Life, etc

Pistorius Trial: Day 6

By Rebecca Davis 10 March 2014

It's Day One of Week Two of the Pistorius Industrial Complex. We hope you made the most of a relaxing weekend without any trial updates, because the madness is all about to kick off again. REBECCA DAVIS is hangin' in there.

09h00. Welcome back to the North Gauteng High Court. A number of the international journalists who were glued to these benches last week appear to have flown the coop. It’s likely that some editors felt being in situ for the first week would suffice for now, though expect to see the press gallery swell again when Pistorius himself testifies, and – of course – when Judge Masipa hands down her verdict. We’re now hearing rumours that the trial looks set to run for around five weeks rather than the scheduled three, but who knows.

(You can expect the court functionaries to be treating the media a little more frostily this week, by the way, after a court official was reportedly fired for giving a TV interview on Friday.)

So what’s in store today? We should be starting today’s testimony with the resumption of the cross-examination of estate security guard Pieter Baba, who testified on Friday that Pistorius had told him “Security, everything is fine,” after shooting Steenkamp. The defence’s Barry Roux indicated that he was keen to pursue this idea on Monday morning. Let’s hope Baba rested up over the weekend.

Other than that, we’ve seen Pistorius’s big mate Darren Fresco buzzing round the courthouse this morning, which suggests that he might be on the stand today to tell us a little more about why you’d take a gun to lunch at Tasha’s. Or why you’d think it hilarious to want to shoot out a traffic light.

Pistorius’s ex Sam Taylor is in court again today, this time seemingly as a spectator. We have some representatives from the African Christian Democratic Party rubbing shoulders with the ANC Women’s League, and there’s a contingent of Reeva Steenkamp’s friends sharing the row.

Deep breaths….let’s go.

10.45. It would normally be too early for a tea break, but we’ve stood down due to another trial within the trial. More about that in a second.

Proceedings started today, as expected, with state witness Pieter Baba returning to the stand. Before that, however, Judge Masipa gave clarification on the media rules governing the broadcast or publication of pictures of witnesses in the Pistorius case. There’s been a slew of commentary over the past week expressing concerns about the treatment of state witnesses in the Pistorius trial (we had our own take on the subject). It was clear today that Judge Masipa is set on sparing future witnesses some of the strain endured in particular by witnesses Michelle Burger and Charl Johnson.

Masipa clarified that there will be two rules in place: one for “public figures” who serve as witnesses – though it’ll be interesting to know how they’ll define this – and one for purely “private witnesses”. No photos of the first category may be printed or broadcast, regardless of source, while the witnesses are giving testimony. Once they’re released from the stand, normal rules in criminal cases will apply. For the private witnesses, NO photos may be published or broadcast for the duration of the trial. In handing down this order, Masipa expressed concern over two previous witnesses – most likely Burger and Johnson – who she said had been attacked on social media. Let’s see if the new regulations help.

With this dealt with, Baba was back on the stand. The crux of his back-and-forth with Roux this morning was the timing and content of Pistorius’s phone conversation with estate security. Baba maintains it was he who called Pistorius first; Roux says Pistorius called security. Baba reiterated his claim that Pistorius said “Everything is fine”. Roux read him out the statement Baba initially gave to police investigators, in which Baba said that Pistorius said HE was fine. But a later statement given by Baba replaces this with “everything is fine”, which is the statement the state is using.

Before his time on the stand was over, Baba managed to query why Pistorius had not used his alarm system if he felt himself under threat. Why, indeed.

The next witness called to the stand was Professor Gert Saayman, from the Medico-Legal Laboratory. (This was a bit of a surprise, as it seemed at one stage that the state was looking to call all its ‘lay’ witnesses before any experts.) Saayman was the pathologist who performed Reeva Steenkamp’s post-mortem.

Saayman would be giving extremely graphic evidence, the state’s Gerrie Nel said, and as such the state has launched an application to not have his testimony broadcast. Defence was in agreement. Now we’re waiting while media lawyers confer with both sides and the judge and try to make the case that freedom of expression should trump other considerations here. We’re also waiting to hear whether – regardless of if the testimony can be broadcast – we ordinary journalists will be able to live-tweet the testimony. There was one occasion in the Modimolle case where journalists were apparently banned from tweeting testimony given about a rape.

This is, indeed, a complicated new media landscape we live in.

13h30. Hello from lunch break at the North Gauteng High Court, where I’m in the slightly strange position of not being sure exactly what I’m allowed to report.

