Opinionista Gushwell Brooks 11 September 2014

Oscar trial verdict [part one]: A twist, but problematic

The Oscar Pistorius case has, via traditional media and social media coverage, extended the courtroom gallery that would ordinarily fail to attract an audience of more than 30, to a global viewership of billions. The corollary effect is that laypeople, including members of the media, have suddenly become legal eagles quoting Latin terms such dolus directus and dolus eventualis.

I am to be counted among this cast of laypeople, despite my legal training, as I never actually practiced law. Analysis is inevitable and I respect the law and resultant judgments too much to second guess them but the first half of Judge Thokozile Masipa’s decision seems to contradict my analysis as well as that of many legal experts in the field of criminal law, experts I have spoken to while covering this case. Despite her incomplete ruling, it is clear she has effectively exonerated Pistorius on a crime of intent murder.

The trouble starts with the judge’s remarks on Pistorius’s testimony. Like most people who listened to and watched Pistorius on the stand, I found he was an overwhelmingly bad witness. He excelled while being led in evidence by his defence council, Barry Roux. It was his side of the story, after all, and as any litigator would attest, the true test as to the veracity of anyone’s version of events occurs under cross examination. This is where Pistorius became unhinged, most importantly in terms of his defence.

Here is a hint: if you are accused of a crime and you plead not guilty in the hope that you secure an acquittal, have a defence! Pistorius had a defence, putative private defence: according his original story, he thought an intruder, who could harm Reeva Steenkamp and himself, had gained entry through the bathroom, and was concealed behind a closed latrine door. Before this ‘person’ could cause the harm he had perceived and expected, Pistorius acted. This was his story from the time of that fateful morning on the 14 February 2013 when he shot and killed Steenkamp. It was a tough defence, but a defence nonetheless, one Roux and his team had handled well up until Pistorius’s cross examination.

When Gerrie Nel had his turn, Pistorius tried to rise to the challenge of a battle of wits, and failed hopelessly. He slid from putative private defence into the domain of automatism, in essence saying that before he had realised what happened, four shots had been fired and Steenkamp was tragically dead. He contradicted himself, and he veered from his initial story. Masipa remarked on this fact on day one of her verdict by saying, “The accused was a very poor witness.”

Nonetheless, the judge seemed to accept Pistorius’s version that he wanted to protect Steenkamp and had no intention of shooting and killing her behind a closed toilet door. But her understanding of intent (dolus) is what is in contention. Nel, for the State, failed to prove the premeditation that would have seen Pistorius locked away for a very long time.

The judge found a series of electronic messages between a couple, who squabbled sometimes and were also the epitome of affectionate with each other on other occasions, did not constitute proof beyond a reasonable doubt that a confrontation led to Pistorius being so enraged he killed Steenkamp. Nor did the messages prove there was cause to believe he had planned her murder beforehand, which would be premeditation. Dolus directus – the intent to actually take the life of Steemkamp – was most certainly not proved by Nel, but we remain with the sticky issue of dolus eventualis.

Nel, correctly, in his closing argument and during his cross examination., pointed to the fact that Pistorius had retrieved his firearm, traversed a dark hallway and stepped into a dark bathroom to confront a perceived threat behind a locked toilet door. “I just wanted to protect Reeva, my lady,” were Pistorius’ tearful words. In “protecting Reeva”, Pistorius should have recognised that by confronting an intruder with a loaded, lethal weapon, firing it as he was startled, no matter how low or high, he could have mortally wounded whoever was behind that door. People, short or tall, can crouch or sit and bullets can still hit them in the cranium, as was the case with Steenkamp.

He should have reasonably foreseen the possibility that he could kill whoever was behind that locked door, no matter who it was. With the recognition that he could cause the death of that person, and the dolus evantualis definition being, “… legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences”, how is a finding that Pistorius had no intent correct?

Judging by my social media feed, it is clear a number of people are dissatisfied with the judge’s ruling, and assuming they understand the legal issues involved, they may be justified. As for talk about being disappointed in the entire legal system, now that is throwing the baby out with the bath water.

For one thing, the debate is loudly raging, but some argue that the judge made an error in law, meaning that the state could possibly appeal her finding. Apart from that, what we all fail to remember is that the sequel is yet to come. Masipa has not completed her verdict and with the “you are certainly negligent” cliffhanger, she will most likely find Pistorius guilty of culpable homicide, a crime of negligence, and he could face long term incarceration.

Judges are fallible, but our legal system is well developed and sophisticated enough to deal with such divergences. Also an entire legal system is not under threat when one case disappoints expectations, no matter how well informed those expectations might be. So in as much as the first day’s outcomes in regard the verdict were a shock and somewhat of a disappointment, let’s Masipa finish her judgment and if need be, let the wheels of the law continue to turn. DM