Has Judge Greenland Become Persona Non Grata?

One of the most vocal critics of Oscar Pistorius’ culpable homicide verdict has always been retired High Court Judge, Chris Greenland.  Not only has Judge Greenland been a regular legal pundit on Carte Blanche, he’s also become a Facebook and Twitter friend to many who follow the Oscar case.  He’s been generous with his time and opinions.  Speaking personally, I’ve had the opportunity to Skype and Whatsapp with him on several occasions and have always enjoyed our conversations.

Now, three weeks prior to Oscar learning his sentence [on July 6th], the tide has suddenly changed.  And oh, the seas are rough.  People have unfriended him in droves.  They’ve chastised him across social media.  The reaction to his most recent public comments has been harsh, yet completely understandable.

Judge Greenland told Carte Blanche:  mansion

“The sentence that I would impose is one of 15 years house arrest where house arrest means, house imprisonment.  In other words, no liberties except liberties within his home environment.  Coupled with 15 years of community service.”

WTF?

He further explained on his Facebook page:

“…that way he [Oscar] would be in prison without being brutalized and have a chance at rehabilitation, society would benefit, the offence is not trivialized and good is done in Reeva’s name.”

Nick and I do not subscribe to the notion of leniency in sentencing for rehabilitation purposes when it comes to murder.  So 15 years house arrest is not something we support. We feel strongly Oscar needs to go to prison.  There is the flip side of the conversation though, and that’s addressing the reality of law.

Judge Greenland laid out 19 points on his Facebook page explaining why he would give house arrest.  We’ll address those details in our upcoming narrative WHITE HORSE.  Here’s the problem.  The Court [Judge Masipa] found that Oscar didn’t intend to kill Reeva.  Not only that, he didn’t intend to kill the intruder either [although he could foresee that possibility, and decided to act anyway, which was the cause for the reversal of his verdict.]  Oscar just shot off 4 bullets like a jackass with apparently no intention at all in the eyes of Masipa.  Because that’s kinda sorta reckless, Masipa slapped him with a culpable homicide conviction.  Yes, those are the shitty “facts” of this case.   So what does a judge do?  Do they now issue the appropriate sentence based on their findings, or issue one based on the new verdict alone?

What Judge Greenland is doing is providing a purely legalistic view of what he believes Masipa 2should be done based on the letter of the law, not based on what we all believe the findings should have been.  He believes, like most of us, this should have been a Dolus Directus conviction and Oscar should be in prison.  But something important to remember, the conviction of Dolus Eventualis does not change the original findings.  Sadly, they will always remain.

Interestingly enough, Judge Greenland and I just talked about this topic last month when I asked him if he felt trial by judge was generally better than trial by jury.  He believes trial by judge is best, but he did speak frankly that it frustrated him at times when he’d have to acquit an accused that he felt was guilty because of some narrow law.  With juries, even though they have instructions too, they’re more inclined to convict if a person is clearly guilty, regardless of what the law says.

There are a few points here for us to debate:

  1.  Taking into consideration the Court’s findings, and forgetting your own personal opinions of what you believe really happened, is Judge Greenland’s suggested sentence reasonable for this crime?
  2. By sharing his opinion publicly, Judge Greenland runs the risk of Judge Masipa listening and being influenced by his opinion.  Should he have shared it publicy or kept it to himself?
  3. Finally, how much weight should a family’s wishes be considered, above and beyond the narrow letter of the law, when delivering a sentence?

“He has to pay for his crime.” – Barry Steenkamp

Steenkamps

 

 

 

 

 

 

 

 

 

 

 

10 thoughts on “Has Judge Greenland Become Persona Non Grata?

  1. It’s obviously a travesty of justice that whatever sentence Oscar serves will be for the murder of an intruder; iow not Reeva. That’s according to the letter of the law. Our narratives have definitively and I think convincingly demonstrated why Oscar probably did murder Reeva not only intentionally, but in a premeditated fashion. Unfortunately the law has funnelled the case into it’s own narrow confines, which is why legal practitioners [lawyers and the judge] must operate within the legalities. Neverthess, many of us [including myself] are hopeful for discretion, intelligence and integrity from the legal profession. In the OJ Simpson case although acquitted of double murder, he was later convicted of burglary under aggravating circumstances and was sentenced to 30 years in jail. Everyone knows the sentencing of the second crime was really “payback” for the first, and OJ’s acquittal by a black jury, was also payback from a black jury who saw the bad guy as the LAPD [the same LAPD who two years earlier had beaten up Rodney King and gotten away with it].
    The legal system shouldn’t be about games, loopholes and payback. Surprise, surprise – it is. If we expect the legal system to be just we’re fooling ourselves. But that doesn’t mean we ought not to complain about it when it is. There is after all the court of public opinion, which is less lenient than the justice system – especially to murdering celebrities.

