Is Pistorius guilty of murder?

Posted: 12th Jul 2014 by James Grant in Uncategorized

Does James Grant think he is an alien? 1/
Pistorius needs only to raise a reasonable doubt that he intended to UNLAWFULLY kill whoever was behind the door. 2/
Intention is judged subjectively – what was he actually thinking; A doubt = a possibility. Thus a reasonable doubt = a reasonable possibility. 3/
There must always be doubt about anything in the universe. It’s possible that Grant is an alien… 4/
But is it reasonably possible? We may dismiss this possibility as unreasonable, but can we dismiss the possibility that Grant THINKS he is an alien as unreasonable? Probably (I hope)5/
Similarly, for Pistorius, he has conceded that there is no reasonable possibility that he was, in fact, entitled to kill in private defence 6/
But, can we dismiss the possibility that Pistorius THOUGHT he was entitled to kill in private defence as unreasonable? 7/7

  1. Jason says:

    I read the States Head of Arguments and I think to myself guilty. Then I read the Defences Head of Arguments and I think to myself … maybe he is not guilty of murder. The Defence claim they can show that the first set of sounds were the gunshots and the second set of sounds were the bat, whereas the State claims the second set of sounds were the gunshots and offer no explanation for the first set of sounds.

    • Jason says:

      Hi Prof. I have read the Head of Argument from the defence to about page 150 (of 243) carefully then scanned quickly the rest. I am satisfied now that the State has NOT proven beyond a reasonable doubt that OP knowingly or intended to kill Reeva.
      I am satisfied that the first set of sounds were the gunshots and the second set of sounds were the bat strikes.
      I am satisfied that the cries between the first set of sounds and second set of sounds definitely included the help help help of OP, and that discrepancies exist in the witness testimony as to whether the higher pitched cries emanated from a female or from OP … and that taken together the most reasonable explanation of the circumstantial evidence was in fact all those cries were from OP and not RS who would have been shot to death after the first set of noises.
      I am satisfied that the Head of Arguments from the Defence is more inclusive and detailed of the evidence both direct and circumstantial than the States. That the State has been selective with both its witnesses and the texts etc between OP and RS.
      I am disappointed with myself in jumping to conclusions based on partial evidence – without seeing the bigger picture as better presented in the Head of Argument statements.
      I now recognise a witness that appears to perform poorly in court does not imply guilt.
      I think the Defence has shown there were serious issues with the police initial investigation and record keeping.
      I don’t see what the benefit is to the public in having this trial broadcast – it is in effect broadcast as entertainment – and you can’t see the bigger picture until the end of the trial when, most of the public have already “made up their mind”. The “truth” is more likely to be found in the lengthy documents that most of the public don’t have the time nor the ability to read and comprehend etc.

      • James Grant says:

        This is very insightful. Well done for taking the time to read the heads. I expect that only the court will know enough to make the final call. Still I think this has been an invaluable for educational purposes – so long as we all keep in mind that, unless you know the law, have watched every moment, and read every document, it’s not safe to make pronouncements on whether OP is guilty or not. But one doesn’t need to draw any conclusions to learn from the broadcast.

      • sliquebody says:

