Sep 112014
 

Who’d have thought that Oscar Pistorius was not guilty of murder?

reeva steenkamp oscar pistoriusAt a rough guess, probably nobody, apart from his family, and perhaps one or two of his defence team, but there you have it.  Judge Thokozile Masipa has stated very clearly that the prosecution failed to prove its case, and this brings us back to an old principle in law, a principle designed to combat the lynch-mob.

Let me give you an illustration.

Years and years ago, our house was broken into. The thief didn’t get much because we didn’t have much, but he took a treasured clock which was a present from a relative.  Police came.  They took measurements and photos. They took fingerprints. They took notes and statements.  They caught somebody.

I received a summons to turn up at the Circuit Court as a witness and, never having been inside a courthouse in my life, I didn’t know what to do, so I asked my legal friend.

What’ll I do?

Haw, haw, haw he haw-hawed in his best Law Library haw-haw.  Go out and have yourself a motherfucker of a meal.  Claim for a day’s lost wages and hand the bill to the court clerk.

I did nothing of the sort, because in those days I didn’t know that everybody in the government was crooked and robbing the country blind, so I did my bit to keep us afloat. Probably, by forbearing to buy a motherfucker of a lunch, I might have paid for the cuff of somebody’s Charvet shirt.

I just turned up in court, in my poorly-fitting, cheap and rarely-used suit.

They swore in a jury. They sent them away. There was an old judge, whose name I can’t remember, and after looking over the book of evidence  he addressed the police.

You arrested this man because you found his fingerprints on the outside of the window and yet he stated that he had never heard of this address.  

This proves one of three things.  

He might be a liar, he might have a bad memory, or the Gardai might be liars.  

The book of evidence provides grounds for gross suspicion, but the day we start imprisoning people on the grounds of gross suspicion is the day we have a police state.

I was deeply impressed by this old judge and I agreed with every word he said.  I agreed with him when he dismissed the case against the scumbag who had robbed me.  Better for a scumbag to walk free with my treasured clock than for the State to imprison someone on the basis of bad evidence.

The State has to prove its case so that nobody can accuse law-abiding citizens of a crime and have them jailed without adequate evidence.

Gross suspicion is not a good enough reason to convict anyone, even Oscar Pistorius.  It doesn’t matter if I happen to think he deliberately shot Reeva Steenkamp.  It doesn’t matter if every troll on Facebook thinks he murdered Reeva Steenkamp.  This is not the X-Factor.  This is not the Big Brother house.  People should not be convicted on the basis of a public vote.

Judge Thokozile Masipa stated it as plainly as possible: the State failed to prove its case and therefore Oscar Pistorius is not guilty of murder, no matter how repulsed any of us might happen to be.

Yes, he fired four shots through the bathroom door when he should have known his girlfriend was in there, but in order to convict him of premeditated murder, the prosecution needed to prove that killing Reeva Steenkamp was his intention, and they didn’t.

With a fine sense of dramatic timing, the judge left us hanging for another day before we hear the final verdict, but in all probability Pistorius will be convicted of culpable homicide, known in these parts as manslaughter, and that’s a fair enough result, based on the evidence presented.

Needless to mention, Facebook and Twitter will go demented with outrage but that’s nothing new.  Why didn’t I buy up all available stocks of torches and pitchforks when I had the chance?

 

 

  28 Responses to “Gross Suspicion Not Enough to Convict Oscar Pistorius of Murder”

Comments (28)
  1.  

    “You arrested this man because you found his fingerprints on the outside of the window and yet he stated that he had never heard of this address. ”
    How did his fingerprints end up on the window so? Of course he was lying. That is real, physical evidence that he was there. Of an address he claims he never heard of.
    I don’t understand that decision.

  2.  

    It was grounds for gross suspicion. And the judge quite rightly pointed out that gross suspicion is not the same thing as proof.

  3.  

    Is he walking free?
    I cannot believe this!!

  4.  

    He won’t go free. He’ll be convicted of manslaughter and jailed for it.

  5.  

    Sorry, bad joke there, about the walking.

    “Probably, by forbearing to buy a motherfucker of a lunch, I might have paid for the cuff of somebody’s Charvet shirt”
    Hehe.

    My own view is that if gross suspicion is not enough, then it could and probably has caused people to take the law into their own hands.

    In a case like this, I don’t believe prosecutors should have to prove premeditation.
    The facts speak for themselves.
    He shot the girl in cold blood, while she was in the bathroom.
    You can’t get into anyone’s mind.
    What proof could they possibly come into that he intended to kill her?
    A hand written ‘note to self’ beforehand?

