Oscar Pistorius shoots girlfriend

[GlennB]

http://images.scribblelive.com/2014/9/11/0d5f544e-509c-4480-93bd-9148590849e9_500.jpg

Seems reasonable at face value, but: Interesting comment -

"In Pistorius’s case, it would seem that dolus eventualis murder would apply if he had fired four shots into a cubicle that he had known was occupied, aware his actions would kill, regardless of who he thought was in there.But it is more complicated than that, since Oscar Pistorius was initially put on trial specifically for the murder of Reeva Steenkamp.
If the judge accepts that he thought Reeva Steenkamp was in the bedroom at the point when he shot each bullet - then he could not possibly have foreseen that firing his gun through the door could have killed her."


Those final parts don't make sense to me, and possibly don't make sense to the prosecution hence Nel's apparent anger perhaps. His shots could reasonably have been expected to kill, and the name of the occupant appears irrelevant.



A SA analysis of the meaning, very confusing.

 

[LondonJohn]

Seems reasonable at face value, but: Interesting comment -

"In Pistorius’s case, it would seem that dolus eventualis murder would apply if he had fired four shots into a cubicle that he had known was occupied, aware his actions would kill, regardless of who he thought was in there.But it is more complicated than that, since Oscar Pistorius was initially put on trial specifically for the murder of Reeva Steenkamp.
If the judge accepts that he thought Reeva Steenkamp was in the bedroom at the point when he shot each bullet - then he could not possibly have foreseen that firing his gun through the door could have killed her."


Those final parts don't make sense to me, and possibly don't make sense to the prosecution hence Nel's apparent anger perhaps. His shots could reasonably have been expected to kill, and the name of the occupant appears irrelevant.



A SA analysis of the meaning, very confusing.

Exactly. And this categorically was not a case of transferred intent, which was one point the judge ruled impeccably upon. However, bizarrely she then appears to have forgotten her own words when fumbling around on the dolus eventualis issue. She appears utterly confused on the critical point that it doesn't matter who Pistorius thought was behind the door, inasmuch as it pertains to direct or indirect intent to kill (or seriously injure).

It matters indirectly, only to the degree that if the court believes Pistorius must have known it was Reeva, then there's essentially no wiggle room on intent, and no defence. After all, he could hardly claim that he felt his life was in danger from Reeva's actions. BUT.... even if the court accepts that he genuinely thought it was an intruder, the twin issues of intent and of justification must be confronted. On intent, it's manifestly ridiculous to accept - as the judge appears to have done - that Pistorius cannot have been aware that his firing of the four shots had the very real possibility of killing or seriously injuring whoever was behind the door. And on justification (self-defence in this instance), the court still has to accept that Pistorius genuinely thought his life (and/or that of Reeva) was in imminent danger in order to justify his actions. Now, while this is a subjective test, it nonetheless requires an objective analysis of the situation. In this instance, we have a locked toilet door; no verbal threat from behind the door (obviously not, since in fact it was Reeva behind that door); no indication that whoever was behind the door was even armed with any sort of weapon, let alone a firearm; the clear opportunity for Pistorius (and Reeva, whom he thought was in the bedroom) to escape down the stairs away from the bathroom area, or to phone or call out (from the balcony) for help. All of these factors, in my opinion, show that Pistorius is lying when he claims to have felt his (and/or Reeva's) life to have been in such imminent peril, and with no other options open to him, that he felt compelled to fire four aimed shots into the door in self-defence.

 

[LondonJohn]

[qimg]http://images.scribblelive.com/2014/9/11/0d5f544e-509c-4480-93bd-9148590849e9_500.jpg[/qimg]

That chart is fundamentally wrong. It is still eminently possible for the court to have found that Pistorius genuinely thought there was an intruder behind that door and for him still to be guilty of murder (even premeditated murder). It's simply incorrect to show that intruder = either culpable homicide or acquittal.

 

[wasapi]

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

Madness indeed.

It will - or already is - another debate over "celebrity justice".

