Judge Masipa rules prosecution can appeal her decision in Pistorius case

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.

13 Responses to Judge Masipa rules prosecution can appeal her decision in Pistorius case

  1. bettykath says:

    Pistorius found guilty of murder. Seems he was released from prison after one year and is serving 2 years of house arrest. Sentencing is pending. 15 years is what’s expected.

  2. Malisha says:

    Professor, are you and Crane Station OK?

  3. Malisha says:

    If I could dish out prison terms, I’d give these two torture psychologists, Bruce Jessen and James Mitchell, life without parole and make sure they served the time in a supermax like the “Red Onion” in Virginia. With visitation rights suspended for the first 50 years. And mandatory TV.

  4. MDX says:

    That guy, if he is real or a concern troll created by the Reich Wing, is, indeed, a window in to how they think.

    In an Authoritarian hierarchy, those above, in rank, are deemed more valid.

    It comes out in their language with respect to black males:

    Why is he complaining about rights?

    WE ended racism in the 1960s.

    Why is he wearing that T shirt with “I can’t breath”?

    He should be happy the WE allow him to make millions playing ball.

    Last but ugly least:

    HE should be grateful that WE took his ancestors out of Africa so that HE could be part of the great USA.

    IMO, this last one is up there with “Arbeit Macht Frei”

    Note the language is rife with white paternalism that can never give a black person credit for anything they earn through their own labor.

    For example, when confronted with the obvious fact that professional sports is a true meritocracy wherein the individual athlete earns his place by winning, they will segue to “the blacks” have special genes argument.

    So, the white athlete is a “hard worker” and the black one is “gifted”.

    And this “special genes” argument is a sickness that was part of how Wilson {“He was a Hulk Hogan compared to my poor little five year old self”} and Fogen { “The boy-man was able to throw down my big lard ass and start pounding me with his in-born MMA skills, so I had to shoot him”} were able to make their victims guilty of causing their deaths.

    And the “uniform” is a prize for the mass proletarian who buys into this sick philosophy because it “elevates” this person above all the other ordinary and average people, thus giving this person the power to be a little dictator.

    • Malisha says:

      And the police officer IS a little dictator: once he stops you, HE is the total authority and if you “challenge” him, you may be summarily executed. NOT different from the Brown-Shirts in Germany in 1939.

      “I’m a cop: If you don’t want to get hurt, don’t challenge me.”


      The TV Cops make this look like it’s OK — they present a Disney-World Fairy Tale about (a) cop danger; (b) cop decency; (c) cop caring and loving; (d) cop desperation to do right in the face of bad peoples’ desire to do wrong; and ultimately, the (e) good parent beating the child for “your own good.”

      IF YOU DON’T WANT TO GET HURT, do what I say…
      Gee, where’ve I heard THAT one before?

      • MDX says:

        Re item (a):

        The job related death rate from all causes for a cop is about 13 per 100,000 with the sub-set attributable to homicide being about 5.5 per 100,000.

        So the homicide rate for a cop is about the same as that for a white male.

        I am posting figures from memory but doubt a google search with put me too far of of the mark.

        Re item (b):

        Panteleo had two black males pull down their pants in public to he could fondle their junk – I would say that is being decently indecent.

        And I could regale you with many anecdotal tales of women who were asked to trade sexual favors for getting a brother or boy friend out of trouble.

        Re item (c):

        The empathy they showed Eric Garner touched me deeply.

  5. Malisha says:

    I am just going over, in my mind, the “reasoning” being dished out to us by that guy a couple of threads back (the “concern troll”), particularly when he cautioned that Blacks, if they feared the police, should not provoke them, just as women who claimed they were battered should not deliberately irritate the men they feared. He claimed that “people usually won’t do something until given a reason” or somesuch.

    Why wouldn’t this “people won’t do something until given a reason” apply as well to the Black (being approached by a cop) or the woman (being threatened by her husband/man)? Why wouldn’t that principle mean that a guy walking down the street wouldn’t reach through the window of a cop car to try to brutalize an officer “without a reason”? Why wouldn’t that principle mean that a woman wouldn’t provoke her husband to violence “without a reason”?

    Because the assessment of how “PEOPLE” act or react is reserved for the MORE POWERFUL person in the interaction. The other person in the interaction is an “undermensch” [German for “subhuman”]. That is the core of the Nazi philosophy. The superior, authoritarian, “right” person is human; the other — does not merit either the term or the respect accorded to humans. There you have the core of racism, and it is not disguised in the Ferguson, MO apologetics. THAT is why those tanks and that military gear looks, and is, so offensive. A generation of American young men were sent to Europe to compat this behavior on foreign shores so we could cultivate it HERE under the gateway to the West?

  6. Malisha says:

    The name “Thokozile” apparently means “be happy.” Not this time, I bet.


  7. MDX says:

    Not a very good finding of fact on the part of Masipa, IMO. Firing four rounds of that ammo in a closed space is like tossing a hand grenade – the intent to kill is clear and beyond reasonable doubt.

    But, then again, the great USA has Grand Jurors who collectively thought Brown moving 15 feet in six seconds proved beyond a reasonable doubt that he took a track stance and charged at the whopping rate of 2 mph.

    As the line from Airplane says:

    “I guess I picked the wrong day to quit drinking”.

    When I was in school, the 1700s were referred to as the “Age of Enlightenment”.

    I fear that, 200 years hence, the USA will be referred to as the Age of Idiocy”.

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