    With the example you gave of the unfortunate circumstance of your house being burgled, the man in court was at your house at some stage for some reason.
    He had no business being there, unless he was a window cleaner perhaps.. I’m guessing he wasn’t.
    Never heard of the address, he robbed so many houses is it?

    What evidence would have been enough to convict him, besides catching or recording him in the act?
    What message did it send to that thief, that even though there was ‘gross’ suspicion, he wasn’t convicted?
    The facts speak for themselves in a lot of cases..

  6.  

    That’s the burden of proof whether we like it or not, and I’m glad it’s there. It will protect me from some extreme policeman some day.

  7.  

    I believe he knew she was in the bathroom, when he was firing the shots.
    Where did he come from, the bedroom?
    Would he not have known that she wasn’t in the bedroom, therefore there was a possibility, a strong one, that she was in the bathroom?

    If you’ve ever shared a house with anyone, as we all have, and they are up and about and you’re not sure who it is, would the normal response not be to call out to them? It’s implausible to me, that you go on a shoot out, on a suspicion you have a bugler, given the circumstances, as I said, of his girlfriend being in the house with him at the time.
    She wasn’t shot outside trying to get in the backdoor here.

    I might agree that gross suspicion isn’t enough to convict, I just don’t think it falls under that criteria, in this case.

    Anyway, he’ll have to live with himself.
    No amount of justice will bring her back.

  8.  

    Don’t get the idea that I’m defending him.

    This is about what the prosecution can prove.

  9.  

    Sure. I don’t believe you are.

    Personally, I don’t know enough about the particulars of the case and how they fit into the definitions of the laws in that country, to give an informed opinion here..
    But common sense dictates to me, when he fired shots into the bathroom, he knew it would kill her.

    That seems to be the crux of the judge’s decision, and it seems ludicrous to me.

    http://www.telegraph.co.uk/news/worldnews/oscar-pistorius/11087281/Oscar-Pistorius-verdict-live.html

    The complex legal argument that exhonerated him from the charge of murder without premeditation, which rests on the judge deciding he was not subjectively able to foresee the consequence of firing through the door as the death of the person inside, will undoubtedly be poured over ahead of the verdict tomorrow and for some time after

    13.42 Confusion over verdict

    In finding Pistorius to be negligent, Judge Masipa appeared to suggest that he foresaw consequences of firing shots though the door – which would contradict her earlier ruling against ‘dolus eventualis’, or murder without premeditation. The decision seems to rest on the difference between ‘did’ foresee the consequences of firing through the door, and ‘should have’ forseen the consequences.

    The prior would invovle a charge of murder and the second a charge of culpable homicide, which she will rule on tomorrow.

  10.  

    If he knew it would kill her, that’s murder.

    If he knew it might kill her, that’s manslaughter.

  11.  

    Yeah.
    That seems to be what the judge is basing her decision on.
    He knew it might kill her – it was negligent.
    But he definitely didn’t know it would kill her.

    That might seem reasonable to me, if he hadn’t fired eh what was it? 7 times?

    It would seem like a reasonable decision to say he wasn’t subjectively able to foresee the consequence, that firing through the door would cause the death of the person inside, if he was found to have some sort of cognitive impairment that prevented him from foreseeing the consequence of what he did.

    But that wasn’t the case, so I disagree with the judge.

  12.  

    Four times.

    The judge said that the prosecution didn’t prove intent, which is probably true, although they certainly did indicate intent.

    If you asked me, I’d say it was murder, but it needs to be proved.

  13.  

    Yeah, well, there’s no doubt from the evidence that he killed her.

    In terms of proving that he murdered her, i.e. that he intended to kill her, I fail to see how that can be proved, other than from his actions.

    Equally, I fail to see how the judge can make the statement she did, that he couldn’t have foresaw the consequence of firing through the door.

    Seems to me, the door was his saving grace from a very lengthy prison term here..

  14.  

    Nobody denies that he killed her.

    As you say, his intent can’t be proved, which is why he can’t be convicted of murder.

    The judge did not say he didn’t foresee the result of firing through the door, and that’s why he’ll probably be convicted of manslaughter.

  15.  

    The state failed to prove its case. That is the crux of the British system of law based on Roman law. It has allowed some rogues to get off scot free down through the centuries, but it has saved many other innocent defendants. The law is imperfect; it is slow and it is darn expensive, but it has a certain majesty.

  16.  