 

[Oliebol]

That chart is fundamentally wrong. It is still eminently possible for the court to have found that Pistorius genuinely thought there was an intruder behind that door and for him still to be guilty of murder (even premeditated murder). It's simply incorrect to show that intruder = either culpable homicide or acquittal.

The judge accepted that he feared for his life. Wouldn't that make a difference?

 

[katy_did]

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

Yes, that's my understanding too.

If you justifiably believe your life is in danger, you can use deadly force against the person threatening you. Whether you foresaw that you would kill the person or not makes no difference to the validity of the defence. Zimmerman was acquitted not because he didn't realize shooting someone in the chest might kill them (he's not the brightest, but one assumes he was aware of that), but because the jury accepted there was a reasonable possibility he was acting in self-defence.

If the judge accepted Pistorius feared for his life when he shot, then he can't be convicted of murder because he believed he was acting in self-defence. He could still be convicted of culpable homicide if he acted unreasonably, but not murder.

I think.

 

[katy_did]

That chart is fundamentally wrong. It is still eminently possible for the court to have found that Pistorius genuinely thought there was an intruder behind that door and for him still to be guilty of murder (even premeditated murder). It's simply incorrect to show that intruder = either culpable homicide or acquittal.

It is. But the judge would have to believe that he didn't think his life was in danger at the time he shot, and this judge accepted he did believe that.

In reality, once the judge accepted Pistorius believed he was shooting at an intruder, culpable homicide was always a more likely outcome than murder.

 

[LondonJohn]

Yes, that's my understanding too.

If you justifiably believe your life is in danger, you can use deadly force against the person threatening you. Whether you foresaw that you would kill the person or not makes no difference to the validity of the defence. Zimmerman was acquitted not because he didn't realize shooting someone in the chest might kill them (he's not the brightest, but one assumes he was aware of that), but because the jury accepted there was a reasonable possibility he was acting in self-defence.

If the judge accepted Pistorius feared for his life when he shot, then he can't be convicted of murder because he believed he was acting in self-defence. He could still be convicted of culpable homicide if he acted unreasonably, but not murder.

I think.

I think that's all correct too. But it raises an important point: the test is subjective - i.e. it doesn't matter if Pistorius' fears were objectively "reasonable" or not, only that they were genuinely held by him. However..... in assessing whether Pistorius can have genuinely held that fear (that his or Reeva's life was in imminent danger), it's still necessary - mandatory - to apply an objective test to that assessment.

To go back to an example I used some time ago: imagine if I was walking down Tottenham Court Road at 11am on a normal Friday, and a man of around 18 years old with a mohican haircut was walking towards me on the pavement. Imagine if I was carrying a concealed knife in my pocket. Imagine that as the mohican-guy approached me, he put his own hand into his pocket. Imagine that in reaction to this, I pulled the knife out of my pocket and stabbed the mohican guy to death.

Now imagine if I claimed as a defence that I genuinely believed that the mohican guy was reaching for a knife with which to stab me, and thus my actions were in self-defence and were proportionate to the threat I perceived. It simply wouldn't be acceptable for a court to say "Mr LJ says that he perceived an imminent threat to his life, and we've seen nothing to contradict this claim, so we therefore accept that his claim in this regard is genuine. He cannot be guilty of murder." In reality, some sort of test would have to be applied in order to determine whether my claim to feeling in imminent mortal danger was genuine. And that test would take into account the context, the time of day, the fact that I didn't know this person at all, the fact that there are plenty of similar-looking people walking around in London, all of whom I would have previously encountered in the street without incident, and the fact that people put their hands into their pockets all the time for entirely innocent reasons. In this particular example, I would expect the court to conclude either that I was lying about feeling in imminent mortal danger, or that I was mentally incapacitated at that time.

In addition to the above, if you stop to think about it, if it were that easy to "pass" the subjective test, then virtually everyone accused of murder could, with canny legal advice, claim that they genuinely felt their life to be in imminent mortal danger at the time they killed the victim. You're charged with murdering a gang rival? No problem! Simply claim you genuinely felt yourself to be in imminent danger of the other guy killing you, and hey presto! You can get it downgraded to manslaughter! You strangled your wife in the bedroom during an argument over your extramarital affair? No problem! You claim that your wife was moving towards a heavy brass lampstand in your bedroom, and that you genuinely thought she was about to grab it and strike you repeatedly over the head with it until you were dead! Hey presto! Manslaughter not murder!

