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Oscar Pistorius sentencing hearing starts tomorrow

Cross posted from the Frederick Leatherman Law Blog

Sunday, October, 12, 2014

Good morning:

The Oscar Pistorius sentencing hearing starts tomorrow in Pretoria at 3:30 am EDT. I say ‘starts’ tomorrow because prosecution and defense may each take up to a day or more to present evidence and argument in support of their respective recommendations.

Judge Thokozile Masipa, who found Pistorius guilty last month of culpable homicide for killing Reeva Steenkamp by mistaking her for an intruder and shooting through the door of the toilet cubicle in the bathroom of his upstairs master bedroom suite, can sentence him up to 15 years in prison.

Culpable homicide under South African law is similar to our negligent homicide or manslaughter statutes. Basically, the mental state for this offense is gross negligence, which is committing an act that creates a substantial risk of harm to another person where the failure to be aware of that risk is a gross deviation from the legal duty to exercise due care to avoid harming other people.

Shooting at someone through the closed door of a small enclosed area with no place to hide, such as toilet cubicle in your bathroom, is at least a grossly negligent act, regardless if the person on the other side of the door is an intruder or someone you know. Difficult to imagine that someone who squeezed off four shots through the door did not intend to kill the person on the other side of the door; yet, that is exactly what Judge Masipa decided when she acquitted Pistorius of murder.

Her decision was and continues to be controversial. No doubt the controversy will flare up, if she sentences Pistorius to prison for some number of years but suspends the sentence on condition that he satisfactorily complete a term of supervised probation. Terms of probation typically include no law violations and an obligation to perform community service. Counseling may also be required, if needed. In the United States, judges also can impose up to a year of confinement in a county jail.

If the defendant violates a condition of probation, the judge can revoke probation and impose the prison sentence that she suspended.

In determining what sentence to impose on Oscar Pistorius, Judge Masipa also will consider a presentence report and recommendation by an official of the court based on a review of the police investigation file and research of his past, including any prior convictions and contacts with law enforcement. In the United States, the presentence division of the probation department prepares that report and recommendation.

Only Judge Masipa knows what she is likely to do, but I imagine she will impose an 8 to 12 year prison sentence. Whether she admits it or not, she must be concerned about public criticism of her decision to acquit Pistorius, and as a black person, no one should be more aware than she of the disparity in punishment for blacks compared to privileged whites.

Tell us what sentence would you impose and why you would impose it.

Do you believe he has an alcohol and/or anger management problem?

Why or why not?

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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