Fact based reporting
by Rob Roman
Legal Research by Amanda Chen
Understanding the verdict and “Dolus Eventualis”. This here will be a “twofer”, explaining both of these terms.
The heck you talk? Let’s put it in terms we all can understand (with examples).
“Dumbass Eventualis” – If you are a gun owner, and you have read up on firearms and have had classes and possibly tests, you are an educated gun owner. You know what a gun can do and you know what can happen if you fire a weapon at a human being. Especially, you know what a hollow point bullet can do to a human being. This bullet is made to expand, fragment, and mushroom out so it will not exit the body, but will bounce inside the body and tear through vital organs, causing much more damage and bloodshed.
If you own a lethal weapon and you are foolish, hot-headed, careless and reckless, if you are just another idiot with a gun, then you are a dumbass and eventually you are going to kill an unarmed, innocent person. You are a bad accident waiting to happen. You are, for all intents and purposes, a “Dumbass Eventualis”.
Recent examples are:
-Florida’s Michael Dunn, a guy who fired 10 shots into a car full of teenagers because he didn’t like their loud music.
-Florida’s Adele Bing who heard a loud knock on her door and open-fired through the door, killing her own daughter carrying Adele’s grandaughter in her arms (Well, she thought it was someone else!)
– Tennessee bar owner Chris Ferrell, who shot a Country Music singer to death for smoking in a non-smoking area, giving ‘rules strictly enforced’ a whole new meaning.
Victim Wayne Mills
– Georgia’s Philip Sailors, who shot a man to death while backing out of Sailor’s driveway that he turned into by mistake. It was a GPS mistake. Also, some news and radio talk shows had been going on and on at the time talking about how ya betta watch out, the ‘govmint is coming to grab all yall’s gunz’.
-Maine’s James Pak, who shot and killed his tenants, a 19 year-old man and his 18 year-old girlfriend for
parking in the wrong spot during a snow storm. Where were the police, you ask? They had just left the property.
And, -South Africa’s very own Oscar Pistorius, who heard a noise in the toilet room and fired four
Times through the closed door, killing his model girlfriend.
Yes, my friends, these are all prime examples of “Dumbass Eventualis”. These people are all innocent, unarmed people shot to death by armed aggressors.
Now, let’s talk about “Dolus Eventualis”.
One of the very first words a criminal law student will hear is the Latin “Mens Rea”. Mens Rea – means having a guilty mind. Many crimes will consist of the Actus Reus, or the criminal act and the Mens Rea, or criminal mind. Both must be in play for a defendant to be culpable or responsible for the crime.
Criminal Act + Criminal Mind = Crime
Why? I could be sky diving and my parachute doesn’t open. I fall right into you and kill you. The Actus Reas , or the criminal act is that I have caused your death. But there is no Mens Rea, since I did not intend to kill you, it was an accident, I had no guilty mind.
So, very quickly in the law, people needed to distinguish between the crime committed, and the intent and the state of mind of the person committing the crime, to decide guilt or the degree of guilt of that person. So law is making a distinction between the criminal act and the intent. The intent of the defendant must often be proven and this often goes to the state of mind of the defendant at the time of the crime.
Criminal Mind = Actual Intent + State of Mind
Was the defendant:
-impaired by a substance? -insane or unable distinguish between right and wrong at the time of the crime? -under duress (forced to do the crime or under extreme emotional disturbance)?
South African law comes from a mixture of Roman and English common law, German common law, and general European or what is called “mainland” common law. So the criminal act and the criminal mind must be proven. This is where pre-planning (premeditation), sudden heat of passion, self-defense, under duress, and temporary insanity come into play. The state of mind of the defendant must be proven and the true intent discovered, before a court can determine guilt or the degree of guilt.
South African law then divides the intent of the defendant into 3 main categories. These are called:
Dolus Directus- means a direct intention. The defendant is proven to have had a direct
intention to commit a murder, even if the opportunity or chance of committing the murder is very small. (Example: OJ Simpson brings a very sharp knife, a pair of Arliss extra large gloves given to him by his ex-wife, a pair of very rare Bruno Magli shoes (size 12) and a dark knit cap to his ex-wife’s house just after sunset. Seems like he had a direct intent to kill said ex-wife)
This is our equivalent of Premeditation.
