Chase Your Shadow

by John Carlin

  Judge Masipa returned to her chair and, in familiar vein, said the onus was on the prosecution to persuade the court that ‘in the interest of justice’ bail should not be extended. She found that the prosecution had failed in this regard. As to events at the nightclub, her only comment was that should there be any future incident that might bring into question Pistorius’s right to continue to be free on bail, the state would be free to re-examine the question. However, she said, ‘I have used my discretion in favor of the accused. I grant the application to extend the bail of the accused on the same conditions.’

  One last matter remained. The date for sentencing. Under South African law this would not be a straightforward matter. The defense would have an opportunity to submit arguments, to which the prosecution would have the opportunity to reply, in mitigation of sentence. In other words, the defense would seek to advance reasons, chiefly related to Pistorius’s character, why the judge should exercise leniency. A culpable homicide conviction allowed the judge wide discretion in terms of sentencing: everything was possible, from community service, to a suspended sentence, to a maximum of fifteen years in jail. Roux would be bidding for the lowest possible sentence, Nel for the highest.

  The judge set the date for October 13, with the expectation being that the matter would be addressed over three or four days, after which she would take an as yet unspecified amount of time before delivering her final ruling.

  Judge Masipa stood up, bowed, left the chamber and Pistorius was at last able to celebrate. Aimée rushed to embrace him, as his uncles, aunts and cousins waited in line to embrace him, too. The last to do so was Henke Pistorius. Father and son had been estranged for six years and when they had met in court a month earlier their body language had been awkward. But not this time. The embrace, tight and heartfelt, smacked of a well-timed family reconciliation.

  Pistorius was cheered by a crowd of young men and women when he left the court building, but, as soon became evident on social media, a large section of the general public refused to reconcile themselves to Judge Masipa’s verdict. No matter what the judge had concluded, many continued to believe that he was a murderer. Among them, the Steenkamp family, who gave an interview to America’s NBC television on the very day the judgment was delivered. ‘I just don’t feel that this is right,’ June Steenkamp said. ‘They believe his story and I don’t believe that story . . . He shot through the door and I can’t believe that they believe that it was an accident.’ Barry Steenkamp said their disbelief was shared ‘by everyone in the world’.

  Not everyone in the world, but some of the South African newspaper headlines – ‘Oscar Dodges Bullet’, ‘Oscar’s Great Escape’ – and the responses on Twitter certainly indicated that the Steenkamps’ dismay was widespread. Typical examples were: ‘Speechless. Rest in peace, Reeva, sorry there is no justice and no closure for your family’; ‘If I feel completely depressed about #OscarPistoriusJudgement I cannot imagine how Reeva’s parents must feel’; ‘Oscar Pistorius has been found NOT guilty? He killed his girlfriend! Is this is a sick joke?! #JusticeForReeva’. Trevor Noah, a well-known South African comedian, tweeted simply: ‘O. J. Pistorius’.

  Judge Masipa came under especially heavy attack, not least from the American billionaire Donald Trump who, getting the spelling of Pistorius’s name wrong, saw a parallel with the controversial O. J. Simpson case. Trump entered the spirit of Twitter mob justice by posting a message that read, ‘The judge in the Oscar Pistorious case is a total moron. She said he didn’t act like a killer. This is another O. J. disaster!’

  Masipa was abused on social media not only on account of what people like Trump considered to be her mental and physical deficiencies – ‘she is blind and deaf’ – but also because she was black and a woman. She even received threats. One Twitter posting carried a photograph of youths with axes and spears in their hands and a message that read: ‘Outside Masipa’s house tonight. #OscarTrial. We just wanna clear a few things.’ As a consequence of other messages in a similarly menacing vein, police officers were stationed outside her home.

  Three respected South African legal organizations – the Legal Resources Centre, Section27 and the Centre for Child Law – issued a statement two days after the judgment in response to the abuse hurled at Masipa.

