Sunday, March 13, 2016

The Fight For The White House: Close to the Edge (Part I)


Writing about Trump just after the first Republican debate, back in August 2015, I summarised Trump's stance as follows:

"In short (the message appeared to be) I buy people to do what I want. I sack people because it makes me richer. I abuse others and am proud of it. I have no principles at all, except the principle of me."

And I added:

"There are those out there who support Trump because, as they put it, he "says it like it is". That's fine, and  these people will probably flock towards the Trumpster in even greater numbers after the debate. Those, however, who were actually listening to what he says, instead of how he says things, might find (now or in the near future) that they do not like him at all. I know that if I were a god-fearing, conservative, principled American, I would absolutely loathe everything Trump stands for."

A month later, in September, I revisited Trump's appeal:

"I'm beginning to think that the current views the GOP has - on conservatism, on religion and on just about every other "holy" aspect of Republicanism - aren't quite right. I'm beginning to think that the GOP may, in fact, be barking up the wrong tree. And I feel that Trump is making this apparent (...)

What voters are looking for, is someone who will Get Things Done. It doesn't matter if those things are all honest-to-God truly conservative; it doesn't matter if they are all religiously conformist; it doesn't even matter if taxes will never be raised again or if the size of the federal government is drastically reduced. All these things are secondary (or tertiary) at best (...)

If the GOP doesn't recognise this, and if their politicians do not recognise this, they are in very real trouble indeed. They're going to get trumped big time."

The world - certainly the USA - changed after this. On November 13, 2015, one of the most horrible terrorists attacks of recent years took place in Paris, France. And on December 2nd, in San Bernardino, California, 14 people were shot by a US citizen (of Pakistani descent) and his Pakistani wife.

A few days later, Trump called for a ban on all Muslims entering the USA, at least "until we figure out what the hell is going on". At more or less the same time, he stated that "the other thing with the terrorists is you have to take out their families". In February 2016, he followed this up with an endorsement of the use of torture. Waterboarding was fine, he said, but "we should go much stronger".

Meanwhile, his views on race came under question. The Ku Klux Klan and other white supremacist groups clearly support Trump, and whilst Trump repeatedly "disavowed" them, these disavowals were remarkably perfunctory. For the present at least, Trump has flatly refused to address the question why they support him.

Two days ago, Trump called off a rally he was to hold at the University of Illinois in Chicago, after protesters turned up in their thousands to disrupt the event. When the cancellation became known, scuffles broke out between the protesters and Trump supporters, setting off a scene reminiscent of, say, the Ferguson riots. The next day, in Kansas City, police used pepper spray to disperse protesters who had just been removed from another Trump event. Nevertheless, Trump refused to back down from comments he made earlier regarding such protesters, comments which inevitably must - to some - be seen as an encouragement to act aggressively towards them.   

And now, the question no longer seems to be whether the current political climate could lead to further escalations; it is, rather, what scale those escalations will assume. The question is not whether more people will be pushed around and shoved and hit, but rather how many will be seriously injured or even killed.


Trump has always been astonishingly brash, almost compulsively untruthful and eminently chaotic. He was also, however, relatively innocuous. The threat he posed was real, but it was, essentially, a threat to the GOP establishment, and that was as far as it got. In the light of  recent events, however, it is clear that this is no longer true. Trump has now emerged as a dangerous, extreme and unpredictable populist; his words attack the democratic core of the United States and pose severe risks to America's place in the world. Not just his supporters, but those who oppose him are reacting, and their actions are becoming increasingly volatile.

In a statement after cancelling the rally in Illinois, Trump told his supporters: "please go in peace".

If only.

Thursday, March 3, 2016

The Pistorius Case VII: Done and Dusted


Today we heard the news that the Constitutional Court has declined to hear Oscar's Pistorius appeal.

I have not read the ruling, insofar as there actually is one. I did, however, read the defence's application for the appeal some time ago. And on the basis of what was put forward by the defence, I felt that Pistorius's chances of successfully challenging his murder conviction were slim indeed.

Let me explain why.

