Whither thou goest Oscar Pistorius

September 10, 2014


3 dimensional walk-through of Pistorius bedroom/bathroom

Wednesday, September 10, 2014

Good morning:

Crane-Station’s efforts to resuscitate her computer have been unsuccessful so I am subbing for her today.

Tomorrow morning at 3:30 am EDT, Judge Thokozile Masipa will announce her decision in the Oscar Pistorius case. He is the famous disabled South African paralympian known as the Blade Runner. An audience of millions will be watching.

Both legs were amputated below the knees when he was 11 months old because he was born with detached fibia and tibula bones. He competed by wearing a curved metal prosthesis that functioned like a spring permitting him to compete against the fastest sprinters in the world. He won a gold medal in the 100 meter sprint at the paralympics and barely missed qualifying for the 100 meter final in the Olympics.

Pistorius is accused of murdering his girlfriend, Reeva Steenkamp, by shooting her to death through the locked door of the toilet cubicle that is next to the bathroom in his upstairs master bedroom suite.

His home was located in a gated community protected by a 24/7 security staff.

Steenkamp was a lawyer, model and actor who was on the verge of international fame and fortune with her role in a South African reality show.

They were a beautiful couple supposedly involved in a fairytale romance that ended with four gunshots through a locked toilet door on Valentine’s Day last year.

Pistorius testified at trial that after he and Steenkamp went to bed around 10 pm, he was awakened around 3:30 am by the sound of the bathroom window opening. He said he thought that an intruder had entered the bathroom by climbing a ladder. He grabbed his gun and without putting on his regular everyday prosthesis he proceeded down a short hallway on his stumps to the entrance to the bathroom. After hearing a sound like someone bumped the magazine rack in the toilet stall, he fired his gun four times through the door.

When he returned to the bedroom, he discovered that Steenkamp was not in bed and only then realized that she might have been in the toilet stall.

Steenkamp was hit three times. First, in the hip. Second in the arm and chest. Third, in the forehead. He was using an especially deadly form of ammunition that releases little metal hooks tucked into the side of the bullet that pop out as the bullet spins out of the muzzle of the gun.

She could not have survived the wounds to her hip and head.

The prosecution’s theory of the case was that she locked herself in the toilet stall with her cell phone during an argument with Pistorius. He lost his temper and shot her to death through the locked door.

Several neighbors, including a woman who lived next door, testified that they heard loud voices and a woman’s terrified screams followed by four shots. She said she awakened to the screams and looked out her bedroom window at Pistorius’s bathroom window and noticed that the light was on.

He testified that it was off when he fired the shots. Like George Zimmerman before him, he claimed that the neighbor heard him screaming, not Steencamp.

He claimed she never said anything and he admitted that he did not call out to her to make sure she was not in the toilet before he fired his gun.

The medical examiner testified that Steencamp had consumed a stir fry meal approximately an hour and a half before the shooting, based on an analysis of her stomach contents.

I will always remember this trial for the savage cross examination of Pistorius by the prosecutor, Gerrie Nel, and the sudden switch from self-defense by defense counsel, Barry Roux, to a pervasive state-of-anxiety-caused-by-my-disability made me overreact.

This mid-stream switch resulted in a 30-day commitment for a thorough mental health examination by three psychiatrists who unanimously concluded that he did not suffer from a general anxiety disorder.

Oh, well. The show must go on.

With the facts and law against him, Barry Roux reanimated the defense delivering an excellent poor-Oscar closing argument that just might carry the day.

But I wouldn’t advise betting the ranch that Pistorius will be acquitted.

The law of self-defense is clear. To justifiably use deadly force in self-defense, Pistorius must have reasonably believed himself to be in imminent danger of death or serious injury.

Self-defense will not fly, if Judge Masipa concludes that Pistorius knew Steencamp was in the toilet stall. If she rejects self-defense, she can find him guilty of premeditated murder, in which case he is looking at a minimum of 25 years in prison, or she can find him guilty of intentional murder (i.e., intentional but not premeditated) which has a mandatory minimum of 15 years in prison.

Premeditation requires proof of intent to kill, reflection on the decision to kill, and an affirmation to go ahead and do it. Actual reflection on the decision to kill, rather than the passage of time, is what distinguishes premeditation from an intentional killing. So called heat-of-passion killings are usually intentional, but not premeditated, because the decision to kill merges with and is inseparable from the killing.

