The Large Chasm between What Oscar and the Judge Said and What They Did
by Rob Roman
Today Oscar Pistorius was sentenced to 5 years in prison and carted off to jail. He also received a 3 year suspended sentence for other related firearms charges. He could have gotten from zero prison time up to fifteen years in prison. The victim’s relatives were relieved that the trial has concluded and satisfied that he received some jail time. Oscar’s relatives were also happy the ordeal is over, saying Oscar would serve his penance and would use his time wisely and try to rehabilitate himself. Osc\ar can be seen in a photo touching hands with his family members. He took his sentence stoically and without emotion.
It was said that Oscar could do as little as 1/6 of the sentence, or 10 months, and then the sentence could be converted to house arrest. It was also said that he could be up for parole after serving half the sentence or 2.5 years. We said earlier that 2 full years in prison would be the absolute minimum acceptable, given that the Judge evidently believes Oscar’s impossible story and acknowledging that Oscar Pistorius is a legend and a story of the triumph of a disabled person that South Africa would find very difficult to let go of. The Paralympic committee did announce shortly after the sentence, however, that Oscar would be suspended from competition for the full five year sentence, regardless of any possible parole.
Judge Masipa said she endeavored to strike a balance between mercy and retribution. What was really interesting is what she said about the crime, though. She said that this case was different than most negligence cases, because Oscar knew “someone was behind the door” and his intent “was to shoot the intruder”. She also said that in the small confines of the tiny toilet room, there was no place for the person to go. She also explained that Oscar was well trained in the use of firearms, and that placed a high degree of responsibility on him. She expressed that it was a high degree of negligence. Judge Masipa basically said everything we said about the killing in an earlier article, only we pointed out that such conduct amounts to Dolus Eventualis. Oscar Pistorius knew there was a high probability of serious injury or death of the person behind the door, yet he negligently continued in his conduct.
How is this culpable homicide or manslaughter? Can you have culpable homicide with a very high degree of negligence compared to others? Say you are driving down a highway at a high rate of speed. Suddenly, a person attempts to cross the road. You cannot react in time and you run him over, killing him. Most likely, you will not be charged with a crime. You did not act negligently. The fault is entirely the victim’s. Now say you are driving down that same highway and there’s a person up ahead, but on the side of the road. You decide to text a message or fiddle with your radio or adjust your makeup. You swerve off the road, striking and killing the person. Now, if your negligence can be proven, you would be looking at a charge of manslaughter or culpable homicide.
In both cases above, there was no intent to kill. There is usually no intent to kill in a culpable homicide. How can judge Masipa say that Oscar Pistorius knew or should have known that the person behind the door would be seriously injured or killed and yet say there was no intent? It’s just stunning, actually. We are getting back to the explanation that not only does Judge Masipa believe Oscar’s impossible story, but she also believes he did not intend to fire the gun. She believes that he was in a high degree of fear and when he heard a noise in the toilet room, he automatically started firing, as part of a startle response. That’s two big wins for the defense. What the defense claimed happened was not the truth, nor was the finding of culpable homicide. This is nothing more than wishful thinking, or minimizing on the part of the defense and the Judge.
Here is the usual definition of culpable homicide (manslaughter) in South Africa:
“Culpable homicide” has been defined (in South African law) simply as “the unlawful negligent killing of a human being”.
The definition goes on to say that there’s a lot of “wiggle room” within that definition.
Culpable homicide, like murder is a form of unlawful killing. The crucial difference, however, is that if a person kills intentionally it is murder, whereas if he or she kills negligently it is culpable homicide.
Previously, South African case law took the view that a person who kills intentionally, but in mitigating circumstances, is guilty of culpable homicide rather than murder. For example, where a man uses excessive force to defend himself from attack and kills his assailant, this would be culpable homicide. ** However, later decisions by the Appellate Division strongly support the trend towards excluding a verdict of culpable homicide where intent to kill is proved **.
