Behind the Mirrors – Why Oscar Pistorius will go to jail

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Not since OJ Simpson has a trial captured the world’s interest in the way the Oscar Pistorius trial has. As different camps fight it out on Twitter and the media runs with the most sensational headlines of the day, the public awaits the court’s verdict with fascination and impatience.

On one side is a defence team with a dual objective, to get Oscar acquitted and to salvage his public image. And so we’re treated to a carefully choreographed script that’s heavily reliant on his public displays of grief. Pay no attention to the semantics over whether or not he “took acting lessons”, this is a meticulously managed performance where nothing has been left to chance.

On the other side is a prosecution that’s quietly confident in its case and keeping its eye firmly on the points of law that it believes will help it win this battle.

While it’s too early to call the verdict, I’ll bravely put out there that the State has a strong case that’s been overshadowed by the theatrics in the courtroom. I’ll be very surprised if Oscar walks away from this without doing some jail time.

In the public’s search for a smoking gun a few facts have been overlooked and the strength of the State’s case underplayed. Thankfully this is not a jury trial, in the end the verdict will be decided more on points of law than the public dramatics.

1.The Indictment

There’s been a lot of talk about Oscar being charged with ‘pre-meditated murder’, however, looking at the indictment he’s charged simply with murder, which under South African law is the unlawful and intentional killing of a person. The fact we now know there was never a burglar in that house makes the killing unlawful, even by his version. His defence accepts Reeva’s killing was unlawful, the dispute is whether or not it was intentional.

In looking at intention, the concepts of murder directus (dolus directus) and murder eventualis (dolus eventualis) come into play. Under directus he fired those shots knowing it was Reeva and intending to kill her. Under eventualis he shot believing it was a burglar but could foresee the possibility that he would kill the burglar and went ahead and shot anyway. Hence the charge is a double barrelled one so to speak. The State will argue (a) “you shot Reeva after an argument fully intending to kill her” and (b) “even if we accept your version that you thought it was a burglar, you still shot knowing you would kill that burglar”. The fact he overrode a gun with a double safety mechanism, not once but four times, to fire black talon ammunition into a tiny cubicle makes it unbelievable that he did not intend to kill the person behind the door even by his version.

If Judge Masipa finds it was murder directus Pistorius will probably get a life sentence and if she finds it was eventualis, he’ll get a lighter sentence.

2. Motive is irrelevant

In the public arena there’s been much talk that Oscar couldn’t possibly be guilty of murder because the State hasn’t proved motive. However, an important fact has been overlooked; the State doesn’t have to prove motive to get a conviction! While motive is nice to know the State can still show that, for example, as a competent gun owner he shot fully understanding the consequences of his actions and with full intent to kill. Proving why he formed this intention is his motive and not essential for conviction.

It’s also relevant to note here that intent can be a decision made a few minutes before he shot, it need not mean he sat up plotting it weeks in advance.

3. Circumstantial evidence is evidence

Oscar’s supporters often state “we’ll never know what happened that night”, “It’s between him and his God” and “who are we to judge?” as if somehow this gives him immunity from being held accountable! The fact that the only other person in the house that night is dead necessarily makes the State’s case a circumstantial one. However, circumstantial evidence should not be assumed to be weak or invalid.

Remember, criminals are convicted on circumstantial evidence every day and it can often be more reliable than direct evidence. Circumstantial evidence requires some inference or reasoning in order to prove a fact as opposed to direct evidence from an eye witness or participant for example but can be strong evidence nonetheless.

4. And then there’s Culpable Homicide

Even if Oscar Pistorius is found not guilty of murder, Judge Masipa can still find him guilty of culpable homicide. The difference of culpable homicide from murder is that the unlawful killing is negligent rather than intentional. Here the Judge will use the reasonableness test – would a reasonable person have shot four times into that toilet without determining who was in it or indeed where his girlfriend was who hadn’t answered any of his shouts?

