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Tags murder cases , Oscar Pistorius , South Africa cases

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Old 14th January 2016, 01:43 AM   #361
Samson
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Originally Posted by newyorkguy View Post
I'm not sure how the law works in South Africa but I was very surprised to read the grounds upon which Pistorius' lawyers are appealing the latest ruling (finding him guilty of murder). Specifically the lawyers are arguing that the "reasonable man" (or in this case "the rational person") standard does not and should not apply to Pistorius. From the link:


The court erred by using objective reasoning? That's a new one.

I do agree that, essentially, Pistorius has already been judged not to have deliberately killed Reeva Steenkamp. The finding is that in firing four shots into the water closet Pistorius should have known (as would any reasonable or rational person) that the action would be quite likely to kill whoever was in the closet. I think most nations would consider that manslaughter (or the local equivalent). If a defendant takes an action of which a foreseeable result is someone getting killed, and someone does in fact die, pleading, "I didn't mean to kill them," is not a legally viable defense.

Except Pistorius is claiming that in his case it should be an adequate defense due to his anxiety disorder. That's ironic because aren't his lawyers basically conceding: The court got it right for rational people but not for Oscar.
Function is so important in this case. Form of law can be debated till eternity, but there is one supremely interesting question to be answered.

Did Oscar Pistorius know he was shooting through the door at Reeva, or did he "know" he was shooting at an intruder?
Beyond the answer to this hybrid question the case is tedious, surely. Everyman's opinion of appropriate penalty under either scenario is totally valid, but we should regard this as a dichotomised sanction phase.
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Old 14th January 2016, 02:22 AM   #362
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Originally Posted by Samson View Post

Did Oscar Pistorius know he was shooting through the door at Reeva, or did he "know" he was shooting at an intruder?.
How many times do you have to be told that this is utterly irrelevant? What I believe (he did) and you believe (he didn't) is of no consequence at all. Have you been reading this thread and links to the actual judgement?

You are talking about something, but it's not the Pistorius case. Perhaps you need to open a thread called "Illelevant ramblings about hypothetical cases"?
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Old 14th January 2016, 02:46 AM   #363
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Originally Posted by lionking View Post
How many times do you have to be told that this is utterly irrelevant? What I believe (he did) and you believe (he didn't) is of no consequence at all. Have you been reading this thread and links to the actual judgement?

You are talking about something, but it's not the Pistorius case. Perhaps you need to open a thread called "Illelevant ramblings about hypothetical cases"?
How many times must I declare in good faith this is the most relevant question? And I am personally sure he shot at an "intruder". Therefore he should be sentenced on that fact.

When I say sure, not so sure as the sun will rise, but sure to an extent where the continuum approaches that.
But I also understand few in the world agree, so my opinion is irrelevant.
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Old 14th January 2016, 03:00 AM   #364
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Originally Posted by Samson View Post
How many times must I declare in good faith this is the most relevant question?.....
You can declare it thus as often and as vehemently as you like, but you are wrong. You aren't allowed to kill people without being under threat.


Originally Posted by Samson View Post
But I also understand few in the world agree, so my opinion is irrelevant.
What I don't understand is that knowing this, and reading the judgement, you don't at least consider for a second that you might have hold of the wrong end of the stick.
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Old 14th January 2016, 03:17 AM   #365
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Originally Posted by MikeG View Post
You can declare it thus as often and as vehemently as you like, but you are wrong. You aren't allowed to kill people without being under threat.


What I don't understand is that knowing this, and reading the judgement, you don't at least consider for a second that you might have hold of the wrong end of the stick.
But I see a perfect dichotomy.
Shoots at Reeva or intruder.

