WHY DID THE NPA & SCA TRASH JUDGE MASIPA’S JUDGEMENT IN THE OSCAR PISTORIUS TRIAL ?

Posted in disability, opinion, Parasport on January 28th, 2016 by John Coxon

 

oscar pistorius and RSA flag

It is a source of shock and sorrow that the apparently relentless pursuit of the athlete, by Nel’s extended persecuting prosecution for a trophy verdict not only unjustly trashed Oscar Pistorius’s reputation and character but in the process effectively destroyed the credibility of the honourable Judge Thokozile Masipa by trashing her judgement as incompetent and unsound with the apparent  blessing of the State’s Supreme Court of Appeal.

Nel for the prosecution seeks the help of the Constitution Court next to keep a verdict , from an outside perspective, so spuriously won by the most tortuous of routes and crucially, it appears, at the expense of sacrificing not only a fair trial for RSA’s globally most famous defendant but one of its own High Court Judges appointed as trusted and fit to hear the highest profile case in the country’s recent history.

The honourable Judge Masipa whom they now deem to have failed to interpret both the law and the factual evidence before her correctly when, given the paucity of the Prosecution’s case for murder she could not have been reasonably expected to other than find the athlete not guilty of the original charge.

The SCA’s reasoning and to my mind inexplicably perverse judgment, and the contents of this latest Nel affidavit  are founded, let’s not dress it up, on directly and indirectly the undermining and therefore destruction of Judge Masipa’s credibility and effectively labelling her judgement as incompetent. If as they stubbornly maintain, she not only failed to apply the law correctly in regard to “dolus eventualis” legal theory, she also, by implication, was  misled by the athlete and wrongly accepted his version of events and thus failed to interpret factual evidence  correctly either.

Despite the token damning with faint praise of Judge Masipa at the end of the SCA’s judgement and patronisingly referring to her doing well under the additional pressure of live television and unprecedented media attention, that praise must surely be seen for what it is , hollow rhetoric, and actually has no rightful place in what was a  legal judgement either.

You can’t present an appeal judgement which is a carefully crafted detailed trashing of Judge Masipa’s verdict which implies she was incompetent and failed to do her job and then try to tell us you think she did a great job. The only genuine testimonial of any value would have been for the SCA to validate and uphold her reasonable judgement and to have dismissed the appeal against her judgement as unsound.

Even that pressure from the presence of live TV broadcasting cameras actually could not, in any fair test, have unduly adversely affected her judgement since she could only have found in favour of the prosecution had Nel not found it necessary to stage and rely on a premeditated, carefully orchestrated days long public character assassination of the defendant .

Furthermore then to have to descend further to outside help to  try and prove that falsified profile, which he could not actually evidence with reliable witness testimony or actual evidence beyond hearsay. This by an enforced mid-trial three week state experts psychiatric assessment (which surely should have been conducted before the trial actually began) yet the outcome likely greatly incensed him  should have greatly embarrassed him, since it completely contradicted his own biased assessment and seriously undermined the State’s case.

Nel clearly  never accepted that failure or that Judge Masipa’s decision was based on her careful unbiased assessment of the facts before her and that her judgement, by any honourable and fair test, was sound. The subsequent prosecution stance following what for them was an unfavourable and unacceptable verdict has been to base their ex post facto challenges, as with the athlete during the actual trial, effectively resorting to an indirect ad hominem approach,  for how can an attack on a person’s professional judgement not be interpreted as an attack on her in them having persuaded the SCA either to ignore  or re-interpret actual factual evidence on which she fairly based her finding?

In upholding what to many has become a travesty of justice, both the prosecution and the SCA are clearly in denial that South Africa, by virtue of its extraordinary annual tally of gun related crimes and deaths has become and remains, unenviable, one of the most dangerous countries in the world to live in and where therefore the threat of being victim to violent armed crime is and surely must be reasonable and very real .

Yet the SCA seeking to prove, retrospectively , Oscar Pistorius’s intent to kill and therefore commit murder rather than acting , through fear, in the genuine belief that he and Reeva were under a potentially lethal threat ,  yet found the athlete’s fear of  a perceived armed threat in the shape of a nighttime home invasion  unreasonable and also that his additional sense of vulnerability through disability , especially in facing a perceived threat without his artificial legs (and likely as  well due to his  fame and previous wealth ) was also unreasonable.