    The person who has impressed me throughout this trial is June Steenkamp, Reeva’s mother. If it were my daughter who’d been wiped out in such a violent manner, I don’t think I’d have had her strength, dignity or forbearance. If she can exercise such restraint then I guess we should all contain our outrage.

  17.  

    I don’t think it matters whether it was his girlfriend or a burglar behind the door. The undisputed fact is that he shot through the door knowing that he would kill or seriously injure whoever was behind it. That to me is murder, irrespective of the identity of the victim.

  18.  

    He knew there was a high probability of hitting someone, but he didn’t know for certain. That’s what makes the difference in a criminal trial.

  19.  

    The Judge made a basic law student error and is wrong
    —————————————————————————
    The South African legal system is based on Roman/Dutch law and customary law or tribal law in plain English …Irish is based on the Common law of the UK, so the legal requirements and system are very different, not only in not having a jury but also in Jurisprudence. The judge made a grave legal error that will enable the Prosecution to appeal this verdict as stands. This case was s a textbook case of dolus eventualis and if this was a criminal law exam Judge Masipa would fail, and why? in her favor she did law correctly state the law..(but failed to fully detail the necessary to this complex case and what she did state was prefuntory . She failed to apply this legal standard accurately and in depth to the evidence presented before her, including the testimony and was to quick to write it all off as irrelevant.

    So why did Judge Masipa, decide that requirements of dolus eventualis was not met in this case? Here it is why she got it all wrong. This test in law is a subjective one. We have to ask what Pistorius was thinking. Pistorius told us he thought Steenkamp was asleep in bed. Judge Masipa believes him and takes this as proof that Pistorius did not desire the death of someone behind that bathroom door.

    But that is blatantly a misapplication of the law. Who cares if Pistorius sincerely believed Steenkamp was in the bedroom fast asleep? The question is whether he foresaw any human being behind that door – X, Y or Z nameless intruder dying, if he were to shoot at them through that door four times? So it’s not relevant that Pistorius genuinely didn’t think Steenkamp was in the bathroom. The murder charge holds so long as he believed SOMEONE was there, foresaw that four shots in that direction could kill them and reconciled himself to that outcome which he did.

    Pistorius’ made the defense is that he intentionally shot at the door to neutralize a perceived threat. He just didn’t think his voluntary shooting was unlawful. But by the standards of dolus eventualis, properly applied, he committed murder in South African law.

  20.  

    Since this is not a law site, you might explain what dolus eventualis means.

  21.  

    dolus eventualis

    “the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder”….

    so according to the Judge she is implying that he did not know he was going to kill someone despite firing 4 explosive bullets from a 9 mm pistol into a very small toilet..that defies logic and common sense.

  22.  

    You may be interested in this from the Guardian that has just been published

    http://www.theguardian.com/world/2014/sep/12/pistorius-verdict-questioned-as-state-prepares-appeal?cmp=wp-plugin

    Pistorius verdict: judgment seemed to support charge of ‘dolus eventualis….

  23.  

    In that case, I suppose the prosecution will appeal on a point of law.

  24.  

    Yes, it appears as we speak that is in process by Prosecutor Gerrie Nel, but it is a bad reflection on the Judge and the other 2 assessors to make such a glaring mistake.

  25.  

    Oh look. It’s there. I forget what I was going to say now..

    Ok, Jacklaw, not that I particularly enjoy commending the law when it’s deeply inadequate to deal with the awful injustice of this young women’s murder, but, for debate’s sake, if Pistorius was charged with the murder of Reeva Steenkamp, and the charge in particular deals with his intention to kill her, if his claims are to be believed (or couldn’t be disproved), that he thought he had the right to kill some intruder, then he couldn’t have intended to kill Reeva Steenkamp, correct?

    That was the charge he was facing, in terms of the intention to kill her, not ‘someone’?

  26.  

    I agree that there was no in-conclusive proof that he intended to kill Reeva.

    HOWEVER, he went to his bed (hobbled?), passing a door that could be used for escape, grabbed the pistol from under the bed, passed the same door again, stood in front of the closed toilet door, aimed the pistol about chest high, fired FOUR TIMES, then broke down the door and found Reeva.

    Now, what part of this story would convince you that he didn’t to intend KILL someone.

    I believe that there is conclusive evidence of a pre-meditated murder of a person behind the door, so why does it matter that it happened to be his girlfriend??

  27.  

    Nobody here is trying to defend him, but the judge, after all, listened to to the entire body of evidence and came to the conclusion that the prosecution failed to prove intent.

  28.  

    Very sad case all round. So many lives ruined all in one night. If he was your son you d want leniency if she was your daughter you d want punishment. Terrible stuff.

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