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Oscar Pistorius Granted Bail; Interview with David Smith; Interview with Ted Simon; Interview with Andrew Neveling; Interview with Omphile Mogotsi;

Aired February 22, 2013 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

LLEWELYN CURLEWIS, LAW PROFESSOR, PRETORIA: Faces a long road ahead. I don't necessarily say it will culminate in a jail term but make sure, make no mistake a person still died and the courts are reluctantly going to look at it, frown upon it and say a person must not walk out scott free for committing a killing of some sort.

ROBYN CURNOW, CNN CORRESPONDENT: Llewellyn Curewis professor in law here in Pretoria. We're going to bring him in a little bit later, but back to you, Soledad.

(CROSSTALK)

O'BRIEN: Robyn Curnow's been following this case from outside the courtroom. So, the news is Oscar Pistorius has been granted bail, right now they're on a five-minute recess and working out the details of the terms of the bail, how much money obviously is going to be the big question.

We get to David Smith he was in the courtroom, the Africa correspondent for "the Guardian." David, thank you for talking with us. Give me a sense of what the reaction was on the part of Oscar Pistorius, who we've been watching throughout the entire hearing as he sometimes sobbed and sometimes was in shock. What did he do in the courtroom when the judge announced I've come to the conclusion that the accused has made a case to be released on bail?

DAVID SMITH, AFRICA CORRESPONDENT, "THE GUARDIAN": You know there was nothing too theatrical, (INAUDIBLE) he seemed like a man lost in his own world and even when that ruling came down, he remained sort of relatively impassive in the dock. There was a bit more reaction from his family, although I think by that moment everyone had realized which way it was going, and relief all over their faces and even now they're sort of embracing, they're locked in circle, holding a collective prayer, but the real theatricals came from supporters of Oscar Pistorius at the back who leapt to their feet and punched the air and shouted yes. Actually great relief for the Pistorius family.

O'BRIEN: The chief imagine state Desmond Nair was sometimes incredibly dull while he would lay out the history of jurisprudence in South Africa but you could see him getting more animated in his voice was when he talked about the mistakes that were made specifically by the lead investigator, Botha, and he would tick off all of the things that were failures upon the part of Botha but at the same time said he is not the state's case. How much do you believe that from the judge's perspective did the mistakes that were made led to the bail being granted?

SMITH: You broke up there at the crucial moment but just to say that yes he did do that with relish, sort of picking apart the detective's evidence and interestingly made no reference to the detective himself now facing charges of attempted murder which is obviously made headlines, but at the same time yes he stressed the detective is not the same as the state and after all, this is only a bail hearing and when we come to trial and there's no idea when that is, the state will have forensic tests and ballistic tests and you know, the situation will look different and of course the magistrate did also lift (ph) some improbabilities in Oscar Pistorius' version. He went towards the danger and he didn't check who was in that bathroom so there's still a long way to go and questions for both sides to answer.

O'BRIEN: Clearly. So David I'm having a little bit of a hard time hearing you. I can imagine the noise around you now in the courtroom where you are people are just really ramping up the noise but I wanted to ask you, what happens next? We know that he could in the next 30 minutes or so, once the amount of bail is set, he could literally walk out at technically free because he only has to now prepare for the charges against him. In South Africa, how do you think that will be perceived? Where does this conversation go among the people in South Africa as he walks out and prepares for his upcoming trial?

SMITH: Well, of course we get some real time reaction these days on Twitter, which is then extremely popular as a tool in South Africa following in this case and I've seen reaction both ways, even up to the minute people screaming strongly he should not have been released and others more supportive, the public opinion has shifted both ways and I think we will now see some criticism from groups campaigning against violence against women which had been a hot topic already even before this case and some of those groups have already made their feelings known about this and some claim that Pistorius is a wealthy white famous man is receiving preferential treatment over a lot of people in South Africa's justice system. I think either way the magistrate could not win. There will always be controversy.

O'BRIEN: Let me ask you one final question which was what was the reaction from the relatives and friends of Reeva Steenkamp who were in the courtroom?