The point is this: even though the test is subjective, there must still be an objective element to the assessment of whether the accused genuinely did (or could have) held those feelings at the time of the act. The court cannot simply say something along the lines of: "Well the accused claims he felt in danger, and we haven't heard anything to actively disprove his claims, therefore we must accept his claims as genuine and honestly held".

 

[lionking]

Seems reasonable at face value, but: Interesting comment -

"In Pistorius’s case, it would seem that dolus eventualis murder would apply if he had fired four shots into a cubicle that he had known was occupied, aware his actions would kill, regardless of who he thought was in there.But it is more complicated than that, since Oscar Pistorius was initially put on trial specifically for the murder of Reeva Steenkamp.
If the judge accepts that he thought Reeva Steenkamp was in the bedroom at the point when he shot each bullet - then he could not possibly have foreseen that firing his gun through the door could have killed her."


Those final parts don't make sense to me, and possibly don't make sense to the prxosecution hence Nel's apparent anger perhaps. His shots could reasonably have been expected to kill, and the name of the occupant appears irrelevant.



A SA analysis of the meaning, very confusing.

Nor me. It's insane. You fire four shots through a door to a very small room and you do not reasonably expect to kill someone? What, were they warning shots to the head? He was trying to wing the person on the other side of the door?

What a moronic position for the judge to take.

 

[LondonJohn]

It is. But the judge would have to believe that he didn't think his life was in danger at the time he shot, and this judge accepted he did believe that.

In reality, once the judge accepted Pistorius believed he was shooting at an intruder, culpable homicide was always a more likely outcome than murder.

No, because then the "reasonable force" doctrine comes into effect. It's here that the judge starts to become totally unstuck. She explicitly said that it can be taken that Pistorius did not expect that his action of firing the aimed shots into the door might have resulted in the death or serious injury of whoever was behind that door. What's more, she then incomprehensibly went on to say that he couldn't have intended to kill or seriously injure Reeva if he believed she was still in the bedroom!

Again, there are two separate (and separable) elements here: 1) Did Pistorius genuinely feel at risk at that moment (and if so, what risk? Risk of imminent death? Risk that he might possibly die?)? 2) If he did feel at risk, were the actions he took proportionate to that risk?

Any court would agree that if you genuinely felt that you were about to die, you'd almost always be justified in killing in self-defence. If an intruder were pointing a firearm at you in a firing stance, you'd almost always be justified in discharging your own firearm and killing the intruder. But what if an intruder had a holstered firearm on his belt and was not pointing it at you? Would "reasonable force" be to shoot the intruder dead? Well, in most places, no it would not. And, incidentally, Pistorius knew this explicitly, since he'd been examined on a whole range of these sorts of scenario as part of his firearm licensing tests.

The judge stopped very well short of saying that (in her opinion) Pistorius felt in imminent fear of death - she only explicitly accepted that he may have felt generally in danger and fearful. And therefore (it would appear) she feels the need to couple this lower level of fear with the ludicrous suggestion that he shot without the expectation that it might kill or seriously injure the person in the toilet - i.e. that the force was proportional to the perceived threat.

 

[katy_did]

I think that's all correct too. But it raises an important point: the test is subjective - i.e. it doesn't matter if Pistorius' fears were objectively "reasonable" or not, only that they were genuinely held by him. However..... in assessing whether Pistorius can have genuinely held that fear (that his or Reeva's life was in imminent danger), it's still necessary - mandatory - to apply an objective test to that assessment.

To go back to an example I used some time ago: imagine if I was walking down Tottenham Court Road at 11am on a normal Friday, and a man of around 18 years old with a mohican haircut was walking towards me on the pavement. Imagine if I was carrying a concealed knife in my pocket. Imagine that as the mohican-guy approached me, he put his own hand into his pocket. Imagine that in reaction to this, I pulled the knife out of my pocket and stabbed the mohican guy to death.

