September 11th 2014: Watching the Verdict in the Oscar Pistorius Trial

Two days ago, I arrived back in Pretoria for my second phase of fieldwork and as I am writing I am sitting in my apartment in Pretoria watching the proceedings of what will probably be the last day of the murder trial against Oscar Pistorius. The case of Oscar Pistorius has accompanied me during my research on domestic violence and counselling services in South Africa from its very beginning and the subject has come up in various interviews and conversations. Often times, people had strong opinions about the accused, mostly judging Pistorius guilty. Yet, some could not understand the fuzz that is made about the case as you can find similar cases happening in South Africa almost on a daily basis.

Today, the verdict will be handed out in the Oscar Pistorius trial. Again, the proceedings are broadcasted live – both on Channel 199 on DsTV and online, for the world to watch. The media coverage of the trial is enormous and what has become clear is that as previously, Oscar’s behaviour and bodily reactions will be under close inspection. It seems like everybody is hoping to see a hidden truth, to be able to read from Oscar’s body what really happened, to find out if he is a victim or a perpetrator.

However, what will be most interesting to me today, is to find out whether the verdict will lead to a broader discussion of domestic violence in South Africa – a perspective that in my opinion has gotten more and more out of sight during the proceedings.

In the following, I will sum up current proceedings and respective media coverage from my point of view as I am watching the trial on its 42. day. I will not recapitulate all the details that are being discussed but rather focus on upcoming subjects which I find most interesting to take into account and to discuss.

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The Truth is in the Details

Before Judge Masipa will pronounce the verdict today (or tomorrow, depending on the duration of today’s evaluation), she is going through the most significant evidence that has been presented during the trial. In the upcoming hours, she will present a summary of the trial proceedings as well as her evaluations of the evidence presented on which her verdict will be based. Her evaluations are very detailed. If a witness’ statements are to be deemed credible in general will be inferred from the traceability and provability of specific details that support wittnesses’ statements, for example time specifications of events.

The Camera’s Gaze

So far, the camera is mostly focusing on Judge Masipa as she is reading her arguments from a thick pile of paper that is resting on a reading stand in front of her. Sometimes the camera focuses on the accused who is seen crying from time to time, sometimes we see the audience inside the courtroom and their reactions, their mimic. When watching the trial one must keep in mind that already the fact that we are watching filmed material, no matter if live or not, is providing us with a specific gaze, bringing our attention to some events while diverting us from others. For instance, when we see Oscar Pistorius crying, what message is being carried? Already, the decision which angle to take, when to take a close shot of a single person’s mimic or when to offer a wide shot is an interpretation, a filter and influences the way the viewer perceives the trial.

Human Fallibility versus Technological Objectivity

As Judge Masipa is evaluating the evidence that was given by witnesses, experts and the accused she discusses the reliability of human memory. She argues that sometimes the statements of witnesses must be regarded as distorted due to the following reasons: First, almost every witness had followed media coverage of the trial or had discussed the case with others prior to their interrogation. The witnesses’ preoccupation with the case is perceived as a disadvantage and Judge Masipa argues that it affects the credibility of the witnesses. She goes on and states that some witnesses apparently failed to distinguish between what they had picked up from media with what they had experienced personally. Additionally, she argues that “human beings are fallible and memory fades over time”. In contrast, technology is more reliable and will be used to test and verify witnesses’ statements.

The Crucial Question: What was his Intention?

In her latest evaluations, Judge Masipa summed up that the crucial question to be answered is, whether Oscar Pistorius intentionally killed his girlfriend. For the Court this means to establish, if there is a reasonable doubt concerning the accused’s guilt. Judge Masipa argues that the intention to shoot does not necessarily mean an intention to kill. The conclusion that is reached by Court must take into account all the evidence given, no matter if unreliable, deemed false or true –  no evidence may be ignored.

