Judge Masipa will announce tomorrow whether to allow a prosecution appeal

December 9, 2014

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.

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.


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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