Even if Judge Masipa decides that he believed he was shooting at an intruder, self-defense is unlikely to fly because the intruder was behind a locked door. Like Theodore Wafer, Pistorius was not in any danger, unless the intruder opened the door.

She might find him guilty of culpable homicide, if she decides that he acted negligently in self-defense, but without intent to kill. She could then sentence him up to a maximum of 15 years in prison. This is probably the best outcome he can reasonably expect, since an acquittal is unlikely.

Last, but certainly not least, Pistorius is also charged with shooting a gun under the table in a crowded restaurant and shooting a gun out of the open sunroof of his vehicle while motoring down the roadway.

These shooting incidents and his refusal to accept responsibility for shooting the guns, as if they went off by themselves while he was holding them, evidence a reckless young man with a gun fetish who refuses to accept responsibility for his acts.

Those two acts form a menacing background for the Valentine’s Day shooting.

I am planning on staying up late tonight to watch Judge Masipa deliver her opinion.

The pool is open. See you in the comments.


#OscarPistorius: Barry Roux deserves credit for a job well done

August 9, 2014

Saturday, August 9, 2014

Good morning:

Welcome to another issue of Game within the Game.

Speaking as a former criminal defense attorney who knows his way around the block, I credit Barry Roux for doing a great job defending a difficult hot-head and privileged client used to having the world revolve around him.

He was also dealing with a tough set of facts and Gerrie Nel, a brilliant and experienced prosecutor.

I was very impressed by Roux’s graceful switch from innocent mistake in self-defense, after Nel tore Pistorius apart, to a complicated hybrid of self-defense and anxiety-made-me-do-it defense.

Never seeming to sweat, he managed that switch with aplomb, as though it were the most natural thing to do in the world.

It wasn’t.

On September 11 when Judge Masipa issues her decision, we will find out if he succeeded in making a silk purse out of a sow’s ear.

Win or lose, he distinguished himself as a gentleman and an advocate for the accused. He brought honor to our profession.

For that, I tip my hat and thank him.

If you appreciate our commentary, please consider making a donation.

Thank you,

Fred


Oscar Pistorius ordered to undergo psychiatric evaluation

May 14, 2014

Wednesday, May 14, 2014

Good morning:

Welcome to The Game Within The Game in which I explain why lawyers and judges are making certain strategic decisions.

Judge Masipa has granted a prosecution request to order Oscar Pistorius to undergo a comprehensive psychiatric evaluation by a panel of state experts. The evaluation will take place over a 30 day period at a state institution. The trial will be suspended until the evaluation has been completed.

Pistorius will not be held in custody during the 30 day period.

Prosecutor Gerrie Nel requested the evaluation after Dr. Merryll Vorster, a defense psychiatrist, testified that Pistorius suffers from General Anxiety Disorder (GAD), a mental health disorder defined in the DSM V. She described the disorder as a pervasive state of anxiety that began when his legs were amputated below the knees at the age of 11 months, was exacerbated by his mother’s death at age 14, and continues to this day.

She said it manifests as a heightened fear of crime and obsession with personal security and guns with which to protect himself. She also said it likely contributed to his mistaken perception that an intruder was present when he heard a window slide and the toilet door slam, his decision to confront rather than flee from the intruder, and his decision to shoot through the toilet door without attempting to decide who was in the toilet cubicle before he squeezed the trigger.

The prosecution’s theory of the case is that Pistorius invented the story about an intruder to conceal that he lost his temper during an argument with Reeva Steenkamp and intentionally killed her when she threatened to leave him.

Until Dr. Vorster testified, the defense had not argued or presented any evidence to explain why Pistorius might have mistakenly believed that an intruder was in the toilet cubicle. Assuming his version of events that night is true, her testimony potentially bridges the gap between a normal person’s reaction to the sounds he heard and his apparent overreaction. That is why Gerrie Nel asked Judge Masipa to suspend the trial and order the 30 day observation and evaluation.

Judge Masipa granted his request explaining that, because she is not a mental health expert, she is not equipped to determine if Dr. Vorster’s diagnosis is correct and what role his mental state may have played in his perceptions and decisions that night. The evaluation will assist her to make that determination and that is why she ordered it.

I suspect her decision should be filed in the better-to-be-safe-than-sorry category because Gerrie Nel savaged Pistorius on cross examination catching him in several material lies that substantially increase the probability of his guilt, so much so that his GAD may satisfactorily explain why he killed her (i.e., because she was going to leave him) and why he offered such a lame excuse (i.e., yee olde intruder) to cover-up what he did. Consider it a form of insurance.

