What is Murder ?

It seems to be that the general public, and indeed many people who should know better, often fail to understand the meaning of this ancient word.

Murder is the unlawful killing, with malice aforethought, of another human, and generally this premeditated state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). (Wikipedia)

The key point that is often overlooked is “malice”. Malice implies some motive for personal gain, for example to eliminate a witness to an earlier crime, robbery, financial gain, to escape capture or to take revenge for some percieved wrong.

I believe people often only focus on the physical act  (“actus reus”) and forget the essential mental element (“mens rea”).

In law, the prosecution is generally not required to prove motive, but I sometimes wonder if this is a big mistake. If no rational, malicious motive can be established, then should we call a killing murder at all, but instead declare it to be manslaughter?

In the case of Oscar Pistorius, the South African authorities have opted to appeal the conviction for manslaughter, asserting that a murder verdict should have been returned. But it is abundantly clear that Pistorius had no malicious motive, he simply made an extremely tragic error, using force that was not justified, due to an irrational fear. There is no need for further analysis.

Similar considerations apply to women who have reacted with excessive, disproportionate force in situations where they have become terrified for psychological reasons. A person acting out of fear, should never be charged with murder, however unreasonable their actions may be, if a malicious motive is not evident.

That’s the memo.

See also Instrumental versus Expressive violence

Oscar Pistorius and the Culpable Homicide verdict

I have hesitated to comment so far on the verdict. However from the wikipedia article on the trial, I read:

The defence of Pistorius was that, in shooting at what he believed to be an intruder, he mistakenly believed he was acting in self-defence, and as self-defence excludes the unlawfulness requirement of criminal liability, an act in valid self-defence is lawful. Technically his defence amounted to a claim that he did not intend to act unlawfully. If he could raise a reasonable doubt in his favour that he was mistaken, as he claimed, he is entitled, under South African law, to an acquittal on the charge of murder. The court then considered whether this mistake was reasonable – one that a reasonable person, in his circumstances, may have made.

If this is correct, the test is NOT whether Oscar could have acted differently, but whether a reasonable person, in his circumstances, may have made the same mistake.

I fail to see how this possibility can be excluded. People make mistakes all the time. Unless there was Malice in the mistake Oscar made, I do not believe he should be held to have committed a criminal act. And I see no evidence of Malice, or any intent to act for his own gain, other than to defend himself and Reeva.

To me, the judge seemed mostly concerned with explaining how Oscar was not guilty of murder, and failed to explain adequately her reasoning on the proof beyond a reasonable doubt that he was guilty of manslaughter.

Just my lay opinion. I could be wrong.

Oscar Pistorius

“To err is human, to forgive divine.” — Alexander Pope

The death of Reeva Steenkamp on the early morning of Thursday, 14 February 2013, was undoubtedly a tragic event. Reeva was a beautiful, intelligent woman, aged 29, who had worked as a model and a paralegal, and was hoping to be a qualified legal advocate by the age of 30. The day before she died, she was preparing a speech on domestic violence, planning to use her growing fame to make a difference. She had cancelled a coffee date with her best friend, Gina Myers, to keep working on the speech. She had been dating Oscar Pistorius for just four months, and had chosen Valentine’s day to give him a card in which she declared her love for the first time. Inside the card she wrote

 “I think today is a good day to tell you that… I love you”

However Reeva never gave the speech, instead, shortly after 3am on the morning of 14th February, noises were heard by neighbours, and at 3:18am Oscar Pistorius called his friend and manager of the estate Johan Stander, pleading

“Please, please come to my house. I shot Reeva, I thought she was an intruder. Please, please come quick.”

He then made two further telephone calls, one to emergency services and then a very brief call lasting just 9 seconds to Estate security. He then  picked Reeva up and carried her down the stairs , where he was met coming down the stairs with Steenkamp in his arms by Johan Stander and Stander’s daughter. Stander testified

“He was broken, he was screaming, he was crying, he was praying, I saw the truth that morning”

Dr Johan Stipp testified that when he examined Reeva at around 3:25am, there was no pulse or signs of life, her pupils were fixed dilated and cornea milky, and had already started to dry out.

However, Pistorius was arrested, and according to Chief investigating officer Hilton Botha’s testimony at a bail hearing on 29th February, a witness had heard gunshots coming from Pistorius’ home, then a female screaming followed by more gunshots, suggesting that Reeva had been murdered.

Trial commenced on 3 March 2014. Witness  and neighbour Estelle Van Der Merwe testified in Afrikaans that she woke up at 1:56am to a woman’s raised voice for about an hour, followed by four loud sounds. She could not hear what was said, or even the language. She had put a pillow over her head and looked out the window on the opposite side of house, away  from Pistorius’s home facing open land at some point to see where voice was coming from but couldn’t ascertain the source. No other witnesses heard a raised voice.

Many witnesses heard screams coming from the house around 3:15am, and the defence case was that these screams were in fact Pistorius screaming for help and not Reeva. In summary Michelle Burger, Charl Peter Johnson, Dr Johan Stipp and Anette Stip all heard screams, which they interpreted as a woman or were not sure.

However, immediate neighbours Michael Nhlengethwa and his wife Eontle both testified they heard a man crying loudly in a high-pitched voice and calling three times for help. Another immediate neighbour  Rika Motshuane, insisted that she heard a man crying, describing it as a “cry of pain”.

