Judge Masipa to decide if prosecution can appeal in #Pistorius case

November 10, 2014

Monday, November 10, 2014

Good morning:

Oscar Pistorius is back in the news today.

Unless the rules are changed, he will not be eligible for an early release from prison because the home monitoring device that prisoners have to wear cannot be securely attached to his body. Normally, they are attached just above the ankle, but he does not have an ankle and the regulations prohibit attaching it to the wrist because it’s too easy to remove.

I suspect the rule will be changed because it unfairly discriminates against double amputees. A potential solution might be to reengineer the bulky device to make it much smaller and attach it to the ear like a pierced earring or wear it around his neck.

The Daily Mail reports,

Breakfast of porridge with coffee or juice is brought to him at 7am.

/snip/

He is said to be eating the same food as other inmates, but will be allowed to also buy pies, hot dogs, sweets and chocolates from the prison tuck shop using money given to him by family visitors.

At midday, he is brought a basic meal which includes meat of some kind with carbohydrates and vegetables.

The last meal of the day is slices of buttered bread with a hot drink, served at 4pm. All the prison food is prepared in one huge kitchen catering for 7,000 inmates.

In other news, under South African law, the prosecution has to convince Judge Masipa that they have a legitimate legal argument and are likely to prevail before they can go forward with their appeal. The defense is opposing the prosecution’s effort to appeal. A hearing is scheduled before Judge Masipa on December 9th.

I analyzed this issue most recently in a comment a week ago before I was aware of this intermediate hurdle that the prosecution would have to clear in order to appeal.

The problem is that there is a difference between finding that death was a reasonably foreseeable consequence of firing a gun four times through the door of the toilet cubicle and concluding that OP intended to kill the person behind the door.

Given the presumption of innocence and his denial that he intended to kill the person behind the door, how is it possible to find him guilty?

Judge Masipa answered that question by finding him not guilty of murder, which requires proof beyond a reasonable doubt that he intended to kill the person behind the door. Instead, she found him guilty of culpable homicide, which is gross negligence for failing to be aware that shooting 4 times through he door would create a substantial risk of killing or seriously injuring the person behind the door.

Expressed another way, can the presumption of innocence be overcome by a presumption that a person intended the natural and probable consequence of his acts, despite his denial?

I believe the answer is ‘yes,’ because the presumption of innocence does not require the finder of fact to believe the shooter’s denial that he intended to kill the person behind the door.

Therefore, the most specific formulation of the issue on appeal is whether Judge Masipa believed OP’s denial and found him not guilty or whether she did not believe him, but felt compelled to find him not guilty because he denied intent to kill.

Her decision must stand, if the former, but can be vacated, if the latter.

Rule: The presumption of innocence does not require a fact finder to believe a defendant.

Do you believe she should permit the appeal to proceed?

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Thank you.

Fred


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

October 27, 2014

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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Oscar Pistorius: The four legal rules that determine his legal responsibilities

October 15, 2014

Wednesday, October 15, 2014

Good evening:

I do not agree with Judge Masipa’s reasoning and I write to clear up confusion.

There are four legal rules involved in determining Oscar Pistorius’s legal responsibility for Reeva Steenkamp’s death.

1) Dolus eventualis;
2) Transferred intent;
3) Presumption of innocence; and
4) Self-Defense.

Dolus eventualis basically means that a person intends the natural and probable consequences of their acts because they are reasonably foreseeable.

Death was a natural and probable consequence to anyone, regardless of their identity, who was behind the wooden door in a confined area with nowhere to hide like the toilet cubicle in Oscar Pistorius’s house, when he fired 4 shots at point blank range with a 9 mm semiautomatic loaded with Black Talon ammunition through the door. For that reason, that consequence should have been reasonably foreseeable to Pistorius when he fired the shots.

Transferred intent means that, even if Pistorius did not intend to kill Reeva and he believed an intruder was behind the door when he fired the shots, his intent to kill the intruder transfers by operation of law to intent to kill her.

