Friday, March 28, 2014


I got a call from a reporter the other day concerning a difference of opinion voiced on the Nancy Grace show. They were talking about the Pistorious murder case in South Africa, and they were disagreeing on the definition of premeditation. The reporter wanted me to venture an opinion on which of the two pundits was wrong, Nancy Grace or her guest Dan Abrams. Since I hadn't seen the show, the reporter provided me with a transcript of the two pundits' remarks.

Dan Abrams was saying what a compelling case the prosecution had put on, except for the minor fact that the prosecution had charged premeditated murder and hadn’t proved up premeditation. Abrams said that premeditation was different from an intentional murder, that it required prior planning. 

Nancy Grace took great umbrage at Abrams definition of premeditation and said that it would only take a matter of seconds to premeditate a murder. Abrams disagreed and she told him, “Yeah, well, it can be seconds according to the law. Go read a law book. Come back to me after you’ve tried a couple murders.”

Well, I’ve tried a few dozen murders and prosecuted a few hundred more, and I’ve read a few law books so I guess Nancy Grace will think I’m qualified to speak on the matter. Not so fast. I didn’t feel qualified to speak on the matter because I didn’t know the law of South Africa. I know the law of premeditation in the State of Florida where I prosecuted, and I know the textbook law of premeditation I was taught in law school, but if we’re talking about a foreign jurisdiction, I’m going to have to hit the law books to see what this other jurisdiction says about premeditation. The same words mean different things in different jurisdictions. In America a flat is a punctured tire. In England it’s an apartment. So in order to avoid putting my foot in my mouth, I researched the law of murder in South Africa. What I found out was interesting.

Bottom line: As is frequently the case when two people disagree, they were both wrong, but Abrams was less wrong than Grace. Grace made the mistake of equating South African premeditation with American premeditation; they’re similar, but they're not the same thing. Abrams correctly described the law of premeditation as it exists in South Africa, but he said that Pistorious was charged with premeditated murder. I couldn’t find a copy of the indictment, but I don’t believe Pistorious is charged with premeditated murder. South African law proscribes intentional murder, and premeditated murder is just one of several different types of intentional murder, all of which carry a possible maximum sentence of life in prison. I think Abrams’ mistake came from an off-the-cuff remark by Pistorius’s prosecutor early on in the case. The prosecutor said that Pistorius was charged with intentional murder and that was the same as premeditated murder. 

The prosecutor was being sloppy with his terminology, I think, because premeditation was the type of intent that he wanted to prove at trial. Of the different forms of intentional murder in South Africa, premeditated murder is the type of intent which will guarantee a life sentence. Lesser types of intent may qualify for a lesser sentence. In one of the cases I read, the court mentioned 30 years as the lesser sentence, but I don’t know if that’s a minimum or if the court was just using that number as an example.

According to the cases I read, South Africa recognizes three types of intent which can make you guilty of murder. They are:

[1] Dolus directus = I actually intend to kill. This is similar to premeditation as defined by most American courts. I can form this actual intent in Nancy Grace's seconds.

[2] Dolus indirectus = I intend to do something that I know might indirectly get someone killed. This seems to be a rare form of intent. It’s similar to (but not exactly like) felony murder in America. I commit a robbery, and I know people can get killed in robberies. A policeman responds to the scene, shoots at me, and kills an innocent bystander. I’m guilty of felony murder (if I’m in Florida. I won’t speak to the felony murder statutes of other American states). I'm also guilty of intentional murder in South Africa.

[3] Dolus eventualis = I recklessly do something that I know is very likely to kill someone. This is similar to Florida’s “depraved mind” second degree murder. I get really mad and shoot someone because I want to hurt them but not kill them. If they die, I'm guilty of intentional murder in South African even though I fervently wished that the victim would live.

To be crystal clear: The South African courts say that you can intentionally kill someone without premeditating the murder.  For example, I get really, really mad at someone, grab up a kitchen knife and stab him seventeen times. I didn’t plan the killing, so in South African that’s not premeditated murder. In Florida, however, it’s premeditated murder because in Florida premeditation requires no prior planning. It merely requires killing after consciously deciding to do so. I once prosecuted a case where a man shot his fiancĂ© seven times in the back with a semiautomatic pistol. He may not have planned it ahead of time, but if he hadn’t consciously intended to kill her when he shot her the first time, his intent to kill was pretty clear around shot three or four. Intentional but not premeditated in South Africa. He was convicted of premeditated murder in Florida.

South Africa’s premeditation is similar to (but again not exactly like) the Florida concept of cold, calculated, and premeditated. For example, I prosecuted another case where a man stole a single shot shotgun, got on his bicycle and rode across town to his girlfriend’s house, hogtied her, pressed the muzzle of the shotgun to her chest and shot her, reloaded, pressed the muzzle to her chest and shot her again, reloaded, pressed the muzzle to her chest and shot her a third time. This case is just a tad more premeditated than the case where the guy shot his fiancĂ© in the back seven times with a semiautomatic pistol, and I think the South African courts would have no problem deciding that it was premeditated. 

I think the most premeditated murder I ever prosecuted was the one where the guy actually built a homemade gun from scratch to kill his wife. He figured it would be untraceable. It wasn’t. When he shot her, the gun exploded. He tried to clean up the mess and dump the pieces in a lake, but we recovered enough pieces to rebuild the gun and tie it to him. Now, that was cold, calculated, and premeditated, but not very well thought out.

Then there was the case where the killers made a list of potential victims and took a few weeks to discuss which one to kill.  After thoroughly studying the potential victims, they decided on one and then improvised two garrotes to use as murder weapons. They certainly displayed foresight, because the first garrote broke in two before they had completely choked the victim to death and they had to go to their backup garrote to finish the job. This is another case where I think the South Africans would find premeditation. Our judge also found that the murder was cold, calculated, and premeditated.

Now for a few examples of other murders which the South Africans would find intentional but not premeditated. There was a former client of mine who shot and killed his best friend because the friend refused to lend him a dollar. Intentional, but not premeditated. In Florida that’s second degree murder. Then there was the guy who shot his next door neighbor to death in an argument over how to vote in an election. And the woman who chopped her landlord’s head off because he wouldn’t lend her a dollar. And the guy who stabbed his buddy to death in an argument over who was going to drive the car home from the bar. And the man who beat his father-in-law to death because the father-in-law wouldn’t buy him beer and cigarettes. Then there was the guy who shot and killed two men in a bar because they had a disagreement over a pool game. I could go on, but you get the picture. All of these killings would be intentional-but-not-premeditated under South African law.

I don’t know how loudly Nancy Grace was talking when she told Abrams to read a law book, try a few murders, and get back with her on the definition of premeditation, but I’ve never heard her speaking softly. Of course, she was positive she knew what premeditation meant. Which reminds me of Ambrose Bierce’s definition of positive—mistaken at the top of your voice.

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