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.


Should the prosecution appeal Judge Masipa’s decision acquitting Pistorius of murder

October 27, 2014

Monday, October 27, 2014

Good morning:

Defense and prosecution in the Oscar Pistorius case have 14 days to file a notice of appeal. I do not believe he is likely to appeal since he got off lightly, but the prosecution might.

The prosecution is unhappy with Judge Masips’a decision finding Pistorius not guilty of murder on the ground that they did not prove beyond a reasonable doubt that he intended to kill the person in the toilet cubicle when he fired 4 shots through the door. She reached this conclusion after deciding that the prosecution did not prove beyond a reasonable doubt that he intended to kill Reeva Steenkamp, and instead, that he mistakenly believed that an intruder was in the cubicle when he fired the shots.

Many people, myself included, disagree with her conclusion. We ask how could he not have intended to kill the person behind the door when he fired not one, but 4 shots, with Black Talon ammunition through the door into a confined space with no place to hide. People generally intend the natural and probable consequences of their acts and the death of the person behind the door should have been foreseeable to Pistorius.

However, despite the circumstantial evidence that he intended to kill when he fired the shots, he denied that he did and Judge Masipa specifically found that the circumstantial evidence of his intent did not overcome the presumption of innocence that he did not. She went on to decide that his failure to realize that firing those four shots would kill the person behind the door was grossly negligent and found him guilty of culpable homicide.

The prosecution is deciding whether to appeal her decision that they failed to prove beyond a reasonable doubt that he intended to kill the person behind the door.

This gives me an opportunity to discuss an important difference between our legal system and South Africa’s.

The Double Jeopardy Clause in the Fifth Amendment of the U.S. Constitution provides, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”

The Double Jeopardy Clause has been interpreted to prohibit retrying a defendant who has been acquitted of a crime. Therefore, under our law the prosecution could not appeal from what is, in effect, a judgment of acquittal on the murder charge.

Apparently, South Africa does not prohibit a retrial or the prosecution would not be considering an appeal.

If they appeal, I think they will argue that she did not actually decide whether she believed him. Instead, they will argue that her decision that they failed to overcome the presumption of innocence by proof beyond a reasonable doubt was wrong as a matter of law.

That is a different issue.

Nevertheless, I think the wiser course of action would be to decide to move on to avoid appearing to be sore losers.

They have another week to decide.

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Oscar Pistorius sentencing hearing starts tomorrow

October 12, 2014

Sunday, October, 12, 2014

Good morning:

The Oscar Pistorius sentencing hearing starts tomorrow in Pretoria at 3:30 am EDT. I say ‘starts’ tomorrow because prosecution and defense may each take up to a day or more to present evidence and argument in support of their respective recommendations.

Judge Thokozile Masipa, who found Pistorius guilty last month of culpable homicide for killing Reeva Steenkamp by mistaking her for an intruder and shooting through the door of the toilet cubicle in the bathroom of his upstairs master bedroom suite, can sentence him up to 15 years in prison.

Culpable homicide under South African law is similar to our negligent homicide or manslaughter statutes. Basically, the mental state for this offense is gross negligence, which is committing an act that creates a substantial risk of harm to another person where the failure to be aware of that risk is a gross deviation from the legal duty to exercise due care to avoid harming other people.

Shooting at someone through the closed door of a small enclosed area with no place to hide, such as toilet cubicle in your bathroom, is at least a grossly negligent act, regardless if the person on the other side of the door is an intruder or someone you know. Difficult to imagine that someone who squeezed off four shots through the door did not intend to kill the person on the other side of the door; yet, that is exactly what Judge Masipa decided when she acquitted Pistorius of murder.

Her decision was and continues to be controversial. No doubt the controversy will flare up, if she sentences Pistorius to prison for some number of years but suspends the sentence on condition that he satisfactorily complete a term of supervised probation. Terms of probation typically include no law violations and an obligation to perform community service. Counseling may also be required, if needed. In the United States, judges also can impose up to a year of confinement in a county jail.