This where the athlete, like all citizens who own guns lawfully in the RSA , have completely justified and genuine grounds to fear for their own  personal security and hence so many feel the need to be armed and who especially feel at risk of armed home intrusions.  It is of note in  this regard that in Gauteng, the province in which the athlete resides, is statically the most dangerous area in South Africa to live where it tops the league in terms of annual gun crime deaths.

TV cameras, we should not forget, were an avoidable and unnecessary pressure on Judge Masipa condoned and accepted by the prosecution to suit its own ends , allowing, in my  view  cynically, (and tellingly for the first time ever) , a trial to take place under the worldwide TV media spotlight adding to an already heavy burden at the hands of a print media scrum. The only possible  explanation for  wanting to allow TV cameras present was the opportunity it presented for the state prosecution to showcase its post-apartheid evolving non-jury based justice system at the expense of the defendant’s rights and against the  wishes and concerns of Oscar Pistorius’s defence. This  given its predictable influence on those in court, the high risk of compromising the integrity of a fair trial and thus, in longer established and more robust justice systems, like the UK, is  never permitted.

The prosecution , (with Nel as their most senior and powerful prosecutor) wants to have its cake and eat it.

For a murder conviction to stick they needed Oscar Pistorius to be a rebranded as a liar and his version of events to be trashed and reinvented as a fabrication, even though  with the world watching on live TV, they failed to make a convincing case or prove either at actual trial despite having every opportunity to do so.

On the same basis therefore, if this conveniently revised SCA verdict has any actual merit and is to stand, it also surely must follow that Judge Masipa ought to be dismissed for incompetence?

To add insult to injury they have made it incumbent on her, (should the appeal to the Concourt fall on deaf ears if indeed Deputy Director of Public Prosecutions Nel’s immediate superior, Abrahams, allows it to be heard), to face the further humiliation of having to re-sentence the athlete for a murder she honestly and fairly adjudged he was not guilty of.

Footnote : In closing forgive me for quoting   South Africa’s National Prosecution Authority’s mission statement on its website

“In a Constitutional state such as South Africa, all citizens have a right to enjoy a better quality of life … free from fear and free from crime.”

Where in the light of the above, Oscar Pistorius clearly did not live free from fear of crime and so many citizens are now actually, if this verdict is allowed to stand,  going to live in fear of being convicted of crime, that of  murder, if they, through fear, feel forced to defend themselves from a potentially lethal crime using a weapon the state accepts them lawfully owning for personal security implying that fear of crime is both rational and real (though not for Oscar Pistorius whose fear they dismissed as irrational and unreal ?0

NPA values system

The NPA’s official website is actually notable for its inherent lack of substance,  concerning itself only  with a series of menu links under the crumb menu heading “NPA Value System” to two page PDF documents that each contain a page with a large photo and banner statement and a second page very small number of bullet points buzz words.

In the light of what during the course of the actual trial saw the NPA’s most senior prosecutor Nel’s sustained mocking and aggressively goading of Oscar Pistorius in his cross-examination over a number of days , including calling him a liar in open court (and yet blatantly denying he actually called him a liar at any point, after the trial), and for example trying to force him to look at gruesome photograph’s of the victim’s injuries,  did  Nel’s  courtroom behaviour demonstrate “courtesy or respect” and surely did it not fall short of “ethical conduct” the NPA states it expects it officers to observe  and such conduct, for example,  would never be tolerated in our Central Court, the  Old Bailey, or indeed any British court.

On professionalism it states :-

nelnpa

On integrity it states :-

napaintegrityu

Ironically, at the time of writing the “code of ethics” link is actually broken.

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OSCAR PISTORIUS – A TEST CASE TO THE REALITY OF LIVING IN THE FAKE POST 2012 PARALYMPIC GAMES DISABILITY UTOPIA?

Posted in disability, editorial, Olympics 2012, opinion on January 25th, 2016 by John Coxon

oscar PISTORIUS medal

OSCAR  PISTORIUS – A TEST CASE TO THE REALITY OF LIVING IN THE FAKE POST 2012 PARALYMPIC GAMES DISABILITY UTOPIA?

