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.

[Source for hearing events: @BarryBateman (Eyewitness News);@KarenMaughan (legal journalist);@BBCAndrewH (BBC's Andrew Harding); David Smith (The Guardian); @AlexCrawford (Sky News.)]

< Oscar Pistorius: Day 3, Bail or No Bail? | Oscar Pistorius Bail Hearing: Day 4 >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Defense Claim is not Unusal (none / 0) (#1)
    by RickyJim on Thu Feb 21, 2013 at 04:41:48 PM EST
    I mean accidentally killing a loved one instead of a burglar happens often and is used in the debate about the advantages and disadvantages of keeping guns at home.  I wonder if anybody knows of a case very similar in details to this one.

    If "killing a loved one ... (none / 0) (#3)
    by Donald from Hawaii on Thu Feb 21, 2013 at 05:30:28 PM EST
    ... instead of a burglar" truly happens as often as you say it does, then why are you asking if anybody has heard of cases similar to this one?

    I would respectfully suggest that you do the research yourself and back yourself up, rather than make such an unsubstantiated assertion about accidental shootings.

    I'll get you started by noting that in the entire United States for the year 2010, there were 31,513 deaths from firearms. Suicide accounted for 19,308 firearms deaths, while the number of homicides by firearms was 11,015. There were 600 deaths from accidental shootings.

    How many of those were caused by someone who thought they were confronting an intruder, I'll leave that up to you to determine.



    A recent news story in U.S. concerned (none / 0) (#8)
    by oculus on Fri Feb 22, 2013 at 01:34:29 AM EST
    an off-duty police officer who mistakenly shot his son from inside a motel room. His son was outside b

    If you look at the aerial photos ... (none / 0) (#2)
    by Donald from Hawaii on Thu Feb 21, 2013 at 05:15:50 PM EST
    Jeralyn: "For example, [the Magistrate] 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."

    ... of Oscar Pistorius' neighborhood, his street and his house, you'll note that there are two neighboring houses in fairly close proximity on either side of his home, not unlike what you'd see in any suburban neighborhood in the United States. There is also a rather large, undeveloped parcel to the immediate rear of his house lot.

    If Det. Botha's assertion about a neighbor hearing an argument from 300 meters away, and given that Pistorius' bedroom in on the second floor in the rear, that would suggest that this neighbor probably lives beyond the vacant parcel somewhere to the rear of the Pistorius' house. Could voices carry across that distance in the dead of night, when there might be little or no ambient noise to interfere?

    I believe that's entirely possible. On certain nights when the atmospherics are right, we can hear the waves distinctly crashing against the reef out in Maunalua Bay from our second floor bedroom window, and that's almost a mile away. And there have been times at night when I've heard loud voices carrying on from hundreds of yard away. While I'll admit to having very acute hearing, I certainly couldn't tell you exactly what they're yelling about, but I definitely do hear them.

    So, while I don't doubt that a distant neighbor from 300 meters or even 600 meters away (which is a little less than one-half mile) could hear loud voices coming from Pistorius' house, I'd sort of doubt that he or she could tell you with any real specificity whether or not the couple was actually arguing, or just carrying on in a loud and boisterous manner.

    But if that distant neighbor could hear them, then what about the immediate neighbors on either side of the house? If Pistorius and his girlfriend were really that loud, surely someone in those two houses must've heard something, unless neither were home on the night in question.

    I certainly don't think Pistorius is a flight risk, nor do and I see any compelling need to keep him locked up in prison pending trial. Surely they could confine him to house arrest, if they're concerned about him out and about influencing potential witnesses.

    Sound travels better at night (none / 0) (#5)
    by Trickster on Thu Feb 21, 2013 at 07:39:49 PM EST
    And it's apparently not just urban myth.

    From http://wiki.answers.com/Q/Does_sound_carry_further_at_night:

    "Sounds do carry better and farther at night.

    "Because it tends to be quieter then,
    individual sounds are easier to distinguish. By far the most important factor, however, is a difference in the temperature structure of the lower few hundred feet of the atmosphere between day and night.

    "Sound travels through cold, dense air more slowly than through warmer, less dense air. When air temperatures change on the path along which sound waves are traveling, the waves always bend toward the colder air. By day, it's warmer near the ground and colder above; sound bends up and away from the ground (and you). At night, it's colder near the ground and warmer above; sound waves bend down."


    Balcony door left open by O.P. (none / 0) (#4)
    by goilwell on Thu Feb 21, 2013 at 06:18:53 PM EST

    O.P. left the balcony door open as part of his effort to later claim an intruder entered his house.

    That's the only logical reason I can see, since he is supposedly worried about personal safety, to the point of being armed to the teeth.

    Pre-meditated murder, imo.  Yesterday, I thought he'd cop to a plea, but now I'm not so sure he'll have to.

    No (none / 0) (#6)
    by SuzieTampa on Thu Feb 21, 2013 at 09:59:53 PM EST
    He said he was afraid because he saw the bathroom window was open. But I don't think he could have seen it from the balcony. He must have seen it after he had already gotten his gun and entered the bathroom (not the toilet closet).

    But this would mean that Reeva must have opened it at some point after OP did his last bathroom hygiene (trying to think of a good phrase) before going to bed.


    the sequence is in the affidavit (none / 0) (#7)
    by Jeralyn on Thu Feb 21, 2013 at 10:51:27 PM EST
    He said woke up and went out on the balcony to bring in the fan. He closed the sliding glass windows and curtains and heard a noise coming from the bathroom. He got scared because he knew about the crime rate and that the gardeners had left ladders outside. Without turning on the bedroom light, he grabbed his gun and went to the bathroom, screaming for Reeva to call the police. When he got to the bathroom he could see the window was open and heard someone moving inside the toilet. Since he assumed Reeva was in bed asleep, he assumed it was a burglar and shot.

    Why did he wake up? Maybe Reeva's getting out of bed to go to the bathroom was what caused him to wake up. Maybe he assumed it was the fan running on the balcony so he went to bring it in, and as he got back inside and was closing the sliding glass doors, heard the noise in the bathroom.


    Does the magistrate ask the attorneys (none / 0) (#9)
    by oculus on Fri Feb 22, 2013 at 01:37:05 AM EST
    questions which they answer w/o providing admissible evidence in support of their answers?  Strange.

    Bothas' incompetency (none / 0) (#10)
    by thadjock on Fri Feb 22, 2013 at 10:43:34 PM EST
    both on the stand and at the crime scene, probably made it easier for the judge to grant bail, but now the state has time to build their case. As a result of this public humiliation they'll be motivated like never before to get the gravest possible conviction. Following Botha's performance/personal baggage revelations, losing is not an option for the Prosecution.

    Pistorius has to pray that the original crime scene was so profoundly mishandled that the state's case never gets out of the blocks.