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    • “It’s obviously a travesty of justice that whatever sentence Oscar serves will be for the murder of an intruder; iow not Reeva.”

      For me this logic doesn’t really take us anywhere.

      Justice Leach agreed with Nel’s submissions on this point. The case must now be approached on the basis that the State’s case of direct/premeditated murder during a domestic incident was unproven.

      It’s vanilla murder if you like – and the person murdered was Reeva Steenkamp – per the indictment.

      So 15 years.

      Should Oscar now get a discount for allegedly murdering the wrong person?

      And even if the intruder point was proved, per the SCA, we don’t know why he fired. So fear/terror cannot be used as mitigating points on pulling the trigger as this simply was not proven at trial!

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  2. Hi Lisa

    I was also puzzled by Judge Greenland’s comments, as his summary of the Court findings did not appear to be correct.

    Justice Leach, in delivering his unanimous judgement, laid out some clear findings which are binding on the lower Court. In particular the SCA made inferences which are mixed questions of fact and law and thus not out of bounds for the SCA.

    The SCA held:

    1. OP did not know who was behind the door
    2. OP did not know whether that person in fact constituted any threat to him
    3. Even if frightened, he had no honest/genuine/rational fear for his life
    4. OP did not establish at least a factual foundation for his alleged genuine belief of an imminent attack.
    5. The accused never offered an acceptable explanation for why he fired.

    So turning to Judge Greenland and the “shitty facts” ….

    The point of departure is 15 years.

    Onus is on the defence to show compelling reasons for a discount.

    But what mitigation can there be?

    A) Oscar DID intend to kill the person behind the door (indirect intention). DE is not murder light. Does the fact that he murdered the wrong person get him a discount? Why?

    B) We don’t know why he fired (per SCA). Therefore the excuse that he fired because he was frightened was not proven! This cannot mitigate!

    C) He held no honest/genuine fear for his life. Therefore again the intruder provides no mitigation.

    Roux’s argument effectively boils down to arguing that Oscar accidentally murdered the wrong person therefore he should get a discount on sentence!

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  3. I thinks he has lost the plot. Responses on Facebook were largely critical. Yes there were some unwarranted personal comments and misunderstandings but even contributors who politely disagreed were lumped into the category of ‘howling mob’ and/or legal buffoon.
    I am unsure what has prompted this volte face. Judge Greenland has previously stated that not only should justice be done it should be seen to be done. With this in mind house arrest can never be an appropriate sentence for murder. In Oscar’s case this would mean living in luxury albeit with curtailed liberties. Rehabilitation can take place in prison as it has done previously. By the way what category of criminal does Judge Greenland feel should be “brutalised” in prison?
    Given the sentencing guidelines the starting point is 15 years in prison with potential for adjustment for mitigation/aggravation. I saw precious little evidence of mitigation at the sentencing hearing. There has been no remorse shown and both courts have found Oscar to have been an unreliable witness to put it kindly.Given the discretion available to the judge in sentencing I was surprised by Judge Greenlands view of an ‘ideal’ sentence and yes I feel it irresponsible to have given voice to such a lenient option. Both the victim and her family have been largely overlooked by the judicial process. The focus has been on Oscar, on his needs and requirements. The sentence is an opportunity to redress the balance in this regard and to demonstrate more widely that justice applies to all equally.

