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Will the prosecution appeal Judge Masipa’s decision acquitting Pistorius of murder*

Cross posted from the Frederick Leatherman Law Blog

Monday, October 27, 2014

Good morning:

Defense and prosecution in the Oscar Pistorius case have 14 days to file a notice of appeal. I do not believe he is likely to appeal since he got off lightly, but the prosecution might.

The prosecution is unhappy with Judge Masips’a decision finding Pistorius not guilty of murder on the ground that they did not prove beyond a reasonable doubt that he intended to kill the person in the toilet cubicle when he fired 4 shots through the door. She reached this conclusion after deciding that the prosecution did not prove beyond a reasonable doubt that he intended to kill Reeva Steenkamp, and instead, that he mistakenly believed that an intruder was in the cubicle when he fired the shots.

Many people, myself included, disagree with her conclusion. We ask how could he not have intended to kill the person behind the door when he fired not one, but 4 shots, with Black Talon ammunition through the door into a confined space with no place to hide. People generally intend the natural and probable consequences of their acts and the death of the person behind the door should have been foreseeable to Pistorius.

However, despite the circumstantial evidence that he intended to kill when he fired the shots, he denied that he did and Judge Masipa specifically found that the circumstantial evidence of his intent did not overcome the presumption of innocence that he did not. She went on to decide that his failure to realize that firing those four shots would kill the person behind the door was grossly negligent and found him guilty of culpable homicide.

The prosecution is deciding whether to appeal her decision that they failed to prove beyond a reasonable doubt that he intended to kill the person behind the door.

This gives me an opportunity to discuss an important difference between our legal system and South Africa’s.

The Double Jeopardy Clause in the Fifth Amendment of the U.S. Constitution provides, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”

The Double Jeopardy Clause has been interpreted to prohibit retrying a defendant who has been acquitted of a crime. Therefore, under our law the prosecution could not appeal from what is, in effect, a judgment of acquittal on the murder charge.

Apparently, South Africa does not prohibit a retrial or the prosecution would not be considering an appeal.

If they appeal, I think they will argue that she did not actually decide whether she believed him. Instead, they will argue that her decision that they failed to overcome the presumption of innocence by proof beyond a reasonable doubt was wrong as a matter of law.

That is a different issue.

Nevertheless, I think the wiser course of action would be to decide to move on to avoid appearing to be sore losers.

They have another week to decide.

*Since I published this article at my site this morning, the AP is reporting that the prosecution has announced that it is going to file an appeal in the Pistorius case asking the appellate court to convict Pistorius of murder and resentence him. They are making the argument that I explained in this post.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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