Now imagine if I claimed as a defence that I genuinely believed that the mohican guy was reaching for a knife with which to stab me, and thus my actions were in self-defence and were proportionate to the threat I perceived. It simply wouldn't be acceptable for a court to say "Mr LJ says that he perceived an imminent threat to his life, and we've seen nothing to contradict this claim, so we therefore accept that his claim in this regard is genuine. He cannot be guilty of murder." In reality, some sort of test would have to be applied in order to determine whether my claim to feeling in imminent mortal danger was genuine. And that test would take into account the context, the time of day, the fact that I didn't know this person at all, the fact that there are plenty of similar-looking people walking around in London, all of whom I would have previously encountered in the street without incident, and the fact that people put their hands into their pockets all the time for entirely innocent reasons. In this particular example, I would expect the court to conclude either that I was lying about feeling in imminent mortal danger, or that I was mentally incapacitated at that time.

In addition to the above, if you stop to think about it, if it were that easy to "pass" the subjective test, then virtually everyone accused of murder could, with canny legal advice, claim that they genuinely felt their life to be in imminent mortal danger at the time they killed the victim. You're charged with murdering a gang rival? No problem! Simply claim you genuinely felt yourself to be in imminent danger of the other guy killing you, and hey presto! You can get it downgraded to manslaughter! You strangled your wife in the bedroom during an argument over your extramarital affair? No problem! You claim that your wife was moving towards a heavy brass lampstand in your bedroom, and that you genuinely thought she was about to grab it and strike you repeatedly over the head with it until you were dead! Hey presto! Manslaughter not murder!

The point is this: even though the test is subjective, there must still be an objective element to the assessment of whether the accused genuinely did (or could have) held those feelings at the time of the act. The court cannot simply say something along the lines of: "Well the accused claims he felt in danger, and we haven't heard anything to actively disprove his claims, therefore we must accept his claims as genuine and honestly held".

Well, that's a different issue to whether the judge erred, of course. She did accept Pistorius was in fear for his life, which makes the issue of whether he foresaw he was going to kill someone irrelevant (despite what the legal talking heads - who, incidentally have all been absolutely shocking throughout this trial - have to say about it!).

On this subject though, I think once you accept Pistorius believed that the person in the toilet was an intruder, it doesn't seem too unreasonable to think he might have been scared for his life. This is someone who's broken into his house, someone he has to assume is probably armed and dangerous. Wouldn't anyone in that situation be very scared and fearful they were going to be harmed?

Now whether he acted reasonably given that situation is an entirely different question. As you say, he did have other options - calling the police, or going downstairs - and he certainly acted recklessly. But those things go to culpable homicide, not murder.

 

[lionking]

It seems that the judge's contention that OP could not reasonably foresee killing the person behind the door is adequate grounds for appeal. There's a long way to go yet.

 

[katy_did]

No, because then the "reasonable force" doctrine comes into effect. It's here that the judge starts to become totally unstuck. She explicitly said that it can be taken that Pistorius did not expect that his action of firing the aimed shots into the door might have resulted in the death or serious injury of whoever was behind that door. What's more, she then incomprehensibly went on to say that he couldn't have intended to kill or seriously injure Reeva if he believed she was still in the bedroom!

Again, there are two separate (and separable) elements here: 1) Did Pistorius genuinely feel at risk at that moment (and if so, what risk? Risk of imminent death? Risk that he might possibly die?)? 2) If he did feel at risk, were the actions he took proportionate to that risk?

Any court would agree that if you genuinely felt that you were about to die, you'd almost always be justified in killing in self-defence. If an intruder were pointing a firearm at you in a firing stance, you'd almost always be justified in discharging your own firearm and killing the intruder. But what if an intruder had a holstered firearm on his belt and was not pointing it at you? Would "reasonable force" be to shoot the intruder dead? Well, in most places, no it would not. And, incidentally, Pistorius knew this explicitly, since he'd been examined on a whole range of these sorts of scenario as part of his firearm licensing tests.