While the referral for observation may yield information that helps Pistorius, it’s more likely that it will not and in the end justice will appear to have been done, as no stone will have been left unturned leaving no credible argument that Pistorius was the victim of a railroad job.

If you believe this article adds to your understanding of this case and you appreciate the effort that went into it, please make a donation.

Thank you,

Fred


Gerrie Nel destroys a defense expert and gets him to implicate Oscar Pistorius

April 17, 2014

Thursday, April 17, 2014

Good evening:

In the following exchange regarding the position of the magazine rack in the toilet room where Reeva Steenkamp was shot to death, we are going to see an excellent example of a skilled prosecutor leading a very compliant defense expert witness into a trap and springing it shut.

The position of the magazine rack is important to the outcome of the trial because Oscar Pistorius testified that he fired his gun in response to hearing the magazine rack hitting or being hit by something and he was certain that it was not in the position in which the police claimed to have discovered it when they investigated and photographed the scene. The graphic photo showed the magazine rack next to the toilet bowl on the side opposite the door and positioned at an angle to the wall.

The defense contends that the magazine rack was close to the door when Reeva Steenkamp bumped it while reaching for the handle to open the door.

The prosecution contends that they were having an argument and she locked herself in the bathroom to get away from him. They argue that he fired through the door, killing her as she stood away from the door on the far side of the toilet bowl.

Roger Dixon is the compliant defense expert because Gerrie Nel so thoroughly humiliated him yesterday regarding his lack of integrity that today he was absolutely determined to defend his integrity no matter the cost to Pistorius by insisting that the magazine rack was positioned where the police said they found it. That is, on the other side of the toilet contrary to what Pistorius said.

The exchange begins around the 45 minute mark of Session 1 earlier today.

Nel: Now are you saying that after the wound to the back was sustained on your reconstruction, that the deceased got up again . . . you’re not saying that?

Dixon: The deceased was lifted, up my Lady, by Mr. Pistorius when he took her out of the bathroom. Other than that, I do not believe that she made any more voluntary movements after she fell to the floor.

Nel: On your reconstruction [with glasses twirling], having fallen on the magazine rack, the furthest point of the magazine rack from the toilet, that’s what you said, and that caused the bruise to the buttocks . . .

Dixon: The contusion as Mr. Simmonds said . . .

Nel: Good. And in the same movement, it caused the two contusions on the back, am I correct?

Dixon: That is correct, my Lady.

Nel: And from that position she must have fallen forward toward the toilet bowl . . .

Dixon: That is my interpretation, my Lady.

Nel: Then one would expect the magazine rack to be there?

Dixon: That is so, my Lady.

Nel: The accused said to this court that it definitely wasn’t there. Are you giving a version that is different than the accused version?

Dixon: My Lady, my reconstruction of the events in that toilet is based on the evidence that I can see and measure and has been recorded by other people.

Nel: So what you’re saying, let me just get that . . Whatever the accused is saying, you’re saying he’s wrong.

Dixon: My Lady, I am giving testimony on what I observe and interpret. I am not saying that anyone else is right or wrong.

Nel: Can the accused be right, if you’re right? He said the magazine rack was definitely not there. Then he must be wrong. You’re his witness. What are you saying about that?

Dixon then refers to a photograph of the blood on the floor next to the toilet and shows two marks — one of a dry spot where the blood congealed around one leg of the magazine rack, which was positioned in a pool of her blood next to the toilet bowl on the far side of the toilet from the door, and the second of a bloody smudge on the floor next to the wall after the magazine rack was moved. The photograph contradicts Pistorius’s testimony.

In other words, in a desperate move to salvage his honor, dignity and professional reputation, Dixon used the photograph to drive another nail into Pistorius’s coffin.

I have never seen that done before.

Nel is a master of his craft and if you are at all interested in the art of cross examination, you need to watch him in action.

The trial of Oscar Pistorius resumes on Monday, May 5th.

That is also the scheduled date for the beginning of Michael Dunn’s retrial, although I am still anticipating a defense continuance.

In the meantime, we will check in on the other cases we have been covering and take another look at the Boston Marathon Bomber case.

Please let us know if you have any other cases you would like to see us discuss.

Finally, if you have not already made a donation this month and can afford to make one, please do so.

Thank you, Fred


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