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Pistorius Trial: Week 6, Day 1

Pistorius Trial: Week 6, Day 1

We’re into the sixth week of the Oscar Pistorius murder trial now. It will be a short one because even the Pistorius Industrial Complex cannot stand in the way of Easter. State prosecutor Gerrie Nel still has Pistorius himself on the stand for cross-examination for the fourth day in a row, meaning that Oscar Pistorius’s Monday may be substantially worse than yours. By REBECCA DAVIS

09.00 Did Oscar Pistorius have a restful weekend? The athlete was complaining of tiredness last week, but it’s hard to imagine he was relaxing peacefully over Saturday and Sunday knowing what the week would bring again. He may have felt even less rested if he glanced at the South African Sunday papers, providing evidence once more that even if the court battle is won, the PR war is being lost for Pistorius.

“Oscar is a liar”, ran the Sunday Times’ major front page story. In an interview exactly one month before Pistorius killed Steenkamp, it emerges, he told the newspaper that he was not in any “serious” relationship. Pistorius also told the reporter that the assault he experienced in December 2012 after a feud with ex-soccer player Mark Batchelor never happened, claiming: “It’s the first time I have heard of this. I am not that type of person.”

Pistorius also prevailed upon Reeva Steenkamp to phone the journalist in question and ask her to drop the story. No mean feat, given that the original source of the row was Pistorius’s previous girlfriend Sam Taylor.

City Press, meanwhile, focused on the “31 seconds of silence” that intervened on the stand on Friday between Pistorius being asked “Are you sure, Mr Pistorius, that Reeva didn’t scream after you fired the first shot?” and Gerrie Nel eventually taking mercy on him and suggesting Pistorius compose himself. A former prosecutor interviewed by the newspaper suggested that Nel should have let the silence play out in the expectation that Pistorius might “crack”.

The former prosecutor also said that in his estimation of how the cross-examination has gone thus far, Pistorius “should start preparing for a lengthy incarceration”.

You may think South African media is Pistorius-obsessed, but in fact we’re lagging behind a number of other countries. This according to the latest findings of media monitoring company Data Driven Insight, which reported this weekend that South African media is only the fifth largest consumer of the Pistorius trial. Leading the way in terms of volume of coverage is the USA, the company claims, followed by Australia.

And speaking of American coverage, there was an interesting piece in the New York Times on Sunday profiling what little is known of Gerrie Nel. You may not have heard, for instance, that Nel was the junior prosecutor in the 1993 trial of Janusz Walus and Clive Derby-Lewis, convicted of the murder of ANC leader Chris Hani.

The article also quotes from the trial of former police commissioner Jackie Selebi to suggest that the treatment Nel is meting out to Pistorius is very much the prosecutor’s style. “You know what this means?” Nel suggested to Selebi at one stage. “That you are arrogant and that you lie.”

Sound familiar?

11.00 “The theme for the day is the tailoring of evidence,” Gerrie Nel announced during the pre-tea session, and his questions are directed accordingly: at the idea that Pistorius has added details since the testimony given in his bail affidavit and his plea explanation to support his version of events.

Nel began by questioning why Steenkamp, who otherwise seemed to store her clothes neatly in a tog bag placed on an ottoman in Pistorius’s bedroom, would have discarded her jeans on the floor. (It’s Pistorius’s claim that one of the things he was doing while Steenkamp could have been moving to the toilet unnoticed was picking up the jeans to place them over a flashing amplifier light which was disturbing him.) Pistorius said he did not know why she would have done this. Nel implied that Steenkamp was in the process of putting on her jeans in order to leave the house following on an argument.

Pistorius had no explanation either for how it was that state pathologist Gert Saayman could have concluded that Steenkamp had eaten her last meal within two hours of her death. “I can’t comment,” Pistorius said in response, reiterating that the two had eaten dinner around 7pm. He conceded that there was a “possibility” that Steenkamp could have eaten without him knowing. Nel jumped on this to say that it must be “impossible”, because if Steenkamp had left Pistorius’s bedroom to go downstairs to eat, it would have triggered the internal alarm system. Pistorius suggested that Steenkamp could have switched off the alarm.

Nel spent some time on the issue of a blue light from the amplifier, saying that there would have been other lights on the device at the time, and asking why Pistorius would not have simply switched off the amplifier. He also dwelt on the fact that Pistorius had not mentioned the amplifier light in his bail affidavit or plea explanation. “You had to create time to account for Reeva going to the toilet so you invented the LED story,” Nel proposed. Pistorius denied this.

Nel showed Pistorius a photo of the duvet lying on the floor, on which a bit of blood spatter is evident on the edge. Nel’s point is that there is no blood spatter on the bed, so the duvet must have been on the floor, and the blood spatter occurred when Pistorius carried Steenkamp out of the room. It is Pistorius’s version that the duvet was on the bed, and the police moved it to the floor subsequently. Nel suggested it was improbable that the police, “by luck or design”, had placed the duvet on the floor with one particular corner in line with blood smatter on the carpet. Pistorius replied that he did not know.

