Oscar Pistorius shoots girlfriend - Part 2

[MikeG]

.......I do wonder whether he'll appeal.....

It is my reading that the only appeal he has left is to the constitutional court, and the only grounds for that would be that some human rights law has been breached during the trial. Legal experts have said that there appears to be no such case to even answer, so, if they are right, he won't be appealing because he can't.

 

[MikeG]

Well no, the state of the bladder proves Pistorius' story. No woman fleeing a threat sits and urinates.

It doesn't matter if you are right or wrong. It is irrelevant. When he fired through the door, no matter who he thought was behind that door, then he was committing murder.

 

[katy_did]

It is my reading that the only appeal he has left is to the constitutional court, and the only grounds for that would be that some human rights law has been breached during the trial. Legal experts have said that there appears to be no such case to even answer, so, if they are right, he won't be appealing because he can't.

There are some tweets from one of the legal commentators, David Dadic, which seem to suggest he may have some kind of case:

4 - constitutional appeals are very hard to come by- I've only done 2 in 17 years - but I think he may have an argument- was his trial fair?

5 - Constitution calls for a fair trial - did the TV coverage allow for that? were witnesses intimidated by seeing Nel on tv?

7 - and again I really believe they have the finances to launch that appeal and I think n face value they have grounds to at least be heard.

Aislinn Laing then tweeted "Wonder if Judge Leach didn't perhaps nod to the open door to Constitutional Court appeal with ref to media glare?" and Dadic replied "Roux also mentioned it in his closing, at trial / sentence, it was always on the cards".

Presumably the argument would be that the trial being televised breached his right to a fair trial. To me that does seem like a reasonable argument because of the emphasis placed on him being a "poor witness".

ETA: Dadic also suggested the sentence might be a factor in whether they appeal, and that if he gets, say, three years real time they might not bother. It's a minimum fifteen, but presumably that can be suspended.

 

[newyorkguy]

To my understanding, unlike Stand Your Ground states in the U.S., apparently in South Africa the standard for the use of deadly force is not what the defendant claims to have believed but the 'reasonable person' standard. Would a reasonable person have believed that the use of deadly force was absolutely necessary in this situation to protect themselves from imminent serious injury or death? Being that Pistorius, at best, did not who was in the bathroom or why, that no threats had been made, that he had the means to safely escape the apartment, that he had the means to summon police, I would think the answer is no: a reasonable person would have thought there were many alternatives besides using deadly force.

The other part was the judge's bizarre -- because that's what it was -- finding that someone who fires four shots through a door at a person on the other side could in no way foresee this action would be likely to kill the person on the other side of the door. That finding seemed incomprehensible.

 

[katy_did]

To my understanding, unlike Stand Your Ground states in the U.S., apparently in South Africa the standard for the use of deadly force is not what the defendant claims to have believed but the 'reasonable person' standard. Would a reasonable person have believed that the use of deadly force was absolutely necessary in this situation to protect themselves from imminent serious injury or death? Being that Pistorius, at best, did not who was in the bathroom or why, that no threats had been made, that he had the means to safely escape the apartment, that he had the means to summon police, I would think the answer is no: a reasonable person would have thought there were many alternatives besides using deadly force.

No, the reasonable person test applies to culpable homicide - it's an objective test. That's why Pistorius was convicted of culpable homicide, because a reasonable person would have known that the force he used was excessive. Murder, on the other hand, depends on the person's beliefs and state of mind at the time, it's a subjective test. A person needs to have the necessary criminal intention to murder. If Pistorius believed there was an intruder and that his life was in danger from the intruder at the moment he shot, that's likely to be culpable homicide rather than murder (because he believed the shooting was lawful, hence lacked the necessary criminal intention).

 

[Sergei Walankov]

You really should look up the Confirmation Bias fallacy.

I don't expect he'd find anything if he did. Biases and fallacies are quite different things.

 

[Guybrush Threepwood]

I don't expect he'd find anything if he did. Biases and fallacies are quite different things.

?

 

[icerat]

well I'm one who accepted Pistorius could be telling the truth, but I have no particular problem with this verdict. I understand the reasoning both behind the initial decision and this one and without sitting in the court and not being a South African legal expert, have to leave it to those experts.

 

[Puppycow]

Justice prevails, thank Ed.

 

[LondonJohn]

No, the reasonable person test applies to culpable homicide - it's an objective test. That's why Pistorius was convicted of culpable homicide, because a reasonable person would have known that the force he used was excessive. Murder, on the other hand, depends on the person's beliefs and state of mind at the time, it's a subjective test. A person needs to have the necessary criminal intention to murder. If Pistorius believed there was an intruder and that his life was in danger from the intruder at the moment he shot, that's likely to be culpable homicide rather than murder (because he believed the shooting was lawful, hence lacked the necessary criminal intention).

