Oscar Trial – Was the Verdict… Reasonable?

justice

Count 1: Murder – Not guilty and discharged. Alternatively, guilty of Culpable Homicide

Count 2: Illegal Discharge of Firearm, Sunroof Incident – Not guilty and discharged

Count 3: Illegal Discharge of Firearm, Tasha’s Incident – Guilty of 2nd alternative

Count 4: Illegal Possession of Unlicensed Ammo – Not guilty and discharged

To say that I am shocked, saddened and angry about the verdicts that were rendered in the Oscar Pistorius trial would be an enormous understatement. Yes, I do blog as a hobby, but it is not to be mistaken for entertainment. It is with great purpose and passion that I write about these trials, and I believe that the majority of my readers share that same drive. We are invested in these trials because they are central to our humanity and our freedom. How can we possibly be disinterested in the value of human life or in the safety of our societies? I do not believe that human beings were intended to live isolated existences. We are physically, psychologically and emotionally designed to need each other on so many different levels. We need to care about the outcomes of these trials and we need to voice our opinions to hopefully affect change for our collective future.

The concept of what is considered to be reasonable has been a central theme in this case. When we first heard about the shooting in 2013, we all asked – is it reasonable that Oscar heard a window open, failed to check on the well-being of his bed partner or ask her if she too heard the noise, and instead took off running with a loaded gun to kill an unidentified person who was in a toilet room with the door closed? Now that we are at the end of this trial, we are asking – was it reasonable for the Judge to make the statement that Oscar was a terrible witness, was evasive and gave contradictory evidence, and acted negligently, and then turn around and determine his lack of guilt based on HIS story alone? I think we need to take a serious look at what the hell reasonable means to all of us.

Reasonable doubt means exactly that – a doubt that is “reasonable”. It doesn’t mean that every single other explanation presented for the crime has been ruled out because that would actually be impossible. What if I told you that an alien entered Oscar’s house that night and had his finger on top of Oscar’s finger, and the alien was the one who actually pulled the trigger. That’s another explanation. Surely if the Defense gave us this alternative explanation it must mean that we have to acquit because that’s another possibility. That is literally how ridiculous it is for me to believe that Oscar was the source of EVERY single vocal noise coming from the house that night. Not only does he scream like a woman, but he’s also a ventriloquist because he can throw two different voices at the very same time. It’s quite amazing actually. But since a few ear witnesses may have had their times off by a minute or two, let’s just totally consider them unreliable and believe whatever the Defense tells us because it’s not like they have any reason to make something up. Right?

Do you sense my sarcasm? Good. I’m pissed off and sarcasm feels appropriate right now.

The Judge made some very puzzling decisions when she cherry-picked through the evidence. For instance…

Mrs. Stipp testified that the time on her alarm clock when she and her husband heard the first set of bangs was 3:02. She stated that her clock typically ran 3-4 minutes fast. The time on her clock when she and her husband heard the second bangs was 3:17. Again, running 3-4 minutes fast. The Judge thought it was unreasonable that the Stipps would have heard a woman screaming for 15 minutes without calling security. She also noted that Mrs. Stipp had the flu. Because of this, she decided that the Stipps were unreliable and threw out their evidence. She believed that the shots must have been at 3:14-3:15.

Now here is the important part… Dr. Stipp got through to security at 3:15:51. He testified that he heard the SECOND set of bangs just moments BEFORE the phone call. He reported to Baba that he heard gunshots and Baba substantiated this on the stand with his own testimony. Security phone records introduced as evidence proved that Stipp got thru at 3:15:51.

Next, Mike Nhlengethwa got through to security at 3:16:36 (his second attempt to get through) and he also reported bangs/gunshots, further solidified by Baba’s testimony. Based on these three witnesses, all bangs/gunshots were heard prior to 3:15:51.

But then… Charl Johnson testified that he heard the bangs/gunshots around 3:17. He estimated this due to a call that he made to security (a different company than Baba’s) around 3:16 that lasted just under a minute. After he hung up and went back outside, the bangs/gunshots rang out. His phone records were not introduced as evidence in this case.

