This post is an invitation to use the comments to continue a discussion that started on a different blog.
The debate concerns the question of whether it can be determined beyond a reasonable doubt that Pistorius knew who was in the bathroom when he shot 4 times through the door.
If the weight of witness evidence appears to support the defence timeline and refute the prosecution timeline, then the answer to the above question will be "No". Contrarily, if the weight of evidence supports the prosecution timeline, then the answer may well be "Yes", although as always, reasonable doubt remains a nebulous and subjective concept and no one can be sure what Judge Masipa will do.
The main observations from the debate so far can be summarized by the following points of view:
The entire state's case hinges on whether Pistorius' version of events is true or not. His version of events is so different from the state's that there is no leeway to reconcile them. It is one or the other.
In the briefest terms:
State's case is that there were unidentified bangs around 3am, Reeva screamed from then until 3:17am when she was killed by four gunshots.
Defense case is that the shots occurred several minutes before 3:17, along with the sounds of Pistorius screaming at the intruder, and after the shots he was crying and howling while he ran around looking for Reeva, putting his legs on and finally smashing down the door at 3:17am.
These scenarios are different enough that the judge will have to come down, based on witness testimony, for one or the other.
I think the media coverage has got everyone going around in circles over matters that are not at issue in the trial.
The only issue is whether he knew Reeva was in there.
If the Judge believes he knew, then the only reasonable inference is that he intentionally shot her.
The state does not need to prove that there was a fight. That he was in a rage. We don't need to wonder why. We don't need to speculate about whether he shot involuntarily because P does not claim it.
All of the little data points in this case are only relevant in so far as they indicate where he is lying.
So for me the logical evaluation of the evidence would be
1. Is pistorious credible as a witness? NO
2. Did he shoot Reeva? NOT DISPUTED
3. Did he knowingly shoot Reeva? YES
4. Was it intentional? YES
Point 4 is inferred from the fact that he is deceiving the Court at Point 1.
The only critical issue at trial is whether the Judge finds Pistorius to be a credible witness on a single point.
Did he know she was in there.
If the judge finds P lacks credibility on this single point, then inevitably the state must succeed.
To form a proper opinion on that - you really need to have sat through Pistorius evidence in chief and X
Because as always the issue comes down to whether the witness should be believed based on how they presented in Court - not newspaper summaries.
A critical evaluation of his performance in the stand will take into account corroborating & non corroborating evidence as well as all the red flags in his X
Take for example the various witnesses re the screams that everyone is going in circles.
In his X Pistorius claimed that despite all his whispering and shouting Reeva never said anything or screamed.
Was he credible/believable in this part of his evidence? No.
Did other witnesses hear her scream? Yes - 3.
Is there reason to disbelieve those witnesses? Not really.
Could they have been mistaken? Possibly.
The Court does not actually need to resolve the inconsistencies between witnesses (which can easily & honestly arise).
The point is that we have 3 corroborating data points which indicate he is lying to go with his poor quality testimony.
The testimony is conflicting, so it's just too simple to say "Three witnesses heard Reeva screaming". Because at the very moment they heard what they heard, nearer neighbors were hearing a man's voice crying and howling loudly.
For myself, having listened to the hours of testimony, I am now convinced that in the minutes preceding 3:17, the screaming that was heard was made by Pistorius, not Reeva.
Some of the most striking moments in the trial were hearing Pistorius' next-door neighbors imitate the crying they heard.
For me you are approaching the case upside down.
The critical question is whether he knew Reeva was in there.
I strongly disagree with this statement. From a legal point of view, i.e. for the court, I think the first priority is to establish what facts occurred, and only once this step has been taken and a scenario has been accepted by the court should they proceed to infer from that scenario what was taking place inside the defendant's head.
Starting from what he knew is starting from the end in my opinion. I think that's the upside down approach.