Pistorius testified commencing 7th April that he had mistaken Reeva for an intruder, after hearing the bathroom window open, believing her to be in bed. After advancing on the bathroom, hearing a noise from inside the toilet, he had opened fire without thinking, firing four shots in a state of terror. After firing the shots, he waited for an indeterminate length of time, and then made his way back to the bedroom, where he could not locate Reeva. After an unsuccessful attempt to break down the toilet door, he put on his artificial legs, and broke down the toilet door with a cricket bat he had used to wedge the bedroom door shut ( the bedroom door having a lock that was not substantial ).

On 12 May, forensic psychiatrist Dr. Merryl Vorster testified that Pistorius had a generalised anxiety disorder (GAD). After a prosecution request, Pistorius’ mental condition was evaluated. The evaluation found that Pistorius was not mentally incapacitated, and did not find GAD, however the report largely confirmed the defence case, finding that

 “Mr Pistorius has been severely traumatised by the events that took place on 14 February 2013, He currently suffers from a post-traumatic stress disorder, and a major depressive disorder … The degree of anxiety and depression that is present is significant. He is also mourning the loss of Ms Steenkamp. Mr Pistorius is being treated and should continue to receive clinical care by a psychiatrist and a clinical psychologist for his current condition. Should he not receive proper clinical care, his condition is likely to worsen and increase the risk for suicide.”

 The report found some jealousy but no evidence of abuse by Pistorius:

“There is evidence to indicate that Mr Pistorius was genuine with his feelings towards Miss Steenkamp and that they had a normal loving relationship. He did become insecure and jealous at times but this was normal for the specific situation. He would express his displeasure and irritation but would try and sort it out later by talking with Miss Steenkamp. Although the relationship was still young, there were no signs of abusive coercion like those often found in these kinds of relationships.”

The defence case was reinforced by the many factors that could have disposed Pistorius to fight rather than flee when confronted by a perceived intruder.

• Experiences from childhood, his mother kept a gun under her pillow
• High rates of crime generally in South Africa
• Pistorius’ inability to flee due to not having his prosthetic legs on
• His strong desire to protect Reeva
• The bedroom door being locked
• Sprint athletes are trained to react to the noise of a starting gun
• Incidents at the Estate where Pistorius lived
• Violent incidents which Pistorius had experienced prior to shooting Reeva

The prosecution case was apparently that Pistorius had shot Reeva shortly before making the call to Johan Stipp, and the sounds which the defence attributed to the cricket bat breaking down the door were actually the gun shots.

There appear to be numerous problems with this prosecution case:

• While the prosecution has sought to portray Pistorius as hot-headed, there is no evidence of abuse, as confirmed by the psychiatric reports.
• There is no evidence of an argument, other than from Van Der Merwe, who apparently heard an unrelated event.
• The time from when witnesses heard a second series of loud bangs to the time at which Pistorius called Johan Stipp is not sufficient for Pistorius to have performed all the necessary actions. Immediately after the last set of loud bangs, Pistorius was heard calling loudly for help, and he then made the series of telephone calls.
• Especially significant is an unopened Valentine’s card Reeva gave to Oscar, telling him for the first time that she loved him.This indicates the relationship was at an early stage, far too early for a major argument to be plausible.There is no evidence of a progression of violence, or that Oscar had ever been verbally or physically abusive to a woman.His character generally is exemplary, performing charitable work for the disabled, and also helping victims of crime on two occasions.
• Forensic evidence given by prosecution expert witness Johannes Vermeulen, a police forensic analyst, shows that the door was struck by the cricket bat after the gun shots were fired:

Roux: What’s your view, was the door hit after the shots?
Vermeulen: My lady, in my view the door was hit after the shots. There is a crack here. There had to be a hole in the door, otherwise the crack would have gone straight through.
Roux: You explained the crack that ran down into a hole and then down to a different place.
Vermeulen: Yes, My lady. I have quickly drawn a picture to show you. There is a crack coming into the bullet hole. The crack goes out on the left hand side of the bullet hole. That is why I say the bullet hole was there before the crack.

• It is agreed that Pistorius was not wearing his artificial legs when the shots were fired. It seems unlikely that he could have broken the door while on his stumps, as he is barely able to balance, let alone wield a cricket bat with force. It seems very implausible that he would remove his artificial legs solely to fire the shots, and then put them on again before carrying Reeva down the stairs.

In my opinion, the prosecution has failed to prove  beyond a reasonable doubt that Pistorius intended to kill Reeva, and there is substantial evidence that indicates that this was in all likelihood a tragic accident.

On Thusday, 3rd July, the court adjourned until Monday 7th July, to allow the prosecution to prepare possible further cross-examination of defence witness Wayne Derman, professor of sport and exercise medicine at the University of Cape Town, reportedly the last witness for the defence.

Support for Oscar Pistorius has grown steadily, with membership of a grass-roots Facebook group discussing the trial growing from a handful to over 4,600 members as  the trial has progressed. A poll of members showed that more than 75% are of the opinion that Pistorius did not know that Reeva was in the toilet when he opened fire.

Update: On 8 July, the defence closed its case. Defence lawyer Barry Roux protested “We were unable to call a number of witnesses because they refused, and didn’t want their voices heard all over the world.” Closing arguments were scheduled for 7 and 8 August. Via http://en.wikipedia.org/wiki/Trial_of_Oscar_Pistorius.

See also How did Oscar Pistorius’ defence fare? by Andrew Harding, BBC news, 8 July 2014.