Pistorius Case Analyzed by a Defense Attorney

South African paralympic and Olympic sprinter Oscar Pistorius, famous for having been the first competitor in the history of the Olympics to compete in the sprint events with the use of prosthetic legs, has been arrested by South African authorities in connection with the shooting of his girlfriend, model Reeva Steenkamp. The case has already been sensationalized by the media but promises to be a very interesting trial from a lawyers’ standpoint as it touches upon some very subtle and complex questions of criminal law that one might expect to see on a law school exam.

To summarize the facts: Pistorius lived in Pretoria in an upscale gated community with private security because South Africa has a high rate of violent crime (including residential break-ins) and Pistorius himself claims that he has been the victim of break-ins and death threats. He kept a variety of firearms in his home including a 9mm handgun. On the night following Valentine’s Day, he supposedly believed that a burglar had broken into his bathroom and was inside the small room with the toilet. According to Pistorius’ affidavit, he feared for his safety and was not wearing his prosthetic legs, so Pistorius brought himself to the door to the toilet and fired four shots through it. He called out to his girlfriend to call the police, but suddenly realized that his girlfriend was not asleep in bed as he had believed. Realizing then that he might have made a tragic mistake, he broke down the locked door with a cricket bat. Inside, his beautiful girlfriend was bleeding and unconscious, and she died shortly thereafter.

The prosecutor has suggested that Pistorius and his girlfriend had an argument and his girlfriend fled into the bathroom only to be shot dead by a furious Pistorius. The prosecution has revealed some of its evidence during a pre-trial bail hearing (Pistorius, incidentally, was ultimately granted bail in the amount of 1 million rand, equal to about $114,000, subject to a variety of other conditions including the surrender of his passport), but some significant evidence has yet to be fully analyzed. First, Reeva’s cell phone was recovered from inside the toilet room, and a forensic analysis of the text messages or telephone calls just prior to her death may prove to be very revealing. Indeed, if it is shown that Reeva was sending distress messages or even speaking at the time of her death, it would completely discredit Pistorius. Also, neighbors supposedly heard one gunshot followed by others, which would suggest that Pistorius would have realized that the burglar was not in fact a burglar after the first shot. However, the reliability of this testimony may be questionable given their apparent distance from the house.

More importantly, though, the prosecutor has probably painted the defense into a corner from which it cannot escape. In South African law, there are two types of homicide: premeditated murder and culpable homicide. The term “premeditated” is oftentimes misinterpreted, as laypeople tend to believe that a “pre-meditated murder” is by definition the result of a long and careful plan to assassinate someone. In fact, “premeditation” in South African law simply means “intentional,” meaning that the person that killed meant to do it at the time, and thus that intent can be formed almost instantaneously and need not have been carefully considered beforehand. The other charge, culpable homicide, applies to negligent killings.

The defense team for Pistorius has already conceded that he may be guilty of culpable homicide for having killed Reeva when he believed she was a burglar. However, this “mistake of fact” as we lawyers call it does not really help him. One cannot avoid a conviction for premeditated murder simply because one misidentified one’s victim; the concept of “transferred intent” applies. Put another way, if I intend to kill Person A, and instead accidentally kill Person B, I’m guilty of murder just the same as if I had in fact killed Person A. After all, under that hypothetical, one could say that I intended to kill a person, I deliberately attempted to kill a person, and I did in fact kill a person… and these are the elements of intentional murder.

Just as problematically for him, Pistorius does not have a very good self-defense claim here. In some states in the U.S., it is legally acceptable to use deadly physical force where it is reasonably necessary to prevent a burglary of one’s home. In South Africa, on the other hand, deadly physical force can only be applied where it is reasonably necessary to prevent an imminent and deadly attack (a “proportionality standard,” so to speak). Thus, the big problem for Pistorius is that he can be convicted for the premeditated murder of a burglar unless he can show that he was objectively reasonable in acting the way that he did in firing upon his door. (Incidentally, the South African prosecutor, Gerrie Nel, correctly pointed out this problem with Pistorius’ defense at Pistorius’ bail hearing). It seems unlikely that a judge would find that Pistorius’ shooting at a door – without knowing who was behind it and with the clear intent to kill the person behind it (as evidenced by the use of four shots fired into a small chamber) – could possibly have been reasonably necessary to prevent imminent physical harm. After all, it is nearly impossible to conclude that the person behind the door presented an imminent threat of serious physical harm to Pistorius because… she didn’t. It was after all his girlfriend, not a burglar, and Pistorius – by his own admission and according to his version of events – did not take any reasonable steps to determine the seriousness of the threat posed by the person in the toilet.

Seemingly, Pistorius’ only hope for an acquittal on all charges would be to somehow argue that he truly and reasonably believed that he had to fire into the bathroom to prevent a deadly attack to be inflicted upon him or his girlfriend. This seems like a longshot but perhaps he will be able to demonstrate a history or pattern of dangerous home break-ins in his home in the past that will make his response seem more reasonable under his unique circumstances. Otherwise, he will have to argue that he did not intend to kill the “burglar” behind the toilet door when he fired four times, and that his actions, though designed only to scare the burglar or serve as a “warning shot,” only accidentally or negligently caused the death of the “burglar” and were not the result of an intentional killing. Under this scenario, he might be convicted of only culpable homicide, for which there is no requirement of incarceration under South African law (a conviction for premeditated murder, in contrast, carries with it a life sentence). His affidavit seems to leave open both defenses as possibilities at trial.

The trial will not be so different from an American criminal trial but for one major difference: judges, and not juries, decide guilt or innocence in South Africa. Pistorius’ character may also very well become an issue, more than it would likely have been had he been arrested in the United States for the same crime. It is of course always difficult to predict the outcome of a criminal trial, but in this case, it seems likelythat Pistorius will be convicted of premeditated murder.

The author of this article, Matthew Galluzzo is a criminal defense attorney and former prosecutor that worked in South Africa as a consultant and instructor for the National Prosecuting Authority for a period in 2012.