Oscar Pistorius: Day 2 Wrap-Up and Bail Prediction

(For what happened earlier on Day Two of Oscar Pistorius’ bail hearing, see here. What happened on Day One is here.)

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.]

On Bail:

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.

Another example:

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 >
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  • Display: Sort:
    Well (none / 0) (#1)
    by smott on Wed Feb 20, 2013 at 05:28:11 PM EST
    Assuming OPs story is entirely true....does it not meet the Pre-emptive Force definition described above? Making him at minimum guilty of killing a supposed "burglar"?

    No comfort to Reeva's family of course....

    And Botha (none / 0) (#2)
    by smott on Wed Feb 20, 2013 at 05:29:20 PM EST
    ....seems almost comically incompetent in the above description, more so for a 20+ year veteran....

    Outcome (none / 0) (#3)
    by goilwell on Wed Feb 20, 2013 at 06:16:16 PM EST

    OP is released on bail.

    Over time, it will become apparent that the case against O.P. is a strong one, and his lawyer will
    work out a plea arrangement in which O.P. will
    cop to a "careless discharge of a firearm" or something similar.  Reeva's family will sue O.P. and that case will be settled (complete with the obligatory Confidentiality Agreement).

    Roux casts major doubt (none / 0) (#4)
    by sarcastic unnamed one on Wed Feb 20, 2013 at 06:25:43 PM EST
    Roux casts major doubt on the quality of the police investigation. They missed finding a spent bullet 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 cartridge was found in the toilet bowl that wasn't discovered by your officers. Botha agrees.
    A spent "bullet cartridge" in the toilet bowl?

    In my experience "a cartridge," while not commonly used afaik, would most likely refer mainly to a un-shot round of ammunition. See here.

    And a "spent cartridge," while also not commonly used afaik, would be the empty brass/case/casing that remains after the round has been fired and the bullet/projectile has left the gun.

    In this context he must be referring to the bullet/projectile itself, because if there was a spent brass/case/casing in the toilet bowl that would indicate the gun shot which provided that "spent cartridge" probably occurred inside the toilet room such that the brass/case/casing could fall into the toilet bowl. Kinda hard for the brass to go through a closed door and end up in the toilet bowl.

    I guess they must use different terminology down there, as I don't think the defense would willingly open up such a damning hole in their client's story.

    Yeah (none / 0) (#6)
    by smott on Wed Feb 20, 2013 at 06:41:30 PM EST
    If it was a casing as opposed to a slug, it implies OP is inside the toilet compartment ...big change in the storyline.
    If a slug - seems shoddy work by the cops to not account for all shots known to be fired. After autopsy they should know how many may still be at the scene. Or so you'd assume...

    three reporters (none / 0) (#7)
    by Jeralyn on Wed Feb 20, 2013 at 07:15:22 PM EST
    used similar but not identical terminology:

    spent bullet cartridge

    spent bullet

    spent bullet projectile

    What is the correct terminology?


    Well (none / 0) (#8)
    by smott on Wed Feb 20, 2013 at 07:33:11 PM EST
    I'm no expert but I believe cartridge to be often used as synonymous to casing. I.e. not the projectile or slug itself.
    The slug in the toilet bowl is consistent with OPs story, but a casing, or external cartridge, which ejects from a semi automatic weapon near the location of discharge, is not. That would suggest he shot her whilst. Inside the small toilet room.

    In either case it seems poor police work to miss it.....


    If they found a spent bullet in the (none / 0) (#13)
    by sarcastic unnamed one on Wed Feb 20, 2013 at 08:42:17 PM EST
    toilet bowl and the spent bullet's empty brass case outside the bathroom, which would support OP's story of firing through the closed door, I would think they should use some form of the words "spent bullet" for what they found in the toilet bowl. iow, they found the actual bullet/projectile (traditionally made of lead, that gets shot out of a gun and kills things) in the toilet bowl.