Essentially, the defence laid out two grounds for their appeal before the Constitutional Court. Firstly, it claimed that the Supreme Court of Appeals (which had handed down the murder conviction back in December) had acted "unconstitutionally when it rejected the factual finding of the Trial Court and replaced it with a contrary factual finding of its own." The factual finding in question is the finding that Pistorius genuinely and honestly believed he was under threat.

Secondly, the appeal contended that the Supreme Court (or SCA) judgment rests on "errors of law". That is: the SCA erred in finding that dolus eventualis was present. It also erred in applying an objective test to the question of whether or not putative self defence could be claimed.

Let's have a better look at these arguments. I'll begin with the second ground, the assertion that errors in law were made. The reason I'm doing this is because I believe it to be fairly clear that these "errors" could not form any valid reason for the Constitutional Court to set aside the SCA's ruling.

Why? Well because, simply put, they're not constitutional. The assumed existence of "errors in law" does not mean that the SCA acted unconstitutionally. It may mean that the SCA acted wrongly, but that is not the same thing at all.

Consider this: all sorts of courts hand down all sorts of rulings. In some cases, those rulings may apply the law wrongly; the fact that such mistakes happen is inevitable. This does not mean, however, that in those cases a party's constitutional rights are trampled on. If this were different, any party could at any time hop over to the Constitutional Court and ask that court the retry the case; the Constitutional Court would then simply become a further appeal court.

So "errors in law" do not equate with acting unconstitutionally, and claiming that such errors were made does not mean the Constitutional Court should get involved.

It should be remembered that, under most constitutions, one is guaranteed a fair trial, but that no constitution can ever guarantee that the outcome of all trials is correct.

The defence, in fairness, realised this, at least to a certain extent. It tried to circumvent the problem by stating that the errors made are not just pertinent to Pistorius, asserting that "for as long as the SCA judgment stands and is not set aside, large numbers of accused persons will have their cases determined in accordance with the (incorrect) approach laid down by the SC." As such, it attempted to establish that an aspect of general public importance is involved.

However, why would this sway the Constitutional Court? If "errors in law" were made, courts (not to mention universities, legal institutions and the like) will realise this and not allow themselves to influenced by this single judgement. In fact, the SCA itself will no doubt soon remedy the situation. As such, the errors are by definition not of general public importance, and they are most certainly not the sort of errors the Constitutional Court should address.

So, in short, I do not find it surprising that Pistorius was not granted the right to appeal on this ground.

At first glance, things are a little less clear it comes to the other ground for appeal, though. Let's have a look at the arguments involved.

The defence maintained that the SCA exceeded it jurisdiction when it decided that Pistorius did not genuinely and honestly believe that his life (or that of Reeva Steenkamp) was in danger. It points out that the High Court had accepted Pistorius's "honest belief", when that court stated the following:

"(...) on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.
There is nothing in the evidence to suggest that this belief was not honestly entertained."

This assertion, the defence maintained, amounts to a matter of fact. As such, the SCA could only accept it; it had no power to re-examine the assertion, let alone to reject it and find that Pistorius had not genuinely believed his life to be in danger. And because the High Court had decided this, the SCA had to accept that Pistorius was entitled to a claim of putative self defence.

If the defence had been right, I believe that its appeal could very well have been successful. The SCA can - roughly put - only look at issues of law. It cannot deal with matters of fact. If it nevertheless does so, it does indeed exceed its jurisdiction and that would then be an issue the Constitutional Court could and should deal with. So, in theory, the defence's arguments here could well have been valid.

Having said that, though, I don't think the defence is right at all. In particular, I believe that the defence quite deliberately misrepresented what the High Court had actually said.  

Yes, the High Court found that Pistorius honestly believed that his life was in danger. However, that is not sufficient for a putative self defence claim to succeed. For such a claim to be successful, it must also be established that a number of other, equally crucial, elements existed. For example, and at the very least, it must be established that the accused believed that he was justified in acting the way he did, which inevitably requires, first and foremost,  that he had the actual intention to defend himself.      

The High Court did not, however, establish this at all. The court accepted Pistorius's "fear", and it also accepted that this fear was "honest", but that is as far as it went. In fact, although the court's reasoning here is oblique, it seems to have felt that Pistorius could not have acted in putative self defence. Consider the following observation by the court:

"Counsel for the state, correctly in my view, submitted that if the accused never intended to shoot anyone, he cannot rely on a defence of putative self defence".

