Judge Masipa finds Oscar Pistorius not guilty of premeditated murder, but he awaits murder verdict
Oscar Pistorius has been found not guilty of the premeditated murder of Reeva Steenkamp on Valentine’s Day last year, but he is yet to hear verdicts in several other charges, including murder and culpable homicide. Judge Thokozile Masipa is reading out a written judgment, which has been seen only by her and two assessors, and is expected to give her verdict at its conclusion. The prosecution claims that the athlete deliberately shot Steenkamp through a toilet door following an argument on Valentine’s Day last year, while Pistorius claims he mistook Steenkamp for a dangerous intruder. His lawyers are arguing two defences: putative self-defence and involuntary action. The defence insists that Pistorius pulled the trigger “reflexively” and without thinking because he was in such as state of fear, suggesting involuntary action. But it has said that if Masipa cannot accept this, she should see his actions as putative self-defence, meaning that Pistorius took reasonable means to defend himself against a genuinely held fear of attack. Here is what has been heard so far:
11.15am: Masipa says the essential question is whether or not there is reasonable doubt that Pistorius intended to kill on 14 February 2013. On the count of premeditated murder, the judge says the evidence is “purely circumstantial” and that the state has failed to prove beyond reasonable doubt that Pistorius is guilty of premeditated murder.
Masipa says Pistorius was a “very poor witness”. He was composed and logical in evidence in chief, but lost his composure under cross-examination. She says it does not make sense to argue this was because he was suffering from emotional distress because his initial evidence could not be faulted. He was an “evasive witness”, she says, and appeared to be more worried about the impact of his answers than the answers themselves. However, she says, untruthfulness in a testimony does not necessarily prove guilt.
Masipa says Steenkamp was killed under “peculiar” circumstances and some aspects “do not make sense”. Why did Pistorius not ascertain if Steenkamp had heard the perceived burglar or his own calls for her to phone the police, asks Masipa. She points out that Steenkamp had her phone with her in the toilet, yet never called the police.
10.50am: Judge Masipa says that “without a doubt” the court is “dealing with a plethora of defences”. First, she says, is whether Pistorius lacked criminal capacity at the time he killed the deceased. The judge points to his mental health evaluation which found that he “did not suffer from a mental illness or defect that would have rendered him criminally not responsible for the offence charged”. She disagrees with the defence’s claim that a reflex reaction is similar to lacking capacity. Pistorius, by his own admission, decided to arm himself and go to the bathroom, she says. This was a “conscious” decision and inconsistent with the lack of criminal capacity defence. Masipa says she is satisfied that the accused could distinguish between right and wrong and act in accordance with that distinction at the time of the killing.
Masipa turns to the defence of putative self-defence, where the accused uses reasonable means to defend himself against a genuinely held fear of attack. She notes that Pistorius’s testimony was “contradictory”. Masipa also points out that Pistorius is not unique in being more vulnerable to danger. She says it would not be reasonable to say that women, children and others with limited mobility should arm themselves.
10.00am: Masipa says the next question is: can the version of the accused be “reasonably, possibly true”? She dismisses some of the arguments put forward by the state. First, she rejects the prosecution’s argument that Steenkamp would have simply taken her phone to the toilet in the night. Masipa says Steenkamp might have done so for a number of reasons.
The judge also dismisses both the loving and angry WhatsApp messages between Pistorius and Steenkamp in the lead up to her death. Human beings are “fickle”, she says, and normal relationships are “dynamic and unpredictable” sometimes. The court has therefore refrained from making inferences one way or another from any of the messages.
The court has also decided not to make any inferences from the fact that Steenkamp may have had food in her stomach at the time of her death. Masipa says that even the experts note that the evidence is inconclusive so it is not certain that Steenkamp ate two hours before her death, as the prosecution claimed. The state claimed that Steenkamp went down to eat amid an argument with Pistorius overheard by neighbour Estelle van der Merwe. Masipa says that Van der Merwe did not know where the argument came from or even what language it was in, so there was no proof that this was linked to the events in Pistorius’s home.
Masipa turns to the testimony of Pistorius and says it is not quite clear whether he intended to shoot or not. She reads several quotes in which the athlete describes the exact moments that he fired the gun. Over the course of the trial, he has claimed it was “an accident”, that he “never intended to kill anyone” and that he “did not have time to think before firing”. However, Masipa says part of the evidence is “inconsistent with someone who shot without thinking”. Pistorius released the safety mechanism on the gun and shot into the door, although told the court that if he wanted to shoot someone he would have “aimed” higher. At one point in the trial, Pistorius said: “The accident was that I discharged my firearm in the belief an intruder was coming out to attack me.”
