Oscar Pistorius shoots girlfriend

[The Don]

The state should fund an adequate defence. When I practised criminal law we had a duty to protect and preserve the legal aid fund. I imagine the same holds now. Trouble is, there are no votes in such things so it takes an enlightened government to uphold the underlying values.

In the case of the Pistorius trail, the defence seems to have found the "best" (i.e. the most suited to their case rather than necessarily being the best qualified or most pre-eminent) expert witnesses some of whom presented evidence on comparatively tangential matters. The defence has done what it is supposed to do, throw the kitchen sink at the case in an attempt to get an acquittal. If this approach was generally taken with public money then teh legal aid fund would soon be depleted.

The problem I have with legal aid is that there is a comparatively limited supply of money whereas there is an almost entirely elastic demand. On one hand it shouldn't be the case that only the well off have access to justice but there is a risk that public money will be used to prosecute or defend relatively frivolous cases (which either should never have been brought and/or could have been resolved through arbitration).

I'm really torn in cases of parents trying to work out custody of the children where both parties are funded through legal aid. On one hand, when relationships break down I understand that children can become pawns and parents want what's best for them. On the other, I'm annoyed that public money is being wasted away because ex-partners cannot come to an agreement regarding their children.

 

[anglolawyer]

In the case of the Pistorius trail, the defence seems to have found the "best" (i.e. the most suited to their case rather than necessarily being the best qualified or most pre-eminent) expert witnesses some of whom presented evidence on comparatively tangential matters. The defence has done what it is supposed to do, throw the kitchen sink at the case in an attempt to get an acquittal. If this approach was generally taken with public money then teh legal aid fund would soon be depleted.

He was on trial, in effect, for his life. Many believe his story, although at first surprising, might actually be true. He is entitled to (and has duly received) the benefit of the doubt anyway. Public funding should pay for an adequate defence as (or even more than) it does for cancer treatment for everybody (in the UK anyway).

The problem I have with legal aid is that there is a comparatively limited supply of money whereas there is an almost entirely elastic demand. On one hand it shouldn't be the case that only the well off have access to justice but there is a risk that public money will be used to prosecute or defend relatively frivolous cases (which either should never have been brought and/or could have been resolved through arbitration).

No one suggests a bottomless well of money but the budget, again in the UK, is about £2 billion. Peanuts. We burn many times as much building useless aircraft carriers with no planes or writing off bungled IT projects. The state effectively has unlimited funds to spend on prosecuting cases while cash-strapping those doing defence work. Matters have now come to this (in the UK): a judge throws out a case because there are no barristers willing to act for the defence due to inadequate funding, the govt. appeals and is successful. It turns out the barrister appearing for the govt. was paid a rate 2-3 times as much as the govt is willing to pay the defence lawyers.

I'm really torn in cases of parents trying to work out custody of the children where both parties are funded through legal aid. On one hand, when relationships break down I understand that children can become pawns and parents want what's best for them. On the other, I'm annoyed that public money is being wasted away because ex-partners cannot come to an agreement regarding their children.

Different topic altogether. AFAIK public funding has been entirely withdrawn for custody disputes and family work generally, except for domestic violence. I am actually fine with that. Let a social worker decide. Nobody's liberty is at stake.

 

[Colin from France]

The sentence is to fit the crime not the accused !

 

[DrDave]

I don't think it is lenient, this is his worst nightmare. In prison there really will be a burglar in the bathroom

 

[The Don]

He was on trial, in effect, for his life. Many believe his story, although at first surprising, might actually be true. He is entitled to (and has duly received) the benefit of the doubt anyway. Public funding should pay for an adequate defence as (or even more than) it does for cancer treatment for everybody (in the UK anyway).

Where do you draw the line in providing expert witnesses at public expense ? In the case of medical treatments, NICE is the final (or in the case of cancer treatment penultimate) arbiter of whether a treatment is covered under the NHS. If NICE don't consider the treatment to be value for money then it isn't provided (though there is a separate limited cancer drugs budget for those treatments not offered though it's finite).

Who defines what is an adequate defence ?