SMITH: They have only just appeared in the last few hours so they've been most absent from this case and a couple of close friends and they remain somewhat stony faced and I was close to them and I immediately turned to them for comment and they just said no comment. And the older of the two natives who were here almost like Reeva's almost mother figure became quite upset and started to cry, so yes, it will be interesting to see what the other members of the Steenkamp family have to say.

O'BRIEN: David Smith, the Africa correspondent for "the Guardian." Thank you, David, we appreciate your insight from inside that courtroom. Let's talk more about this. I began to get some signals I thought when the chief magistrate was talking about the lead investigator. He sounded very angry. He would tick off, it was the first time he sounded very engaged as opposed to the reeling off sort of the history of South African law and what they have done historically in bail hearings. He sounded very mad.

JEFFREY TOOBIN, CNN LEGAL ANALYST: That was certainly part of it although I think the main thing that the judge was concerned about was the issue of risk of flight and the prosecution had no real good refutation to the argument that he's so famous, he's disabled, he's not going anywhere, he's a South African and will surrender his travel documents. That seemed to me the most persuasive argument in favor of bail.

O'BRIEN: One of the things that I thought was very interesting as the magistrate did a good job, long job but good job, of laying out every single argument that had been presented on either side after he went through all of the mistakes of the lead investigator, Botha. He then said all of the improbabilities in the case on the part of Oscar Pistorius.

CHRIS JOHN FARLEY, SENIOR EDITORIAL DIRECTOR, DIGITAL FEATURES, WSJ: He said of course this is a bail hearing but he did go through that and it's clear to me from listening to the magistrate that there's a feeling that Oscar Pistorius isn't the only one on trial. To a certain extent we're getting a trial of the South African legal system, how it works and operates, whether the interests of justice will be served by all of this and I think that everyone realizes we're under the microscope even if it's just on audio not on video.

O'BRIEN: I would believe that's why the lengthy involved sort of walking us through the process of walking us through the process.

CAMERON RUSSELL, FORMER MODEL: And I think the fact that he was sort of upset with how just the bail hearing had gone speaks to a larger concern that if there can't be justice for a woman who is wealthy and famous and white in South Africa, what woman can there be justice for.

O'BRIEN: It will be interesting to see which direction this case goes if in fact David Smith from "the Guardian" was talking about that, the immediate aftermath of this, who comes out sort of --

TOOBIN: Let's just be clear about one thing. This is a huge, huge victory for Pistorius. He doesn't have to go into South African prison. That's the most immediate thing. That is an enormous just advantage for his life. It is also a lot easier to prepare for trial when you are out on bail than when you are in prison. It also allows him to push for delay which criminal defendants always want to do, kick the can down the road. Evidence rarely gets better with time. It's a lot easier to argue for delay when you're living in your nice house in Pretoria rather than locked up in prison. So across the board in terms of his immediate life and his legal future this is an enormous victory for Pistorius.

O'BRIEN: Let me get to Ted Simon, he's a criminal defense attorney and has obviously been involved in many high profile cases. So Ted, we talked about yesterday, you said it's so much better to have your client out in terms of logistics for the case but also from terms of how people perceived the case as well.

TED SIMON, CRIMINAL DEFENSE ATTORNEY: Absolutely. I think it's surprising but yesterday we covered this in detail and I think the judge did an excellent job. It was careful. It was comprehensive. It was considered. It was deliberate and it was important that he did this so that the world could see why he was making his decision. He gave the history of the law of South Africa, he then carefully went through the affidavit provided by Pistorius, which we talked about yesterday, the reason he did that was to demonstrate and attack and rebut the premeditated nature of the case, but if he hadn't put that in, I think we would have been in a different situation. All of that boded well for him. And, yes, the fact that he's out, he'll be more easily cooperate with counsel and be able t5o effectuate a better defense. It was very interesting and you couldn't tell exactly where the judge was going especially when he said the defense failed to show the weakness in a case, and at that moment it seemed lining it might be going the wrong way for Pistorius. But then he immediately followed it up by saying, but the state could not show that its case was so strong that the defendant would flee, and that is the standard, and that's what turned the case, and that's why he released him. It was not only there was no risk of flight but they had failed to show any propensity of violence or danger in the future or that he would interfere with the case.

