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....

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(*) 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". 

The Pistorius Case III: The Conundrum That May Be

In its so-called Heads of Argument (that is, in its closing arguments), the defence has attempted to clarify that Pistorius cannot be guilty of murder.

Interestingly, it ends up more or less substantiating that he actually is.

The "heads" give three examples of situations where someone is killed and the killer may or may not be considered a murderer. In the first example, the defence contends the killer cannot possibly be considered a murderer. In the second, he can. In the third, he again cannot, unless certain conditions are met. 

The defence's assertion is that the Pistorius case falls into the first category, and not in the second or third.

From my own point of view, however, that clearly misstates the actual situation.

Before I explain this further, let's look at the three examples the defence offers, and the conclusions it draws from each instance.

Example One

A mother of a three year old girl hears a noise in her home. She thinks she's being burgled, and so gets her gun and heads towards the noise. She then hears the sound of her bedroom door closing. She fires a shot through the bedroom door, thinking that's where the burglar is. Instead, she hits and kills her daughter.

"It offends against legal principles", the defence states, "our legal conviction, and common sense, that in the absence of intent to kill her daughter, the mother must be convicted of murdering her daughter."

Example Two

X wants to kill Y. X thinks he sees Y and fires his gun. It turns out the person he thought was Y is actually Z, who simply resembled Y. Z dies.

In this case, "it does not offend the legal or moral conviction", the defence maintains, "that (X) be convicted of murder, as he had the intention to kill the very person he had mistakenly identified and shot at."

Example Three

A wants to kill B. He shoots his gun, but misses B and instead hits C, who dies.

A can only be convicted of the murder of C, the defence states, "if he foresaw the possibility of C's death when he shot and he reconciled himself with the foreseen possibility."

So, three examples. But which of these three examples best fits the Pistorius case?

Well, certainly not the third one. In the third example, after all, there are two distinct individuals, B and C. A wants to shoot B, but accidentally shoots C. His intent to kill is restricted towards B; he has no intent to harm C at all.

This is, by the way, exactly the same situation that I pointed to in my first post on this trial. As I said then, the example is a classic one, but it is, in fact, substantially different from the Pistorius case.

So we are left with the first two examples.

The first question one might ask when considering them is what the real differences between the two examples are.

Well, they might be a lot more similar than you may at first think. Firstly, whilst there is clearly a distinction made in poignancy - the first example is presented very much as a terrible domestic tragedy, the second is presented quite prosaically - that distinction has no legal merit at all.

After all, if you wished to, you could easily shift the "poignancy" aspects from the first to the second example, and the two examples would remain legally unaltered.

So that's not it. What is, then? Well, there is also the fact that in the first example, the killer does not see who she is shooting. If she had, she would not have fired; it would have been clear that it was her daughter, and not a burglar. Again, though, that is not a meritorious distinction; again, you might alter some of the details, circumvent that very distinction, and end up with an example that would, from a legal point of view, remain unchanged.

So is there actually any difference between the two examples? Well, no, there isn't. The only difference that I can think of that might possibly exist would be that in the first example, there is some room for doubt on the mother's part. After all, she thinks that, besides herself, there are two other people in the house: the burglar and her daughter. But she doesn't exactly know where each of these is. Shooting through a door because of a sound she had heard without exactly knowing who made that sound allows for the argument that she is basically just guessing whom she is shooting at. Because of this, it might possibly be argued that a certain distinction could be made between the intent the mother has towards the burglar, and the lack of intent she has towards her daughter. However, in that case, we are actually not talking about the first example at all; instead, we are talking about Example Three, where there are two distinct individuals.    

In the second case, it should be said, even such a theoretical distinction simply does not exist. As the defence acknowledges, the killer most assuredly had the necessary intent towards killing his victim. He may have mistaken the identity of his victim, but that in itself does not change his intent.

Now, let's get back to the Pistorius case. Which of the three scenarios best describes the situation  Pistorius found himself in?

Well, at first glance, the answer would seem to be that Example One fits the bill. In that example the mother tragically kills her daughter, whilst Pistorius might be considered to have tragically killed his girlfriend. Both thought they were being burgled. Both fired through a closed door.

