Thursday, February 21, 2013

South Africa: Bad Police Decision Jeopardizes Remanding Oscar Pistorius During Murder Trial

According to CBS News and The Associated Press, the South Africa Police Service (SAPS) could be shooting itself in the foot inasmuch as its lead investigator in the homicide investigation into the death of model Reeva Steenkamp, 29, who was shot and killed by double-amputee Olympic sprinter Oscar Pistorius, 26, is facing multiple counts of attempted murder in an October 2011 shooting.

Clearly, assigning Detective Hilton Botha to such a high-visibility murder investigation of international proportions was a very, very bad idea on some police administrator's part, which could well put in jeopardy the prosecution's intention to successfully defeat the defense's motion for bail. 

To make matters worse, Botha is accused of being drunk in a government vehicle when he allegedly opened fire at a mini-bus taxi while in the company of two other police officers.

No doubt, SAPS erred in not ensuring that the detectives working on the case passed muster on every "scratch and sniff" test. Yet, apparently SAPS didn't know that prosecutors assigned to the the case investigating Botha and two other officer had reinstated the charges.

Additionally, it was discovered during the hearing yesterday that SAPS has no physical evidence or testimony challenging Pistorius' claim that the shooting was accidental, particularly considering that the prosecution had charged Pistorius with premeditated murder. 

During his testimony Botha seemed confused, misjudged distances crucial to the prosecution's case and said that testosterone found at the scene, was contradicted by the prosecution. 

The second day of the hearing, today (February 21),  was supposed to be a mere bail hearing, but strangely emerged as more of a trial with Pistorius' attorney, Barry Roux, significantly neutralizing Botha's testimony, step-by-step during cross-examination.

As this posting is filed, it appears that the prosecution is now faced with attempting to salvage its case against Pistorius both procedurally and substantively. 

Worse, the Pistorius prosecutors were unaware of the 2011 attempted murder charges against Botha, which now forces the prosecution into being "painted into a corner."

COMMENT: At a minimum, Botha, considering he came off as a "Keystone cop" under testimony, should be removed from the investigation, although that would be a SAPS decision, not one for prosecutors.

Botha was also the lead investigator in an assault claim against Pistorius in 2009. Pistorius' lawyers said police arrested the athlete and held him overnight at a police station and said they will pursue a lawsuit against police for wrongful arrest. As this posting is filed, Botha is back on the stand in the hope that he fairs better than yesterday.
 
The day seemed to start out well for the prosecution, with Botha offering new details of the shooting that appeared to call into question Pistorius' account of the moments leading up to the 29-year-old model's death.

According to ballistic evidence, Botha said that the bullets that killed Ms. Steenkamp had been fired from a height, supporting the prosecution's assertion that Pistorius was wearing prosthetic legs when he took aim at the bathroom door. The athlete has maintained he was standing only on his stumps, and felt vulnerable and frightened as he opened fire from a lower position.

Projecting a diagram of the bedroom and the bathroom, Prosecutor Gerrie Nel said it showed Pistorius had to walk past his bed to get to the bathroom and could not have done so without seeing that Steenkamp was not asleep there. "There's no other way of getting there," Nel said in disputing Pistorius' claim that he had no idea Steenkamp was no longer in bed when he pumped four bullets into the bathroom door, striking her with three rounds.

Botha backed the prosecutor up, saying the holster for Pistorius' 9 mm pistol was found under the left side of the bed, where Steenkamp slept, and it would have been impossible for Pistorius to get the gun without checking to see if she was there. "I believe that he knew that Reeva was in the bathroom and he shot four shots through the door," the detective said.

Testimony began with the prosecutor telling the court that, before the shooting, a neighbor heard "nonstop" shouting between 0200 and 0300 hours at Pistorius' upscale home in a gated community in the capital of Pretoria. Yet, under cross-examination it was revealed that the witness was in a house 600 yards away, possibly out of earshot.

The detective said police found two iPhones in Pistorius' bathroom and two BlackBerrys in his bedroom, and none had been used to phone for help. Guards at the gated community did call the athlete, Botha said, and all he said was "I'm all right," as he wept uncontrollably.

Roux later suggested that a fifth phone, not collected by the police, was used by Pistorius to call for help.

The question now is whether Botha's inconsistent testimony will be enough to convince Chief Magistrate Desmond Nair to keep Pistorius in prison until trial. 

Although Pistorius faces the harshest bail requirements under South African law, the magistrate has said he would consider loosening them based on testimony in the hearing. Final arguments are scheduled for this afternoon, not to mention Pistorius' bail application, which will be reported  on tomorrow.

For the sake of the victim and her family, one can only hope that prosecutorial performance does not jeopardize the justice and closure they rightfully deserve.