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  4. The authors immediately discredit themselves by saying that I was “unfriended in droves”.
    This is brazen mendacity and regrettably serves to undermine their credibility as a starting point.
    I have remained on the maximum of 5,000 friends on Face Book, with 99 friend requests as a constant.
    Certainly there were many who were even upset at my stance which they percieved as a reversal of my previous stances.
    However most understod my explanation of the REALITIES of the current situation that render just about all our personal perceptions, opinions, beliefs and suppositions irrelevent.
    On the facts, as found by the Courts, I stand by my stance as to the ideal sentence indicated.
    This is because, on those facts, his moral blame worthiness reposes in him not waiting to see/confirm who was behind the door, a choice that could have cost him his life had there been a real intruder, constrained by the reality that the law makes no distinction between what you imagine and reality.

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    • Please revisit the title of this post, as well as the end of it. This was intended to be a discussion about what happened on social media – what was said, the reactions, and people’s opinions about it.

      I wrote this, as I do all my blogs, from my point of view. You weren’t privy to all I saw when this initially happened, and I stand by my statement that people were leaving in droves – that’s what I saw & experienced on my end. If you have a different perspective, so be it.

      I think you missed the part where I express that although I was surprised and had issues with some of what was said, I can accept yours are legalistic views.

      What’s unfortunate is that you’ve now come here to our page saying my co-author and I have “discredited” ourselves. We have not. I take that statement very seriously and stand by our credibility every day of the week.

      Furthermore, I’ve never felt the need to go on your wall, with your followers and supporters, to make any type of similar statement about you, nor will I. To the contrary, I’ve always encouraged healthy debate on the topic. So let’s just stick to that.

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  5. Well Judge I haven’t been counting your friend numbers, Lisa posted this post – so I can’t comment on “being unfriended in droves”. I don’t know if your position made you more popular though, perhaps with Pistorians, you would know.

    I think where we are coming from is at one point you referred to this case as easier to imagine “if there was no door”. We agree with that because the door was paper thin in terms of a barrier to the bullets. But then you seem to have taken in another position that gives credibility to the “I thought she was an intruder” narrative. This effectively re’imagines’ the door, and also reinforces the door as part of the “threatening” intruder.

    Personally I’m not sure how a closed and locked door can do anything to threaten an armed person in their own home. Oscar described this “imminent threat” as “the sound of wood moving”. Does any unknown sound in someone’s home justify the use of lethal force? Someone we can’t see in the kitchen, or the garden, or on the other side of the bed – unsighted?

    I realise you see the facts as found by the court as facts but we obviously don’t. Judge Masipa made numerous errors of law, and in our view, errors of fact as well. We believe she muddled her personal circumstances as a disabled person with Oscar’s crybaby narrative. While understandable it’s allowing sentiment to muddy proper reasoning.

    We think at some point in the evening Reeva very likely screamed, being in a locked toilet at 3am with undigested food in her stomach is unusual, and that it was Valentine’s Day is also unusual. That 4 shots were fired instead of one isn’t mere defence it’s attack. The “broken man” who was in fear of his life suddenly broke down the door without checking to see who was behind it, or the rest of his house. Many neighbours heard a man and a woman screaming. We also think the failure to reconcile those testimonies with fact beggars belief. So we were simply surprised that you appeared to support this view, even couched in the “facts” of the court.

    One important aspect not covered by anyone thus far is exactly where Oscar fired when he shot at Reeva. We’ve used mathematics to ascertain where he stood 1) so he would not be visible as he fired through the bathroom window 2) he would be safe from a ricochet, a real threat in a very confined space and given the extra lethal ammunition he was using.

    The above argument I believe is a valid counter to your/Oscar’s argument that Oscar acted in a rational way – he was protected by a wall and armed and in his own home, and shouting. He held all the cards, so if there was an intruder in the toilet, how was he/she supposed to ever come out of there alive? By shooting at a closed door and suggesting he was shooting at someone he thought coming out he answers that question definitively. The point is it’s not an acceptable explanation even if we accept the nonsense has any merit.

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  6. @Mr Jitty

    “It’s obviously a travesty of justice that whatever sentence Oscar serves will be for the murder of an intruder; iow not Reeva.”

    “For me this logic doesn’t really take us anywhere.”>>>

    Well, perhaps I didn’t express myself very well. Let me try again. We think Oscar purposefully murdered Reeva. The Judge found otherwise, and the SCA, hamstrung to try the legal application rather than the facts, could not contest those merits. So whatever sentence Oscar gets he’s still considered by the court to be guilty of killing an intruder. Let me put it another way:

    According to the court Oscar is not guilty of murdering Reeva.

