I caught you on CNN the other night doing your talking head thing on the trial of Oscar Pistorius, the South African Olympian who runs on carbon fiber blades in place of amputated lower legs, for the murder of his girlfriend, the model Reeva Steenkamp.
Your Wikipedia entry reminds us why Piers Morgan had you on his show. You are a media star. In 1967, you became Harvard’s youngest ever full professor of law. You held the Felix Frankfurter professorship for 20 years until your retirement in 2013. You have successfully represented a stellar cast of celebrity defendants, including two, O.J. Simpson and Claus von Bulow, charged like Pistorius with killing women they had once supposedly loved.
South Africa, you told Mr Morgan and his audience with what seemed invincible certainty, was a “failed country”. Now I recognize the on-air rules of the game for professional talking heads include expressing yourselves in ways that might be considered unprofessional in a Harvard lecture hall. That said, your comment about South Africa would have been outlandish in any setting. In spite of his English tabloid roots, even Mr Morgan was taken aback.
Happily, Kelly Phelps, a live resident of the “failed country”, was on hand to help straighten you out. “Failed countries” do not generally boast institutions of the calibre of the University of Cape Town where Ms. Phelps teaches law. Nor do they retain talent such as hers. Her resume is worth a read. Her rebuttal that South Africa is “fundamentally sound” should command your respect.
Yes, there are failed countries out there, but by no reasonable definition of the phrase can South Africa be counted as one of them. In a genuinely failed country, Mr. Pistorius would not be on any kind of trial, let alone one conducted as scrupulously as the case at hand. Not only is justice being done in Pretoria High Court courtroom GD, it is being seen to be done on television and computer screens the world over in real time.
I was struck by your insinuation that Judge Thokozile Masipa, being black, would be unable to give unbiased consideration to the white defendant’s claim he thought he was shooting an intruder – a person he would he would have presumed to be black. What personal knowledge do you have of Judge Masipa to support this? Or is it simply what your gut tells you? And if so, would it be unfair to suggest that what was informing your gut was, principally, an unworthy set of reflexive assumptions?
What you will not see in Judge Masipa’s courtroom are defense attorneys cynically attempting, as they did in the O.J. Simpson case, to manipulate the racial fears and biases of jurors to secure an against-the-odds acquittal. There is no jury. When Judge Masipa has heard the evidence and reached a verdict, she will be obliged to explain in exhaustive detail how and on what basis she and her two assessors got there. Any trace of bias will be grounds for appeal, all the way to the constitutional court if necessary.
Mr. Pistorius’ lawyers will naturally do everything they can to establish the plausibility of their client’s version. That’s their job. No doubt they will highlight South Africa’s well-documented rates of crime, including home robberies. They will also seek to undermine the prosecution’s case by impeaching the competence of the police and asserting the contamination of evidence. In much the same way did O.J. Simpson’s legal team try to destroy the credibility of the detectives who investigated Nicole Brown’s murder. I am certain, Professor, you know to distinguish between what is said in a courtroom to make a case and the more nuanced realities of the world outside.
I happen to have some experience with what legal proceedings look like in a failed, or at least failing, country. In 1977, as a junior reporter, I was part of the team sent by a local newspaper to cover the inquest into the death in police custody of Black Consciousness leader Steve Biko.
The inquest, like the present trial, took place in Pretoria, then at the heart of apartheid darkness. There was no justice in that courtroom, nor any hope of it, the extraordinary talent of the Biko family’s legal team notwithstanding. No unprejudiced magistrate could have found that Mr. Biko’s fatal brain injuries were the result of something other than the brutality and callousness of his captors. The actual verdict was a cover-up of judicial murder: “the available evidence does not prove the death was brought about by an act or omission involving an offense by any person.”
That country, mercifully, did fail. The people of South Africa came together under some remarkable leaders, including the late Nelson Mandela, to build a new one, whose twentieth birthday we celebrate this year. The rights and dignity that Mr. Biko and countless others were jailed, tortured and died fighting for are now enshrined in a constitution that has been extolled by Justice Ruth Bader Ginsburg – much to the knee-jerk shock and horror of Fox News – as “a great piece of work” and a model for other emerging democracies.
South Africans may sometimes struggle to live up to the high ideals and standards embodied in their re-founding document, but don’t mistake failings – failings we candidly ackowledge and are striving to correct — for failure.