'Uphill battle' ahead for Oscar Pistorius

2013-06-03 12:47
(Photo: Oscar Pistorius, file AFP)

(Photo: Oscar Pistorius, file AFP)

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CNN talks to Oscar's uncle

2013-06-03 08:12

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Pretoria - Oscar Pistorius will be back in the glare of public scrutiny for the first time in months when he appears at a court hearing on Tuesday ahead of his murder trial, the next chapter of a sensational case that transformed the double-amputee Olympian from a smiling global inspiration to a sobbing suspect facing a life sentence in prison if convicted.

There have been just two reported sightings of Pistorius since he was granted bail on 22 February. Millions were stunned by the defining images of him leaving a police station on Valentine's Day - his head hooded and bowed, hands thrust deep into his jacket pockets and guarded by officers - after he had been arrested and charged for shooting dead his girlfriend, Reeva Steenkamp.

Forced out of his self-imposed isolation, Pistorius will emerge briefly for an appearance Tuesday at the same Pretoria Magistrate's Court where he was granted bail, the first step toward the trial that will eventually decide if the 26-year-old Pistorius spends a minimum of 25 years in jail.

Putative self defence

Pistorius will defend himself against a charge of premeditated murder by arguing he believed he was acting lawfully and in self defence when he fired four shots through a bathroom door in his home with his licensed 9mm handgun, criminal and firearm law experts say.

The Olympic athlete insists that he made a deadly error when he fired into the closed toilet stall, thinking an intruder was behind the door when it was really Steenkamp.

Pistorius also will be expected to explain his justification for those tragic actions in minute detail by taking the stand and testifying at his trial, which has no start date yet. A judge will pronounce him guilty or innocent.

The Olympian is claiming "putative self defence," lawyers who are knowledgeable about the case but are not representing Pistorius said.

The lawyers, drawing from the unusually detailed affidavit Pistorius's presented in his bail hearing, said Pistorius will maintain that in a darkened room in the pre-dawn hours of 14 February, and in a calculation that was gravely mistaken, he decided to fire the shots that killed the 29-year-old model and law graduate because he was certain she was an intruder and both their lives were in danger.

Prima facie case

It's a difficult defence for any accused, legal experts say.

"The fact that he has admitted that he has killed her by pulling the trigger means the state has a prima facie case and it is expected of the accused to come and convince the court otherwise," Marius du Toit, a former prosecutor, magistrate and now defence attorney with over 20 years' experience in the local justice system said. "His version is going to be exposed and scrutinised in the finest, finest detail."

While the news-dominating nature of Pistorius's case echoes that of former NFL superstar OJ Simpson, experts point out the crucially different legal implication. Simpson denied any involvement in the killings of Nicole Brown Simpson and Ronald Goldman, for which he was acquitted, leaving the prosecution to prove its case.

Even with the principle of innocent until proven guilty, for any defendant in Pistorius's circumstances, "it's on you to come and show to the court that what [you] did was not so unreasonable," Du Toit said.

If the Paralympic champion is to be acquitted of murder - and also culpable homicide or negligent killing, which carries a mandatory five-year prison sentence in South Africa when a firearm is used - a judge must find Pistorius had no intention to kill Steenkamp and believed he was following the law to protect himself and others. The judge also must find that any other reasonable person in his situation would have done the same.

'Uphill battle' for Pistorius

Putative self defence is "extremely difficult" to show, said leading firearm lawyer Martin Hood, predicting an "uphill battle" for Pistorius at trial.

"I do not see how Oscar Pistorius could have concluded that a closed door constitutes danger to such an extent that his life is in danger, bearing in mind that he had gone into that situation," Hood said.

"So, it begs the question why did he go looking for trouble?"

Why didn't he check where Steenkamp was, or just leave the room and the perceived danger? Simply, "what he should have done is ... got out the bedroom," Hood said.

There are clues to Pistorius's planned defence in his affidavit. References to his fear of South Africa's high rate of violent crime. "A sense of terror" rushing over him, he testified to in the document, when he realised someone was in the bathroom. Pistorius says he shouted for any intruders to get out of his house and for Steenkamp to call the police before he shot. Actions, his defence may argue, of a reasonable man who believed he was following the law.

"[We] Believe that Oscar's account of what happened on that terrible night in February will be borne out by the evidence that the defence team will lead in court," his family said Sunday.

But records from cellphones found in the bloodied bathroom will be scoured and neighbours will be questioned over a loud argument between Pistorius and Steenkamp that the prosecution says took place that night for indications of a possible motive.

SA justice system also on trial

The case also will be closely scrutinised by legal commentators, who say almost unanimously that South Africa's often criticised criminal process will be on trial alongside the country's one-time sporting hero.

Already stung by former lead detective Hilton Botha's bungled testimony in Pistorius's bail hearing, and his admission of amateurish errors in the initial stages of the investigation, police have declined to comment on details of the investigation. Brigadier Phuti Setati, a senior police spokesperson, only said the evidence-gathering was ongoing and the investigation was "progressing very very well."

Pistorius's character and his actions around guns could become circumstantial evidence, Hood said, with unconfirmed reports of moments of aggression and a careless attitude with firearms.

Yet, the prosecution's decision to press a premeditated murder charge, because they say Pistorius took the time to put on his prosthetic legs before the shooting, is flawed, Du Toit said.

"I honestly felt there wasn't any justification for [a] premeditated murder [charge]," Du Toit said, "unless something came out in their forensics that we don't know of. And we won't know until trial."

Pistorius says that he did not have his prosthetic legs on and was walking only on his stumps and felt "vulnerable", the most stark and possibly pivotal difference in the prosecution and defence versions and where forensics relating to the height or angle of the bullet holes in perhaps the most crucial piece of evidence - the toilet door - could be definitive.

Two pictures

It all could paint a picture of Oscar Pistorius as a cold-blooded killer, furious and intent on murder following an argument, as the prosecution alleges, who took the time to put on his prosthetic legs before striding to the bathroom and killing his cowering girlfriend.

Or as a terrified disabled man, standing on the stumps of his amputated legs and shooting to protect himself and the woman he loved from what he thought was a dangerous criminal.

The trial is likely to swing between these vastly different preconceptions of Pistorius.

Read more on:    reeva steenkamp  |  oscar pistorius

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