    This was Oscar’s point on ITV and also the reason he felt he shouldn’t serve any time in jail for murder. He also added that Reeva wouldn’t want that too because supposedly Reeva knew Oscar hadn’t killed *her* on purpose.

    So it creates a narrative loophole for Oscar and his family to claim the whole incident as “an accident”. I hope the logic as I’ve laid it out here now takes you somewhere.

    In one of our narratives we wrote about “Oscar’s intentionality”. We made the case that Oscar is an extremely strategic guy, he has a plan and does everything he does based on a particular intention. Except when he murders someone. We think the psychology sets a vital precedent, and reveals a great deal about what actually happened on February 14, 2013 in that bathroom.

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  7. Oscar Pistorius – dolus eventualis
    1. From the beginning of the trial I repeatedly explained that OP could only escape murder conviction if the Court believed him implicitly.
    2. That is exactly what has happened.
    3. Whatever you and I might believe, the Court has believed that:
    a) He was at the door
    b) On his trumps
    c) At 3am
    d) Utterly convinced that there were intruders
    e) Violating the sanctuary of his home
    f) As extreme threats to him and Reeva
    g) Terrified out of his wits
    4. This was precipitated by the State conceding, wrongly in my view, that the killing was only FORESEEABLE (dolus eventualis) as opposed to INTENTIONAL (dolus directus) … and at that stage I remarked that the trial was now “a pantomime”.
    5. So, like it or not, we are all stuck with a situation where OP has to be sentenced in accordance with above, even though there were no intruders and OP was not under any danger.
    6. It is VERY IMPORTANT that we all understand that the law makes NO DISTINCTION between what is IMAGINED and what is REAL ….
    7. … provided that what is imagined is genuinely imagined and the Court has found that to be so ….
    8. So OP has to be punished as if what he imagined was real.
    9. That is the law … and, like it or not, we are all constrained as citizens, duty bound to uphold the Constitution and laws, to ACCEPT those findings.
    10. On the above “FACTS” OP’s moral blameworthiness accrues on the basis that he fired before the door was opened, and/or because he did not first make sure that it was indeed intruders behind that door.
    11. So ask yourself this very, very simple question. If it were your son in that situation and he said to you “yes Dad/Mum … I see what you are saying … that I should not have just fired through the door … but also understand that in the state I was in, I instinctively felt that to fire when I did was the “safest” thing to do as to wait until the door was opened could have coast me and Reeva our lives ……”
    12. That is the basis on which his moral blameworthiness has to be now fixed … and NOT on what you and I imagine, believe, suppose the TRUE Facts to be.
    13. My stance is that I am absolutely constrained to respect the situation as found by our Courts of law and justice.
    Hope this settles the matter.
    Judge C N Greenland

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  8. All fair and good…

    except this:

    It is VERY IMPORTANT that we all understand that the law makes NO DISTINCTION between what is IMAGINED and what is REAL ….
    7. … provided that what is imagined is genuinely imagined and the Court has found that to be so ….
    8. So OP has to be punished as if what he imagined was real.

    I’m afraid you can’t say a subjective reading of a subjective reading suddenly becomes transmogrified as fact.

    Masipa believing what Oscar says he believed doesn’t make either Oscar’s belief fact or her own belief of that fact in this instance.

    Even on Oscar’s “genuine” belief the law is not on his side, unless you take the illogical subjective route saying “the sound of wood moving” suddenly becomes “subjectively” an imminent threat.

    Even in the most imaginative scenario this is extremely far-fetched. To then call this subjective idea a “factual finding” is false. The sound of wood moving given an enclosed, secured, locked space with a magazine rack on the other side can never be an imminent threat, just as someone in a car accident accused of recklessness who heard “the sound of a car moving” can’t pluck willy nilly out of the ether to support their version.

    The “reality” of this argument is that virtually any imaginative element can be added as a dealbreaker if one is going to magically inflate the imaginative element with “magical imputed meaning”.

    “I saw my wife but for a split second I thought she resembled Hannibal Lecter…I really really did…and then I shot her.”

    This is a subtle but simple thing so many law experts miss and I’m shocked to say, don’t seem to know better. I guess it’s the failure in “legalism” to also be logical.

    We do know what the facts of this case are and they are sufficient.

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