I dare say I don’t see him walking away scott-free from both types of murder and culpable homicide. And neither should he!

 

m4s0n501

Comments

  1. Lerato@LGK25 says

    How will being a first time offender, having shown remorse and being a disabled person have any impact to how judge Masipa decide to give life sentence or not, regardless whether murder was intentional or not.

    • Sani Dowa says

      Absolutely right about difference Denise though colloquially we use the words as being same. Glad you enjoyed reading.

      • Sani Dowa says

        Technically jail is for people awaiting trial or those sentenced for short durations and prison for those who have already been sentenced and for long terms. In South Africa though the two terms tend to be used interchangeably. Prisons are run by the Correctional Services Department which has very limited resources so the two groups do sometimes mix. They’ve moved to resolve this but not very successfully so far.

  2. RITAINNJ says

    A reasonable person would NOT have shot thru a closed toilet door just because of noise coming from there…

    • Sani Dowa says

      In this case he’s also a gun owner whose competency test shows he knew the law around discharge of fire arms.

  3. Cynthia says

    He could have stopped after the first shot but instead he turned the gun into a slightly different direction and fired three shots thereafter. Intent was when he turned off the safety catch. Deliberate was after the first shot was fired. I wonder who was/were Oscar’s victim/s before this when he described shooting a melon is softer than shooting a brain. We will never know I guess as he always covered his crimes before this. I expect when the trial resumes he could blame the devil or the burglar for taking his gun and shooting Reeva. Very informative and I am a little more wiser now, thank you.

    • vee says

      “Blame the devil or burglar” hahaa I like that…the man is just a character
      From the beginning I have never believed a word he said.It makes me sick that even having killed her he’s now using her to try & beat the charge.The man is a sociopath!

      • Loyd says

        Thought I was the only one who felt sickened by that.. using the very person he slaughtered like caged animal to wiggle himself out of the mess he has found himself in.. Sick to my gut.. and worst still the boy doesn’t accept to take even the slighted of responsibility for this.. I think when he realises his cards are up.. he will blame Reeva.. watch that space!

        • Sani Dowa says

          He does seem to have a way of blaming everyone except himself and more worryingly doesn’t seem to think anything of it.

    • Sani Dowa says

      Ballistics will certainly be a crucial part of the case and will be interesting to hear what defence ballistics expert Wolmarans has to say when trial resumes.

      • Emerald says

        Betcha, he is gonna bail out! Or make sure he got his story strait. Court now has low threshold 4 ‘pretend experts’

        • Sani Dowa says

          I doubt that most of Dixon’s testimony will be accepted by the court after Nel pointed out some serious doubts about its integrity.

  4. says

    I believe that Pistorius will definitely be found guilty on the possesion of illegal ammunition, the shooting at Tasha’s and the firing through the sunroof charges. All of this will only make any sentence on the charge of murder more severe. It also goes to support the argument that he does not take responsibility for his actions and that there are so many inconsistencies in his version that it unlikely to be true. His bail version, plea version, and then vesion under cross examination are all different. Then the expert witnesses for the defence have even contradicted the version of the accused making it very confusing indeed.

    • Sani Dowa says

      It will be interesting to hear what Wolmarans has to say when he testifies. Not a good look when your own ‘expert’ witness contradicts you.

  5. says

    In as much as the unlawful element is fulfilled, the defense purports to negate unlawfulness by raising a defense against the unlawfulness of the shooting (putative self defense). The court has to determine whether or not their argument for the defense is valid enough to raise reasonable doubt against unlawfulness. Intention is important too, but as the case stands, intention has been proved at least to some extent. Court also has to ask itself what the reasonable person would have done (presumably with the same disabilities). And with regards to the black talon, there’s a school of thought that the bullets aren’t designed to necessarily to kill, but to stop someone. I don’t know much about biology but I’m assuming the fact that they explode the moment they make contact with tissue organism makes them less penetrative and less harmful (but this is just me speculating and the court might not find that very relevant, the judgment will tell) would also be interesting to see what the judgment actually states, especially going forward to the appeal case, cause there most probably will be an appeal (especially is oscar is found guilty)

    • Sani Dowa says

      No doubt there will be an appeal if found guilty. The way Mangena described the black talon, it’s clearly meant to cause maximum damage which is reason it’s so hard to get.

