Oscar Pistorious Should Focus on the Marathon

A criminal case is a lot like a war. The trial is the final battle that most people see and read about. Along the way, there are smaller battles fought by opposing sides employing a large amount of strategy.

As we continue to follow the case of Oscar Pistorius from South Africa, the bail hearing outlines the first such skirmish.

In New York State, the bail hearing is usually an informal proceeding where the lawyers argue over whether the defendant is a flight risk. The attorney for the people uses Criminal Procedure Law Section 510.30 to argue the following factors in favor of bail:

1) the defendant's character, reputation, habits, and mental condition,
2) the defendant's employment and finances,
3) family ties,
4) criminal record,
5) prior warrants,
6) weight of the evidence against the accused, and
7) the possible sentence.

The defense then argues the reasons why the defendant is not a flight risk using these same factors. The entire process takes less than five minutes.

And that is why the bail hearing against Oscar Pistorius is fascinating. It has stretched on for days and both sides have presented a significant amount of evidence. The first few steps in the criminal proceedings are akin to a prosecution offensive. The police decide when to make an arrest and on what charges, the prosecution lays out only the evidence they want to, and the prosecution controls the secret grand jury proceeding. The defense strategy is usually to weather this storm and gain as much information and pre-indictment discovery as possible, without giving too much of their defense away.

Within the first few hours of Pistorius' first court appearance, the defense had relayed their client's statement and entire defense. Now the prosecution can spend their time destroying his statement and proving it false. Defense attorneys and their clients must always balance the short-term goal versus the long-term ones. No one wants to stay locked up, but sometimes remaining in custody might help you win the case. It's difficult to explain to a client that remaining in jail is good for them in the long-run as it might help win their case. If Pistorius wins his freedom at the bail hearing, he'll win an early battle, but is it worth losing the war for his life?

That being said, South African law is certainly different than New York State and I expect to have a post up relating to those differences at some point.

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