Life, etc

Pistorius Trial: Week 5, Day 1

By Rebecca Davis 7 April 2014

Annnnd...we're back. For those of you who relished a mercifully Pistorius trial-free week, brace yourselves: it's all starting up again. This time, it does so with the competition - at least on Tuesday - of the Shrien Dewani bail hearing. These high-profile trials seem to be becoming something of a cottage industry for our proud nation. REBECCA DAVIS will bring you updates as the Pistorius defence unfolds.

09.00 Good morning from the all-too familiar benches of the North Gauteng High Court, where we’re waiting for what is technically the 17th day in the Pistorius trial to kick off. When last we adjourned, it was because the judge’s assessor had fallen ill. There have been no rumblings as to the effect that she might still be indisposed, though, so we’re expecting to go ahead today again.

The event that everyone’s waiting for – to see murder-accused Oscar Pistorius take the stand – likely won’t happen right away. Reports have it that the defence’s first witness will be pathologist Jan Botha, who apparently has to testify first for personal reasons. As such, we may not see Pistorius on the stand today. This would be unfortunate news for anyone who took a sick day specifically to hear Pistorius – as allegedly happened on our last court date.

If Botha is indeed first on the stand, a priority for Pistorius’s defence team may be to challenge state pathologist Gert Saayman’s testimony that Reeva Steenkamp ate her last meal some hours after the pair were tucked up in bed, on Pistorius’s version.

While we wait for Judge Masipa and her sidekicks, check out a City Press experiment, which asked subjects if they could tell the difference between men and women screaming at a distance of 70 metres. The results may surprise you – though bear in mind that the men involved were asked to deliberately attempt to “scream like a woman”.

Ah, it’s not even 09.30 and Oscar Pistorius can be seen wiping away tears already. This might be a long week.

11.00 Well, well, well. We are finally seeing the state’s Gerrie Nel in full cross-examination swing, and we’re beginning to see how this is the man who secured a conviction against Jackie Selebi. Nel has been in formidable performance against defence pathologist Johan Botha, winning a series of damaging concessions from him. Little wonder that as I type, Botha is looking less than impressed with his situation as he sits in the witness stand awaiting the resumption.

But back to the beginning. The judge’s assessor appears to have recovered, so there was nothing to prevent court going ahead this morning as scheduled. The defence’s Barry Roux began things by outlining the aspects that the defence’s case intends to cover: ballistics, the cricket bat damage, sound, lights and so on. He also indicated that the defence intends to call between 14 and 17 witnesses, which is a few less than the state.

It was confirmed that defence pathologist Jan Botha would be called first, for reasons relating to family health. The state’s Nel said that they had no problems with this.

Roux now has to take on a different role to the one we’ve grown used to seeing him in- essentially, as the nice guy patiently leading the witness’s evidence. Nel, on the other hand, gets to play Roux – and he’s doing a damn good job at it so far.

Botha is a forensic pathologist with an impressive CV, having performed 25 000 post mortems, of which several thousand involved shooting deaths. He is not a ballistics expert, he conceded from the start, but in the course of his work it is necessary to have some understanding of firearms.

Roux began by seeking to cast doubt on Gert Saayman’s testimony about the time of Steenkamp’s last meal, as predicted. Botha confirmed that consensus had it that speculation about gastric emptying was a “highly controversial and inexact science”, and that it would be dangerous to claim specificity on this point. Botha said that Steenkamp’s last meal could, in his estimation, have been eaten “considerably longer” before her death than Saayman’s estimate.

Botha also contradicted the ballistics evidence given by state expert Chris Mangena. Botha’s sequence of shots have them striking Steenkamp first on the right hip as she was standing close to the door, second on her right arm shattering her humerus, third shot hit her fingers and ricocheted, and fourth shot hit her in the head.

Botha contested Mangena’s claim that Steenkamp fell into a sitting position on the toilet’s magazine rack, saying that she would have been too high in that pose for subsequent shots, and adding that there then should have been blood spatters on the rack and behind it. He said furthermore that he did not believe that Steenkamp could have raised her arm to protect herself, and added that he felt it “highly unlikely” that he thought Steenkamp would have been able o cry out at any point due to the rapid sequence of bullets.

