The compromise verdict reached by judge Thokozile Masipa in the Oscar Pistorius case is wrong. It should be reversed on appeal.
The judge found reasonable doubt that Pistorius intended to kill his girlfriend, Reeva Steenkamp, and concluded that the evidence supports his belief that armed intruders may have broken into his home through the bathroom window. If that is the case then he had a perfect right to defend himself, his girlfriend and his home from a home invasion by armed intruders. There would be nothing criminally culpable about a disabled man shooting through the bathroom door if he honestly believed his life was in danger.
The judge simply couldn't have it both ways although she obviously tried. If Pistorius believed his girlfriend was in the bathroom and intended to kill her, he would be guilty of murder. If he believed there were armed intruders in the bathroom, he was guilty of no crime. If there was a reasonable doubt about what he believed—as the judge seems to have concluded—then he was not guilty as a matter of law and his conviction of the crime of culpable homicide should be reversed on appeal because he was not legally culpable.
Illogical compromise verdicts of this sort are commonly rendered by lay juries in the United States when some jurors believe the defendant is guilty of murder, while others believe he was innocent of any crime. Instead of deadlocking they split the baby in half and come to an irrational compromise. But more should be expected of a professional judge.
Judge Masipa seemed to have some doubts about Pistorius's credibility and thought he might possibly have intended to kill Steenkamp, but she had reasonable doubt about that conclusion. As she put it: "If there is any possibility of [Pistorius's testimony] being true, then he is entitled to an acquittal." But, she may have reasoned, if he may have been guilty, maybe he shouldn't go scot-free, so she concocted the lesser charge of culpable homicide. But conviction on that charge carries dangerous implications for the law and for the safety of home owners, particularly in South Africa where the rate of murder and home invasions is among the highest in the world. It tells citizens that if they honestly believe that armed intruders have entered their homes in the middle of the night, they are not entitled to protect their families by shooting first without giving the armed intruders some warning and thus the upper hand.
Does the South African legal system really want to tell its citizens that it is better that their families be killed than that an intruder be killed? Of course there is always the possibility of error—both ways. Not shooting may be an error that costs the life of an innocent family; and shooting may be an error because there may not be an armed intruder in the home, as was the fact here. But if the citizen honestly believes there is an intruder, should he not be allowed the right to err on the side of protecting his family? Would that not be reasonable?
Would the judge have reached the same verdict if Pistorius had in fact killed an armed intruder in the bathroom instead of his girlfriend? That is the logical implication of this compromise verdict.
Once the judge concluded that it was possible that Pistorius honestly believed that there were intruders in the bathroom, it became legally irrelevant whether he was right or wrong as a matter of fact. If shooting into the bathroom was a crime under those circumstances, then it was equally a crime without regard to whether his girlfriend or the intruders were in there. Criminal justice is not a roulette wheel whose outcome should depend on luck. It should depend on the state of mind of the defendant. And Pistorius's state of mind was that there were intruders in the bathroom. It turned out he was wrong but that shouldn't matter, if his erroneous belief was honestly held at the moment he fired the fatal shots.
It is inconceivable that Pistorius would have been convicted of culpable homicide if he had turned out to be right. The same result should occur if he turned out to be wrong.
The judge ruled that a "reasonable person" should not have shot into the bathroom even if he honestly believed that armed intruders were in there. It would follow from that conclusion that if that same reasonable person did shoot, and if he did kill armed intruders, he would be equally guilty of culpable homicide.
What should the reasonable person do if he honestly believes that armed intruders are in his home and that they may kill his family? Judge Masipa has the answer! "All the accused had to do was to pick up the cell phone and call security or the police."
Had Pistorius followed this judicial advice, the police may well have responded in half an hour and found Pistorius and his girlfriend dead. At the very least, Pistorius had the right to assume that the police might not have saved him from the armed intruders he believed were in his bathroom.
Alan Dershowitz is the author of "Terror Tunnels: The Case for Israel's Just War Against Hamas".
R Jackson