Judging by
the ferocity with which Gerrie Nel pursued a case of "planned and
premeditated" murder against Oscar Pistorius at his bail hearing, it would
not be unreasonable to assume the state had a strong case. From the outset,
however, the veracity of the state's case appeared to dwindle.
At the bail hearing in February, the then-lead investigator Hilton
Botha crumbled on the stand and had to concede that there was little
appreciable evidence gathered to back up the state's claims. Worse, he admitted
serious breaches of investigation protocol, including the failure to wear
protective foot coverings at the crime scene, thereby contaminating certain
forensic evidence. Botha also had to concede that Pistorius' version of events
was not implausible.
This of course did not help Pistorius in the court of public
opinion, as once the state's sensational claims were made they were immediately
disseminated around the world. Nonetheless, much of the state's case was
castigated by Magistrate Nair in his unusually long bail decision.
Adding to the perception that the state's case is floundering, on
Tuesday, rather than presenting their charges to which Pistorius would plead,
the state requested a two-month postponement to conduct further investigations.
This equivocation is in stark contrast to their initial aggression at the bail
proceedings.
The most interesting part of the postponement hearing was the
stark warning the magistrate issued to the media and the state to act
responsibly and avoid "scandalising the sanctity of justice" through
a "trial by media."
Clearly he was referring to the leaked photographs of the crime
scene which were recently published. The leaking of these pictures, as well as
reports in local newspapers that numerous police cellphones have subsequently been confiscated, adds to the
perception that the state is mismanaging this case.
This
begs the question: considering a litany of state missteps and the wild public
speculation triggered at the bail proceedings, can Pistorius get a fair trial?
Regarding his eventual trial in a court of law, the answer is
clearly "yes."
South Africa abandoned trial by jury in 1969. Pistorius' trial
will thus be presided over by either a regional magistrate or a high court
judge, possibly assisted by assessors. Judicial officers in South Africa are
highly skilled and experienced and are keenly aware of their responsibility to
apply the law in an impartial manner, guided by the evidence presented in
court, not discussions occurring outside court.
This much was inherently acknowledged by the magistrate's warning
yesterday -- he did not focus on the fairness of the trial being damaged but
rather the sanctity of the justice system being called into disrepute.
However, Pistorius is unlikely to fare as well in the court of
public opinion.
To many South Africans Pistorius' story of triumph over adversity
came to symbolize the country's own story. His personal fallibility has thus
touched an uncomfortable nerve, reminding the country of its own fallibility,
and leading to an angry backlash. To this segment of society Pistorius is
already guilty of murder -- irrespective of what the evidence ends up
revealing.
The state's bungles have only served to fuel the determination of
Pistorius naysayers: if he is acquitted of murder it will not be put down to
the fact that he was telling the truth, but because the state dropped the ball.
This stance fails to acknowledge that even the best-run cases can
result in an acquittal when the facts, as revealed through the evidence
gathered, end up supporting an acquittal.
So where does the evidence currently point? It is simply too soon
to tell. What we can ascertain is what evidence is likely to become pivotal.
For example, the question of whether or not Pistorius was wearing
his prosthetics is critical. Thus the ballistics evidence will be critical. The
state appears to be relying on a contention that he took the time to put on his
prosthetics before firing through the bathroom door. This, they claim, shows
premeditation.
The defence has claimed he was not wearing his prosthetics, which
left him feeling particularly vulnerable to a suspected intruder, thus flooding
him with fear.
The evidence at trial will eventually support one of these
versions over the other. Before that evidence is offered in court, the public
cannot be clairvoyant -- despite firmly held beliefs either way, we simply
don't yet have enough information to know the truth.
This is the purpose of a criminal trial, it is essentially a
truth-finding mission and the rules of evidence and procedure are set up to
enhance this.
Hilton Botha, now retired from the police service, would do well
to remind himself of this. He has given interviews to the media vociferously
claiming Pistorius' guilt and affirming that he will be called at trial to
testify for the state. With respect, more is required than a policeman's hunch
to convict a person of murder. If he is trying to serve the interests of
justice, rather than merely grinding an axe, he would do well to stop talking
to the media and save his words for court.
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