Tuesday Evening Open Discussion: Comparison of Wafer to Pistorius

July 22, 2014

Tuesday, July 22, 2014

Good evening:

Welcome to the Tuesday Evening Open Discussion where off topic is on topic.

A jury of 12 with two alternates has been selected in the #TheodoreWafer porch-shooting case. Two black females, two black males, one Arab male, two minority females, three white females and four white males. Don’t know anything else about them because jury selection was not televised or live streamed.

I am frustrated by the decision not to broadcast jury selection because that is where most trials are won or lost.

Opening statements will commence at 10 9 am EDT tomorrow. They will be livestreamed as will the rest of the trial.

Many people have compared this case to the Zimmerman case, but I believe it more closely resembles the #OscarPistorius case because the defendants in both cases are claiming self-defense after shooting through locked doors at people whom they say they believed to be an intruder (OP) or potential intruder (TW).

What do you think?

Anything else on your mind?

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Oscar Pistorius and Humpty Dumpty have something in common

July 16, 2014

Wednesday, July 16, 2014

Good morning:

Oscar Pistorius made a very serious mistake by going out to a bar, regardless if he consumed any alcohol, because he would have been fair game for any drunk with a chip on his shoulder.

But the following behavior goes far beyond the carefully constructed image of a physically disabled, anxious and emotionally vulnerable victim that his legal team so carefully constructed.

The Telegraph is reporting today,

Oscar Pistorius, the paralympian on trial for murdering girlfriend Reeva Steenkamp, drank tequila shots, socialised with a known violent offender and had scantily-clad women sitting on his knee before the fight that led to him leaving a nightclub on Saturday night, it has been claimed.


Another unnamed partygoer quoted by the Johannesburg Star newspaper said he witnessed the scuffle between Mr Mortimer and another “flat-out drunk” man he later identified as Pistorius as he passed him with a group of friends and allegedly flashed his middle finger.

Instead, his conduct is consistent with this alleged behavior:

He also faces two charges that he recklessly discharged a firearm in public – one charge relates to him shooting a friend’s gun by accident in a crowded Johannesburg restaurant and another relates to him allegedly firing his gun through a car sunroof during a day out.

That is why I’m shaking my head and asking, WTF was he thinking?

Before this face-plant, I did not believe he had a realistic chance at an acquittal.

Now, I am sure he doesn’t.

Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall.
All the king’s horses and all the king’s men
Couldn’t put Humpty together again.

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I nominate Oscar Pistorius for a Darwin Award

July 15, 2014

Tuesday, July 15, 2014

Good morning:

What the hell was he thinking?

Regardless of who started it, Oscar Pistorius exhibited appalling judgment by getting into a fight in a bar while his legal case is still pending. BTW, this was not a waterfront bar in a pirate infested seaport. It was not just another upscale bar. It was the VIP Room of an upscale bar.

He did this while Judge Masipa is trying to decide whether to give him a pass for shooting Reeva Steenkamp to death by firing four times through the closed door to the toilet cubicle in his bathroom because, despite his remarkable athletic success overcoming his physical disability, he is really an anxious and vulnerable person who is so fearful and obsessed about his safety that he understandably jumped to the erroneous conclusion that she was a dangerous intruder when he heard sounds in the bathroom.

Displaying an absence of anxiety and vulnerability by going to a bar and getting into a confrontation with another patron is not what his lawyers would have recommended. The good news for them is they can now credibly claim that, but for his boorish behavior, they probably would have won the trial.

Breathtakingly stupid behavior that deserves a Darwin nomination.

Do you agree or disagree?

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Should Pistorius’s self-defense claim be judged by the reasonable person or a reasonable disabled-person standard

July 14, 2014

Monday, July 14, 2014

Good afternoon:

Should Oscar Pistorius’s self-defense claim be judged according to the reasonable-person standard or a reasonable disabled-person standard?

Depending on the jurisdiction, the self-defense test can be objective or both objective and subjective.

Objective test: Whether a reasonable person in the same situation (i.e., the external reality) would have perceived himself to be in imminent danger of death or serious bodily injury?

Objective and Subjective Test: Whether a reasonable person, standing in the same shoes (i.e., knowing and perceiving what the defendant knew and perceived in that situation) would have perceived himself to be in imminent danger of death or serious bodily injury?

