Pistorius could still face jail even if acquitted of girlfriend's murder
Published 03/03/2014 | 02:30
IT could all hinge on the toilet door.
Oscar Pistorius goes on trial for murder today, but some experts not involved in the case say the double-amputee runner could still be vulnerable to a homicide conviction even if he is acquitted of murdering his girlfriend.
That's because, they say, he violated the most basic tenets of gun-handling by shooting into a closed door without knowing – at least, by his account – who was behind it.
South Africa's criminal justice system and gun culture will be under a global spotlight during the Pistorius trial, which has some parallels with the OJ Simpson case in the US 20 years ago.
But in one glaring difference, Pistorius acknowledges he killed the victim.
The Olympian says he thought Reeva Steenkamp was a night-time intruder in his home in the early hours of February 14 last year. The prosecution maintains he intentionally shot her several times in the bathroom after an argument.
"They don't have to prove that this glove belongs to OJ Simpson because it fits his hand," said Marius du Toit, a former prosecutor, magistrate and now criminal defence lawyer.
Mr Du Toit was referring to the leather glove that was found at the scene where Simpson's ex-wife and a man were killed in 1994. The glove seemed too tight when Simpson tried it on in court, prompting a defence lawyer to say: "If it doesn't fit, you must acquit." Simpson was acquitted by a jury.
But prosecutors in the Pistorius case have an edge, said Mr du Toit: "Any person that has admitted to killing another person in circumstances when your actions are unlawful will face a steep hurdle in getting off scot free."
South Africa has stringent laws regulating the use of lethal force for self-protection. In order to get a permit to own a firearm, applicants must not only know those rules but must demonstrate proficiency with the weapon and knowledge of its safe handling, making it far tougher to legally own a gun in South Africa than many other countries.
Pistorius took such a competency test for his 9mm pistol and passed it, according to the South African Police Service's National Firearms Centre. He therefore should have known that firing through a closed door cannot be viewed in South African law as an accident, according to Andre Pretorius, president of the Professional Firearm Trainers Council.
Criminal law experts believe that if the prosecution fails to prove premeditated murder, firing several shots through a closed door could bring a conviction for the lesser charge of culpable homicide, a South African equivalent of manslaughter. Sentences in such cases range from fines to prison.
Another key piece of evidence will be the blood spatter analysis on the inside of the toilet cubicle, according to JC de Klerk, a ballistics expert who used to work for the South African police. He said it could give an indication of Ms Steenkamp's position when she was shot, including whether she was sitting on the toilet, or hiding behind the door as prosecutors likely suspect.
The "back spatter and front spatter" could also indicate the sequence of shots as they hit Ms Steenkamp and whether there were exit wounds, Mr de Klerk said.
But such hard data and other factors, such as the trajectory of the bullets when they were fired, cannot support Pistorius's argument that he was responding to what he thought was an imminent threat.
"It's only him," Mr de Klerk said. "We're only going to rely on what he actually says. There's no scientific evidence that's going to prove that his life was in danger."
Other key evidence could emerge from the mobile phones of Ms Steenkamp and Pistorius that were found in his house.
South African prosecutors have sought help from Apple officials to access the locked iPhone of Pistorius, who said he forgot the password.
Trial judge Thokozile Masipa, who will decide the verdict, will be assisted by two assessors, described by Justice Edwin Cameron of South Africa's Constitutional Court as "often highly experienced people, often retired regional court magistrates who have dealt their whole professional lives with criminal cases."
South Africa abolished the jury system in 1969 following arguments that whites-only juries during apartheid would be unlikely to deliver fair verdicts, involving, for example, a white perpetrator and a black victim.
"It was a system riddled with racism, as it was in the American south," Mr Cameron said.
Race is unlikely to be a factor in the Pistorius trial, say experts, who suggest the case is likely to focus on the forensic evidence surrounding the toilet door, data from cell phones and on the character of the defendant.