So what did Judge Masipa do? She decided to believe Charl Johnson over the others. Why did she do this? Because the Defense told her to believe this.

And because she believed the Defense’s false timeline, she fell hook line and sinker for the gunshots being first at 3:14 and the cricket bat being the second bangs at 3:17, even though it defies logic. Does it seem reasonable to you that everybody (except the Stipps) slept through the gunshots but all heard the cricket bat hitting the door? And does it seem reasonable that the sounds were really a cricket bat when every witness described them to be gunshots? Keep in mind, almost all of these witnesses owned and had used guns previously and knew exactly what they sounded like. Is all of this reasonable?

My issues with Judge Masipa are three-fold. First, I question her application of the law to the facts of this case. Second, I’m appalled by her lack of common sense when it comes to determining subjective elements. Third, I’m concerned about her ability to understand and properly interrogate the objective facts put before her.

Here are the verdicts that were rendered in this case, and my thoughts about why I disagree.

Count 1 – Murder

Dolus Directus: The intentional and unlawful killing of another human being. Judge Masipa makes the determination that the State’s arguments for premeditation are not conclusive. This means that she has rejected the following evidence that when pieced together actually make a good circumstantial case for Directus, in my opinion:

• Mrs. van der Mewre hearing a loud female voice arguing from 1:56 until about 3:00am, intermittently. She stated it was intermittent so for the Judge to disregard it completely, solely because the guard (Baba) did not hear it when he walked by the house at 2:20am, does not seem appropriate. Hearing an arguing voice one hour before a person is shot and killed, and all sounds are coming from the same location – I say it’s very reasonable to infer that they are associated with each other. On Oscar’s story, they were supposed to be sleeping at that time. No other neighborhood witnesses were identified to be fighting at that hour on February 14th.

• Samantha Taylor testified that Oscar did sometimes lose his temper and yell at her, as well as other friends and family, while they were dating. There was also character evidence entered of him threatening to break a man’s legs (Mark Batchelor), verbally assault Quinton van der Burgh in a public setting, yelling at a police officer after the Vaal, getting in to a verbal argument at a party which lead to him getting hit on the head and there was evidence introduced via Peet Van Zyl that Oscar could get agitated easily. So how is it a stretch to believe that Oscar and Reeva were fighting that night?

• The Whatsapp messages between Reeva and Oscar that indicated they had recently fought and Reeva was sometimes afraid of him and how he would snap at her. Now typically I would agree that it’s hard to make a judgement call about a relationship based on text messages. But I also know that I have never once texted somebody and told them I was afraid of them. If I did text something like that, I would mean it. The Judge seems to forget that two weeks after those text messages were sent, the author was killed. That hardly seems like just a bad coincidence to me.

reeva3

• The bathroom light that was on at the time of the first bangs, per the Stipps’ testimonies. Lights being on during those initial bangs mean that Oscar’s story is not true. Period. But apparently the Stipps were not reliable because there seemed to be some time discrepancies. The Judge is illogically far more critical of the witnesses than she is of the accused. She stated that the accused was evasive and gave contradictory evidence, yet she believed his story. With the Stipps, because Mrs. Stipp may have gotten the time of the initial bangs wrong, the Judge immediately discounted EVERYTHING they witnessed. Does that seem reasonable to you?

• Terrified female screams heard by Dr. and Mrs. Stipp, Burger and Johnson which lasted several minutes, intermingled with a different, male voice, that were later stifled by the sound of gunfire. Then silence. Is it reasonable to you that Oscar would have been screaming like a terrified woman, and a man, starting immediately after the gunshots right up until the moment that he hit the door with the cricket bat? There is no reason for him to be screaming at that point – he hasn’t even checked the bedroom yet for Reeva. The Stipps testified that the screams started immediately after the bangs. Why is he screaming immediately after? That wasn’t his version, but it sure became his tailored version after he heard Stipp’s evidence. But then even after he goes to check the bedroom and doesn’t see her, he claims to be screaming at the top of his lungs. Let’s consider his supposed physical movements at that point which do not support him being able to yell like that… Oscar was roaming around a pitch black room, rolling across the bed, checking curtains, running over duvets and cords and not falling… do you honestly believe he was screaming like a terrified woman, and a man at the same time, all throughout those movements? I say no, that is completely unbelievable and unreasonable to believe any of that. And once again, Judge Masipa decided to ignore critical evidence – the physical evidence in the bedroom.