        I am mindful of four gaping omissions from this Trial, which neither the State nor the Defence (perhaps, strategically) raised nor addressed:
        1. Pistorius interfered with the crime scene. Much emphasis was placed on the police having tampered with evidence but none was placed on Oscar’s very obvious misdeed. What if he was the one who moved items – deliberately – to divert the police from his crime? Most perpetrators of accidental death or injury to another would immediately call emergency services and make the victim comfortable or leave in situ until help arrives. Would you carry someone whose brains had been blown out down a flight of stairs and, if so, for what purpose, when anything but professional removal to an ambulance could further injure or kill the victim?
        2. Pistorius claimed that Reeva was breathing when he entered the toilet. The experts were adamant that the bullet to the head would have been immediately fatal. Nel, surprisingly, did not pick up on that crucial piece of evidence.
        3. The Defence claim that Reeva went to use the toilet and her bladder was empty. This raises two vital questions:
        (a) If she relieved herself, why did Oscar not hear the toilet flush and, thus, know that Reeva was in the toilet?
        (b) If she did not flush the toilet, was her urine found in the bowl – i.e. did anybody inspect the toilet bowl – or on her clothes of the floor? Perhaps, she emptied her bladder out of shock and terror in an incapacitated ‘fight-or-flight’ state as Oscar threatened her with his gun and/or tried to get to her by beating the toilet door in with a cricket bat.
        4. WHY would an intruder lock himself in a toilet? If he really were a threat, as Oscar would have us believe, why would he revert to such a cowardly action? More realistically, why would he not have entered via the balcony, if Oscar’s testimony that Reeva and he had fallen asleep and left the balcony door open are to be believed?
        As much as I am shocked at Judge Masipa’s judgment, I commend her for raising some points that were not raised during the trial – e.g. Oscar could/should have fired a warning shot in the air, if he really believed that an intruder was in the toilet.

  2. Simon Raven says:

    1) To fire a gun in a restaurant without pulling the trigger.
    2) Not to know the meaning of ‘zombie stopper’ when you used that specific expression before.
    3) To fire four shots in a row without conscious deliberation.
    4) To hit a moving target behind a closed door three times out of four without conscious deliberation, and without aiming.
    5) It is not reasonably possible for a sane person to infer that he and his partner are in mortal danger, merely on the basis of the sound of a window being opened in his own bathroom. This is particularly true when he objectively could not have been certain, according to his own testimony, where Reeva was at the time the window was opened (he’d had his back turned to her, hadn’t looked in her direction, couldn’t see her through the pitch dark, and nor did he hear her speak or move at all) All that Oscar knew was that Reeva was awake at 3am (they spoke briefly) and in the immediate vicinity (she can’t have gone out of the bedroom because the door was blocked by the cricket bat). So it must at least have been quite likely that the noise coming from the bathroom was Reeva. It doesn’t seem to me at all logical to me, from OP’s evidence, why he thought Reeva was in the bedroom. All his evidence seems to suggest that he didn’t know that. Any reasonable person would therefore assume that the bathroom noise was most likely made by their partner, particularly if they couldn’t see or hear them in the room, and if they didn’t respond to an urgent vocal address.
    6) That at no point did Oscar even glance in Reeva’s direction, despite thinking that she was in very close proximity to him in the bedroom, and when they were both in mortal danger. Whilst telling her to ‘get down and call the Poliice’, he must surely have directed his voice towards her. When retrieving his gun from his bedside, from his stumps his eye line must surely have passed directly across the bed, even if he was fixated on the corridor. I would argue that it is unnatural to say something so desperately urgent as ‘Get down, call the Police!’ in the pitch dark, without at least glancing in the direction of the mortally endangered loved one being addressed, and at least fleetingly trying to ensure they heard and understood you.