(You may recall that Saayman testified that in his opinion it would have been “abnormal” for Steenkamp not to cry out, so we’re really getting into expert v. expert territory now.)

When Nel took the stand, he sought to cast doubt on the idea that Botha’s findings were more reliable than Saayman’s. Botha was not at the post mortem and merely relied on photos, he pointed out; Saayman was actually there. Furthermore, the other defence pathologist – Reggie Perumal – submitted a report which largely backed Saayman’s findings. Botha conceded these points.

Nel also put it to Botha that Saayman had never said he could be fully precise about the time of Steenkamp’s last meal – Saayman admitted it was an inexact science. Nel got Botha to concede that Botha could not say for certain whether Saayman was right or wrong about the time of last meal.

Botha was also forced to concede several times, when it came to cross-examination of his ballistics evidence, that he was not a ballistician. Then why give an opinion as to the shots? Nel asked. Nel also pulled up high magnification photos of the area behind the magazine rack to prove that there was, in fact, blood spatter behind the rack – contrary to Botha’s testimony.

Before we broke for break, Nel was showing Botha a very close-up image of a wound on Steenkamp’s back which Botha claimed was caused by the magazine rack, and the state claimed was caused by bullet ricochet. Nel pointed out that the wound’s marks perfectly matched the symmetrical ribbing of Steenkamp’s shirt. Botha said he had not taken the shirt into account.

During the tea break Oscar Pistorius has seemed in a bad way, having to be consoled by his two siblings simultaneously. You can understand why he might be feeling edgy. Judging by Nel’s performance cross-examining Botha, the “Bull Terrier” is just getting warmed up.

13.00 Anyone who took a sick day, apologies: your gamble paid off. Oscar Pistorius took the stand before we even reached lunch on the first day of the defence’s case. But before that, we had to dispose with the first witness, defence pathologist Jan Botha.

Nel continued to ask Botha to try to match the sequence of bullets with the bullet holes in the toilet door – which is still handily present in the courtroom to refer to at any time. Botha reiterated that he could not correlate bullet holes with wounds, because “that’s a ballistician’s job” – again opening himself up to having all his evidence relating to shots doubted, since he is by his own repeated admission not a ballistics expert.

In the last few moments of Nel’s cross-examination, he wrung two further concessions from Botha: that Steenkamp might, in fact, have cried out when struck by the bullets, if there was time; and that it was possible that Steenkamp’s bladder might have been emptied as much as 15 minutes previously. This would obviously beg the question of what she was doing in the toilet at that time, in that case – other than hiding.

Under re-questioning, Roux said he didn’t understand why Nel was so bent on questioning the ‘double tap’ version (that Pistorius fired two pairs of rapid shots), as this was not the defence’s case. This was news to all of us, but primarily to Gerrie Nel, who then asked for the chance to re-question Botha from the perspective of the defence now claiming that Pistorius engaged in ‘rapid fire’ rather than a double tap. “On rapid fire your version makes less sense,” Nel told Botha.

Botha repeated his belief that after the first shot, Steenkamp fell back “with a slight rotation”. If she was flexed towards the door, why would she fall backwards, asked Nel, before abandoning his questioning with a dramatic flourish: “I think I’ve done enough…it doesn’t make sense at all.”

And so, with Botha dispatched, the anti-hero approached the stand.

Before Roux began his questioning of Pistorius, he said that Pistorius had wanted to do something in particular from his position on the stand. That something turned out to be the tendering of an apology to the family of Reeva Steenkamp.

With his lip quivering frantically, Pistorius said sorry. “There hasn’t been a moment since this tragedy happened that I haven’t thought about your family,” he said. “I wake up every morning and you are the first people I think of and pray for.”

He was, he said, “simply trying to protect Reeva.”

“I can promise you that when she went to bed she felt loved'” he said.

