Oscar Pistorius: Day 3, Bail or No Bail?

At 11:00 a.m. SAT (2:00 am MT), defense lawyer Barry Roux and prosecutor Gerrie Nel will make their closing arguments as to why Oscar Pistorius should be allowed or refused bail.

Chief Magistrate Judge Desmond Nair will then make the decision. The big questions:

  • Will Magistrate Nair reconsider his prior ruling on premeditation and reduce the charge to a class five offense from a class six, which has a lesser standard to meet for bail?
  • If he stays with a class six offense, will he find exceptional circumstances for bail?
  • If he reduces the charge to a class five offense, will he find the ends of justice require bail?

I predict Oscar Pistorius will be granted bail and the judge will find Oscar is not a flight risk or a significant danger to himself or the community. I do not think he'll conclude, as many have since Investigator Hilton Botha's confused and misleading testimony yesterday, that the prosecution's case is DOA. Nor do I think the revelation of reinstated attempted murder charges against Botha will have any impact on his bail ruling, although it may complicate things. [More...]

Who to follow for live updates: @BarryBateman (Eyewitness News);@KarenMaughan (legal journalist);@BBCAndrewH (BBC's Andrew Harding); David Smith (The Guardian); @AlexCrawford (Sky News.)

I will post updates from their live tweets below. Our detailed coverage of prior days can be found here: Day 1, Day 2, Day 2 wrap-up and prediction.

The reporters are still mainly buzzing about Investigator Botha. There are reports now a provisional task force will replace him.

Everyone is assembled in the courtroom except Oscar. The custody officer says Oscar is sitting in his cell, crying quietly. The live feed to the overflow room is working today.

Update: 11:25 am SAT. Court begins. Prosecutor Nel says he wants to address three issues before starting the hearing.

Hearing starts with a circus: A female South African attorney is standing up, quoting the constitution, describing a motion she brought and says she wants to address Oscarís mental state. Both attorneys object. Magisgtrate Nair tells her there are rules and he wonít hear any application from anyone other than the counsel involved. He tells her they are at an advanced stage and itís not in the interest of justice to allow her to continue. She leaves.

Prosecutor Nel addresses his first item. "It became known to me and my team yesterday that detective Hilton Botha faces seven charges of attempted murder and will appear in court in May. We didn't know this yesterday." Wanted to put it on record after media reports."

Nair says he is concerned that his plan for the morning has been thwarted. He wants to know if Investigator Botha is in the court. Nel says heís in the building, he didn't want to attend the hearing. The Magistrate wants him brought to court so he can question him. He declares a 15 minute recess.

Update 12:15 pm SAT: Investigator Botha takes the witness stand. The judge thinks he has some trouble speaking English, and he says his first language is Afrikkans, but heís comfortable speaking English.

Magistrate focusing on flight risk and violence claims by detective Botha, including his testimony that Pistorius allegedly threatenied to break someone's legs, assuaulted a woman and let a gun go off in a restaurant.

Then the judge asks him if he got the detailed phone records and billing for Reeva. Botha says he asked for it but has not seen it. Botha says he wanted to see if any calls on Reevaís phone had been deleted. He gave it (not clear if this is the phone or records) to someone he knows who works quickly but he went to Cape Town. He tells the judge itís being handled.

The Judge says he would think this would be of some urgency and Bothaís superiors could have rushed it. He suggests that whether Reeva got a text between 2 and 3 am could alter the case. Botha agrees. He asks if Reeva received texts during that time and Botha says he doesnít know.

The Defense had only one question for Botha, about the phone records. Botha's allowed to leave.

Nel pulls out an Afrikaans maggazine which features Oscar and his sister Aimee and refers to a house in Italy. Nel says Botha called him last night to ask if he had read it. It says, "I spend 4 months a year in South Africa. I have a house in Italy and spend 4 months a year there, its quiet and tranquil.Ē (This would contradict Defense Attorney Rouxís statement yesterday that Oscar has no house in Italy.) Nel keeps reading: "The mayor of an Italian town built an athletics track and gym for him to train. "Nel says the article says someone gave him the house.

Roux responds Oscar does not own any property abroad, in Italy or elsewhere, and he knows about perjury. Now the prosecutor says the Italy house is not owned, it is on loan to him, and the magazine says he spends four months a year there.

Now itís time for argument on bail. Roux goes first.