Consider, for example, a battered wife who kills her battering husband while he is asleep fearing that he will kill or seriously injure her when he wakes up. A reasonable person probably would not have believed herself to be in imminent danger, whereas a battered wife might reasonably have believed she was in imminent danger.

Keep in mind that imminent danger does not require proof that the danger be immediate. Therefore, a battered wife’s belief that she was in imminent danger of death or serious bodily injury when her husband awakens probably would be reasonable, if he had seriously injured her in the past after he woke up.

Therefore, prior history between the shooter and the victim or the shooter’s belief about the victim’s intent based on knowledge of the victim’s reputation for committing acts of violence can be relevant to a shooter’s claim of self-defense.

Even when the test is both objective and subjective, the finder of fact (be it judge or jury) does not have to believe the defendant.

Three possible results exist in the Pistorius case:

(1) Guilty of murder;
(2) Guilty of manslaughter; or
(3) Not Guilty.

I think Pistorius wins or loses on the murder charge depending on whether Judge Masipa believes his claim that he thought he was shooting at an intruder.

She will convict him of murder, if she does not believe him. In other words, she will convict him, if she believes he knew Reeva Steenkamp was behind the door. The defense of self-defense does not apply in that situation.

If she believes his claim that he thought an intruder was in the toilet stall, then she has to decide whether he reasonably believed that he was in imminent danger of death or serious bodily injury when he fired four shots through the closed door. Her decision possibly could be affected by whether the law requires her to apply an objective test or an objective and subjective test.

For the following reasons, regardless of the test she applies, I believe she will decide that he was not in imminent danger of death or serious bodily harm when he fired the gun.

He was an experienced and accurate shooter with the element of surprise on his side with his gun in hand, loaded with the most disabling ammunition available, aiming at the door with arm extended while standing far enough away from it to shoot and kill or disable the intruder, if the intruder opened the door.

By merely squeezing the trigger where he was standing, he could have killed or disabled the intruder before the intruder realized he was there.

He also had a cell phone with which to hold the intruder at bay in the stall behind the closed door while he summoned security guards and the police.

This situation does not change, regardless of his disability.

Nevertheless, I would find him guilty of manslaughter, rather than murder, because his decision to shoot prematurely through the door was a reckless or grossly negligent act.

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Pistorius: Defense rests closing arguments on August 7 and 8

July 8, 2014

The Reenactment Video

Tuesday, July 8, 2014

Good morning:

The defense rested this morning in the Oscar Pistorius trial.

Judge Masipa has scheduled closing arguments on August 7th and 8th.

The State’s written closing argument is due on July 30th.

The Defendant’s written closing argument is due August 4th.

The video is a reconstruction of the shooting and Pistorius carrying Steenkamp’s body downstairs. His sister Aimee plays the role of Steenkamp’s dead body.

Note that Pistorius does not exhibit emotional distress reliving the event and he has little problem moving on his stumps.

His right shoulder does not appear to bother him, which is surprising since he testified that he slept on the right side of the bed, instead of the left, because his right shoulder was bothering him.

The defense claims that the video was shot for trial preparation and they never intended to introduce it at trial.

Prosecutor Gerrie Nel has decided not to bring up the video.

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Pistorius trial resumes with the defendant’s final witness

July 7, 2014

Monday, July 7, 2014

Good morning:

We resume this morning after the weekend hullabaloo over the Sunday evening showing on Australian television of a defense reenactment video of the shooting.

Session 1

Session 2

Session 3

Pistorius: Fireworks today as Gerrie Nel cross examines Pistorius’s physician about startle responses and intentional acts

July 3, 2014

Thursday, July 3, 2014

Good morning:

The Thursday session has ended. The trial will resume Monday morning with Dr. William Derman back on the stand to undergo further cross examination by Gerrie Nel.

Lots of fireworks today with tempers flaring as Nel cross examined Dr. Derman regarding unintentional startle responses to sounds and intentional acts, such as pulling the trigger firing multiple shots. Specifically, he pressed Dr. Derman regarding the passage of time between being awakened by a noise in the bathroom and firing the shots.

Rebecca Davis of the Daily Maverick describes what happened,

“If there was only one startle, and the accused acted as he did…he would have acted outside the fight or flight response?” Nel asked. Derman replied that he wouldn’t be in a position to know this. Nel insisted that earlier Derman had said that there would need to be more than one startle.

