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Oscar, guilty even if proven innocent

I was never intending to write anything on the subject of the Oscar Trial, but after reading The Daily Maverick’s article titled “Pistorius Trial: The arrogance, the privilege, the farce, the insult” by RanjeniMunusamy, I suddenly have a lot to say.

Innocent until proven guilty?

 “Innocent until proven guilty” is one of those phrases that everybody knows and has spoken sometime in their lives.  Yet there is no doubt that a substantial number (±50%) of the general public believed that Oscar was guilty of murder and still do even after the verdict of not guilty was passed down last month.  What makes this even more ironic is that our own Constitution contains a Presumption of Innocence insection 35(3)(h) of the Bill of Rights which states that "Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings."

[Oscar] can kill while knowing he will kill” is an unequivocal statement byMunusamythat Oscar is indeed guilty of murder even after being proven innocent in a court of law.  And as stated before, this sentiment is shared by a large section of our general public.  This makes me question if there is a need for S35(3)(h).  He will be continued to be treated as a convicted murderer in the streets, in social spaces and when looking for a job.  Certain sections of the media will continue to vilify him as a convicted murderer.  S35(3)(h) of our Constitution might as well be scratched out as it’s now, how should I put it, “a farce”.

Then she asks why the public have no say in the sentencing:  “Do the rest of us who also live in this society have a say in this?”  Should we have an online poll with various options and then sentence him using the weighted average?  Of course not because it’s obvious that she, along with others, would seek to sentence him with the highest possible sentence even though he was found to have killed Reeva though negligence.  I’m grateful that we don’t live in a Kangaroo court state.

Oscar the Psychopath?

“All of it, the drama, the tragedy, the showmanship, his spectacular fall from grace, the gallantry of carrying and crying over a bloodied corpse, the fake devastation, showed how he is better than the rest of us”.  What Munusamy describes here is more than Oscar showing he is better than the rest of us.

Having experienced the horror of killing another human being in the circumstances that Oscar did, the average human being would experience severe trauma, guilt, shame, devastation, anger etc.  On the other hand, there is a special kind of person that can kill without emotion or remorse and that is a psychopath.  If Oscar had indeed  “faked his devastation” and carefully manipulated the court through his “showmanship” into believing he was a ”broken man” who exhibited these kind of emotions, this would imply that Oscar is a psychopath.

The most commonly used tool to assess psychopathy in people is the Psychopathy Checklist—revised (PCL-R), which was originally developed by Robert D. Hare in the 70s.  It consists of two factors, the first of which correlates to narcissistic personality disorder, low anxiety, low empathy, low stress reactionand low suicide risk. Below I’ve listed the items under factor one of the PCL-R and compared these to Munusamy’s comments:

·         Glibness/superficial charm – “the showmanship”, “building his profile and bank balance through charity”

·         Grandiose sense of self-worth - “He thrived on his megalomania”, “he became convinced he was superior to the rest of us”, “he basked in his privilege”

·         Pathological lying – “the fake devastation”, “the showmanship”

·         Cunning/manipulative – “the fake devastation”, “can twist the truth on the stand”

·         Lack of remorse or guilt – “the fake devastation”

·         Emotionally shallow - “the fake devastation”

·         Callous/lack of empathy - “the fake devastation”, “He abused his friends, abused the court system and abused our tolerance”

·         Failure to accept responsibility for own actions – “believes now that the world wronged him, rather than that taking a human life comes with consequences.”

Now compare this to extracts from the report done by Weskoppies, where Oscar spent a month of observation and testing by experienced, well respected professionals

·         “He [Oscar] responded openly, did not attempt to manipulate”

·         “He suffers from clinically significant depression”

·         He does not suffer from an anti-social personality disorder/psychopathy” - …

·         “He does not suffer from clinically significant aggression, anger or hostility”

·         “He does suffer from clinically significant stress”

·         “He did not attempt to malinger”

·         “He was not overtly defensive in his responses”

·         “He responded honestly”

·         “He has an elevated risk of suicide”

·         “He does not show personality characteristics that would make him dangerous.

·         “Significant score for Posttraumatic Stress Disorder (PTSD)”

·         “Significant score for Agoraphobia”

·         “Mr Pistorius has been severely traumatised by the events that took place on 14 February 2013” 

·         “He currently suffers from PTSD and a Major Depressive Disorder”

·         “The degree of anxiety and depression that is present is significant”

·         “He is also mourning the loss of Ms Steenkamp”

·         “No evidence could be found that Mr Pistorius has a history of abnormal aggression or explosive violence.  Abnormal aggression or violence was never incorporated into his personality”

·         “He does not display the personality characteristics of Narcissism and/or psychopathy that are mostly associated with men in abusive relationships”

