Oscar Pistorius shoots girlfriend - Part 2

[Samson]

I'm not sure how the law works in South Africa but I was very surprised to read the grounds upon which Pistorius' lawyers are appealing the latest ruling (finding him guilty of murder). Specifically the lawyers are arguing that the "reasonable man" (or in this case "the rational person") standard does not and should not apply to Pistorius. From the link:


The court erred by using objective reasoning? That's a new one.

I do agree that, essentially, Pistorius has already been judged not to have deliberately killed Reeva Steenkamp. The finding is that in firing four shots into the water closet Pistorius should have known (as would any reasonable or rational person) that the action would be quite likely to kill whoever was in the closet. I think most nations would consider that manslaughter (or the local equivalent). If a defendant takes an action of which a foreseeable result is someone getting killed, and someone does in fact die, pleading, "I didn't mean to kill them," is not a legally viable defense.

Except Pistorius is claiming that in his case it should be an adequate defense due to his anxiety disorder. That's ironic because aren't his lawyers basically conceding: The court got it right for rational people but not for Oscar.

Function is so important in this case. Form of law can be debated till eternity, but there is one supremely interesting question to be answered.

Did Oscar Pistorius know he was shooting through the door at Reeva, or did he "know" he was shooting at an intruder?
Beyond the answer to this hybrid question the case is tedious, surely. Everyman's opinion of appropriate penalty under either scenario is totally valid, but we should regard this as a dichotomised sanction phase.

 

[lionking]

Did Oscar Pistorius know he was shooting through the door at Reeva, or did he "know" he was shooting at an intruder?.

How many times do you have to be told that this is utterly irrelevant? What I believe (he did) and you believe (he didn't) is of no consequence at all. Have you been reading this thread and links to the actual judgement?

You are talking about something, but it's not the Pistorius case. Perhaps you need to open a thread called "Illelevant ramblings about hypothetical cases"?

 

[Samson]

How many times do you have to be told that this is utterly irrelevant? What I believe (he did) and you believe (he didn't) is of no consequence at all. Have you been reading this thread and links to the actual judgement?

You are talking about something, but it's not the Pistorius case. Perhaps you need to open a thread called "Illelevant ramblings about hypothetical cases"?

How many times must I declare in good faith this is the most relevant question? And I am personally sure he shot at an "intruder". Therefore he should be sentenced on that fact.

When I say sure, not so sure as the sun will rise, but sure to an extent where the continuum approaches that.
But I also understand few in the world agree, so my opinion is irrelevant.

 

[MikeG]

How many times must I declare in good faith this is the most relevant question?.....

You can declare it thus as often and as vehemently as you like, but you are wrong. You aren't allowed to kill people without being under threat.

But I also understand few in the world agree, so my opinion is irrelevant.

What I don't understand is that knowing this, and reading the judgement, you don't at least consider for a second that you might have hold of the wrong end of the stick.

 

[Samson]

You can declare it thus as often and as vehemently as you like, but you are wrong. You aren't allowed to kill people without being under threat.


What I don't understand is that knowing this, and reading the judgement, you don't at least consider for a second that you might have hold of the wrong end of the stick.

But I see a perfect dichotomy.
Shoots at Reeva or intruder.

Masipa found the latter to be fact. And she is a vehement feminist.
What is complicated about my agreeing entirely with her?
The story Pistorius related with supporting phone calls and timing immediately after the shooting is close to incontrovertible.

 

[MikeG]

You're talking to someone who thinks that he shot at the door thinking there was an intruder behind it. That is still murder, unless he was in reasonable fear of his life......which isn't the case with a shut door between him and the victim. You are being emotional and illogical, and assuming that you are allowed to kill anyone you like in your house if you think they entered illegally.

 

[Samson]

You're talking to someone who thinks that he shot at the door thinking there was an intruder behind it. That is still murder, unless he was in reasonable fear of his life......which isn't the case with a shut door between him and the victim. You are being emotional and illogical, and assuming that you are allowed to kill anyone you like in your house if you think they entered illegally.

Ah, I did not gather that you agree with Masipa's call. The fact is that most people will not believe he could have been mistaken, and that is simply how the world views it. The penalty phase I find of much less interest than the facts that led to the crime.
Because I am an anti gun sort of thinker, I don't have much sympathy for Oscar the shootist. But I think society should let him do penance outside of a penitentiary. I happen to believe if it was a mistake, he should be channelled to a useful community role.

 

[MikeG]

Why on earth should he be treated any differently to anyone else who murders someone?

I believe that I have explicitly stated elsewhere in the thread and in response to you, that I accept OP's claim that he thought there was an intruder.

 

[newyorkguy]

...Shoots at Reeva or intruder...Masipa found the latter to be fact.

Judge Masipa did not find that Pistorius believed he was shooting at an intruder to be fact. Instead, in her decision, she said, "there was a reasonable possibility." She found, and I think anyone familiar with the way criminal law works would agree with her, there was not enough evidence to prove Pistorius deliberately killed Steenkamp. There were some indications there had been a quarrel, that possibly Steenkamp was about to end their relationship, but Pistorius denied all of that and provided an alternate explanation. The state was unable to prove beyond a reasonable doubt that it was intentional murder.

