A crucial missing piece in the Pistorius trial? (2): my answer (Rejected Post)


Time for a break with a “Rejected Post”[i]

There’s one crucial point that Prosecutor Nell overlooked and failed to employ in the Oscar Pistorius trial–or so it appears. In fact I haven’t heard anyone mention it—so maybe it’s not as critical as I think it is. Before revealing (what I regard as) an important missing piece, I ask readers and legal beagles out there for their informal take.

Here are some items from the announced verdict (which do not directly give away the missing piece, but may be enough to deduce it). (A general article is here.)

Oscar Pistorius ‘not guilty’ of girlfriend’s murder, rules judge Thokozile Masipa

AP | September 11, 2014, 17.09 pm IST

Before the break, Judge Masipa ruled out “dolus eventualis”[ii], saying Mr Pistorius could not have foreseen he would kill the person behind the toilet door.

“How could the accused have reasonably foreseen the shot he fired would have killed the deceased? Clearly he did not subjectively foresee this, that he would have killed the person behind the door, let alone the deceased,” said Judge Masipa.

The judge said the defence argues it is highly improbable the accused could have made this up so quickly and consistently, even in his bail application, [really?]

….Evidence shows that at time he fired shots at toilet door, Mr Pistorius believed the deceased was in the bedroom, the judge says. This belief was communicated to a number of people shortly after the incident, she added.

The judge said there is “nothing in the evidence to suggest that Mr Pistorius’ belief was not genuinely entertained”. She cites reasons including the bathroom window being open, and the toilet door being shut.

… He… [said] he genuinely, though erroneously, believed that his life and that of the deceased was in danger,” the judge said….

The starting point is “whether accused had intention to kill person behind toilet door,” the judge said.

“The blow was meant for the person behind the toilet door who the accused believed was an intruder. The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder [is] irrelevant,” the judge said.…

The accused was clearly not candid with the court when he said he did not want to shoot anyone, as he had a loaded firearm and was ready to shoot, the judge said.

The deceased was killed under “very peculiar” circumstances, the judge said. It makes no sense that Ms Steenkamp did not hear Mr Pistorius scream “get out”. The other question is why the accused fired not one, but four shots before he ran back to the room to try and find Ms Steenkamp, the judge says.….

Mr Pistorius had approached the bathroom with a gun, the judge said. However, the state has argued that if Mr Pistorius had no intention to shoot anyone, he cannot use self-defence as a defence, the judge said.

The essence of the accused’s defence is that he had no intention to shoot anyone, but if he is found to have such an intention, it was because he believed he was under threat from an intruder, the judge added.….

Judge Masipa: “[Mr Pistorius] stated that if he wanted to shoot the intruder, he would have shot higher up and more in the direction where the opening of the door would be to the far right of the door and at chest height. I pause to state that this… is inconsistent with someone who shot without thinking. I shall revert to this later in my judgement.”

“The accused stated that he never thought of the possibility that he could kill people in the toilet. He considered however that thinking back retrospectively, it would be a probability that someone could be killed in the toilet.”…

The prosecution has argued that the presence of partly digested food in Ms Steenkamp’s stomach indicated that Mr Pistorius’ testimony of when the couple had their last meal was not true, the judge noted.

However, she said: “The experts agreed that gastric emptying was not an exact science. It would therefore be unwise for this court to figure out what the presence of partially digested food might mean.”


Brief background of what Oscar claimed: He is right next to Reeva in bed (she asks if he can’t sleep), he gets up, hears someone in the bathroom, gets his gun, tells Reeva to call the cops, and get down on the floor (!) even though he doesn’t see her, even though he gets no response at all, none. Well there’s lots more about furniture that couldn’t have been where he said, he alleged the cops moved everything to screw up his story…He begins to stalk “the intruder”:


Oscar repeatedly emphasized (through the trial) his fear of this (alleged) intruder, he stayed quiet, moved stealthily into the bathroom, terrified that this intruder would discern his position and overpower him at any moment. He couldn’t let that happen. He had to get the intruder before he got him. He doesn’t call the nearby guard for help, doesn’t run out the house with Reeva, nothing like that. Oscar says he could only think of his terrible fear of the intruder…. It’s his style to confront danger until he himself quashes it. He could never turn his back on a threat of danger to himself..

