Russell Hebets Feb. 20, 2013

Picture this: Oscar Pistorius woke in the middle of the night. It was pitch black and he did not have his prosthetic legs on. He heard a noise and realized with horror that his balcony doors were open and workers had left ladders leaning against the house. Fearing an intruder, feeling exposed without his prosthetic legs attached, fearing for his life, he retrieved his gun, called out for the intruder to leave, and fired 4 shots through a door into his small bathroom. It was only after firing the shots that he realized that his girlfriend, Reeva Steenkamp, was in the bathroom and had been mortally wounded.

Wow, sounds compelling, right? Pistorius deserves our condolences and sympathy for this mistake that can only be called a tragic accident. That’s the narrative that Pistorius’s defense team will advance. The prosecution will argue that this was a cold-blooded, premeditated murder after a domestic dispute that spiraled out of control. This case will rely heavily on emotion and on forensics. Who has the advantage?

Let’s talk emotions. This case is chalk full of emotions from either the defense or the prosecution point of view. The advantage here goes to the defense. They actually have the only living witness to tell their story. Oscar Pistorius has already publicly released an affidavit recounting his version of events at his bond hearing. All signs indicate that he will testify at trial and his testimony will follow the blueprint laid out in his affidavit. We can expect this testimony to be gut-wrenching and apparently sincere. The prosecution has their own narrative, but they will need to reconstruct the events from the evidence rather than from a first person account. (Insert a passionate, righteous prosecutor telling the jury that the reason they don’t have witness to the events is because Oscar Pistorius made sure there wouldn’t be a witness).

After hearing the testimony how do we know who to believe? Forensics. Forensics is going to be a huge part of the case and will likely determine the outcome. Right now details are still being released. There are disagreements about the bullet angles of entry. Was Pistorius on his stumps or on his prosthetic legs? Did Pistorius aim straight through the door or did he aim at the toilet where Steenkamp was sitting? There are significant questions regarding how the forensic investigation was conducted. Why didn’t police investigators wear foot covers to prevent contamination of the scene? Why did the police investigators miss a bullet which defense experts found in the toilet? If they were so careless in these details, what else did they miss? These questions are likely to dominate any future trial and right now the advantage is unknown and may remain so until the trial.

So does Oscar Pistorius have a leg to stand on? So far he does, but we’ll leave you to ponder this. Even if we buy everything the Pistorius has said, even if he thought Reeva Steenkamp was sleeping soundly in bed throughout this, he still fired four shots into a tiny enclosed space without knowing any details about what was behind that door. It is very difficult to sustain a self defense argument when you can give virtually no details about the threat that you’re facing.