O'BRIEN: He definitely was not happy with the investigator and he was not happy with sort of the case as it has been presented to him even though he did say an investigator does not become the state's case but certainly even while he was saying that he was sort of saying it's a big part of what he had problems with what the state had done.

SIMON: If we went through it he was very balanced. He probably went through at least 20 facts that I wrote down that were supportive of the position of the defense, and while there is some speculation as to some of the diversion presented by Pistorius, it's still ambiguous. One of the big questions that the judge presented was, you know, why didn't he wake his girlfriend? Why didn't he shout out to her before he went in? Why did he intrude on the alleged intruder? And there's another reason for that, too, and I don't want to sound overly defense oriented. He may have wanted to have the elements of surprise over the person he perceived as intruding. He didn't want to touch her or thought she was there and have her get surprised or yell or something so there's a possibility on the other side of why he might have acted the way he did.

O'BRIEN: Well, there are many - clearly his defense team will be walking through all of these things that the magistrate has highlighted as improbabilities and as you've mentioned some and others that the magistrate mentioned where here you have a guy described as being terrified yet he runs toward the bathroom saying that he doesn't even put his leg prosthesis on.

SIMON: We don't know -

(CROSSTALK)

O'BRIEN: This is what the magistrate laid out.

SIMON: We don't know he ran to, maybe cautiously approached.

(CROSSTALK)

O'BRIEN: You're a defense attorney so we understand this is exactly what his defense attorneys will be doing.

I want to bring in Andrew Neveling editor of "Heat" magazine in South Africa. It was your magazine that did the last interview with Reeva Steenkamp. So, before we get to a little bit of that, I wanted to ask you first, what do you make of the judge granting bail for Oscar Pistorius?

ANDREW NEVELING, EDITOR, "HEAT" MAGAZINE: Well, good afternoon. To be honest with you, we weren't sure where it was going to go before but I think despite the long, long, long bail hearing, I guess it's fair. That's my personal opinion, but the response on Twitter is very mixed at the moment in South Africa. Quite a few of Reeva's friends have spoken out already saying they're not happy with the decision.

O'BRIEN: On what grounds have they said that? Have they given their reasons why they're unhappy?

NEVELING: No. I mean let's be honest, it's probably more emotional than anything else because they've lost a friend, but it's just been outcries of no, how can it be, that kind of thing, but no explanation as of yet.

O'BRIEN: We're hearing now and this is breaking news in to CNN that bail has been set and the amount is $28,500, so this is the bail that we know that Oscar Pistorius -- $250,000 rand is the amount. Hold on one second for me, Andrew, while I turn to Jeff Roobin for a little bit of analysis. $28,500 U.S. equivalent of rand is not a high bail.

TOOBIN: It's not a lot but once the judge made up his mind that Oscar Pistorius is so famous and so tied to South Africa that there is basically no way for him to flee, and that he's going to surrender al his travel documents and his passport, the amount is actually not all that significant. This is not obviously a lot of money even in South Africa, but I think what's really important about this case is his ties to the community, his personal situation rather than the dollar amount of bail.

O'BRIEN: What's been, Andrew, the fallout from this case in sort of the bigger picture? One of the things we know that the defense team has been positioning is that there's this culture of fear and that somebody who is famous would be likely and expected to be fearful. That's what Oscar Pistorius is sort of describing as he explains what he did the evening that he shot and killed his girlfriend. Explain that to us here in the United States who don't necessarily get that.

NEVELING: Okay, well let's be honest, South Africa is known for its crime and from what I understood initially is that, that was the fear level was coming more from is there an intruder in my house. The famous aspect you just mentioned, I mean like that's a whole different scenario compared to crime. Stalker and somebody in your house, a criminal coming to steal from you or harm you is two different things. Somebody did make a point earlier if he was fearful why not have bodyguards outside his house monitoring his property. That is quite a question.

O'BRIEN: Interesting. What do you think will happen next as Oscar Pistorius goes back? I mean, we have been told that it could be 30 minutes before sort of the -- I guess the paperwork essentially is done and he's able to walk out basically a free man as the trial moves forward? What will the community reaction be as he walks around? What happens there?

