Life, etc

Pistorius Trial: Judgment Day

By Rebecca Davis 11 September 2014

This is it, folks. In the North Gauteng High Court today, Judge Thokozile Masipa will begin to read her judgment in the murder trial of Oscar Pistorius. It is expected that it may take her the best part of two days to get through the reading, as she'll have to summarise the evidence presented by 37 witnesses. REBECCA DAVIS is back in the North Gauteng High Court.

14.15 Court has adjourned for the day, and it appears – though Masipa has yet to spell this out explicitly – that Oscar Pistorius will be found guilty of culpable homicide. We’ll only find out tomorrow, but she said that in acting as he did, Pistorius was “too hasty and used excessive force”. His conduct, she said, was “negligent”.

Lunch today ended up stretching a good 90 minutes, for undisclosed reasons. There were reports that Masipa had asked Gerrie Nel and Barry Roux to meet her in chambers, but there wasn’t any verification forthcoming. When Masipa brought the court back, it was for a mere ten minutes or so before adjourning.

Addressing the issue of culpable homicide, Masipa said that the defence had tried to persuade the court that Pistorius’s disability rendered him vulnerable, and therefore not guilty of negligence. Masipa repeated again, however, that Pistorius’s sense of vulnerability was not unique in Sputh Africa. She also said it was clear that Pistorius had other options available to deal with the situation: he could have picked up his cellphone and called security or the police, or have run to the bathroom and screamed – as he did after the shooting.

Masipa said the court had been urged by the defence to consider the particular circumstances of the accused: that his mother was also attached to her firearm, for instance. “I agree that the conduct of the accused may be better understood by looking at his background,” Masipa said. “But an explanation is just that”, it did not excuse his conduct, she said.

“If the accused woke in the darkness and saw a silhouette hovering over him and shot,” and it turned out to be Steenkamp, his conduct might have been “understandable and perhaps excusable”, Masipa said.

But in this case the two questions that had to be asked were:

  • Would a reasonable person have foreseen that four shots fired into a small space might kill? And
  • Would a reasonable person have taken steps to guard against that possibility?

To both these questions, the judge considered that the answer was Yes. This clearly seems to lead us towards a conviction of culpable homicide.

It should be noted that it’s not just journalists expressing some surprise about how the day has panned out. Legal experts have also voiced some surprise, including questioning how the concept of dolus eventualis was applied here.

But others have suggested that Masipa intends to come down heavily on Pistorius in sentencing for culpable homicide. While it is entirely discretionary, she can hand out a sentence of up to 15 years – no laughing matter.

While Pistorius knows he’s by no means out of the woods – and his body language after court suggested as much – you’d have to assume that with the knowledge he won’t go down for murder, his step is a little lighter today.

Members of the Steenkamp camp, meanwhile, voiced resignation, saying they had expected little else.

Today Masipa finished dealing with the first charge Pistorius faces – the biggie, murder. Tomorrow she will attend to the three minor charges, before asking the athlete to rise for her final verdict.

12.45 Oscar Pistorius is not guilty of murder. Though Judge Thokozile Masipa has yet to give her final ruling, she has indicated that the state did not present sufficient evidence to disprove beyond reasonable doubt that Pistorius believed there was an intruder in the toilet and had no reasonable way of knowing that it was Reeva Steenkamp behind the door.

That was the dramatic note on which Masipa ended before the court adjourned for an early lunch. The only possibility still on the table for Pistorius – in terms of his first murder charge – is culpable homicide. Culpable homicide carries absolutely no minimum sentencing; sentencing is undertaken entirely at the discretion of the judge. In other words, Team Pistorius can be pretty satisfied with how things have unfolded thus far.

Pistorius heaved with sobs as the judge made her pronouncement, presumably out of relief.

The Judge has indicated that she believed the bulk of the state’s case to be circumstantial. In other words, there simply wasn’t enough evidence to see Pistorius put away for murder.

She cast doubt on other aspects of the defence’s case. Referring to sports scientist Wayne Derman’s claims about Pistorius’s vulnerability, Masipa said she found it understandable that a person with a disability would feel vulnerable in the face of danger. But she said this would not be unique: Masipa suggested that women, children and the elderly might all react with similar anxiety, and the notion that they should all arm themselves would be unreasonable.

The accused clearly wanted to use his firearm, Masipa said, but “intention to shoot does not necessarily include intention to kill”.

Pistorius was a “very poor witness”, Masipa said, describing him as evasive and worried about the impact of his answers. Giving his evidence-in-chief Pistorius was calm, she said; it was only when he was subjected to cross-examination that he started floundering and contradicting himself.

But it was not always the case that because an accused was untruthful, he must therefore be guilty, Masipa said. Nonetheless, she conceded that Steenkamp was killed “under very peculiar circumstances”. Among the aspects which “do not make sense”, she said, were: Why Pistorius didn’t ascertain whether Steenkamp had heard anything; why he didnt check to make sure she had heard him yelling for the police; why Steenkamp did not communicate with him from the toilet, or call the police; and why he fired four shots.

“These questions shall remain a matter of conjecture,” Masipa said.

The timeline of events “tip the scales” in favour of the defence’s version that Pistorius made a “genuine mistake”, Masipa said. Viewed in its totality, the state’s evidence fails to establish that Pistorius intended to kill Steenkamp. Pre-meditated murder was thus dismissed, leaving the possibility of dolus eventualis.

