Pistorius: The Procedure the Judge Will Follow


It has been the most-followed criminal trial of the year: Oscar Pistorius, the ‘blade runner,’ is charged with shooting his girlfriend, Reeva Steenkamp, with the intention of killing her.

The testimony and evidence phase of the trial ended Friday (August 8), after closing arguments by the prosecution and defense. The case now goes to the judge, Thokozile Masipa, who has said she will reconvene the court September 11 to announce her verdict.

Under South African law, two ‘assessors’ appointed by the judge will help with the judge’s decision. — When there is a criminal trial without a jury in the UK or the US, and the presentation of evidence is finally finished, press reports often include the cliché that ‘the fate of the accused is now in the hands of one person.’ That ‘one person,’ of course, is the judge.

But where the UK and the US continue to follow British common law closely in a criminal prosecution, there are some differences in South Africa. South Africa uses British common law, but has some features of Dutch and Roman ‘civil law.’ (Civil law is more about ‘rules,’ while British common law stresses flexibility.) Some practices of the indigenous population have also been incorporated into South African law.

Accordingly, before the Oscar Pistorius trial began, Judge Masipa appointed two assessors — a standard practice — to hear the case with her, and assist her in reaching a verdict after the testimony and evidence were finished.

The press often recites that ‘a jury trial is not available’ in South Africa. But the fact that the judge plus two assessors will collaborate in reaching a verdict in the Oscar Pistorius case does, we might say, move the case ‘part of the distance toward having a jury involved.’

Or we might simply say that everyone, including the judge, ‘rests easier’ knowing the burden of deciding guilt or innocence won’t fall entirely on a single individual.

Is anything to be gained by our trying to ‘predict’ the outcome in a criminal case? — It is ‘human nature’ to enjoy comparing the two sides of a controversial question. The mind enjoys the give-and-take of questions and answers, the give-and-take of formal debate, and the give-and-take of testimony and evidence in a courtroom drama.

It is natural enough to have an opinion on Mr. Pistorius’s guilt or innocence — but for many, it is also ‘natural enough’ to be thoughtful in considering the case, but perhaps stop short of forming an opinion on guilt or innocence.

What the judge must decide. — The facts of the case are that on February 14, 2013 — Valentine’s Day — Mr. Pistorius fired 4 shots into the closed door of the bathroom located just off the bedroom he shared with Ms. Steenkamp in his home. Three of the shots hit her, and one shot hit her in the head, killing her.

Neighbors testified they heard screaming before or when the shots were fired. Mr. Pistorius, however, testified that he and Ms. Steenkamp were asleep, but he heard what he thought was an intruder in the bathroom and, alarmed, grabbed the gun he kept near the bed and fired 4 shots into the closed bathroom door.

Was the shooting premeditated murder? — If the judge, with the help of her two assessors, decides Mr. Pistorius knew Ms. Steenkamp was in the bathroom, and before he pulled the trigger decided to kill Ms. Steenkamp, then he is guilty of murder with ‘malice aforethought.’ That is, he formed the intention to kill Ms. Steenkamp, then committed the act that, in fact, killed her.

The penalty for premeditated murder in South Africa is a sentence of 25 years to life in prison.

Murder: Shooting to kill, but not kill a particular person. — Generally speaking, to point a gun at or toward someone and pull the trigger, is to be ‘willing’ to kill.

If the judge decides Mr. Pistorius was willing to kill whoever was behind the closed bathroom door — but didn’t know with certainty who it was he would be shooting — the judge’s verdict would be murder, but murder without ‘malice’ toward a particular person.

Was it a ‘crime of passion?’ — A shooting by a person in a mood of extreme anger or rage — that is, a shooting that is a ‘crime of passion’ — is also considered murder without ‘malice aforethought,’ because sometimes we are so ‘blinded’ by passion we cannot think clearly enough even to conceive a deed of ‘malice.’ The sentence for murder without malice aforethought in South Africa is 15 years.

‘Culpable homicide is the most my client should have been charged with.’ — You may have heard Mr. Pistorius’s attorney comment that ‘the most’ his client should have been charged with is ‘culpable homicide.’ The word ‘homicide’ means only ‘death caused by a person,’ and the word ‘culpable’ means only ‘worthy of blame.’

Killing someone by an act that is careless might be ‘culpable homicide.’ Handling a gun carelessly, negligently, unwisely — with the result that someone is killed — might be examples of ‘culpable homicide.’

If the judge decided Mr. Pistorius is ‘high-strung’ and ‘foolishly’ grabbed a gun and began shooting because he thought there was an intruder in his bathroom — that could constitute ‘culpable homicide.’ In South Africa, the sentence for ‘culpable homicide’ is entirely in the judge’s discretion.

That view of the case — that Mr. Pistorius is high-strung and reached for his gun and began shooting when he heard what he thought was an intruder — is the understanding of the case the defense originally set out to prove.

And, in fact, the defense argued that what Mr. Pistorius did was not even ‘blameworthy.’ It was ‘understandable,’ the defense argued, ‘that Mr. Pistorius would pick up his gun and start shooting when he thought he heard an intruder — and therefore, he is completely innocent of any crime in the killing of Ms. Steenkamp.’

Unrelated to Ms. Steenkamp’s killing are 3 firearms charges. — Two counts of unlawfully discharging a firearm, having nothing to do with Ms. Steenkamp’s death, are also before the court: Firing a gun through the open sunroof of a car (Mr. Pistorius told the court he waved the gun in the air, but did not fire it), and firing a gun under a table in a restaurant (a friend handed him the gun, he said, and he didn’t know it was loaded). Each of these counts carries a 5-year sentence.

In addition, Mr. Pistorius is charged with possession of illegal .38 caliber ammunition, the penalty for which could be 15 years in prison. He told the court the bullets were his father’s, and he was holding them for safe-keeping.

The next date on the court’s calendar: September 11 is the date the judge has said she will convene the court to announce her verdict. When sentencing is part of a high-publicity case, it usually follows an additional period of days or weeks for consideration and recommendations. It is expected that any conviction will be appealed.

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