It was moving stuff. But the person who it was most designed to touch – Reeva Steenkamp’s mother June – did not reveal any visible emotion in response.

With the onset of questioning, Pistorius remained emotional but settled down. It wasn’t as if he had anything imminent to fear: Roux pursued a line of questioning about his background and disability which was clearly intended to engender sympathy.

He is on anti-depressants and sleeping pills, he testified, and had been since just after the shooting last year. Pistorius testified that he would wake up from terrible nightmares, and have to call his sister Aimee to sit with him. After the tragedy, he said, he never wanted to handle a firearm again.

He painted the picture of a childhood spent very close to his siblings and his mother, with very little mention of his father. Pistorius’s mother had security concerns of her own, he said , and slept with a pistol under her pillow (like her son, contravening the best-practice notion that the place for a home firearm is a safe).

Much of the background as to his school life and adolescence will have been familiar to anyone who either read his autobiography or any of the lengthy profiles of Pistorius published over the last five years. His mother encouraged him to participate in sports; her death was a blow. After she died, the young Carl and Oscar Pistorius would “do their own thing” on weekends, seeing their father only once or twice a year.

Even at an early stage, Roux was leading Pistorius to give evidence as to his lack of mobility on stumps (relevant because of the state’s claim that Pistorius bashed down the toilet door on his stumps, disputed by the defence). Pistorius has already mentioned several times that his balance on his stumps was poor, claiming even that his dog could knock him over.

We’ve also touched briefly on the Vaal river boating accident in 2009, in which Pistorius was seriously injured. At the time, media reports hinted that alcohol was involved. Pistorius denied this on the stand, speaking soberly about the incident and claiming that ever since then, he was “a lot more vigilant about losing my life”. (Many Twitter commentators could not resist pointing out that he did not seem so vigilant about others losing lives.)

As we broke for lunch, Roux was questioning him about what he liked to do with his prosthetic legs. Pistorius was testifying that he liked to keep them close by his bed when he slept. This may be the avenue that will finally lead us into hearing testimony about Pistorius’s version of the night when he shot Reeva Steenkamp. Expect more tears.

15.00 We have spent the afternoon session hearing more about the saintly Oscar Pistorius. He drinks, he admitted, but only in the period between Christmas and New Year and September to October. He was not intoxicated when he was in a boat that crashed on the Vaal. He has only tried drugs once in his life, when he smoked dagga at the age of 15.

Roux laid the ground for what is inevitably to come by asking Pistorius whether he had ever been exposed to crime. Loads, was the short answer. Various houses Pistorius has lived in have been broken into; his father was hijacked twice; his brother suffered an attempted hijacking.  Pistorius himself had a TV and laptop stolen from his house in 2005. He also claimed to have been shot at on the highway, and followed more than once. Similar-looking cars once followed him “for days at a time”.

Pistorius himself has played hero more than once: once intervening when he saw a woman being  assaulted, and on another occasion brandishing his gun to break up a situation which saw a man being beaten with rocks.

His personal safety was threatened at a party in December 2012. Pistorius reported it to elite police unit the Hawks, who revealed themselves to be perfectly willing to speedily meet with him to discuss it.

Pistorius also testified that he was aware that building was going on around his complex at the time when he shot Steenkamp, and that there had been an incident of crime involving his housing contractor which had seen a ladder used to gain access to the contractor’s house. Such thoughts, Roux will presumably suggest later, were top of his mind when Pistorius heard a noise in his toilet.

As the day concluded, we were hearing about Pistorius’s love for dogs and his strong religious faith. This is not subtle stuff, to say the least. It is aimed at replacing the prosecution’s picture of a reckless, gun-toting, fast-living playboy with the defence’s version of a humble, clean-living, devout, respectful young man. When Nel gets his go at cross-examination, he will probably be looking to re-assert the prosecution’s Oscar Pistorius in the judge’s mind.

But since we haven’t even got round to broaching the events of 14th February yet, cross-examination seems an awfully long way away. DM

Photo by Reuters.

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