Oscar Pistorius shoots girlfriend

[anglolawyer]

That's correct.

Incidentally, part of the judge's "reasoning" on accepting that Pistorius genuinely thought his life was in danger was along the lines that he (Pistorius) wouldn't have been able (in the judge's view) to "make up" the whole story so soon after the act, before the state had put its case etc. Ans she also quoted Pistorius' remorse, his genuine grief ("praying to God, wailing and gnashing of teeth etc) as factors in support of his version of events.

I find this an astonishing conclusion. We know that there were several minutes between the shooting and Pistorius making first contact, and that he called a friend first before calling the security guards. To me, it's blindingly obvious that he could indeed have murdered Reeva (knowing full well it was her behind the door), then have been overcome with remorse and grief once his rage at her was replaced by guilt at his own actions. And if that were the case, then he clearly had time to construct an alternative narrative. In fact, I'd suggest that the strange delay in Pistorius making contact with the relevant services actually points in the direction of this sort of thing having taken place. I also don't doubt that Pistorius genuinely was overcome with grief once he realised what he had done, but I find it shocking that the judge could take this in and of itself as supporting evidence for his "horrible accident" version of events.

Plus, it's also of course entirely plausible that Pistorius - if he genuinely thought the person behind the door was an intruder - shot with criminal intent (ie murder) and was then doubly overcome with grief and remorse when he realised what a horrible mistake in identification he had made. If that had been the case, it wouldn't have required any "making up" of events, other than making the claim that he'd only fired "accidentally" when he felt his life was in danger - which would be a logical lie for someone in that position to invent and recount.

Lastly, the other charges - particularly the gun discharge in the restaurant - show that Pistorius is likely rather good at lying to suit himself when necessary, and that he is a very quick thinker when it comes to forming the lie and maintaining it.

I agree it would not have taken long to make up his story if indeed he did so. I also think, though, that (on this account anyway) the shock of the event might have operated to 'freeze' him or disorder his thinking. I assume he was asked about the delay you mention. If he was, what was his answer?

If murder has gone, we are left with culpable homicide. On that count I am dead against you. This is his home, at night, and he believes an intruder has entered and concealed himself in the toilet. The intruder could be armed and might start firing at any moment. I don't think a householder in these circumstances should have to await the first shot nor enter into dialogue with the intruder. Professional marksmen and police, SAS combat types etc, I believe, are not instructed to trust suspects/the enemy not to fire first but to take them out and they do so in much less vulnerable situations than Oscar thought he was in.

What I am not sure about is whether an objective standard applies to the formation of his belief. That is: does the court have to ask:

A whether a reasonable person would have formed Oscar's claimed belief as to the state of affairs and then gone on to act as he did, or

B only whether a reasonable person would have so acted assuming as a given that the reasonable person possessed Oscar's subjective belief?

 

[anglolawyer]

Then the Mail is behind the game. The judge has unequivocally found no intent, and has explicitly therefore said that a conviction for murder is not possible. But once again, I think the media are shockingly ill-informed and ignorant when it comes to this sort of real-time interpretation and reportage. I guess that some part of it is a concern about saying something that's incorrect, but even so......

As I said in an earlier post, the judge - having ruled out conviction on the murder charge - said (in her final words before lunch) that culpable homicide is a "competent" verdict. I am wondering whether this actually means she is going to convict on that charge: it seems like a strange choice of words to use if she only meant that culpable homicide was still a possible verdict.

OK, thanks for clearing that up. That is strike one to me then with CH still on the table.

 

[katy_did]

I find this an astonishing conclusion. We know that there were several minutes between the shooting and Pistorius making first contact, and that he called a friend first before calling the security guards. To me, it's blindingly obvious that he could indeed have murdered Reeva (knowing full well it was her behind the door), then have been overcome with remorse and grief once his rage at her was replaced by guilt at his own actions. And if that were the case, then he clearly had time to construct an alternative narrative. In fact, I'd suggest that the strange delay in Pistorius making contact with the relevant services actually points in the direction of this sort of thing having taken place. I also don't doubt that Pistorius genuinely was overcome with grief once he realised what he had done, but I find it shocking that the judge could take this in and of itself as supporting evidence for his "horrible accident" version of events.

Plus, it's also of course entirely plausible that Pistorius - if he genuinely thought the person behind the door was an intruder - shot with criminal intent (ie murder) and was then doubly overcome with grief and remorse when he realised what a horrible mistake in identification he had made. If that had been the case, it wouldn't have required any "making up" of events, other than making the claim that he'd only fired "accidentally" when he felt his life was in danger - which would be a logical lie for someone in that position to invent and recount.
[snip]

Sure, those things are possible - but what evidence is there to support them? Even if you consider the points raised by the judge - implausibility of making up such a story in such a short amount of time, state witnesses saying his distress seemed real, and that he gave the appearance of genuinely wanting to save her life - to be weak, what is there to counter them?

