Pis­to­rius’ height­ened re­sponse to dan­ger and the slow burn dis­abil­ity since child­hood caused him to fire the gun, says the de­fence. But he fired to kill a person, says the state, and that can’t be ig­nored

CityPress - - News - CHARL DU PLESSIS charl.duplessis@city­press.co.za

When Pre­to­ria’s court GD ad­journed on Fri­day, Os­car Pis­to­rius had com­pleted the jour­ney from global icon to “a lit­tle boy with­out legs” who had been suf­fer­ing the same “slow burn” as an abused woman. Pis­to­rius’ life-long bat­tle to beat his dis­abil­ity had been re­duced to lit­tle more than a “pre­tence” by the ath­lete’s de­fence in an at­tempt to ex­plain his con­duct on the night Reeva Steenkamp was shot and killed.

While Pis­to­rius gained in­ter­na­tional-hero sta­tus for his bid to com­pete on an equal foot­ing with able-bod­ied ath­letes on the world stage, his dis­abil­ity runs through his de­fence like a golden thread.

This much was made clear by Ad­vo­cate Barry Roux on Fri­day, when he em­phat­i­cally ar­gued that Pis­to­rius had al­ways been a “lit­tle boy with­out legs”.

He said Pis­to­rius faced “the con­stant re­minder that I do not have legs, I can­not run away, I am not the same. He can pre­tend! He can pre­tend that he’s fine and that he’s won­der­ful with his legs on.”

Pis­to­rius ap­peared to shrink in the wit­ness box as Roux de­liv­ered this speech.

The ath­lete’s shoul­ders slumped and he looked down to the ground, un­mov­ing.

Roux told the court that this “slow burn”, from fac­ing a hos­tile world with­out the abil­ity to es­cape, had pro­pelled Pis­to­rius down the pas­sage to the dark­ened bath­room with a gun in his hand, ready to shoot.

When star­tled, ar­gues Roux, Pis­to­rius does not have a flight re­sponse – only a fight re­sponse. At this point, Pis­to­rius’ de­fence stands on two legs.

Roux said Pis­to­rius stood in the bath­room, with the “ef­fect of the slow burn over many years, you’re anx­ious, you’re trained as an ath­lete to re­act to sound, and he stands now with his fin­ger ready to fire if nec­es­sary and then ... [BANG]”. Roux slammed his hand down on the podium. “Two things can hap­pen. In some in­stances, a person will fire re­flex­ively and in some in­stances not ... [Was] that shot re­flex­ive alone, or was it com­bined with a cog­ni­tive thought process?”

Roux ar­gued that if Pis­to­rius fired purely as a re­flex, he could not have crim­i­nal ca­pac­ity be­cause his ex­ag­ger­ated re­flex re­ac­tion pre­vented him from act­ing in ac­cor­dance with what he knew to be wrong.

This is one of the “two legs” of crim­i­nal ca­pac­ity. In this case, he should not be found guilty. “[But] if the [court finds the shoot­ing] was re­flex­ive, but there was also a thought process, then you can­not ig­nore the rea­son for the shot, then you have to look at pu­ta­tive self-de­fence.”

Pu­ta­tive self-de­fence is a type of le­gal de­fence in which a person be­lieves his life is in dan­ger, even though he is not ac­tu­ally at­tacked. Here, Pis­to­rius’ dis­abil­ity again played a role. If Judge Thokozile Masipa be­lieved Pis­to­rius hon­estly thought his life was in dan­ger and there was some­body com­ing out of the toi­let to at­tack him, he could at worst be guilty of cul­pa­ble homi­cide – or neg­li­gently killing a person.

Pis­to­rius’ height­ened star­tle re­sponse to dan­ger, and the “slow burn” of anx­i­ety and fear­ful­ness, was im­por­tant here too.

The test to de­ter­mine if an ac­cused person was guilty re­lied on what a rea­son­able person in the same set of cir­cum­stances as the ac­cused would do.

“One must place the rea­son­able dis­abled person, who would be vul­ner­a­ble and be very anx­ious, at the en­trance to the bath­room ... We re­spect­fully sub­mit that [Pis­to­rius], in the pe­cu­liar cir­cum­stances and hav­ing re­gard to his dis­abil­ity and the ef­fects of such dis­abil­ity, did not act neg­li­gently,” ar­gued the de­fence.

But State Pros­e­cu­tor Ger­rie Nel has taken a dim view of the de­fence’s two-legged ar­gu­ment, say­ing the two de­fences were “mu­tu­ally de­struc­tive” and came about as a re­sult of Pis­to­rius’ poor per­for­mance on the wit­ness stand.

“The ac­cused’s vac­il­la­tion [be­tween] de­fences is much like say­ing to the court that you were not on the scene of the crime but, if the court finds that you were, then you rely on an added de­fence, that of self-de­fence,” the pros­e­cu­tor said.

Nel main­tained that a dis­abled Pis­to­rius “can’t get away from the fact that he knew there was a hu­man be­ing in the toi­let. My Lady, with the ut­most re­spect, if some­body shoots and kills some­one like he did in this mat­ter, there must be con­se­quences for that.”

Judge Thokozile Masipa will de­cide what those con­se­quences are on Septem­ber 11, when she hands down her judg­ment.


Os­car Pis­to­rius

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