Pistorius Trial: Week Eight, Day One
The end is in sight. As we commence week 8 of the Oscar Pistorius murder trial, it's expected that the defence will wrap up their case after just a few more witnesses. Barry Roux said last week that he might be able to rest his case as soon as Tuesday (tomorrow). For now, ballistics expert Wollie Wolmarans is still getting the Nel treatment. By REBECCA DAVIS.
09.00 Day 30 of the Oscar Pistorius murder trial, though it seems longer than that. We have reason to believe that we're into the final stages of the defence's presentation of their case. Have they got any final aces up their sleeves?
Wollie Wolmarans will be back on the stand today. After that, the speculation is that the defence team will call a psychologist to ttestify as to Pistorius's feelings of vulnerability while on his stumps. It will be interesting to see what other witnesses, if any, the defence may finally call to strengthen their case. The feeling from some commentators is that, for all the reported resources of the defence team, their expert witnesses in particular have not brought as much to the stand as might have been expected.
It's also worth noting that the defence has not really touched the three minor charges Pistorius faces beyond murder, except for Roux's questioning the athlete about the circumstances of each on the stand.
In the weekend papers, Afrikaans Sunday Rapport reports that Pistorius's alleged new girlfriend, Leah Malan, is lying low to avoid media attention, but that the relationship is ongoing. The newspaper also claims that Malan's father is a close friend of Pistorius's uncle Arnold, and a big fan of Oscar's. So there you have it.
10.45 Nel has finished his cross-examination of Wolmarans, with Roux requesting a short adjournment to set up a reconstruction, as seems to be all the rage in court these days.
Nel leapt between a number of issues during his questioning today, but paid particular attention to the tests carried out by Wolmarans and the defence team, again querying where Wolmarans’ notes were; why two sound tests were done – Wolmarans didn’t know; and why there was a gap between the tests - Wolmarans was busy. Returning to the matter of background noise in the sound tests – it’s Nel’s suggestion that the sound of the cricket bat may have been amplified – Wolmarans again stressed that he is hard of hearing.
EWN’s Barry Bateman, more often found on radio than in print, has an interesting piece today on Wolmarans and the expert witnesses contracted for Pistorius’s defence. In it he suggests that “what has emerged is a defence team that has patched holes rather than punched them”, and calls Wolmarans’ admission that he only submitted a formal report on his ballistics findings two months into the trial “staggering”.
Back in the courtroom, Nel returned to the matter of the marks on Steenkamp’s back. Though Wolmarans does not believe the state’s version that these were caused by a ricocheting bullet, he said last week that he also didn’t think they could have been caused solely by falling on to the magazine rack, as the rack lacked sharp edges. (He said that it might be possible for them to be caused by the magazine rack rubbing against the vest Steenkamp was wearing.)
Today, Nel pointed out that former defence witness Jannie Botha testified that the marks on Steenkamp’s back were striations from the rack. Wolmarans said he had respect for Botha, but that he disagreed. This is not the first time that defence witnesses has contradicted each other on the stand. With seeming weariness, Wolmarans also asked whether it really matters if the abrasion was caused by the magazine rack, explaining why he had neglected to reconstruct the scene in a matter allowing for this.
Wolmarans admitted again that he had met up with former defence witness Roger Dixon, at a restaurant called Jock’s, and the two had enjoyed T-bone steaks – although what Wolmarans had really wanted was pork chops. Despite this vivid menu recall, Wolmarans professed not to be able to remember exactly what the two men had spoken about, but suggested they might have had a general discussion about the Pistorius case. (Nel’s suggestion, remember, is that Wolmarans tailored his evidence to fit Dixon’s.)
Both state and defence agree that the first bullet that struck Steenkamp hit her in the hip. It’s the state’s claim that the second bullet missed (allowing a window for Steenkamp to have screamed), which the defence contests. But Wolmarans did not seem inclined to argue the point particularly strongly. Wolmarans (and the defence) continue to claim that Steenkamp fell back after being struck on the hip, and was hit by the other bullets in such close succession while falling that she would not have plausibly have had time to scream.
One of the final admissions drawn from Wolmarans by Nel was that the ballistics expert has not done any proficiency tests since leaving the police in 1992.
11.15 Tea-time in the Pistorius trial, where a new witness is already on the stand.
Before that, though, we saw Wollie Wolmarans turned over to the defence’s Barry Roux for re-questioning. Roux explained that during the break, he had asked someone to recreate the stance of sitting on a magazine rack to show how things must have happened in the state version for Steenkamp to end up with bullet ricochet marks on her back.
“For a bullet to make a U-turn and come back…it must use all its energy,” said Wolmarans, calling the state version illogical.
Prompted by Roux, Wolmarans also got up to demonstrate that the probes stuck through the toilet door, used by the state to determine bullet trajectory, may not be strictly accurate. Wolmarans showed that it was possible to wiggle the probes through the bullet holes upwards, downwards and even sideways – suggesting that there should be some uncertainty about how exactly the bullets travelled.
