Oscar Pistorius Bail Hearing: Day 4

Court has begun in the final bail hearing for Oscar Pistorius. The prosecutor is finishing his closing argument. He complains Oscar submitted an affidavit instead of testifying. Magistrate Desmond Nair asks: "Is he not permitted to bring the application by affidavit?" Nel says: "Nobody can force him to, he makes an election." (The correct answer is "yes".) [More...]

Prosecutor Nel tells the court he planned his defense to the murder either before or after the shooting. Judge Nair: "But if there was planning of the murder, would there not be a setting up of the scene to look like there was a burglar?" Like by breaking a window.

Nel says he thinks he planned to kill her that night but not before then. This is just rank speculation:

Nel: I'm not saying that Reeva's murderers planned days or weeks before. It was planned that night, after she locked herself in toilet.
Nel brings up the cell phone.
Mag: Have you shown that the second phone was deceased's? Nel: No we haven't but he hasn't denied it.

Now Nel says he's not denying that Oscar made phone calls after the shooting (to security and paramedics.)

BBC reporter says Nel is "losing his way a bit."

Nel says the state will have a hard time because only one person is alive. He also admits it will be tough to prove Oscar was not sleeping on the side of the bed he said he slept on.

The Magistrate already pointed out yesterday that Inv. Botha never claimed to have firearms expertise, but Nel presses on with "What we have is the investigator's evidence of the angle of the shot." He thinks Pistorius was 1.5m from door."

Nel plays the domestic violence card and the Judge stops him:

Nel asks how many cases must there be in which women and children are killed. Nair wants him to stick to evidence in this case.

Nel brings up a gang rape case as an example of a case sparking outrage. The judge points out he hasn't introduced any evidence that particular rape case sparked community outrage.

Note: as to why this business about community outrage has come up a few times, it's in the bail statute as a factor the judge can consider in deciding bail -- whether granting bail would provoke a sense of outrage in the community. I think Roux was right when he told the judge yesterday that denying bail would create outrage. It's probably split which to me zeros out the issue.

Nel plays the politics and domestic violence card again:

Nel says minister for women and children Lulu Xingwana was in court the other day: "That's how serious this is."
The BBC reporter says the Judge is acting like he wants Nel to wrap up so he can rule.

Nel is winding down. He says "the court should refuse bail, he has the onus, he provided an improbable version."

Judge is clearly not convinced Oscar is a flight risk:

Nair asks what kind of life Oscar would lead if he fled? His international career would be over. "A life of freedom," Nel answers.
Finally, the judge raises the issue of Oscar's disability-- "Nair concerned about the life he would live considering his prosthesis."

The prosecutor's response "Nel: courts can't treat people with disabilities differently." I doubt that answer will win him any points with the judge. I think the judge should find it to be an exceptional circumstance in itself.

This prosecutor seems to be losing it. He suggests Oscar might change his face and flee. How would he hide his legs? He says, "Wear long pants. Then he brings up Julian Assange.

Really, this is absurd. He's gone from gang rape, to plastic surgery to Julian Assange.

He's done. Roux will get a chance to respond. The judge takes a 10 minute break.

I have a question: Why does no one cite the law on bail? Did they file briefs? Does South Africa not have any case law on bail? It sure has a lot of statutes on bail and pre-trial detention, and they have been amended several times in recent years.

While we are waiting, I think Nel is wrong that the law doesn't treat disabled pretrial detainees differently. Pretrial detainees, those held without bond, are called "remand detainees" in South Africa. The Correctional Matters Act (2011 Amendment) specifically addresses the needs of disabled remand detainees:

49B. (1) If the National Commissioner considers it necessary, having regard to remand detainees' disability, the National Commissioner may detain disabled remand detainees separately in single or communal cells, depending on the availability of accommodation specifically designed for persons with disabilities.

(2) The Department must provide, within its available resources, additional health care services, based on the principles of primary health care, in order to allow the remand detainee to lead a healthy life.

(3) The Department must provide, within its available resources, additional psychological services, if recommended by a medical practitioner.

Still waiting. The statute on bail reads: Where an accused is charged with an offence referred to—

(a) in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release;

(b) in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.

