Monday 22 September 2014

Pistorius Trial Travesty – Would Judge Judy Have Done a Better Job?




‘I’m scared of you sometimes’

Let’s start with Reeva since all the talk is of how Oscar’s life will never be the same. He was the reason she lost hers. She’d only been dating him three months.

Admittedly, I don’t envy Judge Masipa. It can't be an easy job – a black female judge presiding over the murder trial of a celebrated white male who’s overcome incredible adversity to become a national hero. But someone has to do it and do it fairly.


This started off being a little facetious but I’ve been watching Judge Judy over the last couple of days and I’m convinced that, given five minutes with Oscar Pistorius, Judy Sheindlin would have totally dismantled his case, as I expected Gerrie Nel to do, and he would have admitted the truth. She’s so much sharper. Nel hesitated too often (sometimes overnight) before questioning something he should have jumped on straight away, losing momentum. Judy would have been constantly asking pertinent questions while all Judge Masipa usually asked in a whole day of evidence was ‘What time is it now?'


'If it doesn't make sense, it's usually not true.' (Judy Sheindlin)
Shame that Judge Masipa doesn't have Judge Judy's no-nonsense attitude. She sees through liars and fakers.

Or
'If you tell the truth, you don't have to have a good memory.'



Dolus eventualis - dollars eventually?*
The verdict
I’m appalled at the verdict Judge Masipa has reached. That's culpable homicide if you missed it. Some people have speculated that she must have been paid off and others have told me that this is par for the course in South Africa. I kept hoping that justice would prevail but, having watched the trial and been struck by the general incompetence of the lawyers and the judge’s almost complete lack of interest in anything other than the tea break, I realised that it was a lot to ask. It seemed as if the whole outcome was predetermined.

This culpable homicide verdict essentially amounts to a verdict of negligence. That’s South African law for you. You can shoot to kill someone and only be guilty of negligence. Negligence in my mind is forgetting to feed the goldfish or leaving the car unlocked. Not picking up a loaded gun, running into a bathroom and shooting at someone so terrifyingly dangerous that they’ve locked themselves in the toilet.

The press
The other thing that astonishes me is the press reaction to this miscarriage of justice. Is everyone too complacent or too stupid to understand what has happened here, what is at stake? Where’s the righteous indignation, the protests that followed the O. J. Simpson verdict? Doesn’t anyone care that a girl was murdered in cold blood? That Pistorius lied over and over, that the judge says she found him untruthful but still chose to believe enough of his tall tale to let him off?

Instead, the reporters are all following the ‘Oh good, Oscar is innocent; we always thought so’ line. No one is asking any pertinent questions. And not only that, when they report adjectives the judge used they select 'evasive' and 'poor' and avoid repeating 'untruthful'. Why?

Jeremy Thompson
Jeremy Thompson of Sky News, perhaps not the brightest bulb in the box, asks Llewellyn Curlewis (Sky’s legal expert who ‘in no uncertain terms’ relies on a series of stock phrases ‘at the end of the day’ when discussing ‘the issues that come into play’ – just listen and you’ll hear them):
‘Why did it get to a much bigger thing with murder coming into the frame?’
Umm – because he murdered her. It wasn’t a trumped-up charge. Curlewis points out that the defence could have opted to plead guilty to culpable homicide and possibly there would have been no trial but Oscar Pistorius was so arrogant, he really believed that he would get off without a conviction of any kind.

Thompson again: ‘A man who’s been a national sporting hero suddenly caught up in the most terrible domestic tragedy’.
I object to this characterisation of events. There seems to be a tendency to downplay Reeva’s killing into an incident or an accident. A terrible domestic tragedy would be a bad chip-pan fire. Pistorius didn’t get ‘caught up inanything; he was the agent of her destruction. Let’s be clear about this; his actions caused her death.

Thompson once more: ‘The murder charges against him were found not guilty’.
I should think so – those murder charges had an alibi. He means Pistorius was found not guilty of the murder charges.

Thompson: ‘The judge’s reasoning was on the money’.
A Freudian slip perhaps.



The Sky Team
Curlewis: 'I do feel that we’ve seen justice done.’
He seems to think the judge has engaged with and understood the issues and based her ruling on the law. I'm not so sure.

Alex Crawford asserts: ‘The life of the man that killed her will never be the same’.
But already the International Paralympic Committee has said he can compete again if he wants to. When he left the court, he was greeted by the screams of female fans, as if he were Justin Bieber, not someone just convicted of manslaughter. His life will go on as before.

The reason Sky features so heavily in my criticisms is because they have covered the trial in more detail than the other channels. I’m not saying that their reporting is any more or less biased or that their journalists make more mistakes. Just to show I’m not biased, here’s what the BBC had to say of Oscar: ‘a potential person who’s going to walk free’.
Hmm. whatever we think of him, he’s still a person, not merely a potential person. She means he’s potentially going to walk free.

Channel 5 talks of Oscar making ‘a huge mistake’.
Again, this rather downplays a killing. A friend of Oscar’s reports that he hasn’t been able to have a conversation with Oscar since the night of the killing without Oscar breaking down in some way. Sister: 'He managed to go to a nightclub.' Me: 'And get a new girlfriend.'

Something to drink, guy

Pistorius’s uncle, whose opinions have been broadcast time and again by Alex Crawford, thanks the media for their interest in the trial. This seems like a strange thing to do but then he mounted a charm offensive with the press from the start, making sure they were comfortable, that they had something to drink, etc. Then mentions how ‘deeply grateful we are to Judge Masipa for finding Oscar not guilty of murder’.
I’ll bet. It's no surprise that people are wondering how they're going to express their gratitude. Was the extra long lunch break to allow the family time to sell some more property?



