PISTORIUS TRIAL - COMPARING USA AND SOUTH AFRICA

PISTORIUS TRIAL -  THE AMERICAN AND SOUTH AFRICAN JUDICIAL SYSTEMS

The trial in South Africa of Oscar Pistorius, “The Blade Runner”, who captivated the world by overcoming his disability of having two artificial legs and who actually performed well enough to compete in the open Olympic Games as well as winning several Gold Medals in the Paralympics, has begun. The world was his oyster as he chalked up gold medal after gold medal. His achievements were accompanied by garnering lucrative sponsorship after sponsorship. His relationship with the celebrity model and actress Reeva Steenkamp looked like it was made in heaven till one terrible night he shot and killed her. He claims he mistook her for an intruder and the prosecution alleges cold blooded murder.

To American TV viewers the subsequent  Pistorius trial in South Africa has to have a surreal feel about it. One has not the vaguest idea of whether he is guilty or not. No-one is dissecting the process as it happens and one is left having to digest what appears to be unconnected information. In the USA, in a trial that features an international celebrity and one of the most desirable and upcoming models and actresses in a country, the background data of all and sundry, accused, the victim, their families, the witnesses, the evidence and all the other circumstances surrounding the tragedy would have been the fare of nightly talk shows for months preceding the trial. Lawyers, ex judges, pathologists, ballistic experts and the like would be interviewed on a daily basis as evidence becomes prematurely available.  

What is more after each day’s evidence these selfsame experts would be questioned as to what impact the daily proceedings would have on the outcome of the trial. Everyone would have an opinion as to Pistorius’s guilt or innocence.The rationale for the American approach is the constitutional right to free speech, regardless of the circumstances and outcome.

None of this can happen in South Africa and most other countries in the world because of the sub judice law. The latter law forbids any discourse on the merits of any case that is awaiting a trial or if the trial is in process The reason for this is that nothing can be debated that could influence the decision makers in a trial - judge or jury. (This even though juries were abolished in South Africa in 1969). Also it is considered impossible to make any judgement till every bit of  evidence is heard and has been subject to cross examination. The sub judice law is very strict and no media person would dare run a piece on whether a bit of evidence points to the guilt or innocence of the defendant. Contrast that with the celebrity trials in the USA such as OJ Simpson or the recent Zimmerman trial for example. There were in depth commentaries and discussions on every possible bit of evidence before and during the trial. In South Africa there is no Nancy Grace, Court Channel, Greta Fox, Alan Dershowitz, Mark Gerogas, Jerry Spence, Jeff Tobin and the like filling us in on the significance of every nuance of the court proceedings and its possible implications in favor of the defense or prosecution.

Another major difference between the South African court procedures and the American is that it is irrelevant what the victim’s family’s opinions are about the issue.  Pistorius’s alleged crime is against the State not against the Steenkamp family. What the latter feel is not pertinent to the merits of the case or sentencing should that be the issue. The Steenkamp family recognizes this and all they want is answers and justice.

THE TRIAL

Like all trials much is about interpretation of the evidence. For example, screams are heard - are they the screams of a terrified Steenkamp or are they the cries of a distraught Pistorius? At the time of  the cross examination of those that heard them no-one can comment. The relevance of the screams and when they occurred in relation to the gunshots are crucial as to which theory is correct - Pistorius’s or the Prosecution’s. The interpretation of all this has to wait till all the evidence has been heard and weighed. Contrast that with the Zimmerman trial for example where the screams were analyzed from the get - go, by family members and panelists as to who may have uttered them. The tv audience chimed in as the cell phone record was played again and again.

The prosecution’s theory is that Pistorius, who allegedly had a violent temper, shot and killed Steenkamp during an argument. In order to bolster their characterization of him as trigger happy they are simultaneously charging him with three unrelated counts of  firearm “abuse”. Much of the earlier prosecutor’s early evidence has been devoted to these charges in an attempt to establish Pistorius as an individual who had a temper and fired his gun in inappropriate settings. On the other hand the defense are trying to establish the narrative that Pistorius would and has acted in a similar manner in the past to the possibility of an intruder. Also the defense has attempted to use prosecution witnesses to corroborate Pistorius’s timeline of the events of that fateful evening.

The trial is set to last at least three weeks and will hinge around technical evidence. There are cell phones involved and these have GPS equipment in them and are crucial to who was where and when during the alleged altercation. Also did Steenkamp call or attempt to call anyone in that crucial time frame? What was the angle that bullets went through the door will corroborate or not corroborate Pistorius’s story that he rushed out of bed without his prosthetic legs before shooting through the toilet door. At what angle did the cricket bat hit the door while breaking it down? None of this evidence has been released previously so that it cannot even be the subject of talk shoes and be debated in the public arena. 