Masipa found the latter to be fact. And she is a vehement feminist.
What is complicated about my agreeing entirely with her?
The story Pistorius related with supporting phone calls and timing immediately after the shooting is close to incontrovertible.
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Old 14th January 2016, 03:21 AM   #366
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You're talking to someone who thinks that he shot at the door thinking there was an intruder behind it. That is still murder, unless he was in reasonable fear of his life......which isn't the case with a shut door between him and the victim. You are being emotional and illogical, and assuming that you are allowed to kill anyone you like in your house if you think they entered illegally.
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Old 14th January 2016, 03:37 AM   #367
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Originally Posted by MikeG View Post
You're talking to someone who thinks that he shot at the door thinking there was an intruder behind it. That is still murder, unless he was in reasonable fear of his life......which isn't the case with a shut door between him and the victim. You are being emotional and illogical, and assuming that you are allowed to kill anyone you like in your house if you think they entered illegally.
Ah, I did not gather that you agree with Masipa's call. The fact is that most people will not believe he could have been mistaken, and that is simply how the world views it. The penalty phase I find of much less interest than the facts that led to the crime.
Because I am an anti gun sort of thinker, I don't have much sympathy for Oscar the shootist. But I think society should let him do penance outside of a penitentiary. I happen to believe if it was a mistake, he should be channelled to a useful community role.
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Old 14th January 2016, 04:53 AM   #368
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Why on earth should he be treated any differently to anyone else who murders someone?

I believe that I have explicitly stated elsewhere in the thread and in response to you, that I accept OP's claim that he thought there was an intruder.
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Old 14th January 2016, 07:13 AM   #369
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Originally Posted by Samson View Post
...Shoots at Reeva or intruder...Masipa found the latter to be fact.
Judge Masipa did not find that Pistorius believed he was shooting at an intruder to be fact. Instead, in her decision, she said, "there was a reasonable possibility." She found, and I think anyone familiar with the way criminal law works would agree with her, there was not enough evidence to prove Pistorius deliberately killed Steenkamp. There were some indications there had been a quarrel, that possibly Steenkamp was about to end their relationship, but Pistorius denied all of that and provided an alternate explanation. The state was unable to prove beyond a reasonable doubt that it was intentional murder.

I wonder whether this newest defense will work, that because of his anxiety and physical disability he should be judged by a lower standard. Not the rational person standard but the rational physically disabled and riddled with anxiety person. In the states I think it would be called an "extreme emotional duress" defense. Except in the examples I saw it was usually used after a revenge killing, often when someone's child had been abused and the parent killed the abuser. The defendant (or their lawyers) also have to concede that the defendant knew their actions were wrong, were consistent with committing manslaughter, but because of extreme emotional duress they were unable to control themselves. It seems like a last ditch effort. (Pistorius is facing a mandated minimum of 15 years in prison.)

What I don't understand is, did Pistorius' lawyers bring this up during the trial? In a way this latest claim seems like an effort to re-try the case by appeal.
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Old 14th January 2016, 06:04 PM   #370
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Originally Posted by newyorkguy View Post

I wonder whether this newest defense will work, that because of his anxiety and physical disability he should be judged by a lower standard. Not the rational person standard but the rational physically disabled and riddled with anxiety person.
Does a disability absolve one of acting in the manner of the "reasonable man"? My thoughts are that if you are granted the license to possess a handgun, then there can be no excuse for not behaving like and being judged to the same standards as the "reasonable man". A blind man with a driver's license can't run through a crowd of people and be excused because of their disability.
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Old 14th January 2016, 07:10 PM   #371
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If I understand this correctly, Pistorius' lawyers have given up on getting a court to find Pistorius not guilty or reverse his conviction. Instead they are trying to get the original sentence reimposed (which I believe Pistorius has already served) rather than the fifteen year sentence the appellate court imposed.

The appellate court ruled that the trial judge (Masipa) erred when she ruled that firing four shots into the water closet was not evidence Pistorius meant to kill whoever was in there either by design or neglect. That while the killing was the result of Pistorius' negligence it was mitigated by the fact Pistorius was unaware he might cause a death. Thereby he was given the most lenient sentence possible.

