my own mind) and it is actually some kids hiding behind a bush, I can shoot them, and get away with it? Something must be wrong with this picture. No?

You have the concept perfectly correct but that is the kicker. The judge and/or jury would deem that it was NOT reasonable.

Same as with the OP case. The judge may deem his fear was not reasonably true.

 

[BlueShoe]

It is not reasonably possibly true that you believed that Martians were attacking you. And if you really did believe that, then I think the defense would be an insanity defense.

Thanks. Just to clarify then, what one reasonably possibly believes must correspond to some degree with what society in general believes. So it must correspond to some degree to what any reasonable person would be perceived to believe. That does make sense and seems like a reasonable standard to apply to Oscar.

 

[minor4th]

BIB - With all due respect, that is the definition of putative self defense, not culpable homicide!

No, it's not the definition of putative self defense.

 

[minor4th]

Thanks. Just to clarify then, what one reasonably possibly believes must correspond to some degree with what society in general believes. So it must correspond to some degree to what any reasonable person would be perceived to believe. That does make sense and seems like a reasonable standard to apply to Oscar.

Well, yes there is some amount of reasonableness applied to his belief. If his belief is so outlandish that no reasonable person could possibly believe it, then it's not reasonably possibly true and it can be rejected.

 

[Viper]

Caselaw and interpretion of the law of putative self defense. It's not that the accused has to believe something to be reasonably possibly true; it's that it has to be reasonably possibly true that he believed what he's claiming he believed (that an intruder was about to come out and attack him)[

O/T I can't believe that the thread have gone on about putative self defense for almost an entire day. But on the bright side I did get my French doors painted. :wink:

BIB. There seems to be more to it than just that. I realize that you are not a SA Law Expert, and no one expects you to be. So it would probably be helpful to include the words of SA attorneys regarding this issue in the discussion. Here is one for quick reference; hope it helps everyone understand why OP claiming putative self defense is such a crock!:

Quote:
Pistorius therefore has to convince the court that his vulnerability, as a disabled person living in South Africa, genuinely led him to believe his life was in danger from an intruder hiding behind a closed toilet door. The court must further be convinced that his response – pumping four bullets through the door – was reasonable in the circumstances.

snipped

Because he lived in a relatively safe gated community, the only possible way Pistorius could plausibly claim to have been as fearful as he said he was would be to show that because of his disability he felt especially vulnerable. In effect, he is asking the court not to treat him as a reasonable able-bodied person, but as a reasonable disabled person.

Pierre de Vos
Claude Leon Foundation Chair in Constitutional Governance at University of Cape Town

http://theconversation.com/the-pistorius-defence-and-the-fear-that-grips-white-south-africa-25559

 

[Greater Than]

Thankyou for the link Liesbeth. As a Canadian, it gives me some points of comparison.

My understanding of the charge against OP is that of murder, which specifically means killing with both intent and unlawfulness.
Further, the pre-meditation aspect only comes into play at the bail hearing (where incarceration is mandatory unless the accused can present special circumstances) and at sentencing for murder conviction, at which time evidence can be presented to support a penalty length beyond that of murder.

So in summary, if correct, at this clinical stage of the trial Nel only needs to prove murder - killing both unlawfully and with intent.

I welcome any or all corrections to my understanding.

Count 1 of the indictment is murder, not premeditated murder. But Nel is certainly laying the groundwork.

 

[steveml]

So if someone pays "multi-million" SA rand for it, it's still not "multi-million" because it doesn't translate to your currency as such? Sounds Oscar-like to me. Real estate is all "location location location". And your country location is not the same as his. What am I missing?

I can't make sense of the above comment I'm afraid.

The details have already been clarified in an earlier post.

 

[liesbeth]

I didn't say they were average Joe's, and I'm too tired to go into detail about classes. We'll agree to disagree.

Something got lost in translation. I thought I was providing information. Not agreeing or disagreeing with anything. My apologies.