12: 45 pm SAT The Judge compliments Roux on his performance yesterday. Roux begins by saying an untested affadavit in a bail application does not have the same weight as trial evidence, like forensic or eye-witness evidence. Even so, the evidence presented during the hearing does not contradict the affidavit. He says Oscarís affidavit is consistent with Bouthaís testimony yesterday. Roux says the stateís case is dependent on forensic evidence, not witnesses. (They didnít present any forensic evidence.) Since the state has not factually contradicted Oscarís affidavit, he should get bail.

Roux addresses the Criminal Procedures Act and class 6 offenses which require premeditation. Roux is arguing that evidence shows that Oscar should not face a schedule 6, premeditated murder charge The evidence does not even show Oscar committed murder. Roux says the state had access to the available evidence, they should have known it fell far short of showing premeditated murder. The state embarked on a strategy to accuse Oscar of premeditated murder - despite no evidence to support it. He says the poor quality of the evidence presented by the Botha is evidence of abuse of the Schedule 6 provisions. It also ďexposed disastrous shortcomings in the state's case."

Roux hammers the state for the poor quality of Bothaís evidence. He says says it is obvious that Prosecutor Nel could not get a certificate backing premeditated murder charge. He points out weaknesses:

Roux continues: the preamble to the charge sheet lacks any substance to lead to the charge of murder.

Steenkamp spending the night at Oscarís is consistent with a "loving relationship," not a premeditated murder.

The Investigating Officer "couldn't deny that Reeva's bladder was empty at three a.m.Ē as thatís what the post-mortum showed. It fully explains her presence in toilet. Oscar didnít need the locked toilet to kill her, he could have done it in the bathroom, had that been his intent.

Roux: we have demonstrated that every allegation in the charge sheet fails to support the state claim that this was a planned murder.

He says the: state choose to ignore Oscarís spontaneous disclosure of the burglar.

Court adjourns for a half hour.

Itís 4:25 am here, time for bed. Iíll recap the remainder tomorrow afternoon.

< Investigator in Pistorius Case Charged With 7 Counts of Attempted Murder | Oscar Pistorius Bail Hearing Continued, Detective Removed From Case >
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    Oscar's Income (none / 0) (#1)
    by CoralGables on Thu Feb 21, 2013 at 09:36:11 AM EST
    is drying up fast. No appearance fees available to him on the track circuit, and endorsement contracts with French cosmetics company Clarins, South Africa based TV Station M-Net Movies, Oakley, and Nike have been dropped or suspended.

    If he were smart, he'd save his money, (none / 0) (#4)
    by Mr Natural on Thu Feb 21, 2013 at 09:51:00 AM EST
    negotiate a plea deal, plead guilty and accept the sentence and have a little cash left when he got out, assuming he wasn't caged for the rest of his natural life.  This also assumes that he hasn't already spent or obligated himself for more than he has already earned.  If he's already effectively broke there's no downside to leaving the lawyers holding the bag.

    Of course, his wife's family could sue like OJ's (none / 0) (#5)
    by Mr Natural on Thu Feb 21, 2013 at 09:53:48 AM EST
    ex's family, taking whatever scraps he'd managed to try to keep.

    No win all around.


    Jeebus... (none / 0) (#11)
    by bmaz on Thu Feb 21, 2013 at 10:29:10 AM EST
    Don't you think you are getting a little ahead of yourself??  

    There is no way Pistorius has burned through that much just doing the bail hearing, and he has made incredible inroads into a clearly rushed and buggered up prosecution case. And here you come to advise he should plead guilty because he is going broke? Wow.


    He's Going to Prison (none / 0) (#14)
    by ScottW714 on Thu Feb 21, 2013 at 11:36:07 AM EST
    Talk Left:
    Botha is asked why he thinks Oscar is a flight risk. He has a house in Italy and there was a USB drive in his kitchen safe with details of off-shore accounts. (Apparently, he didn't disclose the accounts in his interview with police.) It's a very serious crime carrying 15 years to life in prison.

    Botha says Oscar will also face charges for having unlicensed ammunition. There was a box of .38 caliber ammunition in his bedroom safe and he doesn't have a license. Botha says he went into the bathroom and the toilet door was lying broken inside the cubicle. The gun was lying on a bathmat.

    So if this case is dropped tomorrow, he's still facing some pretty serious charges.  And IMO they are going to get him on something, like manslaughter here; accidental murder because of reckless behavior.

    He's got so much money he's trying to hide it.  No way he takes a plea because of money, that is absurd.  I would even go as far to say the checks are probably rolling it from the people who think this was an accident.