Pathologist Gert Saayman gave a statement to the court arguing strongly that the graphic nature of his testimony as to Reeva Steenkamp’s injuries meant that it should not be live-broadcast. As a healthcare professional, Saayman said that he felt bound by the ethical standards of his own profession, as well as the need to protect the dignity of Steenkamp in death and that of her family in life.

(As has since been pointed out by lawyers, under South African law deceased individuals are not considered to have the right to dignity as such.)

Saayman’s application in this regard was supported by both the defence and prosecution.

Arguing on behalf of TV broadcasters, Nick Ferreira announced pre-emptively that a decision had been taken not to broadcast the testimony live in any case. But Ferreira argued that there was no good reason for a “blanket ban” on the later broadcast of parts of Saayman’s testimony which might be found to be perfectly “benign”. Ferreira suggested that after the day’s court proceedings, editors could meet to decide which parts of the testimony, if any, might be appropriate to broadcast.

Kenny Oldwage, for the defence, said he did not feel Ferreira’s suggestion paid sufficient attention to the dignity of the deceased. Oldwage also raised the problem of Twitter: would it be acceptable for journalists to live-tweet proceedings if they couldn’t be broadcast live?

Judge Masipa responded to the arguments by ordering a ban on the broadcast via audio or video feed of proceedings, and also banned journalists from live-tweeting the testimony. Masipa later explicitly clarified that this ban also included blogging. Everyone suggesting on Twitter that Facebook could be an alternative medium for updates: it’s safe to say the judge wouldn’t agree.

The order sewed confusion among journalists in the courtroom, scared of being found in contempt of court and banned from proceedings. If we couldn’t tweet about Saayman’s testimony, could we nonetheless still tweet about other events in the courtroom? Could we, for instance, report that Pistorius was retching into a bucket throughout the period that Saayman was talking?

There was also a sense of double standards about the decision, with many pointing out that TV broadcasters showed graphic images of the slain Marikana miners, while the postmortem report of Anene Booysen’s horrific injuries were read in open court and live-tweeted and reported on. Could the difference be that the victim in this case was a white woman, some asked. Others inquired whether the decision would really protect Reeva Steenkamp, or Oscar Pistorius.

For all the popular (and in some cases justified) perception of the press as hyenas and vultures, most of us here are deeply concerned about behaving inappropriately and screwing up the media’s access to the trial. Over lunch, we’ve been seeking clarity about what Judge Masipa’s decision actually means. Consensus seems to be that in breaks after proceedings journalists may summarise events, without any direct quoting. But we’re still unsure if there’s any specific time lag that needs to intervene between testimony and reporting.

In the safest summary one might muster, Saayman has thus far been testifying as to the position at which bullets struck Reeva Steenkamp thus far.

Whether you think it is justified or not to prohibit broadcast of the postmortem results, a wider concern is whether this might set the tone for the rest of the trial, where we could see other witness testimony similarly frozen off. In that case, the principle of ‘open justice’ which Judge Dunston Mlambo endorsed when he ruled that a trial broadcast should be allowed, would seem to be little more than a chimera.

15h15. It’s been a really grim session in the Pistorius trial courtroom since lunch, as pathologist Gert Saayman detailed the extent of Reeva Steenkamp’s injuries before death while Pistorius himself provided an almost continuous soundtrack of heaving and retching.

Judge Masipa gave marginally more clarity on what we can report, when nudged by the state’s Nel. Summaries after the fact are fine; verbatim quotes from Saayman are not. And live-tweeting remains very much verboten (though some journalists were taking chances by live-tweeting aspects of Saayman’s testimony not directly linked to graphic injury details).

Here, if you have a strong disposition, follows brief details of a few salient points.

Saayman reported that of the bullets which hit Steenkamp, the shot to her right hip or the shot to her upper right arm could have been fatal on their own, beyond the bullet to her head which would have rendered her immediately unconscious. One of the reasons for this is that Pistorius was using a particularly potent form of ranger-style ammunition which causes maximum damage by expanding on contact with soft matter.

Further, the shot to her hip, which shattered her right hip bone, might have led her to collapse at once, and getting up again from that position would have been difficult. Once the bullet hit her upper right arm, shattering it, Steenkamp would not have been able to use it.

The pathologist said that once the bullet struck Steenkamp’s head, despite unconsciousness, she might have continued to live for a little while, as the heart does not need the brain to keep beating. But it certainly seems that Steenkamp would not have been able to scream after a bullet hit her head.

One significant point which emerged from Saayman’s testimony was his suggestion that the evidence of a small amount of food in her stomach pointed to the idea that she had eaten around two hours before her death just after 3am. This would appear to contradict Pistorius’s claim that the couple went to bed at 10pm.

Tomorrow, Saayman’s bleak testimony continues.


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