Oscar Pistorius Now Convicted of Murder

The South African appeals court has ruled the trial judge in the Oscar Pistorius case erred in dismissing the murder charge. He won't get a new trial. He now stands convicted of murder, and the case will be sent back to the trial court for resentencing.

Bad ruling as I've opined many times.

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    The 5 judges on the appeals court were unanimous (5.00 / 4) (#1)
    by CoralGables on Thu Dec 03, 2015 at 06:15:06 AM EST
    in their verdict.

    Pistorius will remain under house arrest until re-sentencing sometime next year when he will return to jail. Minimum sentence is likely to be 15 years with credit for time served. The possibility of victory with an appeal to the constitutional court is very slim.

    I would opine that the appeals court righted a wrong.

    I Agree, Here are Some of the Findings (none / 0) (#7)
    by ScottW714 on Thu Dec 03, 2015 at 09:53:14 AM EST
    Reading the unanimous ruling reached by the five judges, Justice Eric Leach said that having armed himself with a high-calibre weapon, Pistorius must have foreseen that whoever was behind the door might die, especially given his firearms training.

    "As a matter of common sense at the time the fatal shots were fired, the possibility of the death of the person behind the door was clearly an obvious result," the judge said.

    "And in firing not one but four shots, such a result became even more likely."

    Pistorius always maintained that he believed there was an intruder in the house but the judge said that the identity of the person behind the door was "irrelevant to his guilt".

    Justice Leach compared it to someone setting off a bomb in a public place not knowing who the victims might be.

    The notion that you can blindly shoot and then claim you didn't know who you shot, as your defense, was bothersome to say the least.  Just close your eyes and hope for the best is not a view someone with a gun should ever have.

    People who use dangerous weapons should have to bear the results of their errors in judgement.  That being said, I have never believed he didn't know who was behind the door.  I have never heard a noise late at night and not looked to see if my GF was up.


    Pistorius' Case is Even Weaker Than That (none / 0) (#9)
    by RickyJim on Thu Dec 03, 2015 at 10:18:28 AM EST
    He claimed he shouted at the person in the toilet, "Get the f*** out of my house." and Reeva didn't reply as she didn't to his previous request to call the police.  That and several other circumstances make it absurd that he didn't know she was in there.  The original judges didn't give a reasonable explanation why he mistakenly fired.  The original decision was unanimous by one judge and two assessors, but only the judge's opinion counted.  I wish they would have explained themselves better.  

    By the way, giving the prosecution the right to one appeal is not that unusual. But not in France which has a stronger form of double jeopardy than the US. You can't be retried, even for civil damages, for the same act in France while in the US it is for violating the same statute.  


    I agree with your opining. (none / 0) (#13)
    by sarcastic unnamed one on Thu Dec 03, 2015 at 11:07:16 AM EST
    It is what it is. (5.00 / 1) (#17)
    by Donald from Hawaii on Thu Dec 03, 2015 at 12:26:07 PM EST
    Having initially failed to convince the trial judge that Oscar Pistorius deliberately targeted his girlfriend Reeva Steenkamp and was therefore guilty of her murder, prosecutors then argued before the appellate court that he didn't necessarily have to know exactly who was behind the bathroom door when he opened fire, to therefore be guilty of the murder of somebody.

    In effect, the prosecution argued two entirely different murder cases, first at trial and then upon appeal respectively, and got one of them to stick when the five appellate justices agreed with their latter interpretation.


    Come On Donald... (5.00 / 3) (#18)
    by ScottW714 on Thu Dec 03, 2015 at 12:49:20 PM EST
    ...you put a lot of words up defending the original judge's decision, now just a non-descript blurb when the decision you defended is found to be faulty.

    ... and the subsequent appeal, to the point of watching both proceedings live online, I stand by what I said, and can further tell you with some degree of assurance that the prosecution argued a completely different case on appeal.

    (Because of the 12-hour time difference between Hawaii and South Africa, the court proceedings of this case actually commenced during prime time hours, Hawaii Standard Time, which is how I got to watch them.)

    Successfully prosecuting a charge of murder requires proof of intent plus opportunity. In the original criminal trial which was held in Pretoria, Prosecutor Gerrie Nel specifically and repeatedly implied that the defendant Oscar Pistorius' primary motive for murder that night was to kill his girlfriend Reeva Steenkamp was jealousy and distrust.

