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Late Night: Judge Masipa to Decide if Prosecution Can Appeal in Pistorius Case

In the dock

Oscar Pistorius is back in the news today.

Unless the rules are changed, he will not be eligible for an early release from prison because the home monitoring device that prisoners have to wear cannot be securely attached to his body. Normally, they are attached just above the ankle, but he does not have an ankle and the regulations prohibit attaching it to the wrist because it’s too easy to remove.

I suspect the rule will be changed because it unfairly discriminates against double amputees. A potential solution might be to reengineer the bulky device to make it much smaller and attach it to the ear like a pierced earring or wear it around his neck.

The Daily Mail reports,

Breakfast of porridge with coffee or juice is brought to him at 7am.


He is said to be eating the same food as other inmates, but will be allowed to also buy pies, hot dogs, sweets and chocolates from the prison tuck shop using money given to him by family visitors.

At midday, he is brought a basic meal which includes meat of some kind with carbohydrates and vegetables.

The last meal of the day is slices of buttered bread with a hot drink, served at 4pm. All the prison food is prepared in one huge kitchen catering for 7,000 inmates.

In other news, under South African law, the prosecution has to convince Judge Masipa that they have a legitimate legal argument and are likely to prevail before they can go forward with their appeal. The defense is opposing the prosecution’s effort to appeal. A hearing is scheduled before Judge Masipa on December 9th.

I analyzed this issue most recently in a comment a week ago before I was aware of this intermediate hurdle that the prosecution would have to clear in order to appeal:

The problem is that there is a difference between finding that death was a reasonably foreseeable consequence of firing a gun four times through the door of the toilet cubicle and concluding that OP intended to kill the person behind the door.

Given the presumption of innocence and his denial that he intended to kill the person behind the door, how is it possible to find him guilty?

Judge Masipa answered that question by finding him not guilty of murder, which requires proof beyond a reasonable doubt that he intended to kill the person behind the door. Instead, she found him guilty of culpable homicide, which is gross negligence for failing to be aware that shooting 4 times through he door would create a substantial risk of killing or seriously injuring the person behind the door.

Expressed another way, can the presumption of innocence be overcome by a presumption that a person intended the natural and probable consequence of his acts, despite his denial?

I believe the answer is ‘yes,’ because the presumption of innocence does not require the finder of fact to believe the shooter’s denial that he intended to kill the person behind the door.

Therefore, the most specific formulation of the issue on appeal is whether Judge Masipa believed OP’s denial and found him not guilty or whether she did not believe him, but felt compelled to find him not guilty because he denied intent to kill.

Her decision must stand, if the former, but can be vacated, if the latter.

Rule: The presumption of innocence does not require a fact finder to believe a defendant.

Do you believe she should permit the appeal to proceed?

Screenshot via Lwp Kommunikáció under Creative Commons license

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