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Just Because We’re Natural Born Killers Does Not Mean We Are Not Good People

8:10 am in Uncategorized by Masoninblue

 

A caricature of George W. Bush as a chimpanzee in the jungle, holding scraps of the US

Some primates are still unredeemable.

The significance of the recent scientific study published in Nature, which found that chimpanzees are natural-born killers, is that killing has a genetic basis. They did not learn that behavior from humans or choose to be that way. They are genetically predisposed to kill because, via natural selection, that predisposition has resulted in a competitive advantage for scarce resources and reproduction compared to chimpanzees that do not have that predisposition.

We need only look to our own culture and past to realize that we have the same genetic predisposition.

The Boston Globe reports:

It can be tempting to take a dark view of the violent behavior of chimpanzees, but Joan Silk, a professor in the School of Human Evolution and Social Change at Arizona State University, said discovering the origins of human behaviors in other animals is not the same as learning our destiny.

‘How do animals resolve conflict is interesting,’ Silk said. ‘How do animals find out ways to cooperate? Those are general principles from which we can learn a lot, but it doesn’t mean we’re expecting them to be the same across species. I study baboons, and I love them dearly, but they do all kinds of things I think are sort of uncivilized. If they were my kids, I’d be very distressed.’

We are finally beginning to understand that human behavior has a genetic basis. That is, we are predisposed to act in certain ways, despite our race, ethnicity, language and culture.

A predisposition to kill when vital resources are scarce is a competitive advantage. In times of plenty, it’s a competitive disadvantage.

Empathy is a competitive advantage during times of scarcity because survival is enhanced by living in a peer-to-peer cooperative relationship with others.

Individuals cannot long survive unless they belong to a group and groups cannot survive without the informed consent and cooperation of their individual members.

Mutual respect and dignity promote harmony and cooperation in times of scarcity and plenty.

Greed and exploitation of others never do. They promote discord and ultimately cause chaos.

This is why living the Golden Rule and democracy are a better model for living than a corporation that exploits other people and the environment for profit and has no accountability for the harm it causes.

Survival of the fittest is not a law. It’s only a prediction of the outcome of a fight.

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Jury Selection: The Most Important Part of Michael Dunn’s Retrial

5:52 pm in Uncategorized by Masoninblue

An artist's drawing of a jury box with 12 jurors in it

“Jury selection will be the most important part of the Michael Dunn retrial.”

Jury selection will be the most important part of the Michael Dunn retrial, which is scheduled to start next Monday. To have any chance to convict Michael Dunn of murdering Jordan Davis, the prosecution must screen for, identify and exclude any prospective juror who believes that it’s reasonable to assume that:

  1. a black 16 to 21-year-old male who likes to listen to loud rap music is an angry thug;
  2. a black 16 to 21-year-old male who lips off at an adult white male who orders him to turn down the volume is an angry thug;
  3. a black 16 to 21-year-old male who cranks up the volume after being ordered to turn it down is an angry thug;
  4. it’s reasonable for an adult white male to assume that an angry black thug who confronts him is armed and intends to kill or seriously hurt him; and
  5. it’s reasonably necessary for an adult white male to use deadly force in self-defense to prevent an angry black thug from killing or seriously injuring him.

The best way to determine if any prospective jurors hold these views is to ask them a series of hypothetical questions to discover if they fear black 16 to 21-year-old males.

For example, if you were walking down a sidewalk by yourself and saw a black 16 to 21-year-old male walking toward you, would you,

  • continue walking toward him and ignore him;
  • continue walking toward him and greet him;
  • cross the street and walk down the other side; or
  • turn around and walk the other way?

The use of hypothetical questions is the best way to uncover racial prejudice.

Can you think of any other hypothetical questions that you might ask during voir dire?

Finally, if you were a prosecutor, would you rather try this case to a judge according to the procedure followed in South Africa?

Would your answer change, if you were defense counsel?

The most important disputed questions of fact in the case are whether Jordan Davis was armed or had something that looked like a weapon in his hands, and if he was attempting to get out of the back seat of the SUV when Dunn squeezed off multiple shots at him.

FYI: Judge Healey denied a defense motion for a change of venue, preferring to take a wait-and-see approach to see if the extensive publicity about the shooting and the first trial has made it impossible to seat a twelve-person jury that can fairly and impartially decide the case (i.e., jurors have already formed an opinion about what the outcome should be). Once chosen, the jury will be sequestered.

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Reeva Steenkamp: To the living we owe respect but to the dead we owe only the truth

12:28 pm in Uncategorized by Masoninblue

Saturday, September 13, 2014

Good afternoon:

A Pistorius-ügy - mi történt valójában?

