Over the course of two days (yesterday and today), Judge Masipa issued
her verdict in the South African murder trial of former paralympian sprinter
Oscar Pistorius. After a lengthy explanation of her factual findings and
legal conclusions, she declared him not guilty of murdering his girlfriend,
Reeva Steenkamp, but convicted him of a lesser charge called culpable
homicide. To begin to understand this verdict, we have to consider first
South African trial procedural.
The verdict itself was delivered in a way unfamiliar to most American audiences.
In the U.S., when a verdict is reached by a judge or jury in a criminal
case, the verdict is simply read aloud by the judge or jury foreperson:
“Guilty” or “Not Guilty.” These verdicts come
without explanation. Not so in South Africa; the judge reads aloud pages
and pages of factual findings and conclusions about the evidence that
was presented (with this process sometimes taking days) while the defendant
agonizingly waits for the verdict at the end: guilty or not guilty.
Also, unlike in the United States, in South Africa, there are no jury trials
(they were abolished in response to concerns that the country’s
history of apartheid would often make fair jury trials nearly impossible).
Thus, judges always decide the verdicts in criminal cases. (In the U.S.,
defendants can typically waive juries and request that their judges decide
guilt or innocence in a similar fashion).
In South Africa, every criminal case has two issues to be decided: the
facts (i.e. what happened) and the legal conclusions to be drawn from
those facts (i.e. based on these facts, what, if anything, is the accused
guilty of doing). The judge is responsible for deciding both aspects,
and, unlike in the United States, has to explain in writing the reasons
for the conclusions. Notably, however, in this case Judge Masipa exercised
her right to appoint two assessors to help her decide the facts. Those
two assessors sat next to her throughout the trial, and together, they
arrived at the factual conclusions. Interestingly, it is quite possible
that the two assessors could have collectively overruled the judge’s
determinations as to the facts, as they are essentially determined by
majority vote in these situations. Thus, the factual conclusions recited
by the judge during the delivering of the verdict might not have actually
been her own personal conclusions (though it sounded as if they were from
the way that she was speaking about them).
Once the factual determinations have been made, the judge is sole arbiter
of the legal conclusions to be drawn from the facts. Thus, although the
factual findings were collectively decided by she and the assessors, the
ultimate verdict in Pistorius’ case was Judge Masipa’s alone.
The factual conclusions are too numerous to list in detail here, but essentially,
Judge Masipa acquitted him of the most serious charge by ruling that Pistorius
did not intentionally kill his girlfriend. A conviction for that charge
would have carried a life sentence (though life sentences are effectively
reduced to 25 years in their system). However, she instead concluded that
he was “negligent” in the manner in which he had fired his
firearm, and that said negligence resulted in Steenkamp’s death.
As a result, he was found guilty of culpable homicide, a lesser charge
that carries a potential maximum sentence of 15 years and no minimum sentence
(meaning that he could conceivably receive a sentence of no jail).
Pistorius has already posted bail pending sentence, meaning that he is
still physically at liberty (somewhat) until his sentencing hearing. At
that time, all parties (the prosecution, the defense, and the victim)
will have the opportunity to be heard as to the appropriate sentence for
Mr. Pistorius. Judge Masipa will then be responsible for deciding his
sentence. However, even assuming that he is sentenced to a prison term
at that time, Mr. Pistorius most likely will be allowed to remain at liberty
on bail until he has exhausted his appeals. The appellate process can
last years, and unless and until his appeal has been decided in a manner
unfavorable to Pistorius, he probably will not actually start to serve
his prison sentence.
Notably, in contrast to the American system of appeals, a sentence could
actually be INCREASED ON APPEAL. That doesn’t happen in the U.S.,
but an appeals court in South Africa can raise sentences that they determine
to have been inappropriately low. Thus, I do not expect Judge Masipa to
give Pistorius a sentence without prison, as such a sentence would almost
certainly be criticized and increased on appeal after a public outrage.
Also, of particular note here, is the fact that the State (prosecution)
might actually be able to get Pistorius’ acquittal for murder OVERTURNED
ON APPEAL. Americans may assume that this is impossible because of our
system’s double jeopardy rules, but in fact, appeals of acquittal
can be made where the decision to acquit was wrong as a matter of law,
not fact. Appeals of this sort are possible precisely because trial judges
are required to explain their findings of fact; such a thing would be
more difficult in the American system because no one ever knows from the
judge or jury what factual determination (s) led to the decision to acquit.
In South Africa, murder can be either intentional – meaning that
the killer wanted to kill a person and intentionally did so – or
reckless, meaning that a person did an intentional act knowing full well
that it might result in someone’s death. For example, if I throw
a brick out of the 14th story of a Manhattan building onto a sidewalk,
I might not be intentionally aiming for someone’s head, but I am
obviously aware that I could kill someone on the sidewalk. This would
be a reckless murder. Thus, the critical question in deciding whether
someone is guilty of reckless murder is whether the result of the action
was foreseeable by the defendant.
Here, Judge Masipa concluded that the State had not proven beyond a reasonable
doubt that Pistorius intentionally killed his girlfriend. Also, she seemingly
concluded that it had not been sufficiently proven that he intended to
kill the person that he believed to be a burglar in his bathroom, because
he was frightened (though this is a highly questionable factual conclusion,
in the author’s opinion… I would tend to believe that shooting
a high-powered handgun four times in someone’s direction at short
range indicates an intention to kill).
This author has already written in detail about how an acquittal for murder
was going to be
almost impossible for Pistorius as a matter of law; now,
South African legal scholars are suggesting that an appeal by the State
could be successful as a result of the legal error suggested in this blog post and the previous one by this author.
In South Africa, deadly force is justified in self-defense only where the
threat is objectively imminent and deadly. Obviously, here, the person
behind the bathroom door was not an imminent threat to Pistorius; after
all, it was his girlfriend. Moreover, it was not reasonable to assume
that the person was armed or dangerous without having made any inquiries
But, the Judge’s error was this: she concluded that he had not committed
“reckless murder” (the South Africans use the word “dolus
eventualis” in lieu of “recklessness” for legal purposes)
because he did not foresee the possibility that Steenkamp was in the bathroom.
But that is the wrong question! The question should have been: was it
foreseeable that the PERSON – whoever it was – in the bathroom
would die as a result. The question for reckless murder (or dolus eventualis)
is this: “did the person intentionally perform an act while reckless
to the possibility that a DEATH of a PERSON would result?”, and
NOT “did the person intentionally perform an act while reckless
to the possibility that a death of a PARTICULAR SPECIFIC PERSON would
Since Pistorius’ use of force was not reasonable under the circumstances
(indeed, she found it to have been “negligent”), then the
only way he is not guilty of this reckless murder crime is if one somehow
concludes that the death of THE PERSON in the bathroom was unforeseeable
to Pistorius when he shot four times at close range into that tiny chamber.
Frankly, that conclusion would be logically indefensible, and Masipa failed
to even address it in her findings. As such, I think there is a decent
chance that Pistorius is convicted ON APPEAL of a charge for which he
was acquitted at trial, but we shall see.
The author of this post, Matthew Galluzzo, is a criminal defense attorney with
Galluzzo & Arnone LLP and former Manhattan prosecutor. In 2012, he worked as a consultant in
South Africa with that nation’s National Prosecuting Authority.
He has commented on this case for CNN, NBC, BBC, and Arise TV, among others.