• The undigested food in Reeva’s stomach pointing towards her eating much later that night than Oscar testified. I will concede that this point is subjective and can’t be considered conclusively on its own. But when you consider it in light of the other information listed above, it’s not a huge leap to believe that Reeva was awake later than Oscar says she was. Mrs. van der Mewre’s testimony supports that they were not asleep at 2am, even if she heard one angry voice only, and the Stipps seeing the bathroom light on further bolsters that.

• The pause after the first shot, allowing Reeva time to scream and Oscar to re-aim. This was a point that was substantiated by 4 pieces of evidence. First, Burger’s testimony. She stated she clearly heard a pause after the first shot and before the remaining three shots. Second, bullet holes B, C and D are from a different angle than shot A. Oscar changed positions after shot A. Third, Mangena’s ballistics evidence showed that in order for the bullets to hit Reeva on her body where they did, utilizing the trajectories of the holes in the door, there had to have been a period of time in which Reeva fell down after the first (hip) shot and when the second shot was fired that missed her. If she had not fallen down yet, that second shot would have hit her somewhere on her body. It did not. So some period of time, even if it was small, had to pass between shot A and shot B. A pause! Fourth, the blood spatter, brain matter and hair that were found on the toilet bowl lid proved that Reeva’s head was directly in front of the toilet when it was hit. In rapid succession, her head would not have been in that position. Judge Masipa is deliberately ignoring physical evidence here.

To me, the above evidence pieced together makes a very compelling case for Directus. Oscar’s lying alone makes a compelling case. But let’s be conservative. If you are part of the camp that just can’t make that stretch, just like the Judge, then let’s look at the next level of Murder – Dolus Eventualis.

Dolus Eventualis: In considering the issue of intention to kill, the test is whether the
[accused] foresaw the possibility that the act in question would have fatal consequences, and was reckless whether death resulted or not.

Since the Judge did not believe that the grand majority of the State’s witnesses were reliable, she accepted Oscar’s version of events as reasonable. She deemed it reasonable that Oscar truly thought Reeva was still in bed at the time that he fired.

The Judge says that we are clearly dealing with “error in persona”, in which who it was behind the door is irrelevant because the accused had the intention to shoot, but not the intention to kill. She incredibly came to this determination because very shortly after the shooting, Oscar told everyone at the scene that he didn’t meant to kill Reeva, and he was consistent in that story. Seriously? Did you expect him to tell his neighbors that he shot her in cold blood because he was pissed at her? An accused or defendant’s remorse, or lack thereof, after a crime should NEVER be considered in a verdict. That is something that you take in to consideration for sentencing. I’m just simply astonished that she actually told the world that because he said he didn’t mean to do it, that we should believe him. That is ludicrous.

Professor James Grant, Associate Professor of Law, University of the Witwatersrand, Johannesburg, South Africa, has contributed many helpful articles about the law, as well as their appropriate applications, throughout this trial. He has once again provided a thorough take on the verdict, particularly as it relates to Dolus Eventualis, and believes that the State should appeal.