On Day one, the judge asked the prosecutor why he didn't just file the charge as a class six offense of premeditated murder, instead of just filing "murder", which could be a class five or class six, and results in the judge having to make the decision. This is the section of the Criminal Procedure Act I think he was referring to:
(11)(a) If the attorney-general intends charging my person with an offence referred to in Schedule 5 or 6 the attorney-general may,irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge. issue a written confirmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6.

....(c) Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a written confirmation issued by an attorney-general under paragraph (a) shall, upon its mere production at such application or proceedings. be prima facie proof of the charge to be brought against that person.

Court resumes. Defense lawyer Roux begins by saying the prosecutor has misinterpreted the concept of intent. It's not something that can be transferred, meaning Oscar may have intended to kill the burglar but that doesn't mean he intended to kill Reeva.

New words for the day: Dolus Eventualis vs Dolus Directus.

Roux says if Oscar acted differently from how a reasonable person would have acted, then it's culpable homicide. If not, he's acquitted.

The victim's mother just entered the court. The Magistrate has a bodyguard on each side of him.

Roux says Oscar had no intent to kill Reeva. Charge is not that he wanted to kill unknown burglar but that he wanted to kill her.

The Judge asks Roux how quickly Oscar came up with the intruder explanation - was it spontaneous or was there a time gap? Roux says even with some time in between, his response could still be genuinely spontaneous.

Roux addresses some issues raised by Nel. As to why Oscar went downstairs to open the front door, he had to because the security man he called was on the way and he wanted to let him in. There's nothing improbable about it.

Roux says Oscar's actions right after the shooting would have been frantic and panicked, explaining the phones and gun in the bathroom.

Roux disagrees with Nel about Botha:

I asked Botha three or four times if he has evidence contradicting Pistorius's version. He didn't. "It's a major concession."

Roux finally brings up Oscar's disability.

Roux: "Those legs need maintenance and adjustment on a monthly basis." He needs medical treatment for the stumps.

The Judge asks why he didn't put that in his affidavit. "Wouldn't it have made sense to put in affidavit his stumps need medical attention and it will be hard in a "duck and dive" situation?" My answer: No, the affidavit was about his version of the offense and why he's not a flight risk. The hardships of detention don't really belong in that affidavit. (Although, I do think the defense might have been wise to submit an affidavit from his doctor on that point though.)

I still think that's an exceptional circumstances and that judges don't like to burden prison officials with out-of-the-ordinary medical needs.

Roux points out the commotion his prostheses cause at airports when he goes through metal detectors.

Roux concludes. Magistrate Nair thanks them for their professional manner and says he's left in the unenviable position of making the decision.

The Magistrate will rule at 2:30 SAST, which is an hour and a half from now. Since it's 3:00 am here, I'm heading to bed. Final thoughts: The Magistrate should grant bail because:

1. The case for premeditation and planning is so weak it should be reduced to a category five offense, with its lesser standard for making bond. Oscar may have intended to shoot the burglar, but there has been no evidence he intended to shoot his girlfriend. At most, that amounts to culpable homicide, which is a class five offense.

2. There's no question that Oscar's incarceration would be contrary to the interests of justice. His disability will be a burden for prison workers and for Oscar. Under South African law, like here, he's presumed innocent. If incarcerated, he must be treated with dignity and in a manner that protects his safety.

3. Even if the judge maintains his finding that he can't exclude premeditation and proceeds under Category six, Oscar's disability should be an exceptional circumstance.

4. Oscar is not a risk of flight. The allegations of alleged misconduct should be given no greater weight than Oscar's affidavit. While the prosecutor complains Oscar avoided cross-examination by filing an affidavit instead of testifying, so did the state's witnesses. Also, the incidents have nothing to do with the current offense. Accidentally discharging someone elses weapon in public is hardly conduct likely to be repeated. Plus, conditions of bond such as home detention would alleviate any potential danger.

5. Oscar immediately called security, paramedics and attempted to save his girlfriend. He cooperated with the police and gave statements.

6. Bond should not be denied for punitive reasons. Pretrial detention is not meant to be punitive, but to assure the presence of the person at trial and the safety of the community. It is simply not necessary or even indicated in this case.

