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STARTING POINT WITH SOLEDAD O'BRIEN

Awaiting Pistorius Bail Decision; Judge About To Rule On Pistorius' Bail

Aired February 22, 2013 - 07:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: -- there are arguments that the judge could buy one way or the other.

SOLEDAD O'BRIEN, CNN ANCHOR: We're waiting for the judge, the magistrate to then make his announcement. He's going to first begin by any minute now recapping the last four days of testimony and then he will rule whether or not there is bail or not.

It is going to be audio. We have an audio feed so we'll be able to listen in to what the magistrate is saying. Big question, of course, Jeff, is intent, right. I mean, at the end of the day, we know what happened this woman was killed.

She was shot and killed, and we know who did it. Whether or not he serves and how much time he serves will be based on what they prove in terms of intent.

TOOBIN: Absolutely. You know, in the criminal justice world, you call this an intent case. A lot of white collar crimes are intent cases. Where, you know, money was transferred and you have to decide it was a mistake, was it an intentional crime?

The same issue here. There is going to be a lot of forensic evidence that we don't yet know about in this case. Which is, you know, what were the angles of the shot that went into her? Were there any signs much struggle in the room before they went in there?

I find the most problematic part of Pistorius' story is the idea that he is in bed with this women, he goes to the balcony. He then goes into bathroom and he somehow doesn't notice that the woman next to him is gone. It's not there.

O'BRIEN: Or just open fire --

TOOBIN: And doesn't say, Reeva, is that you?

O'BRIEN: Stand back, I'm shooting, Reeva, be careful.

TOOBIN: Or Reeva doesn't say don't shoot me. I mean, his story seems implausible to me.

O'BRIEN: Let's get to Ted Simon. He is a criminal defense attorney. We're talking to him yesterday about this. Ted, I wanted to ask you. He is D.C. and not here in person as he was yesterday. Culpable homicide, what is that equivalent to here in the United States? And by the way, I have to warn you, as soon as we hear from the magistrate, we start getting that audio. I'm going to jump in and interrupt you.

THEODORE SIMON, CRIMINAL DEFENSE LAWYER: I would hope you would. I think it's more important to evaluate what culpable homicide is in South Africa because obviously, we know that premeditated murder, which is what he's charged with, requires an intentional killing, a specific intent to kill his girlfriend.

But culpable homicide in South Africa includes the unlawful negligent killing of another human being. So you can be prosecuted for basically negligence, it doesn't require a higher standard like in the United States of gross negligence, but just negligence or carelessness.

But that doesn't mean this case will be purely one of murder and mistake. There is also a very reasonable defense of private defense, like self-defense in the United States, which is self-defense of one's self or others.

So the question really will become in this case, not just about intent, but whether or not he acted reasonably, where he thought there was a dangerous intruder and he used lethal force to protect himself and others.

That is part of this case. Not simply murder or mistake or even intent. It also goes to self-defense and defense of others as it is called South Africa private defense.

O'BRIEN: OK, so a couple of questions for you then, what is going to come out of this hearing as soon as it gets under way, a little bit of a delay. They are about 3 minutes later than they have said that they would start.

And the magistrate is going to sum up the last couple of days of what's happened, kind of do a review of the case before he makes his ruling about bail or no bail. But outside of the bail or no bail question, are you telling me they will be able to come up with a charge? What we know is what he does actually face if it's premeditated murder or culpable homicide?

SIMON: No, the issue today is bail. He is charged presently with premeditated murder. Under South African law, he falls into a bail category 6. That requires in addition to showing the traditional points of no flight risk, not endangering others, not to interfere with the prosecution's case.

It also requires a showing that to release him in the interest of justice and the final critical point is exceptional circumstances. However, that's for a category 6 and premeditated murder.

If the court feels this is more like a culpable homicide then it doesn't require the added heavy burden of exceptional circumstances, but rather, just release if it's in the interest of justice. O'BRIEN: How much time can he face? Let me ask you a question about that.

SIMON: I don't think the court, in fact, will lower the charge, but evaluate it in a different manner.

O'BRIEN: OK, you're saying that basically he faces jail time. If you're convicted of --

SIMON: No, no, no, no, no. I don't think he is necessarily facing jail time. I think we're getting ahead of ourselves. Don't forget --

O'BRIEN: That's kind of my job to look down the road.

SIMON: No. But in South Africa, there is the presumption of innocence and proof beyond a reasonable doubt. It's still the obligation of the prosecution to prove beyond a reasonable doubt every essential element.

And whether its intent or not, they still going to have to disprove beyond a reasonable doubt that he did not act reasonably when gripped in fear and he thought there was an intruder.