Judge Masipa then argues that Pistorius had been a poor witness and it was only under cross-examination that he lost composure. She rejects the explanation that was given by the defense that he was suffering from enormous emotional stress, was taking medication and was traumatized. According to Judge Masipa, this explanation does not make sense. It may not be forgotten that Pistorius contradicted himself numerous times and only during cross examination visibly felt uncomfortable. According to the Judge, although giving evidence was never easy for witnesses, Pistorius must be regarded as an evasive witness. He failed to listen to questions properly and left the impression of being more occupied with the implications of his answers than with giving truthful answers to the questions, Judge Masipa explains.

She further acknowledges that a lot of aspects in the present case do not make sense, for example why he did not try to communicate with his girlfriend during the events or why he fired more than one shot. But as Judge Masipa argues, those questions will remain a matter of conjuncture. Additionally, she makes very clear that in her opinion, the accused has lied to the Court numerous times. However, and this is in my opinion one of the most intriguing statements so far, she explains that giving untruthful evidence does not automatically point to guilt. Further more, the State had not succeeded to prove beyond reasonable doubt that the accused intended to kill his girlfriend, there were just not enough facts to support this finding. This leads the judge to the conclusion that Oscar Pistorius cannot be held responsible for having committed premeditated murder.

Furthermore, Judge Masipa states that Pistorius acted according to an error in objective/error in persona. Pistorius himself was the only person who can explain his state of mind when he fired the shots. During trial proceedings he never admitted an intention to shoot and kill his girlfriend and there is no evidence that suggests that his version – believing that he was facing an intruder at the moment of firing the fatal shots – is untrue. For example, it was proved that the bathroom window was open and that the bathroom door was locked. Apart from this, Judge Masipa refers to a witness’ statement indicating that shortly after the incident, Oscar was praying to God, asking for Reeva’s life to be saved and he was described to have made the impression of being “genuinely distraught”, which is deemed as true and reliable by Court. Again, Oscar’s bodily reactions serve as a major indicator of the truth. Additionally, the consistency of his version as he had told it to several people shortly after the events comes into play. Judge Masipa argues that it is highly improbable that he would have made up this version within such short time and subsequently hold it up with such consistency. In the following the option of having committed the crime dolus eventualis – meaning him being aware of the likely option that his shots could kill his girlfriend and firing despite this awareness  – is dismissed by Judge Masipa. As a consequence, Oscar Pistorius will not be held responsible for murder. Putative self-defense is also ruled out, still leaving the option of culpable homicide which means the negligent killing of a person.

When Oscar Pistorius starts crying heavily, the Court adjournes and takes an early lunch break. In the meantime, Channel 199 broadcasts interviews and discussion rounds with law experts. In general, law experts express astonishment about Judge Masipa’s current conclusions and rate the developments to be a success for the Defense.

The Test of the Reasonable Man

Just before adjourning the final pronunciation of the verdict until tomorrow morning Judge Masipa performed the so called Test of the Reasonable Man. The test serves to establish whether a person acted negligent and consists of the following three questions (paraphrased):

(1) Would a responsible person in the same circumstances have foreseen the consequences of his/her actions including their unlawfulness?

(2) Would a responsible person in the same circumstances have taken steps to guard against this possibility?

(3) Did the accused fail to undertake these steps?

The figure of the Reasonable Man is particularly interesting to me as it implies the notion that people who are comparable (according to Judge Masipa comparable means sharing the same background, sex, age, race and level of education) would reasonably react in the same way when confronted with a specific situation, namely in a rational way. As Judge Masipa decides to answer all the questions in the present case positively, Oscar Pistorius’ conduct is to be regarded as negligent. Although she took his disability into account and attested his vulnerability, Judge Masipa does not take Oscar’s disability as an excuse for his actions but rather takes it as a possible explanation. Still, she remarks that women, children and people with disabilities (an interesting grouping that I come across often by the way) are in general especially vulnerable but it cannot be assumed that any member of this group would have resorted to shooting a firearm instead of calling security first.

So far, domestic violence has not been discussed at all. As Judge Masipa has ruled out that Oscar intended to kill Reeva, does this also rule out the possibility of the incident being a case of domestic violence?