London’s 2012 Paralympic Games was a milestone first in terms of the long awaited media parity with the conventional games and playing, for the first time,  to equally packed venues making  a number of athlete’s with a disability celebrated as national heroes and role models and the public’s eyes at last open to the human potential of athletes with a disability.

However, the UK’s government hard sell to our nation of both games focused on the cash returns and benefits to us all from that  huge tax payer investment and that of licensed business partner funding  and government justified that investment by a predicted so called “ legacy”  where attitudes to disability would be changed forever and grass roots young  citizens of all abilities would be inspired and empowered to take up sport and lead more active and fulfilled longer lives.

As with the conventional games, the real legacy of the Paralympics was never seen in terms of improvements in grass roots and other sport and improved overall growth in participation in sport yet  banked as clear profit by the major global corporate sponsors as the cynical amongst us pretty much expected in a major even seen as what it is , a sacred cash cow.

Ironically. while bandwagon jumping global corporate sponsors like junk food pimping McDonalds and Coca Cola banked incredible returns for their capital investment, (seeing the games as a route to healthy option credibility by being associated with healthy living as their only remedy when the facts point to their products  actually being globally life-threatening)  this nation is still  actually waiting for the promised pay-off, that so called “legacy” to be delivered.  To this day, most sport in the UK, able-bodied  and disability sport, (and the vast majority of their young aspiring sportsmen and women) still very much are either self-funded or rely on Nationally Lottery and other charity funding.

It is clearly a fallacy to presume that without his prosthetics the athlete would be as fearless and confident as he clealry was on track with those blades

It is clearly a fallacy to presume that without his prosthetics the athlete would be as fearless and confident as he clealry was on track with those blades

Participation in sport at grass roots, both able boded sport and disability sport, has not seen  significant increase in active participation since London 2012 ,  quite the reverse , whilst increased childhood and adult obesity through lack of exercise remains a growing national health problem costing the nation billions and young girls especially have not been so inspired.

The expected “sea”  change in public attitudes to disability  has actually been, as it always has been, tokenistic and very modest where hate crimes against vulnerable people with disabilities, especially visible disabilities  in the UK are actually on the rise post 2012  and we see , also , a catalogue of often violent abuse of the disabled and vulnerable  people in residential  homes by their “carers”  and also the sexual abuse of such people in care situations.

Those famous blades are actually very basic and rather crudely engineered.

Those famous blades are actually very basic and rather crudely engineered.

Full independence , access all areas and maximum fulfilment of potential for people with a disability is implied as a given  for the public in the outstanding achievements of our Paralympians but the reality on the ground, especially at grass roots, is actually very different and the most  internationally recognisable  Paralympian Oscar Pistorius  and the most recent tragic events in his life really bring home the fallacy in the public consciousness that things for people living with a disability have actually changed that much and neither  have attitudes changed and neither in fact has the discrimination all people with a disability and additional handicaps still have to live with 24/7 and so on the basis of his treatment at trial has Oscar Pistorius.  Oscar himself off the track is of course susceptible to all those normal handicaps that face the disabled everyday because his famous blades only guaranteed him mastery on a running track and nowhere else and were designed to be context effective and not for general daywear.

Oscar on his "Ossur" running prosthetics.

Oscar on his “Ossur” running prosthetics.

The Icelandic  company  Össur ( named after innovative philanthropist prosthetics pioneer Össur Kristinsson, who developed a silicone interface for prosthetic sockets) dropped,  like a ton of bricks, their brand ambassador Oscar Pistorius as soon as the announcement of Reeva’s death at the hands of their single biggest global marketing asset  athlete  broke and up till then such a nice little no risk huge earner for them .

When we take a hard look at their actual  “blades” which empowered Pistorius, solely on the track, to achieve his potential , they are incredibly  crudely engineered , bent carbon fibre crudities with a few bolts and yet mega expensive and I am sure like all other adaptive aids for the disabled grossly over priced and of course have a limited shelf life so buying one set is not an option.

everyday disability aids are still relatively crude & the best are out of the price range of many ordinary people.

everyday disability aids are still relatively crude & the best are out of the price range of many ordinary people.