      • says

        Well the bullets themselves where designed primarily for self defence and law enforcement and the reason it’s hard to get at least according to an online search is cause manufacturing was discontinued from about 2000

      • says

        In any case assuming the bullets where as lethal as mangena alleged the court can’t impute the knowledge of a ballistic person on Oscar, he doesn’t have the same of expertise or understanding mangena would have. The regular reasonable gun enthusiast which is what I’m assuming oscar can be labeled at would buy ammunition based on what it is advertised to do by the Producer

        • Sani Dowa says

          Yes he would certainly plead ignorance about the effect of the bullets. Nel asked him whether he’d used black tallon on the water melon and he denied that but clearly State feel he knew their effect.

  6. Elize says

    He knew Reeva was in the toilet!. I wish Jounalists could take photos in the
    2 weeks , to see what is Oscar doing!!.

    • says

      No wonder he opted to give evidence without the cameras on him because he would know that body language experts and forensic psychologists would have had a field day interpreting his body language.
      What I have noticed is that one minute he is blubbering then the court adjourns but when he comes in and out of the court he never looks upset in the slightest. He can switch the tears on and off at will. He has also learned how to vomit at will also. Although most of us could vomit if we retched as often has OP does.
      These behaviours are most deliberately aimed at trying to show what a fearful person he is and how sorry he feels for Reevas death when he doesnt give a damn. He is that heartbroken that within weeks of Reeva’s death he found another woman. I hope for her sake that he goes to prison before the honeymoon period wears off and he starts abusing her.

      He is like the family psycho where they all shield him for fear that his behaviour will cast aspersions on their own states of mind.

      From Shakespeare to modern literature disability is used as a ‘metaphor for evil’ so it is almost like he cant help it to people who believe in the stereotype as well as those who think he is deserving of pity when he has never known anything else. He is one of the few disabled people whose disability has actually been a blessing for him and through which he has been able to earn a good living.

      OP has always claimed he doesn’t feel like he is disabled but now that he is in trouble he is using it as part of his defence or as a means to ensure a lighter sentence.

      Disabled people would find it offensive if his disability is used as an excuse to treat him differently from anyone else.
      Can you imagine a gay man or black man being handled with such kid gloves as OP? I don’t think so; but somehow people feel they have to help OP like he is a charity case when he comes from a wealthy family and is a millionaire as well as an obnoxious personality.

      I think he is absolutely guilty of murdering Reeva Steenkamp and if he gets off with this, he will do it again.

      One thing worries me is that the judge seems to accept that he is genuinely remorseful and suffering from stress as she has made a few comments in his favour. He has gone out of his way to curry favour with her. I have noticed that he is the last person to sit down when the judge enters the court and everyone else has sat down.He seems to focus on her more than anyone else. He also looks like he is praying every day. I bet he hasnt been to church or prayed in years.
      He is the ultimate con-man and I am afraid that he has conned everyone again and will walk. Let’s face it, he’s a wealthy middle class white man and they always get off.

      • Sani Dowa says

        During Oscar’s testimony Nel had a police clinical psychologist, who specialises in profiling murderers and rapists, in court watching and providing input for cross examination. She’s been working with the State throughout. It’s clear they’ve profiled him and are using this insight in building their case against him.

      • Sani Dowa says

        The judge has to ensure his constitutional rights are protected irrespective of what she may personally feel about him. If she doesn’t this could be grounds for an appeal.A good example was her stepping in during his cross examination to check whether he was too tired to continue.

