Should the prosecution appeal Judge Masipa’s decision acquitting Pistorius of murder

Monday, October 27, 2014

Good morning:

Defense and prosecution in the Oscar Pistorius case have 14 days to file a notice of appeal. I do not believe he is likely to appeal since he got off lightly, but the prosecution might.

The prosecution is unhappy with Judge Masips’a decision finding Pistorius not guilty of murder on the ground that they did not prove beyond a reasonable doubt that he intended to kill the person in the toilet cubicle when he fired 4 shots through the door. She reached this conclusion after deciding that the prosecution did not prove beyond a reasonable doubt that he intended to kill Reeva Steenkamp, and instead, that he mistakenly believed that an intruder was in the cubicle when he fired the shots.

Many people, myself included, disagree with her conclusion. We ask how could he not have intended to kill the person behind the door when he fired not one, but 4 shots, with Black Talon ammunition through the door into a confined space with no place to hide. People generally intend the natural and probable consequences of their acts and the death of the person behind the door should have been foreseeable to Pistorius.

However, despite the circumstantial evidence that he intended to kill when he fired the shots, he denied that he did and Judge Masipa specifically found that the circumstantial evidence of his intent did not overcome the presumption of innocence that he did not. She went on to decide that his failure to realize that firing those four shots would kill the person behind the door was grossly negligent and found him guilty of culpable homicide.

The prosecution is deciding whether to appeal her decision that they failed to prove beyond a reasonable doubt that he intended to kill the person behind the door.

This gives me an opportunity to discuss an important difference between our legal system and South Africa’s.

The Double Jeopardy Clause in the Fifth Amendment of the U.S. Constitution provides, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”

The Double Jeopardy Clause has been interpreted to prohibit retrying a defendant who has been acquitted of a crime. Therefore, under our law the prosecution could not appeal from what is, in effect, a judgment of acquittal on the murder charge.

Apparently, South Africa does not prohibit a retrial or the prosecution would not be considering an appeal.

If they appeal, I think they will argue that she did not actually decide whether she believed him. Instead, they will argue that her decision that they failed to overcome the presumption of innocence by proof beyond a reasonable doubt was wrong as a matter of law.

That is a different issue.

Nevertheless, I think the wiser course of action would be to decide to move on to avoid appearing to be sore losers.

They have another week to decide.

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8 Responses to Should the prosecution appeal Judge Masipa’s decision acquitting Pistorius of murder

  1. so jaded says:

    The judge should of had the guts to b honestl. She should of said, Oscar is not going to jail due to “INFLUENZA”. I would of had more respect for her.

  2. Greg Beasley says:

    I don’t think the prosecution should let this go because I sure am not going to. The judge is a flaming moron for believing that a person behind a locked door is an iminent threat. I’ve said this time and time again. Even if it was an intruder, it still would have been murder. That is the exact point that the judge is failing to grasp. A locked door means that person was either A) looking for privacy or B) hiding from a psychopath with a gun. It is obvious the answer is B and A would be murder as well. It only takes one second to look over in bed to see if your partner is laying next to you. I’m just glad it wasn’t my pathetic justice system that screwed this one up but the corrupt South America justice system. I wouldn’t doubt if that judge took a duffel bag of cash to give him a lighter sentence but not acquit him completely.

  3. Malisha says:

    I actually agree that this should be appealed, not so much because Pistorius got off easy, but because the logic of his acquittal for murder is too flawed to let it stand. IF he thought there was an intruder he would have immediately sought Reeva to see if she was safe. He could not have just forgotten Reeva was there. Also, he did not act like an intruder was there. If an intruder is there, you’re frightened, not enraged. “Get the F out of my house” is not credible.

    Also, four shots means he intended to kill, not protect himself.

    Not possible to twist all the evidence to come out with the conclusion that the court reached. I will bet that the assessors acted like a pro-defense jury. The woman assessor had connections to the special olympics folks (her husband is paraplegic I believe) and the other assessor is probably a sports-crazy blade-runner-worshipping South African who wouldn’t blame his hero no matter what he had done.

  4. ay2z says:

    Thanks, and sharing this just published on SABC Digital News with the NPA making their statement on appealing the conviction and appealing the sentence.

  5. bettykath says:

    thanks for the updates.

  6. Two sides to a story says:

    Shooting at anything in a confined space is intent to destroy. The chances are very good that will happen with more than one shot. The prosecutors would be right to appeal.

  7. Chris Torchia of the AP is reporting that the prosecution has just announced they are going to appeal the conviction on the issue that I described in my post.

  8. racerrodig says:

    I agree. Only liars claim they did not intend to kill when they open fire. Duuuhhnn’s claim was he wanted to “keep their heads down” Right……

    Pistorius claims he didn’t know who was in there……other than an intruder and we all know guns always scare intruders away. Well, most intruders die at the scene, but that’s just a trivial thing.

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