Oscar Pistorius: Day 2 Wrap-Up and Bail Prediction
The hearing resumed after lunch around 1:35 pm, SAT, with continued cross examination of Investigator Hilton Botha by Defense Attorney Roux. Court adjourned around 2:40 pm. The Magistrate granted a request by the defense that Oscar continue to be held at the Brooklyn Police station instead of being moved to a prison.
Court will reconvene at 11:00 a.m. tomorrow to hear legal arguments. The Magistrate may render his decision after arguments.
See below for what's likely to happen tomorrow, followed by what happened in the final hour of today's hearing. [More....]
My prediction as to bail: It will be granted. Why?
The Magistrate judge made it fairly clear today he does not view Oscar as a flight risk. Since no evidence was presented that Oscar is a suicide risk, or would pose a danger to anyone else in the community if released, I believe bail will be granted. The Magistrate may change his finding of a class six premeditated murder charge to a class five murder charge. This would reduce the burden for getting bail. Instead of having to show exceptional circumstances, the defense need only show bail is in the interests of justice.Even if the Magistrate maintains the level six premeditated murder charge , I think he will find exceptional circumstances and grant bail. Here is a somewhat technical South African lawyer’s explanation of the bail process in murder cases.
The Final Hour of Today's Hearing
Here’s what transpired in the final hour of testimony, according to the reporters I've been following on Twitter since the first day of the hearing: @BarryBateman (Eyewitness News);@BBCAndrewH; David Smith (The Guardian); @KarenMaughan (legal journalist);and @AlexCrawford (Sky News).
Defense Attorney Roux resumed cross-examination of Investigator Botha, who continued to make concessions, further weakening the prosecution's case.
- Roux say the offshore account was not Oscar’s. "It's a corporate account and he cannot draw money from it." Investigator Botha admits that could be possible.
- Roux says Oscar doesn't have a house in Italy. Botha admits he only heard that he did but has no evidence of it.
- Roux says the ammunition belonged to Oscar’s father and was being stored. Botha admits he took no steps to establish the owner of the ammunition. Also, police no longer have the ammunition as they returned it to the defense.
- Roux asserts the screaming heard by a witness was not that of a female, but of Oscar. “I put it to you as a fact that there was no screaming by a female,there was screaming by (Mr Pistorius)." "Botha could only say: "there was screaming."
- Roux gets Botha to admit he may have compromised the crime scene. “You were in the house walking with unprotected shoes. That should not happen." Botha concedes it should not.
- Roux asserts: "[Oscar] normally sleeps on the right side of the bed. But he had a shoulder problem so that evening he slept on the left side." Oscar had a medical patch on his shoulder. Botha says he didn’t examine him to see it.
- Roux casts major doubt on the quality of the police investigation. They missed finding a spent bullet projectile or cartridge in the toilet bowl. Roux: Our forensics expert went through the toilet carefully on the afternoon of the shooting when we got access. A spent bullet projectile was found in the toilet bowl that wasn't discovered by your officers. Botha agrees.
- Roux gets Botha to admit he has no facts to support his theory that Oscar attached his prostheses before the shooting.
- Botha admits he had no forensic or expert evidence in forming his opinions. “Ballistics hasn't told me anything. Forensics hasn't told me. I'm standing here without expert evidence.”
- On the prior incident at the restaurant where prosecutors alleged Oscar discharged a weapon: Botha concedes at the time the weapon discharged, Oscar was holding it under the table. (Thus, no witnesses could have seen whether he intentionally pulled the trigger.)
- As to a claim by a woman of prior assault by Oscar: He has a lawsuit pending against her and the police for malicious prosecution and wrongful arrest. Botha was the lead investigator in that incident. (Does this suggest a possible bias?)
- On redirect by the prosecutor, Botha attempted to change his estimate of the neighbor who heard screaming from being 600 meters (2000 feet) away to maybe 300 meters. The prosecutor says, “I don't want to embarrass you but I want to ask you about how you measure. Are you sure about distance to lifts?” He tells Botha to be calm and focus.