You or I or Jeff or someone else may think differently, but you have to put yourself in the subjective place of this individual when he was gripped with fear, made an assessment. Wrongly perceived the situation and he will argue it was a tragic accident.

O'BRIEN: You sound like a defense attorney.

TOOBIN: I will ask you a question about South African procedure looking ahead. What happens between now and a trial? In the United States, we would look at a grand jury process or preliminary hearing. Is there an equivalent? What happens now and until the actual trial? There is no jury it will be purely a judge trial.

SIMON: Jeff, I had to confess, I'm not an expert on South African law either. I do cases around the world. I'm primarily a U.S. criminal defense lawyer. But as I understand what it is, the prosecution will lay the charge. And they can continue with the premeditated murder charge or they could reduce it.

If it remains, the defense can make motions to reduce the charge. They will be permitted discovery, just like in the United States, you are entitled to learn what evidence the prosecution has including exculpatory and impeaching information. In the bail proceedings, you are not entitled to the same discovery as would you in a trial.

O'BRIEN: Ted, I'm going to interrupt you for a moment, just to update people on what we've been waiting for. They are running 6-1/2 minutes late. We're told cameras have been ordered out of the courtroom, that people in the courtroom are jostling for seats.

Oscar Pistorius not yet been brought back into court, but the magistrate has -- has arrived and clearly the proceedings starting to get under way. Ted, I'll ask you to stand by so we can listen in to what the magistrate has to say and laying out his decision, bail or no bail.

As you pointed, the only decision made today. The judge is about to start and so -- do we have a chance to listen in on the audio? We'll stand by and we are covering breaking news on the Oscar Pistorius bail hearing.

We've been following the case for the last four days, monitoring every single day, expecting every single day they would Milwaukee a decision on bail and they had not, really dragging out this case, very unusual in South African law, as well as here in the United States too.

The judge is going to make a decision on bail or no bail and they are looking at a case of premeditated murder. Just a moment ago, we were talking about this charge, not focus on the charge. Not the magistrate's job today.

TOOBIN: It's not -- the judge is not going to say it's likely he's guilty or innocent, but he will evaluate at least in part the strength of the evidence.

O'BRIEN: Can we listen in now as the magistrate takes over the case?

DESMOND NAIR, CHIEF MAGISTRATE: -- on the bail application, I would like to turn your attention to the order that I made at the outset of the hearing. You will recall that I received a request to televise the proceedings. I would like to add to the reasons already submitted that Paragraph 13 of Schedule E of the Regulations of Judicial Officers of Lower Courts, 1994 as amended by Regulation 4 of Government Notice R-50, 34969 of 26 January 2012, reads as follows.

And I quote, "A magistrate may only permit the proceedings in his or her court to be televised, broadcast, or taped for these purposes or photographs to be taken or television cameras or similar apparatus to be used in his or her court during a session on the condition he or she may deem fit.

A, after hearing arguments by the applicant and/or any other party involved in the proceedings who may wish to oppose the application, B, after due consideration of one, the rights of all parties, including the legal representatives, witnesses, and court personnel involved in the proceedings, and, 2, the interest of the administration of justice.

And, C, if he or she is satisfied that it is in the public interest to do so that is the legislation that guides a magistrate who has -- who is faced with a request to televise, broadcast, or tape proceedings.

I'm also guided by the words of the majority of the judges in the constitutional court matter of the South African Broadcasting Corporation Limited versus national director of public prosecution and others, 2007, page 167 constitutional court, where the majority of the judgment handed down by judges of the constitutional court (inaudible).

Indicated at page 68 thereof that before returning to the question of the order in that matter, they considered it helpful to set out some considerations which in our view, meaning their view had to be taken into account, in future when the future when the question of televised court proceedings was raised this is what they had to say at the highest court in our country, confirming a decision of the supreme court of appeal.

I quote, "The time has come for our courts to embrace the principal of open justice and all they imply. However, in our view, it should be borne in mind that the electronic media creates some special difficulties for the principal of open justice.

Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways, first, by the intense impact that television in particular has on the viewer in comparison to the print media, and, second, the potential for the editing of the court proceedings to convey an inaccurate reflection of what actually happened.

This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against and it arises not so much in the presence of cameras and microphones interfering court proceedings themselves.

But more dangerously from the manner in which coverage can be manipulated, often unwittingly to produce communications, which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than full live broadcasts.

In applying my mind to the questions that I need to answer, which set out in paragraph 13 of the legislation I've just quoted, I indeed listened to the argument brought by the applicant and more specifically, that of advocate represented in this matter who says the defense has an objection to the request.