  7. Emerald says

    I believe this person of #Oscar Pistorius needs to be put out from the community & given plenty time to think about his unacceptable, dangerous thoughts & actions against society! It goes without saying that it’s beyond despicable to use disability as an excuse to exert deadly force on a defenceless woman or anyone else for that matter. What convinced me Oscar is truly dangerous is words like ” I wish Reeva had screamed & let me know where she was”, SERIOUSLY??, and to deny the blood curdling screams of a fatally wounded person 3m from you is just beyond EVIL! True love is not shielding someone from the bad consequences of their questionable behaviour. If Oscar’s family loves him at all they will want to make sure he gets the help he so desperately needs!

    • Sani Dowa says

      How the court treats his disability will be interesting. There’s not one law for able bodied people and another for the disabled when it comes to gun laws.

  8. Cam says

    What do you mean when you say “The fact that he overrode a gun with a double safely mechanism, not once but four times…”?

    Other than that question, I thought your piece was very clear, well written and gives a concise summary of the legal issues.

    • Sani Dowa says

      Thank you!

      The gun used to shoot Reeva actually has a triple safety mechanism, meaning it’s impossible for it to discharge accidentally. For Oscar to fire four shots means he had to deliberately override the safety mechanism four times which in turn suggests intent.

      • Solaris says

        Your article is logical and well written. Thanks for the insight. I think the issue with the gun as you explain does point to intent to shoot. I do however believe his story about the intruder only because Michelle Burger described the screams that she heard 150m away as petrified, fearful and blood curdling…that had to have been Oscar (gunshots followed by screams then another set of shots from the cricket bat which Michelle heard) and it just does not make sense that he would scream that way if he shot Reeva with intent. This too before he broke down the door and realised that she was fatally wounded….I do not envy Judge Masipa’s position….this case is very complicated.

        • Sani Dowa says

          Thank you!

          State has different sequence of gunshots which they will only reveal in argument when they tie everything together. As Nel pointed out during cross examination, why would he scream throughout then stop suddenly after the 4th shot at the same time that Reeva would have died? Personally I believe his claim of screaming has been tailored to explain away the screaming woman heard by neighbours. Will be interesting to hear what more defence has to say about screaming next week and you’re right, who would want to be in Judge Masipa’s shoes?

          • Solaris says

            Hi Sani. Thanks for reply.
            The thing that is wrong with the state’s case is the sequence of events. According to Mrs Stip who was awake around 3:00 she did NOT hear shouting before the first shots were heard. She and her husband got up with the shots and they heard the shouting and screams for help AFTER the shots. Dr Stip also saw Oscar walking across the window from the toilet to the bedroom(when he said he went to get the crickey bat). They then heard a SECOND set of shots which they thought were gun shots again, but which had to have been the cricket bat. After this set of shots Oscar said he went in and stopped shouting but was crying when he saw Reeva. This sequence matches Oscar’s,

            Barry Roux took pains to point out that from the times of the calls which Mr Johnson(Michelle Burger’s husband) made and Dr Stip’s call to security, that Michelle who said she heard screaming and then 4 shots actually did not hear the first 4 gunshots. Barry showed that she was tailoring her evidence because she first said three to four shots in her statement and then in her testimoney she emphatically said it was 4 shots. She said that the first was followed by a short break and then the next shots. This matches Oscars version where he said he first struck the solid panel and then changed the position of the bat to strike the middle panel. The time of these sounds (3 hits on the door, not 4) is confirmed at about 3:15 or 3:17. The gunshots were about 5 minutes before.

            I think Nel put Michelle first to make his case about an argument and screams, but when Barry showed that Reeva could not have screamed after the gunshots, Nel then changed the states case to where he got up and said that the state’s case is that the second sounds were the gunshots. This is illogical and has actually confused many people including experts. The states witnesses have actually helped the defence prove from the times of the calls that it had to have been Oscar screaming! This sequence of events (not the shots) is not going to change and I cannot see how it can be argued away by Nel.

            We live in interesting times! I would love to hear your take on this.