  ‘Due to the high-profile nature of the Pistorius case, it was inevitable that many people, both within South Africa and internationally, would form strong opinions regarding the judgment that should have been reached in the matter,’ the statement said. But there was a difference between criticizing the judgment and criticizing the judge, which the statement ‘strongly condemned’. ‘Attacking and threatening Judge Masipa because she is black or because she is female is simply unacceptable and should not be tolerated in our current constitutional framework, where equality and non-discrimination are of paramount importance.’

  The personal attacks and the threats, like much of the criticism of the judgment, came from individuals with little understanding of the law and whose sense of how the trial should end had been shaped in large measure by a South African news media that was generally so blinded by bias against Pistorius that few noticed at the time just how contradictory or insubstantial had been the evidence of the sounds the neighbors heard, the ballistic evidence, and the WhatsApp messages.

  But various legal experts, often ones who had been offering running commentaries on the trial for the press or for the ‘Oscar Channel’, also weighed in against the judge. Martin Hood, an attorney who specializes in criminal firearms offences, was much quoted in the South African and international press. Hood said he was ‘disappointed and shocked’ by the verdict. ‘I think the judge has made some incorrect factual findings and applied the wrong legal tests,’ said Hood – who, two months before the verdict, had been telling the press that he thought Reeva’s killing had been ‘an intentional crime of passion’. ‘She should have found legal intent and found him guilty of murder,’ he said, adding condescendingly, ‘She got mixed up, unfortunately.’

  Some of the opinions offered by the commentators revealed a need to explain away their failure to anticipate the trial’s outcome. But that did not mean that the arguments against Judge Masipa’s verdict were all driven by bias or vanity. Her decision not to find Pistorius guilty of dolus eventualis murder did offer grounds for legitimate debate. As Pierre de Vos, a constitutional law professor at the University of Cape Town, wrote in his blog, ‘Given all the evidence presented in court about Pistorius’s knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed.’ Vos acknowledged that the prosecution had not made its case for premeditated murder, but expressed his opinion that dolus eventualis would have been the correct judgment. ‘To my mind,’ De Vos wtote, ‘the judge did not engage with this issue in sufficient detail to explain convincingly why she found that Pistorius did not have the dolus eventualis to kill an unknown person behind the toilet door.’

  De Vos’s position was widely shared among the South African legal community, where many had held the view since long before the trial began that, even on Pistorius’s own version, it was evident that he had shot to kill.

  But Judge Masipa did have her supporters in the legal world. One of them was Kelly Phelps, a senior lecturer in criminal law at the University of Cape Town, who said in a radio interview that the South African media, guilty of spreading ‘utter misinformation’, had set up unrealistic expectations regarding the judgment. She blamed this in part on legal commentators who were not criminal law specialists but had ‘pegged their names to the trial in order to get publicity’, and in part on the prosecution, whom she accused of leaking allegations to journalists that turned out to have no substance in fact. Among these were the reports that appeared in the press soon after Steenkamp’s death claiming Pistorius had killed her in a testosterone-fueled rage. The upshot, Phelps said, had b
een ‘a massive build of misperception within the public’. ‘It set up a convenient situation for [the prosecution],’ said Phelps, ‘that when they lost the case it was not the state that lost the case, but it was the judge who messed up the verdict.’

  In Phelps’s view the culpable homicide verdict was not only ‘predictable’, but ‘correct’. ‘It is the reason why all similar cases to this one generally get prosecuted as culpable homicide,’ she said. ‘They are not actually prosecuted as murder and I suspect that if in this case an offer of culpable homicide had been made from the state from the beginning, we probably would have avoided this trial, we wouldn’t have spent millions of rands of state resources on this trial.’

