Behind the Mirrors – Why Oscar Pistorius will go to jail
by Sani Dowa
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.
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 intentionalkilling 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?