    However, if someone said "cartridge" I would normally think they are talking about the brass container (normally called a case, or casing, and traditionally made of brass) that holds the gunpowder and the bullet/projectile together in one neat package.

    And a "spent cartridge" would normally make me think they are talking about an empty brass container after the gun is fired and the bullet/projectile that the brass container was holding has been shot out of the gun.

    If they truly found a "spent cartridge" (empty case, or casing) in the toilet bowl that was inside the toilet room, the simplest explanation would be that the door to the toilet room was open and the gun (and by extension, OP) was inside, or close to being inside, the toilet room when the gun was fired and ejected that "spent cartridge" (empty case, or casing) into the toilet bowl that was inside the toilet room, and therefor the gun (and OP) were not outside the toilet room shooting through a closed door.

    Since that scenario would so obviously cause OP a great deal of trouble, I can only conclude that his attorneys are awkwardly referring to the bullet/projectile as a "spent cartridge," despite it being an unusual and potentially confusing use.


    Comparing Testimony with Affidavit (none / 0) (#5)
    by RickyJim on Wed Feb 20, 2013 at 06:31:47 PM EST
    This is from OP's affidavit:
    I grabbed my 9mm pistol from underneath my bed. On my way to the bathroom I screamed words to the effect for him/them to get out of my house and for Reeva to phone the police. It was pitch dark in the bedroom and I thought Reeva was in bed.

    I noticed that the bathroom window was open. I realised that the intruder/s was/were in the toilet because the toilet door was closed and I did not see anyone in the bathroom. I heard movement inside the toilet. The toilet is inside the bathroom and has a separate door.

    It filled me with horror and fear of an intruder or intruders being inside the toilet. I thought he or they must have entered through the unprotected window.

    Did testimony establish that the large window in the bathroom was open enough that somebody could get in?  It seems to be made of three panels with the middle one stationary but sides do swing open in hinges.  He didn't mention that he turned on the light before firing.  Wouldn't the bathroom be at least as pitch dark as the bedroom?  Despite the detective's stumbles, I think there is a serious problem of OP convincing the court that he got all the way into the bathroom from the balcony without checking on and hearing from Reeva.

    So you're (none / 0) (#10)
    by smott on Wed Feb 20, 2013 at 07:44:25 PM EST
    Not skeptical of OP's account and believe he thought there was an intruder?

    Fair enough (none / 0) (#12)
    by smott on Wed Feb 20, 2013 at 08:21:20 PM EST
    I am skeptical of his assertion that  was trying to protect Reeva, since he appears to have bypassed a couple of easy opportunities to verify where she was, as well as the obvious - shooting through the door.....i don't pretend to know how paranoid  a person can be or how irrationally they can act.

    His actions seem reckless at best with regards to her safety.

    That may well be. (none / 0) (#14)
    by Donald from Hawaii on Wed Feb 20, 2013 at 09:00:39 PM EST
    But then, fear and paranoia can cause one to act recklessly and without using good judgment.

    Did Oscar Pistorius mean to shoot his girlfriend? Premeditated murder requires motive and intent, and I don't see either at play here, so I don't think he did. Certainly, the photos and video taken of him show him in a state of extreme remorse, and you can't fake that unless you're a total psychotic.

    That said, when our recklessness causes harm to others, we're also culpable for the results. So, I think Pistorius is probably guilty of something -- just not necessarily murder.



    Donald, please take your (none / 0) (#16)
    by Jeralyn on Wed Feb 20, 2013 at 11:43:04 PM EST
    race-based postings elsewhwere. The legal case is what is under discussion here. I've deleted your theories of race in South Africa as off-topic.

    I'm going to have to respectfully disagree. (5.00 / 1) (#18)
    by Donald from Hawaii on Thu Feb 21, 2013 at 11:08:38 AM EST
    I fully realize that this is just the bail hearing. But this case is going to go to trial, and in the Third World, high-profile legal trials don't necessarily occur in a sociological and political vacuum. I've spent considerable time in South Africa, twice. Have you?