The judge stopped very well short of saying that (in her opinion) Pistorius felt in imminent fear of death - she only explicitly accepted that he may have felt generally in danger and fearful. And therefore (it would appear) she feels the need to couple this lower level of fear with the ludicrous suggestion that he shot without the expectation that it might kill or seriously injure the person in the toilet - i.e. that the force was proportional to the perceived threat.

I'm not entirely sure that is what the judge meant, as she seemed to contradict herself later on (when she said Pistorius did or should have known that firing into the toilet would kill the person in there, and that he had other options available to him). Perhaps she meant that given she had already established he believed he was shooting at an intruder, he couldn't have anticipated the actual outcome, i.e. that he would kill someone else, let alone that it would be Reeva (I don't think it was at all incomprehensible that she suggested he couldn't have intended to kill Reeva if he thought she was still in the bedroom, by the way - isn't that sort of self-evident?). We might have to wait for the written version of the ruling to be totally clear on this. If it's as confusing as the spoken version, I imagine it will be getting some rewrites!

As regards reasonable force, again I think that would be relevant to culpable homicide, not murder - i.e. if Pistorius believed his life was in danger but used excessive force, that would be culpable homicide.

Again, as I said above, I'm not sure it is unreasonable to fear for your life if there's a (probably armed) intruder hiding in your house. It's the action he took in response to that fear that was reckless and negligent, as I assume the judge will conclude.

 

[LondonJohn]

Well, that's a different issue to whether the judge erred, of course. She did accept Pistorius was in fear for his life, which makes the issue of whether he foresaw he was going to kill someone irrelevant (despite what the legal talking heads - who, incidentally have all been absolutely shocking throughout this trial - have to say about it!).

On this subject though, I think once you accept Pistorius believed that the person in the toilet was an intruder, it doesn't seem too unreasonable to think he might have been scared for his life. This is someone who's broken into his house, someone he has to assume is probably armed and dangerous. Wouldn't anyone in that situation be very scared and fearful they were going to be harmed?

Now whether he acted reasonably given that situation is an entirely different question. As you say, he did have other options - calling the police, or going downstairs - and he certainly acted recklessly. But those things go to culpable homicide, not murder.

Well in this instance there is the overarching question of whether Pistorius genuinely believed that it was the mythical "intruder" in the toilet rather than Reeva, before one even addresses the question (which is only necessary to address if the answer to the first question is "yes") of whether he genuinely thought his life was in imminent danger.

But let's for a moment conduct a thought experiment, whereby there really was a genuine intruder hiding in the toilet, and where Reeva Steenkamp was still in the bedroom. Now it gets interesting. SA law is clear on this, and Pistorius had even been schooled and tested on this in the recent past: it's only acceptable to open fire if you feel your life is in imminent danger, and there are only certain well-defined circumstances in which you can justifiably claim your life was in imminent danger.

I truly think that the issue of "did he think it was an intruder or did he know it was Reeva" has actually clouded the court's (and media's) judgment massively in this case. Indeed, I think that had it really been a genuine intruder behind that door, there's a very good change that Pistorius would have been convicted of murder.

Again, it comes down to an objective, rational assessment of what Pistorius claims he was feeling at that point. And one of the factors speaking to that assessment has to be that Pistorius, as a licensed gun owner, would have been in no doubt whatsoever of what constituted (in the eyes of the law) an imminent threat to life and therefore a justification to fire.

Lastly, I would again say that there's a crucially important distinction to be drawn between a) feeling scared for your life, and b) feeling that your life was in imminent danger from the actions of another person. If Pistorius did genuinely feel that there was an intruder behind that door, then yes it makes sense that he would have been very scared, and also that he would have considered that the intruder had a weapon (possibly a firearm) which the intruder might at some point have tried to use against him (and/or Reeva). But it's a critical leap from there to him believing that the "intruder" was just about to cause him (and/or Reeva) serious injury or death - which is the only proper test here. And Pistorius, as per his firearms licensing tests, cannot but have know that with absolute clarity.

 

[katy_did]

Well in this instance there is the overarching question of whether Pistorius genuinely believed that it was the mythical "intruder" in the toilet rather than Reeva, before one even addresses the question (which is only necessary to address if the answer to the first question is "yes") of whether he genuinely thought his life was in imminent danger.