The appellate court ruled that by law, using the rational person standard, Pistorius should've known he was likely to kill the occupant and legally obligated to know. It sounds like his lawyers are arguing -- because Pistorius is a double-amputee with acute anxiety disorder -- that Pistorius was so terrified that he truly wasn't aware he might kill whoever was in the water closet and the court should recognize that.

I think that would be an extremely bad precedent to set and I don't expect this to be successful.
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Old 15th January 2016, 08:24 PM   #372
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Originally Posted by newyorkguy View Post
If I understand this correctly, Pistorius' lawyers have given up on getting a court to find Pistorius not guilty or reverse his conviction. Instead they are trying to get the original sentence reimposed (which I believe Pistorius has already served) rather than the fifteen year sentence the appellate court imposed.

The appellate court ruled that the trial judge (Masipa) erred when she ruled that firing four shots into the water closet was not evidence Pistorius meant to kill whoever was in there either by design or neglect. That while the killing was the result of Pistorius' negligence it was mitigated by the fact Pistorius was unaware he might cause a death. Thereby he was given the most lenient sentence possible.

The appellate court ruled that by law, using the rational person standard, Pistorius should've known he was likely to kill the occupant and legally obligated to know. It sounds like his lawyers are arguing -- because Pistorius is a double-amputee with acute anxiety disorder -- that Pistorius was so terrified that he truly wasn't aware he might kill whoever was in the water closet and the court should recognize that.

I think that would be an extremely bad precedent to set and I don't expect this to be successful.

Yes, it's a much better precedent to set that on appeal a sentence can be extended. Do you think that would fly in New York?
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Old 15th January 2016, 09:14 PM   #373
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Originally Posted by Elagabalus View Post
Yes, it's a much better precedent to set that on appeal a sentence can be extended. Do you think that would fly in New York?
Not to derail the thread, but that's exactly what happened in the Mark Lundy case in NZ. He appealed and got 2 more years added to his sentence.
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Old 15th January 2016, 09:51 PM   #374
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I don't think a U.S. prosecutor can appeal the sentence in a case where there has been a conviction in the same way, but I doubt the South African court was setting a precedent by doing that. I would presume it is an established procedure under South African law.

A legal precedent means it's something new, it's never been done that way before. But please note that Pistorius' lawyers only criticized the reasoning used to impose a harsher sentence, not the fact the court had done that. They seem to accept that overturning a trial judge's sentence is a proper use of the appeal court's power. Sounds to me like it is a well-established part of SA criminal law.
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Old 16th January 2016, 12:22 AM   #375
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Originally Posted by newyorkguy View Post
... Sounds to me like it is a well-established part of SA criminal law.

Yes, thanks for the def. And do you think that is... fair? Do you think someone should be penalized for making an appeal?
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Old 16th January 2016, 12:31 AM   #376
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Originally Posted by Elagabalus View Post
Yes, thanks for the def. And do you think that is... fair? Do you think someone should be penalized for making an appeal?
Of course Tony de Malmanche forewent his right to appeal 15 years in Indonesia, for drug carrying. He was mindful that the sentence could easily increase to being shot.

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Old 16th January 2016, 08:21 AM   #377
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Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.

Quote:
Despite some objections in extending the State's right of appeal to inadequate sentences, the Criminal Law Amendment Act, 107 of 1990, granted the Attorney-General the right to appeal against sentences imposed by lower and by superior courts. The change in the law was precipitated by “lenient” sentences imposed by a circuit court in a case concerning interracial violence. Link
ETA - The above can be found in a section beginning on page 25 (of the 108-page report).

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Old 22nd January 2016, 06:38 AM   #378
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Originally Posted by newyorkguy View Post
Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.



