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 whatsoever.
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 result?”
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.