He is guilty of culpable homicide, who thinks he is innocent?
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Oscar Pistorius shoots girlfriend
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I think the prosecution will appeal and the matter will come before a bench of supreme court of appeal judges. They will decide on Masipa's application of facts to law on the dolus eventualis.
Pistorius is not off the hook yet and the conviction of culpable homicide could turn into a murder conviction.
That's the surprise.
That's my prediction too.
I bet you are wrong.
Scordatura
Critical Thinker
Would that only apply in the case of mistaken identity? I think I'm just confused about some of her statements. For example, she said a reasonable person with OP's disability firing shots with that type of ammunition into a small toilet would have foreseen that the person inside might die. She concluded that OP therefore acted negligently. Verdict: culpable homicide.
Earlier she wrote that OP wasn't truthful when asked about his intentions since he armed himself with a lethal weapon and he wasn't “candid” (i.e. lied) when he said he had no intention to shoot anyone. But she goes on to say that the chronology supports OP's explanation that shooting the deceased (Reeva) was a genuine mistake.
Then she went back to the question of whether OP had the intention to kill the person behind the door but since he stated no, that raised a putative private defense. IOW if OP thought an intruder was in the toilet and he believed he was acting lawfully when he fired.
Here's where I'm confused. She asks two questions: One, did OP foresee it was Reeva behind the door and two, did he fire the shots anyway. What happened to putative private defense? She then reframed the questions to: Did OP foresee the possibility of the resultant death and yet persisted recklessly whether or not death ensued. She said no, clearly he didn't subjectively foresee that he would kill anyone, let alone the deceased.
Masipa then used Dr. Stipp's testimony about how distraught OP was in order to support her conclusion:
If I understood correctly, Masipa considered OP's behavior after shooting Reeva to be evidence that he didn't intend to kill her or anyone else. According to her the only alternative reason for his behavior would be that he was play acting in order to fool people. Black or white. Why isn't it possible that he regretted his actions after the fact regardless of who he thought he shot? More importantly, how does that support a lack of intent during the act?
Yet she maintains that belief throughout her judgment.
As an aside, after continuing OP's bail Masipa warned his defense and family that there should not be any “further complications” – referring to the nightclub fight in July. OP's 27, not 7, so the comment should have been directly addressed to him. Maybe it was just unfortunate wording but it came off sounding like she thinks OP is incapable of conducting himself appropriately in public and needs assistance from someone in order to keep his temper in check.
MontagK505
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I don't understand either. It's common for people who kill people in a rage or by accident to regret their act. I regard Oscars histrionics (vomiting, weeping etc.) to be irrelevant to the actual events.
Skwinty
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Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)
http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/
"There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic."
http://criminallawza.net/2014/09/28...ustify-judge-masipas-errors-revised-expanded/
"There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic."
Congratulations on a great win against Australia. I will now read the article.
Skwinty, I have copied this exerpt from your article
There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic
The issue remains, did she make errors that enshrine a neglect of ethical considerations. I contend that, from what I have read, she is an extraordinary human being. She is brave, knowing that her report is contested.
There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic
The issue remains, did she make errors that enshrine a neglect of ethical considerations. I contend that, from what I have read, she is an extraordinary human being. She is brave, knowing that her report is contested.
Skwinty
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Yes, she is an extraordinary human being and the personal attacks on her are uncalled for. She may have made errors in law and logic but that is no reason for the vitriol that has been directed at her. I guess old habits die hard for some in this great country.
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You will be closer to the concept of personal attacks on this quiet spoken and, to me, deeply impressive woman, absent the ridiculous 250 year sentence for a rapist, which makes me reflect on my otherwise favourable views.