I will listen to all those involved, court personnel in the proceedings, and in the interest of justice, if I'm convinced it's in the public interest to do so. With regard to the magnitude of the attention focused on the matter and the accused in the matter, the size of this particular courtroom to permit live broadcasting in fairness to all of the interested parties and media houses.

But more importantly having regard to the rights of the accused, to the extent it is indeed a matter of concern when you have a large contingent of media photographers, zooming in, zooming in, on the accused, flashing at will, and I have on my own witnessed this happen.

The applicant sometimes comes out of the police cells and stands in the dock and what happens perhaps unintentionally is that a large contingent of photographers and journalists flash at him and it -- it does raise the picture that the accused is some kind of species that the world has never seen before.

I appreciate, however, the need for there to be freedom of expression and I have accordingly tried to accommodate the press wherever I could, to the extent that I have permitted the live audio broadcasting of these proceedings.

The applicant in this matter is Oscar Leonard Pistorius, an adult male, South African, born on the 25th of November, 1986. He is a professional athlete, residing at 286 Silver Lakes Drive, Silver Lakes, Pretoria.

Mr. Barry Roux appears for the applicant assisted by Mr. (inaudible) the state also appears. The matter commenced on the 15th of February, 2013, when there was an application for the postponement of the proceedings to the 19th of February, 2013 to proceed with the formal bail application.

And argument on whether the crime or offense fell within schedule 5 or schedule 6 of the criminal act, 51 of 1977, which I will hereinafter refer to as the act in the rest of the ruling. The matter proceeded on the 19th of February 2013 and arguments was heard where the court eventually ruling that the matter will be heard on the basis that it is a schedule 6 offense and I have set out and defined a schedule 6 defense when I gave my ruling.

A request for further particulars will be settled on the state by the applicant, requesting further clarity on the issue of the facts related to premeditated murder and the application is brought in terms Section 60, 11a of the act. The matter was postponed for the state to respond until the 20th of February.

The applicant's case commenced with the tendering of various affidavits of the applicant and his witnesses. On the 20th of February, 2013, the state responded to the applicant's request for further particulars on and that is on record.

The state commenced with its case by calling Warrant Officer Hilton Botha who testified and was cross-examined, followed by re- examination, whereupon the matter was adjourned to the 21st of February 2013 for both parties to present the court with written argument.

On the 21st of February 2013, the investigating officer, Warrant Officer Hilton Botha, was recalled by the court, and clarification of issues as Section 63 of the Act. Both parties presented arguments with the continuation of the proceedings to the 22nd of February, 2013, in which argument was concluded before me today. Now it is before the court for a ruling on the issues surrounding this.

O'BRIEN: You have you been listening to the Chief Magistrate Desmond Nair as he has laid out the last couple of days in this case. Let's listen in to what he have to say.

(BEGIN LIVE FEED)

DESMOND NAIR, CHIEF MAGISTRATE, SOUTH AFRICA: I want to also address the accused incarceration at the police station, rather than the prison. Now, the practice, of course, is for an accused to be detained and remanded in custody to the local correctional facility.

In this instance, application was made, supported by a letter by the station commissioner of the relevant police station indicating counsel for the accused needed to consult with the accused extensively in preparation for this bail application.

Of course, you will recall I did of my own accord, raise the issue of preferential treatment at the very outset and was convinced by the argument advanced by Advocate Lou that he needed to consult.

Of course, all attorneys and advocates will need to consult. It must be borne in mind that the lead prosecutor, Mr. Nell had no objection to the request. Why did I heed to the request? The bail application is an important bail application.

We commenced with the bail application last week and I can categorically state that they existed the possibility that if the accused be kept to the prison or the correctional facility rather than the police house, any consultations may in any way obstructed, it may well have necessitated that the outcome of this bail application may have been delayed by quite a few days and that is what I sought to avoid.

In addition to the prevention of any argument that the accused rights to prevent evidence as it is set out in Section 60 11a, which states that the accused should be given the opportunity to satisfy the court that exceptional circumstances exist and such reasonable opportunity in this instance necessitated into earlier that his counsel could consult with him, return to consult with him and I would imagine that that would have been quite an extensive and laborious process.

I do, however, wish to stress that I am not creating any precedent in this regard insofar as the detention of the accused in matters of the district courts, as each case will have to be dealt with on its own merits. In support of his application for bail, the accused, Mr. Pistorius, handed up a statement under oath. He submits that the interests of justice and fairness dictate his release on bail.

Mr. Pistorius questions the fact that he is charged with murder, let alone premeditated murder, and states that he had no intention to kill his girlfriend, Reeva Steenkamp. He contests whether the state has objective facts to prove he has committed a planned and/or premeditated murder and that the objective facts do not refute his version.

