(MENAFN- Khaleej Times) Masipa could acquit if she accepts that Pistorius believed he was acting in self-defence when he pulled the trigger.Johannesburg - Eighteen months ago when he granted Oscar Pistorius bail after the killing of his girlfriend South African magistrate Desmond Nair noted a number of “improbabilities” in the Olympic and Paralympic star’s account of the shooting.
After 41 days of testimony and drama in the Pretoria High Court Pistorius’s freedom hangs on whether the prosecution has made its case well enough to convince judge Thokozile Masipa that such improbabilities cannot be “reasonably possibly true”. Possible verdicts range from convictions for premeditated murder and a minimum 25-year sentence or a lesser count of murder to culpable homicide - with a maximum 15-year sentence - if Masipa believes he did not intend to kill Steenkamp but did so by firing negligently or recklessly. Pistorius a double-amputee who made it to the semi-final of the 400 metres at the London 2012 Olympics says he fired through the door into the toilet cubicle in the mistaken belief he was defending himself from a burglar.
Why Nair had asked did Pistorius not find out who was in the toilet before firing four 9mm hollow-point rounds
And why did Reeva Steenkamp not let him know she was there
With Pistorius the only direct witness much of the state’s case rests on forensics including evidence that the sequence of Steenkamp’s injuries would have allowed her to cry out and on the testimony of neighbours who say they heard the terrified screams of a woman immediately before and during a volley of shots.
The defence says the screams came from Pistorius at an unusually high pitch for a man because of the distress of discovering that he had unwittingly shot Steenkamp. Here are the key questions that might determine his fate:
Who decides Pistorius’s innocence or guilt
South Africa does not have jury trials so the verdict will largely come down to Judge Thokozile Masipa.
However in this case the judge has been given two “assessors” Themba Mazibuko and Janet Henzen-du Toit as aides. If the pair both disagree with Masipa’s decision they could choose to overrule her on matters of fact.
Did the trial produce any ‘smoking gun’
Not really. Both defence and prosecution were arguably more effective when dismantling their opponent’s case than building their own.
But while in the dock Pistorius appeared to change his defence from saying he shot at Steenkamp through a locked door in self-defence thinking she was an intruder to saying he fired “accidently”.
Masipa and her colleagues will have to assess reams of evidence from dozens of witnesses but ultimately it may all come down to just one person’s testimony.
“It would largely come down to what she thinks of Oscar’s testimony and how good he was as a witness” said lawyer David Dadic adding that the change of defence “would hurt him”.
Evidence related to previous gun charges against Pistorius could also prove important. “His character was brought down because of those lesser charges” said Dadic.
Can Pistorius avoid conviction
Pistorius has admitted he killed Reeva Steenkamp but the judge’s understanding of his motive and mind-set will decide if that is viewed as a criminal act.
To find him guilty of murder the state must have proved there was a direct intention to kill.
“He could also be found guilty of culpable homicide if the court finds that there was an indirect intent to kill” said Dadic. “The judge would find it hard not to find him guilty of anything.”
Pistorius’s lawyers tried to argue that his disability bred a sense of insecurity that made him shoot wildly at a perceived intruder.
But Dadic said “to acquit him based on his disability would set a bad precedent.”
Will he go to jail
If found guilty the judge will prescribe a suitable sentence based on the evidence and mitigating factors put forward by the defence.
“There is no prescribed sentence unless he is found guilty of premeditated murder which carries a 25 year term” said Dadic. “For culpable homicide he might get anything from a suspended sentence to a jail term.”
Will he appeal if found guilty
Almost certainly yes according to sources familiar with the case.
“The trial is the first leg of a multi-legged legal process. It’s just the beginning” said Dadic.
“If he gets a jail term on any of the charges he can appeal. The appeal process can take years.”
“I don’t believe Oscar will go to jail until he has exhausted all the legal avenues available to him including the possibility of going to the constitutional court.” Prosecutor Gerrie Nel known as “The Pitbull” painted a picture of Pistorius 27 as a gun-obsessed hot-head who killed Steenkamp 29 in a fit of rage after a row in the early hours of Valentine’s Day last year.
Pistorius and his representatives have made no comment outside the trial since it started in early March other than to thank friends family and supporters.
No jury South Africa’s apartheid government scrapped trial by jury in the late 1960s meaning that 66-year-old Masipa only the second black woman to rise to the bench will ultimately decide Pistorius’s fate when she delivers her verdict on Thursday.
Possible verdicts range from convictions for premeditated murder and a minimum 25-year sentence or a lesser count of murder to culpable homicide - with a maximum 15-year sentence - if Masipa believes he did not intend to kill Steenkamp but did so by firing negligently or recklessly.
She could acquit if she accepts that Pistorius believed he was acting in self-defence - known formally as ‘putative private defence’ - when he pulled the trigger.
“This case is about the credibility of Oscar Pistorius” said Johannesburg-based advocate Riaan Louw. “If he’s not a credible witness and the judge does not accept his testimony he’s going to be convicted on either murder or culpable homicide.”
Pistorius gave five days of cross-examination in April under the gaze of the world’s media.
By turns calm tearful and combative at one point he appeared to confuse the central pillar of his legal defence under questioning from Nel. Having argued that the killing was a deliberate but mistaken act of self-preservation he then said he had pulled the trigger without thinking - an assertion that would match a so-called automaton defence but not self-defence.
Three times when under pressure during cross-examination Pistorius blamed his legal team for differences between or omissions from the sworn affidavit prepared for his bail deposition and his evidence in court.
“When it starts happening regularly like this and every time you get a difficult question you blame it on your lawyer the judge is going to make a very careful note” Johannesburg-based criminal defence advocate Mannie Wits said.
There were other inconsistencies in his evidence including an admission that he had not after all left the bedroom to get a fan from the balcony - contradicting his bail deposition in which he said it was during this absence from the bedroom that Steenkamp must have gone to the toilet.
If the judge accepts his testimony and agrees that the shooting was self-defence she must still decide whether shooting four times at an unidentified target on the other side of a closed door is legally “reasonable”.
After the end of apartheid in 1994 South Africa tightened its gun laws such that a person can shoot only if there is an imminent and direct threat - a principle Pistorius said he had read and understood as part of his firearms licence test.
“He knew there was a human being in the toilet. That’s his evidence” prosecutor Nel said in closing remarks.
“His intention was to kill a human being. He has fired indiscriminately into that toilet. Then M’lady he is guilty of murder. There must be consequences.” For more news from Khaleej Times follow us on Facebook at facebook.com/khaleejtimes and on Twitter at khaleejtimes Follow khaleejtimes ->
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