The presumption of innocence means that a person cannot be convicted solely on the basis of a presumption that he intended to kill the person behind the door. There must be actual evidence that he intended to kill.

Here, there is circumstantial evidence that he intended to kill based on the type of ammunition used, the number of shots, their spacing and trajectory, and finally the distance from which the shots were fired.

Finally, self-defense can be ruled out because the person behind the door did not threaten to kill Pistorius and did not attempt to open the door and attack him. Therefore, he was not in imminent danger of death or serious injury when he fired the shots. His use of deadly force was not reasonably necessary.

Therefore, whether he actually intended to kill Reeva is not relevant to the issue of guilt, although it may be a relevant consideration at sentencing.

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Oscar Pistorius sentencing hearing starts tomorrow

October 12, 2014

Sunday, October, 12, 2014

Good morning:

The Oscar Pistorius sentencing hearing starts tomorrow in Pretoria at 3:30 am EDT. I say ‘starts’ tomorrow because prosecution and defense may each take up to a day or more to present evidence and argument in support of their respective recommendations.

Judge Thokozile Masipa, who found Pistorius guilty last month of culpable homicide for killing Reeva Steenkamp by mistaking her for an intruder and shooting through the door of the toilet cubicle in the bathroom of his upstairs master bedroom suite, can sentence him up to 15 years in prison.

Culpable homicide under South African law is similar to our negligent homicide or manslaughter statutes. Basically, the mental state for this offense is gross negligence, which is committing an act that creates a substantial risk of harm to another person where the failure to be aware of that risk is a gross deviation from the legal duty to exercise due care to avoid harming other people.

Shooting at someone through the closed door of a small enclosed area with no place to hide, such as toilet cubicle in your bathroom, is at least a grossly negligent act, regardless if the person on the other side of the door is an intruder or someone you know. Difficult to imagine that someone who squeezed off four shots through the door did not intend to kill the person on the other side of the door; yet, that is exactly what Judge Masipa decided when she acquitted Pistorius of murder.

Her decision was and continues to be controversial. No doubt the controversy will flare up, if she sentences Pistorius to prison for some number of years but suspends the sentence on condition that he satisfactorily complete a term of supervised probation. Terms of probation typically include no law violations and an obligation to perform community service. Counseling may also be required, if needed. In the United States, judges also can impose up to a year of confinement in a county jail.

If the defendant violates a condition of probation, the judge can revoke probation and impose the prison sentence that she suspended.

In determining what sentence to impose on Oscar Pistorius, Judge Masipa also will consider a presentence report and recommendation by an official of the court based on a review of the police investigation file and research of his past, including any prior convictions and contacts with law enforcement. In the United States, the presentence division of the probation department prepares that report and recommendation.

Only Judge Masipa knows what she is likely to do, but I imagine she will impose an 8 to 12 year prison sentence. Whether she admits it or not, she must be concerned about public criticism of her decision to acquit Pistorius, and as a black person, no one should be more aware than she of the disparity in punishment for blacks compared to privileged whites.

Tell us what sentence would you impose and why you would impose it.

Do you believe he has an alcohol and/or anger management problem?

Why or why not?

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Reeva Steenkamp: To the living we owe respect but to the dead we owe only the truth

September 13, 2014

Saturday, September 13, 2014

Good afternoon:

The Guardian is reporting today:

The parents of Reeva Steenkamp expressed anger and disbelief on Friday after Oscar Pistorius was formally acquitted of their daughter’s murder, insisting: “Justice was not served.”

Amid growing discontent in South Africa at the verdict, the Steenkamps criticised judge Thokozile Masipa for being too lenient on the athlete, who was instead convicted of culpable homicide, the South African equivalent of manslaughter, and granted bail.

“This verdict is not justice for Reeva,” her mother, June Steenkamp, told NBC News. “I just want the truth.”

I agree.

Yesterday, I identified the core weakness in Judge Masipa’s decision acquitting Oscar Pistorius of murder and convicting him of culpable (manslaughter) homicide.

