DA Appeals Oscar Pistorious Judgment

The prosecution in South Africa is appealing Judge Masipa's ruling in the Oscar Pistorius case.

It claims she misapplied the doctrine of dolus eventualis and should have found him guilty of first degree murder. It also argues his sentence was too light.

The prosecution's filing is here. An article supporting her judgment is here. Another is here. Yet another is here. My view, as I've expressed many times: the appeal should fail and I disagree with the articles taking the opposite view.

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    I hope that TL readers understand (5.00 / 1) (#5)
    by Peter G on Tue Nov 04, 2014 at 06:26:21 PM EST
    that an appeal like this would not be possible under our own legal system. The double jeopardy clause protects against the prosecutor appealing the verdict on a lower degree of crime than was charged, because that conviction is viewed as an acquittal of the higher degree offense.  The state or federal government cannot appeal from an acquittal following trial, regardless of whether the verdict was rendered by a jury or a judge.

    Yes, I think (5.00 / 1) (#6)
    by Zorba on Tue Nov 04, 2014 at 06:37:10 PM EST
    That most of us realize this, Peter.  But thank you for your comment, in case there are some who don't understand this.

    In the US, They Could Change the Charge (none / 0) (#7)
    by RickyJim on Tue Nov 04, 2014 at 06:40:10 PM EST
    Like in Rodney King and many other cases.  France has real double jeopardy immunity.  You can't be tried twice for the same act.

    The second case against the police (5.00 / 1) (#10)
    by Peter G on Tue Nov 04, 2014 at 08:23:14 PM EST
    who beat Rodney King -- what I figure you're referring to -- was in federal court, on federal civil rights charges.  Yes, it is a peculiarity of our federal system that the states are considered "separate sovereigns" from one another and from the federal government. So if someone's conduct potentially violates both state and federal law, or violates the law of more than one state, s/he can indeed be prosecuted more than once for the same conduct, as long as it's by different "sovereigns," unless a particular state's criminal law forbids that out of fairness (as does Pennsylvania's, for example). I can't agree with you that this happens in "many" cases, though; I think it's actually pretty rare.

    "change the charge"? Not really. (none / 0) (#9)
    by oculus on Tue Nov 04, 2014 at 08:07:02 PM EST
    Federal civil rights violation charges require proof of elements differing from state criminal charges.

    The Gaps in My Understanding (none / 0) (#1)
    by RickyJim on Tue Nov 04, 2014 at 02:52:59 PM EST
    1. If she believed beyond a reasonable doubt that Oscar knew that Reeva was behind the door would she have been obligated to find him guilty of murder, regardless of whether or not firing the 4 shots showed an intent to commit murder?

    If the answer to 1. is yes, I will give two reasons to believe that Oscar knew that Reeva was behind the door.  Did the judge refute them in her written decision?

    1. Oscar said that he was extremely frightened after hearing the noise and reacted to it by not turning on the lights, finding his gun, telling Reeva to call the police, heading to the bathroom door on his stumps, shouting "Get the ** out of my house" and hearing no answer, firing.  I find the scenario highly implausible since frightened Oscar could have turned on the lights, found his prosthetics and gun and remained in the bedroom while asking Reeva to call the police.

    2. I can't find any reason for Reeva not to answer Oscar while he was outside the toilet door, obviously shouting at the person inside.

    Although your inferences (none / 0) (#3)
    by Reconstructionist on Tue Nov 04, 2014 at 05:12:30 PM EST
     are reasonable, you must bear in mind that the existence of highly reasonable inferences consistent with guilt does not suffice to convict.

      Sometimes, often actually, cases come down to the burden of proof and  the verdict is based on a finding the  prosecution failed to carry its burden of proof beyond a reasonable doubt-- despite the implausibility of a defendant's version or just the lack of any version from a defendant.


    Reasonable Doubt (none / 0) (#12)
    by RickyJim on Wed Nov 05, 2014 at 09:13:13 AM EST
    When confronted with the question of whether or not guilt has been demonstrated beyond a reasonable doubt, I ask myself, "Is there a reasonable innocent explanation for the evidence?".  I hope that somebody, familiar with the judge's written decision, can supply what she thought is a reasonable innocent explanation for what might seem to be a deliberate murder.

    link (none / 0) (#13)
    by Reconstructionist on Wed Nov 05, 2014 at 09:47:13 AM EST
    Link to judgment

      A stilted and convoluted mess to be sure, but the judge found the prosecution failed to prove he acted with intent to kill.

    The opinion rambles along but much of it is essentially an explanation of the perceived shortcomings of the state's evidence because the percipient witnesses were not sufficiently reliable to allow for their testimony to carry much probative weight and because the physical evidence was not conclusive because it did little to address intent.

      Beginning near  the bottom of page 40 (of the .pdf-- not the case numbering) she gets to the crux of the matter. On Page 47-51 she basically states that the evidence was insufficient to counter his own claim that he did not subjectively believe she was behind the door or that his shots would kill any person who was behind the door.

      She then goes on to give the reasoning for the guilty verdict to the lesser charge.


    I Read the Section You Suggested (none / 0) (#15)
    by RickyJim on Wed Nov 05, 2014 at 05:38:56 PM EST
    and I could not find a refutation of the reasons I gave that, beyond a reasonable doubt, he knew Reeva was behind the door at the time he opened fire.  In fact she gave another reason for believing that: She had her cellphone with her; so she just didn't go there to relieve herself.  I could not even find an unequivocal statement in the decision that if he knew she was behind the door, he must be guilty of murder.  Well, I suppose I will be continue to be confused about the outcome of this case.

    Really, all I can tell you (none / 0) (#16)
    by Reconstructionist on Thu Nov 06, 2014 at 06:07:06 AM EST
      is that Pistorious is lucky you weren't the judge.

       She obviously decided inferences from that evidence other than ones you draw were not refuted sufficiently to erase reasonable doubt as to his intent.

      I think it is more you simply disagree than you don't understand. I'm sure many people share your view.



    And I Think... (none / 0) (#14)
    by ScottW714 on Wed Nov 05, 2014 at 12:51:51 PM EST
    ...if 10 different judges decided this case, each with their own interpretations of the law, and their weighing of the evidence, would vary in their conclusions and punishment.  

    The Supreme Court comes to mind, 9 people who spent their entire careers studying law, rarely reach a unanimous decision even though they are presented the same information.

    Ditto for a hung jury.

    I would suggest if you want to know how she came to the conclusion she did, you should read it yourself and not rely on another person's interpretation of her words.


    An interesting opinion piece (none / 0) (#2)
    by oculus on Tue Nov 04, 2014 at 03:47:37 PM EST
    re crime statastics for SA:


    Interesting (none / 0) (#4)
    by Zorba on Tue Nov 04, 2014 at 06:00:25 PM EST
    I think I may have to read Altbeker's books.
    Gee, thanks, Oc.  Like I don't have a whole backlog of books I'm trying to get through.  ;-)

    I am listening to Michael York's (none / 0) (#8)
    by oculus on Tue Nov 04, 2014 at 08:04:20 PM EST
    narration of Alan Paton's novel, "cry the beloved country."  At this point, Paton is describibg the justice system in SA. He says that, although the black people may not trust the law, t hey, like everyone, trust the judges.

    I read (5.00 / 1) (#11)
    by Zorba on Tue Nov 04, 2014 at 08:51:30 PM EST
    Cry the Beloved Country years ago.
    A powerful book.
    South Africa has such a complex history, I'm not sure that Americans can even begin to understand it.