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.