I wonder whether this newest defense will work, that because of his anxiety and physical disability he should be judged by a lower standard. Not the rational person standard but the rational physically disabled and riddled with anxiety person. In the states I think it would be called an "extreme emotional duress" defense. Except in the examples I saw it was usually used after a revenge killing, often when someone's child had been abused and the parent killed the abuser. The defendant (or their lawyers) also have to concede that the defendant knew their actions were wrong, were consistent with committing manslaughter, but because of extreme emotional duress they were unable to control themselves. It seems like a last ditch effort. (Pistorius is facing a mandated minimum of 15 years in prison.)

What I don't understand is, did Pistorius' lawyers bring this up during the trial? In a way this latest claim seems like an effort to re-try the case by appeal.

 

[Hard Cheese]

I wonder whether this newest defense will work, that because of his anxiety and physical disability he should be judged by a lower standard. Not the rational person standard but the rational physically disabled and riddled with anxiety person.

Does a disability absolve one of acting in the manner of the "reasonable man"? My thoughts are that if you are granted the license to possess a handgun, then there can be no excuse for not behaving like and being judged to the same standards as the "reasonable man". A blind man with a driver's license can't run through a crowd of people and be excused because of their disability.

 

[newyorkguy]

If I understand this correctly, Pistorius' lawyers have given up on getting a court to find Pistorius not guilty or reverse his conviction. Instead they are trying to get the original sentence reimposed (which I believe Pistorius has already served) rather than the fifteen year sentence the appellate court imposed.

The appellate court ruled that the trial judge (Masipa) erred when she ruled that firing four shots into the water closet was not evidence Pistorius meant to kill whoever was in there either by design or neglect. That while the killing was the result of Pistorius' negligence it was mitigated by the fact Pistorius was unaware he might cause a death. Thereby he was given the most lenient sentence possible.

The appellate court ruled that by law, using the rational person standard, Pistorius should've known he was likely to kill the occupant and legally obligated to know. It sounds like his lawyers are arguing -- because Pistorius is a double-amputee with acute anxiety disorder -- that Pistorius was so terrified that he truly wasn't aware he might kill whoever was in the water closet and the court should recognize that.

I think that would be an extremely bad precedent to set and I don't expect this to be successful.

 

[Elagabalus]

If I understand this correctly, Pistorius' lawyers have given up on getting a court to find Pistorius not guilty or reverse his conviction. Instead they are trying to get the original sentence reimposed (which I believe Pistorius has already served) rather than the fifteen year sentence the appellate court imposed.

The appellate court ruled that the trial judge (Masipa) erred when she ruled that firing four shots into the water closet was not evidence Pistorius meant to kill whoever was in there either by design or neglect. That while the killing was the result of Pistorius' negligence it was mitigated by the fact Pistorius was unaware he might cause a death. Thereby he was given the most lenient sentence possible.

The appellate court ruled that by law, using the rational person standard, Pistorius should've known he was likely to kill the occupant and legally obligated to know. It sounds like his lawyers are arguing -- because Pistorius is a double-amputee with acute anxiety disorder -- that Pistorius was so terrified that he truly wasn't aware he might kill whoever was in the water closet and the court should recognize that.

I think that would be an extremely bad precedent to set and I don't expect this to be successful.

Yes, it's a much better precedent to set that on appeal a sentence can be extended. Do you think that would fly in New York?

 

[Hard Cheese]

Yes, it's a much better precedent to set that on appeal a sentence can be extended. Do you think that would fly in New York?

Not to derail the thread, but that's exactly what happened in the Mark Lundy case in NZ. He appealed and got 2 more years added to his sentence.

 

[newyorkguy]

I don't think a U.S. prosecutor can appeal the sentence in a case where there has been a conviction in the same way, but I doubt the South African court was setting a precedent by doing that. I would presume it is an established procedure under South African law.

A legal precedent means it's something new, it's never been done that way before. But please note that Pistorius' lawyers only criticized the reasoning used to impose a harsher sentence, not the fact the court had done that. They seem to accept that overturning a trial judge's sentence is a proper use of the appeal court's power. Sounds to me like it is a well-established part of SA criminal law.

 

[Elagabalus]

... Sounds to me like it is a well-established part of SA criminal law.

Yes, thanks for the def. And do you think that is... fair? Do you think someone should be penalized for making an appeal?

 

[Samson]

Yes, thanks for the def. And do you think that is... fair? Do you think someone should be penalized for making an appeal?

Of course Tony de Malmanche forewent his right to appeal 15 years in Indonesia, for drug carrying. He was mindful that the sentence could easily increase to being shot.

 

[newyorkguy]

Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.

Despite some objections in extending the State's right of appeal to inadequate sentences, the Criminal Law Amendment Act, 107 of 1990, granted the Attorney-General the right to appeal against sentences imposed by lower and by superior courts. The change in the law was precipitated by “lenient” sentences imposed by a circuit court in a case concerning interracial violence. Link

ETA - The above can be found in a section beginning on page 25 (of the 108-page report).

 

[Samson]

Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.



ETA - The above can be found in a section beginning on page 25 (of the 108-page report).

Masipa decided he believed he shot at an intruder. Therefore the bloodlust of the proletariat should be denied.
Law is irrelevant to this process. Law occludes at every step. You New Yorkers are presumed by the rest of the world who are in awe of your civility and sophistication to be able to nuance this??

 

[catsmate]

Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.

It's quite common in Common Law jurisdictions (e.g. UK, Ireland, Australia) for a prosecutor to be able to appeal an "unduly lenient" sentence, though not in the US since the DiFrancesco case.

 

[MikeG]

.....Law is irrelevant to this process.....

What? Could you explain this?