Legal Look: Why appeals court got it right on Pistorius

Eric Macramalla, TSN Legal Analyst, 3h ago, Thursday, December 03, 2015, Source

Oscar Pistorius was found guilty of murder in the shooting death of Reeva Steenkamp on Thursday, as a South African appeals court set aside his lesser conviction of culpable homicide and substituted it with a murder conviction.

Overturning Judge Thokozile Masipa's conviction of culpable homicide, Justice Lorimer Eric Leach of the Supreme Court of Appeal delivered the unanimous ruling on behalf of the five judges that make up the appeals court.

"The accused ought to have been found guilty of murder." Leach succinctly concluded.

On the heels of Judge Masipa’s conviction, I wrote that she had made a grave error of law leaving the door open for a successful appeal. So today’s ruling by the appeals court is not a surprise. Pistorius is finally being held accountable for killing Steenkamp, a 29-year-old woman that had her entire life ahead of her before she was gunned down by the Olympian following an argument.

It's tragic and heartbreaking to know that a petrified Steenkamp was hiding from Pistorius in a tiny bathroom no bigger than a few feet wide knowing that she could be killed.

How We Got Here

There were three layers of charges for Judge Masipa to consider (from most to least severe): premeditated murder, murder and culpable homicide. Judge Masipa's job was to start with the most severe charge (premeditated murder) and if the prosecution failed on that one, move on to the next charge.

Premeditated murder requires intent to murder plus planning the murder. Premeditation is reserved for robust planning and doesn't capture an intent that materialized right before a crime was committed. In order to establish this charge, you need some planning ahead of time.

Judge Masipa correctly concluded that Pistorius should not be convicted of premeditated murder. There was no chance the prosecution was going to meet with success on this one since there was no planning element. While this was a domestic dispute gone terribly wrong, there was no planning element.

Judge Masipa's Error

So Judge Masipa then moved on to murder. In order to make out this charge, the prosecution had to establish that Pistorius intended to kill someone – Steenkamp or the intruder. That's right – it's still murder if it could be shown that Pistorius intended to kill anyone that night.

In light of the totality of the evidence, it was clear that Pistorius was guilty of murder.

Perhaps it could be argued that the requisite intent to kill Steenkamp was not established. It's a tough argument to make given the totality of the evidence, but still an argument that could made with a certain level of credibility. The reasoning would go something like this: Pistorius did not know it was Steenkamp in the bathroom so he therefore could not form the necessary intent to kill her.

But on the point of killing 'anyone,' the Judge committed an error of law when she concluded that Pistorius did not commit murder. Specifically, Pistorius should have been found guilty of murder because it's still murder in South Africa if he intended to kill anyone. This legal concept of intent, which holds people responsible for the foreseeable consequences of their actions, is called dolus eventualis.

By his own account, after he heard the intruder, Pistorius grabbed his gun, removed the safety, charged down the narrow hallway to the bathroom, and without any words of warning, fired four shots through a locked door into a very small toilet cubicle. Every decision from grabbing the gun to firing the shots with deadly hollow point black tallon bullets was conscious and intentional. He did not fire just once clumsily or accidentally, or yell out to the intruder. He deliberately and intentionally fired four shots in quick succession with great precision through the toilet door.

The evidence strongly supports the conclusion that Pistorius believed there was a person behind the door, foresaw that his gunshots would kill that person and nevertheless persisted. Indeed, he fired because he believed there was someone behind the door.

That's murder.

How did Judge Masipa come to a different conclusion? Well, it seems that she concluded Pistorius did not intend to kill anyone because Steenkamp was asleep in his bed. There's an obvious disconnect in that logic, and it seems as though Judge Masipa was focused exclusively on whether Pistorius believed Steenkamp was still in his bed.

Judge Masipa concluded that, "on the murder charge, the evidence is purely circumstantial." Judge Masipa is correct that the evidence was "purely circumstantial," but circumstantial evidence gets a bad rap. Convictions in the majority of criminal cases are secured by relying on circumstantial evidence (or evidence that relies on an inference to connect it to a conclusion of fact). It's unusual to get a confession or other direct evidence. This is why you look to the circumstances.

“She screamed terribly and she yelled for help”

The prosecution led by lawyer Gerry Nel presented strong evidence supporting intent. The prosecution called a number of witnesses, including Michelle Burger, Charl Johnson, Dr. Johan Stipp and Estelle van der Merwe, who testified that the lights were on and they heard arguing and screaming. Stipp recounted that he heard female screams that sounded like a woman "scared out of her mind." Burger described female screams as "petrifying" and added this:

"I was sitting in bed and I heard her screams. She screamed terribly and she yelled for help. I heard the screams again. It was worse. It was more intense. Just after her screams, I heard four shots. Four gun-shots... You could hear it was blood curdling screams. You can't translate it into words. The anxiousness in her voice, and fear. It leaves you cold. She screamed terribly and she yelled for help."

That was just the tip of the evidentiary iceberg.

Bottom line - Judge Masipa made an appealable error, which led to her conviction being overturned and to this statement being made today by Justice Leach in open court:

“In these circumstances, the accused must have foreseen and, therefore, did foresee that whoever was behind the toilet door might die but reconciled himself to that even occurring and gambled with that person’s life. The identity of his victim is irrelevant to his guilt.”

Prison Time

A murder conviction results in a compulsory sentence of 15 years in prison. This is in stark contrast to jail time for culpable homicide, which has no fixed sentence and jail time is entirely discretionary.

In sentencing Pistorius to five years in prison, Judge Masipa declared that she wanted a sentence that was, “fair and just both to society and the accused.”

What’s worse is that Judge Masipa relied on Section 276(1)(i) of the Criminal Procedure Act, which provides for “imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board.”

That means she set the stage for an early release with Pistrorius. And that’s what happened: Pistorius served only one year for killing Steenkamp.

Today, however that changed - Pistorius is going back to jail.