7. The community outrage factor is a zeroed out because while many may be outraged if he gets bail, many more will be outraged if he doesn't. There has been no proof of domestic violence, and evidence was submitted to the contrary. It's simply irrational to make Oscar a poster boy for domestic violence when there has been no evidence to support it.

The tweeting media keep repeating that the only exceptional circumstance raised by the defense for the Judge to consider is Oscar's affidavit. If arguments don't count, then the prosecutor's speculative scenarios which weren't based on evidence shouldn't count towards proof of planning and premeditation, and the Judge should find the state didn't carry the burden of showing a class six offense. As he pointed out on day one, the state had the ability to charge premeditated murder, and did not. It simply charged murder, leaving it up to the judge to decide.

This all comes down to what the Judge wants to do. If he is a humane individual, he will want Oscar to be granted bail given his disability, the burden it will put on prison officials and the likelihood he will be targeted by other inmates in prison because of his disability and notoriety. The easiest way to do that is to reduce the offense to a class five and if the prosecutor doesn't like it, remind him that he had the ability to ensure the charge was a class six by filing a statement to that effect and failed to do so.

Many thanks to the overseas media for their live-tweeting of the hearings, especially @BarryBateman (Eyewitness News);@KarenMaughan (legal journalist);@BBCAndrewH (BBC's Andrew Harding); David Smith (The Guardian); @AlexCrawford (Sky News.)

< Oscar Pistorius Bail Hearing Continued, Detective Removed From Case | Oscar Pistorius Granted Bail >
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  • Display: Sort:
    You can hear (none / 0) (#1)
    by Coral Gables on Fri Feb 22, 2013 at 06:23:44 AM EST
    live audio of the ruling as it takes place in about 5 minutes


    How do we know #5 is true? (none / 0) (#2)
    by leftwig on Fri Feb 22, 2013 at 07:55:33 AM EST
    Are we using timelines of shots being heard by other witnesses?  I honestly don't know what time they reported hearing shots, though I know at least one reported hearing shots, then some time delay, then more shots, so is it an established fact that OP's post shooting actions were immediate based on the time shots were first fired?

    Did OP's lawyer answer the question to how long after the shooting it took OP to come up with the intruder explanation?  The comments above seem to suggest he didn't, with Roux suggesting that it shouldn't matter.  I kinda think it was an important question.

    Keep up the good work (none / 0) (#3)
    by richardatlegallyfit on Fri Feb 22, 2013 at 08:24:14 AM EST
    Just came across your blog and found it interesting. I have just started a blog with a colleague and are looking for inspiration - keep up the good work - cheers!


    Oscar will be free on bail (none / 0) (#4)
    by Coral Gables on Fri Feb 22, 2013 at 08:24:58 AM EST
    no conditions set as of yet (5 minute recess)

    Bail set at (none / 0) (#6)
    by Coral Gables on Fri Feb 22, 2013 at 08:50:26 AM EST
    1 million Rand (needs to include 100,000 cash)

    No firearms, no international travel, no drugs or alcohol

    Can't return to his home or be in contact with anyone from the neighborhood until the conclusion of his case.


    Incorrect (none / 0) (#5)
    by Jack203 on Fri Feb 22, 2013 at 08:33:29 AM EST
    "many more will be outraged if he doesn't."

    I don't think so.  

    It may not have been premeditated. But it was also not accidental.

    if it wasn't planned or premeditated then (none / 0) (#7)
    by Jeralyn on Fri Feb 22, 2013 at 01:53:48 PM EST
    bail would certainly be appropriate. Unlike  you, most people understand that guilt is not a component of bail. Since that is the law in South Africa, the community understands that.

    There was no great community outrage there when a drunk driver who killed five joggers and was charged with five counts of murder got bail. The state agreed to bail. (there was outrage by the victims' families a few weeks ago when the judge restored his driver's license so he could meet with his lawyers to prepare for trial, and this week when he got another trial continuance.)   One of the joggers was married to a senior prosecutor. When bail was agreed to, the prosecutor on the case said:

    Senior public prosecutor Kas Sami-Kistnan said despite the seriousness of the offence, the state did not oppose bail because Langa did not have previous convictions or outstanding warrants. He has a house in California where his wife and children live.

    Also, the man was a civil engineer with dual citizenship with the U.S. and a wife and home in California.