Nel moved on to Pistorius’s testimony that upon hearing a sound, he had told Steenkamp “in a low tone” to phone the police.

“Did you whisper?” Nel asked.

“No,” replied Pistorius.

“If someone said you’d whispered they’d be lying?” Pistorius confirmed this was the case. Nel then read to Pistorius from Pistorius’s evidence-in-chief to prove that it was in fact Pistorius himself who had said that he had whispered. Pistorius responded that he must have made a mistake.

Nel again harped on the idea that it was implausible that Steenkamp would not have responded or have asked Pistorius where he was going, given that in Pistorius’s version Steenkamp was awake and had spoken to him shortly beforehand. Pistorius replied that he had been in situations before where his partner had got up during the night, and he had not asked them where they were going. He also said that he expected Steenkamp would have been as scared as he was, which would have prevented her from initiating a conversation.

The court adjourned a few minutes early for tea because Pistorius broke down again. The trigger on this occasion was Nel asking him what he had shouted at the intruders while moving down the passage to the bathroom.

“I said, ‘Get the fuck out of my house!’” Pistorius responded, breaking down in tears and his voice rising in pitch.

13.00 The court is in recess for lunch, after what has been an incredibly difficult session for Pistorius. Today has, in fact, probably been the athlete’s least successful day on the stand so far: he is stumbling, contradicting himself, blaming his legal team and generally blundering around in a manner which must be causing Barry Roux and co some anxiety.

After the break Nel suggested to Pistorius that the athlete had, indeed, shouted “Get the fuck out of my house!” – but at Reeva, following an argument, rather than at intruders. Pistorius denied this.

A particular point made by Nel is how conscious Pistorius has revealed himself to be at certain points about what was happening and what he was doing, whereas he claims at other moments that he was virtually oblivious to events. Pistorius says, for instance, that when creeping down the passage to the bathroom he kept his gun close to himself, without extending his arms, so that nobody could grab the gun from him.

“It’s amazing that you thought about that,” Nel commented.

Later, when asked why he did not fire a warning shot into the shower, for instance, Pistorius replied that the shot could have ricocheted and hit him. Nel pounced on this, asking how it was possible that he didn’t foresee that shooting into the toilet could hit someone, but was able to predict a potential ricochet from the shower. Pistorius then said this was simply his assessment now, on the stand, being asked to consider why he wouldn’t have fired into the shower.

Nel has also been corrected several times by Pistorius on certain details. Nel has used this to suggest that Pistorius can be a “stickler for detail” when he wants to, casting doubt on the haziness of his recollections elsewhere.

Pistorius, under questioning, repeated that he believed he heard the toilet door slam after he shouted at Reeva to call for help while moving down the passage, and while he was in the process of shouting at the intruders. He said he assumed it must be the toilet door slamming because it’s the only door inside the bathroom. Pistorius’s assumption was either that someone had just gone inside the toilet, or that someone, upon exiting the bathroom, had kicked or bumped the door.

The toilet door slamming would have been a “significant” noise to have heard, Nel suggested. Pistorius agreed. In that case, Nel asked, why had he not included the detail in his bail affidavit or his plea explanation? Pistorius replied that he was sure he had told his legal counsel of it. Why wouldn’t they have put it in? Nel pressed. Pistorius didn’t know; he said there were “many things” not included in his bail affidavit. It’s not the first time he has put the blame for discrepancies between versions on his legal team.

Nel wanted to return once more to the thorny question of Pistorius’s intention in firing at the door, where Pistorius continues to make fairly arcane semantic distinctions. He did not “aim” at the door, he said; his firearm was “pointed at the door”. Did he want to shoot the intruders he thought were behind the door? No, Pistorius said. He didn’t have time to think.

“Did you fire at the perceived attacker?” Nel asked.

“I fired at the door,” Pistorius answered. He repeated that he didn’t have time to think.

Nel put it to Pistorius that his defence has changed from that of putative self defence to involuntary action. He can’t have both, Nel warned.

“I did not fire at Reeva,” Pistorius cried, breaking down into tears, and court adjourned while he composed himself.

It’s unclear whether Pistorius appreciates the difference between the two defences, or the significance of changing from one to the other. Wits law professor James Grant seems to have seen this coming: in a blog written over the weekend, Grant explained the difference between the two defences, noting also that involuntary action is very difficult to prove.

“Why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?” Grant asked.

Pistorius has said that what prompted him to shoot at the door was hearing a noise inside the bathroom that he perceived to be the toilet door opening, though he admits he never saw it opening. Today he repeated his impression that the sound was “wood moving”. Given that the door never actually opened, he said that in retrospect he thinks that the sound was probably the magazine rack moving.

Nel pounced on this, because state ballistics expert Chris Mangena testified that the first bullet shot, which hit Reeva on her hip, would have caused her to collapse onto the magazine rack. Nel suggested that Pistorius had heard her fall and changed his aim to level his next two shots at the magazine rack. Pistorius said that he would not have heard anything after he began shooting due to the noise of the shots ringing in his ears.

