Thursday, April 10, 2014

South Africa: Reflections on the Pistorius Trial

The Oscar Pistorius trial continues in what feels like full view of the entire world.  It feels almost mandatory to make some comparativist contribution about a trial that everyone is watching. 

For me, the most striking observation has come from seeing the picture of the judge and the defendant in the same frame.  On the bench sits a distinguished, diminuitive Black woman in judicial robes and finery, Judge Thokozile Masipa, who has been chosen, apparently at random, to judge a White,  South African man.  I was alive during apartheid and thus this image ranks, for me, in the same moving category as pictures of Barak Obama being elected President of the United States.

The same image, however, causes me to catch my breath when I realize that the choice between  Pistorius’s version of what happened the night of the shooting of his girlfriend or the prosecution’s version of that same night belongs not to a jury, as it would in the United States, but to this single judge and her two expert assessors.  In this case, as in South Africa generally, there is no lay jury.  In the Pretorius case, Judge Masipa appointed  two “assessors” who will sit with her to decide whether Pistorius reasonably believed he was protecting himself and his girlfriend during a home invasion.  As far as it appears, the appointment of “assessors” contemplates that they will have some expertise, for example, that they are lawyers, retired magistrates, or law professors, or that they have some special expertise, for example, in forensics or otherwise, that is relevant to the case.   The reason the two assessors was chosen has not been addressed in the press.  In any event, the right to a lay jury trial in South Africa was gradually whittled down and then ultimately abolished in 1969.  Certainly, it would feel more comfortable to leave this up to three experts were the issue not one so perfectly intended for the deliberation of twelve jurors:  what did the defendant intend?  In the United States, of course, this is a classic jury question. See e.g., Morissette v. United States, 342 U.S. 246, 274 (1952) (“Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury.”); People v. Fernandez, 64 A.D.3d 307, 310 (1st Dept. 2009) (“What is true of the specific mens rea of criminal intent is true of mens rea generally: it is quintessentially a question for the jury.”); People v. Flack, 125 N.Y. 324, 334 (1891)) (“[T]o constitute guilt there must not only be a wrongful act, but a criminal intention. Under our system, (unless in exceptional cases,) both must be found by the jury to justify a conviction for crime.”).

One safeguard under South African law is that whatever a majority of the three fact finders decide will become the verdict.    As in other circumstances and jurisdictions, where there is a mixture of judicial fact finders, the non-judicial jurors can decide contrary to the judicial fact finder and determine the verdict.   Questions of law, and of sentence, remain with the single judge.

One wonders about the reason for and impact of all of the extremely gory forensic evidence that the prosecutors have presented and the impact of Pistorius’s extreme emotionality in the courtroom.  It seems fair to say that this sort of evidence and behavior would not be allowed in a US jury trial, for example, the comparison between the melon Pistorius apparently shot at in target practice and the victim’s head and Pistorius’s retching in the courtroom.  A mistrial would certainly have to be declared.   For us in the United States, this raises the differences between a bench trial and a jury trial.  Presumably, a judge sitting as fact finder can put gruesome or otherwise prejudicial evidence or behavior out of mind and arrive at an unaffected verdict.    In this case, that task would not be easy for anyone.  One hopes that the judges will see their way clear to a just verdict.

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