The difference between expert findings and Munusamy’s tirade can only be described as the difference between night and day.  Where the latter basically brands Oscar as a psychopath, the former describes him as virtually the exact opposite.  How can this be?  Did Oscar manage to manipulate and lie his way through his psychological evaluations?  Psychologists will tell you that it’s extremely difficult and highly unlikely that someone could achieve this unless they’re a genius in which case we may have found ourselves a real life Hannibal Lector.  If the report on Oscar’s psychology is acceptable, then Munusamy and a large section of the public have got it way wrong and have been chastising Oscar for being human and accusing him of trying to place the part of the victim which would make statements like “the gallantry of carrying and crying over a bloodied corpse” and “fake devastation” absolutely disgusting.  If it’s not accepted then the use of expert opinion like this should be scrapped, like S35(3)(h) of the Bill of Rights, for all future court cases.  I for one will accept the outcome of Oscar’s evaluations ANYDAY over the opinion of the lay person who has no professional knowledge of psychology and who has little to no personal experience with Oscar.

Chequebook Justice

Munusamy mentions “chequebook justice”.  The question of whether or not justice favours the rich is an interesting one.  A weekend article titled “Chequebook?justice in SA” in City Press, written by BiénneHuisman, asks if there is truth in the adage that justice is blind – and more pertinently, does it apply in South Africa?  Leading local forensic scientist David Klatzow is quoted as answering “Of course, there is a better chance that you and I, the middle class, or poor people, will end up going to jail. We simply cannot afford such sophisticated representation as, for example, Oscar Pistorius”.  Although I agree with the fact that money can buy you a better legal representation, I’m not so sure that having a fat bank balance reduces your chance of going to jail.

From 1994 to 2014 the following crimes have been reported by the SAPS:

·         Murder – 409,954 (56 per day)

·         Culpable Homicide – 243,939 (34 per day)

·         Attempted Murder – 477,024 (65 per day)

·         Assault with intent to do serious bodily harm – 4,544,244 (622 per day)

·         Sexual assaults – 1,240,461 (170 per day), actuals estimated between 12m – 25m

·         Common Assault – 4,321,777 (592 per day)

Over the last twenty years there have been 653,893 homicides.  Excluding the 28,339 homicides which occurred last year, another 2 million jailable crimes occurred just last year.  And how many criminals are in jail at present?  Around 160,000…  This indicates that something is very wrong.

The SAPS report of 2008/2009 indicated that the conviction rate for armed robbers was 10%, murder 13% and sexual offences 11.5%.  Research done by the South African Law Commission in the mid 90’s found that 75% of reported violent crime cases never make it to court while the conviction rate was a mere 6%.  For murder, 61% of reported cases never made it to court while the conviction rate was only 11%.  So what this tells us is that the conviction rate for murder over the last 20 years is somewhere around 12%.  That’s a hell of a lot of murderers who never see their day in court, yet alone a jail cell. 

Now we ask ourselves, how many of these murderers are from the upper and middle classes?  The answer: very few.  The Oscar and Dewani cases probably received more media attention than the other 47,000 homicides combined, which occurred between February last year and now.  This might have given the impression that murderers are well known, well connected, rich individuals coming from privileged backgrounds.  Yet the opposite is true.  The vast majority of criminals in South Africa, including murderers, come from poor backgrounds with broken families; they are unemployed, poor, and desperate. 

So the average murderer has a 40% chance of making it to the courtroom and a mere 12% chance of being convicted.  A murder by the likes of Oscar and other public figures will receive infinitely more media coverage, sparking massive public interest and of course added pressure on our justice system.  They will have millions baying for their blood.  Because of this their chances of appearing in court escalate from 40% to probably somewhere well over 90%.  The chances that they will be found by police jump from 25% to 99%.  The chances that police will conduct a half decent investigation jump from a relatively small number to well over 90%.  The chances that forensics won’t be lost or stuck indefinitely in the massive backlog in our forensic laboratories increases exponentially.  Then of course the average murderer doesn’t have the likes of Gerrie Nel descending down upon them. 

I’d say that sure, having money can buy you a better defence, more resources, allow you to appeal and then maybe have an advantage over the average criminal, but I’d say that the added media attention, because of your status, and the public interest it creates will be a far greater disadvantage and would mean that your case will be firmly in the spotlight, other than slip away into the black hole like the other few hundred thousand murders that have taken place over the last twenty years alone.      

Conclusion

I really don’t know what exactly happened that night, I think only Oscar knows.  The judge made a call, when deciding on his intention, that the mountains of circumstantial evidence were not conclusive enough to convict him of murder.  Yes, there is a very high probability that his intention was to murder Reeva, but a high probability is not 100% certainty.  Nobody can say with 100% certainty that Oscar’s version is impossible.  That unfortunately is how the law works.  And if one of us ever happen to end up in court facing a murder charge, we’d hope to God that we’re not sentenced because the judge was 80% sure we’re guilty of murder.

We live in a world where facts and fiction get blurred
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