  One point Phelps made, on which most legal experts agreed irrespective of their views on the verdict, was that Judge Masipa had been courageous. To have opted for dolus eventualis would have calmed the more vociferous anti-Pistorius wing of public opinion and would probably have spared her the need for police protection at her home. The outcry may have been far greater, however, if the judge who delivered the culpable homicide verdict had been male and white. Aware of the accusations of racial favoritism that would have rained down upon him, a white, male judge might have been more inclined to tilt the balance in favor of murder. Whatever the case, having Thokozile Masipa presiding over his trial had turned out not to be a disadvantage for Pistorius, as his defense team had initially feared, but of significant benefit to him. Coming from a black woman, the judgment arguably had a degree of credibility it would not have had from a white man, thereby improving Pistorius’s chances of one day rehabilitating his public image. For some of his detractors, however, rehabilitation of any sort would always remain an impossibility.

  The absence of controversy over Judge Masipa’s more dramatic conclusion that no evidence had been supplied to back the contention that Pistorius had intentionally killed Reeva did not deter those who had convinced themselves from the start that the crime fell into the category of gender violence. The president of the ANC Women’s League, government minister Angie Motshekga, said the verdict had been ‘extremely disappointing’ and had failed ordinary women, who would now feel that the law was not there to protect them. The disappointment of the ANC Women’s League and other women’s organizations had its origins in their faith that Judge Masipa would use the Pistorius trial to send a message to society about the unacceptability of gender violence.

  Ranjeni Munusamy, of the online South African newspaper the Daily Maverick, wrote, ‘Because Judge Masipa was a black woman, there were assumptions that she would have more of an understanding of the imbalance of power relations between men and women, and the scourge of violence against women.’

  This line of criticism against Masipa revealed the degree to which people had presumed Pistorius to be guilty of the premeditated murder charge before he was proved innocent. So deeply ingrained had the belief become that it remained immune to the most incontrovertible part of her judgment – namely, that the evidence put forward alleging that he knew it was his girlfriend behind the door was extremely weak. It followed that the most likely conclusion was that the intruder Pistorius thought he was shooting at was a man. In previous trials, Masipa had been harsh on men who attacked women – notably in May 2013, three months after Pistorius had killed Steenkamp, when she handed down a life sentence to a man she found guilty of three rape charges. Even if she had convicted Pistorius of dolus eventualis murder, the verdict the vast majority of her critics clamored for, the issue of gender violence would have remained irrelevant and she would have been in no position to send the cautionary message that so many demanded.

  But controversy, whatever Masipa’s verdict, was inevitable. Pistorius was the only person who knew whether he had intended to kill Reeva or not, and while no meaningful evidence was forthcoming to show that he did know it was her behind the door, the suspicion would always remain in some people’s minds that he was lying. But on the much finer point to which the outcome of the trial was reduced, perhaps not even Pistorius knew – either at the time, or a year and a half later, or at any point in the future – whether in those split seconds when he had fired four bullets in quick succession he had had the unequivocal intention of putting an end to the life of a human being. Judge Masipa was faced with the necessarily subjective, and ultimately impossible, task of interpreting Pistorius’s thought processes in those moments – as the evidence left her no choice but to conclude – of fear and stress.

  Barry Roux had said privately months before the trial that in a case like this, on the evidence heard a judge could arrive plausibly at two entirely different verdicts. He would have been disappointed, but not amazed, had Masipa gone for dolus eventualis murder. Roux would have lodged an appeal, just as Gerrie Nel was expected now to appeal the culpable homicide verdict. The point was so finely balanced that it was entirely possible the Appeal Court would overturn Masipa’s judgment. They, like she, would offer their explanations in terms of legal precedent and all manner of technical interpretations of the evidence. But whatever verdict they might reach, it would still generate controversy because in this matter there could be no god-like final word.

  The sentencing hearing began, as scheduled, on the morning of October 13, with the usual cast of Steenkamp and Pistorius family members present. This time Barry Roux went first, leading the case for mitigation of sentence, seeking to persuade Judge Masipa to opt for the gentler of the wide range of possible sentences she had the discretion to impose. Roux’s mission in this trial within a trial was to save Pistorius from jail.

