Saturday, September 13, 2014

Oscar trial no miscarriage of justice, but certainly lost in translation.



Oscar trial no miscarriage of justice, but certainly lost in translation.

I certainly do not agree with the decision in the Oscar Pistorius trial, I would have found him guilty of Dolus Eventualis murder. That said, while I would be technically correct in such a precise movement, it would be blatantly against the wave of jurisprudence until this point, a wave the honourable judge followed exactingly, with also a good application of the laws of determining guilt in our 4000 year old legal tradition.

A top forensic expert told me in the early days of the trial that police had ruined the case against Pistorius, by contamination of the crime scene. I and others commented with derision on the defence choice to admit to the actual shooting of Reeva by Oscar. Oscar's own version of events, as events turned, is what got him convicted of culpable homicide. Complete incompetence by the investigating officer, and the televised nature of the trial insured as much. Witnesses were left to be influenced by media and by friends exposed to media. The pure length of the trial also left memories corrupted and weakened.

In my earlier work on this matter, I stated that Oscar would be convicted either of dolus eventualis murder, culpable homicide (think drunk driving), or putative self defence. Prior case law involving a Rugby player who gunned down his daughter believing she was an intruder, set a precedent linking such iffy butty cases to culpable homicide verdicts. Culpable homicide can land someone practically speaking in jail for 1 to 15 years. It is the second most serious crime in South African jurisprudential thought. Yes, kidnapping, hijacking, rape and other crimes are very serious and carry hefty sentences and must not be ignored, but culpable homicide is not candy and cloudless days. Culpable homicide is often the verdict pronounced for shocking crimes. The real difference between it and murder is very slight. Culpable homicide is not manslaughter or USA homicide. In our jurisprudence it is a very serious crime, and requires serious defect and wrongdoing on behalf of its practitioners. An accident will not land you in jail in South Africa, our law being so heavily influenced by the Roman Catholic doctrine of the evil mind (something other jurisdictions are less concerned with). Guilt however will condemn you in this light of law within our beautiful nation upon this, our Dark Continent.

There is dolus directus murder: murder for the purpose of murder. There is dolus indirectus murder: murder for another purpose, and there is dolus eventualis murder: when a person recklessly acts, foreseeing that their actions may have the consequence of an unlawful death. Culpable homicide is almost identical to the latter: except it is in circumstances where the judge does not believe that the person in question is seen as foreseeing the consequences of their recklessness, their negligence unto death, at another's expense.

As the forensic (proof for judicial purposes) aspects of the police were so heavily prejudiced by corruption and by negligence by officials, the testimony of police and police experts was cast into doubt. Courts of law do not base their decisions on things, but on the testimony of people, sometimes relating to things. A murder weapon is invisible to a judge, unless someone can testify why it is just that. The only story the judge essentially could go on was the self-prejudicial evidence of Oscar himself, and what little of the state forensic evidence that could be recovered, and could be aided by Oscarian contradictions on the stand.

Judges often prefer to be more lenient, while juries are often far harsher. Experienced judges often ignore legal technicality in order to be merciful. Past cases where friendly-fire occurred against perceived threats, have seen putative self defence convictions, and culpable homicide judgements sent forth. The judicial wave suggests that this is the appropriate course, even if the error as to the person who was to be killed has no effect whatsoever on legal guilt-worthiness. If Oscar intended to murder a criminal but murdered Reeva instead, then that is still murder.

But Oscar admitted on the stand that he just shot... possibly an attempt to get off based on sane automatism, but none the less. That sort of behaviour might suggest someone entirely in the present, somebody incapable of perceiving the future, and thus incapable of predicting that their actions would kill another. If this is a reasonable consideration, then dolus eventualis murder is no longer on the table, what is being viewed is the serious crime of culpable homicide at works. No foresight means no eventualis intention. Jub Jub was convicted on dolus eventualis not culpable homicide, not based on what he should have foreseen, but because he well knew school children used the road he drag raced on, at night, and because he did so anyway. It is easy to construct intention in such a case. However, a person gripped by fear, might be more likely not to foresee any consequences of their actions whatsoever.

Courts of law are not about emotion but about proof. A judge with 15 years of experience is far more likely to issue a just verdict than a trial by media, where the advocates involved are journalists seeking sensation and scoops.

On the same facts, in the stead of the honourable judge, I would have found Oscar Pistorius guilty of dolus eventualis murder. That said, the judgement is more than sound. Culpable homicide does not refer to an accident, it refers to guilt. Guilt for which hefty sentences are often to be handed down upon the backs of felons. It is only bloodthirsty to demand that a legal system honed over thousands of years adapt and adopt a system of twitter voting. Many an innocent man has been killed by lynching. Many a murder has been committed on accusations of things such as witchcraft. These procedures safeguarded in the wisdom of our constitution, as utterly essential. We cannot send a person to jail because the Daily Sun alleges that one of their readers is being haunted by the Tokolosh or any other mystical creature that media juries are likely to take much account with.

Nothing in this article should be construed in any ways whatsoever to be legal advice. Legal reference is supplied for entertainment and argumentative purposes only.

Sunday, September 7, 2014

WHAT makes the exceptional as yet always not?



I return to my hovel little cave,
I turn off the light of day, and yet I sleep, sleep is better yet than life?
For up rises a hero, and beyond the horizon, they wreak hope and happiness,
And down they fall, lower than the villain they've slain,
And I despair, and look across the Atlantic, across the Indian and the Antarctic,
No hero ever seems the exception, nothing but illusion, but mirage.

So I get back to my job, and to time with friends from my University past.
I focus on words, and attacks and defences, on work, work, and work,
I resolve conflicts for my job. It is about solutions, not right and wrong,
And proudly I do my job, for law is what upholds life and living breath.

And yet, over the horizon, just out of sight, I pray to see a hero,
A real one, for once, an actual good person, not the amoral mass of our world.

I get back to work, for work is my life, and hope I subdue, ideology and belief in humanity's exceptionalism are distant now.
Checks and balances I uphold, in this imperfect system circling a second class little sun.
My heroism is amoral. I do not save any lives. I merely assist, and come to another's side,
And in the battle of legal words I empirically fight.

I am not a hero, but an amoral upholder of rights, and fighter for might be and might not be.
I am no hero, though I wish I could see one, perhaps a single good person at a distance, rising up from day and light!
For the politicians, and the celebrated ones... they are never whom they seem.
And quietly I serve my goddess, the law, and softly, I speak on behalf of others...

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