Oscar Pistorius appeal: did prosecutors sway the judges?

Nov 4, 2015

The athlete's fate now rests in the hands of five of South Africa's top judges

Oscar Pistorius's defence lawyer Barry Roux faced tough questioning from five of South Africa's top judges yesterday as he attempted to keep the Olympian and Paralympian out of prison.

Roux was in the Supreme Court of Appeal to fight an appeal by the state, which claims Pistorius should have been convicted of murder rather than culpable homicide for killing his girlfriend Reeva Steenkamp in February 2013.

Pistorius claimed he thought his life was at risk from a dangerous intruder when he fired four shots into a closed toilet door in his home. Last year, Judge Thokozile Masipa said prosecutors had failed to prove beyond all reasonable doubt that Pistorius knew his shots would lead to the death of another person, be it Steenkamp or an apparent intruder.

But yesterday prosecutor Gerrie Nel forcefully argued that Pistorius must have known his shots would kill and the conviction should therefore have been murder.

The panel of judges has now listened to both sides and is expected to announce its verdict before the end of the year. The judge leading the panel that will decide Pistorius's fate is Lex Mpati, president of the Supreme Court of Appeal and chancellor of Rhodes University.

Mpati, a former cattle herder and petrol pump attendant, started his law degree at the age of 30 and later became the first black judge to be permanently appointed to the Supreme Court of Appeal. Judge Nonkosi Mhlanthla, judge Eric Leach, judge Steven Majiedt and acting judge Elizabeth Baartman are also on the panel. Their decision will be based on a majority rule.

So were they swayed by either side?

Ulrich Roux, a defence attorney of no relation to Barry Roux, said the defence was forced to think on its feet.

"Judge Leach was very hard on Barry Roux and asked him some difficult questions especially pertaining to how it is possible that the respondent, or Oscar, could not have foreseen that firing those shots into the door could lead to the death of a person," he told News24.

In his comments in court, Leach suggested that Masipa might have made a mistake. "If you put four shots through that door you must surely see you will shoot someone," he said.

Nevertheless, Kelly Phelps, a senior lecturer in criminal justice at University of Cape Town, argued that it was difficult to say which way the court might lean.

"We got glimpses of how individual judges were leaning on specific aspects but that doesn't give us at all a realistic indication of where the majority voices are leaning," she said. "In terms of the theatre we saw play out today and the intensity of the questions, it was absolutely in keeping with a continuum of what you would expect from the Supreme Court of Appeal."

Phelps agreed with Ulrich Roux that the defence received "more aggressive" questioning, but added: "Again that doesn't tell us where the judges' opinion rested in terms of the answers he provided to those questions. I think both teams have got certain significant hurdles to overcome to win this case."

Oscar Pistorius 'cannot escape' murder verdict, claims Nel 

03 November

Prosecutors are in South Africa's Supreme Court of Appeal today in a bid to persuade a panel of judges that Oscar Pistorius should be convicted of murder rather than culpable homicide. 

Pistorius, who shot dead his girlfriend Reeva Steenkamp on 14 February 2013, left prison last month to serve the rest of his five-year sentence under correctional supervision.

State lawyer Gerrie Nel, whose legal jousting became a familiar sight in the Pistorius trial, is arguing that Judge Thokozile Masipa last year erred in her application of dolus eventualis, a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless.

He stands before a panel of five people: judge president Lex Mpati; judge Nonkosi Mhlantla; judge Eric Leach; judge Steven Majiedt; and acting judge Elizabeth Baartman.

Pistorius, who is not in court, could face a 15-year prison sentence if the Supreme Court decides to impose a murder conviction.

Nel's arguments

"On the objective facts, the accused cannot escape a verdict of murder," Nel has told the court.

He claims Masipa ignored circumstantial evidence, looking at it piece by piece, rather than as a "mosaic".

Pistorius offered conflicting defences, such as self-defence to justify the shooting but then a lack of intention to kill, says Nel. He insists that the fact Pistorius fired four shots into a toilet door shows his intention to kill a person, regardless of whether he knew it was Steenkamp or if he believed it was an intruder.

Roux's arguments

Defence lawyer Barry Roux has argued that the state's appeal is not based on questions of law but questions of fact and therefore cannot be considered by the Supreme Court. He insists Masipa did not ignore circumstantial evidence, as Nel has claimed. She dealt with "every aspect" in her ruling, he says.

The judges have asked difficult questions of both lawyers. Judge Leach gets to the crux of the appeal, pointing out that the "very restricted" size of the toilet cubicle meant there was "no place to hide" for whoever Pistorius believed was behind the door. "If you put four shots through that door you must surely see you will shoot someone," he tells Roux. He adds that if a judge fails to apply herself to all of the evidence, that is misapplication of law. Leach questions that Pistorius believed his life was in danger and challenges Roux to prove how this was shown in last year's trial. Roux points to Masipa's ruling, which says four times that there is no evidence to show that Pistorius did not think his life was in danger.