    But when it came to actual evidence to support that contention, in my opinion Nel's proof of intent was based primarily upon two rather slender facts: (1)Neighbors heard the couple arguing quietly spiritedly, perhaps even violently, earlier in the evening prior to the shooting; and (2) Steenkamp had earlier written to Pistorius regarding what she saw as his emotional and mental abuse of her.

    Unfortunately for Nel's case, none of these neighbors could really make out what the argument was about. Nor could they even necessarily agree about the specific time during which said argument took place, relative to the time of the actual shooting.

    The basis for the prosecution's original contention foundered at trial upon Nel's inability to prove that Pistorius demonstrated any malice aforethought with due regard to Steenkamp, i.e., that his intent that night was to specifically kill her.

    But when Gerrie Nel re-presented the prosecution's case upon appeal in Bloemfontein, which is the administrative seat of the country's Supreme Court(s) and judiciary, he instead argued that Pistorius did not have to know exactly who was in the bathroom during that early morning hour when he deliberately fired four bullets through the door, to be found guilty of murdering somebody.

    And that's because Pistorius had to have known that regardless of whoever he thought was in the bathroom at the time, that person would be unlikely to survive such a fusillade of bullets directed at such a small and enclosed space. Therefore, it's pretty clear that he intended to kill somebody -- if not necessarily his girlfriend per se.

    Now, I'll admit that I can't necessarily disagree with that particular argument for murder at all. Under South African law, deliberately and successfully shooting anyone, even a random stranger, with an intent to kill does in fact constitute the crime of murder. So in that regard, yes, Oscar Pistorius is probably guilty and Masipa likely erred in failing to consider that when rendering her original verdict.

    But that said -- and I'm pretty sure that Jeralyn will agree with me here -- this particular argument was not presented in any detail or otherwise even emphasized by Prosecutor Nel during the original trial proceedings, except as almost an afterthought during his closing summation.

    Because at trial, Nel wasn't contending that Pistorius knowingly and deliberately fired at just anyone. Rather, he had argued -- and not very effectively, as it turned out -- that the defendant knowingly and deliberately killed Steenkamp in a uncontrollable fit of jealous rage. And defense counsel Barry Roux subsequently shot that particular argument full of holes.

    Therefore, I think you'd agree that Nel's first and second arguments are not one and the same thing. Further, I would note that none of the appellate court justices took issue with any of Trial Judge Thokozile Mapisa's actual findings of fact, as she presented them at the original trial.

    Where they contend that Judge Masipa erred was in not considering an argument for murder that was never made while Nel was presenting its original case, but rather was brought up only during his final summation when he likely realized that he had probably failed to prove the defendant's motive regarding any specific desire to kill his girlfriend.

    The Supreme Court of Appeal in Bloemfontein was perfectly within its jurisdiction to rule as it did in considering the amendment to the prosecution's original argument for conviction, that Judge Masipa erred in her interpretation of the law regarding dolus eventualis, when she ruled that Pistorius did not harbor any criminal intent when he fired through that door at somebody. Rather, she ruled that he had acted in reckless disregard when she found him guilty of culpable homicide (manslaughter).

    Judge Masipa will have to accept their findings, given that under South African law, her prior consent was required for the prosecution to appeal her original verdict, which she had granted to Nel last December. Otherwise, they could only petition her to reconsider her decision.

    (She later noted during a live interview on BBC that she had decided to grant the appeal even before she rendered her verdict publicly, because she knew that her ruling would be considered controversial and she desired an appellate review herself.)

    But as Peter G. noted earlier, the defendant Oscar Pistorious was subjected to what in this country constitutes double jeopardy, in that South Africa's judicial system does allow the prosecution a second bite at the apple through their appeal of an acquittal. Suffice to say that Gerrie Nel made the most of that opportunity the second time around.

    Pistorius is noe required to re-appear before Judge Masipa in Pretoria at a future date yet to be determined, whereupon she will re-sentence him in accordance with the verdict of murder rendered by the Supreme Court of Appeal in Bloemfontein.



    Wow, so much nuance (none / 0) (#40)
    by NYShooter on Fri Dec 04, 2015 at 11:28:35 PM EST
    Like slicing a sheet of vellum into 10 thinner sheets.

    I can't even begin to navigate between all the, obviously, well thought out, points you made, so, no agreement, or, disagreement from me.

    But, it sort of reminds me of a scene from an old "Law and Order" program: (The show was a long time ago, so, the details may be fuzzy, but, you'll get the point.)