As he rounds the bend of the bathroom, he hears the intruder shut the door of the toilet area. He recounts (at length) how frightened he was that the intruder will come out any second and get him! So he shoots, once. A pause maybe…then shoots 3 more times and stops. Why did he stop?

There’s no sound from the locked toilet now, but he doesn’t know he’d killed the intruder. If the intruder is maybe standing on the toilet he might have escaped all the bullets. He doesn’t find out, he doesn’t shoot any more. Yet he has no reason to think the danger is gone. (The situation’s not really different from before he fired the shots, from his alleged perspective.)

If the intruder survived the blasts, he’s going to come get him. It would not have been safe to turn his back. Yet he leaves the bathroom to (allegedly) start looking behind curtains (!) for Reeva….

So why did he stop shooting?

Answer: because the screaming stopped.


[i]This is a “rejected post” since it it is off the topic of PhilStat/PhilSci. It moves over to a distinct Rejected Post blog (eventually). I use it less often now that Twitter is available for micro versions of such things.

[ii]”Dolus eventualis murder, also known as common murder, is a lesser charge. In essence, it means that you are responsible for the foreseeable consequences of your actions.

According to South African law, intent in the form of dolus eventualis means it is enough to find someone guilty of murder if the perpetrator objectively foresees the possibility of his or her act causing death and persists regardless of the consequences.”


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9 thoughts on “A crucial missing piece in the Pistorius trial? (2): my answer (Rejected Post)

  1. Nathan Schachtman


    Some quick thoughts.

    I’ve not followed the case closely, but the quote from the judge sounds a bit muddled.

    If Pistol Pistorius fired with the intent to hit a person behind the door, then in common law countries he is deemed to have intended the natural and probably consequences of his act. If he believed that the person behind door meant him and his friend harm, then there might be a defense of self-defense, although he lacked information that he or she was in imminent serious bodily harm that could not have been reasonably averted. After all, he had a gun, and he didn’t establish, I think, that he knew that the person behind the door had a lethal weapon.

    Manslaughter is, in the UK, Canada, and the US, the lesser included offense when the jury does not think that the prosecution has lined up all the necessary elements of a murder charge. It seems appropriate here, but that’s from 10,000 feet. The judge did not credit the theory that Pisty had the necessary murderous intent simply because he and his friend had quarreled in the past. The prosecution’s case was weak on this issue, but that’s typical in a case of this sort.

    I agree with you that the lag time between the act and the arrest/bail hearing was plenty of time in which Pisty could make up a story about a supposed intruder.

    All in all, an odd case, but the judge was not impressed with prosecutor “Bulldog” and his assertions of pre-meditation. Without witnesses, and with Pisty admitting to firing the gun, the evidence of premeditation was slim, and the claim of self-defense didn’t measure up. And that left the lesser, included offense of manslaughter or whatever the South Africans call it.

    • Nate: Great to have a lawyer weight in, even though the law seems rather different in South Africa. Couldn’t it have been murder without pre-meditation. They fought, she ran into the bathroom and locked the door, and Oscar, enraged, grabs his gun and starts shooting.

      By the way, Oscar’s story required positing that someone had moved around fans, else he wouldn’t have been able to keep to the story that he’d gone out on the porch–the part he needed to maintain that he didn’t see her get up from bed. There’s so much unbelievable about his story–Nell brought all this out, just not the missing piece.