No one suggests a bottomless well of money but the budget, again in the UK, is about £2 billion. Peanuts. We burn many times as much building useless aircraft carriers with no planes or writing off bungled IT projects. The state effectively has unlimited funds to spend on prosecuting cases while cash-strapping those doing defence work. Matters have now come to this (in the UK): a judge throws out a case because there are no barristers willing to act for the defence due to inadequate funding, the govt. appeals and is successful. It turns out the barrister appearing for the govt. was paid a rate 2-3 times as much as the govt is willing to pay the defence lawyers.

I won't justify the expenditure on aircraft carriers and bad IT systems but to truly compare like with like, the costs for these are one-off, the legal aid budget is annual.

I highlight a personal bias. I have a very jaundiced view of the billing practices of the legal profession based on my own limited experience. The three times I have received a detailed breakdown of a legal bill I have found many items I have been billed for which never happened or having been billed more than once for a single service. In each case I ended up with a significant deduction, once it was a little over 50% - my bill contained several hundred pounds worth of fees for a completely different client, only noticed when i pointed it out. I'm not convinced that lawyers are the right people to be in charge of an effectively unlimited pot of public money. As noted, I have a personal bias.

 

[LondonJohn]

Can the prosecution even do that?

Yes, but I believe the prosecution can only appeal the verdict on point of law, not on findings of fact.

In this instance, it appears that the prosecution now have two separate valid grounds for appealing the murder acquittal on points of law:

1) The dolus reasoning given in the judgement (Masipa's error here appears to be pretty bad - there's even good grounds to argue that this is actually a dolus directus case (with error in persona) rather than a dolus eventualis case; either way, her oral judgement appeared to be errant on the whole issue)

2) The sentencing judgement, where Masipa clearly stated that Pistorius was knowingly firing through the door in the direction of a human being - which tends to contradict her verdict judgement

I think it will be very interesting to see whether a prosecution appeal is lodged. After all, the Steenkamp family appear (on the face of it, at least, per their comments after the sentencing) to be satisfied with the outcome, but there's also the wider public interest to take into account of course. On balance, I think there will be a prosecution appeal, but it's by no means a confident prediction.

 

[anglolawyer]

Where do you draw the line in providing expert witnesses at public expense ? In the case of medical treatments, NICE is the final (or in the case of cancer treatment penultimate) arbiter of whether a treatment is covered under the NHS. If NICE don't consider the treatment to be value for money then it isn't provided (though there is a separate limited cancer drugs budget for those treatments not offered though it's finite).

Who defines what is an adequate defence ?

The answer to both is the collective good judgment of the profession, as controlled by the paymasters at the Legal Aid Board (or whatever they are calling themselves these days). It worked fine in my day. If you needed an expert you had to apply for authority and explain why. If you needed another, ditto.

I won't justify the expenditure on aircraft carriers and bad IT systems but to truly compare like with like, the costs for these are one-off, the legal aid budget is annual.

Good point. I was only saying that the cost is pretty damn small. I read today (Law Society's Gazzette) that the total cost of the judicial system in the UK (legal aid plus the court system: judges, staff, whathaveyou) is equivalent to £1.57 per person per week. Peanuts, like I said.

I highlight a personal bias. I have a very jaundiced view of the billing practices of the legal profession based on my own limited experience. The three times I have received a detailed breakdown of a legal bill I have found many items I have been billed for which never happened or having been billed more than once for a single service. In each case I ended up with a significant deduction, once it was a little over 50% - my bill contained several hundred pounds worth of fees for a completely different client, only noticed when i pointed it out. I'm not convinced that lawyers are the right people to be in charge of an effectively unlimited pot of public money. As noted, I have a personal bias.

I could probably top your horror stories with better ones but lawyers have not been in control of the legal aid budget since the 1980s or thereabouts when the Law Society was divested of responsibility. No one is suggesting returning to that. The problem is that the overall size of the budget, the areas no longer covered and the rates being paid are destroying access to justice for a huge swathe of the populace.

 

[katy_did]

Yes, but I believe the prosecution can only appeal the verdict on point of law, not on findings of fact.

