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.

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.”


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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