Under questioning from Roux, Wolmarans confirmed that recoil from the firing gun would cause one’s hand to move after firing the first bullet. The defence contends that the accuracy of the state’s version, by contrast, depends on Pistorius’s hand being in the same position throughout.
Finally, Wolmarans indicated his willingness to set up an in loco sound test. This would mean that both the defence and the state, and the judge and her assessors, would attend a sound test together to hear the comparative noise of a cricket bat striking a door and a gun being fired. Frankly, it seems like we could have saved a lot of time if this had been organized earlier.
Wolmarans is freed from the stand, so he can head off to meet Roger Dixon for pork chops and beer. Taking his position in the hotseat is forensic psychiatrist Merryl Vorster, who was contracted by the defence to evaluate Pistorius and interview family mambers, colleagues and friends.
In 2006, Vorster testified in defence of a businessman accused of killing his ex-wife that he may have suffered “temporary amnesia” when he stabbed his former wife 13 times.
Under questioning from Roux, Vorster recounted the findings of her report to the court. The gist of it was that Pistorius is a highly anxious individual – he suffers, in fact, from a “generalized anxiety disorder”. Vorster suggested this might have stemmed initially from his early operation to remove his legs, where Pistorius would not have been able to understand what’s going on.
Vorster said it was likely that the Pistorius kids absorbed some of their mother’s anxiety, painting her as an anxious woman who abused alcohol and kept a gun under her pillow. The death of his mother at 15 would have led to Pistorius being “significantly traumatized”, causing an increase in anxiety.
When his athletics career took off, Pistorius spent a lot of time overseas, and was “quite lonely”, with few “long-term relationships”. Returning to South Africa from training in Italy, he bought a firearm to help cope with his growing crime anxiety. People with anxiety work hard to control their environment, Vorster suggested. With that, it’s time for tea.
12.15 Psychiatrist Vorster continued to explain the results of her psychiatric evaluation of Pistorius in the post-tea session. Pistorius’s 2009 boating accident (which we wrote about here) is likely to have increased his anxiety. In sexual relationships he felt embarrassed revealing the extent of his disability, and this too heightened anxiety. Pistorius, she said, spent hours preparing for media interviews so that he would not be embarrassed on the spot.
Following South African news from Italy, he was particularly worried about crime befalling his sister. He was “hyper vigilant” when at home in South Africa.
Crucially, she said: an anxiety disorder like Pistorius’s may lead you to perceive your environment as threatening when it is not.
In an interview about the events of 14th February, Pistorius began crying and retching. Vorster believed this behaviour to be genuine, explaining that his pallor and sweating were inconsistent with someone faking a retch. When asked to remove his prosthetics, he did so with embarrassment. On his stumps, Vorster testified that Pistorius’s ability to walk was poor, as was his balance.
Since the shooting of Steenkamp, Pistorius has become depressed. Vorster said there was no evidence to suggest that he was depressed before. His generalized anxiety disorder seems to be increasing with time. One of the aspects that enhances anxiety for him would be that in normal threat situations, humans are faced with a “fight or flight” internal debate. Pistorius knew that he was unable to flee, and this made him more likely to fight, she said.
Time for cross-examination from Gerrie Nel, who wasn’t in any mood to hear any further sympathy-inducing testimony.
Nel cut straight to the chase. “Are you saying he had diminished responsibility?” he asked. Vorster replied that she was saying that his physical vulnerability and generalized anxiety disorder would have rendered his responses “different”.
Nel said that if Vorster was saying there was a possibility Pistorius suffered from diminished responsibility, he should be referred for observation. Vorster replied that that was something for the court to consider. She acknowledged that it was a possibility.
Nel read to the psychiatrist from section 78 of the Criminal Procedure Act, dealing with the necessity of independent assessment of the accused if he or she is said to have a mental disorder.
Generalised anxiety disorder is not a mental disorder, Vorster replied. Nel shot back that it’s included in the DSM V (the psychiatrists’ compendium of mental disorders). Vorster reiterated that it was a psychiatric diagnosis, not a mental disorder. The latter would affect one’s capacity to tell right from wrong. Generalised anxiety disorder would not – unless, she conceded, there were elements of paranoia also involved. Vorster said that she was bringing the generalized anxiety disorder to the attention of the court because she did think it was relevant to the facts of the case.
With that, Nel asked for an early lunch break. He’ll be using it to consult the Criminal Procedure Act. Nel’s point is that if the defence is now diagnosing Pistorius with a disorder, which they clearly hope will play into mitigation of his actions, then it is surely necessary for Pistorius to be independently evaluated. We’ll have to see if Nel thinks it’s prudent to push this issue further after lunch.
