State's Appeal Against Pistorius Murder Acquittal Allowed

In a welcome move, at least for those of us who had serious concerns about how Judge Masipa dealt with dolus eventualis in the Oscar Pistorius judgment (see my previous blog post on the matter here), Judge Masipa has permitted the State's appeal, which will now be heard in front of the South African Supreme Court.

To recap, in a nutshell, without making it clear in her judgment why and on what grounds, Masipa J. had to have accepted that Oscar Pistorius did not foresee that firing four bullets through a closed toilet door risked causing the death of the person behind the door. You don't have to be a lawyer to see the problem with that (though the lawyers out there may note that the State got a lucky break that the Honourable Judge didn't explain her reasoning fully in the original judgment, for if she had perversity could well have been the only avenue available for the appeal, and that is a very difficult bar to get over. As it is, Masipa J. accepted that it is a point of law as to whether she correctly applied the principle of dolus eventualis to the facts.)

The Guardian's liveblog of the original judgment had a useful explanation of what happened:

Read the State's grounds for appeal below.

  State papers for Oscar Pistorius sentencing appeal by eNCA.com

Eric Garner and Mike Brown: the problem is the system

I am so frustrated by what has happened that I have found it difficult to take a step back and write a measured blog post about it, and instead have been engaging in debates/arguments on Facebook. I still haven't coalesced all my thoughts, so instead am just going to flag a point I made in response to someone on Facebook, which somewhat gets to the core of my thoughts on this troubling issue.

It is impossible, in my mind at least, to say "I am on one side on Mike Brown and the other side with Eric Garner", because in both cases the problem is the same: a District Attorney is so scared of pissing off the police union that he chooses not to pursue criminal charges against a police officer, even if he does go through the pantomime of pretending to do so. In both cases (we know in Ferguson, and we can assume in Staten Island), the prosecutor bent over backwards to avoid having the issue go to a full, public, trial, during which the testimony and evidence would be tested at length. By subverting and perverting the grand jury process Bob McCullough also further undermined African Americans' faith in the justice system. The son of a cop who was shot, he refused to recuse himself, but had neither the balls to take a decision not to press for an indictment nor leave the question of guilt or innocence to a jury in a trial. It's almost as if both DAs were scared of what the outcome might be, and intentional or not, the end result is that cops in America have become judge, jury, and executioner. That's not a democracy, that's a police state.

12/10/14 UPDATE:

The New York Times has a good piece expanding, in rather more measured terms, the point I was making above:

Grand Jury System, With Exceptions, Favors the Police in Fatalities