You can read it here:

http://criminallawza.net/2014/09/13/pistorius-remains-in-jeopardy-of-a-murder-conviction/

When I heard Judge Masipa utter the words that Oscar clearly could not have foreseen the possibility that he would kill the person behind the door, my jaw dropped. So I guess that means that Sean Rens was a useless witness too. Sean Rens came to court with Oscar’s gun competency test results and also testified about Oscar’s time spent at the range, and proficiency with shooting. There is no question that Oscar knew the law and it is illogical for the Judge to assert that he didn’t. But more importantly, he absolutely was aware of what four hollow point bullets would do, thanks to the watermelon video that Nel showed at the beginning of Oscar’s cross-examination. Of course Oscar could foresee that he would kill the person. He foresaw that he should not shoot at the shower because the bullet could ricochet and hurt him. Too bad he didn’t give that much consideration to the person in the toilet. Add to that the legal issues that Professor Grant highlights on his blog and it certainly does seem that the Judge got this part of the verdict very wrong.

She did however decide to find him guilty of Culpable Homicide.

Culpable Homicide: Negligent, unlawful killing of another human being.

Ironically, her reasoning used to determine Culpable Homicide was that the accused must have foresaw the possibility of the death of the person behind the door and was negligent in his actions.

How is this possible? She said exactly the opposite when she found Oscar not guilty of Dolus Eventualis. I’m confused. She goes on to say that he should have taken a different course of action such as calling security or Johan Stander after hearing the window open and before firing his gun. Well ok then. Thanks for your sudden bought of common sense.

We move on to Count 2, the illegal discharge of firearm out of a sunroof. Darren Fresco and Samantha Taylor both testified that this incident did take place. The Judge states that Fresco was not an impressive witness and he was proved to be dishonest. She points out the evidence of Darren driving over 200km/hour and blaming it on Oscar during trial. She actually spent more time criticizing Darren’s credibility than she ever did Oscar’s.

She next questions the sincerity of Samantha Taylor’s testimony as she and Oscar did not have an amicable split. Even though the Judge felt there was a “ring of truth” to her testimony, she could not ignore that Darren and Samantha gave differing details about the event and made the determination to acquit Oscar on this charge.

I was not surprised by this verdict, and actually could go one step further and say that I agree with it. I too did not find Darren to be an impressive witness. I do think he held back and potentially may have changed some of the details of that day to preserve his own reputation. I don’t want to totally throw him under the bus. I give him credit for his courage to get up on the stand against his ex-friend. He probably wanted to do the right thing, but was just in a difficult spot and didn’t want to get himself in any further trouble. As for Samantha, I just feel bad for her in general. In the last few days she has chosen to finally reveal the true nature of her relationship with Oscar via media interviews, and it was pretty disturbing.

http://www.mirror.co.uk/news/world-news/ex-girlfriend-how-oscar-pistorius-terrorised-4206556

http://www.cbsnews.com/news/48-hours-to-air-special-on-oscar-pistorius-verdict/

Next is Count 3, the illegal discharge of a firearm at Tasha’s Restaurant. Oscar was correctly found guilty on this charge. Although Oscar tried to point blame at Darren Fresco for handing him a loaded weapon in a public place, the Judge countered that it was Oscar who requested to see the weapon in a crowded, public place. The gun went off in his possession therefore it was his responsibility.

Finally, Count 4, the illegal possession of ammunition. The Judge found Oscar not guilty, to which I disagree. She cited case law which illustrated that the accused not only had to possess the ammunition but they also must have had the necessary mental intention (animus) to use the ammunition. The Judge claims that the State did not provide this evidence but she seems to forget that Sean Rens did provide a receipt for 7 new guns that Oscar had purchased, and was pending the proper licensing. One of those weapons was a .38 Special, the exact ammunition that was in his safe. Is it not reasonable to consider that gun purchase as animus?

After the verdicts were rendered, the Judge then heard some brief arguments about whether or not Oscar should be granted bail while pending sentencing. Can you take a guess what she did? Well of course she granted bail. Sentencing will be held on October 13. I’m sure we can all expect it to be a light punishment, if any.

In the meantime, there is much discussion about the State appealing the verdict. Yes, that is correct… in South Africa the State can appeal according to section 310 of the Criminal Procedure Act, if there is a potential error (question) in law. Gerrie Nel is reportedly investigating this possibility and I think the grand majority of us agree that an appeal would be more than… reasonable.