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.