Nel described Pistorius’s defence of “I wasn’t thinking” as “so reckless”.

“It could have been a child in there, a burglar unarmed,” Nel said. “But you gave them no chance. You just fired.”

“That’s correct, my lady,” Pistorius confirmed.

Nel asked a policeman to demonstrate unlocking the toilet door, to show the sound the key turning would make. Pistorius conceded that he had not heard the door being locked or unlocked. He suggested that maybe somebody had slammed and locked the door at the same time.

If neighbours said they heard screams, Nel said, it was Pistorius’s version that those must have been Pistorius’s. The athlete agreed. He said that his legal team had taken him to scream at a high pitch “at a place where I reside at the moment”, to test what his screams sound like. Nel asked why Pistorius’s legal team had not played those recordings for the neighbor witnesses, in order to ask whether the sound matched what they had heard. Pistorius was unable to explain why not.

15.00 Straight after lunch, Nel was keen to return to the issue of Pistorius’s thought processes directly before shooting.

“What did you think would happen if you fired through the door?” he asked. Pistorius repeated once more that he didn’t have time to think about it. He confirmed that it never crossed his mind that someone might get killed. If he thought about it now, he conceded that it would be a “possibility” that someone would be shot.

“A probability,” Nel corrected.

Nel said that on Pistorius’s version – that no lights were on – Steenkamp would have had to walk down a dark passageway to a dark bathroom. He wanted to know why Steenkamp would not have put on the light. Pistorius suggested that given that Steenkamp had her cellphone with her, perhaps she was using it for light. Nel queried whether Pistorius would not have seen this light going down the passage in his peripheral vision. Pistorius reiterated that his back had been turned to the passage while he was moving the fans.

Immediately after shooting at the door, Pistorius said that he stayed in position – because he was still not sure whether the intruders were coming out – and shouted to Steenkamp again. Reaching the bed, he felt behind himself to see if Steenkamp was there, and made no contact. He then stuck his left hand out to feel behind the curtains, in case she was hiding there. He said he did not remember whether the all-important duvet was on the bed.

“My mind was so fixated on finding Reeva,” he testified.

Nel wanted to know why he would have thought it was more likely that she was behind the curtains rather than on the floor, since Pistorius had testified that he told her to “get down”. Pistorius said he knew Steenkamp wasn’t on the floor because he would have tripped over her.

Nel also posed a question which many trial-followers have also asked: why was it Pistorius’s automatic assumption, upon realizing that she wasn’t in the bed or behind the curtains, that it must be Steenkamp in the toilet? Would it not be more reasonable to assume that she had exited the bedroom through the main door, fleeing danger?

Pistorius explained that he knew someone was in the toilet, which had led him to immediately panic that it might be Reeva. “But it was an intruder behind the door!” Nel protested. The prosecutor suggested that it was a “huge leap” for Pistorius to move from assuming there were intruders behind the door, to thinking it could be Reeva behind the door, without anything concrete happening beyond her absence from the bed.

“When that thought came on me, nothing else mattered,” Pistorius said.

Pistorius testified that after trying to slam the toilet door open with his shoulder, he ran back to the room, opened the balcony windows – he couldn’t remember whether he’d opened the curtains, or just parted them – and screamed for help. “I remember standing there feeling helpless,” he said. All the while he had his cocked gun in his hand, causing Nel to query how he could open the doors with one hand occupied. Pistorius wasn’t sure.

Pulling on his legs, he ran back to the toilet door and again tried to shoulder-charge the door, still with his cocked gun in hand. Nel wanted to know why he had taken his gun along. Pistorius admitted that it didn’t make sense. He began to cry again while saying that given the position the cocked and loaded gun was lying on the floor where he discarded it, he could have kicked it and accidentally shot himself – or Reeva again.

Nel indicated that he was about to start a line of new questioning about the toilet door, and suggested it would be better to start again from fresh in the morning. There were no objections, so the court adjourned a few minutes early.

There’s little doubt that it’s been a pretty bad day for Pistorius. Nel has suggested over and over again that his version is simply “improbable”, and his performance on the stand today will not have reassured his lawyers. The apparent changing of his defence mid-stream will not have benefited him either: when Nel eventually finishes with his cross-examination – and we still have no indication of when that will be – the defence’s Barry Roux may find himself with more to do than might have seemed the case previously.

The state today fleshed out their vision of how events could have played out a little. Steenkamp’s jeans were lying on the floor because she had intended to get dressed to leave the house after an argument. She had been standing facing the toilet door when she was shot – as ballistics experts testified – because she had been talking to Pistorius through the door. It’s a version that may seem more likely to some than Pistorius’s. But the crucial piece of the puzzle – any significant evidence that an argument actually took place – still seems to be missing. DM

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Photo: State prosecutor Gerrie Nel cross-examines Oscar Pistorius during his trial for the murder of Reeva Steenkamp at the North Gauteng High Court in Pretoria, South Africa, 10 April 2014. EPA/MARCO LONGARI / POOL


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