Judge Masipa rules prosecution can appeal her decision in Pistorius case

December 10, 2014

Wednesday, December 10, 2014

Good afternoon:

Judge Thokozile Masipa ruled today that the prosecution can appeal her decision finding Oscar Pistorius not guilty of murder. The Guardian reports,

Judge Thokozile Masipa said she was satisfied that prosecutor Gerrie Nel had raised “questions of law” that another court could interpret differently when considering the Paralympian’s intentions in shooting dead his girlfriend, Reeva Steenkamp.

“I cannot say … that the prospect of success at the supreme court of appeal is remote,” Masipa ruled at the high court in Pretoria, South Africa. “The application therefore in respect of count one is decided in favour of the applicant.”

The applicable legal rule in South Africa permits the prosecution to appeal her conclusions of law, but not her findings of fact.

What’s the difference, you ask?

If I say, the defendant driver entered the intersection against a red light and struck the plaintiff as he was walking across the street in a crosswalk, I have made three findings of fact. If I decide he was negligent, I have made a conclusion of law based on those findings of fact..

Judge Masipa found as fact at the conclusion of the trial that Pistorius did not intend to kill Steenkamp when he fired four shots through the locked wooden door of the toilet cubicle in the bathroom just off the master bedroom. The toilet cubicle is a confined area only slightly larger than the toilet. Pistorius testified that he thought an intruder was in the cubicle behind the door when he fired the gun, a 9 millimeter semiautomatic with Black Talon ammunition that has sharpened metal wings that fold out from the bullet due to centrifugal force as it spins out of the gun barrel. Needless to say, the bullet causes a gruesome devastating injury even if it does not hit a vital organ. He said he believed Steenkamp was in the bedroom and he was shooting at an intruder in the cubicle.

Does it matter if he did not intend to kill Steenkamp?

At yesterday’s hearing, the prosecution argued that it does not matter because he must have intended to kill the person behind the door or foreseen that firing four shots through the wooden door would likely kill the person behind the door, regardless who that person was. Pursuant to the doctrine of dolus eventualis in South Africa, the identity of the person killed is not relevant so long as the killer intended to kill someone or was aware of a substantial risk that the person behind the door would be killed, and this is true even if the killer mistakenly believed he was defending the person he mistakenly killed.

The prosecution also reminded Judge Masipa that she had rejected Pistorius’s claim of self-defense and defense of another. Her conclusion certainly was supported by the evidence because Pistorius admitted that the person behind the door did not attempt to open it or speak. Given his version of the incident, the person behind the door may not have known he was there. Since he was an experienced marksman with a loaded gun in his hand, he could not have reasonably believed he or anyone else was in imminent danger of death or serious injury.

In S. v Rebede, Justice Musi and Murray of the Free State High Court, Bloemfontein (South Africa) wrote:

Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.

The prosecution argued that pursuant to dolus eventualis Judge Masipa erred in finding Pistorius not guilty of murder because, notwithstanding his protestations to the contrary, Pistorius must have foreseen that firing four shots through the door from a few feet away would kill the person behind it. That is, the circumstantial evidence of his intent to kill overcame the presumption of innocence by proof beyond a reasonable doubt.

Basing its argument on Pistorius’s testimony, the defense argued that the prosecution should not be permitted to appeal because Judge Masipa believed him and found as fact that he did not intend to kill the person behind the door who tragically turned out to be Reeva Steenkamp.

Whether the prosecution will convince the Supreme Court that it should set aside Judge Masipa’s decision finding Pistorius not guilty of murder depends on whether it decides that she found him not guilty because she believed him or because she misapplied the principle of dolus eventualis by concluding that the principle could not apply since he did not intend to kill Steenkamp. The former would be a finding of fact that cannot be disturbed on appeal, whereas, the latter would be an erroneous conclusion of law that can be set aside.

The five-year sentence she imposed indicates to me that she believed he did not intend to kill.

There is a difference between foreseeing that your actions will kill someone and not foreseeing that consequence, even if a reasonable person would have foreseen it. I think the prosecution is going to lose the appeal because I think Judge Masipa believed Pistorius and found as fact that he did not intend to kill the person behind the door, regardless who it was. On the other hand, I think the prosecution will win if the court decides that she found him not guilty because she believed him when he said he did not intend to kill Steenkamp. In other words, dolus eventualis applies regardless if Pistorius did not intend to kill Steenkamp.

I did not believe Pistorius when he denied intending to kill the person behind the door and I also did not believe him when he denied knowing that Reeva Steenkamp was behind the door. Therefore, I would have found him guilty of an intentional murder in the heat of passion. However, if I were a judge on the Supreme Court of Appeal, I would rule against the prosecution because I think Judge Masipa found as fact that Pistorius did not intend to kill the person behind the door whom he believed to be an intruder.

If the court sets aside her ruling and finds Pistorius guilty of murder, he will have to be resentenced because the minimum sentence for murder is 15 years in prison.

This case would make a great question on a criminal law final exam in law school.


Judge Masipa will announce tomorrow whether to allow a prosecution appeal

December 9, 2014

Tuesday, December 9, 2013

Good morning:

Judge Masipa heard arguments this morning from prosecution and defense in the Oscar Pistorius case regarding whether she should grant the prosecution’s request to appeal from her decision finding him not guilty of murder and the five year sentence she imposed for culpable homicide. She will announce her decision tomorrow morning at 3:30 am EST.

The applicable legal rule in South Africa permits the prosecution to appeal her conclusions of law, but not her findings of fact.

She found as fact that Pistorius did not intend to kill Steenkamp when he fired four shots through the wooden door of the toilet cubicle in the bathroom just off the master bedroom because he believed she was in bed. The toilet cubicle is a confined area only slightly larger than the toilet. Pistorius testified that he thought an intruder was in the cubicle behind the door when he fired the gun, a 9 millimeter semiautomatic with Black Talon ammunition that has sharpened metal wings that fold out from the bullet due to centrifugal force as the it spins out of the gun barrel. Needless to say, the bullet causes a gruesome devastating injury even if it does not hit a vital organ.

The prosecution argues that it does not matter if Pistorius intended to kill Steenkamp because he must have foreseen that firing four shots through the wooden door would kill or seriously injure the person behind the door, regardless who that person was. Pursuant to the doctrine of dolus eventualis in South Africa, the identity of the person killed is not relevant so long as the killer intended to kill someone or was aware of a substantial risk that the person behind the door would be killed.

The prosecution also argued that the five year sentence was too light and should be increased.

The defense argued that the prosecution should not be permitted to appeal because Judge Masipa found as fact that he did not intend to kill anyone. They also argued that the sentence was appropriate.

Pistorius was not in court for the hearing, Neither his family nor the Steenkamps attended the hearing.

Here’s a video of today’s hearing.


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