Tuesday, March 4, 2014

The Pistorius Case I - The Conundrum That Isn't

Irish bookmaker Paddy Power has offered bets on the Pistorius trial.

"If he walks", the bookmaker promised, "you get your money back".

Well, that might certainly seem an interesting proposition to many. After all, the media are in a frenzy about the trial. Experts are popping up all over the place, trying to convince us that the trial is difficult and the outcome cannot be predicted. Pistorius "walking" seems very much on the cards.

The only problem is that this is all nonsense.

You see, if there's one thing we know, it's this: Pistorius is guilty. The question is not whether he "did it", the question is simply what crime his actions constitute.

Hence, Paddy Power can easily offer you a full refund if Pistorius gets off scot-free. They know that that is not going to happen. 

To understand this a bit better, the following might help.

What we know in this case is the following. We know that Pistorius shot and killed his girlfriend. We know that he, according to his own version of events, woke up at about three o'clock in the morning of February 14th, 2013. He got out of bed and then heard a noise emanating from the bathroom, which adjoined his bedroom. Immediately, he feared the house was being burgled. He picked up his pistol and went to the bathroom; the door to the toilet was closed. He again heard noises coming from the toilet; he then fired four shots through the door and into the toilet.

As it turned out, Pistorius was right that there was someone in the toilet. It wasn't a burglar, though; instead, it was Pistorius' girlfriend, who had been fatally wounded.

Now this is, as I said, Pistorius' version of events. The prosecution believes things happened differently. They're convinced Pistorius had a row with his girlfriend; they believe that she fled into the toilet and Pistorius pursued her, deliberately shooting her through the toilet door.

If the prosecution is right (and if they can prove it), Pistorius would be guilty of murder.

Here's the thing, though. If the prosecution can't prove their contention, and if we would have to accept the possibility of Pistorius being right, he would still be guilty. In fact, I'm pretty sure he would still be guilty of, well, murder.

There is only one way out of this for Pistorius, which is if his defence might manage to whittle the proof down to culpable homicide. Pistorius would still be convicted, but for a less severe crime.

In other words, in all possible options, Pistorius is guilty. One way or another, he will be convicted.

Hence, Paddy Power is not really offering you anything substantial. You're not going to get your money back when you place your bet.

If you're still struggling with this a bit, here's some more info.

Simply put, in South African law, murder is the intentional and unlawful killing of another person. When you apply that definition to Pistorius' actions, it seems to me to be very difficult to see how he could be innocent of that crime. After all, he fired four shots through the toilet door, believing (as he has said) that a burglar had hidden himself there. His intent, therefore, was to kill the person in the toilet. He did not, perhaps, assume that that person to be his own girlfriend, but the fact that it was, whilst possibly constituting a grave and terrible mistake on Pistorius' part, does not, to my mind, change his original intention in any meaningful way at all. 

I should note here that the situation in this case is different to the more or less classic example where a person (A) intends to shoot or stab another person (B). Just when he does so, however, a third person, C, jumps in, and it is C who ends up injured. In that example, there are two distinct potential victims, B and C, and therefore a distinction can be made between A's intent towards the one and his intent (or lack of it) towards the other.

In Pistorius' case, however, that distinction fails. As I said, there is only one person in the toilet, and Pistorius intent was to kill that person.  
Now, in some cases, shooting a person might be justified, but for that to the case, circumstances would have had to exist which would justify self defence. And in this case, such circumstances were clearly absent. After all, even if a burglar had gotten into the house and had hidden in the toilet, that burglar posed no real and immediate threat to Pistorius. Nor could Pistorius - or indeed, any other ordinary person, in similar circumstances - reasonably (albeit it falsely) have believed himself to be threatened, at least not to the extent that shooting was justified.

There are, it should be said, two circumstances which could nevertheless play a certain part in the qualification of the crime committed. The first is a general one: the high rate of crime (burglaries, especially burglaries committed by armed men, included) in South Africa. The second is the fact that Pistorius is an invalid (if that is the appropriate term); his lower legs were amputated when he was a baby.

The first of these circumstances is not, in my mind, in and of itself very significant. In particular, it does not mean that a homeowner, even a South African homeowner, can simply shoot a burglar through a closed door when that burglar has not posed and does not pose any substantial threat. The second circumstance may possibly explain, at least to a certain, degree, why certain options that might have been available to others where less viable for Pistorius, and why Pistorius may have felt himself to be more vulnerable than someone else might have done. Again, though, I do not see how such a situation substantially alters the case.

Taken together, however, these two circumstances may possibly - just possibly, and in conjunction with other facts  we are as yet unaware of  (*) - allow for a conviction based, not on murder, but on culpable homicide (which means that the killing, whilst unlawful, cannot be considered intentional). For reasons I have already set out, I do not see that happening at present; the chances seem quite slim. Nevertheless, it is possible, and his defence certainly will put up a spirited fight to convince the court that that is the route to be taken here. 

The reason for this lies in the fact that, obviously, a sentence for murder will generally tend to be higher than a sentence for culpable homicide. In the case of murder, there is, I believe, a minimum sentence of 15 years; in the case of homicide, I am not aware of a minimum sentence applying. However, this does not necessarily mean that a sentence in this case based on homicide will inevitably be milder than a sentence based on murder; all this will be up to the court, who will base its decision on facts and circumstances that not all known yet. 

What would, however, make an immediate difference is if the prosecution gets their way. If they prove their case fully - if it is established that Pistorius intentionally and deliberately shot his girlfriend, acting with what can be labelled both legally and poetically as "malice aforethought" - Pistorius would face a mandatory sentence of 25 years. This is considerably higher than a sentence for "ordinary" murder or homicide would be.


So, what does all this mean? Well, it means that a lot of the media frenzy in this case is just hot air. It means that, when reputable papers such as the Washington Post are brandishing banner headlines like "Murder or mistake?" they are, in effect, distorting the legal reality. There is, of course, a real battle going on in court, but that battle centers not around the question of whether Pistorius is innocent or guilty, but on how long the sentence will be.

Having said that, the case is certainly not without interest. There remains the very intriguing question of what actually happened that night. In particular, there remains the question of how someone like Pistorius could actually have acted as he claims to have acted.  At first glance, certainly, his story seems decidedly odd. On the other hand, the prosecution's theory seems a little like Swiss cheese, too.

Such questions are interesting, but they are not going to be of huge import to the legal aspects of the case. Murder is, simply put, murder. And even if it isn't, it's still homicide.

To this it might be added that it is equally true that tragedy is tragedy. Whether Pistorius meant to kill his girlfriend or whether he actually believed himself shooting a burglar, the outcome is the same: a young woman died needlessly.

POSTSCRIPT: The above post was written on March 4th 2013; the trial of Oscar Pistorius had just commenced. It is now April 11th, and Pistorius has taken the stand. He has proven me wrong on one count at least: the intention  to kill. I will be posting about this further in The Pistorius Case II: The Conundrum That Is.  


(*) One of those facts may possibly be that Pistorius had good and clear reasons to believe his girlfriend was somewhere else in the house; reasons, in other words, that would reasonably exclude her presence in the toilet at that time. As far as I know, no such reasons exist.

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