Prosecution's Case Is Weak in Oscar Pistorius Trial

The Pistorius case presents no evidence of planning. To the contrary, if there is testimony that a heated argument preceded the murder, then that is more supportive of negligent homicide than premeditated murder.
03/21/2014 06:52 pm ET Updated May 21, 2014

If you examine all the evidence presented thus far in the Oscar Pistorius case, there's just one critical fact, in my opinion. Perhaps this is just common sense, but I love stepping back and looking at the obvious when everyone overanalyzes a case and gets lost in it. Here's the obvious. Who locks the bathroom door when they go to the bathroom in their boyfriend's house? Do you typically get up in the middle of the night to relieve yourself and lock the bathroom door? No. Do you lock the bathroom door to wash your face or brush your teeth? No. Do you go to the bathroom to make a private phone call? Sometimes. Do you lock the door? No. Is it reasonable to lock the door after a fight if you are scared and in a possible domestic-abuse situation? Yes.

If the bathroom door was indeed locked, as the facts seem to indicate, then Reeva Steenkamp likely locked herself in the bathroom to keep Oscar Pistorius out. If she didn't lock the door, then why did Pistorius use a bat to knock it down after the murder? So there you go. The most telling piece of evidence in the whole case! However, despite this glaringly odd fact pointing toward Pistorius' guilt, the prosecution doesn't have a strong-enough case.

Prosecutors are overreaching. It's become a default rule in high-profile cases, and in my opinion that's what led to the acquittal of George Zimmerman. Ambitious prosecutors overreach for the highest murder charge when the evidence just isn't there. In the Pistorius trial, as in the Zimmerman trial, a conviction on a lesser charge, in this case culpable homicide, would be almost an automatic slam dunk. Now, perhaps nothing short of life in prison will satisfy as justice to model Reeva Steenkamp's family, and that's understandable, but from a purely legal perspective, it's an unlikely success for prosecutors. Premeditated murder requires planning and deliberation. Let's get even more specific: It requires the time to form the conscious intent to kill and then act on it after enough time for a reasonable person to second-guess that decision. If you look at the facts of the Pistorius case, you'll find that there is simply no evidence to prove this type of planning and deliberation. The prosecution can't just speculate on state of mind. Guesswork won't hold up in a court of law. Prosecutors must establish that the Blade Runner intended to kill his girlfriend as part of a malicious and calculated plan.

So far there has been a rumor that a witness heard the couple fighting intensely about an hour prior to the shooting. If they were fighting, who knows how long the fight lasted? How can we guess whether the shooting did or did not occur in the heat of passion immediately following or in the midst of a fight, thereby ruling out premeditation? There must be evidence. In the stereotypical heat-of-passion scenario, a man walks in on his woman in bed with another man. The scorned spouse may immediately pick up a gun and go after his wife or her lover, in the heat of passion. However, occasionally, a scorned spouse may lie in wait for a few days, plan out the murder of his wife or lover and execute it days later after taking steps to plot it, such as purchasing a weapon. In such cases, prosecutors can prove concrete steps were taken to plan the murder and thereby formulate the intent.

However, the Pistorius case presents no such evidence of planning. To the contrary, if there is testimony that a heated argument preceded the murder, then that is more supportive of negligent homicide than premeditated murder.

The prosecution tried to base its whole theory of premeditation around Pistorius' prosthetic legs. Initially, prosecutors claimed that Pistorius took the time to put on his prosthetic legs. They claimed that the time that passed while he put on his prosthetic legs was sufficient to allow him to think out and plan the murder. But just recently we heard a ballistics expert testify that Pistorius likely shot Steenkamp while on his stumps. This evidence completely belied the prosecution's theory, and with no one to contradict it, it seems the prosecution has or will concede that he was not wearing his prosthetics. Now the prosecution appears to be left with zero evidence to prove intent.

Even if the ruling judge firmly believes in the prosecution's theory, prosecutors still bear the burden of proving premeditated murder beyond a reasonable doubt. There is just too much doubt about what went on in Pistorius' mind and in that house that evening. In my opinion, the rest of the evidence is just totally irrelevant. How he acted after the fact and whether he screamed or she screamed does not prove deliberation and planning. Unless the prosecution can find some solid evidence from inside that house, it will not succeed. Neither circumstantial witnesses like neighbors nor experts can speak to Pistorius' state of mind. The judge, of course, has the discretion to convict on a lesser charge, but the prosecution is undermining the strength of such a conviction by focusing all its efforts on trying to prove premeditation. This is what happened with George Zimmerman, and thus he was acquitted.