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.)
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.”