The Puzzling Problem of the Pistorius Plea

A blog post by Felicity Gerry QC has today left me thinking again about the verdict in the Oscar Pistorius trial.  I need to disclaim at the very start that I saw very, very little of the actual trial and thus did not have the evidence in front of me that was placed in front of the judge.  However, given the provocative title of Ms. Gerry's post, 'The Oscar Pistorius verdict: was it a miscarriage of justice?', I was slightly surprised at her conclusion that

"justice was done and seen to be done. It may or may not be the truth, but on the available evidence, the important standard of proving serious criminal charges beyond a reasonable doubt was maintained."

What puzzles me about the verdict is an issue that I highlighted back in April,  which is that the Pistorius defence boiled down to something along the lines of "I killed Reeva when I accidentally fired through the toilet door thinking there was an intruder behind it."  From what I have seen and read, in her verdict Judge Masipa has not adequately dealt with the issue of transferred malice, and the blurring of what were essentially two separate defences offered by Pistorius: 1) That he acted in putative self-defence (which would require an assessment of whether it was reasonable under the circumstances as he perceived them for Pistorius to think that the force he used to avert the perceived threat was reasonable); or 2) He fired the gun accidentally.

This problem with the verdict has been highlighted by a number of South African legal scholars, and put very clearly by Pierre de Vos, of the Constitutionally Speaking blog, when he wrote:

The state can only prove intention via the concept of dolus eventualis [indirect intention/transferred malice] where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).

In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).

In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door. 

Like Mr. de Vos, when I wrote my original post I could not see how the judge could fail to come to the conclusion, on the facts known, that Pistorius did not foresee that possibility.  As far as I can see the issue was not properly dealt with in the judgment either.  What is more puzzling is that an acceptance of the argument that he fired the gun as a result of an involuntary muscle spasm would then be somewhat inconsistent with a guilty verdict on the count of culpable homicide.

While it would certainly have led to an undramatic trial, I always felt that by trying to prove the intentional murder of Reeva Steinkamp, the prosecution was aiming too high.  The state allowed Pistorius's defence to cloud the issues.  The simplicity of the question at the heart of the tragedy was overshadowed and drowned out in the melodrama of the saga of Oscar and Reeva, but it remained a simple question: Did Oscar Pistorius fire four shoots through the door believing that there was an intruder on the other side, and if so did he foresee that it could kill that intruder?  The issue of guilt or not on the charge of murder would hinge on whether it was reasonable for him to use lethal force. From what I know of South African law I believe the answer inescapably points to 'No'.

As Pierre de Vos concluded:

In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.

Perhaps the judge felt compelled to find as she did because the prosecution, in her view, failed to make this point beyond reasonable doubt.  If so, it is an appalling oversight on the part of Gerrie Nel, the prosecution barrister and in which case then perhaps Felicity Gerry is correct, and justice was done and seen to be done, however imperfect it may be.  But in the absence of clearer reasoning from Judge Masipa, we are left to guess, which is unsatisfactory from everybody's point of view.

The Power of Negative Thinking (Scottish edition)

There's a lot of keech, as they say in Scotland, bring spouted on both sides of the indyref debate. No, Scotland will not slide into catastrophe as an independent nation, and nor will it be a megarich socialist utopia with unicorns giving out free prescriptions. It probably will thrive and become wealthier in the long run, but the birth pains of getting there could well be pretty painful and I am certain that there will be some who will regret, in the short term at least, voting Yes. Conversely, it will probably see a rebirth of the sensible centre-right in Scotland, and some right-leaning No voters will quickly embrace and love the possibilities offered by independence.

Weirdly, though, it appears that about half of No voters want an independent Scotland to fail. I have been looking at the data tables for Sunday's Sunday Telegraph ICM poll that showed 'Yes' 8 points ahead. Martin Boone of ICM gave an interview last week to the BBC in which he expressed concern that the pollsters could get the result completely wrong, as they did in 1992. That tells me that even he isn't entirely comfortable with the results of ICM's own poll. It should be noted that the sample size was also smaller than usual (700), and it was online rather than by telephone (ICM's own telephone poll a few days earlier gave No a 2-point lead).

Anyway, I digress.  A big part of the No campaign has been that they believe Scotland having its own currency and central bank would be a disaster for the country in the short term (and they are probably right), to the extent that it's not currently even on the agenda: the plan is for a currency union with the rump UK (rUK). The No argument contends further that even a currency union with rUK would be bad for Scotland, even were rUK to agree to one.

Fairly logical so far. Where it starts to get weird though is that according to the ICM poll, half of No voters believe Scotland shouldn't be allowed (by rUK) to have a currency union (page 14).  Now, I accept that it is possible that a section of No, having given thought to the economic and monetary policy implications of a currency union believe that, actually, a new Scots pund would actually be preferable to a currency union. I suspect they are small in number though.

That leads to the conclusion that a very significant minority of No voters, believing that an independent Scotland keeping the £ sterling would be the lesser of two evils, also believe that Scotland should not be able to keep it in any case. Or to put it another way, having convinced themselves that Scotland won't be allowed to keep the £, or alternatively believing that Scottish independence and a currency union will damage the economy, they want to see Scotland not being able to keep the pound to vindicate their opinion and how they voted*.