For that reason, I am concentrating on the issue of what facts can be gleaned from the witness testimony, and in particular which of those facts are uncontrovertible and which ones are conflicting. In the latter case it will be necessary for the judge to come to a decision one way or the other.
In chief and under X he gave a frankly incoherent account of all the screaming he was doing and critically that Reeva never made any sound. 3 witnesses contradict him directly on that point. Others support that they heard him,which actually does not necessarily contradict the other 3 at all. The Court is not required to determine who is correct - but it is a major difficulty for his version.
I think you are really wrong about this.
The witnesses who heard Pistorius crying describe this as occurring for several minutes preceding certain events that are fixed in the timeline. One neighbor says it was for several minutes before the Mini Cooper arrived at the house, which we know to have been at about 3:21. The other says it was going on for several minutes before their call to security, which we know to have been at 3:16.
Both witnesses respond to an explicit question about hearing a woman screaming, by saying that if a woman had been screaming at the same time, there is no question but that they would have heard it, but there was no such thing.
In contrast, your "3 witnesses" which are really four (the Burger-Johnson couple and the Stipp couple) all described a sound of loud screaming, that they were sure came from a woman, in the several minutes preceding the four loud bangs which they, too, all four of them, have fixed as taking place at 3:17.
Therefore there is no way that you can say that these witnesses accounts do not contradict each other. They do, and the court will be obliged to come to a decision about what really happened if they want to give a reasoned verdict.
To me it seems likely that some of the witnesses were awoken by the gunshots and thus heard only the male voice as Reeva was dead by then.
Other witnesses crucially were awake for the entire sequence.
Can you really reach your conclusion based on a witness who on their own testimony was awakened obviously after Reeva was dead?
Four of the five couples were awake before 3:17, as proven by their testimonies. Of these four, the two geographically farther couples assert that the bangs at 3:17 were preceded by a woman's screaming, the two next-door couples by a man's.
Does the Court need to absolutely resolve this? No.
I would say yes, certainly. Just read the Massei and Nencini reports [judge's motivations in the Amanda Knox case]. They provide coherent scenarios in which every piece of evidence fits like a puzzle piece. I can't even imagine how you would proceed to a verdict without doing this.
Nearby neighbors favor the defense, far away neighbors favor the prosecution. It's a draw. There is no clear version of events from this testimony.
The judge will then move to the bedroom and bathroom evidence. Here, it seems the prosecution has an advantage. But is it enough to rule intentional murder?
Wow - I am miles away from you guys.
Mrs. Nhlengethwa was awakened by a very loud bang. It was so loud she thought it might actually have been in the house.
So she was awakened at the earliest by the gunshots, and at the latest by the cricket bat - seems to me Reeva is dead by then.
Everyone agrees on hearing P later - but this witness was not awake in the moments before the gunshots and therefore perhaps not even relevant to whether Reeva screamed before the shots.
To me the critical point is you have van der Merwe & Michelle Burger who hears a woman's screams before the shots
They are not contradicted in that critical time period because the others are not awake at that time.
What am I missing?
*Prosecution theory: Reeva screamed between 3am and 3:17 and then was killed.
*Defense version: Reeva never screamed, was killed around 3am and then Pistorius screamed, cried and ended up bashing down the door at 3:17am.
Both versions cannot be true. If the prosecution convinces the judge that their version is the true one, Pistorius will go to jail without passing go or collecting $200, for the intentional murder of Reeva. If the defense convinces the judge that their version is true, then he'll be convicted of a lesser crime.
Evidence favoring the prosecution's version will be bad for Pistorius. Evidence favoring the Pistorius version will be bad for the prosecution.
Right? We agree so far, don't we?
The next-door neighbors say that Pistorius was wailing and Reeva was not screaming in the minutes before 3:17am. Ergo their evidence supports the defense version and goes against the prosecution's.
Burger and Johnson and the Stipps say they heard a woman screaming during those exact same minutes. Ergo this supports the prosecution's version.