Under South African law, however, a judge cannot base a verdict on circumstantial evidence alone unless no inference except guilt can reasonably be drawn from it.

Her conclusion makes sense when viewed through the prism of the legal rules that she applied. However, it makes no sense to be forced into accepting a liar’s statement about his knowledge and intent when it is contrary to common experience and he has a powerful motive to lie.

I did not believe Oscar Pistorius because he lied during much of his testimony and I do not believe his story about shooting into the cubicle without making certain she was not there. He should not benefit because he killed the only witness who could contradict him.

1. The door to the cubicle was locked;

2. She had her phone with her;

3. Her bladder was empty;

4. There was no urine in the toilet bowl; and

5. Pistorius never mentioned hearing the toilet flush.

That’s all the circumstantial evidence that I need to confirm my belief that he lied.

“To the living we owe respect, but to the dead we owe only the truth.”

Voltaire


Pistorius guilty of Manslaughter and Unlawful Discharge of a Firearm in Public

September 12, 2014

Friday, September 12, 2014

Good morning:

Judge Masipa found Oscar Pistorius guilty of culpable homicide, which we call manslaughter, and guilty of unlawful discharge of a firearm in public for shooting a gun in a restaurant. She found him not guilty of unlawfully discharging a firearm through the sunroof of a vehicle and not guilty of unlawful possession of ammunition.

This case is more about the presumption of innocence and the absence of evidence, rather than the evidence that was presented at trial. When all is said and done, Pistorius fired 4 shots through a locked door into a toilet cubicle that was not much bigger than a stall in a public bathroom.
He testified that he believed that an intruder was in the cubicle and he fired his gun in self-defense believing he was in imminent danger of death or serious injury.

In other words, he admitting committing the acts that caused Reeva Steenkamp’s death. The disputed issues concerned his knowledge and intent.

Did he really believe an intruder was in the cubicle or did know she was in there?

Did he intend to kill the person when he fired the shots?

As Judge Masipa pointed out, there was no evidence that Pistorius had physically abused or threatened Steenkamp or any other woman in the past and there was no evidence that any serious problems existed in their relationship.

No direct evidence contradicted what he said about his knowledge and intent when he fired the shots, although the prosecutor caught him in many inconsistencies and lies during cross examination.

Even though he lied about other matters and his story about an intruder did not make any sense, Judge Masipa was unwilling to conclude that he knew she was in the cubicle and he intended to kill her when he fired the shots.

Notwithstanding his lame story and his strong motive to lie about the shooting, she concluded instead that the prosecution failed to overcome the presumption of innocence regarding his knowledge and intent by proof beyond a reasonable doubt.

There is a legal presumption that a person intends the natural and probable consequences of his acts. However, this presumption cannot substitute for actual evidence and overcome the presumption of innocence.

Circumstantial evidence is a form of evidence that can be more powerful than direct evidence, depending on the circumstances.

Under South African law, however, a judge cannot base a verdict on circumstantial evidence alone unless no inference except guilt can reasonably be drawn from it.

Her conclusion makes sense when viewed through the prism of the legal rules that she applied. However, it makes no sense to be forced into accepting a liar’s statement about his knowledge and intent when it is contrary to common experience and he has a powerful motive to lie.

That’s the core weakness of her decision.

As I said yesterday,

Keep in mind that there is a difference between forming an opinion about what really happened and deciding whether the state overcame the presumption of innocence by proof beyond a reasonable doubt.

That difference is a key to understanding this verdict.

Also key to understanding her verdict is the South African rule that a verdict may not be based on circumstantial evidence alone unless the evidence is inconsistent with any other conclusion.

That used to be the rule in most jurisdictions in the US but has gradually been rejected as a comment on the evidence, which is forbidden by most state constitutions.

Instead, most instructions tell the jury that evidence is either direct or circumstantial and one is not necessarily better or more reliable than the other. It’s up to the jury to decide how much weight to assign to the evidence.

I think he probably is looking at a total sentence for the two offenses of somewhere between 8-12 years.


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.


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