18.09.2014

How justice works

Deep pockets, global fame and the lack of jury trials are prone to produce outrageous results, argues Paul Demarty

The verdict in the Oscar Pistorius trial has, unsurprisingly, been met with enormous controversy. Pistorius has been convicted of ‘culpable homicide’, the South African equivalent of manslaughter, instead of either of the murder charges he faced, after fatally shooting his girlfriend, Reeva Steenkamp.

The controversy is to be expected simply because of the undisputed facts of the case. If we accept every last point of Pistorius’s defence, we are still left with a story which sees the athlete approaching a locked, occupied bathroom and firing four hollow-point bullets through the door. There cannot be many people in the world for whom intentionally killing somebody outside of an immediate and direct threat to your life does not fall under a common-sense definition of murder.

If he believed that a burglar was caught up short in his flat, that surely does not change the matter. Horatio does not very much care that Hamlet ‘got the wrong guy’. Under the law of South Africa, if this judgment stands (by no means certain - the state could appeal the verdict), it appears this is the case.

So this is a story partly about South Africa, but in other aspects depressingly universal - the widespread dissatisfaction about the verdict, domestically and internationally, is a symptom of how justice works in capitalist societies, regardless of whether Pistorius himself is guilty or innocent.

The South African context has commanded a great deal of attention, since the trial provides another unflattering snapshot of post-apartheid society. The contradictions were there in the scene itself: Pistorius, a white man from a wealthy and privately-educated background, was in the dock; sitting in judgment was Thokozile Masipa, the first black woman to become a judge in South Africa. Needless to say, such a courtroom sketch could hardly have been drawn at the time of Pistorius’s birth, in 1986.

Both stories on offer to Masipa, however, say something about the fraught nature of the death of apartheid, and its sharply uneven effects on the general population. The defence case prevailed, so let us take that first - Pistorius awoke, hearing unusual noises in his house, and concluded immediately that there was an intruder. Noticing the bathroom door was locked, he availed himself of a gun, loaded it, and fired four shots. To his horror, he realised he had killed Steenkamp.

I must confess that I have met almost nobody that finds this account convincing - but I am not in South Africa. As is characteristic of highly unequal societies, however, South Africa suffers from soaring crime rates. Burglaries, carjackings and other forms of violent robbery are common; wealthy South Africans keep weapons around their homes, and often even their cars (bourgeois fear of crime is invariably way out of proportion to risk). Thus, Pistorius’s account of his behaviour can appear plausible in Pretoria, where it would not in Peckham - even if it still amounts to manslaughter.

A racial edge to this phenomenon has been noted, and discrepancies with the treatment of the rapper, Molemo “Jub Jub” Maarohanye - who bought a murder conviction after a fatal hit-and-run - have been raised, but is surely less significant than the economic angle. ‘Black economic empowerment’ has led to a new layer of black bourgeois and middle class individuals who equally display intense uncertainty about the security of their possessions. The polarisation of society, as is well known, has produced an economic divide wider than existed under apartheid.

Of course, it is quite understandable that many - probably most - South Africans are sceptical of the decision, as well. We have to mention the basic narrative of the prosecution, which was that an argument between Pistorius and Steenkamp turned deadly: this was a matter of fatal domestic violence. If this were the case, it would hardly be atypical - South Africa has a horrendous, endemic rate of violence against women, both physical and sexual (and a particularly grisly pre-eminence in gang-rape).

The more compelling ground for cynicism towards this judgment has little specifically to do with the country in which it took place. We remember, first of all, the common standard of proof in criminal trials - beyond all reasonable doubt. This is, inevitably, an elastic property - any standard of proof has to be, since the circumstances of a given crime or civil infraction cannot be known to legislators and the authors of constitutions in advance.

For this elasticity to be exercised, however, some force has to push and pull it this way and that. Under capitalism, it is no surprise to find that the most powerful force is wealth.

In Pistorius’s case, we have only his word that things happened the way he tells it. In a criminal trial, however, it is up to the prosecution to demonstrate that his account is false. The prosecution relied on witness statements, which claimed that an argument took place in Pistorius’s residence. The defence successfully cast doubt on the witnesses’ testimony - a fact to which Masipa made pointed reference during sentencing.

How does one get such favourable outcomes in cross-examination? By hiring expensive lawyers. Imagine two men accused of similar crimes, with similar explanations. One is rich, and is lying - he has straightforwardly murdered his wife in cold blood. The other is poor, and is telling the truth about a horrendous, rash mistake.

We know very well who is going to get the ‘premeditated murder’ conviction out of these two. The rich man’s lawyers have earned their right to charge exorbitant fees by successfully destroying prosecution cases - if it is not the prosecution witnesses, it will be something else, some procedural mistake, something that rules out a murder conviction. The poor man will already be doing life in the time it takes Pistorius’s lead counsel to clear his throat.

In Pistorius’s case there is the additional matter of his celebrity - his brilliance as an athlete has given him fame far beyond his native country; even before the morbid sensation that was his trial (and certainly before London 2012), he was probably the only paralympian that many non-experts could name. This can play both ways, naturally - massive exposure probably helped OJ Simpson, but it has backfired in the cases of Stuart Hall, Rolf Harris and everyone else who was a British TV presenter in the 1970s.

The highly open nature of the trial has played, on balance, in his favour - giving a global audience to his obvious remorse. We are already encouraged to identify with him, on some level, because he is a celebrity - someone in whose life we are supposed, in late-capitalist culture, to recognise something of ourselves.

Celebrity trials have the virtue of making obvious what, all too often, happens on the quiet - the process by which the rich and powerful are able to obtain favourable outcomes in judicial processes at the expense of everyone else, (almost) regardless of the merits of the case. The perverse voyeurism of celebrity culture means that, while money can buy justice - or favourable injustice - it cannot buy silence.

In the case of the rich and obscure - and a fortiori, when it comes to the manifold crimes of major capitalist firms - silence is the rule. The failure of state prosecutors to obtain a murder conviction from a man found with a gun in his hand and the body of a woman a few yards away is striking, regardless of his guilt, and widely examined due to the defendant’s fame; the ease with which capital inflicts systematic violence on entire populations with impunity goes, on the other hand, barely reported (in the case of Trafigura’s dumping of toxic waste off the west African coast, suppressed by a British superinjunction).

It is here we have to point out something that has somehow escaped the criticism of all post-verdict commentators - this was not a jury trial. The judgment as to his guilt rested entirely on Masipa (and her two assessors). The right to a jury trial is increasingly unfashionable in contemporary capitalist societies - partly because, so the argument goes, one’s peers are all the more susceptible to media hysteria of this kind. No evidence of this phenomenon exists; rather it rests on a sneering disdain of people in general, thought to be gullible morons. In South Africa, however, since the advent of apartheid there has been no such thing as trial by jury - and the left in that country has, by and large, markedly failed to campaign for the restoration of this basic democratic right.

Jury trials are, of course, subject to the same distorting influences as everything else. Yet the alternative is far worse: a judge, at the end of the day, is a successful lawyer. He or she has become successful by charging high fees; been able to charge high fees by attracting high-rolling clients; and thus has arrived at a position of expertise through making arguments favourable to capital, designed to convince a previous generation of judges of the same provenance. The cycle continues. It is a profound obstacle to democracy.