Thursday in Pretoria, South Africa, Oscar Pistorius was to learn his fate. Instead, he only got part of the story from Judge Masipa. Pistorius will return to Court on Friday to learn whether he will be convicted for killing Reeva Steenkamp. So what happened Thursday? Lets break it down. The Charges The issue being determined at trial was whether Pistorius killed Steenkamp intentionally, or as Pistorius alleged, he killed her by accident believing her to be an intruder. There were three layers of charges for the Judge to consider: premeditated murder, murder and culpable homicide. Judge Masipas job was to start with the most severe charge (premeditated murder), and if the prosecution failed on that one, move on to the next charge. Premeditated Murder Premeditated murder requires intent to murder plus planning the murder. Premeditation is reserved for robust planning and doesnt capture an intent that materialized right before a crime was committed. In order to establish this charge, you need some planning ahead of time. Judge Masipa correctly concluded that Pistorius should not be convicted of premeditated murder. Frankly, there was no chance the prosecution was going to meet with success on this one. While this was a domestic dispute gone terribly wrong, there was no planning element. On to the next charge. Murder Since there was no conviction on premeditated murder, Judge Masipa went on to consider the next charge on her list, namely, murder. To make out murder, the prosecution had to show that Pistorius intended to kill Steenkamp that night. So its like premeditated murder without the planning component. This is where Judge Masipa surprised a lot of people (and got it wrong in my opinion). The totality of the evidence supported intent. However, Judge Masipa did not see it that way and opined that the prosecution failed to establish that Pistorius intended to kill his girlfriend. She went on to conclude that "on the murder charge, the evidence is purely circumstantial." Judge Masipa is correct that the evidence was "purely circumstantial," However, circumstantial evidence gets a bad rap. Convictions in the majority of criminal cases are secured by relying on circumstantial evidence (or evidence that relies on an inference to connect it to a conclusion of fact). Its unusual to get a confession or other direct evidence. This is why you look to the circumstances. The prosecution led by lawyer Gerry Nel presented strong evidence supporting intent. The prosecution called a number of witnesses, including Michelle Burger, Charl Johnson, Dr. Johan Stipp and Estelle van der Merwe, who testified that the lights were on and they heard arguing and screaming. Stipp recounted that he heard female screams that sounded like a woman "scared out of her mind." Burger described female screams as "petrifying" and added this: "I was sitting in bed and I heard her screams," Burger testified. "She screamed terribly and she yelled for help. I heard the screams again. It was worse. It was more intense. Just after her screams, I heard four shots. Four gun-shots... You could hear it was blood curdling screams. You cant translate it into words. The anxiousness in her voice, and fear. It leaves you cold. She screamed terribly and she yelled for help." This is important evidence because Pistorius alleged all along that the couple never talked after they went to bed at 10pm and the room remained dark. This is just the tip of the Pistorius iceberg. For an in-depth review of the evidence, please click here and here to read my previous articles on Pistorius. I also analyzed Pistorius testimony on my TSN radio show Offside. For that, click here and here to listen to my review of the case. Ultimately, in view of the evidence as a whole, it is exceedingly difficult to agree with her conclusion. Third and final charge: Culpable Homicide After Judge Masipa cleared Pistorius on premeditated murder and murder, she moved on to the third and final charge: culpable homicide. This charge means that Pistorius negligently killed Steenkamp (or that the killing was an accident). In a brief afternoon session, Judge Masipa addressed the test for culpable homicide: what would a reasonable person do in the same circumstances? Judge Masipa found that Pistorius had other options with respect to dealing with the perceived threat. He could have called security for help, which would have taken less time than shooting through the bathroom door four times. As well, when the intruder entered the bathroom, he was actually closer to the balcony and could have used that opportunity to call for help. Judge Masipa then concluded that Pistorius was indeed negligent: "Pistorius had time to think and consider his actions. Im satisfied his actions werent that of a reasonable person. He acted too hastily and used excessive force. His conduct was negligent." Just as Judge Masipa was prepared to announce her decision on culpable homicide (which seemed like a conviction), she adjourned for the day. It was only 2:28pm; there was still time. It was an abrupt end reminiscent of The Sopranos series finale. Friday Judge Masipa will return to court on Friday to reveal her ruling on culpable homicide (as well as the lesser gun charges). Then, and only then, will we know if Pistorius will be convicted. Prison Time and Sentencing Premeditated murder calls for a compulsory life sentence, while murder results in a compulsory sentence of 15 years. But that doesnt matter any longer since these charges have been tossed. On culpable homicide, the legislation does not provide for specific prison time. Rather, the sentencing is discretionary (varies from fines to prison time), although its not unusual to see prison time in South Africa of 5-10 years for this type of crime. Still, given its discretionary nature, it is possible that Pistorius will not face any prison time. As I noted in my @EricOnSportsLaw Twitter account, its possible that Judge Masipa adjourned early to allow the sides to reach a deal. Just an unenthusiastic theory though. Ultimately, this would be a surprise development. If Pistorius is convicted on Friday, he will not be sentenced. That happens later at a sentencing hearing, where both side argue as to the suitable length of Pistorius jail time. Laremy Tunsil Jersey
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