15.00 End of the day for the Pistorius trial, after a rather dramatic session here.
After lunch, Nel extracted from Vorster the information that she had interviewed Pistorius for the purposes of assessment twice, on 2nd May 2014 and 7th May 2014, with interviews with his friends and family carried out on the 5th. Yet again, the question this prompts is why so much of the Pistorius defence work appears to have been carried out so late in the day, opening their expert witnesses to the accusation of tailoring evidence. In Vorster’s case, she acknowledged that she had been following the trial in the media, but not “closely”.
Her first psychological evaluation of Pistorius, then, took place after his testimony on the stand, leading Nel to suggest that part of his anxiety could have been due to an awareness that his case was not progressing well. Vorster repeated her belief that Pistorius had a pre-existing anxiety disorder which has worsened over time.
“For somebody with generalized anxiety disorder who owns guns – that would make him a dangerous person?” Nel asked. “Yes,” replied Vorster – prompting some concerns expressed on social media about the inadvertent demonizing of people with anxiety disorders.
Nel repeated to the court his assertion that the defence having introduced the witness left him with no option but to bring an application for Pistorius to be independently mentally evaluated. What followed was a lot of squabbling between Roux and Nel over the meaning of Section 78 of the Criminal Procedure Act. Roux’s point was that in terms of the law, mental observation must be carried out when an accused has a mental disorder and is deemed to be incapable of appreciating wrongdoing. Vorster had not stated the latter – though she had hinted that there were circumstances (such as profound paranoia) under which a generalized anxiety disorder could impair one’s perception of wrongdoing.
Section 78 of the Criminal Procedure Act states that a person who commits a criminal act and at the time suffers from a “mental illness or mental defect” which renders them incapable of “appreciating the wrongfulness of his or her act” or “of acting in accordance with an appreciation of the wrongfulness”, will not be held criminally responsible for the act.
It goes on to state that if it is alleged that the accused may not be criminally responsible, the court shall “direct that the matter be enquired into”.
Roux’s argument is that Vorster is merely testifying to factors contributing to Pistorius’s sense of vulnerability and anxiety before the shooting. Nel argues that because Vorster has diagnosed Pistorius with a psychiatric disorder, the court is duty bound to investigate the claim.
Masipa instructed Nel that he should continue his questioning for the time being. Under cross-examination for clarity, Vorster repeated her belief that Pistorius had a psychiatric illness, and can appreciate the difference between right and wrong, but his ability to act on that may have been affected by his anxiety. If he was afraid there was an intruder, she said, having a generalized anxiety disorder would affect how he responded. Nel repeated his assertion that Pistorius should be sent for observation for 30 days.
Roux dismissed the notion again, saying that Pistorius did not act with diminished capacity. Roux said that Nel’s application should only succeed if the defence was claiming that Pistorius’s anxiety disorder caused him to see imaginary intruders, or imagine bathroom windows being open when they were really shut, and other paranoid delusions. Roux said that Vorster was simply saying that the court should take Pistorius’s condition into account “depending on the facts”.
Judge Masipa offered Nel the opportunity to take more time to consider Vorster’s report before concluding cross-examination, since the state was only given the report this morning. Nel took her up on the offer, and court adjourned slightly early. However, Nel remained adamant that he would still be pressing his application for Pistorius to undergo mental observation tomorrow.
It’s an interesting development, and in one sense it seems a high risk manoeuvre. If an independent assessment were to find that Pistorius suffered from a mental disorder which rendered him not criminally responsible for the killing of Steenkamp, there goes the state’s case.
(Incidentally, if that were to be the case, the Criminal Procedure Act states that the court could detain the accused in a psychiatric hospital or a prison; detain the accused in another institution; release the accused subject to certain conditions; or release the accused unconditionally.)
Some have suggested that this is Pistorius’s third stab at a defence (the first two being putative self defence, and automatism). But it does seem as if Barry Roux is genuinely opposed to seeing his client swept off to a mental hospital for a month, as opposed to this being all part of some cunning defence plan. The BBC’s Andrew Harding tweeted after court that Pistorius had told him that the state’s demand to refer him for psychiatric evaluation was “a joke”, and that today’s evidence went “well” for him.
Tomorrow morning Nel will resume his cross-examination of Vorster, after which Roux will have a chance at re-questioning her. Then, presumably, Judge Masipa will have to decide what to do about Nel’s application –and whether Nel is correct that the defence’s introduction of this evidence necessitates independent evaluation in terms of the Criminal Procedure Act. Whichever way this all pans out, I think it’s safe to say that Roux’s claim that we’d be done with defence evidence by the end of Tuesday seems a distant dream. DM
Photo: Forensic expert Tom 'Wollie' Wolmarans, a retired South African Police Service forensics expert, gives testimony during the trial of Oscar Pistorius at the high court in Pretoria, South Africa, 09 May 2014. Pistorius is charged with murder for the shooting death of his girlfriend, Reeva Steenkamp, on Valentines Day in 2013. EPA/HERMAN VERWEY/ POOL