 

[LondonJohn]

I agree it would not have taken long to make up his story if indeed he did so. I also think, though, that (on this account anyway) the shock of the event might have operated to 'freeze' him or disorder his thinking. I assume he was asked about the delay you mention. If he was, what was his answer?

If murder has gone, we are left with culpable homicide. On that count I am dead against you. This is his home, at night, and he believes an intruder has entered and concealed himself in the toilet. The intruder could be armed and might start firing at any moment. I don't think a householder in these circumstances should have to await the first shot nor enter into dialogue with the intruder. Professional marksmen and police, SAS combat types etc, I believe, are not instructed to trust suspects/the enemy not to fire first but to take them out and they do so in much less vulnerable situations than Oscar thought he was in.

What I am not sure about is whether an objective standard applies to the formation of his belief. That is: does the court have to ask:

A whether a reasonable person would have formed Oscar's claimed belief as to the state of affairs and then gone on to act as he did, or

B only whether a reasonable person would have so acted assuming as a given that the reasonable person possessed Oscar's subjective belief?

Well yes, I disagree on the CH issue: there has to be real, credible and imminent threat/danger to justify firing four shots through a locked wooden door. That could not have been present here. Clearly no verbal threat of violence could have been issued to Pistorius from behind that door, since it was Reeva and not an intruder who was behind it. The door was never opened. In short, there's no reasonable reason to fire those shots.

Incidentally, I think that the entire media are missing something the judge said - almost in passing - prior to dismissing the murder charge. She said that it was beyond doubt that Pistorius committed and unlawful act that night in the bathroom. And since the only other unlawful act possible is culpable homicide, then this (together with her "competent verdict" utterance) makes it inevitable in my view that she will find him guilty of culpable homicide.

I still remain deeply unconvinced with her reasoning on intent WRT the murder charge. I fail to see how someone firing four aimed shots with high-power military-grade ammunition through a thin wooden interior door into a very small toilet cubicle, in the belief that there was someone (whether Reeva or an intruder - that's irrelevant here) within that small toilet cubicle, could possibly do so absent the knowledge that these actions might result in the death or serious injury of that person.

 

[LondonJohn]

Sure, those things are possible - but what evidence is there to support them? Even if you consider the points raised by the judge - implausibility of making up such a story in such a short amount of time, state witnesses saying his distress seemed real, and that he gave the appearance of genuinely wanting to save her life - to be weak, what is there to counter them?

It's not so much whether there's evidence to support them, but whether they can/should be taken as positive evidence favouring his version of events.

To me, they should be essentially discounted in an assessment of his guilt/non-guilt, since they are reasonably explainable either way. Indeed, the prosecutors argued just such a thing and I think they were correct to do so.

I think the judge has got seriously hung up on the identity question. I also don't think the prosecutors did enough to show that ultimately the question of identity is irrelevant here, since the germane point is that Pistorius thought there was SOMEONE behind that locked toilet door and fired four shots through the door towards that person. I believe the prosecutor got himself a bit too wedded to the emotion of the Reeva Steenkamp angle, and he only really started dealing with the proper issue (and demoting the secondary issue of whether he really thought it was an intruder or whether he knew it was Reeva) right at the end of his closing argument.

 

[DarthFishy]

Final remarks form the live feed (TM is judge Masipa):

14:26 TM: Accused knew there was person behind toilet door, chose to use firearm, he was competent as he'd been trained.

14:27 OP acted too hastily and used excessive force. His conduct was negligent.

Seems to be steering towards a verdict of culpable homicide. Which seems fair to me based on the information that was provided during the court case.

 

[GlennB]

Man, she's spinning this out. I wonder if it's deliberate, to allow the implications to sink in overnight so the final verdict is less of a shock?

 

[catsmate]

Adjourned 'til tomorrow.

 

[LondonJohn]

Final remarks form the live feed (TM is judge Masipa):

14:26 TM: Accused knew there was person behind toilet door, chose to use firearm, he was competent as he'd been trained.

14:27 OP acted too hastily and used excessive force. His conduct was negligent.

Seems to be steering towards a verdict of culpable homicide. Which seems fair to me based on the information that was provided during the court case.

Yes, these remarks (together with the others from earlier) mean that a conviction on the culpable homicide charge is inevitable.