          • Sani Dowa says

            Nel said to the judge at the beginning of the trial that the State would explain the sequence in their version and and discrepancies between witness statements during argument. Remember at this point they’re only giving as much information as they’re legally obliged to and playing their cards close to their chests where they don’t have to divulge information. They believe explaining their sequence upfront will allow Oscar to tailor his evidence to it. So until we hear the State’s version I wouldn’t make too many conclusions.

            Oscar’s version makes sense if you believe it was him screaming which the State does not and in their argument will seek to show why it couldn’t have been. The State pathologist, Saayman, testified that screaming is not cognitive function it’s an instinctive, adrenalin reaction and that it would be very unusual for Reeva not to have screamed and that she could have screamed after the last shot to her brain (as screaming not cognitive). Given that State is pretty much relying on his report and Reggie Perumal who attended autopsy for defence, agreed with his findings Saayman’s testimony will hold a lot of sway. But I’ll be interested to know what the other neighbours not called by State have to say when they’re called by defence.

  9. Jennifer says

    Hi there. I’m from Canada and was wondering if you could tell me what the two “assessors” do? Is it true that they find he facts and he judge rules on the law? What if the two assessors disagree? Who writes the final judgment?

    • Sani Dowa says

      Think of the assessors as experts for the court and yes it’s true that they are there to assist the judge with the facts and judge alone rules on the law. If there is difference of findings of fact the majority doctrine applies. For example if two assessors find for murder and judge for acquittal they can override her. If judge and one assessor find for murder that is what stands.

      On matters of law such as if Roux applies for acquittal, only judge makes this decision. Similarly when it comes to sentencing only judge makes decision, even if she’s sentencing on a verdict she didn’t agree with and that was a result of being overridden by majority doctrine.

      In such a high profile hotly contested case on points of fact, it was wise of judge to get expert input of assessors.

  10. miktal says

    Hi, Great read

    What are your thought about the lesser charges?
    Nel was very surprised that OP plead not guilty to the ammo possession when he clearly had no defence. Also the “impossible” discharge at Tashas was making the States picture of an arrogant and irresponsible OP all the clearer.

    It is my suggestion that Roux advised OP to plead guilty to both, but it was OP who made the decision not to. It seems a disastrous strategy, one of which I`m pretty sure Roux would not have made. Nel scored big from it.

    How did you see it, and what would the sentencing be on these two charges?

    • Sani Dowa says

      He’d have been better off getting the firearms charges off the table and could probably have got off with just a fine. I suspect it’s Oldwage advising against pleading guilty rather than Roux. His testimony about the restaurant incident was so incredible it calls into question other aspects of his version. Also don’t forget his father refused to sign a statement claiming the ammunition in the safe was his which suggests the story is not true.

    • Sani Dowa says

      Well fortunately that’s not how the law works otherwise we’d all be at the mercy of every paranoid person who decides to shoot.

  11. Emmanuel Sibanda says

    evil’s advocate a bit, the mere fact that one is petrified allows the individual to fire 4 shots through a door at the ‘alleged’ intruder? Should the fear not be reasonable? under the circumstances of Oscar’s case what facts can you present which show that the fear was reasonable?

    To adopt a simple argument, if the court where to accept self-defence merely out of a person’s subjective fear wouldn’t that create a rather, to put it bluntly ‘strange’ precedence?

    Lastly for self defence to be successfully raised, doesn’t Oscar’s legal team have to have proved that there was some sort of threat to his life? in the present case there was no real threat (which is why their defence is putative self defence)

    • Sani Dowa says

      True Emmanuel. We could all go around shooting people because of our own paranoia and that would be just dangerous situation.

  12. Wade says

    Although this is really a sad and tragic situation, I have to applaud you on how well you have written about this case. With the Casey Anthony and the OJ cases here in the states, the way you have explained and interpreted this case is truly remarkable. I wish the everyday media appeared as educated as you and had the capability to write with such accuracy.

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