Why the State Got Its Pistorius Prosecution Strategy Wrong

While the Oscar Pistorius trial didn't grab my attention, the judgment did, because to be honest I could not see how the judge could come to the conclusion she did based on the proper application of the law to the facts as she had found them, as I wrote about at the time.

I was pleased then to hear this morning when I woke up that the State's appeal against the not guilty murder verdict had been allowed. The basis of the appeal was that Judge Masipa had erred in applying the principle of dolus eventualis - the very point that had troubled me about her judgment.

Here is how The Guardian liveblog summed things up:

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On short, the Supreme Court has affirmed what I wrote at the time: the prosecution decision to try and prove that Pistorius intended to kill Reeva Steemkamp just played into his hands and allowed him to cloud the issues (which his team successfully did), when they didn't need to. It certainly would have been a less dramatic trial and made worse television, but state counsel are not paid to be entertainers.

All they needed to do was to prove that Pistorius fired into the bathroom having foreseen the possibility that doing so might kill whoever was in there.

As I wrote back in April of last year, the Pistorius defence was essentially to create confusion and cloud the issues, which they successfully did.

Well no. In terms of a legal defence he either killed her accidentally, or he killed her after mistaking her for an intruder. If he killed the person behind the door accidentally it makes no difference if it was Reeva or an intruder. If he mistook her for an intruder, then when he shot he didn't do so accidentally; the question then becomes could he have reasonably come to the conclusion that it was permissible to shoot through the closed door in an act of self-defence. His gun ownership exam suggests not.

My own, admittedly superficial, impression is that Pistorius doesn't really have a defence, and the whole show, both prosecution and defence, is mostly about theatrics. "The gun went off in my hand" is the murder equivalent of "the dog ate my homework". I cannot see at all how the judge would find that he could have come to the conclusion that firing through a closed toilet door was a necessary and reasonable response to a perceived attack. (On a side note, it strikes me that the examination, as well as being designed to educate gun owners is also probably designed to make them legally culpable if they use excessive force).

So what has he left?

Unfortunately, because of the prosecution's misguided strategy on focusing on the person of Reeva, they created room for the defence strategy to work.

Whether you agree or not with the principle that the State should be allowed to appeal, in this instance the correct verdict was not arrived at at the first instance.