And consider, too, that the court, elsewhere in its ruling, did indeed find that Pistorius had not intended to shoot anyone.

In other words: insofar as the High Court had decided on the putative self defence claim, it seemed to have rejected it. Not because it felt that Pistorius's belief was not genuine, but because it felt that such a belief was in itself insufficient.

So it appears that Pistorius's constitutional appeal simply misrepresented what the High Court actually determined. The High Court did not honour the putative self defence; if anything, it rejected it.   

There is another - more legal - way to look at this. As I mentioned above, the defence tried to argue that the High Court's assertion that Pistorius "honestly believed" his life was in danger is a factual issue, and one that the SCA must therefore accept. It then moves on to assert that, given this belief, the putative self defence claim must be honoured. This line of reasoning supposes that the term "honest belief" - as used by the High Court - does in fact encompass all the legal elements of the "belief" necessary for a putative self defence claim to succeed.

As stated above, that doesn't seem correct. But even it if were to be true, one would then immediately have to accept that the High Court's finding of "honest belief" includes a decision on all the legal elements required by law for a putative self defence claim to succeed. And that, in turn, means that the High Court's finding is, by definition, not merely a factual matter, but a matter of law as well. Which in turn means that the SCA could clearly take it into account.

Looking at the matter this way, one reaches the same conclusion: the SCA did not exceed its authority when determining that Pistorius could not have acted in putative self defence. And as a result, this ground for the appeal failed as well.

Is that the end of the matter? Well, yes. But there is something else to be said. After all, I may have discussed the issues the affidavit for appeal raised, but I have not discussed two issues on which it was curiously silent.

Firstly, the appeal did not contend that Pistorius's trial was unfair due to the overwhelming attention it got in the media and the fact that it was televised. Secondly, it did not contend that the SCA overstepped its bounds in deciding upon Pistorius's putative self defence claim because it gave that decision itself (instead of referring the case back to anther High Court).

As far as I know, the first of these two grounds is probably not that strong, for the very simple reason that Pistorius would have been too late in raising it. He did object to the trial being televised at the time, but after the court made its decision on the matter he took no further action. He's just too late now. I would imagine this to have been sufficient reason not to attempt any appeal on this matter, but I do point out that there were many indications that this matter would form a important part of any appeal process. As such, it is a little surprising that it vanished into thin air.

The absence of the second possible ground is a bit more of a puzzle, though. If the High Court had reached exactly the same decision on putative self defence as the decision reached by the SCA, Pistorius would have had the opportunity to appeal against it. The High Court did not, however; it never clearly and equivocally decided on this claim at all. It seems - as I stated above - to have felt that the claim should be rejected, but it never really tackled the issue head-on.

As a result, the decision by the SCA was the first unambiguous and fully substantiated decision on the matter. The problem is, though, that since it was a decision given by the SCA - the appeal court itself - there was no possibility to appeal against it.

Because of this, it might be argued that Pistorius's right to appeal - which is, I point out, a constitutional right - had somehow dissipated. Now I realise that this argument can be countered by simply pointing out the obvious (which is that we know exactly what such an appeal would have amounted to, given the decision by the SCA) but I am not so sure that is sufficient. If one has the right to appeal, one has that right, regardless of what the chances of such an appeal are.

It should also be remembered that the prosecution did not directly appeal against the High Court's decision on putative self defence; the SCA's ruling on the issue was therefore not necessary and, given the limitations of that appeal, not very logical either. One might therefore also attempt to assert that, in dealing with the putative self defence claim as it did, the SCA disallowed Pistorius adequate time and facilities to defend himself, which would mean that the appeal trial was, in this regard, essentially unfair. That would again be a constitutional matter.

However, as I said, this simply was not an issue that the defence raised with the Constitutional Court at all. And in any case, given the dismissal by the Constitutional Court, it's all water under the bridge now.

Having been convicted of murdering Reeva Steenkamp, and that decision now being irreversible, Pistorius will be sentenced accordingly in April. Justice has been done.

Wednesday, February 10, 2016

The Fight For The White House: What Now?

Rubio: The Little Warrior

So - what now?

