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Oscar Pistorius' Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

Posted By Galluzzo & Arnone || 8-Apr-2014

Oscar Pistorius' Defense Analyzed by a Criminal Defense Attorney (April 8, 2014)

Author Matthew Galluzzo, Esq. is a former Manhattan prosecutor and criminal defense attorney with Galluzzo & Johnson LLP. In 2011-2012, he worked alongside South African criminal prosecutors as a legal consultant to the South African National Prosecuting Authority. He has been following the Pistorius murder case and has given television interviews to CNN and Dateline (NBC) on the subject.

April 8, 2014

After briefly hearing from a forensic pathologist proffered by the defense, Oscar Pistorius took the stand Monday to testify in his own defense. Although the burden of proof is on the prosecution in South Africa (just as it is in the United States), as a practical matter, Pistorius could not plausibly expect to be found not guilty of murder unless he personally rebutted the state's prima facie case to commit murder. Indeed, in a fairly similar case, State v. De Oliveira, an appellate court refused to consider the defendant's argument that he was only guilty of culpable homicide (and not premeditated murder) for mistakenly shooting people that he believed to be intruders in his home, citing his failure to testify personally to that effect. His silence on the subject was specifically held against him, in fact, and most assuredly would have been held against Pistorius had he chosen not to testify.

Of course, the world already knew his version of events because Pistorius had already given a sworn affidavit as to the facts of Ms. Steenkamp's death in connection with his application for bail. Pistorius really had no choice but to lay out his defense early, because under South African law, for an individual to be eligible for bail on a murder charge, he has to somehow rebut the presumption that he is dangerous and/or a violent threat to the community. As a practical matter, a failure to address the state's allegations that one acted violently in connection with the crime for which one is charged will result in the court denying the application for bail. Generally speaking, criminal defense attorneys prefer to not have to lay out their defense early and before they have had an opportunity to investigate all of the facts, but getting bail for one's client is so critically important to the success of a defense that sometimes it is unavoidable, as it was here.

Pistorius' defense is subtly complicated. The question is not simply whether he intended to kill his girlfriend or believed there was a burglar in his home. The questions presented are more precisely 1) whether he subjectively and genuinely believed that he was under imminent attack upon his life and that he was justified in acting as he did, and then 2) whether his actions in self-defense were objectively reasonable. If he fails to prove the first prong then he will be convicted of pre-meditated murder, and if he fails at the second prong then he will be found guilty of culpable homicide, or a negligent unlawful killing. Of course, if the court does ultimately determine that he knew that his girlfriend was in the bathroom then he loses spectacularly and will get a sentence of life in prison.

In analyzing this particular case, it is very important to understand that in South Africa, pre-meditated murder does not mean that the killing was pre-planned; in fact, it does not even have to be "intentional" as we use that term in American criminal law. Indeed, a "reckless" killing of another person can also result in a conviction for premeditated murder. See e.g. State v. Naidoo, Case #321/2001. The concept of recklessness is familiar to American criminal law practitioners: a person acts recklessly with respect to a result when he or she is aware of the risk that his actions could lead to that result, but acts anyway. In South Africa, the analysis is very similar but slightly different - the fact-finder must determine whether the individual was aware of the risk of the terrible outcome - i.e. had "foresight" to it – and "reconciled" himself to that risk and decided to proceed anyway. The point is that although the prosecutor in Pistorius' case is presenting the argument that Pistorius intended to kill his girlfriend, he has an extra arrow in his quiver, so to speak, in that he can also quite plausibly argue that Pistorius' version of events makes him guilty of a reckless murder anyway. This also forecloses the possibility of an acquittal of murder under the theory that Pistorius was only trying to scare the person in the bathroom (Steenkamp or intruder), as obviously shooting four times into a tiny toilet room would have created a grave risk of death to the person inside.

