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  1. Zugzwang
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    03 Dec '15 22:061 edit
    The Oscar Pistorius case has been discussed in earlier threads here.

    http://www.theguardian.com/world/2015/dec/03/oscar-pistorius-set-to-return-to-jail-after-appeals-court-finds-him-guilty-of

    "Oscar Pistorius set to go back to jail after appeal court's murder verdict"

    Oscar Pistorius admitted to killing his girlfriend, Reeva Steenkamp, but he
    claimed that it was an accident because he assumed that she was a burglar.
    The judge found him guilty only of culpable homicide rather than murder.
    At that time, I (a non-lawyer) thought that the judge had misinterpreted
    the law and that her decision might be overturned upon appeal.
    (As I recall, No1Marauder, an American lawyer, and I argued about it.)

    Now South Africa's supreme court of appeal has (unanimously) ruled
    that the trial judge was wrong and that Oscar Pistorius should have
    been convicted of murder. As such, he faces a much longer sentence.
    (The minimum sentence for murder is fifteen years imprisonment.)
  2. Subscriberinvigorate
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    03 Dec '15 22:49
    He doesn't have a leg to stand on!
  3. Zugzwang
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    04 Dec '15 01:28
    Originally posted by invigorate
    He doesn't have a leg to stand on!
    That sounds like his defense lawyer's argument in mitigation of his punishment.
  4. The Catbird's Seat
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    07 Dec '15 14:13
    Originally posted by Duchess64
    The Oscar Pistorius case has been discussed in earlier threads here.

    http://www.theguardian.com/world/2015/dec/03/oscar-pistorius-set-to-return-to-jail-after-appeals-court-finds-him-guilty-of

    "Oscar Pistorius set to go back to jail after appeal court's murder verdict"

    Oscar Pistorius admitted to killing his girlfriend, Reeva Steenkamp, but he
    cla ...[text shortened]... faces a much longer sentence.
    (The minimum sentence for murder is fifteen years imprisonment.)
    What I find interesting is the difference between S.African criminal law and that of the US. Apparently, double jeopardy is not disallowed in SA. In the US, once convicted, or acquitted, the prosecution doesn't get a second bite of the apple.

    I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
  5. Cape Town
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    07 Dec '15 14:22
    Originally posted by normbenign
    I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
    You could achieve the same goal by simply acquitting 20% of all cases at random. Would you prefer that too?
  6. The Catbird's Seat
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    07 Dec '15 15:20
    Originally posted by twhitehead
    You could achieve the same goal by simply acquitting 20% of all cases at random. Would you prefer that too?
    No, I prefer that each person gets the opportunity to oppose his accusers in court, and be judged on the evidence by a jury.

    Random acquittal would not achieve the same goal. There is no set percentage of acquittals, and the defense has to create some level of doubt about the guilt of the accused.
  7. Cape Town
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    07 Dec '15 16:27
    Originally posted by normbenign
    Random acquittal would not achieve the same goal.
    Yes, actually it would. It is your contention that rather than retrying cases that may have been misstried, the accused parties should be allowed to go free. One would hope that mistried cases are random although I suspect they are strongly biased towards the rich (for cases where an accused is set free).
  8. Germany
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    07 Dec '15 16:40
    Originally posted by normbenign
    What I find interesting is the difference between S.African criminal law and that of the US. Apparently, double jeopardy is not disallowed in SA. In the US, once convicted, or acquitted, the prosecution doesn't get a second bite of the apple.

    I think overall, I prefer the American system, where some guilty persons may escape punishment, but it is less likely that an innocent person gets punished.
    It's not a second trial - it's an appeal and as such it is part of the first trial.
  9. The Catbird's Seat
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    07 Dec '15 18:29
    Originally posted by twhitehead
    Yes, actually it would. It is your contention that rather than retrying cases that may have been misstried, the accused parties should be allowed to go free. One would hope that mistried cases are random although I suspect they are strongly biased towards the rich (for cases where an accused is set free).
    Not so at all. A mistrial simply indicates that a jury is hung, or the judge for some reason believes evidence presented is tainted and denies the accused a fair hearing. The State may then, go ahead and retry the case, if it feels confident in proceeding minus the tainted evidence.