But you cannot assert that they heard the woman scream before the shots and Mrs. Nhlengethwa heard Pistorius screaming after the shots, when both are talking about the 10 minutes or so preceding 3:17am. One or the other is right, not both. And all of these timings are completely confirmed by independent events such as calls to security.
The point is not that "Mrs. Nhlengethwa was awakened at the earliest by the gunshot and at the latest by the cricket bat so at that point Reeva was already dead." The point is to know whether Reeva was already dead nearly a quarter of an hour before 3:17am as per the defense version, or whether she was screaming until 3:17am as per the prosecution version. Therefore, as piktor says, the Nhlengethwa's evidence goes directly against the prosecution.
Mrjitty, you're missing the 'legal truth' part.
What Nel presented in court is enough for intentional murder as specified by law?
Sidney Morning Herald sez:
However, Captain Mangena's testimony also conceded a big part of the prosecutor's original case, agreeing the trajectory of the bullets showed Pistorius was on his stumps, as he had claimed.
This does not help the case for murder, removing part of their earlier theory for premeditation.
Senior law lecturer at the University of Cape Town, Kelly Phelps, believes the state's case is not strong, with the most crucial witnesses unable to conclusively rule out Pistorius' version of events.
It also lacks any real evidence of motive, she said.
http://www.smh.com.au/world/oscar-pisto ... 35orq.html
For example one of the far away neighbors lives 177 meters from the P home. The guard at the compound was below the balcony and contradicts there was a shouting match at the time the far away neighbor says it happened, etc.
The next door neighbors contradict the prosecution's narrative after the shooting.
For me the inquiry focusses on the key issues to be determined and radiates out from there.
First the judge must isolate the key issues to be determined
The first critical fact in issue is did Pistorius know Reeva was in the toilet?
If the judge finds yes, then all other variations are not required to be determined. If no - then findings of direct or culpable homicide can still arise - but I don't deal with that here.
This is the first branch of the tree.
So the Judge will then ask, what evidence helps us to resolve this question?
Now the only evidence that speaks against him knowing is the evidence of OP himself.
There is no other evidence on this point - its a critical aspect to be clear on.
So the entire inquiry in this branch is whether the judge finds OP to be a credible witness.
This has two aspects. To what extent was he corroborated and contradicted in his evidence. And to what extent was he deceptive or misleading. Again I will ignore the numerous times he was shown to be lying/deceptive to keep this post to reasonable length
Now we can look at the evidence.
A key evidence point is that Reeva was unlikely to have made any noise after the first shot.
A second key point that seems to be proven is that the cricket bat noise comes after the shots.
So it is therefore proven that the only people who could have heard Reeva are the ones awake before the shots are fired.
Your Mrs. Nhlengethwa was awoken by a loud bang and heard no other bangs.
Therefore she clearly is not a witness to the key event and irrelevant on this point.
Ditto the other near neighbours.
On the other hand E. van der Merwe is awake @ 1.56am and hears fighting
Her evidence is not contradicted by any other witness and directly contradicts OPs testimony.
So frankly I see no need to iron out all the confusion between the neighbours - and a court is not required to do that.
My key findings would be:
1. OP's testimony was clearly misleading/deceptive/dishonest on key points (eg the highway shooting, eg the fans, eg the jeans/duvet, eg the search for reeva, eg going on the balcony. Therefore OP is not a credible witness.
2. The most obvious interpretation of the facts is that they had a fight and OP shoot Reeva - this is a reasonable inference especially given finding 1. As with Knox, we don't need to know exactly why he did it.
3. That fight was heard by E. van der Merwe who was awake over an hr before the gunshots. Michelle Burger lends support to what E. van der Merwe heard before the shots. Charl Johnson supports that what Burger heard was gun shots. A Stipp I think is also incredibly damaging but i have not been through that yet. But because she was also awake for the shots, and could see the bathroom light was on - OP is dead in the water at this point.