But let's for a moment conduct a thought experiment, whereby there really was a genuine intruder hiding in the toilet, and where Reeva Steenkamp was still in the bedroom. Now it gets interesting. SA law is clear on this, and Pistorius had even been schooled and tested on this in the recent past: it's only acceptable to open fire if you feel your life is in imminent danger, and there are only certain well-defined circumstances in which you can justifiably claim your life was in imminent danger.

I truly think that the issue of "did he think it was an intruder or did he know it was Reeva" has actually clouded the court's (and media's) judgment massively in this case. Indeed, I think that had it really been a genuine intruder behind that door, there's a very good change that Pistorius would have been convicted of murder.

Again, it comes down to an objective, rational assessment of what Pistorius claims he was feeling at that point. And one of the factors speaking to that assessment has to be that Pistorius, as a licensed gun owner, would have been in no doubt whatsoever of what constituted (in the eyes of the law) an imminent threat to life and therefore a justification to fire.

Lastly, I would again say that there's a crucially important distinction to be drawn between a) feeling scared for your life, and b) feeling that your life was in imminent danger from the actions of another person. If Pistorius did genuinely feel that there was an intruder behind that door, then yes it makes sense that he would have been very scared, and also that he would have considered that the intruder had a weapon (possibly a firearm) which the intruder might at some point have tried to use against him (and/or Reeva). But it's a critical leap from there to him believing that the "intruder" was just about to cause him (and/or Reeva) serious injury or death - which is the only proper test here. And Pistorius, as per his firearms licensing tests, cannot but have know that with absolute clarity.

Well, whether he genuinely believed it was an intruder is yet another question, and one which the judge had spent the first hours of her ruling discussing. So at the point where she was determining whether he was in fear of his life and whether he could have foreseen he would shoot Reeva, she has already established he believed there to be an intruder and is working on that presumption. When she said he couldn't have known he was shooting Reeva because he believed she was in the bedroom, that argument didn't come out of thin air, it was based on the argument she'd developed up to that point.

I agree that the did he/didn't he know it was Reeva question has clouded things massively in the media, and that there should have been more discussion of whether Pistorius would be guilty of murder or manslaughter if the judge accepted he believed he was shooting at an intruder. Especially because it was quite obvious that would be the most likely outcome - for me the murder/culpable homicide question was the only real uncertainty and hence the most interesting issue, so it would've been nice to see some analysis of it. That's what I mean when I say the so-called 'expert' commentary was atrocious - I guess it just made for better TV to talk exclusively about whether Pistorius did or did not knowingly murder his girlfriend.

As regards what constitutes an imminent threat to life, I don't think being knowledgeable about when he is or isn't allowed to use his firearm prevents Pistorius acting recklessly in the heat of the moment - and again, isn't this something that would apply more to culpable homicide than murder anyway? Knowing in theory when you're supposed to use your firearm might well be different to how a person reacts when they believe they're under immediate threat. If he's guilty of culpable homicide, then by definition he wasn't thinking as a reasonable person would.

 

[Azrael 5]

If you are OP and in fear for your life you'd be a lot safer on your legs surely? With or without a gun.
But this has all been discussed anyhow.

 

[DarthFishy]

Oscar acquitted on first 3rd charge (firing the gun out of a sunroof) as the state did not proof beyond a reasonable doubt that he did it.

I think the Judge is in a bit of a tough spot here. The evidence in this trial seems to suggest that Oscar did indeed murder Reeva Steenkamp. This suggestion is obviously not enough to convict (for murder) so the Judge cannot do that.

Will be interesting to see what the eventual sentence will be if (when?) he is convicated of culpable homicide.

 

[DarthFishy]

Oscar found guilty on the 2nd charge (handling the gun in the Tasha's restuarant).

So at least he's been found guilt of something offically so far

 

[lionking]

Convicted of culpable homicide. Good. The appeal will eventually convict him of murder.

 

[DarthFishy]

Convicted of culpable homicide. Good. The appeal will eventually convict him of murder.

He could still rot behind bars for quite a while just based on the culpable homicide verdict.