  Roux called his first witness, a psychologist called Lore Hartzenberg who had been seeing Pistorius for therapy sessions on a regular basis since February 25, 2013, acting, she told the court, as his grief and trauma counselor. Her role in the defense case was to demonstrate that the sorrow and remorse Pistorius had displayed in court had been genuine and, throughout the therapy sessions she had conducted with him, had remained unabated. Reading from a report she had prepared, Hartzenberg said that Pistorius lived in a permanent state of guilt; he felt worthless; he longed for the woman whose life he had ended. The ‘malevolent’ reports about him in the press had made his state of mind worse.

  Hartzenberg went on to describe the symptoms of Pistorius’s depression and post-traumatic stress disorder: ‘acute stress’, ‘flashbacks and mental images he will always carry with him’, and an irretrievable sense of loss. He had had big plans with Reeva, Hartzenberg said; he wanted to share a new home with her, to build a future together. ‘I see no healing yet,’ Hartzenberg said. ‘We are left with a broken man who has lost everything.’

  Pistorius, listening to his therapist reveal the secrets of their sessions together, looked the part. Once more, he looked bereft – head down, fighting tears.

  Roux’s purpose in bringing Hartzenberg to the stand was to try and persuade the judge that Pistorius had already suffered enough, and that he would continue to suffer for the rest of his days, in or out of jail. Gerrie Nel, cross-examining her, sought to demonstrate that, far from being broken, Pistorius cherished the idea of avoiding jail and picking up his old life where he had left it before killing Reeva. His intention, Nel suggested, was to resume athletic competition. Hartzenberg said she knew nothing of that, and that what she had heard from Pistorius, rather, was that what he would like to do should he obtain his freedom was to go and work at a rural school his uncle Arnold was involved with in Mozambique. Nel also tried to get Hartzenberg to concede that Pistorius’s love for Reeva had been only skin-deep, far from the intense and enduring dream of love he claimed to have found with her. But Hartzenberg would not budge.

  ‘He felt he had met the right person,’ she said in reply to Nel. ‘There has been a void after her. In his heart and mind, she was the one.’

  Nel’s tone was continually skeptical, at times sarcastic, but he made little headway with the woman who, with the possible exception of Aimée, had delved deeper into Pistorius’s mind than anyone else si
nce the shooting. Hartzenberg stood her ground as her cross-examination came to an end, Judge Masipa busily making notes throughout. The sense in the courtroom was that round one of the hearing had gone Pistorius’s way.

  The second witness Roux called was a social worker at the Department of Correctional Services – the prisons department – called Joel Maringa. Maringa was, like Nel, an employee of the state. He had studied Pistorius’s case, he said, and had written up a report in which he argued that Pistorius should not spend one day in jail. Maringa’s recommendation was that Pistorius, a first-time offender, should be placed under house arrest – or ‘correctional supervision’, as Maringa described it – for three years. Maringa recommended that Pistorius should be required to perform sixteen hours of community work each month, but that he should be free to return to training and even to resume his participation in athletics competitions. This last suggestion raised some eyebrows in the courtroom. Barry Steenkamp, who had been listening intently, leaning forward with his arms on the back of the bench in front of him, looked dumbfounded. He and his wife sat with their jaws clenched as Maringa explained his reasoning: ‘Not only retribution is to be considered. We are also looking at reforming the accused.’

  When Nel’s turn came to cross-examine Maringa, he gave voice to what were clearly the Steenkamps’ feelings, describing the social worker’s recommendations for sentence as ‘shockingly inappropriate’. To the distress of Barry Roux, it soon turned out that Maringa had prepared himself poorly for his appearance in court. Although he said in answer to a question from Nel that he had read the trial judgment, he did not seem to have understood it. Maringa’s interpretation of the judgment was that Pistorius’s frightened reaction to the noise he had heard behind the toilet door had been ‘understandable’, which was not what Judge Masipa had said. Worse still, Maringa had read her words to mean that he had not intended to fire his gun. Pressed by Nel, Maringa was insistent. ‘The accused had not intended to shoot.’