Yes, but the court still has to decide whether this alleged "belief" was honestly held.

Example: I am walking down the street with a knife in my pocket when another man (whom I don't know and have never met before) approaches me walking in the other direction. As the man nears me, he reaches into his own pocket (it later transpired that he was reaching for his mobile phone). I pull out my knife and stab the man once in the heart, killing him. I might try to claim in court that I genuinely believed the man was reaching for a deadly weapon with which to assault me, and that therefore my own knife attack on him was justifiable self-defence. While this is a subjective test, the court can still decide that I am lying about what I claim to have believed, and thus convict me of murder.

And likewise, the judges in the Pistorius case are entitled to conclude that he is lying when he claims to have been acting in terrified self-defence. In fact, the confused and contradictory nature of Pistorius' defence and his various conflicting statements lends real weight to the prospect that Pistorius was making stuff up to try to avoid facing the harshest verdict and punishment. He contradicted himself on what he said he heard from behind the door, and whether he really believed the door was opening as he took aim to shoot.

 

[katy_did]

Yes, but the court still has to decide whether this alleged "belief" was honestly held.

Example: I am walking down the street with a knife in my pocket when another man (whom I don't know and have never met before) approaches me walking in the other direction. As the man nears me, he reaches into his own pocket (it later transpired that he was reaching for his mobile phone). I pull out my knife and stab the man once in the heart, killing him. I might try to claim in court that I genuinely believed the man was reaching for a deadly weapon with which to assault me, and that therefore my own knife attack on him was justifiable self-defence. While this is a subjective test, the court can still decide that I am lying about what I claim to have believed, and thus convict me of murder.

And likewise, the judges in the Pistorius case are entitled to conclude that he is lying when he claims to have been acting in terrified self-defence. In fact, the confused and contradictory nature of Pistorius' defence and his various conflicting statements lends real weight to the prospect that Pistorius was making stuff up to try to avoid facing the harshest verdict and punishment. He contradicted himself on what he said he heard from behind the door, and whether he really believed the door was opening as he took aim to shoot.

Well yes, clearly it does. In this case, the court must have decided it to be reasonably possible Pistorius believed he was shooting at an intruder, but not reasonably possible he believed his life was in danger at the time. Which, as I said above, is certainly quite a fine judgment to make.

Masipa really screwed up by not making the straightforward, and likely appeal-proof ruling that Pistorius did foresee he would kill the person behind the door, but that he believed that person was an intruder and that his life was in danger from the intruder. Instead she got bogged down by arguing he didn't foresee he would kill anyone - she likely meant he didn't foresee he would unlawfully kill anyone, but unfortunately for Pistorius that's not what she wrote....

 

[The Atheist]

Now that justice has finally been served in this case any discussion of Pistorius' innocence should be moved to CT, because injustice, it is not.

 

[Rolfe]

Don't start that. The whole point of this forum area was to allow discussion of differing views about legal decisions without somebody who was so sure of their rectitude shouting "CT is thataway ----->"

Jeffrey MacDonald is a hell of a lot more obviously guilty than Pistorius, and that thread's still there.

 

[The Atheist]

Don't start that. The whole point of this forum area was to allow discussion of differing views about legal decisions without somebody who was so sure of their rectitude shouting "CT is thataway ----->"

Rectitude has nothing to do with it, it's based on fact, exactly as the Appeal Court judges have ruled.

In short: Oscar Pistorius guilty: He knew someone was in there. He shot to kill. And that is murder.

It just doesn't come any simpler than this case. The original judge made a legal error in not using that simple formula above. Any disagreement with that is both spurious and contrarian.

Jeffrey MacDonald is a hell of a lot more obviously guilty than Pistorius, and that thread's still there.

Never heard of him.

 

[Rolfe]

Rectitude has nothing to do with it, it's based on fact, exactly as the Appeal Court judges have ruled.

In short: Oscar Pistorius guilty: He knew someone was in there. He shot to kill. And that is murder.

It just doesn't come any simpler than this case. The original judge made a legal error in not using that simple formula above. Any disagreement with that is both spurious and contrarian.

I agree and yet don't agree at the same time.

I thought Pistorius was going to be convicted of murder at the original trial, on exactly these grounds. If you look at the first part of the thread you'll find me saying so. In this I pray in aid a friend who is a Scots lawyer who spends much of his time in South Africa, whose business partner is a South African policeman. That was his opinion too.