Cruz narrowly won Iowa. Trump easily secured New Hampshire.

And behind them, the rest of the Republican field kept struggling, without any real breakthroughs (or definitive break-downs, I would suspect*).

Yes, Rubio briefly surged in Iowa, but was then brought back to earth in New Hampshire. Yes, Kasich asserted himself  in New Hampshire, but only to the extent that he managed to lift himself a few points clear of the other establishment candidates.

After two states,  there will also no doubt be a couple of candidates who will step down  (Christie and Fiorina spring to mind), but even so, six or so contenders will be left in the race.

So going into South Carolina, then Nevada, and then, of course, Super Tuesday (March 1st), it seems to fair to assume the middle will still be muddled for a while yet.

As a result, now might be the time to make a few comments about the nomination process that's unfolding. Who knows, it might even allow one to make a guess as to what's coming.


First, let me backtrack a little.

By early February 2012, it seemed clear that Mitt Romney would win the Republican nomination. He had just won Florida and, in doing so, had given himself a practically unassailable lead in the delegate count. He still had Rick Santorum and Newt Gingrich to contend with, but for all practical purposes, the race was done and dusted.

Nevertheless, it took till April for Santorum to fold up shop, and Newt Gingrich didn't call it quits till May. That's a period of some three months where Republicans were still battling Republicans for no good reason whatsoever.

Given this, it's no surprise that the GOP decided to amend the process for the 2016 cycle by incorporating a few changes. It shortened the nomination calendar, and agreed to a smaller number of debates. It also allowed, in the first weeks of the nomination process, only proportional results, and then compensated this by setting the bar high from March 15th onwards (on which day Florida votes): from that moment on, it would be winner take all.

There were two ideas behind this. The first one was to allow Republicans to choose their nominee earlier rather than later. The secondary was to favour the establishment candidate of the day, that candidate in all likelihood being Jeb Bush.


Back to the present.

The nomination process, as it currently stands, may well determine an early nominee. But if that were to be the case, it now seems clear that the nominee will not be Jeb Bush, or any other establishment candidate. Instead, it will be Donald Trump, or conceivably Ted Cruz. In this sense, the RNC may simply have failed.

An alternative - and perhaps more likely - scenario is that the nomination battle will continue on well past the March 15 deadline. If that happens, however, it will not be a couple of upstarts trying to take down the establishment leader. It will, on the contrary, be a desperate establishment trying to subjugate Trump and Cruz.

The first option means a quick and convincing defeat for the establishment GOP. The second option may lead to a similar outcome, even if it isn't quick at all. However, it might - just might - lead to the coronation of a candidate who actually is acceptable to the GOP establishment. 

The question then rises: who would that be? There are realistically only three options left: Bush, Kasich and Rubio. And of these three, at present only Rubio seems more or less viable. And that is, believe it or not, in spite of his now obvious penchant for shutting down his brain just when it's supposed to be firing on all cylinders.

Why do I think Bush and Kasich have no real shot at the presidency? Well, when it comes to Bush, I have had to alter my mindset. When the race started, it seemed to me that it would, after a while, settle down in much the manner that the RNC had in mind. I, too, imagined a few initial upsets, but then envisioned Bush to emerge from the ashes and stride off to be anointed.

I no longer believe that's going to happen. I now believe that voters simply will not settle for Bush. Their anger at the GOP establishment (well, their anger at just about everything, really), is too deep, and in the end, Bush is just another Bush. And let's face the facts: Bush might still be alive, but he spent millions in New Hampshire, and still ended up behind Ted Cruz, who effectively skipped campaigning in the state altogether.

As for Kasich, well, I rather suspect that he's in many ways the best of the bushel. But he is very establishment, he's really quite boring, and to be honest, in the eyes of many Republican voters today, he's just too darn nice. Besides this, it is very difficult to see how Kasich stays afloat in the next few contests. South Carolina, for example, is hardly likely to embrace him with open arms.

And so, crazy as that seems, all that leaves is Rubio. Rubio, the little warrior armed with a bottle of water and a brain that goes fuzzily pop when things get tough.

You know, I don't think the RNC saw this coming.