Incidentally, contrary to pretty much all media reports, the judge has not yet formally acquitted Pistorius on the murder charge - though, again, she inevitably will, on the basis of her remarks. It looks like she will go through each of the charges in this sort of way before concluding her remarks with a formal announcement of the verdicts on each of the charges in turn.

The only questions now are:

a) the verdicts on the other charges, and any impact they might have on sentencing (I'd say he's massively likely to be convicted on at least two of these three charges, if not all three)

b) the sentence for the culpable homicide conviction

c) whether the prosecution will appeal the murder acquittal.


The fine ranks of the world's media still cannot seem to figure out that the judge's remarks inexorably and unequivocally mean that she will convict on the culpable homicide charge. They are still using words such as "might" and "possibly", despite the fact that she's said as much to show she's convicting on CH as she's said she's acquitting on murder (and they are not hesitating to state that he's been cleared of murder). Ah well, plus ca change.......

 

[anglolawyer]

Final remarks form the live feed (TM is judge Masipa):

14:26 TM: Accused knew there was person behind toilet door, chose to use firearm, he was competent as he'd been trained.

14:27 OP acted too hastily and used excessive force. His conduct was negligent.

Seems to be steering towards a verdict of culpable homicide. Which seems fair to me based on the information that was provided during the court case.

OK - that bodes ill for him although he probably has a good shout at an appeal (by which I mean a well arguable appeal, not necessarily a successful one).

 

[katy_did]

It's not so much whether there's evidence to support them, but whether they can/should be taken as positive evidence favouring his version of events.

To me, they should be essentially discounted in an assessment of his guilt/non-guilt, since they are reasonably explainable either way. Indeed, the prosecutors argued just such a thing and I think they were correct to do so.

I think the judge has got seriously hung up on the identity question. I also don't think the prosecutors did enough to show that ultimately the question of identity is irrelevant here, since the germane point is that Pistorius thought there was SOMEONE behind that locked toilet door and fired four shots through the door towards that person. I believe the prosecutor got himself a bit too wedded to the emotion of the Reeva Steenkamp angle, and he only really started dealing with the proper issue (and demoting the secondary issue of whether he really thought it was an intruder or whether he knew it was Reeva) right at the end of his closing argument.

Is it simply neutral evidence, though? After all, if he'd only mentioned thinking Reeva was an intruder an hour after first calling someone, that surely would be seen as evidence of guilt. Instead we have him immediately saying he thought Reeva was an intruder in the first phone call he made, about 2 minutes after breaking down the door and finding her; every witness at the scene, including those testifying for the state, said his distress seemed very genuine and that he seemed intent on saving her life. On the face of it, it seems to me those things are points in favour of the intruder version, even if you could argue they're weak in the sense they could conceivably be explained in another way. But that alternative explanation isn't the obvious one, and in the absence of evidence to support it (since, after all, she had already concluded the screams and shouts were from Pistorius) there's no reason for the court not to take that evidence at face value.

I've seen a few legal commentators making the same argument as the one in your second paragraph, and my feeling is that they're focusing on the wrong part of Masipa's judgment (maybe because it wasn't entirely clear). IIRC, she said that the defence Pistorius raised was essentially one of putative private defence (I think that was the term), that he had said he genuinely believed his life was in danger, and that - having already accepted he did think he was shooting at an intruder - there was nothing to lead the court to reject that claim. In those circumstances, even if he did shoot knowing he would kill the person behind the door, since he genuinely believed his life was in danger from that person, he can't be convicted of murder.

She's now said she doesn't believe his actions were reasonable, even taking into account his belief that there really was an intruder and that his life was in danger - hence the verdict of culpable homicide.

I think! But I'll have to re-watch to be sure.

 

[marplots]

Adjourned 'til tomorrow.

She's probably stretching it out to avoid any in-court vomiting.

 

[LondonJohn]

Is it simply neutral evidence, though? After all, if he'd only mentioned thinking Reeva was an intruder an hour after first calling someone, that surely would be seen as evidence of guilt. Instead we have him immediately saying he thought Reeva was an intruder in the first phone call he made, about 2 minutes after breaking down the door and finding her; every witness at the scene, including those testifying for the state, said his distress seemed very genuine and that he seemed intent on saving her life. On the face of it, it seems to me those things are points in favour of the intruder version, even if you could argue they're weak in the sense they could conceivably be explained in another way. But that alternative explanation isn't the obvious one, and in the absence of evidence to support it (since, after all, she had already concluded the screams and shouts were from Pistorius) there's no reason for the court not to take that evidence at face value.