    You are jumping to conclusions (none / 0) (#25)
    by bmaz on Thu Feb 21, 2013 at 02:46:49 PM EST
    There is also evidence that may, we shall see, refute your two claims. Regarding the bank account, it may be a corporate account he did not have direct access too (and he may simply have forgotten to put everything down, he was under a lot of stress). Regarding the ammunition, there may be a claim he was storing it for his father or another relative.

    Who knows how either issue plays out, but there are already mitigating and or exculpating claims; shouldn't we let the facts be ascertained before jumping to conclusions?


    OK (none / 0) (#34)
    by ScottW714 on Thu Feb 21, 2013 at 04:19:39 PM EST
    I said he was going to prison.  It's not really jumping to conclusions when he's admitted in court and in the affidavit that the unregistered gun was his.  The penalty is 15 years in South Africa.

    Bail Hearing (none / 0) (#2)
    by CoralGables on Thu Feb 21, 2013 at 09:41:51 AM EST
    goes to day 4 tomorrow at 10am in Pretoria, 3am ET.

    I've been to one bail hearing in my life. It lasted just about 90 seconds.

    Botha replaced (none / 0) (#3)
    by SuzieTampa on Thu Feb 21, 2013 at 09:49:47 AM EST
    Probably, um, a good idea n/t (none / 0) (#6)
    by Dadler on Thu Feb 21, 2013 at 10:07:20 AM EST
    How in the hell... (none / 0) (#23)
    by kdog on Thu Feb 21, 2013 at 01:44:54 PM EST
    did Botha get out on bail, and stay on active duty?  Blows my mind...are we sure he isn't a recent transfer from the LAPD? ;)

    Well, there is that (none / 0) (#24)
    by Zorba on Thu Feb 21, 2013 at 02:20:55 PM EST
    In a county in central Maryland, they just put three sheriff's deputies on administrative leave (with pay, but they can't come into work) for being investigated for a possible homicide.  They haven't even been charged yet.

    Charges dropped (none / 0) (#35)
    by SuzieTampa on Thu Feb 21, 2013 at 06:53:53 PM EST
    The charges against Botha and two other police officers had been dropped in 2011, at least temporarily, but were reinstated recently, and Botha and the prosecutor's office said they weren't aware of it until later.

    This article says Botha and the other officers shot at a minibus taxi with 7 people in it. Both said he shot at the wheels. He said the officers were looking for other suspects in the murder of Denise Stratford, a Girl Scout leader who was robbed, killed and stuffed into a drain. He said they had tried to get the taxi to stop, but it wouldn't. The accusations against them were that they were drunk and off-duty. I didn't see a motive why they would want to shoot at a taxi.


    Love & murder not incompatible (none / 0) (#7)
    by SuzieTampa on Thu Feb 21, 2013 at 10:09:32 AM EST
    The defense continues to talk about how much the couple loved each other.  The NYer has an earlier article on the subject. Even in loving relationships, a person can fly into a rage and hurt or kill his partner. Even people who confess may have terrible regrets and say they acted out of love because they couldn't stand to see their partner with someone else or whatever.

    and accidents happen between (none / 0) (#17)
    by Jeralyn on Thu Feb 21, 2013 at 12:09:05 PM EST
    loving parents and children and spouses.

    No evidence of abuse in this relationship, and a lot of evidence via affidavits from friends, including hers to the contrary. Please don't create it out of imagination to promote an agenda.


    Something that bothers me about the assumption (none / 0) (#8)
    by leftwig on Thu Feb 21, 2013 at 10:21:46 AM EST
    that she had just gotten up to go to the bathroom, but maybe some evidence could clear it up.  Do we know:

    1. Was she sitting on the toilet when she was shot?  The question arises as to whether she was still doing her business, or hiding in fear (either from an intruder or OP).  Roux seemed to suggest she went and locked the toilet door when OP yelled out and for her to call police, but then why go sit back down on the toilet?  

    2. Was there any urine in the toilet?  This goes to the evidence of her having an empty bladder and whether she could have emptied anywhere from 10 minutes to a few hours prior.  IF OP heard a noise in the bathroom (we haven't heard his description of the noise), is it reasonable to assume he would have heard the toilet flush if she had done so?  If he could hear such a noise could he reasonably assume an intruder had flushed the toilet?  I would think the toilet would had to have had her urine in it for his story to have much validity.