    Two guys, each with a handgun, shot, and, killed two girls who were there. Each guy fired one shot, and, each girl had one bullet hole in her. There was no doubt murder had been committed, and, there was no doubt those two guys were the perpetrators.

    The problem for the prosecutor was, who shot who?
    And, since the two guys had planned the murders in just that way, there was no apparent way for us, the audience, to ascertain the ending.

    Thus, the prosecutor's dilemma.

    Oh, I hope someone here also saw that program cause, for the life of me, I don't remember how the prosecutor figured it out.


    Proof Again that our system (none / 0) (#2)
    by jimakaPPJ on Thu Dec 03, 2015 at 08:04:41 AM EST
    even with its flaws

    Is the best in the world.

    And yes, I think he has gotten what he deserved. But we shouldn't think it okay to give the government, with all its power, multiple chances to use its power.

    They didn't get multiple chances (5.00 / 2) (#3)
    by CoralGables on Thu Dec 03, 2015 at 08:31:23 AM EST
    it was an appeals court that found trial error.

    Jim is right about this. (5.00 / 1) (#4)
    by Peter G on Thu Dec 03, 2015 at 09:22:04 AM EST
    Under the U.S. Supreme Court's interpretation and application of the Double Jeopardy Clause, a trial court conviction of a lesser offense (e.g., manslaughter) -- whether by judge or jury -- counts as an acquittal of the greater offense (e.g., murder). The prosecution/state in our system cannot appeal an acquittal, no matter how erroneous a higher court might view it to have been. This is a very strong view of double jeopardy, not shared by all other "western" legal systems, but it does protect the accused against abuse of government power.

    There they get a new trial (none / 0) (#5)
    by CaptHowdy on Thu Dec 03, 2015 at 09:34:49 AM EST
    He wasn't tried in a US Court (none / 0) (#6)
    by CoralGables on Thu Dec 03, 2015 at 09:41:22 AM EST
    thereby making the comparison meaningless.

    Now to be fair (5.00 / 1) (#8)
    by CoralGables on Thu Dec 03, 2015 at 09:53:44 AM EST
    Had Pistorius committed this crime in Florida, he would have likely walked free. He should have taken his girlfriend on vacation to the Sunshine State and killed her here.

    Come On... (none / 0) (#11)
    by ScottW714 on Thu Dec 03, 2015 at 10:34:52 AM EST
    To make a claim that ours is better because we have never known anything different is like saying my dad is better than yours.  It's an opinion, and I am positive if they came back with a different result, Jim would be singing a different tune.

    I am not saying their system is any better or worse, the most one could say is it's different.  The notion that ours is the 'best in the world' is an opinion from Jim, you may agree, but that certainly doesn't make Jim right.  Especially considering that there is a good chance that his opinion of other judicial system is entirely based on the reporting at Fox News of high profile cases.


    I failed to make myself clear, I guess (5.00 / 3) (#12)
    by Peter G on Thu Dec 03, 2015 at 10:55:05 AM EST
    I was not saying that Jim was "right" about our system being the "best." I don't know that to be true, and wouldn't make that claim. I only meant to point out that he was right that the procedure followed in the Pistorius case and this latest result would not be possible under our system, and why. And that I approve of the rights-protective policy judgment behind this particular aspect of our Double Jeopardy jurisprudence.

    The correct expression is not (none / 0) (#14)
    by Peter G on Thu Dec 03, 2015 at 11:21:26 AM EST
    "rights-protective." Rather, "liberty-protective" is what I meant to say.

    Then what is the (none / 0) (#28)
    by NYShooter on Thu Dec 03, 2015 at 07:29:21 PM EST
    rationale for being "liberty-protective" for a defendant, yet, leaving society unprotected from a potential, provable, but, un-chargeable, (let's say) mass murderer?

    Hasn't The SC moved somewhat to not always, without exception, reject "The fruit of the poisonous tree?"


    The rationale for protecting liberty (5.00 / 2) (#30)
    by Peter G on Thu Dec 03, 2015 at 09:02:08 PM EST
    above other interests, even at the theoretical expense that some guilty parties may go free, is that it this the best (indeed, the only) bulwark against tyranny, as history shows and as Anglo-American law, as well as Enlightenment political theory -- on which the U.S. Constitution is founded -- has strongly proclaimed for at least the last 350 (if not 800) years.
       As to your second question, no, to my knowledge it has not. Nor is that doctrine really pertinent to this issue.