I've seen a few legal commentators making the same argument as the one in your second paragraph, and my feeling is that they're focusing on the wrong part of Masipa's judgment (maybe because it wasn't entirely clear). IIRC, she said that the defence Pistorius raised was essentially one of putative private defence (I think that was the term), that he had said he genuinely believed his life was in danger, and that - having already accepted he did think he was shooting at an intruder - there was nothing to lead the court to reject that claim. In those circumstances, even if he did shoot knowing he would kill the person behind the door, since he genuinely believed his life was in danger from that person, he can't be convicted of murder.

She's now said she doesn't believe his actions were reasonable, even taking into account his belief that there really was an intruder and that his life was in danger - hence the verdict of culpable homicide.

I think! But I'll have to re-watch to be sure.

No - the issue of whether Pistorius genuinely held the belief that he was in imminent physical danger is separate. I can actually concur on that part of the subjective test.

But the judge very specifically stated that she couldn't find the requisite intent for murder on the basis that she concluded that Pistorius genuinely didn't think that his actions (firing the four aimed shots at the wooden door with high-power military-grade ammo into a very small toilet cubicle within which he knew a person was situated) were likely to kill or seriously injure that person.

That's the part that I think is hugely appealable. I realise it's a subjective test, but given that Pistorius was a trained firearms user and knew full-well the power of the gun and ammunition he was using (and its devastating effect on watermelons and human bodies alike...), I find it impossible for the court to have concluded that it believes Pistorius when he claimed that he didn't think his actions might have killed or seriously injured the person on the other side of that door.

ETA: another reading of the judge's remarks so far indicates that in fact she dismisses the "imminent danger" element to Pistorius' defence, and that in fact she's exclusively relying on the "could not have forseen that his actions might kill or seriously injure" element to rule that there was no intent and that therefore it cannot be murder!

In other words, she's saying that subjectively Pistorius thought he was using proportionate force (even though by the objective test he was not doing so). I foresee trouble ahead........

 

[katy_did]

No - the issue of whether Pistorius genuinely held the belief that he was in imminent physical danger is separate. I can actually concur on that part of the subjective test.

But the judge very specifically stated that she couldn't find the requisite intent for murder on the basis that she concluded that Pistorius genuinely didn't think that his actions (firing the four aimed shots at the wooden door with high-power military-grade ammo into a very small toilet cubicle within which he knew a person was situated) were likely to kill or seriously injure that person.

That's the part that I think is hugely appealable. I realise it's a subjective test, but given that Pistorius was a trained firearms user and knew full-well the power of the gun and ammunition he was using (and its devastating effect on watermelons and human bodies alike...), I find it impossible for the court to have concluded that it believes Pistorius when he claimed that he didn't think his actions might have killed or seriously injured the person on the other side of that door.

I don't think it's a separate question, because if someone genuinely thinks their life is in danger from someone and shoots that person as a result, they can't be found guilty of murder (as I understand it). If that's what she found, it's irrelevant whether he knew firing into the cubicle would kill the person inside - believing his own life was in danger from that person is a valid defence either way.

When she was dealing with the culpable homicide charge she said he did know he would kill the person in the cubicle and that there were other options available to him rather than shooting - so I think when she said he wasn't aware he would kill the person, she must have meant Reeva, not the would-be intruder. Admittedly it wasn't very clear, though.

 

[Octavo]

The only questions now are:

a) the verdicts on the other charges, and any impact they might have on sentencing (I'd say he's massively likely to be convicted on at least two of these three charges, if not all three)

b) the sentence for the culpable homicide conviction
c) whether the prosecution will appeal the murder acquittal.

We will only find that out at sentencing - likely at least another 2 weeks away.

 

[icerat]

Man, she's spinning this out. I wonder if it's deliberate, to allow the implications to sink in overnight so the final verdict is less of a shock?

given the media reported it was expected to take place over two days it appears it may be the norm in SA for a trial of this type

 

[Azrael 5]

Dont know why it isnt murder,regardless of who was in the toilet in his mind. Firing 4 times at a closed door! Madness.

 

[LondonJohn]

Dont know why it isnt murder,regardless of who was in the toilet in his mind. Firing 4 times at a closed door! Madness.

There appears to be some consensus among legal commentators in SA that the judge failed pretty badly in her understanding/application of the test for intent when assessing the murder charge.

As this case and another high-profile murder case have shown me, it's folly to think that judges are infallible custodians of the law who always hand down reasoned judgements. In fact, sometimes it's extremely hard to see quite how some judges reached that position.......

 

[Oliebol]

According to the judge his belief that his life was in danger excludes dolus. Therefore he can't be found guilty of murder dolus eventualis.

http://www.youtube.com/watch?v=bbO_QHVh5Ss

 

[Oliebol]