Why you should care
Because it’s the trial of the decade — and a big test for South Africa.
The world’s most famous criminal lawyer understands Oscar Pistorius’ fear — or at least the fear he claimed. About 20 years ago, lawyer Alan Dershowitz and his wife were awoken in their home around 2 a.m., by a sound. Hearing his wife scream after she went downstairs, he raced to her just in time to spot an intruder crawling out the window with his leather jacket and house keys in tow. “That was very, very frightening,” says the Harvard lawyer; after that incident, he and his wife moved into a hotel for a few days.
The intrusion is just one reason that Dershowitz, like millions around the world, is glued to the most infamous (alleged) break-in in recent history. We’re talking, of course, about the trial of the so-called Blade Runner, South Africa’s handicapped star sprinter. Last month, Pistorius was found guilty of “culpable homicide,” not murder, in the death of his 29-year-old model girlfriend, Reeva Steenkamp. Sentencing arguments are being heard this week, and any day now, the world will learn how Pistorius will be punished: It could be as little as a fine or as much as 15 years behind bars.
Dershowitz, who has helped score victories in some of recent history’s most notorious trials, believes the case is far from over.
To some degree, the merits of the Blade Runner case have already been aired and dissected in the court of global public opinion. So have arguments over whether the case was mishandled (“I think the prosecutor was a bully,” says Dershowitz) and whether Pistorius should have been openly emotional (“I think that was stupid”).
But Dershowitz, who has helped score victories in some of recent history’s most notorious trials — from O.J. Simpson to Patty Hearst to Claus von Bülow — believes the case is far from over. For starters, the 76-year-old attorney believes an appeal is certain because the judge’s decision was “legally incoherent.” Then there’s South Africa’s legal culture — something Dershowitz knows and cares about. Back in the day, he worked with Nelson Mandela’s lawyers to secure Mandela’s release from Robben Island. But 20 years after the end of apartheid, the country is dealing with a serious crime issue and, Dershowitz says, a politicized judiciary.
We caught up with the storied defense lawyer over the phone. He was in Washington, D.C., on the eve of a Supreme Court appearance on a patent matter.
Questions and answers have been reordered and condensed for clarity.
OZY: Is Pistorius guilty?
I can’t read his mind. I don’t know the answer to that question. Did he honestly believe there was an intruder? Did he know his girlfriend was not in bed? I’m not empathetic if he used the “intruder” as an excuse to kill his girlfriend, who he was having problems with. But I just don’t know. When you’re in the middle of the night and you don’t have legs …
And because I don’t know, I say he has to be acquitted. We have a principle of law: Better 10 guilty go free than one innocent be wrongfully deprived. But the judge didn’t believe that. [Pistorius] may be guilty, but this was not sufficient evidence.
OZY: What’s your take on Judge Thokozile Masipa’s opinion?
It’s legally incoherent. Either [Pistorius] knew [Steenkamp] was behind there, in which case it’s murder, or he didn’t know she was behind there, in which case it’s innocent self-defense. But there’s no possibility of an intermediate verdict in this case. This was clearly a compromise verdict that should not be allowed to stand. My prediction is that the appellate court will reverse the conviction.
My own view was that [Judge Masipa] wasn’t sure whether he did or didn’t know, and so she split the difference. But when you have reasonable doubt — if you’re not sure — you must acquit. If there’s reasonable doubt about guilt, if there’s reasonable doubt about what he knew, he must be acquitted. It was Oliver Wendell Holmes who once said to his law clerk, who’d complained about an unjust verdict, “We’re not in the justice business, we’re in the law business.”
OZY: Are there any virtues to a compromise verdict?
Zero, zero, zero. NO virtues … I think this will be reversed — if the appellate courts have the courage to do so.
OZY: What sentence do you think he’ll get?
I think [Judge Masipa] is going to give him a lenient sentence in order to avoid being reversed by the appellate court. The harsher the sentence she gives him, the more likely it will be reversed. She’s doing a political calculation, as well; she doesn’t want to be reversed. I think it will be somewhere between probation and a relatively short term. I don’t think he’s going 10 or 15 years.
OZY: How does the Pistorius case bear on South Africa’s legal system?
South Africa does not have the best legal system in the world. I think in the end this will come out as a very controversial system. People are appointed to the bench largely on the basis of what role they took in terms of the fight against apartheid. So you get a lot of very radical, very opinionated political figures on the bench these days, rather than judicial figures.
Every white [South African] knows that you have to be concerned about black intruders … . But you can’t make that argument.
OZY: How has the political context influenced the case?
I think, in general, his basic defense he couldn’t present to a black woman judge. Every white person in South Africa knows that you have to be concerned about black intruders in the middle of the night. But you can’t make that argument. Because it would sound racist to a black woman judge. So that argument couldn’t be performed overtly. Had it been a jury, had it been a white jury, then that argument would have been performed.
I’ve been in South Africa several times, you know. Both whites and blacks — both middle-class and upper-class whites and blacks — are terrified. They have one of the highest crime rates in the world. It’s essentially a war zone. But you can’t perform that kind of defense.
I was part of the legal team that tried to get Mandela out of prison; when he was in prison, I worked closely with his other lawyers. I had tremendous admiration for the antiapartheid movement, but I am very disappointed in South Africa. The plight of blacks in townships doesn’t look much improved from the apartheid period.
Alan Dershowitz is Professor of Law Emeritus at Harvard University. His new ebook is Terror Tunnels: The Case for Israel’s Just War Against Hamas.