    An acquittal is entirely different. Once charged, tried and acquitted, the accused is free. Remember the OJ Simpson trial.

    I don't know if the general assumption that the rich get preferential treatment at trial is true or not. It is true, that they generally get better representation. Quite often indigent defendants get young and ambitious lawyers, looking to make a name for themselves, instead of stodgy old farts, who just charge large fees.
  10. The Catbird's Seat
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    07 Dec '15 18:36
    Originally posted by KazetNagorra
    It's not a second trial - it's an appeal and as such it is part of the first trial.
    It still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave the jury with the option of selecting the charge to convict on, or the defense with the option of plea bargaining.

    I'll leave the final word to the barristers on the forum, sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
  11. Subscribersonhouse
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    08 Dec '15 11:29
    Originally posted by normbenign
    It still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave ...[text shortened]... , sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
    They might know American law but that doesn't automatically mean they know SA law.

    Pistorius has not been convicted, so far, the motion in court is for murder so that has yet to be decided.

    He is not considered a flight risk, for obvious reasons and now wears a leg bracelet to track his movements, confined to his own home, allowed to go out under strict supervision and that only within 20 Km of his home.
  12. Standard membersh76
    Civis Americanus Sum
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    08 Dec '15 13:551 edit
    Originally posted by normbenign
    It still differs from the American system. Once convicted and sentenced in America, the prosecution can't come back and try the case with a more serious charge. It is quite common in America to charge the most serious offense, and include lesser charged offenses, for example: Homicide in the 1st degree, 2nd degree, Manslaughter 1, 2, and 3. This leave ...[text shortened]... , sh76 and no1marauder, they may have a more clear explanation of the differing legal standards.
    Norm is correct.

    Under American law, a judge cannot increase a charge of which a person was convicted by jury. If the jury finds the person guilty of manslaughter, the judge cannot change it to murder. This is not so much an issue of double jeopardy as it is a violation of the right to trial by jury. A judge can increase a sentence based on aggravating factors, but only to the maximum statutory sentence for the crime that the person was convicted of.

    I don't know anything about South African law, but we can still debate whether a judge increasing a conviction or throwing out an acquittal violates a defendant's natural rights. No1marauder once stated on this forum his opinion that a right to trial by jury is a natural right (can't find the thread... he can correct me if I'm wrong). I'm not entirely convinced that's correct, but assuming it is, the question becomes whether Pistorius' natural rights were violated, moving the discussion away from SA law.
  13. Subscribersonhouse
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    08 Dec '15 14:19
    Originally posted by sh76
    Norm is correct.

    Under American law, a judge cannot increase a charge of which a person was convicted by jury. If the jury finds the person guilty of manslaughter, the judge cannot change it to murder. This is not so much an issue of double jeopardy as it is a violation of the right to trial by jury. A judge can increase a sentence based on aggravating facto ...[text shortened]... becomes whether Pistorius' natural rights were violated, moving the discussion away from SA law.
    If the 'natural rights' idea is violated, how does that help Pistorius in this case? Can't the judge just ignore it?
  14. Standard membersh76
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    08 Dec '15 15:03
    Originally posted by sonhouse
    If the 'natural rights' idea is violated, how does that help Pistorius in this case? Can't the judge just ignore it?
    That someone's rights are violated does not mean they don't exist.

    On this forum, we're not going to impact anything, but the fact that the judge can do what he pleases doesn't prevent us from debating whether Pistorius' rights were violated.
  15. Subscribersonhouse
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    08 Dec '15 15:111 edit
    Originally posted by sh76
    That someone's rights are violated does not mean they don't exist.

    On this forum, we're not going to impact anything, but the fact that the judge can do what he pleases doesn't prevent us from debating whether Pistorius' rights were violated.
    As he sits out his new 12 year jail sentence, 4 years off for time served.....

    Hey, have you ever dealt with patent law? Have question.
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