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