In this instance, it appears that the prosecution now have two separate valid grounds for appealing the murder acquittal on points of law:

1) The dolus reasoning given in the judgement (Masipa's error here appears to be pretty bad - there's even good grounds to argue that this is actually a dolus directus case (with error in persona) rather than a dolus eventualis case; either way, her oral judgement appeared to be errant on the whole issue)

2) The sentencing judgement, where Masipa clearly stated that Pistorius was knowingly firing through the door in the direction of a human being - which tends to contradict her verdict judgement

I think it will be very interesting to see whether a prosecution appeal is lodged. After all, the Steenkamp family appear (on the face of it, at least, per their comments after the sentencing) to be satisfied with the outcome, but there's also the wider public interest to take into account of course. On balance, I think there will be a prosecution appeal, but it's by no means a confident prediction.

While I think the judge's ruling could certainly have been clearer, I don't think she's made any legal error on dolus.

The key point is that an acceptance of putative private defence excludes dolus (whether it be directus or eventualis). The judge clearly accepted this defence (at least partially) when she accepted, first, that Pistorius believed the person who was shooting at to be an intruder, and second, that he believed his life was in danger from said intruder. This makes the question of whether he foresaw he would kill that 'intruder' moot.

The judge could've avoided the confusion by adding an "unlawfully" into the sentence "it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be [unlawfully] killed when he fired the shots at the toilet door". But that's clearly what she meant (given that murder is not just killing someone but doing so unlawfully, and being aware that it was unlawful) so I'm not at all sure the prosecution would succeed in appealing what amounts to a semantic point.

On issue (2), the judge believed he had "intention to shoot", but then states this doesn't necessarily mean "intention to kill" (intention in a legal sense, of course), so I don't think there's any contradiction between verdict and sentence there.

My fairly confident prediction D) is that there'll be no appeal from either prosecution or defence. Note the comments from the prosecution and defence in court yesterday: Nel: "'I think the court has done what it should do. It's the end of the case"; Roux: "I agree my lady".

 

[Doghouse Reilly]

The only thing Masipa said about Reeva today was that she “was good in front of a camera.” No mention of her law degree, no mention of her work with victims of domestic violence. How disrespectful.

To Masipa Oscar was the poor, downtrodden victim who lost everything, who was broken, while Reeva was nothing more than bikini-clad eye candy.

Disgusting.

Yeah, I'm really starting to wonder why some people seem to think this judge is so great.

She seems like a moron.

 

[anglolawyer]

Yeah, I'm really starting to wonder why some people seem to think this judge is so great.

She seems like a moron.

A bit strong, surely. She reminds me of the black midwife who attended my son's birth. As tough as crap and did not go in for any molly coddling of his poor mother. It's only childbirth, get over it.

 

[Ampulla of Vater]

A bit strong, surely. She reminds me of the black midwife who attended my son's birth. As tough as crap and did not go in for any molly coddling of his poor mother. It's only childbirth, get over it.

I don't think Masipa was "as tough as crap" in any respect. She seemed to me to be rather empathetic, at least toward OP.

As for your midwife experience, clearly that woman had never birthed a child or her attitude would have been quite different!

 

[Samson]

Yes, but I believe the prosecution can only appeal the verdict on point of law, not on findings of fact.

In this instance, it appears that the prosecution now have two separate valid grounds for appealing the murder acquittal on points of law:

1) The dolus reasoning given in the judgement (Masipa's error here appears to be pretty bad - there's even good grounds to argue that this is actually a dolus directus case (with error in persona) rather than a dolus eventualis case; either way, her oral judgement appeared to be errant on the whole issue)

2) The sentencing judgement, where Masipa clearly stated that Pistorius was knowingly firing through the door in the direction of a human being - which tends to contradict her verdict judgement

I think it will be very interesting to see whether a prosecution appeal is lodged. After all, the Steenkamp family appear (on the face of it, at least, per their comments after the sentencing) to be satisfied with the outcome, but there's also the wider public interest to take into account of course. On balance, I think there will be a prosecution appeal, but it's by no means a confident prediction.

LJ, on 2), I am unclear whether the angle, notwithstanding 4 shots increases the odds of a hit, actually can be construed as intent beyond alerting the person to a state of non complacency. I am not sure how much is made of the fact Reeva came very close to surviving the shots.

