The Oscar Pistorius Thread

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Re: The Oscar Pistorius Thread

Postby Kal El » Mon Sep 15, 2014 11:55

jimipresley wrote:I have no problem with the judge's decision. The onus is on the state to prove, beyond a reasonable doubt, that there was premeditated intent to kill, and they failed dismally at it.

I have no doubt that OP knew full-well who was behind the door. That he knew it wasn't a "burglar". He fired his weapon in a pique of rage (probably without intent to kill) and killed someone. He's a nutjob with anger-management issues.

I don't know what he "deserves". These are moral questions. Some are baying for blood and want him gang-raped in Pretoria Central for the next 15 years. No doubt, if I were family of the deceased, that is the wrath that I would wish incurred upon him. Moral dilemmas are always difficult and wholely subjective.

Here's an interesting article that I read on Facebook about the potential appeal process by the state. I quote it in its entirety, because I'm not sure of the source:


Spoiler:
"While Masipa J has delivered judgement in the Pistorius case, there appear to be errors of law in her judgment. These errors of law may allow the prosecution to appeal.
Many commentators are saying that Masipa’s mistake was to misconceive the form of intention in our law known as dolus eventualis. A careful analysis reveals that the apparent error relates only partly to dolus eventualis. Instead, the apparent error related to how Masipa conceived of dolus eventualis as related to a far more complex issue in our law: the difference between the scenarios of error in objecto and aberratio ictus. It is only by understanding these scenarios, and the settled law on these scenarios, that one can understand where Masipa appeared to go wrong.
After dismissing the prospect of premeditated murder, Masipa turned her attention to whether Pistorius was nevertheless guilty of murder.
She indicated that this required that she deal with the defence argument that a conviction in the circumstances would require that the court revive an old doctrine rejected from our law: transfered intent. This spectre of this is daunting – because to understand that this doctrine is not in question, one must understand what it is, what it is not, and why it doesn’t apply. Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them. At its essence, scenarios of error in objecto (or where one is dealing with a person, error in persona) relate to circumstances in which one strikes/shoots at a particular object/person and one hit one’s target. If you have aimed at a human being (a particular human body), and you hit and kill that human being, you cannot argue that you thought that the person you killed was John, whereas, in fact, it was Peter. This (error in objecto/persona) is irrelevant.
Aberatio ictus on the other hand means “going astray of the blow” – and ultimately describes scenarios in which one misses one’s target. This is crucial because it is the essence of the distinction between scenarios of error in objecto and aberratio ictus. It is an aberratio ictus scenario where one aims and shoots at someone (John), but misses that person and strikes and kill another (Peter). The question arises whether this mistake is material and can form the basis of a defence.
In these scenarios, our law used used to refuse to recognise that this mistake could possibly be a defence. It used to simply regard your intention to kill John as “transferred” onto Peter. Hence, “transferred intent”. Our law has shifted and rejected this transferred intent approach. It is now possible on our law to rely on this mistake as a defence against a murder charge in respect of Peter – but only if there was, actually, no other form of intention that actually fell on Peter. That is, our law will allow you to be convicted of the murder of Peter, if, while you intended to kill John, you also had intention in respect of Peter – such as perhaps dolus eventualis – you foresaw the risk of missing John and killing Peter, accepted the risk and proceeded.
Lets consider into which scenario the facts of Pistorius fits. Did Pistorius miss his target? No, he did not. He aimed at a particular human being and shot and killed that human being – whoever was behind the door. There can be no question that this is a scenario of error in objecto and that the identity of the person behind the door was irrelevant.
Masipa discussed these scenarios, correctly stated the law, and correctly identified that we (on the facts of the Pistorius case) are dealing with a scenario of error in objecto – in which (in the relevant sense) the identity of the victim was irrelevant. That is, it doesn’t matter who was behind the door. The significance of all of this is that it has direct implications for the way in which one enquires whether an accused had intention or not.
Then the first sign of trouble appeared. After turning her attention to the accused’s defence of putative private defence, Masipa stated that the question was: “whether the accused intended to kill.” Immediately it becomes apparent that there was a misconception regarding the nature of the defence of putative private defence. It is not the question of whether the accused intended to kill, but whether he intended to unlawfully kill.
The question of whether the accused intended to unlawfully kill is the question of whether the accused believed he was under attack and entitled to resort to force in defence. This question was not engaged with. The question the judge pursued was whether he intended to kill.
At that point it seemed Pistorius was bound to be convicted of murder – given that there seemed little question that he did intend to kill whoever was in the toilet – despite his defence of putative private defence. But the judgement took another strange turn.
“I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively forsee that it could be the deceased behind the toilet door;
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the states contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that, from the onset, the accused believed that at the time he fired the shots into the toilet door, the deceased was in the bedroom, while the intruders were in the toilet.”
She repeats this again twice: did he forsee the possibility of killing the deceased – although, on the third occasion coming closer to what ought to have been addressed: whether the accused foresaw the possibility of killing whoever was behind the door. She says, on the third occasion, that the accused did not forsee killing “the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time”. But accepting that the accused thought that the deceased was in the bedroom does not exclude the possibility of there being someone else behind the door. Indeed, ironically, that is his own version: that he thought there was someone else behind the door. Applied to the undisputed law on error in objecto where one mistakes one person for another – which is immaterial – the question ought to have been: “did the accused forsee the possibility of killing whoever was behind the door”. This is an entirely different question which, in turn, begs the question whether the accused must have, and by inference did, forsee that he would kill whoever was in his toilet by firing four shots through the door.
It is true that, on day two of her judgement, she referred to several authorities on how one may reason to a finding of dolus (intention). These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.
She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement – that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.
What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question – a very necessary question – becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point. The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.
On the charge of unlawful possession of ammunition Masipa seemed to conflate the mental requirement for possession (knowledge of possession), with the mental requirement (known as fault) for the crime – that is, can one only be guilty of this crime if one intends to unlawfully possess ammunition or even if one only negligently unlawfully possesses ammunition. The statute that creates this offence is silent on the issue, which requires, in turn, that a court must decide what form of fault, if any is required. This analysis is conspicuously missing from her judgement. The significance is that an analysis could have led her to the conclusion that only negligence was required. If that were so, his defence that he did not know he was not entitled to be in possession of the ammunition would have to stand up to the appropriate test of negligence: would the reasonable firearm owner know that this is prohibited?
In the final analysis, Masipa appears to have erroneously conceived of the defence of putative private defence, and to have misconceived the test of intention when dealing with a problem of error in objecto. Also, she appears to have conflated a requirement for possession for the fault required for the unlawful possession of ammunition. These are all, arguably, errors of law. As errors of law, the state may appeal. The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction.