With amputees, at grass roots, I, for example , have a friend, ex military, who like  all people with disabilities in the UK, appear to have a benevolent National Health Service who provide prosthetics, wheelchairs and other adaptive aids as a right and free of charge  but those free aids do not reflect modern technological front runners and essentially people are given wheelbarrows in lieu of decent chairs and relatively crude prosthetics a kind of wooden peg leg equivalents and if you want anything better you will have to buy in from the private sector who consistently take advantage of their market by charging excessively in my view putting independence and reaching full potential still out of reach for the majority by virtue of cost.

paras2016

The ultimate irony in this fake post 2012 Paralympic games utopia is the abusive dismissal of the athlete Oscar Pistorius, once disability and disability sports most influential ambassador , as falsely assumed to have been trying to buy his way out of responsibility for his girlfriend’s tragic death ( which he has never ever actually denied being responsible for but also that it was the result of a tragic accident and not as now deemed murder with intent) and exhausting his supply of sponsorship  capital and prize money and selling also his luxury home.

oscar pistorius at start

This in order to fund a defence, yes true ,  few in the RSA could actually afford and yet the state chose to make this a central court show trial, for the first time ever  in front of live TV cameras very much against the defence’s wishes, and  where similar cases  are normally tried and go almost unnoticed in regional courts and so cost much less ( and also typically allow plea bargaining and offer non-custodial suspended sentences as the norm and in fact still do.)

Pistorius  has also been accused , especially in the relatively anonymous and unaccountable , relatively poorly informed court of social media-led public opinion, of cynically capitalising on his disability as a defence when of course reference to his disability at the time of the actual accident, (when he was not on his blades but handicapped by being on  his so called stumps ) was actually made not by him , but his defence team. This  not because the athlete was looking for excuses to avoid responsibility but because it clearly must have been a vital factor in increasing his fear and sense of even greater than normal vulnerability when tackling head on a perceived lethal threat in his own home in the early hours of Valentine’s day 2013.

No similar case has ever been subject to an appeal by the Prosecution to a higher court and then successfully led to a high court judge’s legitimate verdict being overturned and re-invented as murder based on a pretext of a matter of law (rather than more justly based on evidential facts that judge based her decisions on.) Courts at all levels in the RSA and elsewhere are not accustomed to defendant’s with a disability accused of serious crimes before them and in general lack the knowledge or understanding to allow mitigation based on disability factors which affect people’s action.

The Supreme Court of Appeal (SCA) dismissed the athlete’s disability as a causal factor helping justify  his actions as they did factual evidence from the actual trial that he was an overly anxious man when it came to personal safety and security but not a vain aggressive unbalanced man capable of violent abuse and wilful slaughter of his tragic girlfriend.

The SCA were disability discriminatory and  essentially re-tried Pistorius as if he acted as the London 2012 track superman but with x ray vision, and  still oozing confidence ?  while grovelling on the bedroom  floor in the early hours having been rudely awakened and on his stumps facing what was to him a  very real and potentially life threatening threat.  Yet , the so called learned judges had the temerity to presume a superhuman level of self control to be able  stand back, in a split second , make a risk assessment, weigh up all the possible outcomes if he used his gun, do a quick cost benefit analysis of possible consequences, and an assessment of whether he was acting lawfully.

They also expected him to have used clairvoyant powers to judge whether anyone was actually behind the closed door or actually posed any real threat and this in a relatively secure gated apartment complex albeit in the most dangerous province in RSA in terms of violent gun killings and a city with ever spiralling violent crime and home intrusion statistics. Oscar, the first Paralympian to run officially against able bodied athlete’s in the Olympics, and acquitted himself well there but in effect the SCA in the way they came to their conclusion is like judging Oscar and pitting him as an equal against  Usain Bolt and reasonably expecting him to match or even trump him.

Find me on Twitter at johncoxonmedia and use the #OscarPistorius twitter tag to find the many supportive factual references I have made to the athlete’s case but also find a growing album of fact based “photocards” I have produced to help raise awareness of the athlete’s case and treatment in law which i have found most unsatisfactory.  My Facebook 

 

 

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