CHARGES AND OTHER DIFFERENCES BETWEEN USA AND RSA .

Much is made of in America of what the prosecutor charges the defendant with. Once a decision is made then it is extremely difficult to change the charge sheet. For example should an accused face a charge of murder and if it then transpires during the trial that there is not enough evidence to convict him or her, the prosecution cannot automatically fall back on a charge of manslaughter. The latter is equivalent to culpable homicide in South Africa and relates to the negligent killing of a victim without the intent of doing so. 

However, in culpable homicide/manslaughter the accused should have been reasonably aware that his negligent actions might lead to the death of an individual. In South Africa an accused can be charged with murder and failing that culpable homicide. So the prosecution does not have to make any agonizing choices that by overcharging an individual instead of with a lesser charge he or she might be able to go scot free.

What speculation there has been in the Pistorius trial devolves around the culpable homicide charge. The burden here for Pistorius is, will he be able to maintain that it was reasonable to fire shots through a closed door without ascertaining who if anyone was present as he must have known that he might kill someone even if that was not his intent. There is no “stand your ground” defense in South Africa. Similarly can Pistorius say he was doing this in self defense if all he had to do was keep out of the path of the closed door and resort to other activities to rectify the situation? A lot will then depend of Pistorius’s state of mind when firing the shots. 

If this was America the accused would have been asked why he did not call 911. However, in the South African context with an overworked police force there is greater reliance on private security firms that actually were involved in this tragedy. In fact the deceased Steenkamp was taken to hospital prior to the police getting to the scene.

SENTENCES AND APPEAL

In South Africa there is no death penalty but a mandatory 25 year sentence for premeditated murder. For culpable homicide, depending on the circumstances anything from probation to 15 years in prison. Unlike in America an appeal is not a right even in capitol offenses. The South African Judge has to accept that there is a reasonable chance that another court may come to a different outcome. Also unlike in America where appeals are routine bail is rarely granted in a capitol case pending appeal. In South Africa it may be granted even in a capitol case pending the outcome of the appeal. In South Africa if the Trial Judge refuses leave to appeal the defendant can petition the Chief Justice.           

OFFICERS OF THE COURT  AND THE COURT ITSELF.

In the United States all State Courts are entitled to hear all charges including that of murder. Thus a small County in the USA that rarely has a murder charge before it will try a murder case if it occurs in the Court’s jurisdiction. In South Africa there is a hierarchy of courts where lesser charges are heard in the Magistrate’s Court or the next Court above that the Regional Court. Murder cases are only heard in the Supreme or highest Court.The higher courts in the USA are for appeals and do not hear cases for the first time however serious the issue maybe. 

In the USA lawyers can participate in all types of cases in all types of courts. In South Africa the legal bar is divided into lawyers and advocates. The latter are the only ones that can actually argue a case in the Supreme Court. They are “instructed” by lawyers who play a lessor role in these courts. 

In South Africa, in what is the equivalent of a bench trial in the United States, the Judge may additionally be assisted by two accessors. The latter are usually appointed for their expertise in the issues that might be involved in the trial. The accessors are usually well recognized advocates and ultimately cannot outvote the judge. Their acquiescence or disagreement with the Judges decision is often noted when the verdict is given. In the US the Judge acts alone. Judges, unlike juries, issue lengthy reasons for their decisions. 

The Judge , Thokozile Masipi, in this trial is only the second black women, to be appointed to the higher Supreme Court in South Africa. Incidentally she has warned reporters not to approach her. This warning has to be for the large international contingent because no South African reporter would dream of trying to interview her. Initially she conditionally allowed TV in the court room but has suspended this, as well as simultaneous tweets and blogs, during some of the court proceedings. She has a reputation for being scrupulously fair. 

The chief counsel involved are considered to be the leading prosecutor and criminal defense advocate in the country. Both have been extremely successful to date in South African cases that matter. Both made gains in the preliminary hearings. The prosecutor, Gerrie Nel, in the bail hearing painted Pistorius as highly charged and capable of murder and drew Pistorius's whole story out of him in the latter's pursuit for bail. Defense advocate, Barry Roux, on the other hand annihilated the then lead police investigating officer and his shoddy police work, much like Johhny Cochran’s dream team did in the O. J. Simpson trial. The effect was the officer was taken off the investigation. Much of what the defense is doing now is ripping the investigation apart - so so reminiscent of OJ’s trial.

Pistorius to date has been very demonstrative during the proceedings. In a jury trial this could have a positive or negative effect but it is highly unlikely to impact on Judge Masipi’s assessment of the facts. 

Notwithstanding the potential newsworthiness of this trial it is unlikely to really grip America, like a local trial, as the viewers are left to their own speculations on the evidence with no interpretations emerging.