Reeva Steenkamp & Oscar Pistorius

The Guardian is reporting today:

The parents of Reeva Steenkamp expressed anger and disbelief on Friday after Oscar Pistorius was formally acquitted of their daughter’s murder, insisting: “Justice was not served.”

Amid growing discontent in South Africa at the verdict, the Steenkamps criticised judge Thokozile Masipa for being too lenient on the athlete, who was instead convicted of culpable homicide, the South African equivalent of manslaughter, and granted bail.

“This verdict is not justice for Reeva,” her mother, June Steenkamp, told NBC News. “I just want the truth.”

I agree.

Yesterday, I identified the core weakness in Judge Masipa’s decision acquitting Oscar Pistorius of murder and convicting him of culpable (manslaughter) homicide.

Under South African law, however, a judge cannot base a verdict on circumstantial evidence alone unless no inference except guilt can reasonably be drawn from it.

Her conclusion makes sense when viewed through the prism of the legal rules that she applied. However, it makes no sense to be forced into accepting a liar’s statement about his knowledge and intent when it is contrary to common experience and he has a powerful motive to lie.

I did not believe Oscar Pistorius because he lied during much of his testimony and I do not believe his story about shooting into the cubicle without making certain she was not there. He should not benefit because he killed the only witness who could contradict him.

1. The door to the cubicle was locked;

2. She had her phone with her;

3. Her bladder was empty;

4. There was no urine in the toilet bowl; and

5. Pistorius never mentioned hearing the toilet flush.

That’s all the circumstantial evidence that I need to confirm my belief that he lied.

“To the living we owe respect, but to the dead we owe only the truth.”

Voltaire
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Pistorius Guilty of Manslaughter and Unlawful Discharge of a Firearm in Public

3:37 am in Uncategorized by Masoninblue

A gavel

Pistorius is guilty of culpable homicide.

Judge Masipa found Oscar Pistorius guilty of culpable homicide, which we call manslaughter, and guilty of unlawful discharge of a firearm in public for shooting a gun in a restaurant. She found him not guilty of unlawfully discharging a firearm through the sunroof of a vehicle and not guilty of unlawful possession of ammunition.

This case is more about the presumption of innocence and the absence of evidence, rather than the evidence that was presented at trial. When all is said and done, Pistorius fired 4 shots through a locked door into a toilet cubicle that was not much bigger than a stall in a public bathroom.
He testified that he believed that an intruder was in the cubicle and he fired his gun in self-defense believing he was in imminent danger of death or serious injury.

In other words, he admitted committing the acts that caused Reeva Steenkamp’s death. The disputed issues concerned his knowledge and intent.

Did he really believe an intruder was in the cubicle or did know she was in there?

Did he intend to kill the person when he fired the shots?

As Judge Masipa pointed out, there was no evidence that Pistorius had physically abused or threatened Steenkamp or any other woman in the past and there was no evidence that any serious problems existed in their relationship.

No direct evidence contradicted what he said about his knowledge and intent when he fired the shots, although the prosecutor caught him in many inconsistencies and lies during cross examination.

Even though he lied about other matters and his story about an intruder did not make any sense, Judge Masipa was unwilling to conclude that he knew she was in the cubicle and he intended to kill her when he fired the shots.

Notwithstanding his lame story and his strong motive to lie about the shooting, she concluded instead that the prosecution failed to overcome the presumption of innocence regarding his knowledge and intent by proof beyond a reasonable doubt.

There is a legal presumption that a person intends the natural and probable consequences of his acts. However, this presumption cannot substitute for actual evidence and overcome the presumption of innocence.

Circumstantial evidence is a form of evidence that can be more powerful than direct evidence, depending on the circumstances.

Under South African law, however, a judge cannot base a verdict on circumstantial evidence alone unless no inference except guilt can reasonably be drawn from it.

Her conclusion makes sense when viewed through the prism of the legal rules that she applied. However, it makes no sense to be forced into accepting a liar’s statement about his knowledge and intent when it is contrary to common experience and he has a powerful motive to lie.

That’s the core weakness of her decision.

As I said yesterday,

Keep in mind that there is a difference between forming an opinion about what really happened and deciding whether the state overcame the presumption of innocence by proof beyond a reasonable doubt.

That difference is a key to understanding this verdict.

Also key to understanding her verdict is the South African rule that a verdict may not be based on circumstantial evidence alone unless the evidence is inconsistent with any other conclusion.

That used to be the rule in most jurisdictions in the US but has gradually been rejected as a comment on the evidence, which is forbidden by most state constitutions.