      • gerald

        This is what happened.Oscar shot Reeva behind the toilet door in the dark on his stumps.The door was not locked.He dragged her out not because she was heavy as he said,because he was on his stumps.He took her downstairs alive causing the Blood Spatter along the walls downstairs.He made the calls for advice in the kitchen that’s why his cell phone was found on charge in the kitchen.She died at the bottom of the staircase,He then took her back upstairs and left her in the bathroom.He was then ready to act his version(lies)out.IMPORTANT.
        HE WOULD NEVER HAVE KNOWN WHAT THE NEIGHBORS WERE GOING TO SAY THE NEXT DAY.This stage of his act it was all about waking the people up to pretend he had just shot her and he had made a mistake thinking it was an intruder.So for him to make sure people woke up, he opened
        the balcony door,window in the toilet and the window in the bathroom, switched on the lights.Not knowing what a bad sounds like on a door he would have hit everything in site to see what noises he could make. Thats why there were other objects that were damaged.Then he screamed cried etc and kept on hitting objects.The door was tampered with before he started to scream etc.He had to make sure that when he hit,so it would be easy for a piece to fall out and then use the key as a reason he opened it so quickly.So why do we say the door was locked.BECAUSE HE SAID IT WAS AND BECAUSE IT WAS BASHED DOWN.THAT DOES NOT MEAN IT WAS LOCKED.HE BLUFFED US.THE REASON THE DOOR WAS NOT LOCKED IS FOR THE FOLLOWING REASONS.She died within 2 minutes.So how did Blood Spatter get downstairs if he still had to bash the door down and then 30 minutes take her downstairs alive.She was dead.
        The door could never have been locked because she would have been dead before he could open it.Could only happen if the door was not locked for him to have moved her before he acted everything out.It was the second time he brought her downstairs,that’s why he screamed and pretended she was alive to bluff us that he had just shot her.Blood spatter come from artery quites. Why.Why do you think he asked if he could wash his body.It was not fresh blood he knew that so he got rid of the evidence.He shot her when Mrs van der merwe heard the shots.The neighbors then wake up and believeD somebody has been shot at and a woman WAS screaming.They don’t believe Oscar.The neighbors were wrong,He even said he shot her in the dark.He switched on the lights to wake the people up.Oscar could never have come up with a story so quickly,his telling all of us what he did.Believe him what he was doing.BUT DON’T BELIEVE HIM THAT IT JUST HAPPENED AND DON’T BELIEVE HIM ABOUT THE INTRUDER.Mrs van der werve never said the exact times she said around.She was opposite oscar house.She never heard him scream before the shots and never after the shots because it never happened,Oscar got off because the focus WERE on the neighbors which they loved and the more they did that the more the time was moved away from the actual time with that the judge said he could never have come up with a version so quickly.When he came downstairs it was the second time.You have to answer the question about blood spatter around the house downstairs on the couch when he never went near those places when he brought her downstairs supposed to be the first time and see was dead.She was moved around that house alive for around 2 minutres before she died,Please PROOVE me wrong.Nobody can have a version until you answer all these questions.THE STATE SHOULD HAVE PUT THE EXACT DOOR BACK INTO POSITION AND SHOT 4 SHOTS THREW THE DOOR AND ASKED THE SAME POEPLE IS THAT WHAT YOU HEARD THE ANSWER WOULD HAVE BEEN NOW.mR vAN DER mERWE HEARD THE SHOTS SHE DESCRIBED THEM AS QUICK BANG BANG BANG BANG.The sate was more interested in her about hearing the arguments,because if they believed mrs van der merve then it would have contraindicated the neighbours.

  2. e.berk

    If he’s screaming to Reeva to call the police, she would have come out of the bathroom and asked “what’s wrong?”. It’s preposterous to imagine he’s screaming at her to “get down” and she’s saying absolutely nothing, or that hearing no response from her, Oscar wouldn’t have turned on the light to check where she is. It’s impossible he didn’t know she was locked in the bathroom.

  3. Does anyone know how to get rid of the “related articles” that wordpress generates? The machine really found some utterly unrelated related articles this time.

  4. e.berk

    My answer to the missing piece: they proved she was standing facing the locked bathroom door when hit by the first shot. This alone negates the possibility of the normalcy Oscar alleges.

    • Well it’s certainly strange that she’d be standing there (it was suggested they were fighting), and most importantly, it’s evidence he’d have heard her scream from the first shot. That was testified to actually by various experts. He said he didn’t hear any screaming, and the many neighbors who claimed to have heard blood-curdling screams were ultimately discounted. The defense said they were hearing Oscar scream–he screams in a high pitch, they claimed. This discounted neighbors who testified they heard a man and a woman’s voice arguing, then shots, woman’s screams, then nothing til Oscar started screaming and breaking the door down…I don’t know.

  5. crimesleuth

    You are right! Nell merely asked why he stopped at 4, but didn’t draw out these implications. Maybe it’s not too late for the civil case or appeal.

    • Crimesleuth: Are you a part of the “crimesleuth” organization on-line? I used to sometimes follow it.
      Yes I hope this tidbit trickles down to any subsequent aspect of the case.

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