Dolus Indirectus – means an indirect intent. The defendant may not have set out to commit a murder, but the defendant participated in a felony where it was
foreseeable that a participant, an innocent, or a police officer, etc. could be murdered. (Example: “Doug”and his friend, Eric, go to rob a store, they just want the money, but hey, nobody better get in their way. During the robbery, Eric shoots and kills a woman who witnessed the robbery, and the store owner shoots and kills Eric. Now, Doug will be charged with the robbery, the killing of the woman, and the killing of Eric.)
This is our equivalent of Felony murder.
Dolus Eventualis – forseeable intent. Here the defendant does not mean to commit
a murder, but is proven to know that it was foreseeable that his or her acts could result in a
death and the defendant recklessly continues anyways.
(Example: Doug enjoys driving his vehicle through large glass greenhouses. He knows people work inside these greenhouses and that if he doesn’t stop, he may kill somebody. Doug keeps driving into greenhouses. This time he has killed Bumptious Q., Bangwhistle III, who was working inside the greenhouse. Doug is now under arrest for murder via Dolus Eventualis.
This is our equivalent of 2nd degree murder.
So it’s generally agreed upon that it cannot be proven that Oscar Pistorius in any way pre-planned or premeditated the killing of Reeva Steenkamp. Most likely, he simply flipped his burger. No Dolus Directus.
Pistorius lawfully owned a firearm and was lawfully protecting himself and others in his home. There was no felony that could foreseeably cause a murder. Pistorius did not commit Felony murder. No Dolus Indirectus.
Which leaves us with Dolus Evantualis. Did Pistorius know that his actions could foreseeably lead to a death? If so, did he recklessly go ahead and do these actions anyways? The prosecution says yes, the defense says no.
Judge Masipa, if I am reading her decision correctly, is saying that she does not believe Oscar Pistorius could forsee that his actions could lead to a death. He did not foresee that his actions could lead to the death of Reeva Steenkamp, because his story that he folllowed the sound of a home invader and neglected to check that Reeva was still in the bedroom could possibly reasonably be true.
Judge Masipa does not believe Oscar could foresee that his actions could lead to the death of the intruder, because his disability and inability to flee combined with his heightened sense of fear of attack caused him to react suddenly and impulsively, firing on reflex without realizing he could cause a death.
This is understandable and this is what we hear in many cases of civilians as well as police, however well trained in the use of firearms, will fire multiple times under fear and many times will not remember firing so many times.
We saw this in the case of Florida’s Michael Dunn, who fired 10 shots but remembered just firing only 4. Also in the case of Missouri Police Officer, Darren Wilson, who fired 10 times at Big Mike Brown. Most likely, he does not remember firing so many shots and will report some tunnel vision and some blurring of events.
Oscar said he did not realize he had fired four times. He did not think Reeva was in the bathroom. He heard a noise in the toilet room, but he was sure that an intruder was inside.
This is not self-defense by South African gun laws (You must know who or what your target is. You must identify your target prior to firing) and by South African law (It’s not enough for an intruder to be present in your home, the person must be an imminent threat to your life in order to justify the use of deadly force.) A person hiding or cowering in a tiny, enclosed toilet room is not yet an imminent threat.
An unjustifiable, but accidental killing is called culpable homicide – the defendant, without intent, recklessly caused the death of another human being. This is our equivalent of Manslaughter.
The killing is definitely not justified by mistake or by self-defense. At the very least it is certainly manslaughter or culpable homicide.
1st Degree Murder – Pre-planning, premeditation – Dolus Directus
1st Degree Murder – felony murder, foreseeable consequence of another crime – Dolus Indirectus
2nd degree Murder – Not pre-planned, foreseeable, reckless intent – Dolus Eventualius
Manslaughter – Reckless, negligent, no intent – Culpable homicide
Self-Defense – Justified, must be imminent danger – Non Culpable homicide
The prosecution does not see it this way. This is letting Oscar Pistorius off the hook too easily, like has always happened before. According to Gerrie Nel, Oscar should have foreseen that he could cause Reeva’s death because he should have known for sure that she was not the one in the bathroom, either by some way making sure she was present in the bedroom or making sure of who was in the toilet room before firing.