Instead, most instructions tell the jury that evidence is either direct or circumstantial and one is not necessarily better or more reliable than the other. It’s up to the jury to decide how much weight to assign to the evidence.

I think he probably is looking at a total sentence for the two offenses of somewhere between 8-12 years.

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Judge Masipa Finds Oscar Pistorius Not Guilty of Premeditated Murder

3:16 am in Uncategorized by Masoninblue

A gavel

Though cleared by the judge of murder, Pistorius will likely face a lesser charge.

Judge Masipa has been summarizing the evidence in a manner that suggests she may conclude that Oscar Pistorius is guilty of culpable (i.e., negligent) homicide, which is punishable by a sentence of up to 15 years in prison.

I base my prediction on the following comments, as reported by The Guardian:

1. Judge accepts defence timeline of events and rejects neighbours’ evidence.

2. It ‘makes sense’ that screaming was Pistorius, not Steenkamp.

After finding that Pistorius “was a very poor witness,” she warned that “an assumption that because an accused is untruthful, he must be guilty, “must be guarded against.”

Masipa says Steenkamp was killed under “peculiar circumstances” that do not make sense. Why did Pistorius not check where she was before making his way to the bathroom? Why did Steenkamp not call the police, as Pistorius said he shouted to her to do, as she had her cellphone with her in the toilet?

Why did Steenkamp not hear him shout “at the top of his voice” for the intruder to get out of his house?

Unfortunately, these issues remain an issue of conjecture, the judge says.

Masipa says Pistorius was “not truthful” about his intention when arming himself with a loaded gun before approaching the bathroom. This doesn’t necessarily mean he is guilty, she adds.

On the count of premeditated murder, the judge says the evidence is “purely circumstantial”.

She says the state failed to prove that Pistorius is guilty of premeditated murder.

She says there is no doubt that when the accused fired shots at the door he acted unlawfully (this statement suggests she’s going to find him guilty of culpable homicide).

Masipa says evidence does not support the state’s case that this was dolus eventualis (he must have known he was likely to kill the person by firing). He believed Steenkamp was in the bedroom. Pistorius’ account of this has remained consistent since the night of the shooting. It is “highly improbable the accused would have made this up so quickly”.

The question, she says, now is whether Pistorius proceeded “recklessly”, with reasonable foresight that the person behind the door would be killed?

She says the answer has to be no.

May the record reflect that there were audible gasps in the courtroom.

On that happy note, she recesses for lunch after ruling out premeditated and intentional murder.

Looks like she may find him guilty of culpable homicide.

Pins-and-needles time.

Photo by Keith Burtis released under a Creative Commons license.

Over Easy: Whither Thou Goest Oscar Pistorius

3:47 am in Uncategorized by Masoninblue

3 dimensional walk-through of Pistorius bedroom/bathroom

Good morning:

Crane-Station’s efforts to resuscitate her computer have been unsuccessful so I am subbing for her today.

Tomorrow morning at 3:30 am EDT, Judge Thokozile Masipa will announce her decision in the Oscar Pistorius case. He is the famous disabled South African paralympian known as the Blade Runner. An audience of millions will be watching.

Both legs were amputated below the knees when he was 11 months old because he was born with detached fibia and tibula bones. He competed by wearing a curved metal prosthesis that functioned like a spring permitting him to compete against the fastest sprinters in the world. He won a gold medal in the 100 meter sprint at the paralympics and barely missed qualifying for the 100 meter final in the Olympics.

Pistorius is accused of murdering his girlfriend, Reeva Steenkamp, by shooting her to death through the locked door of the toilet cubicle that is next to the bathroom in his upstairs master bedroom suite.

His home was located in a gated community protected by a 24/7 security staff.

Steenkamp was a lawyer, model and actor who was on the verge of international fame and fortune with her role in a South African reality show.

They were a beautiful couple supposedly involved in a fairytale romance that ended with four gunshots through a locked toilet door on Valentine’s Day last year.

Pistorius testified at trial that after he and Steenkamp went to bed around 10 pm, he was awakened around 3:30 am by the sound of the bathroom window opening. He said he thought that an intruder had entered the bathroom by climbing a ladder. He grabbed his gun and without putting on his regular everyday prosthesis he proceeded down a short hallway on his stumps to the entrance to the bathroom. After hearing a sound like someone bumped the magazine rack in the toilet stall, he fired his gun four times through the door.

When he returned to the bedroom, he discovered that Steenkamp was not in bed and only then realized that she might have been in the toilet stall.

Steenkamp was hit three times. First, in the hip. Second in the arm and chest. Third, in the forehead. He was using an especially deadly form of ammunition that releases little metal hooks tucked into the side of the bullet that pop out as the bullet spins out of the muzzle of the gun.

