Oscar Pistorius Trial 3: Gerrie Nel and Prosecutorial Hubris

This is the third article, also published on News24, on the Pistorius trial:

In an article, “Oscar Pistorius's Cross-Examination” written by Jeralyn  and reported on  www.talkleft.com, written at the time when Gerrie Nel was cross examining OP during the trial shows that, far from judicial error, this case was lost by a prosecutor who thought he was bigger than the law. It was this prosecutorial failure that led to the judge acquitting OP of murder. 

I often wondered why Barry Roux didn't object to Gerrie Nel's cross of OP. Now I realize that Barry Roux just gave Gerrie Nel rope to hang himself. And the gullible press and public who were effusive in their praise of the prosecution now are left to consider the outcome of a prosecutor who believed in his own hype. In the end he failed Reeva and her family.

The mainstream press was effusive in its praise of Gerrie Nel at the time and in awe of his “bulldog” approach to in his cross-examination of Oscar Pistorius. Remember Judge Masipa warned Nel, “You possibly think this is entertainment. It is not. Please restrain yourself.”

As the article points out, “It's not the prosecutor's job to tell a defendant to accept responsibility for the crime for which he's on trial and denies committing. It's his job to ask questions and test his version of the facts. Unless a defendant's story is so rehearsed it never changes, there are obviously going to be minor discrepancies. It's not surprising that Oscar's memory is better on what led up to the shooting than during the moments of trauma afterwards when he realized Reeva was dead … Mis-remembering some details does not make one a liar. It makes one human."

And then, written in April 2014, the writer of the article makes a prediction: “I don't see a premeditated murder case here. As to the lesser offense of [common law] murder, that's a tougher call. But it seems to me the prosecutor overcharged the case and the testimony of most of his witnesses (particularly the neighbors) were inconsistent with each other. The media's praise of him and his bombastic style is misplaced. He's just substituting theatrics for his lack of proof, and throwing everything he can think of against the wall, hoping something sticks.

The judge has not hesitated to rein in the prosecutor. His approach may sell with the public, but it remains to be seen whether it helps or hurts his case with the judge -- the only person whose opinion matters in the end.”

In the end the judge was not impressed, the state failed to prove its case and accused acquitted of murder. Directing anger at the judge and calling her names is misplaced. The failure here was on the prosecution's side: prosecutorial hubris: a prosecutor who came to the table with nothing in his hand, went all in and lost. 

Oscar Pistorius Trial 2: Did Judge Masipa Really Err?

This is the second article, which was posted on News24 and questions whether Masipa J, in her judgment finding Pistorius guilty of culpable homicide but not of murder, did make an error:

The Sunday Time proclaims, “Oscar Judge Under Fire “ (Sunday 14thSeptember 2014). It is so interesting that so much of the mainstream media who backed the wrong horse right the way through the trial now have to grasp at straws to cover up their bias. The focus of attack in the media now shifts to a judge who, just last week, was being hailed as a competent jurist, a champion for justice and women’s rights. Now she is criticized by every armchair expert as well as in certain legal circles. Yet, we are justified in asking whether the judge did err in any way in her application of the law of intent.

 In an article written by HJ Van Der Merwe in “Law, Democracy and Development” (Vol 17 2013 at p 64ff) the author makes it clear that the Supreme Court of Appeal (SCA) clarified the application of dolus eventualis in criminal matters in the Humphreys’ case on appeal. Dolus is a mental element of the crime of murder that is comprised of two parts: (1) that the accused foresaw as a real and substantial possibility that death would occur and (2) that the accused reconciled himself / was reckless or indifferent to that outcome. First, the accused must have foreseen the real and substantial possibility of death occurring and in the Humphreys’ case, the accused foresaw that outcome, but did not reconcile himself to that outcome and, therefore, was not guilty of murder. In Humphreys, the Appellate Division clarified this second aspect of dolus and I suspect that it was this second element that Judge Masipa found lacking - the accused in the Pistorius case was not indifferent / had not reconciled himself / was not reckless as to that outcome. Therefore, far from making a mistake of law, it shows that the judge has read and applied the Humphreys’ test for dolus correctly and that this is a clearer understanding and application of the law relating to this second aspect of dolus eventualis than the "experts" who have been so critical of the judge.

The verdict also points to the prosecutorial failure in the Pistorius case where the prosecution tried to establish "pre-meditated" murder despite the challenges of proving this where there were no reliable witnesses – an enterprise that was doomed before it began. Strangely enough, it was probably Gerrie Nel's bullying tactics that convinced the court that the accused did not reconcile himself / was not reckless or indifferent to the outcome that he had foreseen - he was clearly devastated by the outcome and showed remorse when attacked by the prosecution in the witness box. The prosecution also made a meal of the accused’s proficiency with firearms and, interestingly, in terms of the Humphreys’ judgment, it could well have been the accused’s proficiency with firearms that also convinced the judge that he had not fulfilled the recklessness aspect of dolus – it was because of the accused’s knowledge of firearms that he thought that he could shoot into that enclosed space without causing death.

 Clearly the judge has understood the law and applied it correctly and I suspect that there will not be an appeal by the prosecution. If there is one, it is doomed.  

Osar Pistorius Trial 1: A Toxic Relationship?

For those of you who have followed the trial I thought I would post a series of issues that I addressed during the course of the trial. This was a letter to the Sunday Times that was published in their letters page on the 13th April 2014:

Oscar and Reeva: A Toxic and Abusive Relationship?

I refer to Redi Tlhabi's piece "When pain and cruelty wear loves's sweet smile" (6 April). In Redi's article, echoing similar sentiments expressed on the letters page of various newspapers as well as social media platforms, the conclusion is reached that Oscar and Reeva were in a toxic and abusive relationship. Redi, drawing lines from the conviction of Thato Kutumela for the horrific and brutal murder and rape of Zanele Khumalo, to the relationship between Oscar and Reeva, concludes that "... this was not love." This is a staggering and bold conclusion given that it is reached on the basis of only 4 out of almost 1800 messages between Oscar and Reeva over the span of their three month relationship.

The real problem with this conclusion is that it is based on messages in which there is neither tone nor context. As in any indirect form of communication (letter, journal entry, email, SMS, WhatsApp and so on), unless we have other information, we must imagine context and insert tone into the messages, but who is to say that our imagined context (which we must determine from our own context) and our inserted tone (which we must colour in our own voices) are correct? The attendant danger is that, listening to these messages, we assume that we have access to every communication that passed between these two people. Of course, we do not. We do not know what transpired between these two when they were not communicating indirectly, but directly: when they spoke to one another face-to-face to address the issues she raised in her messages. Perhaps these WhatsApp messages functioned as conversation starters that led to a frank and open conversation about their respective expectations from their relationship and from one another. This is how healthy relationships function: each party feeling able to express his / her own expectations from the other and assessing whether the other is able to meet those expectations.

In addition, It would be very unusual if Reeva truly felt in danger that she would not have confided in someone: her mother or a friend perhaps, but not one of these people were called to testify that she said something of this sort to them. Why? Because she never did. In contrast, the relationship between Thato and Zanele was characterized by violence and abuse that was apparent to her parents and friends, so much so that her father forbade him access to the house. When this father read from his daughter's journal we do not have to imagine context or insert tone. The toxic and abusive nature of this relationship that went before this journal entry is clearly obvious. In the case of Oscar and Reeva, this is not so.

We must be very cautious about reading our own preconceptions (inserting our own contexts and colouring the discourse in our own tone) into the lives of others. What relationship is completely devoid of any trace of anger, frustration, irritation or misunderstanding? No relationship that I know.