Convicted by the court of public opinion

At book stores, restaurants, country clubs, advocate's chambers and conference rooms, each time the scene has been precisely the same.

Nearly every single hand in the room goes up, reaching proudly skyward without the slightest flicker of hesitation. Sometimes, both hands will shoot up, so strong is the conviction of its owner.

It's a simple poll consisting of two questions.

Who in the room believes that Oscar Pistorius genuinely knew that Reeva was behind the toilet door when he shot his firearm?

Who in the room believes that Oscar Pistorius genuinely believed there was an intruder behind the door when he fired?

I've been carrying out this crude poll at each event I've done around the country over the past two months since Pistorius was acquitted of murder and convicted of culpable homicide. Without fail around 98 percent of those in the room raise their hands in response to the first question.

In some instances, there will be one, maybe two, at best three, who answer in the affirmative to the second. Intriguingly, those who do dare to go against the overwhelming public consensus are invariably very angry, as if having to justify their decision.

There is no doubt that despite the finding of the court of law, the court of public opinion has roundly convicted Oscar Pistorius of murder. I have little doubt that a similar poll conducted in the hair salons, beauty shops, restaurants and offices of South Africa regarding Shrien Dewani would return a similar result. The general view of the public is that they 'got away with murder'.

But who, or what, is responsible for entrenching such a strong belief amongst the public that has seen the erosion of the central pillar of our judicial system - that the accused must be seen as innocent until proven guilty?

Is it the fault of the police appointed investigating officers who probe the crimes and identify the suspects, gathering evidence and bringing them to court as accused? In cases which garner intense media interest, such as the Senzo Meyiwa case, for example, officers are under massive pressure to be seen to cracking a case and making an arrest and have to have someone behind bars.

The arrest of a suspect by cops is lauded by the public who automatically assume they got 'the right guy'. The 'accused' is vilified and condemned and convicted.

A narrative is then created around the crime based on the investigations and pedaled through the media to the public. This narrative is usually reinforced by prosecutors in court who endeavour to present evidence to support this version, beyond any degree of reasonable doubt. In both the Pistorius and Dewani trials, the evidence failed dismally to support the narrative and the prosecution's cases collapsed spectacularly.

But the damage had already been done. The narrative had already been created and the public sold on the story, despite the lack of facts to support this and evidence on the contrary showing incontrovertible that it could not be true. In the court of public opinion, Oscar and Reeva had an argument, he chased her into the bathroom and intentionally gunned her down. Similarly, Shrien Dewani conspired and plotted, hiring men to kill his bride Anni as he wanted her dead.

Why has the court of public opinion handed down these rulings? Perhaps it is time for the media to do some introspection on its role in influencing opinions and moulding perspectives on such intensely reported trials. Invariably, at each event where I have conducted this crude poll to determine guilt versus innocence, my own personal opinion has been asked. 'Come on, what do you believe?'. 'Just tell us, you've got all the facts, you must have an opinion'.

While it may be interpreted as self-righteous or naïve, my answer is always that 'I don't get to have an opinion' and 'We are guided by the court'. As a journalist endeavouring to be objective and provide balanced coverage of a case, I cannot pronounce on the guilt or innocence of an accused. Our job is to present the facts and the arguments and allow the reader or listener or viewer to decide.

But despite the largely 'noble' efforts to retain objectivity, we have to consider the possibility that we are inadvertently influencing the public one way or another.

It may be in our choice of descriptors such as 'killing' instead of 'tragic accident' or 'gunned down' instead of 'shot'. Is may also lie in our interpretations and analysis on social media, the flourish of colour in a tweet or an explanation of law jammed in to 140 characters.

In the case of Oscar Pistorius, however, the public was able to watch the entire trial broadcast live on television and reach their own conclusions on the evidence, without a jaundiced view or through the subjective view of a journalist. In fact, this is one of the very reasons Judge Dustan Mlambo granted an order allowing the trial to be broadcast live.

But could we, the media, have done more to interrogate the narrative presented to us by the prosecution instead of replicating it wholesale to a public with an insatiable appetite for the story? Certainly on Twitter, journalists are consistently vociferously attacked by the cynical and the passionate for choosing sides, writing anything that will sell newspapers or books and having scant regard for the truth, whatever an individual might deem that truth to be.

Perhaps this is unnecessarily critical of myself and those in my profession.

Has the court of public opinion convicted because there is a general frustration with the criminal justice system, that society wants vengeance and compensation for their own suffering? Or is it because we have some kind of instinctive bias where, if an individual is being tried, we assume they must be guilty as a result? Does the responsibility then lie with the prosecuting authority in ensuring it does not identify the wrong accused and present a false narrative to the public?

Or is it all so much simpler - have the cops and the prosecutors failed so miserably to present the proper evidence to the court of law to convict an accused that they have actually got away with murder and the public is rightfully outraged and disenchanted? It is important to also remember that the test to convict is higher for a judge - the court of law must convict beyond reasonable doubt while the public can convict on a balance of probabilities.

Whatever the influence on the court of public opinion, it serves to show that our country's lawmakers were wise in deciding that a verdict should not be reached by a jury of one's peers but rather by a presiding officer applying the law.

As Judge Jeanette Traverso ruled in granting Dewani's application for a discharge, a court cannot reach a decision based on public opinion. If that were to happen, there would be anarchy.

_Mandy Wiener is an Eyewitness News journalist and author. She co-wrote Behind The Door: The Oscar Pistorius and Reeva Steenkamp story with Eyewitness News reporter Barry Bateman. _Follow her on Twitter: @mandywiener

This column first appeared on Daily Maverick.