9.45am: The judge says she accepts the defence’s timeline of events, in which they argue the shots were fired at around 3.12am. The screams, heard in the following minutes, were then likely to be Pistorius rather than Steenkamp. The noises heard at 3.17am were then likely to be the sound of Pistorius knocking down the door with a cricket bat rather than gunshots. Judge Masipa uses the timeline of objective facts to test witness statements. She shows that some witnesses got their times wrong or mistakenly believed the cricket bat to be gunshots.
9.30am: Judge Masipa suggests that the screams neighbours believed came from a woman, could have in fact come from Pistorius. She notes that none of the witnesses – even Pistorius’s former girlfriend Samantha Taylor – had heard the athlete scream when faced with a life-threatening situation. The shots were fired in quick succession and Steenkamp probably did not breathe for more than a few seconds after being shot in the head, suggesting that Steenkamp was not the one screaming, she says.
The judge discusses the reliability of witness statements, noting that many “got their facts wrong” with some neighbours “genuinely mistaken” in what they heard. She says that the evidence of Michelle Burger and her husband was “unreliable”, but says they were not dishonest. Other witnesses were “disadvantaged” by the huge media attention as they had researched the case, she says. The “probability” is that some witnesses failed to separate what they knew personally, what they had heard from other people and what they had gathered from the media, she says.
“Human beings are fallible and depend on memories which fail over time,” says Masipa. But she says that the court is in the “fortunate position” that it can rely on evidence from technology, such as phone records, which is more reliable than human perception and memory. The judge says it would be unwise to rely on any evidence by any of the witnesses without testing them against the objective facts.
9.00am: Judge Thokozile Masipa outlines the charges against Pistorius. He is accused of murdering Steenkamp, as well as two counts of discharging firearms in public and one count of illegal possession of ammunition. She then outlines the defence, which is that the athlete denies shooting Steenkamp intentionally and believed there was an intruder in his bathroom who posed a threat to him and the deceased.
Masipa states the facts related to the murder charge on which both sides agree. On 14 February 2013, shortly after 3am, screams were heard from the accused’s house. While on stumps, Pistorius fired four shots into the toilet door. The deceased was inside the toilet, which was locked from the inside. Three of the four struck the deceased. She sustained wounds on her side, arm, head and web of her fingers. Steenkamp died of multiple gunshot wounds. Soon after the shots were fired, the accused called for help and used a cricket bat to break down the door. He took Steenkamp downstairs, was very emotional and was seen trying to resuscitate the deceased.
The judge notes that it would be “fruitless” to rehash all the detailed evidence, which goes into “thousands of pages”, but says it had all been taken into consideration. She adds that some issues had taken up a lot of the court’s time – which was correct to do so – but which now “pale into insignificance” in the context of all the evidence as a whole. This included whether or not police contaminated the scene, the length of an extension cord that went missing from the crime scene and the authenticity of items in various police exhibits.
Oscar Pistorius verdict: six questions for Judge Masipa
Oscar Pistorius will finally learn his fate on Thursday morning as Judge Thokozile Masipa declares her verdict in what has been dubbed the trial of the century. Throughout the trial, which began six months ago, Masipa has given away little about what direction she might take, interrupting court proceedings only very occasionally. She and her assessors have heard from 37 witnesses, including Pistorius himself, and have 4,000 pages of evidence to consider. The judge will ultimately have to decide what was going through Pistorius’s head when he shot his girlfriend Reeva Steenkamp four times through a closed toilet door on Valentine’s Day last year. Here are six questions she will have taken into consideration before reaching her verdict:
Has Pistorius ‘tailored’ his testimony?
The prosecution has accused Pistorius of “tailoring” his evidence, although the athlete argued that these were genuine mistakes. For example, in his bail statement, Pistorius said he “went onto the balcony” to retrieve a fan but in court he said he did not go fully out onto the balcony. He initially said he “whispered” to Steenkamp to get down and call the police, but later denied whispering and said he spoke in a “low tone”. These were important details as they formed the foundations of his claim that he never saw Steenkamp leave their bed to go to the toilet. The judge will have to decide if these are reasonable mistakes to make or whether, as prosecutor Gerrie Nel argues, Pistorius was “thinking of something that never happened” and struggling to “keep up with an untruth”.
Is Pistorius’s version of events even possible?
The athlete struggled to explain why some parts of his testimony contradicted the state’s evidence. Pathologist Gert Saayman said it was probable – although not certain – that Steenkamp had eaten about two hours before her death, around the time a neighbour said she heard an argument at the house. Pistorius, who claimed they were both asleep at that time, admitted: “I don’t have an explanation for it.” The judge will have to decide if it is possible that Steenkamp got out of bed and went to the toilet without Pistorius hearing or seeing her go, while Nel says the most “improbable” part of the athlete’s story is that Steenkamp never uttered a word from the toilet before she was shot.