I believe that psychologists call this cognitive dissonance. You and I are more likely to call it cutting off your nose to spite your face.



*(There is also the possibility that they believe that it would be unfair on rUK to allow this to happen; I can't see that equating with No's claims to also be 'Team Scotland').

The most annoying thing about Ian Paisley is that he actually was quite likeable

One of the most frustrating things about Ian Paisley, a man whom history ought to judge harshly for his role in creating and perpetuating a vicious cycle of violence fuelled mainly by his own sense of self-righteousness and a Bible-inspired sectarian disdain for the Roman Catholic Church and its adherents (or as my father used to put it, rather more succinctly, "that oul' bastard"), is that he was in real life very personable and likeable, and with a great sense of humour.

And while it was welcome that he became a peace maker later in life, I think Ian Jack has it right when he concludes that Ian Paisley exploited people's fears and fuelled a conflict, labelling former allies traitors and enemies devils, in large part to satisfy his own ego.  Northern Ireland would never be safe until it was in the DUP's hands.  Unfortunately for Northern Ireland, the manner in which he squashed other unionist leaders and ran his own party like a one-man band, has left Northern Ireland unionism led by a squad of petty political pygmies, to the detriment of all.

'I was rescued from the IRA that early' - Ian Paisley talks to Ian Jack

Why the Yes campaign has a lot in common with 'Chuggers'

Alex Massie, who I believed earlier last week had somewhat conceded one of the main arguments for independence, has written a really excellent piece in the Speccy.  I recommend anyone with an interest in Scotland's future read it.


Come in Britain, your time is up

Despite the fact that both the Yes and No campaigns have done their best to present this referendum as a battle between rival cost-benefit analyses, it is still – as it has always been – about the idea.

There’s always been a constituency for independence and it’s always been larger than many people imagine. Always. How often have you heard a variation on the theme of I like the idea but I’m no’ sure we could really do it? or Yes, in an ideal world and all other things being equal (but not, alas, in this world).

Even when the idea was ridiculous it was attractive, you see.

It reminded me of my days doing telephone charity fundraising.  The principles are the same: people like the idea of giving to charity, but often are reluctant to open their wallets.  What you need to do is give them a reason to do something they like the idea of doing anyway.  Voting Yes to independence is very much in the same vein.

'Yes' is gaining ground for precisely this reason.  As Douglas Alexander wrote the week before last in The Guardian, 'Scotland’s yes campaign has been based on emotion, not fact', which is precisely the 'No' campaign's problem.  When trying to get people to increase their giving level, you had to create an emotional hook, and create a space in which they could do something they liked the idea of doing, but which other factors inhibited them from initially agreeing to.  'Yes' has successfully created the emotional hook for Yes, and network effect is creating the space. That's why 'No' will not be able to regain the momentum.  I'm not yet convinced it will be enough to carry Yes over the line, but it is going to be very close even if they don't.

Will Scotland be pushed into what Quebecers call a 'neverendum'?

An Objective History of Slavery (or the persistence of liberal racism). Also, a dog running into the sea.

A few months ago, I was bowled over by an article by Ta-Nehisi Coates that enabled me to understand slavery and American history in a new light.  I was surprised at how little interest there was in the post, and wrote a follow up on that basis.  It was met with equal indifference.

I was somewhat worried that I was being hypersensitive, but my fears have been assuaged, somewhat, by a book review in yesterday's Economist, of Edward Baptist's The Half Has Never Been Told: Slavery and the Making of American Capitalism.  It was Coates who drew it to my attention on Twitter, and the review is really quite jaw-droppingly racist.

Anyway I just read a book about mass rape during war time. "Almost all the men were villains." Must not be history.
— Ta-Nehisi Coates (@tanehisicoates) September 4, 2014

Mind-boggling criticism of a book about slavery in the US South. pic.twitter.com/hjkjq2m7u6
— Matt Yglesias (@mattyglesias) September 4, 2014

The Economist apologized and withdrew the review, seemingly on the basis of the last line quoted above, but very little in the entire piece stands up to scrutiny.

That's right: slaves had a vested interest in making slavery sound, you know, worse than it was.  We need to be skeptical about the veracity of their testimony, and need to weigh it against the stories white slaveowners told about how well they looked after their slaves: "Jemima was practically a member of the family etc. etc."¡  One can only assume that we also need to take into account the rosy recollections of what anyone who has seen Quentin Tarantino's "Django" would know were called back then "house niggers": trusted slaves, who lived in the family home and part of whose job it was to ensure that the slaves did not escape¡

The ridiculousness of this assertion was highlighted by the fact that the picture used to illustrate the review was that of Patsey, Lupita Nyong'o's character in Twelve Years a Slave.  Anyone who has either seen the film or read the book will know that it was precisely because Patsey was the most valuable slave, that she suffered the most torture.  The entire critique is premised on the idea that if you treated slaves nicely they would not want their freedom.  For a magazine that supposedly subscribes to a liberal worldview it really is mindboggling.