    7) That Reeva’s lack of a response (in both movement and speech) to the dangerous situation, or to OP addressing her, would not be obvious to him in the still of the night. Reeva was model height, and not shy – her movement, presence or absence would have been noticeable.
    8) If OP heard the window opening and assumed that it was an intruder, wouldn’t he then expect to hear further sounds of the intruder entering the bathroom? At no point in his testimony did he even pause and listen for further noises. Instead of screaming at the intruder, alerting them to his presence, wouldn’t he at least listen out for further confirmation of his fears? Also, random distressed screaming seems out of character with someone cool enough to grab his gun, unlock it, speak in a soft tone to his gf without even looking at her, then cautiously approach the danger. The screaming doesn’t fit into that pattern of behaviour. ‘Get the Fuck Out of My House’ sounds more like something you’d say to someone who you were intimately upset with, not an unseen intruder who you’d cornered in a toilet.
    9) For a room to be selectively pitch dark. OP claims that he could see the silhouette of the jeans in pitch darkness, and also swiftly perform a number of tasks, despite being unstable on his stumps. Also, there was some light coming from the corridor, such that he could keep his eyes fixed in that direction, so the room simply was not pitch dark.
    10) It is not reasonably possible to retrieve a loaded gun, take the safety catch off, proceed with caution towards a perceived intruder, into what OP knew to be a dead-end space, without being reconciled to the idea that you would likely then shoot that intruder. At such inevitably close range, using the black talon ammunition that he’d chosen to keep in his gun, killing the intruder must have been highly likely. OP’s action was boldly aggressive from start to finish. Even if the root cause of his aggression was a heightened fight response due to his disability, that surely does not exonerate him from criminal negligence/responsibility when acting with disproportionate lethal force. If he had fired once, Reeva would probably still be alive, and it might be arguable that he had acted in proportion to a perceived threat/in light of his disability. If he had fired once at an actual intruder, standing unarmed in front of him, the same might just apply. If the intruder was armed, standing in front of him, then OP would have been within his rights to fire. If an intruder had been found armed, shot dead inside the locked toilet cubicle, then OP would still have a case to fight to prove that he was in immediate danger. The fact that he fired four times at a merely perceived threat is surely where it becomes murder. I do not believe Judge Masipa will buy the defence’s absurd ‘slow burn’ excuse – it’s not as if Pistorius was constantly warding off anti-disabled intruders, and that he only eventually snapped. Roux is asking for OP’s disability to form a double excuse: for both his negligent & deliberate use of lethal force against an unseen person, but 30 days of psychiatric evaluation already concluded that OP was capable of telling right from wrong on the night, despite his evaluation happening after the shooting and during a subsequent depression. OP was not diagnosed with an anxiety disorder that might, at the court’s discretion, place his actions in an alternative ‘reasonable’ context.
    11) It is not reasonably possible to deduce an immediate threat from a person who is running away from you, slamming a door to hide in a toilet – in retreat.
    12) It is not reasonably possible for OP to perceive a mortal threat from a closed toilet cubicle, being an armed and well trained gun owner. He spent some time standing a short distance away, aiming his loaded gun at the door, assessing the threat. From that vantage point the person in the cubicle evidently had no means of attack or escape. Surely it was his legal responsibility to hold fire.