“Because that’s what happened,” Derman replied (ie, that there were two further noises which evoked a startle response from Pistorius). In other words, Derman was strangely unwilling to entertain any possibilities outside of what Pistorius specified happened.

It’s been an extremely fractious session, characterized by hostile exchanges between Derman and Nel. On more than one occasion Derman asked Judge Masipa for assistance against Nel, but at least once Masipa instructed him to get on with answering Nel’s questions.

“If you cannot assist because you don’t know, just say you don’t know,” Masipa told Derman.

Well worth your time to watch this battle as the outcome may determine the final result of the trial.

Session 1

Session 2

Session 3

Session 4

As you watch the master in action, ask yourselves if Dr. Derman’s relationship with Oscar Pistorius has compromised his objectivity.

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Pistorius: Defense presents evidence that disabled people have heightened responses to stress

July 2, 2014

Wednesday, July 2, 2014

Good afternoon:

The Wednesday session has ended.

The Daily Maverick is reporting that the defense presented evidence yesterday and today that Pistorius has been depressed and at risk to commit suicide since he shot and killed Reeva Steenkamp. This evidence cuts both ways because he could be depressed about shooting her by mistake believing she was an intruder or he might be depressed because he lost his temper during an argument and shot her to death during a rage outburst. Therefore, this evidence is not useful in determining whether he shot her by mistake as he claims.

To bolster its case that he shot her by mistake, the defense called Pistorius’s manager, Peet van Zyl, who testified that Pistorius was not an angry or violent person and he was very much in love with Reeva Steenkamp. Gerrie Nel pounced on cross examination by confronting him with evidence that Pistorius’s roommate during the London Paralympics asked to be assigned to a different room because Pistorius was on the phone yelling at people for several hours late at night disturbing his sleep.

Nel then asked him if he knew about the time that Pistorius attacked and destroyed a chair upon being informed that he was not selected to run the 4 X 100 meter relay. Van Zyl denied knowledge of the incident which was widely reported at the time. He also denied knowing about Pistorius’s gun fetish.

Given his denial of information that he almost certainly would have known, his close personal relationship with Pistorius and a strong financial interest in a favorable outcome of the trial, I believe it’s unlikely that Judge Masipa will conclude that he was a credible witness.

After reading a portion of Pistorius’s mental health evaluation into the record, which concluded that Pistorius was not narcissistic or psychopathic and there was no evidence that he had a history of aggressive violence, the defense called Sports Medicine Professor Wayne Derman, the Paralympic team doctor. He testified that he worked closely with Pistorius and he noticed that Pistorius had a heightened startle response to loud noises compared to the reactions of other disabled people. He said disabled people generally are more anxious and fearful of being assaulted than people who are not disabled and he cited two studies which show that disabled people are 50% more likely to be assaulted than people who are not disabled. Their elevated anxiety results in a loss of control over their automatic response.

Court recessed until tomorrow morning when Professor Derman will resume the stand.

I presume he will conclude sometime around midmorning that Pistorius had little control over his response to hearing a noise in the bathroom and reacted on autopilot without intent to kill when he shot through the door to the toilet stall.

Then we will watch the master of cross examination, Gerrie Nel, attempt to deconstruct the defense theory of the case.

Professor Derman’s opinion, of course, is based on an assumption that Pistorius told the truth. His theory is vulnerable to attack because of the amount of time that passed between the sound that supposedly awakened him and the specific things that Pistorius said he did before he pulled the trigger. Pulling the trigger was not an automatic response.

He was armed and he pulled the trigger four times firing four shots through a closed door when he was not in any immediate danger of an attack. Even if he believed that an intruder was in the toilet stall behind the door when he pulled the trigger, he was at least grossly negligent, if not reckless.

Unfortunately for Pistorius, it’s difficult to imagine that he did not know Reeva Steenkamp was behind that door.

Until tomorrow.

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Pistorius was not mentally ill and could appreciate the wrongfulness of his act

June 30, 2014

Monday, June 30, 2014

Good morning:

CNN is reporting:

According to the findings by an independent panel of doctors, Pistorius did not suffer from a mental defect or mental illness at the “time of the commission of the offense that would have rendered him criminally not responsible of the offenses charged.”

The report added that “Mr. Pistorius was capable of appreciating the wrongfulness of his act.”

