22 October 2014

Oscar – the long-awaited verdict

Oscar’s received a lenient sentence, and with good behaviour, could be out of jail and back in the mansion in less than a year. CyberShrink comments.


Extremely lucky

Oscar’s been extremely lucky yet again. After escaping a murder sentence through what many lawyers consider a misinterpretation and misapplication of the law, he’s received a really lenient sentence, and with good behaviour, could be out of jail and back in the mansion in less than a year. Roux’s been extremely lucky, too, having presented a confused and confusing case with dreadful witnesses, he’s won a far better result than the case deserved.

The judge opened with a long explanation of the great difficulty of deciding on a sentence – apparently anticipating much controversy. The state really should appeal the verdict, and, indeed, the subsequent sentence. Many lawyers believe she made several very significant mistakes, such as dismissing the charge of having ammunition without license, and especially in an odd interpretation of the peculiar “dolus eventualis” concept in South African law, which is now so confusing that it shouldn’t be applied at all.

Read: Do more gun laws mean fewer gun deaths?

There’s an urgent need for the highest court to sort this out and correct her if it finds she erred by changing the sentence to one of murder – with an appropriate sentence –  and making the murky and absurd principle clear and workable.

Fortunately she rejected the pleas to sentence him to “Monty Python’s Comfy Chair” punishment.  No amount of assertion by the defence that house arrest in a mansion is a terribly cruel punishment, could ever convince anyone (but throw in a session with Ms Vergeer twice a week and we’ll talk again).

Hand-holding therapy

It was reported that before the judge entered court, Ms Harzenburg was sitting beside Oscar, holding his hand. This is not orthodox behaviour, nor does it form part of normal trauma therapy. This sort of infantilizing of Oscar could actually do real harm. The persistent hysterical exaggeration of his vulnerability, disability and incapacity throughout the trial is harmful behaviour. This is a man who was extremely tough and capable, a fierce competitor who didn’t need anyone to stroke his hand before a major race. If you treat him like a broken man, you could make it come true. Treated with respect as an adult, expected to shoulder responsibility, he’ll make a far better and stronger recovery,

Similarly his defenders kept alluding to his massive physical and psychological needs, without ever being convincing or specific about what was needed. Its enormity was to be assumed, without question, and expected to rule out anything but special soft cushion treatment and sentencing. The judge wisely criticised the “over-emphasis” on his vulnerability, while ignoring his proven coping skills. His main contribution to society lay in changing public perceptions of disability and inspiring young disabled people – achievements seriously damaged by his whimpering defence.

Read: An Oscar-winning performance

Judge Masipa mentioned that Roux had referred her to “many cases, none on point”, and neatly reviewed the two key cases he’d offered as proof that probation was essential, deftly highlighting their lack of relevance to this case.

Vergeer needs to disappear

Easily overlooked, another serious verdict was delivered. Delightfully and appropriately, judge Masipa was blisteringly critical of the “evidence” of Ms Vergeer. She’s sitting pretty, with a job at the Department of Correctional Services, and a thriving business on the side, testifying as an “expert” witness in many high profile cases. 

Her report was disgracefully sloppy, out-of-date and inaccurate. An expert is expected to deliver their report to the lawyers who requested it before their day in court. If that was the case, it’s hard to imagine how and why Roux could have accepted the report or allowed it to be presented in court. If mere correctional supervision were ever a possibility, Vergeer’s report killed it stone dead.

Read: What the world thinks of Oscar's sentence

I can’t see how she could be of value in any other cases after this. If ever she appears in court again, any lawyer worth his salt would both challenge her status as an expert witness, and to remind the new court of how thoroughly and emphatically her opinion had been nullified by this court. She was denounced as slapdash and disappointing, and the court expressed a lack of confidence in her opinions. Now would be a good time for her to take up gardening or knitting.

On behalf of the old and ugly

I’m a bit puzzled at how the judge and others, commenting on the tragic loss of Reeva, constantly refer to her being pretty, young and vivacious. As someone who cannot be accused of possessing any of those qualities, I’m concerned. Is it somehow less tragic if the victim is ugly, old and past their prime?  

Can I also call for a moratorium on some grossly over-used clichés? Please stop saying that no sentence can bring Reeva back. Only the severely psychotic could ever imagine that it would. But her inability to return doesn’t make it pointless to severely sentence her killer. Stop using the term “innocent until proved guilty” until you understand what it means. Explain to an awaiting trial prisoner, crammed into an over-crowded cell, and waiting months and even years for a trial, how it applies to him. Too often it’s used to stop any intelligent discussion of the evidence in a trial. Such banal platitudes may be true, but not always useful.

Oscar's alarming array of ‘experts’

Confusing terminology

I wish courts would be honest and accurate in naming the sentences they impose.  Here, for instance, the headline is “Oscar gets Five Years”, but could be eligible for parole in 10 months. Why is it called a “Life Sentence” when hardly anyone actually serves life? If a lesser period of imprisonment is considered fine, then sentence the accused to 15 years, and make sure it is actually 15 years, otherwise the numbers are only a worst case scenario. The man convicted of killing Shrien Dewani’s wife, who died in jail of a brain tumour, is the first man I can remember who in actual fact served a life sentence for murder.

Uncle Pistorius held a typically brief and controlling press conference after the verdict, which was interesting if not convincing. Notice how he always tries to control the media, expecting them to pay attention, accept whatever he says without questions and then leave quietly. He indicated that the family had accepted the verdict and that the public should do the same. This may indicate that they don’t intend to appeal, as to do so might open a possible review of verdict and sentence, not necessarily in their favour . . .

Read more:

Is Oscar really a ‘broken man’?
Oscar has never shown any real remorse
Who’s on trial, Oscar or SA's prisons?

Image: Scales of justice from Shutterstock

Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.




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