    • Jason says:

      Dear Prof Grant, would I be correct in saying that the Judge and her team only consider and weigh up the arguments made by the Prosecution and Defence, rather than considering the submitted evidence independently and only using the Prosecution and Defence arguments as guidance.
      So for example, although Simon Raven makes some very good points and arguments, derived from a hearing of the case, the judges cannot make the same derivations UNLESS directed to do so by the prosecution (or defence …).

      • James Grant says:

        Hi Jason
        The court will, indeed must, have regard to all the admissible evidence led throughout the trial and judge that against the law. The arguments that we saw this week serve only to summarise the evidence of both parties, and for both parties to offer some guidance to the court on the applicable law (although the court must determine for itself what the applicable law is).

      • Jason says:

        Thanks. Would this be the Judge’s only case or would she and her team be handling more than one case at a time. This seems to be quite a substantial case and one might imagine that all their attention would be needed in this final assessment and judgement period.
        … yet the OP case was much longer and drawn out than first imagined, so one would imagine that she would have to be multitasking on several cases at the same time.

  3. Nick Downie says:

    Part of the problem with this trial – and therefore, perhaps, with all trials – is that lawyers and judges are sedentary. They work in offices; they perform in court; they know little else of life. As for so called ‘expert witnesses’, they deal not with events but with after-effects.
    For instance, Prof Saayman asserted that ‘almost certainly’ a victim would scream as she/he was shot. He has dissected more corpses than I’ve had hot dinners, but the salient point is that they were corpses. Corpses don’t scream – ever – so how would he know? As it happens, living humans don’t make a sound when they are shot – counter-intuitive, but true. Sadly, you have to have been around a lot of people when they were wounded/killed to know this, but such experience is not on the curriculum of the average lawyer or pathologist.
    The people playing games on YouTube and in Pretoria with various sounds were just recording engineers – and not very good at it, if one may say so. They work in studios. In real life, at night in the desert, I’ve heard a truck changing gear in soft sand from a distance of 25 km. Similarly, the sound of a convoy grinding along a desert track was heard from 80 km away. Can you hear a woman scream at night from a distance of 177 metres? Damn right you can, no argument.
    Captain Mangena – an ex-MK guerrilla – noted that Reeva’s hands were protecting her face when she received the fatal bullet to her brain. Clearly, he wasn’t in a lot of battles during the ‘struggle’. Had he been, he might have noticed that people, when wounded, go floppy. They do NOT raise their arms in defence. It is inconceivable that Reeva – after that terrible, dum-dum inflicted wound to her hip – would have been able to lift her arms. That they were, however, in front of her face as the final bullet struck (everyone seems to agree on this) indicates that they were there – in defensive position – BEFORE the first shot was fired. That means she knew, or suspected, what was coming. That means … well, draw your own conclusions.

  4. Jason says:

    Can OP be incriminated because of an “unreasonable” response of Reeva in OPs testimony?
    It has been, I would say proven by deduction, from OPs testimony that Reeva would have known there wasn’t an intruder between herself and OP. Yet according to the same OP testimony she attempted no communication with OP after disappearing from the bed. She was also in the bathroom when she heard OP from the passageway and responded (according to the OP testimony) by slamming the toilet door closed. She then heard OP continuing up the passageway but again made no attempt at communicating despite knowing there was no intruder between herself and OP.

  5. Jason says:

    This seems to be one of those “open and shut cases” – at least that is how I see it based on the evidence. The general interest is it involved one of the most popular and visible national – international icons. Whatever the judgement there is going to be books and films made from it. However I have learnt a lot about murder trials, especially on the use of outside “experts”.
    I think there is a paper to be written on “experts”. In medical journals there is a “conflict of interest” form that needs to be signed.

  6. deeteaspoon says:

    Hi Prof. I’m doing my M (Philosophy) on the novice/expert problem as it appears in law. There’s huge potential for interdisciplinary work in epistemology and law. I came across this paper, which I thought might appeal to you

  7. Andrew, Edinburgh says:

    Whatever view is taken of Pistorius’s subjective intention, does he not have a fundamental problem with dolus eventualis, what we in Scotland might term ‘wicked recklessness’?
    The ‘intruder’ explanation requires – in essence – the Judge to believe that Reeva Steenkamp moved silently and imperceptibly from the bedroom to the toilet cubicle, at precisely the time when Pistorius was distracted by fans, LED lights and so on. That silence must have obtained and then persisted in the face of a ‘low tone’ warning followed by screamed exhortations for whoever was behind the cubicle door to “get the f*** out of [the] house”.
    However, even if the intruder explanation was accepted almost unequivocally, could Mr Pistorius not be convicted of murder on the basis that intentionally firing four shots at an invisible and mute intruder in a confined space could foreseeably result in death? Could dolus eventualis not play a significant role in the Judge’s deliberations, even if she accepts that Mr Pistorius did not intend to kill? I wonder if that is why Gerrie Nel so pointedly ended his cross examination of Professor Derman by reinforcing the intentional aspect of the shooting, effectively excluding the accused’s attempt during his evidence to put an ‘involuntariness’ gloss on the firing of the four shots.
    As to the question of whether you are an alien, Professor Grant, as someone might have said, “that cannot reasonably possibly be true”..

  8. Terry Wittwen says:

    So if Grant is an alien Pistorius killed by accident
    Grant is not an alien
    Therefore Pistorius did not kill by accident

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