    3. How long did it take from the time he heard the noise in the bathroom for him to yell out to the intruder and for his GF to call police?  I assume if she got up in the middle of the night to go tinkle she had to go fairly bad, so where would OP have been by the time she got to the toilet and finished her business?  He didn't bother to wake his GF, just went and got his gun and made his way toward the bathroom.

    4. OP says he yelled out as he was in the hallway toward the bathroom, so obviously he wasn't being stealth.  Its estimated he was about 4-5 feet away from the toilet door when he opened fire.  IF you are announcing your presence to a would be intruder as you are making your way into the bathroom, why wouldn't you say a word when encountering a closed toilet door?  

    5. You open fire (4 shots?) not knowing whether the person behind that door has a gun or whether you hit them with any of your shots, then walk back into the bedroom to check on your GF.  Did he unload the full magazine?  Did he know at this point he had actually hit anyone with the shots he fired?  Did she not scream out after the first shot that she was in the toilet?

    Well a shell casing was found (none / 0) (#9)
    by smott on Thu Feb 21, 2013 at 10:26:18 AM EST
    In the hallway on the way to the bathroom, before OP turned into the little alcove and went through into the bathroom area itself.

    I know Jeralyn doesn't like us to speculate, but this would mean he discharged his weapon while on the WAY to the bathroom. Then once IN the bathroom, fired (I think) 3 more shots through the door.

    So - did he discharge accidentally?

    Or was he in pursuit?

    Or some other explanation?


    I recall reading that as well, but (none / 0) (#15)
    by leftwig on Thu Feb 21, 2013 at 11:56:02 AM EST
    thought maybe it could have gotten there because it got stuck in his clothing or pulled out with the GF.  IS there any evidence that a shot was fired in the hallway other than a shell casing being found (ie bullet hole somewhere)?

    Thought of another question that bothers me and maybe I just missed some detail, but is it correct that OP called security at 3:20 and the hospital (or whatever medical service they use) wasn't called until 3:30?  Is that correct?


    Not a firearms expert but (none / 0) (#16)
    by smott on Thu Feb 21, 2013 at 12:05:21 PM EST
    But my understanding is the shell casing ejects with some force, upwards/right of the firearm itself. Possibly others can substantiate.  

    I suppose it could have caught in his clothing, but I think the more likely explanation is he simply fired his weapon on his way to the bathroom, in the hallway leading from the bedroom.

    The most likely thoughts I have are 1) accident  2) pursuit.

    Really - the police should have "exact" interpretations of every shot fired, and from where.  If he shot in the hallway, where's the bullet? In the wall?
    Seems the police have not done good work here.

    Every shot and trajectory/result/slug location should be documented.

    Don't know the details of his calls but recall the first calls he made were to building security and maybe his family (?) could be remembering incorrectly....


    your timing of calls is incorrect (none / 0) (#18)
    by Jeralyn on Thu Feb 21, 2013 at 12:10:27 PM EST
    he called security at 3:19 am and paramedics at 3:20

    OK thanks Jeralyn (none / 0) (#19)
    by smott on Thu Feb 21, 2013 at 12:13:15 PM EST
    Did not recall correctly....thought he called family at some point early on.

    Thanks for the clarification. (none / 0) (#21)
    by leftwig on Thu Feb 21, 2013 at 12:52:48 PM EST
    I was using the quote from this site on the Day 2 bail hearing report:

    Roux says there is a call to Netcare (paramedics) at 3:30 a.m. Botha admits police failed to call Netcare to check whether they were called. Oscar called the security guard at 3:20 a.m. and the guard heard him crying after he forgot to put phone down.

    I had not seen any other report saying who called Netcare and when.

    As for the question about the bullet casing.  I hadn't done any research on the gun in question, but it depends on the type of ejector the weapon uses.  They do not all eject in the same pattern.  IF the casing ejects to the right (toward the hallway, then the casing could have been moved with OP returning to the bedroom or coming back and dragging out his wife.  If 4 empty casings were found, it would be good to know where the 4 bullets ended up.


    Indeed (none / 0) (#22)
    by smott on Thu Feb 21, 2013 at 01:11:10 PM EST
    I don't see the police as doing a very good job re this so far. They missed the slug in the toilet bowl after all.
    But perhaps more info yet to come....

    Additionally 2 cell phones were found in (none / 0) (#10)
    by smott on Thu Feb 21, 2013 at 10:27:05 AM EST
    The shower stall I believe.  I have not read details re whether OP took them in, or perhaps Reeva did....

