Friday, April 11, 2014

The Pistorius Case II: The Conundrum That Is

In my earlier post about the Pistorius trial, I stated the following:

"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."

Well, guess what? Pistorius himself has proved me wrong. Sort of.

A few days ago he took the stand, and, when pressed by the prosecutor, he stated the following.

"I did not", Pistorius said, "intend to shoot Reeva - or anyone else for that matter." Pistorius went on to explain that he did not actually intend to fire his pistol at all. Yes, he was holding a gun at the time and, yes, he was aiming at the toilet door (behind which he imagined a burglar to be lurking). And yes, he did then fire his gun, not once but four times.

Nevertheless, the shooting was, Pistorius stated, "accidental". He had heard a noise coming from the toilet; he thought it was someone coming out to attack him. "Before I knew it", he said, "I'd fired four shots."

So it seems that Pistorius is, indeed, denying the murder charge. And not on the grounds that he didn't realise that it was his girlfriend (and not an intruder) in the toilet and he never meant to kill her, but on the grounds that he never wanted to shoot the imagined burglar, either.

At first glance, this may well seem to be advantageous position to take,. The claim that you fired four shots through a toilet door but never meant to shoot the person you believed to be in the toilet may sound fairly incredible (I, for one, have some difficulty in believing it), but at least it allows for the possibility that you might escape the murder charge altogether.

The trouble is, though, that this line of reasoning is difficult, if not impossible, to pursue simultaneously with the idea that Pistorius, as he has also said, shot because he thought the burglar was about to come out of the toilet to attack him.

After all, if you believe someone is just about to attack you, you would clearly feel that you are under an imminent threat. If such a perception of threat is what causes you to react (in this case, to shoot), that reaction is not accidental. It is, instead, deliberate. Mind you, it might not be the best possible reaction - you might well have reacted differently if you'd first had a cup of tea and pondered about it a bit - but that doesn't change the fact that your reaction was, indeed, deliberate. It has to be, because, by definition, there's a thought process involved, that process being summarised by the following key elements: (a) the thought that there's someone the bathroom, and (b) the perception that he's going to get you, so (c) the decision to shoot first.

In other words, the allegation that Pistorius thought he was defending himself requires intent (namely, the intent to shoot in order to defend himself). But the allegation that he never meant to shoot anyone at all requires the absence of that same intent.

As a result, Pistorius seems to be trying to have his cake and eat it too. He seems to be trying to convince the court that he both intended and did not intend to shoot the burglar.   

Something tells me that may not be a wise strategy.

As an aside, does all this mean the prosecution is rubbing its hands and chuckling with glee? Well, no. The prosecution, after all, have contested that Pistorius murdered his girlfriend after a row; that he acted, in other words, with malice aforethought. At present, they don't seem to have come very close to establishing that at all. Murder, perhaps, but not pre-meditated murder. Sure, quite a few holes have been picked in Pistorius's story, but that doesn't mean the prosecution's version of events has to be right.

Finally, Pistorius didn't just prove me wrong on the question of intent. He also proved me wrong on a very different issue: whether this case is of any real (as opposed to simply sensationalist) interest.

It is. At least, from a legal point of view. How does a suspect successfully attempt to negate the intent of murder and, at the same time, claim putative self defense? Can this be done? Was Pistorius actually advised to take this course of action by his defense team?

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