Oscar Pistorius: why state might have strong case for murder

02 November

South African prosecutors have a strong case to elevate Oscar Pistorius's culpable homicide conviction to murder, a criminal law expert has suggested.

William Booth told News24 that "one doesn't have to be a fantastic lawyer" to determine that the facts of the Pistorius case equal murder.

Pistorius was released from prison on 19 October to serve the rest of his five year sentence under house arrest for killing his girlfriend Reeva Steenkamp in February 2013.

However, his respite may not last long as the state is due to appeal against his conviction tomorrow in the Supreme Court.

"My feeling has always been that if you look at the facts – four shots into a tiny little toilet knowing that there is somebody behind the door and that person isn't attacking Oscar – well does that not really equal murder? I mean, one doesn't have to be a fantastic lawyer to determine that," said Booth.

Under South African law, a judge's factual findings in a case cannot be appealed. Instead, prosecutors will argue on 3 November that Judge Thokozile Masipa was mistaken in her application of the law when she convicted Pistorius last year and that a different court could reach a different decision – namely that Pistorius should have been convicted of murder, not culpable homicide.

Nevertheless, Booth says the Supreme Court will need to look at the definitions of murder and culpable homicide and use the facts to see whether the prosecution has proved the charges beyond all reasonable doubt.

"I believe they have a fairly good argument based on the facts of the case," said Booth.

In giving her verdict last year, Masipa said that the state had failed to prove the case was "murder dolus eventualis", a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless. This is one point of law that the prosecution claims Masipa might have erred on.

State prosecutors and Pistorius's defence team will present their cases to a panel of five judges at the Supreme Court of Appeal in Bloemfontein tomorrow.

The proceedings are scheduled to last one day, with the judges expected to announce a future date to deliver their ruling.

They could decide to reject the appeal, to order a retrial or to convict Pistorius of murder themselves, which would mean a minimum prison sentence of 15 years for the athlete.

Johan Engelbrecht, a former acting judge, told The Citizen that Pistorius is unlikely to face a new trial. He said the Appeal Court is more likely to exercise its right to substitute Masipa's culpable homicide verdict with a murder verdict.

Defence lawyer Barry Roux has previously argued that Pistorius cannot afford a new trial and that he could not be tried twice for the same crime under double jeopardy laws.

The panel will be led by Lex Mpati, president of the Supreme Court of Appeal and chancellor of Rhodes University.

Oscar Pistorius leaves prison: what happens next?

20 October

The disgraced Olympian Oscar Pistorius left prison last night after his request to serve the rest of his sentence under house arrest was granted by a parole board.

The athlete had been expected to leave Kgosi Mampuru II prison in Pretoria today, but apparently arrived at his uncle Arnold's home just after 10pm last night.

The BBC's Karen Allen said the early departure was presumably designed to "avoid the media glare".

One official told News24 that the decision had been kept top secret, with only senior managers in South Africa's Department of Correctional Services aware that he would be released a day early.

An official spokesman for the department insisted the early release did not constitute preferential treatment. "This is not the only case where this has happened. It has happened before," said spokesman Manelisi Wolela

He added: "The handling of the actual placement is an operational matter of the local management, and how they handle it is their prerogative that is carried out in the best interest of all parties concerned, the victims, the offender and the Department of Correctional Services."

The athlete, now 28, had been in prison since October last year, when he was sentenced to five years for killing his girlfriend Reeva Steenkamp in February 2013.

Under South African law, offenders sentenced to five years or less are eligible to be considered for parole after serving one sixth of their sentence in custody. For Pistorius, this was after ten months.

However, the justice ministry initially blocked his release in August, arguing that the decision to release him was made before the ten-month period was over.

Pistorius will remain under correctional supervision until 20 October 2019.

The Department of Correctional Services said the Parole Board had given Pistorius his correctional supervision conditions, which include "continued psychotherapy and prohibitions in line with the Fire Arms Control Act".

In order to reach its decision, the parole board considered Pistorius's profile report, submissions from the victim's family and the directives of the Parole Review Board, which has been reviewing the case.

Steenkamp's cousin Kim Martin said she thought Pistorius was "getting off lightly". However, she said the family might consider visiting Pistorius when the time is "right".

A lawyer for Steenkamp's family said nothing had changed for the victim's parents June and Barry. "Nothing will bring Reeva back," she said. They were "not surprised at all" by the announcement that he would be leaving prison. "They expected this," she said.

Will Pistorius carry out community service?