With respect to your views on a great country, your people are fantastic immigrants. No statistics on jail population here, I expect NIL.
katy_did
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In response to the bolded question, I think she deals with this in the section just before she addresses whether he foresaw it was Reeva behind the door, when she asks whether he believed his life was in danger from the 'intruder'. Having decided that he did (or at any rate that there's a reasonable possibility that he did) she then asks whether there's any possibility, however small, that he had a suspicion it could have been Reeva or anyone else (aside from the intruder) behind the door. Even if he did think it was an intruder, if he thought there was maybe a 5% chance it was actually Reeva then he should still have been convicted of murder. However the judge obviously concluded he didn't think there was any chance it was Reeva, because he was convinced she was still in bed.
When she asks whether he foresaw he would kill anyone behind the door, I don't think she's including the phantom intruder within that category (it would've been clearer if she'd asked whether he foresaw he would kill anyone unlawfully). Intention to kill the intruder has already been excluded by his belief that his life was in danger: "his erroneous belief that his life was in danger excludes dolus".
She considers the second part of the putative private defence question - whether he used excessive force - under culpable homicide, and in that case, of course, decides that a reasonable person holding the beliefs Pistorius did (that there was an intruder, that his life was in danger) wouldn't have acted as he did. I actually agree with Anglo that this part is a bit shaky. I don't think she can argue that he should have made sure it was Reeva, because that would imply he thought there was a chance she could've been in the toilet, in which case he would've been convicted of murder. So she has to use other arguments - that he should've called security or shouted from the balcony - which don't seem all that strong to me. I wonder if the defence might appeal on those grounds, though it'll probably depend on the sentence.
I'm not sure how strong the prosecution's grounds for appeal are - the judge isn't especially clear in her reasoning, but from what I've read so far I'm not convinced there are legal errors (it's noticeable that Grant, for example, never addresses the fact that the judge accepted Pistorius believed his life was in danger and her statement that this excludes dolus, which presumably makes the question of whether he foresaw he would kill the 'intruder' redundant).
Scordatura
Critical Thinker
Thanks for your explanation. I think part of my confusion was due to Masipa referring to Reeva and an intruder interchangeably at times, and as you said, not specifically addressing whether OP thought he was acting lawfully when he fired. Professor Grant's blog, linked upthread was also helpful.
I thought this would be a straightforward case of putative private defense. My understanding of it is that it would come down to whether or not OP, as a certified gun owner, believed he was acting lawfully when he shot through the toilet door. Stander's testimony about OP's excited utterance that he thought Reeva was an intruder seemed to indicate that was OP's belief at the time of the shooting so it was surprising when OP claimed he pulled the trigger accidentally.
Masipa didn't buy OP's story about shooting accidentally but I'm disappointed by some of her logic. In any case though, I'm not the judge, she is and if her interpretation of the law is sound then I'll accept her verdict. I hope she doesn't let him off the hook with a suspended sentence or community service. At the very least Reeva died because of OP's reckless use of a lethal weapon and to excuse his behavior is an insult to her family.
MontagK505
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He pulled the trigger four times accidentally? Really? If she lets him off with a light sentence, you will definitely see an appeal.
Scordatura
Critical Thinker
Masipa noted some things in the case that didn't make sense, including:
Sentencing is on October 13 so I guess we'll see what happens.
yup. Four warning shots to the body and the head.
Or to the hips and knees.
You used the term "absolutely", as in we know for a fact that OP did not shoot her deliberately. I happen to think he did. How could you possibly know this absolutely?
I think OPs version of events is ridiculous, but hats off to the defense team.
Way above the knees. The shots were roughly horizontal from his firing position which was well above knee level.
Doghouse Reilly
Adrift on an uncharted sea
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You're not the only one to have said this, and sorry if I missed it earlier in the lengthy thread: what, in particular, is "deeply impressive" about the judge? I'm not trying to be snarky; I genuinely am wondering. I read the Wiki article on her and nothing really stood out as being beyond the ordinary.
Wiki says:
While nice traits in a person, they are generally the type one would expect in a high-ranking judge (obviously, too often that isn't the case, but I don't give extra credit to people for upholding the dignity of the office assigned to them, as they should at a bare minimum. To be "deeply impressive" one must go well beyond the norm.
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Impressive relative to the expectations for her ethnicity and social position. I agree, having got there she should be judged against others doing the job.
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