She could not have survived the wounds to her hip and head.

The prosecution’s theory of the case was that she locked herself in the toilet stall with her cell phone during an argument with Pistorius. He lost his temper and shot her to death through the locked door.

Several neighbors, including a woman who lived next door, testified that they heard loud voices and a woman’s terrified screams followed by four shots. She said she awakened to the screams and looked out her bedroom window at Pistorius’s bathroom window and noticed that the light was on.

He testified that it was off when he fired the shots. Like George Zimmerman before him, he claimed that the neighbor heard him screaming, not Steencamp.

He claimed she never said anything and he admitted that he did not call out to her to make sure she was not in the toilet before he fired his gun.

The medical examiner testified that Steencamp had consumed a stir fry meal approximately an hour and a half before the shooting, based on an analysis of her stomach contents.

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Update for Crane-Station and Mason

8:07 am in Uncategorized by Masoninblue

Sunday, September 7, 2014

Good morning:

Crane-Station and I were hacked rendering our computers inoperable. Our place was burglarized, our property vandalized and stolen. Our bank account was breached and money stolen.

Our lives were threatened.

We left Kentucky in a hurry to avoid a worse fate.

I have kind of, sort of, gotten my computer to work but still have problems.

Crane is planning on posting her Over Easy segment on Wednesday.

I am still unable to access my site and would appreciate it if someone would go there and post a comment advising my readers about the situation.

http://frederickleatherman.com/2014/08/27/open-thread-discussion-8272014/

Thank you,

Fred

#Ferguson: Darren Wilson’s prearrest silence may be admissible

10:36 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Saturday, August 23, 2014

Good afternoon:

BettyKath asked the following question in the comments to yesterday’s post, Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses.
05a.StopOpenSeason.WhiteHouse.WDC.13August2014

Didn’t the Supreme Court rule that maintaining silence before the Miranda warning, i.e. before being arrested, can be interpreted as a sign of guilt?

This is an excellent question regarding the admissibility of prearrest silence and my answer is the subject of today’s blog.

Yes, prearrest silence can be interpreted as evidence of guilt unless the suspect/defendant specifically invokes his fifth amendment right to remain silent. In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant did not report the killing to the police until he turned himself in to police two weeks later. He told them that he stabbed the victim to death in self-defense. At trial, the prosecutor cross examined him regarding his failure to report the killing and to claim self-defense when it happened. He also commented on his silence in closing argument claiming that it was evidence of guilt.

The Supreme Court of the United States (SCOTUS) affirmed his conviction rejecting his argument that the comments on his prearrest silence violated his fifth amendment right to remain silent. The Court held that his silence was admissible because a defendant must expressly claim his right to remain silent for it to apply.

See also Salinas v. Texas, 133 S. Ct. 2174 (2013).

Pursuant to Jenkins and Salinas, Wilson’s failure to fill out the incident report (i.e., his silence) will be admissible against him at trial unless he expressly refused to do so citing his fifth amendment right to remain silent.

Apparently, he did not do that because the cover sheet is filled out, but the section where his narrative report should be is blank.

If he orally invoked his right to remain silent when he turned in his blank incident report, his prearrest silence will not be admissible.

In any event, the prosecutor doesn’t have to comment on Wilson’s silence to get an indictment because, as I stated yesterday, he can obtain it by merely calling the eyewitnesses and presenting the autopsy report.

Although Wilson’s prearrest silence will not be admissible at trial, assuming he expressly invoked his right to remain silent, we also have to consider whether his oral statements to others that he shot in self-defense will be admissible.

No, they are not admissible because they constitute inadmissible self-serving hearsay.

That leaves Darren Wilson between a rock and a hard place.

He must testify in order to get his ‘bum-rush’ defense into evidence and a self-defense instruction. However, if he testifies, none of the eyewitnesses saw a ‘bum rush’ and if he tells a different story, he can be confronted with his ‘bum rush’ story.

Not an enviable situation to be in even with $225,000 in donations for his defense.
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Should we tolerate shooting through locked doors in self-defense

9:03 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Friday, August 1, 2014

Good morning:

A Pistorius-ügy - mi történt valójában?

Reeva Steenkamp and Oscar Pistorius

With the Theodore Wafer trial on hold until Monday at 9:00 am, we return our attention to Oscar Pistorius.

You Magazine is reporting that he sold his house for R4.5 million ($420,000) to pay his escalating legal bills. The buyer is Louwtjie Louwrens, a Boksburg mining consultant who plans to rent it out.

Prosecution and defense have submitted their written closing arguments and Judge Thokozile Masipa has set aside Thursday and Friday next week for their oral summations.