Gerrie Nel sees Oscar’s story as impossible and unbelievable, indicating 2nd degree murder. Further, even admitting Oscar’s story that he thought it was an intruder, it’s still Dolus Eventualis or 2nd degree murder because Oscar should have forseen that firing 4 hollow-point rounds into a tiny toilet room, believing there was someone inside, with no place to hide, could lead to the death of an individual.
Some people are saying that the Judge’s decision is based entirely on Oscar’s belief that Reeva was not in the toilet room. Therefore, he could have never forseen he would cause Reeva’s death. I believe the judge is smarter than that and that she reasoned on both the possibility it was Reeva and the possibility it was an intruder.
Having been defenders of Jodi Arias in the Arizona, USA case, Amanda and I are both very sensitive to what the public opinion against Pistorius has been. We know that the media and public opinion has been heavily anti-Oscar and pro-prosecution. We also are aware that the police were very agressive in this case and that the prosecutor was very zealous and relentless in his pursuit of Mr. Pistorius on the stand and in the trial generally. We still feel this was a Valentine’s Day argument leading to violence and death, not a home-defense accident.
Now, let’s look at what Oscar’s story really looks like, something we haven’t really seen before. This is oscar’s story as testified to and as it must be.
1) Oscar wakes up around 3:00 AM
2) Reeva is either up or wakes up
3) She asks him if he can’t sleep
4) This is the last time he sees, hears, touches Reeva
5) Oscar gets up and brings in two fans from the balcony (See “Your heart vs the Verdict” for why we feel this is a lie.) Also, the idea that Oscar gets into this fan project without Reeva asking if she could help him in any way, is definitely not like Reeva.
6) He’s distracted by the noise of the fans, etc.
7) Oscar brings the fans inside, closes the blinds and the curtains and throws Reeva’s jeans over the blue light of the stereo. Now the room is pitch black.
8) At the same time, Reeva gets up, goes to the bathroom with her cell phone. She does not turn on the lights, does not contact Oscar, and loudly slides open the large window.
9) This must have happened if we accept Oscar’s story as true.
10) Upon hearing the window loudly slide open, Oscar does not check to see Reeva in the bedroom or call out to her. She was awake less than a minute before, according to Oscar, but he does not try to establish contact with her. He hears that noise and he has tunnel vision from then on. This is the giant error that Judge Masipa sees as being possibly reasonably true.
11) Now Reeva is in the toilet or on her way to the toilet. Oscar is on his stumps softly telling ‘bedroom Reeva’ to get down and call the police. Although, in another version, he screams back for Reeva to call the police right before he
fires. In the first version, he softly tells Reeva to get down and call the police. Here, only ‘bedroom Reeva’ can hear him, and not ‘bathroom Reeva’, explaining why she did not call the police. In the other version, both a potential ‘bedroom Reeva’ and a ‘bathroom Reeva’ can hear him yell out for her to call the police, but neither of them call the police because ‘bathroom Reeva’ is immediately shot to death.
12) Oscar walks down the hallway on his stumps, I presume making a distinct sound. Reeva hears this and does not try and contact him?
13) She goes in the toilet room and closes the door and Oscar hears the door close. He calls out for the intruder to “get the f*ck out of my house”. He yells this twice.
14) Maybe at this stage Reeva realizes that something is wrong, so she locks the door and listens at the door. But she also pulls the key out of the door lock!
14.5) Oscar, in one version, now yells out for Reeva to call the police, and still Reeva does
nothing to alert Oscar that she is in the toilet and she does not call anyone.
15) Oscar hears a noise inside the toilet room, panics, and the gun fires four times.
16) For Oscar’s account to be true, Reeva never makes a sound as a bullet crashes into her hip (fatal injury), her shoulder, her finger and her skull (fatal injury). She can make no identifying sound because, according to Oscar’s story, he does not realize it was Reeva until he gets back to the bedroom. Yet he must know he shot someone, because the person fell over and against the toilet.
17) So having just fired four shots and hearing someone fall (granted, Oscar claims the shots deafened him), he now notices the door is locked. Oscar turns his back on the danger to go back to the bedroom. He then realizes that Reeva is not there and it could be Reeva in the toilet room. This is when all the agonized crying for help and screaming happen, according to Oscar.