NEVELING: We can only wait and see. I think the people, his friends, his family are obviously thrilled at the moment but I do think that there are quite a lot of people close to Reeva and I think -- I think it's going to be very, very split but it's going to be very interesting to see -- to see the next couple of months unfold.

O'BRIEN: We'll be watching it as well as you are, Andrew Neveling he's the editor of "Heat" magazine. Thank you Andrew I appreciate your time.

Let's get right back to Robyn Curnow. She is outside that courthouse and has been talking to some of the people who have been watching and listening to the proceedings. Robyn, good morning again.

ROBYN CURNOW, CNN CORRESPONDENT: Hi there. Well what has been fascinating about this case and about Oscar Pistorius' celebrity in a way is how he has been loved and his life story has cut across racial and class in this -- in this community which is so broken and so divided still nearly 20 years after apartheid.

Often one news story sort of rings true with only one set of the community. What has been fascinating about this is that the whole country from you know, from the poorest of the poor to the wealthiest of the wealthiest have been gripped by the minute details of this case.

So I want to bring in a young South African, he's been at work all day, he came down to the court -- have a look at me -- came down to the court just because he was fascinated. How have you been following this case, Omphile?

OMPHILE MOGOTSI, REACTING TO PISTORIUS BAIL VERDICT: I've been reading the papers, checking it out on Twitter, Facebook I'm actually walking two blocks from my office to here every day just to see what the scene is like and yes --

CURNOW: Why? What for you has made this such a personal issue?

MOGOTSI: I mean I'm a big fan of Oscar. I mean what he's done as an athlete and all of those that is broken and as just sad I feel as to how the people came down on him the first moment they heard what had happened. I mean it's heartbreaking to see the different jokes that are on Twitter.

CURNOW: There are some bad jokes out there.

MOGOTSI: Yes I mean, it's in bad taste I should think and I thought let's let the law take its course and, yes. This bail application just took a way lot longer than it should have I think. That's all.

CURNOW: I mean, you, your friends, your family, I mean, have you been talking about this in ways, have you been following it in detail the way than a lot of other people have?

MOGOTSI: Yes and it's -- it's amazing how my family members would feel completely different to how I am.

CURNOW: Why do they think he should go to jail?

MOGOTSI: Some of them -- some of them think he should rot in jail and he's a danger to society. And I mean it's funny how yesterday we called him a hero and the following day people just say no, he should just be put to the sword.

CURNOW: So that is the sort of spectacular fall from grace and I think that makes many people quite emotional about this. I mean how do you see this playing out over the -- over the next few months? Do you think Oscar is going to literally divide the country between for Oscar and against Oscar?

MOGOTSI: Actually at the moment that's how it is. That's how it is.

CURNOW: Yes.

MOGOTSI: You can see that divide and yes like I said let's just let the law take its course and we'll see. I just hope that his celebrity status won't come back to bite him because with high-profile cases like this, the celebrity status tends to come back and bite them because the law wants to come down hard on them.

CURNOW: Teach them a lesson -- you think?

MOGOTSI: No, yes because they think that because that celebrities are above the law and that's not actually the case I think.

CURNOW: Have you seen the pictures, there have been a few of them of Oscar and of course I think a lot of journalists have described it, it looks like he's really a broken man, physically this is not the hero.

MOGOTSI: Yes.

CURNOW: He seems to be physically broken by this. Just give me some sense of how it's made you feel seeing this.

MOGOTSI: Yes, what I said to my colleague earlier was that she said that Oscar is always breaking down, ever since the --

CURNOW: He's crying.

MOGOTSI: Yes he's crying all the time. And I said what we tend to forget is that Oscar is only 26. He's still a young man and it must be tough for him. He's got a long road ahead of him and for this to happen, I mean it's -- it's sad for the athletics, the Paralympics and for the country as a whole. CURNOW: Do you think this brings -- this whole debate about violence against women, about gun violence, about the high levels of crime in south Africa, do you think it's about that or do you think this is just a very personal human tragedy?