How reliable is the police evidence?
The prosecution has used police crime scene photographs to suggest that Pistorius’s story is a lie. For example, if his duvet was on the bedroom floor, as it is in one photograph, the athlete would struggle to convince the court he thought Steenkamp was in bed. However, the defence has proven that the police moved items around in the house that night and Pistorius insists that his bedroom was not how he left it. During the closing speeches, the defence also showed the court a photograph of a police officer – who had specifically told the court he had not touched anything at the crime scene – touching items in Pistorius’s bedroom. Defence lawyer Barry Roux told the court there was “no respect” for the crime scene by investigators, making it difficult for Judge Masipa to convict Pistorius purely based on the evidence provided by police.
Did Pistorius and Steenkamp argue before the shooting?
Police IT expert Captain Francois Moller told the court he examined thousands of text messages sent between Steenkamp and Pistorius, of which 90 per cent showed a “loving, normal” relationship. However, a small number portrayed Pistorius as a controlling and jealous boyfriend. In one message, sent a few weeks before her death, Steenkamp wrote: “I’m scared of you sometimes and how you snap at me and how you will react to me.” Nevertheless, in Steenkamp’s Valentine’s Day card to Pistorius, which he opened after her death, she declared her love for him for the first time. Neighbours say they heard a woman’s screams before the sound of gunshots, but Pistorius strenuously denies they had been arguing. Without a fight, there appears to be no motive for Pistorius to shoot his girlfriend deliberately. Masipa will have to decide if it is possible that the witnesses mistook Pistorius’s terrified shouts and screams for that of a woman.
If Pistorius believed Steenkamp was an intruder, did he act reasonably?
Even if the judge believes that Pistorius thought Steenkamp was an intruder, he could still face a murder conviction. Pistorius insists that he fired the gun “without thinking” but the state’s ballistics evidence suggests there was a pause in between some of the shots. Pistorius initially told the court he had “aimed” at the bathroom door, but later said he did not. The judge will have to decide if Pistorius: planned to kill before firing the gun, which could amount to premeditated murder; intended to kill as he fired the shots, which could amount to murder; or whether he acted negligently, which could amount to culpable homicide (see below for what each verdict means).
Did Pistorius have a “heightened response” to danger?
A mental health evaluation found that Pistorius did not suffer from a mental illness or defect that would have affected his actions on the night he shot Steenkamp. However, his lawyers say his disability, upbringing and experience as a victim of crime meant he had a heightened response to perceived danger. Roux insists that Pistorius pulled the trigger “reflexively” and without thinking because he was in such a state of fear, suggesting an “involuntary action” defence. But he has said that if Masipa cannot accept this, she should see his actions as “putative self-defence”, meaning that Pistorius took reasonable means to defend himself against a genuinely held fear of attack. If Masipa accepts either one of these defences, the athlete could walk free.
Here are the charges Judge Masipa will rule on in her verdict:
Premeditated murder: Pistorious currently faces a possible mandatory life sentence for premeditated murder – usually 25 years unless there are extraordinary circumstances. However, the legal definition of “premeditated” is a grey area. Eric Macramalla, a legal analyst at TSN, says it is usually reserved for more “robust planning” and generally does not include “an intent that materialised right before a crime was committed”. He points to a case in South Africa, State v Raath, in which a father forced his son to remove a firearm from a safe to kill the son’s mother. The court ruled that this was not sufficient to constitute premeditated murder.
Murder: If Judge Masipa does not believe Pistorius planned to kill Steenkamp, she could still convict him for the lesser charge of murder, says Macramalla. This would mean Pistorius intended to kill Steenkamp or another human being, with no planning element needed, and would result in a compulsory sentence of 15 years.
Culpable homicide: Even if Pistorius is acquitted for murder, he could still face a conviction of culpable homicide, meaning he “negligently” killed Steenkamp, explains Macramalla. Sentencing is discretionary, varying from fines to prison time of up to 15 years. Jeffrey Scott Shapiro, legal analyst for the Washington Times, says the judge would need to assign a degree of negligence. “The higher the negligence, the longer the prison term,” he says.
Discharging firearms in public: Pistorius is also charged with two counts of discharging a firearm in public. He allegedly fired a gun at a restaurant on 11 January 2013 and again through a car sunroof on 30 November 2012. He could face five years in prison on each count.
Illegal possession of ammunition: Pistorius has admitted being in possession of ammunition for a firearm for which he does not have a licence. The prescribed sentence on this count is 15 years in prison.