18) Oscar goes back to the toilet room with his prosthetics and tries to kick down the door then gets the cricket bat.
19) All the screaming arguing crying, blood curdling screams, man and woman’s voices, and Oscar’s cries for help were all only coming from Oscar and they all occurred at this time.
20) After breaking down the door, more cries and screams are heard and they are all Oscar until he makes his first phone call at 3:19 AM.
I will leave it up to you if you believe that this story is possibly reasonably true. The Defense and Judge Masipa feel that it is. Gunshots are extremely loud. To try to explain that no witnesses heard the gunshots but they all heard the door being broken with the cricket bat is hard to believe.
If you do not believe that this story can be possibly reasonably true, then the story is false and Oscar knowingly fired through the door at Reeva Steenkamp, most likely in anger. This is Dolus Eventualis or 2nd degree murder. Unlike the explanations of some people who don’t understand the law, the prosecution does not need to have a correct theory or a story that is exactly true.
If Oscar’s story, the Defense story, can not be seen to be possibly, reasonably true, then he’s lying, and he’s guilty of knowingly causing Reeva Steenkamp’s death. This is what guilt beyond a reasonable doubt means.
If you side with the judge on part one, we move on to part two. Taking Oscar’s story as truthful, did he reasonably forsee that he could cause the death of whomever was inside the toilet room and then recklessly proceed and go ahead with his actions anyways?
The Judge is saying that Oscar did not attempt to make contact with the intruder. He heard a sound inside the toilet room, he panicked, he responded to the noise, not to a person, and the gun started firing. In this way, Oscar did not foresee that he would cause the death of whomever, if anybody, was inside the toilet room. This can be seen as a fair judgement if you overlook all of Oscar Pistorius’ past and consider him not as a Paralympic Champion or Olympic Runner, but as the average double amputee in the middle of the night. If you agree, then that’s the end of the case.
I suppose the judge cited various facts in coming to this decision. Namely Oscar’s disability, his inability to flee (though he claimed he could put on his prosthetics in 30 seconds), his innate feelings of being attacked, treated unfairly, and preyed uopn, his startle response and extreme fear, his previous experiences with crime and fearful situations in the past when he thought an intruder was present, his tunnel vision when responding to noises at night, and his impulsivity, and foolish recklessness with firearms in the past, confirmed by the prosecution.
The Prosecution would cite that Oscar seemed to shoot in an arc across the toilet door, moving the gun as ther target moved, rather than just random firing, his experience with handling and using firearms and his practice on the range, the mandatory training in South Africa for a gun owner which states you should never fire on a target or person without positively identifying that target.
South African law states that you should not use deadly force unless faced with an imminent threat of serious injury or death, that a person possibly inside the house is not yet an imminent threat, that Oscar’s past responses have been responses of aggression and heading towards the danger, not fear and panic, that his past recklessness with guns should have taught him to be more careful, that Oscar had faced his disability and overcame his difficulties, that he did have the opportunity to flee or avoid conflict.
Oscar also was Not alone. Especially since he was handicapped, you would expect him to enlist the help of his partner, by contacting Reeva, or at least making sure she was safe in the bedroom. He is afraid of the danger but makes no effort to make contact with whoever is in the toilet room or to give them a warning. He doesn’t call security in the beginning, he claims he didn’t set his home alarm. If he was so paranoid and fearful of intruders, you think he would set the alarm, yet, if he did set it, then he’s lying and is guilty anyways because the alarm would have gone off if Reeva went downstairs for a snack or if an intruder opened the window. Of course, Oscar has explanations or excuses for all these things.
If you side with the prosecution, then this case is not over for you. Is South Africa prepared to dismantle the legendary myth of Oscar Pistorius? I think they would prefer to avoid this. It seems like Oscar would have a difficult time coming back in sports after not only this shooting incident, but other really bad behaviors that were covered up for him in a seemingly organized manner.
Hopefully Judge Masipa will have the fortitude to make Oscar have to pay for his crimes with a little prison time. Then it’s up to South Africans whether they want to rejuvenate their legend. We will see whether they are willing to forgive, and how much they are willing to forget.