* A brief comment on Rubio's melt-down during the most recent Republican debate. It was without doubt quite spectacular, turning him, for a moment, into something eerily akin to a Stepford wife starting to malfunction. But it was just a moment; damaging as it was, it is not enough to scupper his entire campaign. Of course, if it were to happen again, that would be a different matter.

Monday, December 28, 2015

The Pistorius Case VI: Not Done Yet

The South African Constitutional Court

A  few weeks ago, on December 3rd, the Supreme Court of Appeals in South Africa (or, to use the common abbreviation, the SCA) struck down the High Court ruling in the case against Oscar Pistorius.

Pistorius shouldn't have been convicted of culpable homicide, the SCA stated. Instead, Pistorius had intentionally and unlawfully killed his girlfriend, and in doing so, he had committed murder.

In giving its ruling, the SCA first decided to ignore the so-called Seekoei barrier, which makes it difficult for the prosecution to lodge an appeal at all in such a case. The barrier the Seekoei case raises is mo longer good law, the SCA stated; hence, the appeal could be heard.

The SCA then did what many considered to be the only right thing to do in this matter. It dismissed the High Court's odd and quite illogical reasoning, which was based  on  the notion that if Pistorius believed there was someone in the toilet cubicle when he fired four shots into it, but did not know exactly who that person was, he couldn't have intended to kill that person.

What is interesting about the Supreme Court's ruling is not just its rejection of the High Court's interpretation of intent (or "dolus"), but also what it then proceeded to do.

You see, simply establishing that Pistorius had acted intentionally isn't sufficient to convict him of murder. Pistorius (deliberately, perhaps) made a bit of a muddle of his defence, but it must be assumed that he also tried to convince the High Court that he believed that his life was in danger and that he was therefore justified in shooting. (In fact, this was what many thought was going to be his only defence. It wasn't until Pistorius claimed that he hadn't meant to kill anyone at all that things got complicated and the concept of dolus - and, more precisely, dolus eventualis - became relevant).

What this means is that once it is accepted that Pistorius had the intent to kill, the question must be answered whether or not he could claim to have acted in (putative) self defence.

The SCA could have decided not to deal with this issue at all. It could have chosen to send the case back to another High Court and it would then have been that court's task to deal with this defence. The SCA, however, chose not to do this, pointing out that such a course of action would be "wholly impractical" and that neither the prosecution nor the defence had "pressed" for such an outcome. The SCA then took up the matter itself, which led to the court dismissing Pistorius's stated "genuine belief", and, ultimately, convicting Pistorius of murder.  

The question that now arises, however, is whether, in doing so, the SCA exceeded its jurisdiction. The  validity of the court's grounds for rejecting Pistorius's claim of (putative) self defence is not directly at issue here; what is at stake is whether it was the court's role to decide on the matter at all.

There are essentially two possible problems here. The first is that  the SCA explicitly dealt with the question of whether Pistorius had or had not genuinely believed there to have been a threat. This is obviously a question with important legal ramifications, but it might well be argued that the question itself is a factual one. And if that is so, then it might also be argued that the SCA had no business dealing with it, since the SCA, as an appeal court, must restrict itself to matters of law.

The second problem is that, in reaching its decision, the court denied Pistorius the right to appeal against it. It is, after all, impossible to appeal a decision handed down by an appeal court.  

Given these issues, it is perhaps not too surprising that Pistorius will lodge a separate case with South Africa's Constitutional Court, where he will attempt to establish that his constitutional rights have been violated by the SCA. We know this because that's what he says in an affidavit brought before a court in a recent bail hearing. Because of the affidavit we also know that Pistorius isn't restricting himself to the two problems mentioned above; it is clear that he has further grievances to bring before the Constitutional Court.    

I honestly do not know what the chances are of such a case being successful (at present, it is not even clear that the Constitutional Court will decide to hear the case at all). However, it does seem clear that Pistorius's legal battle will continue for some time to come.

Having said that, I certainly believe that the SCA was essentially right in its decision. Pistorius is, simply put, a murderer. 

Wednesday, November 4, 2015

The Pistorius Case V: The Seekoei Barrier


This is a seekoei. Now, how do you get past it?

It's been over a year since my last posting on the Pistorius trial.

Back then (on September 11th 2014, to be exact), the judge was busy reading her verdict. And whilst she wasn't done yet, a few things were obvious.

