Pistorius case: rich gleanings for law academic

10 December 2014 | Story by Newsroom
Legal learnings: UCT academic and CNN legal analyst during the Oscar Pistorius trial, Kelly Phelps, is examining some of the controversial issues that arose during the process to further understanding of South Africa's criminal justice system.
Legal learnings: UCT academic and CNN legal analyst during the Oscar Pistorius trial, Kelly Phelps, is examining some of the controversial issues that arose during the process to further understanding of South Africa's criminal justice system.

While Judge Thokozile Masipa has granted the State leave to appeal the Oscar Pistorius verdict and sentence, the case has nonetheless raised serious questions about aspects such as legal ethics, contempt of court and the dark halo of sensationalism; fertile ground for UCT's Kelly Phelps, CNN's legal analyst during the trial.

Phelps is exhausted. For the better part of a year the UCT senior lecturer in criminal justice has juggled two fulltime jobs: teacher and researcher in the law faculty and expert legal analyst for CNN on the high-profile Oscar Pistorius case.

At times Phelps negotiated a tightrope between sage commentary and evaluation for CNN for a largely American public accustomed to jury trials, and the outpourings of an often hostile and aggressive local public, disinterested in the facts and nuances of the law.

"There's been such an aftermath of this trial that in terms of both public and academic engagement it still forms a large portion of my time allowance," said Phelps.

And though it's been "an amazing platform to engage with", Phelps wants to finish things properly.

Four skeletons

Back at UCT, she has one eye on wrapping up after exam marking and her PhD (she starts work on her dissertation in January) and the other on four skeletons.

These are the frameworks of research papers that will examine elements of the trial that concerned her most: contempt of court, including scandalising the court and sub judice, dolus eventualis and the media representation of the trial.

The first paper is on dolus eventualis (which speaks to the accused's intention and the foreseen outcomes of an action). Phelps will place the current rules in the historical context of the past 50 years, explaining why the laws are calibrated in the way they are.

This facet provided an important backdrop for Judge Masipa's verdict, which was heavily but unfairly criticised, says Phelps.

"It is true the reasoning in her judgment could have been clearer but ultimately the judge got it right. She was accurate on the law, so I think it warrants a robust, academic article to explain why she was correct, where the law comes from and why it is the way that it is."

She is also working on articles that will be co-authored with colleague Professor Ian Glenn (Film and Media Studies), who has a special interest in the intersection between media and the law, and aimed at a special edition of an international media journal dedicated to the Pistorius trial.

The fourth paper examines the law of contempt of court, specifically sub judice, which regulates the publication and discussion of matters being considered by the court.

"The Pistorius trial is a salient reminder of why we need rules of sub judice," said Phelps. "Many of the press seemed to believe that we no longer have a sub judice rule in South Africa. And that has lead to a crisis of legitimacy for the criminal justice system in this country in terms of having set up a self-fulfilling prophecy where people would be outraged at the verdict and therefore impugn the integrity and efficacy of the judge and of our criminal justice process.

"And if you compare that commentary in the reporting, with the facts that were actually been presented in the courtroom, they were worlds apart," she added. "Of course we need freedom of expression, but there is a middle ground to be struck and I don't think we struck it with this case, to the detriment of our criminal justice system."

Breach of legal ethics

Phelps also delivered a lecture on breaches of legal ethics in the trial, focusing on state prosecutor Gerrie Nel's cross examination, specifically the incident when he "ambushed" Pistorius with a graphic photograph of victim Reeva Steenkamp's head and head wound (displayed on the court feed for the world to see), viewed in juxtaposition to unrelated internet footage of Pistorius shooting at watermelons.

"He used the victim's dead body as a shock tactic."

Contrary to Nel's claim that this was in the victim's interests and in the interests of justice, Phelps believes it disrespected the victim's dignity.

"And was it necessary to live stream this footage around the world? Do we believe that the means justify the end? Is this always true in a criminal trial and what are the competing interests that one needs to take into account?"

In the future she'd like to write a paper (or suggest the topic for a student dissertation or research paper) on an unusual twist in the trial; when Nel used Section 78 of the Criminal Procedure Act to force the court to refer Pistorius for psychological evaluation.

"Section 78 is actually, colloquially, a defence; what we call the defence of insanity, usually on incapacity. So it's a highly unusual situation: you've got prosecutors forcing an accused person to explore a defence that they're objecting to exploring."

There's nothing prohibiting that, she notes, but suggests it's an area of the law that needs to be revisited.

"Is it really a defence, and if it is, is it proper that a defence can be used as a sword by the state rather than as a shield by an accused person, which is what defences are meant to do."

Sound judgment

In spite of the State being given leave to appeal the verdict and sentence, Phelps believes Judge Masipa's sentence was remarkable.

"The judge really managed to craft a sentence that was carefully reasoned in terms of current sentencing, jurisprudence and principles coming from other cases. She gave adequate attention to the characteristics of the offender without ever appearing to be unduly sympathetic to the offender."

All of this has been grist to the mill for the law scholar, enhancing not only Phelps' teaching at undergraduate and postgraduate levels, but also providing material for staff seminars, open lectures and discussion forums for organisations such as the Women's Legal Centre and NPO Sonke Gender Justice.

Exhausting, but enriching.

(Phelps will deliver a lecture on the trial at UCT's Summer School in January 2015.)

Story by Helen Swingler. Photo by Raymond Botha.

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