 

[BlueShoe]

Well, yes there is some amount of reasonableness applied to his belief. If his belief is so outlandish that no reasonable person could possibly believe it, then it's not reasonably possibly true and it can be rejected.

So, it will all depend on where the line of "reasonableness" will be drawn.

 

[Murphys_Law]

Premeditation carries a longer minimum sentence as well. Nel is trying to prove murder and premeditation.

understood about pre-med carrying a longer sentence.

The big point in my post is that at this stage - stage 1, Nel's only requirement is to prove murder. If OP is convicted of murder, then the court ponders the question of whether or not the murder was pre-meditated, at which point, the attorneys can offer further evidence both for and against pre-meditation.

If on the other hand, Nel at this stage presents evidence not reasonably countered by the defense that the murder was in fact pre-meditated then the Judge can jump immediately to a pre-meditated murder charge and sentence accordingly.

All that said, I beg for confirmation or correction as I am not an attorney.

 

[minor4th]

So, it will all depend on where the line of "reasonableness" will be drawn.

Yes, obviously that the judge's call to determine that it's so outlandish that no reasonable person could believe that, then she could find that it's not reasonably possibly true that he believed there was an intruder coming out to attack him. If that's the case, then murder is on the table, and the verdict will depend on whether the judge thinks the state has proved that he intended to kill Reeva

 

[Hatfield]

I believe he could be found guilty of culpable homicide.

And you've made a very good point - his refusal to just say "He!! yes I intended to kill a person who I thought was about to kill me", does detract from his defense.

I totally agree.

This is just what I recall so JMO.
Its interesting to note that during my carriers permit training I learned something that i never expected to hear. The training is such that in the event you have to use your firearm to defend your life you shoot and aim for the upper chest area which can likely have the effect of likely killing the person.

You never try to shoot at just the legs to wound them because you could miss. The risk is too great to yourself that you will miss and then the person can kill you. You also dont want to aim for the head because it is too difficult a shot. You aim for the upper chest area which is the largest area and chances are good you will bring down the threat. And the result can be death to the person.

Which is the main point of the training to defend your life. If your life is on the line and you HAVE to use your weapon you cross a line where you shoot to eliminate that threat. There is no grey area when you make that choice to use deadly force to protect your life.

ETA - To tie this back to the subject. OP should not try to hide the fact that he purposefully tried to eliminate his perceived threat.

He has hurt his case by being wishy/washy about that. Because when lawfully done it is not something to feel guilty about if your life was really threatened. For OP of course the perceieved threat was all in his mind or just a lie.

 

[Emz73]

Because he thinks if he avoids saying those words it will help his defense against all the charges, including culpable homicide. I believe he has miscalculated, however.

So then he is lying then. Wouldn't a guilt ridden, truthful, remorseful person not try to avoid any consequences. He still thinks its OK to shot into a door without imminanate danger to him

 

[minor4th]

understood about pre-med carrying a longer sentence.

The big point in my post is that at this stage - stage 1, Nel's only requirement is to prove murder. If OP is convicted of murder, then the court ponders the question of whether or not the murder was pre-meditated, at which point, the attorneys can offer further evidence both for and against pre-meditation.

If on the other hand, Nel at this stage presents evidence not reasonably countered by the defense that the murder was in fact pre-meditated then the Judge can jump immediately to a pre-meditated murder charge and sentence accordingly.

All that said, I beg for confirmation or correction as I am not an attorney.

I'm not sure about the premeditation - I think that has to be proved in this phase, and there's not a separate phase to determine premeditation.

 

[steveml]

BBM

Uncharacteristic of a defendant to do this where? Because I know of several cases where each one of the defendant's took notes and pretended to be a part of their own defense team. This is not something new that OP came up with. Defendants, esp in the USA, do take notes, talk with their lawyers, add/help their defense.

OP's defendant behaviour is uncharacteristic. It's as simple as that.

Uncharacteristic means not typical

Several cases that you may have seen out of the hundreds of thousands of defendant cases does not make OP's actions become typical.