We are fortunate to have the opportunity to witness a conjunction of two media intensive criminal cases that present the same issue:

Whether a person can justifiably kill another person in self-defense when that other person is on the other side of a locked door.

In the Pistorius case, the other person was his girlfriend, Reeva Steenkamp. Pistorius claims that he mistook her for an intruder after he was awakened by the sound of the bathroom window opening and the door to the toilet cubicle closing.

In the Wafer case, the other person was Renisha McBride, an intoxicated 19-year-old girl who had crashed her car into a parked car about 1 mile from Wafer’s house and walked away from the scene of the accident dazed and bleeding approximately 3 hours earlier. Wafer was awakened by McBride banging on his door. He unlocked and opened his inner front door and fired his shotgun through his locked outer screen door. Wafer first claimed that the gun fired accidentally and later switched to self-defense.

Neither Pistorius nor Wafer said anything to the person on the other side of the door before shooting.

In the Pistorius case, the prosecution claims Pistorius killed Steenkamp in a rage after she locked herself in the toilet cubicle to get away from him during an argument. Then he lied about it to escape responsibility for killing her.

The law of self-defense is similar in both cases. A person may justifiably use deadly force in self-defense, if they reasonably believe they are in imminent danger of death or serious injury.

The word “reasonable” in both cases refers to whether a reasonable person in the same situation as the shooter would have believed he was in imminent danger of death or serious injury.

In both cases, a locked door separated the victim from the shooter. The situation differs in that the victim in the Pistorius shooting could unlock the door whereas the victim in the Wafer shooting could not.

Both victims were unarmed.

Race is a probable factor in the Wafer case. He is white and she was black. Many people believe, myself included, that he would not have feared imminent death or serious injury, if she had been white.

South Africa does not have jury trials. Judge Theokile Masipa will decide the case assisted by her two assessors who can overrule her verdict, if they disagree with her conclusion.

The 12-person jury will decide whether Wafer is guilty or not guilty.

Join us in the comments below and let us know whether you believe we should tolerate shooting through locked doors in self-defense.
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Over Easy: #TheodoreWafer Will Have to Testify During Defense Case

4:14 am in Uncategorized by Masoninblue

A gavel

Wafer will be forced to testify about the death of Renisha McBride.

I will be covering for Crane today. T am updating you on the Theodore Wafer trial

There is no live stream coverage.

For reasons that follow, I believe defense motions to dismiss the charges in the Theodore Wafer trial, after the prosecution rests, will be denied and he will have to testify during the defense case.

The prosecution might conclude its case-in-chief late today, although tomorrow is more likely. I say this because the standard operating procedure for presenting evidence in a murder trial is to close with the medical examiner’s testimony. I see no reason for the prosecution to vary from that practice.

We teach trial lawyers to finish their case with a knockout punch and the best way to do that in a murder trial is to call the medical examiner.

The medical examiner’s opinion regarding cause of death must be based on the evidence obtained during the autopsy. Graphic color photos taken during each step of the autopsy are used to document what the medical examiner did in order to establish the necessary foundation for the opinion regarding cause of death.

Autopsy photographs are gruesome and difficult to look at because of the injuries displayed with their associated trauma. People who have have never seen a dead body are usually traumatized when they look at autopsy photos because a violent death, as opposed to a cleaned-up cinematic version of death presented in film, is graphic, shocking and disturbing. The emotional storm triggered by viewing autopsy photos can be upsetting and difficult to forget.

After the prosecution rests, Judge Hathaway will send the jury to the jury room so that she can hear argument from counsel regarding what I have previously described as a defense “halftime motion” to dismiss the charges. We use the word halftime to describe it because the defense raises it after the prosecution rests and before the defense presents its case.

This motion is a standard practice, regardless of the strength of the prosecution’s case, because a failure to raise it at that time precludes a challenge to the sufficiency of the evidence at a later time. The motion is rarely granted because the prosecution need only have presented some evidence that, if assumed to be true together with all of the reasonable inferences that flow from it, would be enough to support a verdict of guilty. In other words, the motion raises a threshold question by asking the judge to decide if enough evidence has been admitted in support of a particular charge to allow the jury to consider and decide whether the defendant is guilty or not guilty of that charge.

Much of the witness testimony and evidence admitted in the case so far is not very helpful in determining whether Wafer is guilty or not guilty. For example, I do not believe McBride’s intoxication and conduct banging on doors is helpful to deciding Wafer’s guilt or innocence because, if we assume for the sake of argument that it was so loud that everyone in the City of Detroit was awakened by it, Wafer’s use of deadly force would still not be justified.

Why?

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