MOGOTSI: It's -- it's just a personal human tragedy. It could have happened to any one of us. That's what I think. It could have been me, yes.

CURNOW: Thank you.

MOGOTSI: Ok.

CURNOW: And no doubt he will be coming down to the court after work during that trial. There's the high court around the corner from here where it's most likely to play out probably next year.

I just want to give you some sense Soledad of the experience in -- inside the court. My producer just handed me a Blackberry to pass me a piece of information. "After discussion the bail was raised to a million rand. The next court date is June the 4th." So that's the next time we can see him -- in a legal system.

So just to continue, I spent a lot of time watching Oscar as I said in the court and also speaking to some of his family and friends. And I got a sense from his family the one day that they're very worried about his mental state. And I think there's going to be a family gathering around this man watching him closely as he tries to grapple emotionally and psychologically with the implications of what he did.

O'BRIEN: Robyn Curnow for us. Thanks Robyn I appreciate the update.

It's been very interesting to hear as you heard from the young man that Robyn has interviewed, right? He called him Oscar, Oscar. I mean, you can tell that he was sort a beloved state -- country hero. Clearly by the way people refer to him and also everyone are very concerned about his state of mind and how is Oscar holding up and how is -- and the sort of the conversation about the victim has been a little bit lost.

TOOBIN: I have covered a lot of these celebrity murders. And this is how the public reaction always works, which is you know how is the defendant reacting, what is it like for him? Are people rushing to judgment? And the victim disappears from the story.

And it was so interesting to hear that gentleman talk and you don't want to interpret too much from a single man on the street but this is what goes on in these celebrity cases.

(CROSSTALK)

O'BRIEN: Is it like more time passing is better for a defendant?

TOOBIN: Oh it is so -- well, there are a million reasons why more time is better.

O'BRIEN: Ok walk me through some of them.

TOOBIN: Well mostly passions cool. And people's memories fade. You know one of the classic questions on cross-examination is are you one of those people whose memory gets better with time. Of course there's nobody's memory gets better with time. Evidence gets lost. People move on to different jobs, people forget things. I mean it is always, always better for the defense to have a delay.

O'BRIEN: Robyn mentioned that the magistrate even though the bail as we mentioned had been set at 250,500 rand which is roughly $28,500. Sorry 250,000 rand which is $28,500. The magistrate went on to raise that bail. So now that bail is 1 million rand which is roughly $114,000. And as she mentioned as well there is a June 4th court date to continue this case. He has also been told by the court, Oscar Pistorius, to surrender his firearms and to surrender his passport, of course, referring back the fears that he might flee.

TOOBIN: The argument that he was not a risk of flight, that was clearly the most important argument to the judge. And the prosecution had no real good response to that. This guy is a celebrity. He is well known inside South Africa. He's well-known outside South Africa and frankly here's a guy with prosthetic legs. He's not exactly -- that's a pretty distinctive physical characteristic.

The idea that he could somehow slip into anonymity outside South Africa was not really a plausible argument and that really did seem to me for all the long analysis of the evidence, that was the key factor in the judge's decision to grant bail.

FARLEY: I found it interesting that the judge credited the defense team with actually going on the record with some version of the events. Doesn't that sort of raise the bail for Pistorius because he purchased his release really with giving some evidence to the prosecution that they may use against him later on?

TOOBIN: Absolutely. I think you make a really excellent point because that was something that all of us who followed these cases criticize. Don't commit yourself so specifically to a story when you are a defendant in advanced of seeing all the evidence in the case. It turned out to be very helpful on the bail decision. However --

O'BRIEN: The spokesperson said the same thing. We've been following the tweets. They said it was risky to do that but they did it in order to get bail.

TOOBIN: And they did it to get bail but it very much could come back to haunt them. If the physical evidence comes in, the ballistics, if that contradicts his affidavit, he could be in trouble.

One very interesting thing that the judge mentioned that we haven't talked about in terms of the evidence, remember one of the issues in the case is why were there two cell phones in the bathroom? Because the prosecution asserted that's because she was in fear for her life and that she wanted to --

O'BRIEN: Lock herself. TOOBIN: -- lock herself in and maybe call for assistance. The judge pointed out that the prosecution did not see if calls has been made on those phones.