Looking at the first prong of the defense, in South Africa, for an intentional (or reckless) killing to be justified as "self-defense," the person exercising force must genuinely believe that his life (or the life of another) is in imminent danger and that deadly force is necessary to prevent the harm. Clearly, Pistorius has maintained without any concession that he genuinely believed that his girlfriend was asleep in bed when he opened fire at the bathroom door. However, if he concedes on cross-examination that just prior to pulling the trigger the thought occurred to him that maybe, possibly, the person behind the door was not a murderous intruder, then he acted RECKLESSLY - with foresight to the possibility that he was wrong about his need to fire - and can be held fully liable for premeditated murder. I expect that Pistorius will steadfastly refuse to admit that he ever considered that possibility (as stupid as it may make him sound). Moreover, there was some especially damaging testimony from a state witness as to Pistorius' understanding of South African law regarding self-defense and justification. Specifically, in order to be certified to own as many firearms as he does, Pistorius had to pass an examination that asked questions about when he would be authorized to use deadly physical force to defend his home, and his (correct) answers to those questions strongly suggest that Pistorius knew that he could not use deadly physical force on an intruder without first knowing whether that person was armed with a deadly weapon or intended to actually do him any physical harm. As such, it would seem that Pistorius acted "recklessly" with respect to his legal right to act in the way that he allegedly did in defending himself. If this is the case, then the court is likely to conclude that he had foresight as to the outcome - an unlawful killing - and should thus be found guilty of premeditated murder. So, Pistorius is going to have to somehow explain how his actions in this case were materially distinguishable from the scenarios presented to him on his firearm certification examination, and honestly, I do not expect him to be able to do that effectively - the prosecutor will probably pound him to death with his previous answers on the certification examination.

If Pistorius somehow manages to persuade the court that he neither believed that his girlfriend was in the bathroom nor that he had "foresight" as to the possibility that he was not justified in acting as he did, he then has to battle against the lesser included charge of culpable homicide. The defense team would probably consider a conviction for culpable homicide to be a victory, as that charge carries no mandatory minimum prison sentence. Culpable homicide is a negligent unlawful killing under South African law. An unlawful killing results in cases in which there is no justification. It should be noted that the fact that Pistorius did not ACTUALLY need to exercise self-defense (because the person in the bathroom was not, in fact, a murderous intruder) does not mean that the killing is automatically unjustified. For example, if you were sitting in your home one night when someone burst into your home wearing a ski mask and wielding what appears to be a meat cleaver, you would probably be justified in shooting that person to death, even if it later turned out to be your brother-in-law trying to pull a Halloween prank with a plastic toy knife. After all, you acted relatively reasonably under the circumstances, and so we would call that act of killing an accident or a tragic misunderstanding rather than a crime.

Unfortunately for Pistorius, the analysis as to whether he was negligent (i.e. whether he acted reasonably under the circumstances) is an objective rather than subjective test. That means that the judge must consider what a reasonable person in his situation would do, and does NOT take into account such subjective aspects of the person, including but not limited to his age, health, general level of anxiety, or physical disability. This rule has been criticized as cruel or unforgiving to the old, infirm, or to those with disabilities, but South African law has consistently refused to give concessions in this regard. Thus, the question for the court is not: what was reasonable for Pistorius - a man with no legs – to do in that situation, but rather, what would a reasonable person have done if faced with the possibility of an intruder in the bathroom? Pistorius has made much of his assertion that he was not wearing his prosthetic legs at the time he fired at the bathroom door, and that he felt especially vulnerable without his prosthetic legs, but ultimately, this fact is only relevant to his subjective intent in believing that he was justified (prong #1), and should not be part of the analysis as to prong #2.

Unfortunately for Pistorius, he is almost certainly going to face a barrage of tough but straightforward questions from the prosecutor about why he didn't act more reasonably than he did. The prosecutor will certainly ask him why he didn't ask questions first before opening fire, why he didn't check to make sure Reeva wasn't in the bathroom, why he didn't call security and wait for them to arrive, why he didn't fire a single warning shot rather than four shots in quick succession, why he didn't give the intruder an opportunity to retreat, and why he felt so threatened by someone that was seemingly just sitting on the toilet, among other questions. None of his answers are going to be very good, because they cannot be.

Pistorius has demonstrated an uncommon amount of emotion during the trial, having repeatedly vomited during graphic moments and broken down crying whilst apologizing under oath to the Steenkamp family and describing the events of her death. A skeptic might suggest that his crying could be just as indicative of innocence or guilt; after all, if he did in fact murder her in a moment of regrettable rage, one would expect him to harbor feelings of guilt, remorse, and depression about having thrown his own life away. Nevertheless, in our experience, this display of emotion is likely to have a genuine impact on the fact-finders (the judge and assessors), who are expected to use their common sense to evaluate the credibility of his testimony, and that can include judging the sincerity of his emotions on display. It would certainly be bizarre if he were not displaying any emotion, guilty or innocent.

It is difficult to handicap this case. Judges (and assessors, who also vote as to Pistorius' guilty or innocence) are human beings, and any judicial process involving human beings can be unpredictable. The racial and socioeconomic situation in South Africa is also dizzyingly complex, and it would be naïve to assume that that history could not affect the outcome in this high-profile media matter. Ultimately though, I expect Pistorius to be convicted of pre-meditated murder and would be absolutely astonished if he is not convicted of culpable homicide.