 

[anglolawyer]

I don't think Masipa was "as tough as crap" in any respect. She seemed to me to be rather empathetic, at least toward OP.

As for your midwife experience, clearly that woman had never birthed a child or her attitude would have been quite different!

She was tough too! In two respects at least. First, she thought only a softie would defend themselves with a gun unless the intruder was actually standing over the bed with a machete raised to strike and second she did not think his disability a factor in whether he should go to jail.

 

[LondonJohn]

Hate to say "I told you so", but.....

http://abcnews.go.com/International...eal-oscar-pistorius-verdict-sentence-26480277

 

[NWO Sentryman]

According to news reports. In other words I'm not certain

I think Double Jeopardy would apply in this case.

 

[Skwinty]

I think Double Jeopardy would apply in this case.

Not in this case. The law allows for appeals on the grounds of errors in law and logic.

 

[etcetera]

Another problem with Oscar Pistorius' version of events led me to doubt his story was truthful. Beyond the fact he failed to check to make sure Reeva Steenkamp was still in bed before going to confront the intruder.

Why did he decide to leave her alone in the bedroom while he went to confront what he claims to have believed was a lone intruder. Why would he have assumed there was just the one intruder? How would he have known there wasn't someone else in the apartment? How would he have known intruder #2 wouldn't attack a defenseless Steenkamp while he went to confront intruder #1?

IMO he knew that wouldn't happen because there never was an intruder. It's just his story. I'm not surprised the police didn't buy it and instead arrested him and charged him with murder. However once you get in court the prosecutors have the difficult task of "proving" what Pistorius thought. How could they do that?

OP didn't assume there was just one intruder. As early as his bail affidavit he claimed to have thought there could be more than one, i.e.:

"I noticed that the bathroom window was open. I realised that the intruder/s was/were in the toilet because the toilet door was closed... "

and during testimony he spoke of "intruders" telling how he had to dart looks between the toilet door and the bathroom window scared there could be intruder/s on a ladder, i.e.:

OP: I thought there was a possibility that one or more persons was* in the toilet, or on the ladder, M'Lady.

*NB: I think safe to assume "was" is merely a grammatical faux pas of which the Afrikaans seem particularly prone!

 

[etcetera]

Respectfully ✄ for focus

Something that continues to bug me is this slip of the tongue:

During Oscar's testimony, around 16:45 Nel asks him if he was screaming or shouting after firing the shots. OP replies he was screaming. Nel asks why would he scream and Oscar says:

“I was scared, I wanted to...(pause)... ask Reeva why she's phoning the police. I was scared that there was someone coming out of the bathroom stall.”

Be bugged no longer since 'that's not what Oscar says. Indeed that piece has been analysed to rendition on the blogosphere with so many prematurely dancing will glee they had him nailed. But Nel ain't daft and would have caught that so if you listen carefully (best with earphones, isolating the piece in a loop and listening at different speeds) it is clear that what OP actually says is (you have to watch the video to hear Nel's foreshortened interruption):

Nel: Why would you scream out?
OP: I was scared. I wanted to ...
Nel: (intervenes) Sca...
OP: ... ask Reeva why... if she's phoning the police.
​

My take, and IMBW, of course, OP was about to say, "I wanted to ask Reeva, "Why hasn't she phoned the police", but suddenly realised it would seem like he was blaming her again so mid sentence changed to, "I wanted to ask Reeva if she's phoning the police".

 

[etcetera]

Respectfully ✄ for focus:
Supposedly OP owned a house in Italy and had offshore accounts. Roux stated in court that there was no house in Italy and one account was in Brunswick, North Carolina from 2002 and was dormant. The memory stick was never returned to investigators so it's possible other financial information was never disclosed.

I seem to recall reading that the house in Italy was another of Botha's tricks used to paint OP as a flight risk and deny him bail but which was proven false.

 

[etcetera]

I think the prosecution won't appeal the sentence, but will appeal the not guilty of murder judgement.

Well done, your prediction 50% out of 100% correct!

Correct: The prosecution has today announced they will be appealing the verdict on the basis that it should have been murder

Incorrect: The prosecution has today announced they will also appeal the sentence.