I'd be interested to hear what my learned friends with legal backgrounds have to say on the matter. ChinaCat? Omni?

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Re: The Oscar Pistorius Thread

Postby jimipresley » Sun Oct 19, 2014 10:10

The soap opera that has gripped South Africa for the last two years is nearing its finale. The knives are out; the noose tied and the compassion, overwhelming.

Article: http://www.dailymaverick.co.za/article/ ... EMbnmeSzL-

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Re: The Oscar Pistorius Thread

Postby Big Vern » Sun Oct 19, 2014 15:25

They need to think very carefully about the Pistorius sentencing, or many South Africans may lose their respect for the criminal justice system :wink: .

Seriously, you're not suggesting people should feel compassion for Pistorius are you? I agree with pretty much every word in the article you linked to.

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Re: The Oscar Pistorius Thread

Postby jimipresley » Sun Oct 19, 2014 15:31

Big Vern wrote:They need to think very carefully about the Pistorius sentencing, or many South Africans may lose their respect for the criminal justice system :wink: .

Seriously, you're not suggesting people should feel compassion for Pistorius are you? I agree with pretty much every word in the article you linked to.

It would be a travesty of justice if he were allowed to walk free. He's a nasty little fuck and deserves a prison sentence.

However, I remain reticent concerning the crime/punishment debate. Emotive recourse to "morality" is, at best, emotive. :twocents:
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Re: The Oscar Pistorius Thread

Postby Big Vern » Sun Oct 19, 2014 15:35

jimipresley wrote:
Big Vern wrote:They need to think very carefully about the Pistorius sentencing, or many South Africans may lose their respect for the criminal justice system :wink: .

Seriously, you're not suggesting people should feel compassion for Pistorius are you? I agree with pretty much every word in the article you linked to.

it would be a travesty of justice if he was allowed to walk free. He's a nasty little fuck and deserves a prison sentence.

However, I remain reticent concerning the crime/punishment debate. Emotive recourse to "morality" is, at best, emotive. :twocents:


Emotive? You used the word "compassion" :tongue: .

Anyway, he's played the celebrity privilege card and we'll find out on Tuesday (I think) if it's worked. I think it has and he'll be able to put his feet up at home for a couple of years.
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Re: The Oscar Pistorius Thread

Postby Big Vern » Sun Oct 19, 2014 15:37

Oops, just ran a search and it appears that compassion isn't necessarily an emotional response. Apologies :bow:

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Re: The Oscar Pistorius Thread

Postby sandman » Sun Oct 19, 2014 15:40

I'm pretty sure the fellow doesn't actually have any feet, Big Vern. This is the Saffer running bloke, right? I haven't been paying attention to it, on account of the utter banality of the whole thing.
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Re: The Oscar Pistorius Thread

Postby jimipresley » Sun Oct 19, 2014 15:43

sandman wrote:I'm pretty sure the fellow doesn't actually have any feet, Big Vern. This is the Saffer running bloke, right? I haven't been paying attention to it, on account of the utter banality of the whole thing.

