Hier die Meinung eines Strafverteidigers.
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"More importantly, though, the prosecutor has probably painted the defense into a corner from which it cannot escape. In South African law, there are two types of homicide: premeditated murder and culpable homicide. The term “premeditated” is oftentimes misinterpreted, as laypeople tend to believe that a “pre-meditated murder” is by definition the result of a long and careful plan to assassinate someone. In fact, “premeditation” in South African law simply means “intentional,” meaning that the person that killed meant to do it at the time, and thus that intent can be formed almost instantaneously and need not have been carefully considered beforehand. The other charge, culpable homicide, applies to negligent killings.
The defense team for Pistorius has already conceded that he may be guilty of culpable homicide for having killed Reeva when he believed she was a burglar. However, this “mistake of fact” as we lawyers call it does not really help him. One cannot avoid a conviction for premeditated murder simply because one misidentified one’s victim; the concept of “transferred intent” applies. Put another way, if I intend to kill Person A, and instead accidentally kill Person B, I’m guilty of murder just the same as if I had in fact killed Person A. After all, under that hypothetical, one could say that I intended to kill a person, I deliberately attempted to kill a person, and I did in fact kill a person… and these are the elements of intentional murder."
"Just as problematically for him, Pistorius does not have a very good self-defense claim here. In some states in the U.S., it is legally acceptable to use deadly physical force where it is reasonably necessary to prevent a burglary of one’s home. In South Africa, on the other hand, deadly physical force can only be applied where it is reasonably necessary to prevent an imminent and deadly attack (a “proportionality standard,” so to speak). Thus, the big problem for Pistorius is that he can be convicted for the premeditated murder of a burglar unless he can show that he was objectively reasonable in acting the way that he did in firing upon his door. (Incidentally, the South African prosecutor, Gerrie Nel, correctly pointed out this problem with Pistorius’ defense at Pistorius’ bail hearing). It seems unlikely that a judge would find that Pistorius’ shooting at a door – without knowing who was behind it and with the clear intent to kill the person behind it (as evidenced by the use of four shots fired into a small chamber) – could possibly have been reasonably necessary to prevent imminent physical harm. After all, it is nearly impossible to conclude that the person behind the door presented an imminent threat of serious physical harm to Pistorius because… she didn’t. It was after all his girlfriend, not a burglar, and Pistorius – by his own admission and according to his version of events – did not take any reasonable steps to determine the seriousness of the threat posed by the person in the toilet.
Seemingly, Pistorius’ only hope for an acquittal on all charges would be to somehow argue that he truly and reasonably believed that he had to fire into the bathroom to prevent a deadly attack to be inflicted upon him or his girlfriend. This seems like a longshot but perhaps he will be able to demonstrate a history or pattern of dangerous home break-ins in his home in the past that will make his response seem more reasonable under his unique circumstances. Otherwise, he will have to argue that he did not intend to kill the “burglar” behind the toilet door when he fired four times, and that his actions, though designed only to scare the burglar or serve as a “warning shot,” only accidentally or negligently caused the death of the “burglar” and were not the result of an intentional killing. Under this scenario, he might be convicted of only culpable homicide, for which there is no requirement of incarceration under South African law (a conviction for premeditated murder, in contrast, carries with it a life sentence). His affidavit seems to leave open both defenses as possibilities at trial.
The trial will not be so different from an American criminal trial but for one major difference: judges, and not juries, decide guilt or innocence in South Africa. Pistorius’ character may also very well become an issue, more than it would likely have been had he been arrested in the United States for the same crime. It is of course always difficult to predict the outcome of a criminal trial, but in this case, it seems likely that Pistorius will be convicted of premeditated murder."
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