The first was that Pistorius would not be found guilty of murder (he was, in fact, convicted of culpable homicide the next day). The second was that the judge's reasoning seemed, from a legal (and logical) point of view, to make little sense.

I said then that I would return to the case once I got my head unbefuddled. Well, I suppose it's as unbefuddled now as it will ever be. Besides, there are good reasons to look at the case again now, since yesterday the prosecution's appeal was heard by the Supreme Court of Appeal (the SCA). The question the court will have to answer is whether the earlier verdict should be upheld, or whether it must be struck down.

Now I've already said that the verdict makes little sense. Back in 2014, I pointed out a few flaws; I'll mention a few more later on. The thing is, though, that even if one were correct in assuming that the ruling is simply wrong, this does not mean that it can and will be quashed.

There is, firstly, a technical hurdle to be surmounted.

It is this: under South African law, it can be argued that in a case handled by a High Court (as opposed to a lower court), the prosecution can only appeal if the accused is acquitted. In fact, this was exactly the argument accepted by the SCA (or Appellate Division, as it was known then) back in 1982, in a case known as the State v. Seekoei. That decision has been widely criticised, and the prosecution in the Pistorius case has stated that it can no longer be considered valid. Nevertheless, the SCA has not (yet) retracted it.

What this means is that, when it comes to the possibility of an appeal, there is at present such a thing as the Seekoei barrrier, and the Pistorius ruling runs right into it. After all, the Pistorius decision was handed down by a High Court; furthermore, Pistorius may not have been found guilty of murder, but he was convicted of culpable homicide and therefore not  granted a (full) acquittal. In short, if Seekoei still stands, the prosecution's appeal will fail, regardless of the errors in the Pistorius ruling.

To make matters a little more complicated, even if the SCA were to decide that the Seekoei rule was no longer applicable, it might still decide that an appeal is not permissible. The Seekoei rule is based on a particular interpretation of Section 322 of the South African Criminal Procedure Act. The SCA could, in theory, decide that that interpretation is no longer valid, but then accept an interpretation that nevertheless rules out the possibility of an appeal in this particular case.  

The prosecution's first hurdle is, in other words, quite daunting. Having said that, though, I should immediately add that the comments made by the judges in court yesterday did seem to indicate a certain willingness on their part to consider an appeal.

Even if that were to happen, though, there are further obstacles. Foremost among these is the question as to whether the judge's ruling erred on matters of fact, or whether she stumbled on matters of law. If it is the former, an appeal is again ruled out, since you can only appeal against matters of law.

Now in this case the judge certainly erred on the facts - or, to be a little more precise, she erred in her reasoning on factual matters. Last year I already commented on this, pointing out, for example, that she seemed to believe that the fact that a window was found open after Reeva Steenkamp was shot indicated that "it was not [Pistorius's] imagination at work when he thought he heard the window slide open". This is clearly a non-sequitor; it makes no sense whatsoever.

However, in appeal, such errors can not be touched. They are factual and therefore impervious, so to speak.

Thankfully for the prosecution, however, the judge seems to have erred on the law as well. In particular, she seems to have quite confused the legal criteria applying to the various questions of the case. 

Nowhere is this more prominent than in the following part of her ruling:

            "I now deal with dolus eventualis or legal intent.  The question is:

            1. Did the accused subjectively foresee that it could be the deceased behind
                the toilet door and
            2. Notwithstanding the foresight did he then fire the shots, thereby reconciling
                himself to the possibility that it could be the deceased in the toilet."

However, when it comes to dolus eventualis, those are not the questions. Specifically, when dealing with the question as to whether  the required intent did or did not exist, it is not relevant whether Pistorius foresaw that the deceased (Reeva Steenkamp) was in the toilet cubicle. What is required is the foresight that someone was in the cubicle.

In fact, the whole notion of whether the intent required by dolus eventualis was or was not present is given by the (un)likelihood that firing shots through a closed door into a small cubicle will kill (or at least severely harm) the person inside that cubicle. It has nothing to do with the identity of that person at all.