We can always rely on sandman to heave veritable tons of substance onto a debate. :bravo:
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Re: The Oscar Pistorius Thread

Postby Big Vern » Sun Oct 19, 2014 15:50

sandman wrote:I'm pretty sure the fellow doesn't actually have any feet, Big Vern. This is the Saffer running bloke, right? I haven't been paying attention to it, on account of the utter banality of the whole thing.


Don't be ridiculous. How could he run without any feet? Duh!
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Re: The Oscar Pistorius Thread

Postby sandman » Sun Oct 19, 2014 16:13

Big Vern wrote:
sandman wrote:I'm pretty sure the fellow doesn't actually have any feet, Big Vern. This is the Saffer running bloke, right? I haven't been paying attention to it, on account of the utter banality of the whole thing.


Don't be ridiculous. How could he run without any feet? Duh!

He's got rocket shoes or a jetpack or something, I believe. Thing is, where would the shoes actually go if he's got no feet? Its a conundrum, to be sure. But really. A rich privileged lady gets offed by a rich privileged man. How many people got offed by gunshot in South Africa during the course of this trial nonsense?

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Re: The Oscar Pistorius Thread

Postby TainanCowboy » Tue Oct 21, 2014 18:19

The facts expressed here belong to everybody. The opinions are mine.
I don’t post political comments or articles to convince those who disagree with me,
I post them so that those who might agree with such positions will know they are not alone.
Some things are opinions and can be argued - some things are facts and cannot.
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Re: The Oscar Pistorius Thread

Postby jimipresley » Tue Oct 21, 2014 23:00

Khalil Subjee, who runs the "26" prison gang has made it clear that he will be gunning for Pistorius. It's a prestige thing: Improve their standing.
South African prisons are of the worst in the world as far as far as gang-rape and murder go.

The gangs run the prisons. If they want to "borrow" someone for a night, they pay the guards off. If the guards want a bit of fun, they put a young guy or old person in the same cell as the most hardcore scum. You know. Just for laughs.

"Protective custody" and the "hospital wing" are jokes. They can get to you anywhere.

And they play the old "let's stick him with HIV" gag just for a giggle.

Pretoria's Kgosi Mampuru II (previously "Pretoria Central") is not somewhere that you want to go to, even for an hour. :twocents:
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Re: The Oscar Pistorius Thread

Postby divea » Wed Oct 22, 2014 08:14

You really think he'll go to prison? No deals, no nothing? And won't SA want to protect Pistorious is prison, lest there is an international human rights outcry if he is harmed???


I don't believe celebrities go to prison.

And even if he does, it's for only 10 months really.

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.


How does one kill anyone unintentionally with a gun? How stupid is that? It's like writing with a pen unintentionally. DUH!!

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Re: The Oscar Pistorius Thread

Postby Big Vern » Wed Oct 22, 2014 10:16

I'm still struggling to get over the logic bypass in the verdict. Pistorius claimed that he was scared of intruders because of his disability, but he tried to break down the bathroom door with a cricket bat to get at the intruders he believed had locked themselves in there. Why would he do that? Why would they do that? Only when he failed to knock it down did he get his gun and shoot through the door. It never crossed his mind that the noise of him beating the door with his cricket bat would have woken Steenkamp who he claimed he believed was sleeping a few metres away.

The five year sentence seems to me like a compromise to placate the masses. He's a very lucky little boy.
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Re: The Oscar Pistorius Thread

Postby Kal El » Wed Oct 22, 2014 12:52

Big Vern wrote:He's a very lucky little boy.


I refer you to this:
jimipresley wrote:Khalil Subjee, who runs the "26" prison gang has made it clear that he will be gunning for Pistorius. It's a prestige thing: Improve their standing.
South African prisons are of the worst in the world as far as far as gang-rape and murder go.

The gangs run the prisons. If they want to "borrow" someone for a night, they pay the guards off. If the guards want a bit of fun, they put a young guy or old person in the same cell as the most hardcore scum. You know. Just for laughs.

"Protective custody" and the "hospital wing" are jokes. They can get to you anywhere.

And they play the old "let's stick him with HIV" gag just for a giggle.

Pretoria's Kgosi Mampuru II (previously "Pretoria Central") is not somewhere that you want to go to, even for an hour. :twocents:

And that's sugarcoating it. He's been in there for almost 24 hours as it is, and he will have to do at least 10 months of his five year sentence before even being considered for parole. He's in for a very rough time.
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