Thursday, September 11, 2014

The Pistorius Case IV: Gosh!

Today, the judge read out the first part of her verdict in the Pistorius case.

Pistorius, she stated, is not guilty of murder. Whether he is guilty of the lesser charge of culpable homicide will be made clear tomorrow (although it seems quite likely that he will).

So, not guilty of murder. Is that decision correct? Well, anyone who has read my earlier posts on this case will know that I do not believe it is. I accept the court's reasoning that Pistorius cannot reasonably be convicted of premeditated murder, but I disagree with the court when it states that he must be acquitted of murder altogether.

Let's look, firstly, at the following important part of the judge's ruling.

As anyone following the case will know, Pistorius lodged a putative self defense claim. That is, he said that he thought that he was in such a threatening situation that self defense (shooting through the closed toilet door, thereby killing his girlfriend) was justified.

This is what the judge said about this defense. 

She first set out that when it comes to putative self defense, a subjective norm should be applied. The question is not whether a reasonable man in similar circumstances would have assumed that self defense was justified; the question is, on the contrary, what Pistorius himself assumed. The question is, phrased another way, whether Pistorius honestly believed that he was under (severe) threat.

The judge then states, rather baldly, that "there is nothing in the evidence to suggest that this belief was not honestly entertained" by Pistorius. To substantiate this, she points out that:

  • the bathroom window was indeed open, "so that it was not his imagination at work when he thought he heard the window slide open";
  • Pistorius "armed himself with a loaded firearm and went to the direction of the noise";
  • he "heard a door slam shut; the toilet door was, indeed, shut";
  • he "heard a movement inside the toilet";
  • and that, "in his version, he was scared because he thought the intruder was coming out to attack him".

I will make a few comments about each of these aspects.

Firstly, the bathroom window. From any point of view it clearly does not follow from the fact that the window was open that Pistorius heard the window opening. There is simply no logic to that assertion whatsoever. The same mistake is made with regard to the toilet door; the fact that it was closed in no way implies that Pistorius actually heard it "slamming". A third and similar mistake is made when it comes to the "movement" inside the toilet, since all we have is Pistorius's word on this. In other words, we simply don't know if Pistorius did or did not hear any of these sounds and the simple fact that he claims to have done so in no way asserts his "honesty".

Secondly, there is the fact that Pistorius armed himself and headed towards the bathroom. That's true, of course, but it should be remembered that every single putative self defense case starts with some similar sort of action by the accused. The accused always acts and always causes harm, which is why he is accused in the first place. You simply cannot in good conscience argue that the defendant's aggression is itself a valid argument for assuming his innocence; such an assertion again clearly seems to defy logic. 

Finally, I am not sure what to make of Pistorius's assertion that he was "scared". This is, once more, just his own assertion; it does not mean that it should be held to be either true or false.

So all in all, when looking at these various elements, the conclusion must surely be that none of them in any way substantiate the notion that Pistorius acted "honestly". If, however, that is the case, then there simply is no substantiation for that belief at all (*).

There is a further problem in the court's reasoning. It's this: even if one where to assume that Pistorius heard various noises (the window opening, the toilet door closing, the sound of movement inside the toilet), the question arises whether this could constitute such a threat as to make Pistorius "honestly" believe he must act in defense. After all, self defense against what? Pistorius was not in any way being attacked; I simply do not see how a few noises - which, if they were made at all, were simply made by his girlfriend going to the toilet - would nevertheless make his belief "honest". (I accept that Pistorius may have an "anxious" disposition; it may also be true that, as one of the experts in the trial testified, he has a "fight not flight" reaction to danger. But those elements are, to my mind, clearly insufficient in this regard.)

And then, it must be added, there seems to be a third problem, which is not just down to this specific court but also stems from South African law itself. It has to do with the subjectivity of the norm descried above. It should be pointed out that the more "subjective" the norm becomes - the more it comes down to what the defendant himself claims, without any real objective substantiation - the easier it becomes for a putative self defense claim to be abused. If the law imposes upon you to judge according to what the defendant says, you are going to find it somewhat hard to convict all that many murderers.

Ultimately, however, it seems that we may perhaps forget all the above. Remarkably, you see, the judge doesn't give an answer to the question of whether or not the putative self defense claim is or is not justified. 

Instead, it seems, she rejects the basic premiss of this argument altogether, by stating that she believes that, whilst Pistorius may have shot four times through the closed toilet door (thereby killing his girlfriend) he did not have any intent to kill anyone. As a result, whilst she starts to discuss the putative claim, she then veers off to a different aspect altogether. That aspect deals with the issue of  "dolus eventualis", which has to do with the foreseeability of one's actions (i.e. if Pistorius did not have any real intenion to kill, could he nevertheless have the necessary indirect intent required for murder because he could and should have foreseen that shooting might cause someone's death). 

I will give a few thoughts on this very odd way of dealing with things (and, indeed, on the concept of dolus eventualis in general and the lack of intent to kill) in a further post.  

Once I get my head unbefuddled, that is....


(*) One might then point to the S v De Oliveira case. I'll not go into any detail here, but in that case a putative self defense claim failed, given that the defendant himself did not testify as to his state of mind. In this case, of course, Pistorius did testify, but the judge herself clearly considered him "untruthful". 

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