Nevertheless, I have to ask, given the emotion and controversy around this case: Was it really a good idea to broadcast the exact address where Oscar is staying to the world’s media?

Flaws and inconsistencies in Judge Masipa’s reasoning
I’m not an expert in SA law and glad of it – I’m only using logic.

1
First of all, I believe that Masipa was wrong to dismiss the Whatsapp messages, saying all relationships are unpredictable
BUT
These messages establish the tenor of the relationship and demonstrate a pattern that anyone familiar with domestic abuse should be able to discern immediately. Oscar criticises Reeva over minor missteps – chewing gum, using accents; she tries to placate and please him: ‘I do everything to make you happy … to not rock the boat’, even attempting to pre-empt trouble by checking with him beforehand about her outfit but nothing works: ‘I am trying my best to make you happy and I feel as though you sometimes never are no matter the effort I put in’; he apologises in one breath but in the next adds an excuse that typically blames her, along these lines ‘I’m sorry I upset you but it’s your fault because …’.
AND
I’m not sure why the judge, with her experience, failed to recognise the significance of these. They show how possessive and controlling Oscar was. This type of bullying can easily escalate into aggression as Sam Taylor can testify. Reeva was no pushover – she would stick up for herself but she probably had no idea what Oscar was capable of. We’ll never know what precipitated the row. Maybe he didn’t like her meeting her ex.  Maybe she accused him of cheating on her. Or it could just be that she promised to take the fans in and didn’t (if we believe him) and left her jeans on the floor. Who knows? What we do know is that she almost certainly wouldn’t stay quiet in the toilet if Oscar were threatening her with a gun.

2
Judge Masipa decides to believe part of Dr Stipp’s testimony – the part about Oscar’s so-called remorse, which she uses as a reason to dismiss the premeditated murder charge
BUT
She chooses not to believe the part where he heard female screams and gunfire.


 Judge Judy sees through liars and has no truck with fake snivelling

3
Judge Masipa says that Oscar was an untruthful (her word) witness (not to mention defensive and argumentative, my words)
BUT
She then takes his word as gospel: that he heard something, was afraid, thought there was an intruder and so armed himself
EVEN THOUGH
We know for a fact that there was no intruder so he probably heard nothing,
that he knew any sound was from Reeva, fleeing for her life
AND
He has to claim that he thought this otherwise he would have to admit that he deliberately killed his girlfriend.

‘If you lie about one thing, it makes me doubt the veracity of everything you say’ (Judy Sheindlin)
But not Judge Masipa.
Just because his is the only version available to us – because he killed the only witness and ensured that she was dead before calling for help – doesn’t mean we have to believe him. For more on his selective amnesia and the constant revision of his version, see ‘I Don’t Remember What I’ve Forgotten’ and ‘Who Put the Story in Pistorius?’.

4
She reiterates the court’s findings that Oscar was not judged to be suffering from any kind of anxiety disorder at the time of the commission of the offence (i.e. when he shot and killed Reeva)
BUT
She then mentions this as a mitigating factor that might have a bearing on his response to the imagined/invented intruder
EVEN THOUGH
This was simply a last-ditch, failed defence strategy
AND
I’ll say it again – there was no intruder.
See my blog on GAD.

Heartbreak for the family
5
In rejecting a verdict of premeditated murder, she takes into account his response after the killing once there were witnesses present. ‘He clearly did not intend to kill the deceased. To say otherwise would be to say he was playacting’.
BUT
Why can't we say that? Has anyone been convinced by his crocodile tears in court? And I’ll say it again, even if he deliberately killed her, he could still be traumatised after the event and horrified by what he’d done
AND
Why doesn’t Judge Masipa, with her working experience of domestic abuse, understand that it is possible for a guilty person to feel guilt, anguish and remorse after an egregious act? This doesn’t mean they’re not guilty. It isn’t necessarily a sign of innocence. Hasn’t she heard of a crime of passion?

6
She also says ‘It cannot be said that he did not genuinely believe that there was an intruder’. Again cites the reasons above.
BUT
If he genuinely believed there was an intruder, he genuinely believed he might kill that intruder and since the putative self-defence criteria have not been met, wouldn’t this be murder dolus eventualis?

Black Talon ammunition
7
In rejecting a verdict of murder dolus eventualis, she claims this: ‘He did not foresee that the deceased or anyone else for that matter would be killed when he fired into the toilet door’
BUT
This is almost exactly the opposite of what she uses as her reasoning for the culpable homicide verdict, when she says he could have reasonably foreseen that he would kill someone
AND
Why would he shoot unless he thought there was someone there? It’s his evidence that he thought there was an intruder in the toilet. He knows it’s a confined space and the odds of him killing someone when firing Black Talon-type ammunition at point-blank range through the door are fairly high.

Judge versus jury
This verdict is an indictment of the non-jury system. In another case documented on TV, the Michael Peterson case, I thought that the prosecution (like the one in the Pistorius trial) was ineffectual and that it failed to prove guilt beyond a reasonable doubt although anyone watching knew he was guilty. The jury was able to look beyond the letter of the law to the big picture and pronounce him guilty.

More than a mistake?
The sentence
A verdict of culpable homicide can lead to a sentence of up to fifteen years in jail. But there is no minimum sentence. This means that Oscar could go free, perhaps with a fine or community service or a suspended term. I hate to say it but I fear that he will be given a non-custodial sentence, i.e. get away with it. As usual.


My thoughts are with Reeva’s family and friends. I still pray that justice will be done.

* Image and facetious translation from clever people on Twitter.









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