However, when the verdict was announced I saw that point of view too. And my SA-resident lawyer friend wasn't fulminating about it. It seems to hinge on whether Pistorius's own state of mind should be the deciding factor, or whether it should be based on the reaction of a normal reasonable person.

I think Pistorius was lying about his state of mind. I think it's likely that he knew it was Reeva behind the door, but even if he didn't, he intended to kill whoever it was. I think this schtick about being afraid for his life is so much eyewash. But that's just my opinion. I could see the possibility that a judge believed it couldn't be proven beyond reasonable doubt that he didn't act out of a genuine (if irrational) fear for his life.

So I think it's more debatable than you present it as, even though I agree with your conclusions.

I think Samson is plain wrong, is partisan, and appears not to understand the issues in the case. Nevertheless, this forum area was set up as a space where people could discuss differing opinions about court judgements without fear of being consigned to Conspiracy Theories for the crime of disagreeing with a verdict. I'd like it to stay that way.

Never heard of him.

Try the front page of the subforum. The thread (tedious and boring as it is) is currently active and has MacDonald's name in the title.

 

[The Atheist]

Fair enough - well put.

 

[trustbutverify]

well I'm one who accepted Pistorius could be telling the truth, but I have no particular problem with this verdict. I understand the reasoning both behind the initial decision and this one and without sitting in the court and not being a South African legal expert, have to leave it to those experts.

It was and is difficult for me to understand how the defendant could discount the obvious possibility that the reason his bathroom was mysteriously occupied was that the other person staying in his home was using it. I saw nothing in his defense that reasonably indicated why he felt that possibility was beneath consideration.

I think he murdered his girlfriend because he was enraged with her.

 

[Metullus]

It was and is difficult for me to understand how the defendant could discount the obvious possibility that the reason his bathroom was mysteriously occupied was that the other person staying in his home was using it. I saw nothing in his defense that reasonably indicated why he felt that possibility was beneath consideration.

I think he murdered his girlfriend because he was enraged with her.

Kinda where I was in the beginning.

 

[The Atheist]

I think he murdered his girlfriend because he was enraged with her.

I think that's pretty much what everyone thought.

The guy she was getting involved with was a forward, I think. Hard to blame Oscar if that was the case. Imagine losing a woman as beautiful as Reeva to a bloke who's slower than you with your legs off.

 

[TofuFighter]

It was and is difficult for me to understand how the defendant could discount the obvious possibility that the reason his bathroom was mysteriously occupied was that the other person staying in his home was using it. I saw nothing in his defense that reasonably indicated why he felt that possibility was beneath consideration.

I think he murdered his girlfriend because he was enraged with her.

I don't think it's inconceivable that in the state of just waking up, and fearing an intruder, he might have believed his girlfriend to have been in the bed next to him. Those are not conditions that promote the most sensible reactions.
I don't know what his level of confidence is when not on his prosthetics, or whether he is generally rational at all, but it seems fairly clear that he has some emotional issues. Whether those stem in part from his having lived a life different from most people, I can't say.

That Pistorius moved towards the 'threat' seems normal to me. I don't think I would just try to hide, as Nel suggested a reasonable man would do. When i hear a noise in my house, i don't sit in my bedroom and wait, I go to see what it might be, and I don't think that's unusual at all. I don't think it would be any different of i had a gun.

If Steenkamp didn't respond to his shouting, there would obviously be no further clue that it was her in there. Pistorius could have thought it was an intruder, and might have thought it was an intruder who was armed. This is why I am unclear as to how he could have been adjudged to know that his (and Steenkamp's) life was not under threat.

In general, I had the overall impression that Pistorius was angry and arrogant. He seemed to have a fantasy of using his weapon, liked the idea of an armed combat situation, and that he might have wanted to use his gun in a situation like that. This strengthens the notion for me that he thought he was shooting at someone who wasn't Steenkamp. Did he intend to kill that person? very likely. Did he know that there was no threat to him? I can't see that.

The above being said, it's no secret that the media can make people appear different than they are. I am not sure that my impression of his personality is accurate, and I think people are much more likely to lean towards 'feeling' he was guilty because he was an ******* and because his girlfriend was beautiful.

As a south african, it's possible that I have all manner of bias. I know what it's like to be attacked, I know the general state of having to be alert. I may not want Pistorius to appear representative. As far as i'm concerned, the courts must make their decision, and that must be that. I am scornful of people who "know" that he is either guilty or innocent, because in the simplest terms, there will never be certainty.