NB: if you have fired guns like CJ - I really doubt you get confused on what they sound like.
So for me - that's it. No need for more exact findings about the others though of course the Court will work through it. But the none of the near neighbours are awake for the shooting,
Another key point about this case is burden of proof.
There is at least some initial onus on OP to establish sufficient facts upon which his defence relies, before the prosecution must deal with it.
Otherwise the accused need only raise any old story (a la Knox) and the prosecution is expected to disprove it
Common sense has to prevail in this case just as with Knox
OP did not present anything close to a credible account of events.
To find otherwise is to start to set the bar for murder impossibly high IMO.
Anyway - lets see what happens.
Since the experts from both sides all agree that the gunshots came before the cricket bat smashed down the door, the prosecution's hands are tied. There is no way they can assert that the cricket bat blows came before the gunshots.
This leads to two problems for their scenario. Firstly, they need to explain what the earlier bangs were, since there were undoubtedly two sets of bangs and they claim that the second sets were the shots. They have made no pronouncement on this yet, but they will have to in their summary, otherwise their scenario will simply be too lacunary to explain what happened. I've heard there is a dented metal plate in the bathroom. Maybe they'll say that Pistorius hit that with the cricket bat in a rage? Who knows?
Secondly, they need to explain how he could fire four shots at 3:17, call Stander at 3:19 and then immediately make two other phone calls, put on his legs, batter down the door, get Reeva out and carry her downstairs all before Carice Stander entered the house before 3:25. It may be possible, but it seems awfully fast.
There's also the issue of when he shouted "help, help, help" from the balcony, a cry heard by about five people and placed by all of them except one very definitely before the 3:17 bangs (one witness placed that cry for help after the bangs). You have to wonder why he would have done that before going to the bathroom to intentionally shoot Reeva.
I have to hear the prosecution summary before I come to a final opinion, but right now I cannot see how the scenario they are sketching out is going to stand up to the evidence. Mrjitty:
The prosecution does not need to prove a scenario - only the Mens Rea - that is what closing will focus on.
Nel will leverage each data point, inconsistency and evasion to show how OP lacks credibility.
If the judge finds OP is not a credible witness then there is no evidence to support the defence's version of events - and OP gets convicted of murder.
This makes no sense to me. If the judge is convinced that Pistorius is not credible, in the sense that he is known to have lied, then why do you go on to say that there is no evidence to support the defence's version? There is still plenty of evidence coming from other witnesses. And even if he is a person who is known to tell lies, you cannot conclude as a certainty that he is lying now, especially if there is witness testimony supports his version.
It seems to me that proving that he has told certain lies under other circumstances (for instance about firing the gun in the restaurant) cannot be used to prove that he is lying about the events that took place when he shot Reeva. That would be like convicting someone for a crime on the grounds that he has committed similar crimes in the past. You can't do that; you usually can't even bring evidence of similar past crimes to court. To prove that he is lying about the events of Reeva's murder, you need to study all of the witness evidence concerning those events.
Speaking purely legally, I cannot believe that you can be right about this.
I never made the arguments above. You are ignoring the critical aspect of how a Court assesses the credibility of the accused's testimony. If you are shown to be lying in the stand at multiple points during your testimony then the Court may well prefer other witnesses. The Court is entitled to make a general assessment of credibility and apply it.
Of course if the Court finds he lied about the restaurant incident (in Court as well don't forget!) - that is not proof he lied about the murder. But it is proof he is willing to lie to the Court. Nel will show multiple instances of lying to the Court. Not proof of murder but credibility shattered. The problem with shattered credibility is the OP is the only one bringing the evidence of the Reeva/Intruder mistake to Court.
Rather than go round in circles I will simply say this.
In order to explain away Reeva's screams and the sounds, OP had to bring the gunshots forward in time.
The dynamic of the prosecution strategy has been to nail down OP to a firm narrative - Nel could not know the exact content until Evidence in Chief and X was complete.