Re-read, carefully, the concluding paragraph, ignoring the last two sentences.

unexamined factor

may have

surely

could have

Here we have someone writing a book review and picking holes in a very important historical work not on the basis of empirical evidence or research, but on the basis of casual racism and the fact that the idea that white people were to blame for slavery and without it the United States of America could never have come into existence makes the reviewer feel a bit uncomfortable.  The Economist clearly has some tightening to do in its editorial department.  And to answer the question I posed in my follow-up post mentioned above: yes, I think it is very clear that whites really do run scared of black history.

On the plus side, however, it spawned for a couple of hours #economistbookreviews on Twitter.

Nowhere in Mr. Dickens' account does he acknowledge the proprietor's generosity in providing orphans with factory work #EconomistBookReviews
— Katje (@silentkpants) September 4, 2014

Nobody even deigns to address the distinctly un-PC possibility that Josef K did it, and got what he deserved. #economistbookreviews
— Rebecca Schuman (@pankisseskafka) September 5, 2014

This account of the My Lai massacre is advocacy. The villagers are all victims, the US GIs who shot them all villains. #economistbookreviews
— David Corn (@DavidCornDC) September 5, 2014

"In her diary, young Ms Frank glorifies flagrant disregard for the law by her continued evasion of the authorities." #EconomistBookReviews
— Gibson Twist (@GibsonTwist) September 5, 2014

"All the passengers are portrayed as victims, and all the icebergs are portrayed as evil." #economistbookreviews
— Michael Schaub (@michaelschaub) September 4, 2014

#economistbookreviews Ultimately what dooms War and Peace to the remainder bin is its refusal to acknowledge Napoleon's gifts as a statesman
— Popehat (@Popehat) September 4, 2014

"The Famine focuses too much on potato blight and London's response. The Irish should've eaten less." #economistbookreviews @tanehisicoates
— Chris Connolly (@Cripipper) September 4, 2014

#economistbookreviews "The work, as its title suggest, focuses on Sophie's choice. But what about the choices the Nazis faced?"
— Popehat (@Popehat) September 4, 2014

@tanehisicoates Anne Frank's debut work would have benefited from a chapter or two detailing the German perspective. #economistbookreviews
— Aaron Rodriguez (@Arod95) September 4, 2014

And if even those haven't lightened your mood, here's a gratuitous video of a dog running into the ocean.

The Case For Scottish Independence by Alex Massie

I have largely kept off the topic of the Scottish independence referendum (or indyref, as it has become known), largely because I think it is for the people of Scotland alone to decide what's best for their country.  I'm not British, so the partition of that island into two separate countries doesn't have any emotional resonance for me, though I am from the UK, but I happen to feel that Scottish independence could be good, in the long run, for my wee part of the Kingdom.  That's not enough reason, though, for me to feel like I should try and persuade Scots to do something that might not be in their interests, just because it may be in mine.

(Quick thought experiment: Scotland votes Yes, but Dumfries & Galloway and the Scottish Borders vote No, and an armed militia demands their own separate devolved government remaining in the UK.  Should the British government: A) Establish a Parliament of Southern Scotland and exclude the area from an independent Scotland, or: B) Ensure that the democratic will of Scotland is respected...  Anyway, I digress...)

Slugger O'Toole had an interesting piece yesterday, provocatively entitled And so the “Oh F*cK” moment arrives for the No camp in the #IndyRef.  In it was a quote from a piece by Alex Massie,  a Scottish writer, broadcaster and unionist.

There is a sense, I think, in which many voters have tired of the endless statistical wrangling that’s supposed to predict – and prove! – the future one way or the other. If true, that’s a win for the Yes campaign since sidelining those concerns – particularly on the economy – opens a path to voters who quite like the idea of independence – the idea of Scotland! – but are nervous about how, or even whether, it might actually be accomplished.

From a Unionist perspective, it does not help that, in general, London has been useless. Even now Westminster seems more interested in the Clacton by-election than in the referendum that will decide the future stability and integrity of the United Kingdom. Viewed from North Britain, this seems desperately petty and small. There is, whether one likes it or not, a sense that perhaps they’re just not that into us. At the very least they appear to take us – and the result of the referendum – for granted. And this, naturally, cheers Yessers.

Then again, this can be a lose-lose situation for Unionists. London’s apparent indifference is galling but there are moments when you could be forgiven for thinking indifference is at least preferable to the ignorance – and indiscipline – shown by London-based politicians when they do speak about Scotland. Yes, Boris, that means you (though you are not the only guilty party).

Read those last two paragraphs again.  If the potential end of the United Kingdom isn't enough to grab London's attention, or at least distract it from the Clacton (yes, Clacton!) by-election, and convince it that it needs to pay more attention to Scotland, then I don't know what will.

Just as Antonin Scalia's withering dissent in United States v Windsor inadvertently handed victory to marriage equality supporters in federal courts across the United States, I think Alex Massie just made the best case for independence that I have see to date.

Wording of the Scottish Independence Referendum

I always thought the Scottish independence referendum question isn't worded very authentically. It should be:

Should Scotland be an independent country?

'Och aye, I suppose so'

or

'Naw, I wouldny be bothered'.