In his statement, he sets out his personal circumstances, his residence, and that he is a South African citizen, although he travels abroad regularly. South Africa is his home. He also mentions that his friends and family reside in South Africa, but confirms that he has friends abroad as well.

This portion of his statement then further deals first with his immovable property and then movable property, including income. He confirms that he has no previous convictions or outstanding cases, as he is enjoined to do in our legislation, paragraph 16 of his statement deals with the merits of the case.

He understands the provisions of the act and although it requires he does not have to deal with the merits of the case, he elected to proceed on this basis as he denies having planned or committed a murder. He again said he does not believe the state has any objective facts to support their case.

He spent the evening of February 13, 2013, the victim, Miss Steenkamp at his home. They went to bed at about 10:00. His prosthetic legs were removed. At this time, she had already given him his Valentine's gift, asking him not to open it until the next day. Being aware of violent crime and having been the victim of crime in the past, he slept with his .9-millimeter under his bed.

He awake -- he awoke during the early hours of the morning to bring a fan in from the balcony and close the sliding doors. At this stage, he heard a noise in the bathroom. Being aware of the fact that there are no burglar bars before the bathroom window, and that contractors who had worked on the premises in the recent past had left stepladders outside, he was overcome with terror and believed that someone had entered his house.

He was too scared to switch a light on. He has mobility in his stumps. At this stage he grabbed his .9-millimeter gun, screamed words to the effect that the person should leave his house, and shouted to Reeva to call the police. He believed her still to be in bed.

Upon entering the bathroom, he noticed that the window was open and that the toilet, which has a separate door, was closed, and he heard movement within. At this stage, he believed that they must have entered through the window. He was vulnerable on his stumps and had to protect both himself and Miss Steenkamp.

His bedroom door was also locked and he felt trapped and in danger, should the intruders emerge from the bathroom. At this stage, he fired shots at the closed door, and again shouted to Miss Steenkamp to call the police, but she was not responding, and it was pitch dark.

When he reached the bed, he realized that she was not in bed, and it dawned on him that she may be the person in the toilet. He returned to the bathroom, calling her name, and upon trying the door found it to be locked. He went to scream for help at the balcony.

At this point, he put on his prosthetic limbs and tried to kick the door open. He thinks he switched on the lights at this stage. He then retrieved a cricket bat from his room, broke of some panels, found the key, and unlocked the door. The deceased was slumped over, but alive.

He pulled out of the toilet and called one Johann standard, the administrator of the estate and asked him to phone an ambulance. He himself phoned. Went downstairs, unlocked the door and picked Miss Steenkamp up, as he had been advised to take her to hospital.

On his way down, a doctor living in the complex arrived, the deceased died in his arms. With hindsight he believes she must have gone to the toilet when he went onto the balcony. He is mortified at the loss of Miss Steenkamp as well as the pain and suffering caused for her family. He stands by this version of events and believes that the expert evidence gained will bear this out. He stated further that he will stand his trial and believes that the South African legal system and the facts will eventually show that he did not murder Reeva Steenkamp.

He then proceed to deal with each subsection of Section 64 of the act, and I'm sure many of you yourselves may now have learned a lot about Section 60 and Section 64 of our criminal procedure act.

Mr. Pistorius added he does not know the witnesses nor does he interfere with any of the witnesses or contact any of the witnesses listed by the state. He bears no grudges, has no previous convictions or outstanding cases and is not disposed to violence.

He does not constitute a flight risk, and he's willing to hand in all travel documents and not apply for another as part of bail conditions. He will not attempt to flee the scene. He will be able to raise an appropriate amount of bail.

As far as the evidentiary material goes, he does not know what it consists of, but believes it is in the possession of the South African police and he does not have access to it. He further undertakes not to interfere with the investigation and that his release will not disturb the public order or undermine the function of the criminal justice system.

Are you OK? Want a drink? He believes that the interests of justice, consideration of prejudice and the balancing of all respecting interests favor his release on bail. In support of the application Advocate Barry Rous attended affidavits by various deponents and their evidence is set out in short here under.

One Alessandro Dela Cuta is a 22-year-old male residing in Danefield, Johannesburg. He met the accused through a mutual friend, Robert Scott, in 2007. They exchanged numbers at their first meeting and kept in touch thereafter.

He found Oscar to be kind, caring, fun-loving person. They became such close friends that he would invite him to family gatherings and go on holidays together. Oscar would confide in him about his problems and vice versa.

And on November 2012 Oscar told Alex, the deponent about Reeva and he invited her to the South African Sports Awards. Oscar would also confide in Alex about his relationships. Oscar told Alex that he had fallen for Reeva and he wasn't afraid to express it.

The deponent further explained that Oscar and Reeve were very comfortable with each other and they were happy when he met them in December 2012 --