In other words, Pistorius does not have a mental illness defense and the trial can proceed.

Game within the Game:

Mental disorder defenses should be raised before trial. Since the defense did not do that, we can reasonably assume that they they thought that they had a much better chance of winning, if they went with the intruder defense. Unfortunately for the defense, however, Nel eviscerated that claim leaving them up the proverbial creek without a paddle.

Defense counsel’s last minute decision to raise the mental heath issue appeared to have been a desperate move to counter the damage that Nel inflicted. It had little chance to succeed. Instead, the defense appears disorganized and desperate.

Now we have to wait and see how the public perceives the decisions by the defense.

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Game within the game: Why defense fears Pistorius evaluation

May 20, 2014

Tuesday, May 20, 2014

Good morning:

According to the Guardian, Judge Masipa has ordered Oscar Pistorius to spend 30 days as an outpatient at Weskoppies state psychiatric hospital in Pretoria, beginning on Monday 26 May.

• He must attend every weekday between 9am and 4pm (or until excused by the medical superintendent at the hospital).

• The four professionals overseeing his assessment include Dr. Leon Fine, Professor Herman Pretorius and Dr. Jonathan Scholtz.

• This panel will compile separate reports for the court to judge whether Pistorius was criminally liable for his actions, and whether he “appreciated the wrongfulness of his conduct”.

• Setting out the details and purpose of Pistorius’s evaluation, Masipa said:

“The panel [of mental health professionals] will establish whether the accused was by mental illness or defect criminally responsible for his actions.

The panel will also seek to establish whether Pistorius appreciated the wrongfulness of his conduct.”

• The court will resume on 30 June to hear the results of the evaluation.

Dr. Scholtz is a psychologist. Dr. Fine and Professor Pretorius are psychiatrists.

Here’s a description of what will happen during the 30 day observation and evaluation provided by Carly Danielle, a psychologist who did her internship at Weskoppies state psychiatric hospital where Pistortius will be evaluated. This is a standard procedure.

Conduct lengthy psychiatric interviews in which they will obtain his full life history, his family background, his criminal history, and also importantly his psychiatric history.

Administer a range of psychological and other tests. These will include personality tests, neuropsychological tests, tests for malingering (the technical term for faking a mental illness) and general cognitive tests that evaluate each and every cognitive process from intelligence to memory. Each test can take between 30min – 3 hrs to complete. It is an extremely rigorous process. To give an example, the MMPI (The Minnesota Multiphasic Personality Inventory) has over 500 items.

Observe him during every single minute of every procedure. In addition to the formal interviews and tests, OP’s every move will be scrutinized. He will be evaluated on his appearance, attitude, behaviour, mood and cognitions.

After each member of the team has concluded theses procedures, they will then meet and together they will formulate a diagnosis.

The first question is whether he suffered from mental illness or defect at the time of the shooting.

Dr. Vorster diagnosed him with a general anxiety disorder, which qualifies as a mental disease or defect under DSM V. The panel may agree or disagree. Regardless, I believe there is a substantial probability that they may diagnose him with an antisocial personality disorder and/or narcissistic personality disorder.

Either or both will eliminate any possibility of a favorable outcome to this process for Pistorius because people who have that diagnosis can distinguish between right and wrong and appreciate the wrongfulness of their conduct, but they go ahead and commit the crime because they want to and think they can get away with it. If they do get caught, they will often attempt to lie their way out of trouble.

Probably most politicians, corporate CEOs, white collar criminals and the criminal banksters share this diagnosis. Many cops do too.

Defense counsel, Barry Roux, will argue, that because of his general anxiety disorder, OP misinterpreted the sounds he heard as caused by an intruder instead of by Reeva Steenkamp.

State prosecutor Gerrie Nel will argue that OP shot her to death because he lost his temper during an argument in which she threatened to leave him and then he lied about it to escape legal responsibility.

The problem with the defense argument is that even an anxious person has a duty to exercise reasonable caution to avoid shooting through closed doors with intent to kill the person on the other side without determining if she be friend or foe and when the use of deadly force isn’t reasonably necessary to protect themselves from death or serious bodily injury.

Barry Roux knows this and that is why he so vigorously resisted the 30 day commitment. He also probably fears that the team will come back with the APD and/or NPD diagnosis.

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