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...]
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.
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