The time of death is what sinks OP.
Once you realise why Nel is correct about the later time for the shots - then it is clear the murder went down exactly as the witnesses heard it.
OP did not spend somewhere between 5-15mins searching for Reeva / breaking the door.
She came swiftly out of the toilet in order for him to see her breathing and to generate the blood spatter.
Of course he could be lying about the breathing - but that doesn't really help does it
As I recall, there was blood on the end of the cricket bat and also damage and blood on the bedroom wall (I think above the headboard). A cricket bat hitting a person might very well make less noise than one hitting a door. Nothing much has been said about damage/blood (and a confession, I don't know if it was one or the other or both) to the wall above the bed in the bedroom. Which is a little surprising since that seems to be indicative of a fight of some kind unless Pistorius in his grief starting beating on the bedroom wall.
I don't recall where the 3:17 time figure came from. But who looks at a clock exactly when they hear gunshots or a man sounding like a woman screaming in the middle of the night. I wonder about the precision of the timing on anyone's part.
Only one witness actually looked at the clock (although I think I would in those circumstances. I always do when something wakes me up at night). But several people called security, and the times of their calls are on the phone logs. Therefore the statement "while I was on the phone I heard loud bangs" or "just as I finished the phone call and walked out onto my balcony I heard the bangs" places them very precisely.
There has been no discussion of how sound carries and how this might affect what various witnesses heard. I live in an area with woods and a small stream valley with fairly high hills on either side. In varying conditions, sounds may seem closer or farther away or may seem to come from entirely different directions than their origin (which can only be pinpointed if you walk around the yard). The people who live at a further distance, might, if the windows in Pistorius' house were opened and faced their direction might very well be able to hear more than the closely adjacent neighbors if P's windows didn't face windows in the adjacent neighbors houses or if their windows were closed. And the point that some neighbors were awake prior to the shooting and thus heard gunshots when the others don't appear to, seems to me to be a very important point. There were two noise events other than screaming that morning, gunshots and hits with the cricket bat. Why are the folks that heard only one more credible than those that heard both when the woman's screams would have come before the second event (the cricket bat)?
They are all credible, but it is obvious that some heard only the first set of bangs and others heard only the second. That is not unreasonable in fact.
Only two witnesses claim to have been awake before the first set of bangs [E van der Merwe and A Stipp]. Of these, one heard a woman's voice from 2am to 3am, the other did not.
Five people heard the first set of bangs (including one husband who did not testify) [the van der Merwes, the Stipps, Mrs Nhlengethwa]. Of these, one couple also heard the second set of bangs (open window but farther away) [the Stipps] and the other three people did not (even the one who had closed windows but much closer). The same couple [Stipps] says that the first set of bangs were followed by a woman's screaming and the other three say that the bangs were followed by a man crying. It is clear that all the witnesses are talking about the same bangs here, the ones that were close to 3am.
Two witnesses [Burger, Johnson] heard the second set of bangs and not the first set. They were awoken by the sound of what they heard as a woman screaming and then they went out onto their balcony and heard the bangs at 3:17.
Putting all this information together it seems to me that one conclusion that has to be drawn is that the gunshots were the earlier set of bangs. Otherwise it seems to me that it would be impossible for the next-door neighbors to be awoken by cricket bat blows through sleep and closed windows, but then not to hear gunshots, which are much louder, still through closed windows but now wide awake.
Actually, there was some discussion about how sound carries out there. Apparently it can carry extremely far, because they're on the very edge of the city. The cricket bat blows are quite loud, so if sound will travel far in that area, it is not surprising that people standing on their balconies outside listening intently and facing exactly in the direction of the bathroom would have heard them, but people facing in a different direction with closed windows could easily not hear them. But the gunshots would have been impossible for wide-awake people at 25 meters to miss, windows or no windows. I can't see any way not to draw this conclusion.