However, on the basis of the above, one should conclude that, even if that were to be the case, Pistorius would still be guilty of murder. The first example - as can be seen when it is shorn of its "poignant" aspects - is actually the same as the second. And even if there is a distinction to be made between the two, that distinction does not apply to Pistorius: Pistorius was not "guessing" as to whom he was shooting at. He thought there was only one person in the toilet and that person was the burglar. He shot at that person and he hit that person. He did exactly what he wanted to do (*); there was no "guesswork" involved. His only mistake was in the identity of the person in the toilet, which is exactly the mistake made by the killer in the second example.

So, where does that leave us? Well, with the rather curious fact that the defence itself seems to have acknowledged that Pistorius should be convicted of murder. I'm fairly certain they didn't mean to, but they managed it - and managed it quite well - nevertheless. 

Is that the verdict that will be handed down? Well, of that I'm not at all certain. From the manner in which the case has dragged along, and, more importantly, from the manner in which the judge has acquitted herself, I would not be surprised if Pistorius actually manages to scrape by with a culpable homicide conviction. 

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(*) I am of course aware that the defence (and indeed, Pistorius himself) has argued that the shooting was "an accident", and that he was not actually shooting in order to hit the supposed burglar. That, however, is a different issue altogether. I have dealt with some of the legal ramifications of this "accidental" plea in Part Two of this series.

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?

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.

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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.
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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.  

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(*) 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.

10. The Meredith Kercher Case - The Answers in Florence

A Perugian Aquaduct. No Meredith. No Amanda. No Raffaele.

Today, the Appeal Court in Florence gave its verdict.

Amanda Knox and Raffaele Sollecito are guilty of the murder of Meredith Kercher. The Appeal Court has upheld the pair's original 2009 convictions. Knox has been sentenced to 28 years, Sollecito to 25.

Is this the end of a long, long legal battle? Well, yes, from a legal perspective it certainly seems so. Knox and Sollecito could request Italy's highest court, the Court of Cassation, to look at their case again, but that Court has already given a ruling. In fact, it was that ruling, handed down last year, that gave rise to today's decision by the Florence court.

In other words, were they to lodge such a request (and they probably will), it would in all likelihood not help them. In that sense, their convictions seem final.

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Looking back over the last few months, I realise I have been remiss. I did not write about the Florence proceedings. I certainly speculated about them after the Court of Cassation's ruling of 2013, and at some length, but that was about it.

Why? Well, there was one simple reason. Very little happened in the Florence proceedings that changed the complexion of the case. There were, to be sure, quite a few things that needed to be looked at again - these aspects were all set out by the Court of Cassation - but there was very little new evidence that could be brought forth.

So, was their nothing new at all? Well, no, not really. On the basis of the Court of Cassation's ruling, the Florence court ordered that a "new" DNA sample found on the so-called double-DNA knife should be tested. That might have been a potential bombshell; after all, what if the new tests revealed the presence of Kercher's DNA, or even Guede's? Except, of course, that the bombshell turned out to be a damp squib; the DNA tested pointed to Knox and no-one else. As such, it didn't prove anything.

Effectively, that meant things were back to square one. We were left with the original 2009 decision and a first appeal ruling that had been struck down by the Court of Cassation. The defendants' appeal needed to be reassessed, and that is exactly what the Appeal Court in Florence has done. And in doing so, it has complied with the views expressed by the Court of Cassation.  

Could the Appeal Court have handled the case differently? Most certainly. Whilst the Court of Cassation's ruling was, in many ways, rather clear, it was by no means definitive. It allowed the appeal court sufficient room to manoeuvre. However, as the Florence court started to get to grips with its remit, it became clear that it would not steer the case away from the paths already set out by the original Perugian court (and, indeed, by the Court of Cassation itself). As, in other words, the case proceeded, it became more and more likely that the original ruling would be upheld.

So, is today's ruling a surprise? Not at all. Is it the end? Yes, it should be. There are further legal issues to resolve, the possibility of extradition being perhaps the most important one, but these issues will have no impact on the guilty verdicts as such. Also, it should be remembered that the Appeal Court's motivations - the actual reasoning behind the convictions - have yet to be set out. As always in Italy, this will happen within 90 days.

But basically, this it it. In law, Knox and Sollecito are guilty. The murder of Meredith Kercher was committed by them and by Rudy Guede. All three have been convicted.

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I will write further on this case. After all, it has not formally ended. And besides, the way it has been conducted - both by the prosecution and, perhaps more importantly, by the defense - is rather extraordinary. For now, however, it is done. 

The die is cast.