    Thanks for the reponse. (none / 0) (#33)
    by NYShooter on Thu Dec 03, 2015 at 11:13:22 PM EST
    Much to ponder, much more to learn. I hope I can reach out to you for your thoughts when I find myself at future "crossroads," not feeling confident which road to take.

    BTW, what doctrine are you referring to? The poisonous tree?  


    Yes, NYS, your second question was about (5.00 / 1) (#34)
    by Peter G on Fri Dec 04, 2015 at 01:49:58 PM EST
    the "fruit of the poisonous tree" doctrine, and that's what I responded to.
       As to the question about favoring liberty, you might be interested to read the article on "Blackstone's Formulation" in Wikipedia.

    I Seriously Doubt (5.00 / 2) (#10)
    by RickyJim on Thu Dec 03, 2015 at 10:24:22 AM EST
    that you have more than the most superficial knowledge of other judicial systems.  My experience is that most law professors, who know comparative law, don't think the US system is the best in the world.

    Who has a better system? (none / 0) (#15)
    by McBain on Thu Dec 03, 2015 at 12:19:57 PM EST
    No Idea... (5.00 / 1) (#19)
    by ScottW714 on Thu Dec 03, 2015 at 12:54:49 PM EST
    ...but I know system in which wealth and race play a disproportionate role in verdict outcome, ain't it.

    But here, in the US, that is on us, the public, for not insisting on needed improvements and funding.

    That being said and only having a vague understand of other systems, if I was charged with a major crime, I would want to be tried here.  But the flaws mentioned above, probably work in my favor rather than against me.


    So, no one can give a specific example? (none / 0) (#21)
    by McBain on Thu Dec 03, 2015 at 02:27:41 PM EST
    Howdy makes a good point about the death penalty but I'd to at least hear of a specific country that does a better job overall.  

    Right now, I have to agree with Jim.


    There are Two Examples (5.00 / 5) (#22)
    by ScottW714 on Thu Dec 03, 2015 at 03:58:50 PM EST
    ...things you yourself have discussed, especially poor folks getting not a fair shake.

    According to Forbes the US doesn't even crack the top 10.  But I am not providing a link because it's not my job to inform you.

    But off the top of my head on our system:

    The entire secret court system we have that no one knows about, that can perform search without warrants or warrants that are never seen by the public, and trails in which evidence is declared secret and the defense is denied access.

    Next, a country with an island full of prisoners who are denied trials because they were tortured in captivity should disqualify any country from claiming to be number one in regards to their system of justice.

    Not your beef but, I would add the epidemic of cop killings of innocent and unarmed people over a traffic situations, and not being held accountable, as a huge miscarriage of justice.

    And lastly prisons, our incarceration rate is appalling as well as the conditions in prison, including an almost system acceptance of solitary confinement as a punishment tool, including locking up people with mental health issues.  We still have chain gangs, terrible health care, and have let Corporate America into the prison business whose only concern is profits(more prisoners), not justice or rehabilitation.

    Its funny for you to be such an advocate of the very system you denigrate at least weekly.  Or does the Maryland/Baltimore judicial system not fall within the parameters of the US court system ?


    We all know ours isn't perfect (none / 0) (#23)
    by McBain on Thu Dec 03, 2015 at 04:52:01 PM EST
    I'm still waiting for someone to name a better system.  

    Canada... (5.00 / 1) (#24)
    by ScottW714 on Thu Dec 03, 2015 at 05:10:51 PM EST
    ...and the 3 Scandinavian countries, most European countries, really any place that doesn't doesn't deny prisoners trials, doesn't torture them, and doesn't have the DP.

    America bad (1.00 / 1) (#25)
    by jimakaPPJ on Thu Dec 03, 2015 at 06:11:04 PM EST
    America Bad America bad is Scott's song.

    "America bad" sounds like caveman (5.00 / 5) (#26)
    by jondee on Thu Dec 03, 2015 at 06:32:03 PM EST

    Which is how you end up talking if you watch Fox News for too long.


    totally fallacious and false (5.00 / 3) (#31)
    by Peter G on Thu Dec 03, 2015 at 09:05:01 PM EST
    to interpret as "America bad" any suggestion that any other country might be in any respect better.

    McBain, (5.00 / 2) (#27)
    by NYShooter on Thu Dec 03, 2015 at 07:11:52 PM EST
    this is why you, Redbrow, Jimaka, and some others here are held in such low esteem, and, why many express impatience, and, frustration when they even bother responding to your comments. Simply stated.......You're not sincere.