Masipa said, again, that the evidence did not support a case of dolus eventualis. She accepted Pistorius’s story that at the time of the shooting, he believed Steenkamp was in the bedroom. He consistently told the same story – that he believed her to be a burglar – to the first arrivers on the scene.

“How could the accused reasonably have foreseen that the shot he fired would kill the deceased?” she asked.

When we return, Masipa will consider whether there is sufficient evidence to convict Pistorius of culpable homicide. But pretty much all bets are off at this stage. The response from many journalists in the courtroom has been slightly stunned.

12.15 A very short but important update while we have a 5 minute break: Oscar Pistorius will be found NOT GUILTY of premeditated murder. Judge Masipa has found that there was not sufficient evidence to prove beyond reasonable doubt that Pistorius intended to kill Reeva Steenkamp.

The question she is now considering is whether Pistorius can be found guilty of intending to murder an imagined intruder. If this is the case, he could still be found guilty of murder.

Tense times in Courtroom GD.

11.00 We’re on an adjournment from the reading of Judge Masipa’s judgment, and the first thing to note is that we seem to be progressing much quicker than anticipated. At the risk of sticking my neck out, I will be surprised if we don’t finish this today. Masipa appears to have already disposed with the major aspects of the state’s case and moved on to the defence.

It is far too soon in the day to start drawing definitive conclusions, but it’s fair to say that Masipa did not seem overly impressed with the state’s neighbour witnesses. She said in particular that she believed the witness testimony of Michelle Burger and her husband Charl Johnson was “correctly criticised in my view as being unreliable”. She stressed that she did not think the two were dishonest – just honestly mistaken about what they thought they had heard. Judge Masipa said much the same for the testimony of Johan Stipp – that in terms of the chronology of events, their accounts of hearing gunshots and cricket bat sounds did not always make sense.

She said it was fortunate that the court had “technical” evidence to compare with the witness testimony – such as the timing of phonecalls to security, etc.

Masipa indicated that she found little, if any, evidence to suggest that Reeva Steenkamp had been heard screaming. She also did not seem persuaded by the notion of an argument between Pistorius and Steenkamp. The judge dismissed the WhatsApp evidence as not proving anything on either side, because “relationships are dynamic”. She also pointed out that security guard Pieter Baba had been patrolling close to Pistorius’s house shortly before the shooting and had heard no sounds to indicate an argument.

Having seemingly dismissed these key prosecution ideas – that Reeva Steenkamp screamed, and that there was evidence of an argument – it seems that a conviction for premeditated murder must surely be off the table.

Masipa had moved on to the defence case when we adjourned. She said that Pistorius’s own evidence had shown “a number of apparent defences”, which she proceeded to list. Here she seems to be considering the question of whether Pistorius fired “by accident” or with intent.

One revealing moment before we broke: Masipa quoted Pistorius as saying that if he had wanted to shoot to kill, he would have aimed differently. These assertions, Masipa said, are “inconsistent with someone who shot without thinking” – and she said she’d return to the point in her final judgment. That’s the first thing we’ve heard today that doesn’t look good for Pistorius.

08.00 Here we are again at Ground Zero of the Pistorius case: the North Gauteng High Court in Pretoria. The weather may be slightly at odds with Oscar Pistorius’s mood today: it’s predicted to hit over 30 degrees later. The “tent town” outside the court, comprised of stations for broadcasters and their satellite vans, is back in full force. From as early as 6am this morning, local and international journalists began milling outside in preparation for what will certainly be one of the biggest news items in the world today.

There’s no sign of the accused or his family yet, though Reeva Steenkamp’s friends the Myers family – with whom she was staying in Johannesburg before her shooting – have already arrived. An elderly woman in a wedding hat announces she is here to support Oscar. Another woman has come all the way from Nelspruit with a sign pinned to her, reading “Imprison for Reeva”. Expect both camps to be out in full force today.

If Oscar Pistorius’s brother Carl attends proceedings today, it may be in a wheelchair – as the older Pistorius son is still in recovery from a serious car accident some weeks ago.

Courtroom GD will only open to journalists and the public at 8.45, 45 minutes before Judge Masipa will enter the court and proceedings will begin. That hasn’t stopped a queue forming already. There’s something of a reunion atmosphere for journalists who last saw each other at various points throughout the trial; international media are shoving mics in the faces of anyone who looks like they might have an opinion on Pistorius’s fate.

Nobody knows for sure how long the judge will take to read her verdict. Two days have been set aside, but this may simply be as a fallback to ensure enough time. It is possible that Judge Masipa could conclude matters today. Given the amount of evidence she has to summarise, however, nobody will be surprised if court adjourns today without a final verdict.

Knowing that the eyes of the world are upon her, Masipa will likely want to take her time in spelling out exactly what her reasoning has been in coming to her decision. Remember that there are a number of potential outcomes on Pistorius’s main charge: she may find him guilty of pre-meditated murder; guilty of murder without pre-meditation; guilty of culpable homicide; or not guilty at all. It can’t have been a restful night’s sleep for Pistorius. DM

Photo: South African Paralympic athlete Oscar Pistorius (C) arrives for his ongoing murder trial, at the High Court of Pretoria, South Africa, 08 August 2014. The defence will give final argument today as Pistorius stands trial for the premeditated murder of his model girlfriend Reeva Steenkamp in February 2013. He says he mistook her for a burglar. EPA/KIM LUDBROOK

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