Oscar Pistorius Bail Hearing Continued, Detective Removed From Case
Investigator Hilton Botha has been removed from the Oscar Pistorius case, but not suspended.
In court yesterday, the Judge questioned Botha about aspects of his testimony, but not the attempted murder charges against him. (See earlier post here.)
The new team of detectives will be led by "the country's top detective" Vinesh Moonoo. [More...]
National Police Commissioner Riah Phiyega said:
"With the process of the bail application over, I, as the national commissioner of police, am appointing a new team to take the matter on a long haul and Lieutenant General Vineshkumar Moonoo is leading that team.
"Investigating officer Botha is not part of that team," she said.
The bail hearing continues tomorrow at 10:00 am SAT. The prosecutor will continue his argument and then the Judge should rule.
Oscar's chances for bail look a little worse today in my view. While the Judge does not seem concerned he is a risk of flight, he asked several questions about his alleged history of violence as presented by prosecutors (the alleged assualt on a woman which didn't result in charges, and the allegation he told a man at a racetrack he would break his legs and f*ck him up.) He also seemed concerned about the possibility of Oscar attempting to influence witnesses if allowed to be released, based on the allegation that Oscar had asked his friend at the restaurant where the gun went off to take responsibility.
As to whether Magistrate Nair will reduce the charge from premeditated murder to a class five offense, which almost certainly would result in bail, some of the questions he asked the lawyers and Botha seem to indicate he may not inclined to change his earlier finding about premeditation.
For example, he suggested a few times that if the couple had been arguing in the bedroom with the balcony door open, it doesn't seem unusual it would be heard by others even at a distance. He asked whether the victim's empty bladder could have happened when she was shot or died, which would discredit the defense suggestion that the empty bladder supports Oscar's contention that she had gone to the bathroom to urinate. He asked why Oscar's affidavit didn't mention her response to Oscar when he called out to her. " Wouldn't Steenkamp have opened the toilet door and asked what was going on?" (Roux responded she probably would have tried to remain in the safety of the toilet by locking the door after hearing Oscar's warning.)
Defense Attorney Roux had logical answers for all the Magistrate's questions, but it remains to be seen if Magistrate Nair is convinced. One argument he didn't seem to put much stock in was Investigator Botha's lack of experience with ballistics. That suggests to me the issue won't be a major factor in his decision as to whether there was premeditation.
The prosecutor argued for a while, but most of it was his interpretation of the sketchy evidence that had been presented. Typical prosecutor tactic: He complained Oscar's affidavit couldn't be trusted because he wasn't subjected to cross-examination. Anyone can write anything. But he says the written statements of his witnesses alleging Oscar had a violent nature, who also weren't subjected to cross-examination, were trustworthy because the statements were given under oath. Oscar's affidavit was also subscribed to under oath (penalty of perjury.)
The magistrate also questioned Nel's assertion that the placement of the cell phones in the bathroom was significant, suggesting Oscar could have put them there after the shooting.
It seems to me Nel's argument that even if everything Oscar asserted is true, he's still guilty of some kind of murder, is self-defeating for bail purposes. If it is not premeditated murder, but only culpable homicide, it is a class five offense with a reduced standard for getting bail -- no finding of exceptional circumstances is necessary.
At least the Judge is thinking about Roux's request to reduce the charge to a class five offense. (The judge indicated on day 1 of the hearing when making the finding that he might reconsider.) Mag. Nair asked prosecutor Nel if such a reduction has ever occurred, and Nel responded that Nair had done so in one of Nel's earlier cases.
Nair also seemed critical of the police failure to obtain the victim's phone records. "If the deceased has received calls and SMSs between 2 and 3am, would you agree that alters the case?" He also told Botha it seemed to him his superiors could have obtained the records, citing their urgent need for them. This sounds to me like it could be a basis for Nair's changing his finding of premeditation, citing the prosecution's failure to produce evidence that could have established premeditation when it was in its power to do so.
Bottom line: I still believe Botha's charges will not factor into the bail decision.
The Magistrate seemed to give undue credence to the prosecution's allegations of past threats and an attempt to influence witnesses, which does not bode well for bail, especially if the offense remains at a category six level, under which Oscar has to show exceptional circumstances.
If Magistrate Nair does not reduce the offense to a class five, he probably will not find exceptional circumstances warranting bail. If Magistrate Nair does reduce the offense to a class five, I think he will grant bail, despite his concerns over Oscar's alleged past behavior.
Tonight will be Oscar Pistorius's 8th night in jail.
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