    Sounds corny, doesn't it? But, here's what I see, having just signed on to Talk Left a few minutes ago. "Name a country, Name a country, Name a country!" So, just for giggles, if someone here was naive enough to fall for your disingenuous query, and, named a country, what would you do then?

    Would you say, "thank you, I'm going to follow up on the country you stated, and, try to learn as much as possible about that land. And, the reason for that would be because, from just simple, anecdotal evidence, evidence that any average, normal, sentient human being would perceive, there just must be something terribly wrong with "The richest, most powerful country on earth feeling it necessary to incarcerate 2,000,000 of its citizens.

    And, I'd find out that as the wealth of the, already, very wealthy continues to rise exponentially the ratio of poor & minority citizens being jailed also rises proportionally. And this ratio so far exceeds anything any other modern, civilized, Democracy, has produced the factors that caused this aberration simply screams for an explanation.

    So, thank you for responding so cogently; you've given me much food for thought. I'll be back to continue our conversation after I've absorbed this new information, and, I'll be eagerly looking for more new insights."

    So, McBain, could you see yourself ever responding to your fellow commenters in some similar manner?

    So, as you say, "I'll be waiting" to hear your answer.


    I think it has more to do with fear, NY (1.67 / 3) (#29)
    by McBain on Thu Dec 03, 2015 at 08:43:08 PM EST
    Fear of different opinions.  

    I'm not an expert in the legal systems of other countries. A friend is a defense lawyer in Ireland, so I know a little about what goes on there but that's about it.  I asked and finally got someone's opinion.  Why you choose to complain about that is interesting.  It has to do with fear.  


    Okay, I'll Bite (5.00 / 2) (#32)
    by RickyJim on Thu Dec 03, 2015 at 09:30:57 PM EST
    I have been writing about this stuff for years in this blog and elsewhere with little feedback except Jeralyn telling me I am OT.  But some of the defects found in US legal proceedings that are rectified in varying degrees in most civilized countries:

    1. Elected judges and prosecutors in US.  Civil Service meritocracy, elsewhere
    2. No wall between police and prosecution.  In other systems there is an investigative judge running the police investigation who decides whether or not the case should go forward and compiles a dossier of evidence that both sides use at trial.
    3. In most other countries, evidence is the property of the court not the individual parties. You don't have the sides suing each other, for perhaps years pretrial, to see what evidence the other side has.
    4. Judge(s) do most of the questioning at trial in the continental system.  The questioner doesn't obey the truth hiding rule of not asking questions for which he/she doesn't know the answer.

    I can go on and on, and have, but I hope you get some idea what may be wrong with the American Courtroom.

    Yes Jim... (5.00 / 2) (#36)
    by ScottW714 on Fri Dec 04, 2015 at 03:07:00 PM EST
    ... stating that I am anti-America because I recognize problems with a portion of our government, is what I would expect from person of very low character, morals, and intelligence.

    I would also point out the hypocrisy of you and your party's unrelenting denigration, not to be confused with criticism, of our nation's leader and the very government that makes us a nation.  Which, in case you didn't know, includes the criminal justice system.

    I would also dare you to find a single person who has not criticized some portion of our country's government, which by your ridiculous standards would make just about every American, anti-American, including yourself.


    Add Over-reliance on plea bargaining (5.00 / 2) (#37)
    by Michael Masinter on Fri Dec 04, 2015 at 03:28:43 PM EST
    Our system is great if you have a skilled defense attorney with unlimited resources.  But few people do.  For everyone else caught up in the U.S. criminal justice system, plea bargaining is the real system, producing over 90% of the outcomes.  

    Probably not a coincidence (none / 0) (#38)
    by CaptHowdy on Fri Dec 04, 2015 at 03:36:20 PM EST
    It was created by rich white landowners.

    I have issues with the judges (none / 0) (#35)
    by McBain on Fri Dec 04, 2015 at 02:13:53 PM EST
    I can handle some bad behavior from the lawyers if a good judge is there to hold them accountable or at least make sure it doesn't effect the trial.  

    Any Country That Doesn't Have the Adversary System (none / 0) (#16)
    by RickyJim on Thu Dec 03, 2015 at 12:25:03 PM EST
    Or the death penalty (5.00 / 2) (#20)
    by CaptHowdy on Thu Dec 03, 2015 at 01:29:24 PM EST
    Which IMO by its very nature devalues life.