Now, you might think that the judge, in mentioning "the deceased", simply misspoke, and that she meant "the person in the cubicle". However, it is clear she did not, since she goes on to substantiate her reasoning by pointing out that Pistorius could not have foreseen Reeva's presence since he thought she was still in the bedroom. In other words, it is clear she is thinking specifically about Reeva. As a result, it is also clear that she is applying the wrong yardstick.

But guess what? Having come to this conclusion, one still cannot say that the judgement can and will be struck down. Even establishing that there were (serious) errors in law need not be enough. The reason for this is that it is quite possible to have an erroneous ruling that nevertheless gets its outcome - the decision that Pistorius was guilty only of culpable homicide - right. 

In this case, this means, among other things, that one must again pose, and then answer, the question of whether the intent required by dolus eventualis was present. In other words, one must ask whether Pistorius foresaw that firing his gun could kill someone.

Interestingly enough, the judge, in her ruling, has gone some way towards answering that question herself. When talking about culpable homicide, she asks herself the question whether "a reasonable man would have foreseen the reasonable possibility that if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result".  Her answer is a simple "yes".

It should be noted, however, that when dealing with the issue of culpable homicide, one should apply an objective norm (the question becoming not whether Pistorius foresaw the consequences of his action, but whether "a reasonable man" would have foreseen them).  Nevertheless, I personally can't really see how, in this case, the foreseeability of "the reasonable man" would be very different from the foreseeability of Pistorius. It is true that, during the trial, it appeared that Pistorius might suffer from some sort of anxiety disorder and that, as a result of his handicap, he had had a "fight" instead of a "flight" response to perceived threats. Whilst these issues may explain why Pistorius would be quicker to shoot than an average man, they do not seem to be relevant to the question of foreseeability.

So, when all's said and done, what are we left with? Well, nothing quite yet. The Supreme Court has "reserved" its judgement. In other words, we'll simply have to wait and see when it decides to decide.

Thursday, October 29, 2015

The Fight for the White House: Beating around the Bush

So, the third debate in the Republican race.

What did we learn?

Well, firstly we learned that the moderators were pretty lousy. They tried to control the candidates by asking  an implausible number of quite ridiculous questions and then seemed stumped when those candidates refused to listen to them. If anything, the debate proved how wrong it is to try to turn such an event into prime time television entertainment. Was it all down to media bias? No, not at all. It was, instead, down to the fact that the media wants high ratings and really can't care less for actual policies.

Still, they were all there, onstage, the most important Republican candidates, so they could at least try to make the most of things. Did they?

Well, here are some of things that stood out.

Firstly - and most importantly - there was the Bush v Rubio clash. A clash that Rubio won handsomely. When attacked by a clearly awkward Bush on his voting record in the Senate, Rubio pointed out the obvious: "Someone has convinced you that attacking me is going to help you". And then Rubio simply turned to the camera to talk about "the future of America", leaving Bush gasping like a fish out of water. 

The most interesting moment of the debate, however, was offered by Ted Cruz. When asked about the national debt, he decided to totally sidestep the question and instead did a Gringrich, using all of his time to attack the media. "How about talking about the substantive issues?" Cruz asked rhetorically, thereby ignoring the obvious fact that he had been invited to do just that. And then, without so much a pause, he went on to complain that he didn't actually get to answer the original question.

It was, frankly, a rather extraordinary display, but one that sat well with the audience, who cheered him on loudly. It seems to have turned him into a "winner" of the debate in the eyes of quite a few pundits, but to be frank, I very much doubt that it will get him anywhere. The whole thing was unoriginal and clearly quite contrived. It was also, at heart, little more than whining.

As for the rest, well, Carson managed to stay awake. He may even have understood a few of the questions posed to him, although it's difficult to say. Trump started fairly Trumpish by attacking Kaisich, but then settled into what I surmise must be his "presidential mode". Since he doesn't actually have a presidential mode, that meant that he was quiet for a surprisingly long time. 

So, who won? In my book, probably Rubio, but not by all that much. Who lost? Easier to answer: the now-not-so-joyful turtle, Jeb¡.

It will be interesting to see what happens next. Where will we be when the next debate comes along (November 10th)? For Bush, the real question is whether he will be able to shore up (or at the very least hold onto) his establishment backing, or whether the donors will quietly start to sneak off to the likes of Rubio, Christie or even Kasich. 