    I certainly don't think Oscar Pistorius is guilty of premeditated murder, and I don't think you do, either. But absent any understanding of the inherent and very real fears which white Afrikaaners have about personal security and home invasions, particularly as a white minority population in a black majority country, further legal analysis of this high-profile case on your part will be occurring in that aforementioned sociological and political vacuum.

    And were you the defense counsel, I'd further offer that you were not being very helpful to your client with that attitude. I can only surmise that your counterparts in South Africa aren't making the same mistake. Once this case goes to trial, the odds are better than even that they will offer those aforementioned fears to the court not as justification for the deed, but as a primary underlying rationale for why this tragedy ultimately happened.

    Because absent that rationale, what you have left here is a young woman who was shot to death in her boyfriend's house, with that boyfriend holding the gun. Now, you can talk about unnoticed bullets in the toilet and mock the thinly-veiled buffoonery of the lead detective all you want, but even as flawed as his investigation apparently is, the bottom line is that Oscar Pistorius still shot Reeva Steenkamp -- and further, he's not denying that he did.

    Therefore, you would need to explain to the court why the defendant reacted in those early morning hours in the manner that he did, if he's to stand a chance. If your focus is strictly limited to how it all went down from a nuts-and-bolts perspective, then I'm hard-pressed to see how Mr. Pistorius is not at least guilty of South Africa's equivalent of negligent homicide, if not worse.

    I respectfully suggest that you peruse the comments sections in the Johannesburg Mail & Guardian related to this case, and take note of the many race-based comments offered by Afrikaaners -- some of which have been particularly vile by American standards -- about the failure of the ANC-dominated South African government to deal with the country's high violent crime rates, which they offer as a ready explanation for the defendant's having to keep a gun in the bedroom in the first place.

    Apartheid ended less than two decades ago, and majority rule only took effect at the end of 1994 with Nelson Mandela's election as president. While relations between the various races and ethnic groups are better than what they were even a decade ago, there is still tremendous suspicion on the part of the Afrikaaners regarding the black majority's ultimate collective disposition toward their continued role (and even their existence) in South African society.

    If you had read those aforementioned comments, you'd note the Afrikaaners' skepticism of Pistorius' ability to get a fair shake in today's South African legal system, and that they rudely dismiss Detective Botha as little more than an Afrikaaner lackey for the ANC majority government. As for those Zulu and Xhosa readers who deign to comment, they tend to think Pistorius will walk because he's an Afrikaaner, and they believe that Botha is screwing up the case on purpose to protect one of the Afrikaaners' own.

    For those reasons, regardless of whether you care to acknowledge them or not, the Oscar Pistorius case is going to test the abilities of both that legal system to show all South Africans that it can deliver justice in an evenhanded manner without due regard for race and ethnicity, and the South African population as a whole to accept the court's findings -- regardless of the ultimate verdict -- as a true validation of that justice.



    I believe the case being made for murder (none / 0) (#17)
    by leftwig on Thu Feb 21, 2013 at 08:05:52 AM EST
    charges is that the prosecution is saying there was an argument, she locked herself into the bathroom and he went and got his gun and went into the bathroom and shot her (ie, he would have had time to think about it, not a snap reaction).  IANAL and I understand the laws differ from place to place, but I can see where that scenario could fit premeditation.  

    I would also add that people show remorse for all sorts of reasons.  Could be he is remorseful for mistaking his GF for an intruder and accidentally shooting her, could be he feels remorseful for his bad actions and the consequences he faces.  I agree that his remorse appears genuine, but we don't know what he is remorseful of.


    please don't post your speculative (none / 0) (#15)
    by Jeralyn on Wed Feb 20, 2013 at 11:39:11 PM EST
    scenarios of guilt here, they will be deleted.