ETA - The above can be found in a section beginning on page 25 (of the 108-page report).
Masipa decided he believed he shot at an intruder. Therefore the bloodlust of the proletariat should be denied.
Law is irrelevant to this process. Law occludes at every step. You New Yorkers are presumed by the rest of the world who are in awe of your civility and sophistication to be able to nuance this??
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Old 22nd January 2016, 07:22 AM   #379
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Originally Posted by newyorkguy View Post
Except in this case, Pistorius was not penalized for making an appeal. The appeal that penalized Pistorius by having him re-sentenced to a longer term came from the prosecution, not the defense. Pistorius' lawyers are appealing now but it remains to be seen if that will result in a penalty for the defendant.

I believe the prosecutor's right to appeal sentencing was established in South African law about 25 years ago in reaction to lenient sentences handed down by judges in what had become a highly politicized legal system. I'm basing this on a reading of a report on South African law by the South African Law Commission.
It's quite common in Common Law jurisdictions (e.g. UK, Ireland, Australia) for a prosecutor to be able to appeal an "unduly lenient" sentence, though not in the US since the DiFrancesco case.
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Old 22nd January 2016, 07:29 AM   #380
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Originally Posted by Samson View Post
.....Law is irrelevant to this process.....
What? Could you explain this?
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Old 22nd January 2016, 09:37 AM   #381
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Originally Posted by MikeG View Post
What? Could you explain this?
The world is becoming far more interested in justice, so law will be set aside.
Bill English is a deputy prime minister who says a matter has been settled.
Law.
The people say the matter has not been settled.
Justice.

Why not fight for this? Those that see that Pistorius was a fool but not a psychopath are concerned with justice. Not law.
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Old 22nd January 2016, 11:33 AM   #382
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Originally Posted by Samson View Post
Masipa decided he believed he shot at an intruder. Therefore the bloodlust of the proletariat should be denied.
Law is irrelevant to this process. Law occludes at every step. You New Yorkers are presumed by the rest of the world who are in awe of your civility and sophistication to be able to nuance this??
It is highly unlikely O.P. believed he was shooting an intruder. However, even in this highly unlikely occurrence, blindly firing multiple gunshots at some unknown human target is a violent crime.
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Old 22nd January 2016, 11:45 AM   #383
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Originally Posted by Samson View Post
The world is becoming far more interested in justice, so law will be set aside.
Bill English is a deputy prime minister who says a matter has been settled.
Law.
The people say the matter has not been settled.
Justice.

Why not fight for this? Those that see that Pistorius was a fool but not a psychopath are concerned with justice. Not law.
The next time some self-absorbed jackass empties his licensed firearm into the back of an arab looking guy in an airport wearing a bulky knapsack, because he thought he was about to detonate a bomb, the court should free him in the name of "justice".
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Old 22nd January 2016, 11:55 AM   #384
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Originally Posted by trustbutverify View Post
It is highly unlikely O.P. believed he was shooting an intruder. However, even in this highly unlikely occurrence, blindly firing multiple gunshots at some unknown human target is a violent crime.
There is far too little effort made to understand what happened in the case. Masipa made that effort, and has paid the price. The superficial once over lightlys will not be fooled into seeing the truth by making that effort.
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Old 22nd January 2016, 12:07 PM   #385
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Originally Posted by Samson View Post
Masipa decided he believed he shot at an intruder. Therefore the bloodlust of the proletariat should be denied.
Law is irrelevant to this process. Law occludes at every step. You New Yorkers are presumed by the rest of the world who are in awe of your civility and sophistication to be able to nuance this??
What on earth are you trying to communicate? Assume that P. believed he was shooting at an intruder (debatable). He still was not justified in deliberately killing a human being who posed no threat to him, who he couldn't even see, and from whom he was free to retreat. It's hardly "bloodlust" to demand justice for Reeva, no matter why P. killed her -- and apart from doubts about his story.