Even now, I feel that Bush is a strong contender, but I must admit there is a real possibility of him not even making it to Iowa or New Hampshire.

It is perhaps this which best describes him, a clip of Bush talking about something he'll never ever forget, and then forgetting what it actually was:

(Thanks to Alexandra Petri for pointing that one out to me!)


Sunday, September 20, 2015

The Fight for the White House: The Beast's Tale


The Beast

Ages ago, when the world was still very young, the First Debate came and shook the world. I am old now and my time has almost come, but I seem to recall that moment nevertheless. I remember how shocked I was at the coming of The Beast, that thick-headed and bullying Animal of Many Insults, that roared its way into the very pits of  palaver with its huge mouth gaping hotly and hungrily.

Ah yes, I remember it clearly. But where is the Avatar of Awesomeness now, I ask myself? Where now is the Golem of Greatness?

It has been so long, so long. I grow weary when I even think about it, the passing of all this time. And truly, The Beast itself is no longer; the fire has died in its eyes. It is alive, surely, but it has become a mere shade. Its shape is but the hint of fog in the distance, and its whisper not enough to startle a mouse.


Hmm, no. Trump has not faded away quite yet. But I do believe that Thursday's second Republican debate showed why he will. And I also believe that it showed why the GOP should nevertheless be quite cautious about getting its hopes up too high.

A while back, I wrote that Trump's appeal to Republican voters did not seem to be that he trumpeted all conservative things in an all-conservative way. Instead, I said, he appealed to them because he was loud,  forceful and promised to actually act on his stated beliefs. Those beliefs might not be the gospel truth according to some Republicans, but that wasn't the issue: the issue was getting things done. And there was Trump, proclaiming as strongly as he could that he was the man to do it. He was, he himself stated, the non-politician to sweep all those weakling politicians out of the temple.

Except, of course, that his promises became hollower the more he repeated them.

You cannot, for example, promise to deport 11 million aliens just like that. To do so would require (a) lots and lotsa government money, and (b) lots and lotsa government officials and (c) lots and lotsa of buses, too. Oh, and you'd also have to tag the cretins in advance, so that you can catch them if they have the temerity to make a run for it before getting thrown out of the country (you never know with cretins, right?).

In short, it would require the very sort of federal government (an almost all-encompassing police state) that absolutely no Republican voter would ever think of condoning. It's not just undoable; its very contemplation is absurd.

So, where does that leave Trump's message? Well, where it ought to be. At first glance it's delicious. It's nice and shiny and it's got da muscle. But when you hear it for the second time, and then the third, you begin to realise you're watching ice cream in the desert sun.


So, no Trump? He seemed up for a while; now he seems down. 

Good news for the GOP, surely?

Nope, not really.

Just before the second debate, CNN released a poll showing that about 32% of likely Republican voters supported Trump. 19% supported Ben Carson. A rather measly 3% were prepared to support Carly Fiorina.

Just after the debate, CNN released another poll. Trump's support had dropped to 24%. Carson had gone down to 14%. But Fiorina had escalated; she was up to 15%.

Now, what does this show? In terms of individual politicians, not much. You might think that the poll clearly confirms my own opinions, as stated above, but it doesn't really. If anything, the poll confirms that some cracks are appearing in the Trump monolith, but not more than that.

What it does show, though, is this.

Before the second debate, a total of 54% of likely voters supported a non-politician. After the second debate, that figure had not really changed at all: it was 53%. 

It has been remarked upon by some how wildly the polls have swung recently. I would say the exact opposite: look at what has remained the same, and there you should find a fairly accurate measure of the voters' mood.

The voters aren't all too committed to either Trump, Carson or Fiorina. They might like some of them or even all of them, but in the end, they will happily hop from one to the other. Their goal is not to support the individual; their goal is to oppose the establishment. And they're doing it in spades.

Good news form the GOP? No, not really.


And now the night is falling. It has been so long, so long. Tell me, where is the boy to bring me my tea? Where is he?

Ah, there you are, Trumpsy. Yes, put it done there. A sugar, please, that's a good boy.

Tell me, Trumpsy, have you heard the tale of The Beast? Let me tell you the story, for it's a good tale.