O'BRIEN: Right. I mean again back to --

TOOBIN: And that's something certainly they're going to do now and it could be very helpful. It could not be helpful.

O'BRIEN: Let's go back out to Ted Simon. Ted, we know you're a criminal defense attorney -- a very high profile one but I want you to take off your defense hat for a moment and put on a prosecutorial hat. We were talking about the risks of the defense team in laying out the case essentially, right?

In an affidavit --- they didn't have to put him on the stand specifically. What are the risks is there in what we've already heard in that affidavit? What is at risk that the prosecutors now will pick apart his statement?

SIMON: Right. I mean certainly by advancing a version of facts there is some risk but you're always weighing, you know, risks and benefits. In this particular case, we talked about this yesterday, that it was a smart move, at least for bail, to provide that affidavit.

Yes, the prosecution will try to pick at it, find things that are inconsistent, but they may or may not be able to do that.

I would return to something -- this wasn't solely about risk of flight. More particularly under South African law and just what the judge said, it was that the state could not show their case was so strong that it would amount to the fact that the defendant would want to flee. So they are intertwined. The case is not so strong and therefore he's not likely to flee in addition to the fact that he has significant interests to South Africa.

Now I don't want to go into too many points but let's start thinking about what the judge said. He said they didn't find any phone calls. The crime scene may have been contaminated. They agreed to the likely version of the defense statements.

The prosecution could have done more. They went so far even to see if the officer was using the correct language, his home language which was Afrikaans as opposed to English. They didn't investigate the memory stick. The distances were too far to determine the location of these alleged screens --

O'BRIEN: He went on and on and on but then as you know Ted, he said he is not the state's case. He picked the Investigator Botha as someone who made a long list of mistakes but ended that entire rant with but he is not the state's case. The state's case is going to be experts.

SIMON: That's all true but it doesn't negate the fact that that is a series of individual facts that work in favor of the defense. They're not necessarily going away. It just puts into play that there are substantial problems with the case and yes this will largely become a forensic case and there will be experts -- and likely experts on both sides.

O'BRIEN: Ted Simon, I have to stop you there, because we're coming to the top of the hour.

SIMON: Ok.

O'BRIEN: I want to thank you for joining us from Washington D.C. this morning. We appreciate it.

I want to throw the final question to the panel as we sort of wrap up the morning. You, Cameron, had late out some of the issues about the numbers of violent attacks on women and this is certainly going to become high profile as this case now really goes to trial; it will back in court on June 4.

RUSSELL: And I think it's everything about preferential treatment, it's also preferential of him versus, you know, other people that are accused; and maybe him versus his girlfriend.

O'BRIEN: As much as Ted laid out the list of things that Botha did wrong, we also know that the judge laid out all the inconsistencies and improbabilities on the part of Oscar Pistorius.

TOOBIN: Sure, they are -- he's in a world of trouble but let's not over analyse. Today was a huge, huge victory for him. He's not going to be in prison for the foreseeable future. That's a win. That's unusual in South Africa as it's unusual in countries. Sure, he can deal with the problems in the case -- he can try to deal with the problems in the case down the line, but he's getting out of prison. That's huge.

O'BRIEN: Huge news as he's granted bail a million rand which is roughly $114,000.

Final word from you on where this goes now because I think a big question is going to be how people respond to his being released on bail.

FARLEY: Very important question. You know, right now we know the accused. We know him through the Olympics, through TV commercials. Will we get to know the victim now? Will we get to see what she's about, the reality show she was shooting. Will she be humanized in the media in the coming weeks and what effect will that have on the trial.

O'BRIEN: A big thank you to our panel for staying around for a little bit longer with the magistrate going very, very long. We appreciate your time this morning.

"CNN NEWSROOM" begins right now.

Have a great weekend, everybody. We'll see you back here on Monday morning. CAROL COSTELLO, CNN ANCHOR: Good morning to you, I'm Carol Costello. Continuing our breaking news coverage now. Oscar Pistorius gets bail. A South African magistrate announced this decision last hour after painstakingly reviewing arguments in court and citing case law.