[Added: For those looking for photos of the bathroom (there are two windows, one in the bathroom and one in the toilet area, one is big, the other small), the Sun has photos here and here. The house plans introduced in court are here.]
Botha admits that he told Oscar's lawyer and family that he didn't believe bail would be opposed or difficult to obtain. The Magistrate asks Botha if he heard the question correctly. Botha repeats that he did tell Oscar’s attorney and family he should not have difficulty getting bond, but says that was early in the case.
The Magistrate asks Botha whether he still believes Oscar is a flight risk. "He is an internationally recognised athlete and uses prostheses. Do you still believe he is a flight risk?"
From The Telegraph:
"Can I just say, the accused before court is an international athlete, paralympic athlete, he uses prosthesis on both legs. I'm sure we would both agree that his face is widely recognised internationally," he told investigating officer Hilton Botha. "Do you subjectively believe that he would take the opportunity, being who he is, using prosthesics to get around, to flee South Africa?"
Mr Botha replied "yes", to laughter in the court and a raised eyebrow from the magistrate. "I believe for someone facing 15 years to life, I would make a plan to get out and go somewhere, with the finances he has," the officer, who has 24 years experience on the force, added.
[Magistrate] Nair continued: "But do you think it's possible that a person who has won Olympic golds would want to forsake his career when he has a chance to prove his innocence in a court of law?" "Your honour, imprisonment is no joke," Mr Botha replied.
I think it is fairly clear under any test, Oscar Pistorius will be granted bail. Does this mean his troubles are over? No. While the premeditation argument seems weak now, forensics could change this.
Also, apparently in South Africa, it is a crime to kill a burglar in your own house unless you are responding to an immediate threat of violence. (After reading this, I'm feeling even more appreciative of Colorado's Make My Day law:)
Thus, the action taken must be in response to a currently pending aggressive action, and the law specifically rules out any action being taken, on the one hand, pre-emptively.
...It is important to remember that before you can act in self-defence, the attack against you should have commenced, or at least be imminent. For example, if the thief pulls out a firearm and aims in your direction, then you would be justified in using lethal force to protect your life. However, you cannot shoot the unsuspecting thief on the premise that if you confront him, he would place your life in danger. The pre-emptive strike principle is not applicable in private defence cases.
You wake up one night and discover that an intruder has broken into your living room. The thief is armed with a firearm and is sneaking through the house, gathering valuable items as he proceeds.
You know that if he is startled he might shoot you or your family. Can you lawfully shoot him? Do you have to take your family and flee from your home? Do you have to wait for him to attack you or your family? ... You cannot use lethal force to prevent him from walking out with your TV. Instead, you or your family would have to be in immediate danger.
It could be argued that the mere fact that the intruder is in your home is sufficient threat to justify your using lethal force against him. Again, each case could be judged separately, but the legally safe option would be to avoid using lethal force until you have no other option.
The immediate concern of Oscar Pistorius and his legal team is to get him out of jail. Bail is not meant to be punishment. It is intended to secure the likelihood of a person's appearance at future court proceedings. Unless the Court finds Oscar is a danger to himself or others or a flight risk, he should be granted bail.
Should the judge maintain his ruling that he cannot rule out premeditated murder and exceptional circumstances for bail must be shown, I hope he considers that that this is currently the most highly publicized and followed criminal proceeding in the world, which would make even a non-physically disabled person a greater target of other inmates in a prison setting. Given Oscar's disability, and the possibility that a prison would remove his prosthetic devices because they could be used (by or against him) as a weapon, requiring him to be in a wheelchair, the threat is even greater. That's an exceptional circumstance in itself in my view that warrants bail.
|< Oscar Pistorius: Bail Hearing, Day 2 | Investigator in Pistorius Case Charged With 7 Counts of Attempted Murder >|