Updated 12 September 2014

Is Judge Masipa letting Oscar get away with murder?

Judge Masipa's confusing decision to reject the possibility that Oscar Pistorius murdered Reeva has led many legal experts to choke in their tea.

In a slip of the tongue, maybe the learned judge accidentally made a perfect comment on events, speaking of how “events have paled into significance”.

The judgement has been deeply puzzling; one hopes that Judge Masipa will soon clarify the decision that took our breath away. It’s logic is far from obvious, and demands further explanation.

Nel must surely appeal this as a misinterpretation of the law, to a higher court, or as a precedent it could cause serious problems in the legal system. Asking for a verdict of Premeditated Murder was a stretch too far, unlikely to succeed, and she rightly rejected that option. The Prosecution’s version may, of course, be true, but the State didn’t and couldn’t, prove it.

One of the assessors several times interrupted the Judge with whispers, twice leading to a short adjournment : one must wonder what this was about. It’s really unusual, and not explained.

ReadSuccesses and shortcomings of the Oscar trial

Excellent points.

Judge Masipa made some very important points clearly and helpfully. She set aside several issues that had used much court time, as of no real relevance. Did the exact length of the flex in the bedroom ever really matter?

What a relief when she rejected all those mawkish WhatsApp messages as irrelevant. She didn’t accept some ear-witness testimony, preferring the objective time-line provided by phone records, but was very polite towards these obviously sincere witnesses, seeing them as mistaken but not deliberately.

She justly and excellently nailed Roux’s argument for special treatment of Oscar on the basis that he was disabled and might feel vulnerable.

As she wisely pointed out, “he’s not unique in that respect”: women, children, old people, and all disabled folks share vulnerability, but this doesn’t entitle them to grab a gun when nervous.

ReadNel nails Oscar as a deceitful witness

She rejected the Defence explanation for Oscar’s dreadful performance as a witness, as due to the stress of testifying. She pointed out how he functioned splendidly in Evidence in Chief, crumbling on cross-examination, becoming evasive and contradictory.

Having recognised his evidence was highly unsatisfactory and unreliable, she then seemed to accept some of it, without making it entirely clear why some of his statements were OK.

Applying the same facts and arguments seemed to rule out murder and rule in Culpable Homicide.

Read: Key quotes from Masipa's judgement

Maybe when we can read the text it’ll make more sense. Did she reward him for not settling on any coherent defence? Did she accept a defence he didn’t actually offer?

Then she made a highly confusing decision, rejecting the possibility of murder, which led many legal experts and commentators to choke on their tea. The explanation seemed to make no sense.

She decided he didn’t intend to kill Reeva, but, inexplicably, that this somehow meant he couldn't have intended to kill the intruder he was certain was behind the door. Or something like that.

Apart from the fact that it saved Oscar from a murder verdict, nobody seemed to understand it at all.

Did Roux succeed?

Definitely not. The judge was exceptionally polite and kind towards his shambolic case. She chose not to review the credibility of the witnesses he called, gently ignoring Dixon, and other whimsy.

He and Oscar have been allowed to win with a Smorgasbord Defence: mention every possible defence, and leave it to judge to select which she’ll accept. She shrewdly listed his wide range of contradictory and wildly different explanations ; but allowed him to suffer no penalty for doing so.

It was fair to say that just because a witness lies about some things doesn’t automatically mean he is guilty. True, but it doesn’t mean he’s innocent, either.

And if he’s shown to be unreliable on anything important, one cannot assume anything else he says must be true.

When the accused is, like Oscar being the only living witness, given his obviously enormous temptation to tailor his evidence to suit his needs, can one really safely accept as fact anything he says?

Did Nel fail?

I have consistently admired his performance in cross-examination, which is like watching Nadal play tennis. But his tactics were over-confident; maybe seriously under-budgeted?

He should have called more expert witnesses (and advised in Court by suitable experts), and undoubtedly should have re-opened the case to call his own experts to rebut some of the peculiar “expert” evidence the Defence led.

For instance, Dr Derman should never have been allowed to testify as an Expert on topics so far outside his training and known areas of expertise; his highly over-simplified and excessively rigid inventions cried out to be challenged by a real expert. Too many importantly misleading points went unchallenged.

The judge recalled Dr Vorster’s odd evidence, finding G.A.D, although the panel of experts did NOT find it present, and in the history of psychiatry, I can’t find records of any case which found anxiety disorder could in any way impair one’s criminal capacity.

ReadPossible outcomes of the Oscar Pistorius trial


- The judge took it as fact that the light in the toilet was out. Why were the police and others not asked about this?
- Oscar fell asleep with lights on, why did he suddenly want total darkness to the extreme extent of wanting to hide the tiny blue LED light?
- Did she conclude that Oscar couldn’t have known that firing four highly destructive bullets at someone would not be likely to kill them?
- Was it not believable when considering a charge of murder, but obvious when considering Culpable Homicide?
- Why was she quoting evidence of Oscar’s distress, as somehow establishing innocence?

I don’t recall anyone suggesting it was entirely faked, what had it to do with guilt or innocence?

The judge’s reasoning may be profoundly wise, but got too abbreviated in the delivery to be comprehensible to the rest of us, and maybe it’ll be further explained before the end of the judgement.

With a great sense of drama, she stopped early, and we’ll have to wait for the verdicts.

An interesting point arises. If Oscar is found guilty of anything at all, and receives any sentence other than a medal, it’s very likely his team will want to appeal promptly.

But if they do, surely there’d be a very real risk that a higher court would disagree with Judge Masipa’s view on murder, and correct his conviction to that.

DSTV bias 

While the DSTV channel has retained excellent legal commentators, it’s become very highly biased in the psychological field.

It’s become the Dr. Dee show, and we’ve heard from nobody else. Her sentimental views, fiercely promoting Intermittent Explosive Disorder, “vulnerable spots”, and her fixed, uncritical preoccupation with Amygdala Hijacking (absolutely NOT a broadly accepted and unquestionable view among psychology experts) have been promoted without challenge.

This is misleading for the public, who are not being allowed to hear more orthodox expert opinions. We deserve better than this.

Your thoughts?

Read more

Roundup of CyberShrink's Oscar Trial commentaries
What if Oscar Pistorius goes to jail?
Will Oscar get the 'special treatment' in jail?

Ask Professor Simpson, our CyberShrink, your questions

Image: Oscar Pistorius from Shutterstock

Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.




Read Health24’s Comments Policy

Comment on this story
Comments have been closed for this article.

Live healthier

Exercise benefits for seniors »

Working out in the concrete jungle Even a little exercise may help prevent dementia Here’s an unexpected way to boost your memory: running

Seniors who exercise recover more quickly from injury or illness

When sedentary older adults got into an exercise routine, it curbed their risk of suffering a disabling injury or illness and helped them recover if anything did happen to them.