    As Far as the Empty Bladder (none / 0) (#12)
    by RickyJim on Thu Feb 21, 2013 at 11:14:20 AM EST
    Am I under the wrong impression that it can empty after death?

    It can (none / 0) (#13)
    by smott on Thu Feb 21, 2013 at 11:15:36 AM EST
    Even in simple unconsciousness.
    Or extreme fear.
    But in death, typically yes loss of muscle tone causes the bladder to empty at least partially.

    Rodney Uphoff, professor of law at the University of Missouri who runs the school's study abroad program in Cape Town, also expects Pistorius to be granted bail. The judge could take away the athlete's passport and restrict him to his home, Uphoff said. [...]

    "In South Africa, there are many criminal cases pending," Booth said. "People have been in custody for years on murder, robbery and rape and there is such a high incidence of those cases in South Africa. It could take a couple of months, maybe up to a year. Maybe even longer than that."

    Regardless of OP's intent that night, can you imagine being restricted for months, perhaps a year, to your home where you just shot and killed your girlfriend?

    Would you prefer no bail (none / 0) (#27)
    by CoralGables on Thu Feb 21, 2013 at 03:47:30 PM EST
    and being in jail?

    If I was OP, and got bail, (none / 0) (#30)
    by sarcastic unnamed one on Thu Feb 21, 2013 at 04:05:02 PM EST
    I'd buy/rent a new place to stay and be confined to, if that was allowed.

    OK, so now the NYT is saying that (none / 0) (#28)
    by sarcastic unnamed one on Thu Feb 21, 2013 at 04:01:40 PM EST
    a shell casing was found in the toilet bowl:
    Detective Botha was forced to admit that the police forensics team had missed a shell casing that the defense lawyers later found in the toilet bowl
    If this is accurate, and they really did find a shell casing, and not a spent bullet/slug, OP's story just got a huge hole.

    The simplest way for a shell casing to be ejected from the gun after it was fired and then fall into the toilet bowl is for the gun to be inside the toilet room while it's being fired.

    The impossibleist way for a shell casing to be ejected from the gun after it was fired and then fall into the toilet bowl is for the shell to transport itself through a closed door.

    I wouldn't assume that (none / 0) (#29)
    by sj on Thu Feb 21, 2013 at 04:04:34 PM EST
    the NYT reporters are any more sticklers for detail than any of others whose reports you have questioned.  Would you?

    I don't assume anything, thanks. (none / 0) (#31)
    by sarcastic unnamed one on Thu Feb 21, 2013 at 04:06:05 PM EST
    YES (none / 0) (#32)
    by smott on Thu Feb 21, 2013 at 04:07:56 PM EST
    We need info re whether it was the 'bullet' vs the the 'casing'.

    If BULLET - this does not poke holes in OP's story.

    If CASING - that is significant and suggests OP was INSIDE the toilet compartment when firing. Big problem for OP.

    I think in all likelihood it's the bullet. Not Casing.

    AFter all do we not have holes in the toilet door? Confirming shots came from Outside??


    and not a shell casing. Reuters is calling it a "spent round" which commonly means the lead slug and not the brass casing.

    But if it is a shell casing, the simplest explanation would be that the door was open to the toilet room when the gun fired that particular shot.


    Justified Paranoia? (none / 0) (#38)
    by thadjock on Sat Feb 23, 2013 at 11:02:48 AM EST
    One factor that will help support his reactions that night is his history of Personal security breaches.  it's documented He's been burgled before, and has had death threats made against him,  

    Other evidence of his genuine fear: upon returning home and hearing noises in the house,  he tweeted that he was armed and in "full combat-recon mode" fortified in his pantry, only to discover the noises eminated from the clothes washer.

    If crime in the community is such that you need to live in a gated development with armed guards and an electric security fence around it, it seems reasonable that you'd acquire a heightened sense of personal protection which might appear excessive to casual observers.

    So why didn't he put 4 shots (none / 0) (#39)
    by sarcastic unnamed one on Sat Feb 23, 2013 at 12:16:36 PM EST
    into the clothes washer?

    because (none / 0) (#40)
    by thadjock on Sat Feb 23, 2013 at 12:28:15 PM EST
    it was probably a spendy jumbo-bin SKIP or something based on the rest of the house.

    his homeowners insurance would have him on the rack for shooting his washer.