If the defendant violates a condition of probation, the judge can revoke probation and impose the prison sentence that she suspended.

In determining what sentence to impose on Oscar Pistorius, Judge Masipa also will consider a presentence report and recommendation by an official of the court based on a review of the police investigation file and research of his past, including any prior convictions and contacts with law enforcement. In the United States, the presentence division of the probation department prepares that report and recommendation.

Only Judge Masipa knows what she is likely to do, but I imagine she will impose an 8 to 12 year prison sentence. Whether she admits it or not, she must be concerned about public criticism of her decision to acquit Pistorius, and as a black person, no one should be more aware than she of the disparity in punishment for blacks compared to privileged whites.

Tell us what sentence would you impose and why you would impose it.

Do you believe he has an alcohol and/or anger management problem?

Why or why not?

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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.”

Voltaire


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.


#OscarPistorius: Barry Roux deserves credit for a job well done

August 9, 2014

Saturday, August 9, 2014

Good morning:

Welcome to another issue of Game within the Game.

Speaking as a former criminal defense attorney who knows his way around the block, I credit Barry Roux for doing a great job defending a difficult hot-head and privileged client used to having the world revolve around him.

He was also dealing with a tough set of facts and Gerrie Nel, a brilliant and experienced prosecutor.

I was very impressed by Roux’s graceful switch from innocent mistake in self-defense, after Nel tore Pistorius apart, to a complicated hybrid of self-defense and anxiety-made-me-do-it defense.

Never seeming to sweat, he managed that switch with aplomb, as though it were the most natural thing to do in the world.

It wasn’t.

On September 11 when Judge Masipa issues her decision, we will find out if he succeeded in making a silk purse out of a sow’s ear.

Win or lose, he distinguished himself as a gentleman and an advocate for the accused. He brought honor to our profession.

For that, I tip my hat and thank him.

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Thank you,

Fred


Predicting witness credibility based on facial features

August 2, 2014

Saturday, August 2, 2014

Good afternoon:

Have you ever wondered about the validity of first impressions when meeting someone for the first time?

Researchers at York University in the UK conducted a study of the response to certain variable characteristics in human faces. They found that despite the variability of human faces and expressions, they created a model that predicted the first impressions of faces seen for the first time using a combination of facial attributes that explained 58% of the variance in impressions.

The authors describe the significance of their study as follows,

Understanding how first impressions are formed to faces is a topic of major theoretical and practical interest that has been given added importance through the widespread use of images of faces in social media. We create a quantitative model that can predict first impressions of previously unseen ambient images of faces (photographs reflecting the variability encountered in everyday life) from a linear combination of facial attributes, explaining 58% of the variance in raters’ impressions despite the considerable variability of the photographs. Reversing this process, we then demonstrate that face-like images can be generated that yield predictable social trait impressions in naive raters because they capture key aspects of the systematic variation in the relevant physical features of real faces.

The results of this study are important because they permit us to accurately predict most of the time how people will react to meeting a person for the first time based on the shape of the person’s face.

We form our opinion of a stranger’s trustworthiness or dominance without conscious thought almost instantly. The shape of a jaw or set of the eyes can lead to long-lasting opinions about someone. The scientists listed 65 facial attributes.

Although this information may be most useful to advertisers, trial lawyers can use it to predict how juries will react to what they say and whether they are likely to believe their clients.

Read the abstract of the study, which has been published in the Proceedings of the National Academy of Sciences.

The implications of this study may be disquieting to those of us who want to believe that we do not make snap decisions about a stranger’s character based on the shape of the face.

Just for fun:

Based on looking at Theodore Wafer’s face, do you believe he is a trustworthy person?

Have you formed any opinions about him, based on his facial expressions?

If so, what are they?

What about Oscar Pistorius?

George Zimmerman?

Michael Dunn?

This is our 1163rd post.

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Thanks,

Fred


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