Ahead of sentencing last year, Pistorius's defence lawyers argued that he should serve a community-based sentence, such as 16 hours of domestic cleaning a month. Annette Vergeer, a probation officer who acted as a witness in Pistorius's sentencing hearing, suggested he could even work with disabled children. She went into detail about a Gateway programme that helps children in other countries such as Mozambique. However, offenders are typically banned from leaving their ministerial district let alone the country.

One of Pistorius's lawyers told The Sunday Times in May that his client was still interested in working with children once released from prison. Rohan Kruger, who works on the defence team with lead counsel Barry Roux, told the newspaper: "Oscar is keen to become involved in assisting children in whatever opportunity will present."

Will Pistorius return to athletics?

According to South Africa's Centre for the Study of Violence and Reconciliation, correctional supervision aims to provide a means of rehabilitation within the community and allows – even encourages – the offender to be employed. The International Paralympic Committee has previously said Pistorius, known as the Blade Runner, could resume his career once he has served his sentence, and the South African Olympic Committee has confirmed that it has no regulations barring athletes with a criminal record.

Where will Pistorius live?

Pistorius looks likely to live under "virtual house arrest" at his uncle's home in the Waterkloof suburb of Pretoria. The Parole Review Board has said that he must be "subjected to psychotherapy in order to address criminogenic factors of the crime he committed".

However, his relative freedom could be "short-lived" if prosecutors are able to persuade the Supreme Court of Appeal next month that his verdict should be upgraded to murder, a conviction that carries a minimum of 15 years in prison, with no opportunity for house arrest.

Oscar Pistorius: apology issued over crime scene video

15 October

Two South African men have apologised for a "distasteful" video in which they talk about converting Oscar Pistorius's former Pretoria home into a party house for "hot girls".

David Scott and Kagiso Mokoape are renting the athlete's former Silver Woods Country Estate home, where Reeva Steenkamp was shot four times through a toilet door in 2013.

During the trial, police released graphic photographs of the crime scene, showing Pistorius's blood-soaked toilet and a 9mm gun lying on the bathroom mat.

In a video that emerged over the weekend, new tenants Scott and Mokoape are seen giving Netwerk24 a guided tour of the bathroom and the rest of the house.

The men say they will decorate the house in honour of what happened and then "invite people over". Grinning and holding a can of beer, Scott boasts: "This is definitely an entertainer's house. Oscar built this house to entertain."

Mokoape says there will be a "party every weekend" and Scott adds that "hot girls can invite themselves".

Anneliese Burgess, a spokeswoman for the Pistorius family, described the footage as "bizarre" but declined to make any further comment, while others on social media called it "sick" and "distasteful".

Speaking to the Pretoria East Rekord on Monday, Mokoape apologised for "everything that has happened" and said there would be no parties at the house.

Pistorius sold the property to mining consultant Louwtjie Louwrens last year for R4.5 million to help pay his legal fees.

The athlete is currently in Kgosi Mampuru II prison serving a five-year prison sentence for culpable homicide. A parole board hearing, expected to take place last Friday to decide whether he should be released under house arrest, has been postponed until 21 October. The board will apparently consult with the Steenkamp family before it makes its decision.

Oscar Pistorius: legal threat prompts parole board to action

09 October

Oscar Pistorius's prison parole board will meet today to reconsider whether he should be released following a warning from the his legal team.

The 28-year-old South African athlete has spent almost a year behind bars for shooting his girlfriend Reeva Steenkamp on 14 February 2013.

Pistorius's lawyers argued that he should have been allowed out of prison in August to serve the rest of his five-year sentence under house arrest.

They wrote to South Africa's Department of Correctional Services warning that they would seek an urgent court hearing if the parole board did not reconvene to make a decision promptly.

The prison's Correctional Supervision and Parole Board initially recommended in June that Pistorius should be released in August. However, the country's justice minister Michael Masutha stepped in at the last minute and accused the parole board of acting prematurely.

A Parole Review Board has since backed Masutha's claim that the decision to release Pistorius should not have been made as early as June.

The board said Pistorius must be "subjected to psychotherapy in order to address criminogenic factors of the crime he committed" and that "psychotherapy intervention" could be implemented whether or not he remains in jail.

According to South Africa's Network on Reducing Reoffending, an offender's "criminogenic" needs are usually associated with changeable factors that can be targeted to reduce the risk of reoffending, such as altering anti-social attitudes, increasing self-control and self-management, and improving positive "pro-social" skills.

The case was then referred back to the Correctional Supervision and Parole Board, but until today it was unclear when the board would meet to decide Pistorius's next move.

Earlier this week, the BBC suggested the ruling was unlikely to be made before the athlete faces a separate legal appeal against his conviction on 3 November in Bloemfontein.

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