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Old 22nd January 2016, 12:11 PM   #386
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Originally Posted by Bob001 View Post
What on earth are you trying to communicate? Assume that P. believed he was shooting at an intruder (debatable). He still was not justified in deliberately killing a human being who posed no threat to him, who he couldn't even see, and from whom he was free to retreat. It's hardly "bloodlust" to demand justice for Reeva, no matter why P. killed her -- and apart from doubts about his story.
This has been explained to Sampson countless times. It's its possible to communicate with people who have heir fingers in their ears.
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Old 22nd January 2016, 12:13 PM   #387
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Originally Posted by Bob001 View Post
What on earth are you trying to communicate? Assume that P. believed he was shooting at an intruder (debatable). He still was not justified in deliberately killing a human being who posed no threat to him, who he couldn't even see, and from whom he was free to retreat. It's hardly "bloodlust" to demand justice for Reeva, no matter why P. killed her -- and apart from doubts about his story.
I will say it one more time. I believe his story, so would mete out punishment accordingly. In SA this ranges from no punishment to 25 years in jail. I don't care which, but those are the facts I would sentence on.
I regard him as no danger to society now, so would take that into account.
I am in a minority, but would happily have him as a neighbour.
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Old 22nd January 2016, 12:19 PM   #388
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Originally Posted by Samson View Post
There is far too little effort made to understand what happened in the case. Masipa made that effort, and has paid the price. The superficial once over lightlys will not be fooled into seeing the truth by making that effort.
What happened in this case that I don't understand?
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Old 22nd January 2016, 12:24 PM   #389
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Originally Posted by Samson View Post
I will say it one more time. I believe his story, so would mete out punishment accordingly. In SA this ranges from no punishment to 25 years in jail. I don't care which, but those are the facts I would sentence on.
I regard him as no danger to society now, so would take that into account.
I am in a minority, but would happily have him as a neighbour.
So your sense of justice has no problem with 25 years?
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Old 22nd January 2016, 12:34 PM   #390
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Which is all well and good, Samson, but you have just allowed someone to kill someone else with very little at all in the way of sanction. As I've said multiple times in this thread, I accept OP's story, but still think he needs to spend 10 years in gaol, or more, as punishment for killing someone who was in no position to threaten him.
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The Conservatives want to keep wogs out and march boldly back to the 1950s when Britain still had an Empire and blacks, women, poofs and Irish knew their place. The Don That's what we've sunk to here.
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Old 22nd January 2016, 04:29 PM   #391
Samson
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Originally Posted by trustbutverify View Post
So your sense of justice has no problem with 25 years?
Originally Posted by MikeG View Post
Which is all well and good, Samson, but you have just allowed someone to kill someone else with very little at all in the way of sanction. As I've said multiple times in this thread, I accept OP's story, but still think he needs to spend 10 years in gaol, or more, as punishment for killing someone who was in no position to threaten him.
I think we have some common ground. A deterrent sentence is certainly appropriate, and it is probable lives have been spared since this tragedy by people really seeing consequences. But I do not have the disposition necessary to render punishment to others, and am probably grateful others relish the task. Time served looks ok to me, but it looks unlikely now, and I certainly won't be saying much about his fate. I have always been interested in what really happened here, and I could be wrong, but happen to believe his story.
As I live nearby some hideously unjust incarcerations, I am preoccupied with finding narratives that fit the facts, and working to inform cabinet of their collective guilt.
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Old 24th January 2016, 09:39 PM   #392
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I admit that I was unaware of it, but American prosecutors can and do appeal sentences they feel are too lenient, sometimes when a judge's sentence is less than the minimum called for in sentencing guidelines.

