Judge Masipa will announce tomorrow whether to allow a prosecution appeal

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.

17 Responses to Judge Masipa will announce tomorrow whether to allow a prosecution appeal

  1. ay2z says:

    Gerrie and Barry went head to head on Nov 3rd, the panel of appeal justices wlll return with their decision, some speculate by early December.

    Full hearing link on SABC Digital News youtube https://www.youtube.com/watch?v=50ph2UinK3o

    The state has focussed on errors of law both for what they claim are Judge Masipa’s ‘paying lip service’ to circumstantial evidence which she did not follow up on, failed to consider other circumstantial evidence completely, and also errors in her consideration Dolus Eventualis, (re:’identity’ in the judge’s decision). Gerrie also brought up the judge’s decision to, on one hand state that Pistorius was a terrible witness, and on the other, decided to take his word about the shooting.

    Hope this link is useful.

    A few of the panel were actively engaging the state and defense, putting Roux on the spot about his client’s decision to shoot at a noise, and adding the importance of consideration of Pistorius’s firearm experience/training and the fact that he used, with knowledge of, the type of ammunition that would inflict massive damage.

    • Thanks for the link. I’ll watch it in the next day or so when I get a chance. I disagreed with Judge Masipa’s legal interpretation, but there are extrajudicial considerations at work that might possibly include money. The money is just a guess on my part. I have no inside knowledge.

  2. ay2z says:

    Appeal ruling:

  3. Malisha says:

    Masipa is allowing the appeal of the acquittal to go forward. This was, in my opinion, a wise move. She admits that the appeal stands a good chance.

    I’m wondering if her two assessors forced her into the acquittal.

  4. MDX says:

    That was a very enlightening article worth spreading.

  5. Malisha says:

    OT warning.

    I was just thinking: How rich and wonderful it would be if each and every actor on “Law and Order” and “Hill St. Blues” and “Blue Bloods” and “etc. etc. etc. etc.” (ALL the cop shows on TV) and every actor who played a cop in a movie any time would come out now and do public service spots saying:

    “I support the Ferguson protestors; I support the ‘I can’t breathe’ protestors; I support the right of unarmed African Americans to be free of the fear of murder by cop…”

    I’d love to see that.

  6. Malisha says:

    It astonishes me that anybody could say, with a straight face, that a person shooting four bullets in the direction of another human being does not expect to kill the other human being. So the finding of FACT is the issue, which is a problem, I think, in this appeal.

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