So, where there is a proven intent to kill, just as Judge Masipa describes during the sentencing, that is murder.
Here is what Judge Masipa is exactly describing in her words during the sentencing:
“Intent in the form of dolus eventualis or legal intention, which is present when the perpetrator objectively foresees the possibility of his act causing death and persists regardless of the consequences, suffices to find someone guilty of murder.
The South African Court of Appeal held that mens rea (a guilty mind or intent) in the form of dolus eventualis is an elastic concept. It can range from bordering on negligence (culpa) on the one hand to dolus directus on the other. However, the test always remains whether the accused person subjectively foresaw the possibility of the death of the deceased and associated himself therewith.
This was hardly bordering on negligence, but as the judge said, involved extraordinary negligence, one would suppose as a substitute for intent.
It looks more like an effort to bring the charge down as low as possible, so there could still be a meaningful yet light sentence. Had the charge been murder by way of Dolus Eventualis (negligently continuing in a conduct in which you know that serious injury or death could result), the minimum possible sentence would have been quite a long prison term. This is because what the judge described is exactly Dolus Eventualis or 2nd degree murder. How could it not be? It must be due to the startle response, a startle response that a well-trained athlete and a well-trained handler of firearms would never have. Judge Masipa has taken Oscar Pistorius completely at his word, though there are a myriad of reasons not to do so.
Let’s go back to an example from our earlier article. A man likes to go off road in his 4×4 monster truck and run over greenhouses. He knows that sometimes there are people working in these green houses. If he keeps on doing this, he will eventually kill a person working inside a greenhouse. Nevertheless, he continues to run over and smash greenhouses. If one day there just happens to be a person inside a greenhouse and a death were to occur, this would be second degree murder via Dolus Eventualis.
Let’s now take it further. The man sees a greenhouse and he sees a man working inside the greenhouse. It’s a very small greenhouse, and the man inside has nowhere to go or retreat to. The man with the 4×4 goes ahead and runs over him anyways, and the worker is killed. Will monster truck guy say that his foot hit the gas by mistake and it was an accident? He can try, but a look at his past record will reveal his behaviors and attitude. Can we then say that this was just an accident with an extraordinary amount of negligence? I don’t think we can say that.
If we take Oscar at his word, then this was a startle response and Oscar fired uncontrollably upon hearing something move in the toilet room. If this was so, wouldn’t we see a bullet pattern that’s something random like this?:
Or wouldn’t we see a more random pattern like this?:
Yet, what we do have is a bullet pattern like this:
Does that look uncontrolled or non-purposeful to you? Is this the pattern of a startle response? We don’t think so. It’s wishful thinking.
This is an arc going to Oscar’s left and down. Which way did the “person behind the door” fall? To Oscar’s left and down. That’s really quite a coincidence, folks.
Is it wishful thinking on behalf of the elite of South Africa, or on behalf of a great many citizens who do not want the great story and legend of Oscar Pistorius to die? This is a focal point of the pride of South Africa we are talking about here. I doubt that fact escaped the Judge’s attention. Five years will likely cover his years of peak performance. So, in that, and in the sponsorships and fortune he’s lost, it is a severe punishment after all. There is still a chance of a revival and dramatic come-back, and the verdict will stand unless challenged by the prosecution. This verdict states for all time that this was a tragic accident, and Oscar, on completion of his term, may be said to be fully rehabilitated. Yet, the source of the problem, which is Oscar’s really bad and childish behavior, may never be addressed.
Let’s not forget that these were 9mm “black talon” hollow-point bullets, and Oscar knew full well what they could do. He even once referred to them as “Zombie Stoppers”, meaning they were so powerful and deadly, they could even kill a person who is already dead. According to the coroner, each and every one of the three out of four bullets that struck Reeva Steenkamp was fatal all on it’s own.
What Oscar said was not the truth, what Oscar did was the truth.
Ironically, what Judge Masipa said was the truth, but what she did was not the truth.