The DiFrancesco case mentioned was a little different. Eugene DiFrancesco was a member of organized crime and convicted of racketeering. An appeals court dismissed a federal prosecutor's request for a review of the sentence on the grounds it violated DiFrancesco's legal protection against double jeopardy.
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In United States v. DiFrancesco the government petitioned the court of appeals for review of the sentence of a dangerous special offender, pursuant to section 3576 of the Criminal Code. This provision is part of the "Dangerous Special Offender Sentencing Statutes," which were enacted to remove unwarranted disparities in sentences and to promote equal treatment of similarly situated offenders. Link to Duke Law Review
However, the U.S. Supreme Court, though noting a prosecutor's right to appeal the length of a sentence was extremely rare in the U.S., found some states did allow it. The court held that the appeal could be scrutinized to see if it violated protection against double jeopardy but not dismissed out-of-hand.

In recent years I found there were several instances when prosecutor's not only appealed what they considered exceptionally lenient sentences, they were sometimes successful in having the sentence increased. One case involved a child rapist in California. A recent noteworthy example would be the unsuccessful challenge by federal prosecutors to sentences meted out to five former Bernard Madoff employees.
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Old 3rd February 2016, 08:41 AM   #393
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It may have been mentioned before here, I don't know, but this case was linked elsewhere on this forum and it kind of reminded me of Oscar:

http://abcnews.go.com/US/north-carol...ry?id=28140162

"A North Carolina woman accidentally shot her husband after mistaking him for an intruder as he was coming to surprise her withh breakfast in bed, police said today.

....When the home alarm sounded, Tiffany shot him through the closed bedroom door, police said."

I can't find any mention of her being charged with anything.
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Old 3rd February 2016, 11:59 AM   #394
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Originally Posted by Matthew Best View Post
"A North Carolina woman accidentally shot her husband after mistaking him for an intruder as he was coming to surprise her withh breakfast in bed, police said today.

....When the home alarm sounded, Tiffany shot him through the closed bedroom door, police said."
That is beautiful. I do hope he bought her the gun.
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Old 19th February 2016, 05:13 AM   #395
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I read in a big book on the case in the library today, that Nel said Reeva was clothed when shot. Everything else seemed ok for Oscar's story, but what is the truth of what she was wearing?
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Old 19th February 2016, 11:34 AM   #396
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Originally Posted by Matthew Best View Post
It may have been mentioned before here, I don't know, but this case was linked elsewhere on this forum and it kind of reminded me of Oscar:

http://abcnews.go.com/US/north-carol...ry?id=28140162

"A North Carolina woman accidentally shot her husband after mistaking him for an intruder as he was coming to surprise her withh breakfast in bed, police said today.

....When the home alarm sounded, Tiffany shot him through the closed bedroom door, police said."

I can't find any mention of her being charged with anything.
He lived at least
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Old 19th February 2016, 03:23 PM   #397
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Reeva Steenkamp was dressed when she was found dead in the water closet. She was not wearing a nightie or pajamas. This was one of the circumstantial reasons police immediately suspected foul play.
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South African prosecutors are saying the white shorts and black top the model had on when she was gunned down could determine whether the Olympic sprinter ends up in an orange prison uniform. News story
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Old 19th February 2016, 07:53 PM   #398
Samson
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Originally Posted by newyorkguy View Post
Reeva Steenkamp was dressed when she was found dead in the water closet. She was not wearing a nightie or pajamas. This was one of the circumstantial reasons police immediately suspected foul play.
So is this your smoking gun or just one of many? It seems important at a certain level, but we would need more knowledge of her habits, modesty and so on in an away game situation.
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Old 20th February 2016, 12:49 AM   #399
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Originally Posted by Samson View Post
So is this your smoking gun or just one of many? It seems important at a certain level, but we would need more knowledge of her habits, modesty and so on in an away game situation.

Sounds more like it's your smoking gun, and you're trying to find a way to explain it away while maintaining your own hypothesis.
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Old 20th February 2016, 12:53 AM   #400
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Originally Posted by Samson View Post
I read in a big book on the case in the library today, that Nel said Reeva was clothed when shot. Everything else seemed ok for Oscar's story, but what is the truth of what she was wearing?
Not from what I've seen. Quite the contrary.
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