The Star.com– From the first week of his trial, the noisily regurgitative Oscar Pistorius has kept a vomit bucket by his prosthetic feet.
Watching livestreamed coverage of Judge Thokozile Matilda Masipa delivering her acquittal of the famous Blade Runner on the two most serious charges he faced — premeditated murder and murder in the killing of his model/TV reality star girlfriend — I could have used a retching pail too.
Methodically, with arbitrary firmness that will doubtless provide legal ammunition for an appeal, the 66-year-old jurist knocked out key underpinnings of the prosecutors’ case: Ear-witness accounts from neighbours who heard a woman’s “blood-curdling” screams before the bang-bang-bang-bang of gunfire coming from his Pretoria villa in the middle of the night.
She accepted, rather, that it was Pistorius who had done the screeching, upon the horror of discovering he’d fatally shot Reeva Steenkamp four times through a locked bathroom door, believing his home had been invaded by an intruder, on Valentine’s Day, 2013.
Pistorius, his lawyers had argued, screamed like a girl, his voice high-pitched. Those who testified they’d heard a female wailing were mistaken, Masipa seemingly acknowledged — in the absence of other supporting evidence — a conclusion that abruptly sucked the grist from a crucial part of the prosecution case. “None of the witnesses had ever heard the accused cry or scream, let alone when he was anxious.”
The witnesses were too far away, incapable of distinguishing female cries from male cries. Further, on the timeline Masipa deemed most credible, they must have mistaken gunshots with the sound of Pistorius banging to break down the bathroom door with a cricket bat after realizing that Steenkamp was not in bed, had not responded to his yell to phone for help and had probably been hit by the fusillade of bullets fired from a 9mm pistol he always kept under his pillow.
“I continue to explain why most witnesses got their facts wrong,” said Masipa.
Under the South African judicial system, there is no trial by jury. A judge sifts through the evidence, with the help of two aides, and renders the verdict.
Masipa also dismissed the significance of explosive text messages sent from Steenkamp to Pistorius less than a month earlier, which the defence had entered to demonstrate underlying tension in the glamorous couple’s relationship. “I’m scared of u sometimes,” Steenkamp wrote. “How u you snap at me . . . how u react to me.”
Masipa: “Normal relationships are dynamic and unpredictable most of the time, while human beings are fickle.”
That all but cleaves to the traditional defence of domestic crime — words said in anger, the combustibility of intimate relationships — which Western courts now reject as exculpation for violence. Such enlightenment must not have caught up to South African courts, even with a female, black judge on the bench, and despite the fact Masipa has handed down tough sentences in cases of rape and violence against women in the past.
By the time this column appears in print, Masipa might well have already convicted Pistorius on the lesser charge of culpable homicide — comparable to involuntary manslaughter — defined as the negligent killing of another person. Conviction can carry a sentence of up to 15 years, at the judge’s discretion. In South Africa, five years is typical. And Pistorius was also facing three separate firearm charges, including two of recklessly firing a pistol in public. He has purportedly done that before, charges dropped in 2009.
Masipa seemed just on the verge of a culpable-homicide verdict when she suddenly adjourned proceedings, showing a shrewd appreciation for drama, like a soap opera that leaves viewers hanging. Come back tomorrow, which means resumption at 3:30 a.m. Friday, Toronto time.
She did more than tip her hand, however. “I am of the view that the accused acted too hastily and with excessive force,” the judge said of Pistorius’ actions on that fateful night. While the prosecution, said Masipa, had not presented a case that proved premeditated murder or murder beyond a reasonable doubt — insufficient facts, “purely circumstantial” (though circumstantial evidence, when compelling, is routinely accepted by courtrooms around the world) — she was critical of Pistorius’ reckless actions on that night and his contradictory testimony during the 41-day trial.
“The accused therefore cannot be found guilty of murder. That, however, is not the end of the matter as culpable homicide is a competent verdict.”
It is not.
Pistorius can never now be called a murderer. At worst, he can be called a culpable homicider.
Shooting someone who doesn’t present an imminent threat — an intruder behind a door — is not a legal defence for murder in South Africa, no matter how much its citizens, primarily its white citizens, may feel themselves under siege from rampant crime.
Indeed, Masipa contradicted herself. She first noted all the things Pistorius could have done when he sensed a frightening presence in the bathroom — called security, phoned police, stepped onto the patio to holler for help. Yet she later observed: “How could the accused reasonably have foreseen that the shots would kill the deceased?”
He fired four times in rapid succession. And he described the episode in starkly different ways subsequently. At one point, “before I knew it, I had fired four shots . . . in the belief that the intruders were coming out” to attack him. At another point, as Masipa noted in her recounting of the defendant’s testimony, “he never intended to shoot anyone” and hadn’t fire purposefully at the bathroom door.
There are complex and confusing legal arguments at the heart of Pistorius’ exoneration on the two most serious murder charges. On the one hand, Masipa concurs with the defence position that the Olympian runner had not committed premeditated murder; then she suggests Pistorius should have foreseen the consequences of firing four times through a door, using “excessive force,” the latter a legal requirement — he should have reasonably known — for culpable homicide.
Those of us who’ve covered Pistorius as a double-amputee athlete, clanging down the Olympic track in London two years ago on his carbon fibre Flex-Foot Cheetahs — the “fastest man on no legs” — were duly impressed by his successful battle to compete against able-bodied competition, though not necessarily convinced that the blades didn’t actually provide him with a spring-action advantage. Four-time Olympic gold medallist Michael Johnson was virulently criticized for making that argument.
Pistorius mounted his tireless legal challenges with world sports authorities. He was triumphant and inspiring. But he was also the first to snarl afterwards, when beaten for the first time in the Paralympics 200-metre final, complaining that the Brazilian winner’s blades were too long. His sense of entitlement, his hypocrisy and poor sportsmanship, was breathtaking.
This is a man who loves guns, pursued an adrenalin-junkie driven lifestyle away from the track — crashed his speedboat, crashed his dirt bike, constantly defied limitations, refusing to yield to disability, the feet that were amputated when he was less than a year old.
He became an icon, a hero, an endorsement-enriched luminary.
But this is also the man who, five years ago, was arrested on an assault charge after slamming a door on a woman’s hand, allegedly deliberately. The charge was eventually dropped. Pistorius said it had been an accident.
Just like, so much more tragically, Valentine’s Day, 2013.