Life, etc

Pistorius Trial: Week 6 Day 2

By Rebecca Davis 15 April 2014

It’s Day 23 of the Oscar Pistorius murder trial, and the gruelling cross-examination of the murder-accused athlete is set to continue. Despite the fact that state prosecutor Gerrie Nel shows no signs of letting up, word on the street is that this might be the last session that sees Pistorius testify in his own defence. Pistorius’s legal team will be hoping for a less shaky performance than yesterday. By REBECCA DAVIS

09.00 Whatever you think of Gerrie Nel’s sledgehammer tactics, there’s one aspect in which his approach is clearly working, and that’s in getting the state’s version of events firmly lodged in the public consciousness. South Africa’s The Star newspaper, for instance, ran a front page headline today featuring the words Pistorius claimed he shouted at the imagined intruders – “Get The F*** Out” – but did so asking whether these were the words that Pistorius screamed at Steenkamp.

But it’s inevitable that Nel’s version would capture the imagination at this precise moment in the trial, when he is very much the star of the show. As the trial continues beyond the cross-examination of Pistorius, and we hear from the witnesses lined up by defence to support Pistorius’s version, the potency of Nel’s narrative may well seem to fade.

The opinion from a number of legal experts following yesterday’s proceedings was, nonetheless, that Pistorius seems to be in a tight spot. Let’s see if his time on the stand today produces a more assured brand of testimony.

The latest commentator to jump into the Pistorius fray is former South African journalist Jani Allan, herself the subject of a sensational trial after being accused of having an affair with AWB leader Eugene Terre’blanche. If you’d think that would give her some empathy for Pistorius’s plight, think again. In her latest blog post, Allan suggests: “Terre’blanche was cut from the same cloth as you, Oscar”. You can read the full post here or on Daily Maverick.

11.00 Court has adjourned for tea after Gerrie Nel wrapping up his cross examination of Pistorius even earlier than expected. It was certainly easier going for Pistorius here so far today than yesterday, with Nel seeming to flounder a little at points and concluding in a manner which will have struck many as somewhat anticlimactic.

The first order of business of the day was Nel’s request that the court postpone the sitting of the trial, later this week, until 5th May. His justification for this was that he and his colleagues – and the defence team, it seemed – have pre-existing personal and professional obligations over the next while. (This caused a lot of muttering on social media about lawyers’ holidays, but don’t forget that the trial has already radically overrun the period for which it was initially scheduled.)

As one example, he highlighted the fact that one of his colleagues has a case she has to attend to where the suspects have been awaiting trial for “years”. It’s a telling reminder of the pace of normal justice in the South African legal system where the accused are not such high-profile figures.

The defence’s Barry Roux supported the application, saying that he believed that he could wrap up witness testimony by 16th May. Don’t forget that this is by no means the end of the process, though. After that we’ll likely see an adjournment for the preparation of closing arguments; the closing arguments themselves; and a further adjournment for judgement. A verdict, in short, is still a long way off.

Judge Masipa indicated that she would take till tomorrow to consider the request. Whatever happens, though, it’s clear that the trial will still be very much in swing when South Africa’s general elections are held on 7th May.

Nel used his last hour and a bit of cross examination in a somewhat scattergun manner, picking up loose ends all over the place. With Pistorius testifying that Steenkamp must have opened the bathroom window before she used the toilet, Nel suggested that she would not have had enough time – between the noise and the onset of Pistorius’s shooting – to void her bladder and pull up her shorts. Pistorius disagreed.

Nel returned again to the issue of the “movement of wood” which Pistorius says he heard from within the toilet, which led him to believe that the door was opening and someone about to emerge. In the bail affidavit, Nel pointed out, Pistorius said nothing about wood; only “I heard movement inside the toilet”. Nel suggested that the logical inference would be that movement here referred to the sound of a person. Pistorius said he understood that, but denied that was what he had heard. He repeated his claim that in retrospect – given that nobody actually emerged from the door – he believed that what he had heard was the magazine rack moving.

The state prosecutor went back to another issue from yesterday: why Steenkamp’s jeans were discarded on the floor inside out when the rest of her clothes were in a togbag on an ottoman in the bedroom. Here, though, Nel’s version appeared to become confused. Asking Pistorius why the jeans were inside out, he suggested that it meant Reeva had had to take them off quickly due to an argument. It doesn’t seem to make any sense that she would be taking off the jeans if she was preparing to leave the house, however; Pistorius testified that by the time he arrived home at around 6pm, Steenkamp was already in her pyjamas.

Nel also asked Pistorius to demonstrate again how he swung the cricket bat at the door, to see if Pistorius could hit the mark which the state says was caused by the bat while wearing his prosthetic legs. Pistorius did so. (Remember the state’s case is that Pistorius swung at the door on his stumps, without his legs.) Nel’s response was that even though Pistorius had managed to hit the mark, under normal circumstances from that stance he would have hit it higher. Pistorius said that the position was comfortable, and some journalists commented that he did not appear to look unnatural or strained while swinging. Again, perhaps a bit of a damp squib for Nel.

Nel sought to cast aspersions on Pistorius’s recollection of the scene that awaited him in the toilet. Pistorius says that a magazine rack pictured to the right of the toilet in police photos was moved from its original position. Nel countered that this was impossible because the magazine rack’s leg is pictured in a pool of blood, without any marks indicating that it had slid position. Pistorius replied that this must indicate that it had been placed into position rather than slid; or that the magazine rack was moved in and then the blood carried on running.

He reiterated that he was convinced that the magazine rack was not in the position pictured, because that is not where his housekeeper normally placed it, and because the position occupied by the rack was where he found Steenkamp.

When later shown another picture of the bathroom, and asked whether police had moved the position of his gun, phones and towels, Pistorius said that he could not remember where he had placed these elements while attempting to move Steenkamp.

In the moments after finding Steenkamp, Pistorius said that he attempted to use her cellphone to call for help but could not access it due to her passcode. He dropped her phone in the bathroom and ran into his bedroom to fetch his phones, whereupon he called estate manager Johan Stander to help him to pick Steenkamp up. He also phoned emergency medical service Netcare, where an operator told him to get Steenkamp to the nearest hospital.

Nel wanted to know why Pistorius had not screamed upon realizing that it was Steenkamp in the toilet.

“What would the purpose of screaming be?” Pistorius asked. “I was overwhelmed with sadness.”

Nel wanted to know what the point of screaming would be while Pistorius was beating down the door, as he testified that he did. Pistorius replied that he was panicked. Why would he not have been panicked when he saw her and realized she was badly wounded? Nel asked.

“The state of panic was not knowing,” Pistorius replied.

Nel’s implication here was that Pistorius was tailoring evidence again: neighbour witnesses testified that they had heard no further screams after the second set of bangs.

Nel asked Pistorius about security guard Pieter Baba’s testimony that Pistorius told him “everything was okay” when Baba called Pistorius back after a mysterious earlier phonecall. Pistorius replied that it would have “made no sense” for him to say that everything was okay.

“It does if you don’t want them to come,” Nel replied.

Pistorius asked why – as phone records showed, in contradiction to Baba’s evidence on the stand – he would have initially called security himself, in that case.

Nel suggested that Pistorius’s version of events was far clearer and less improbable in the bits after the shots were fired. Up until the shots, he suggested, Pistorius struggled with his version.

Beginning to wrap up, Nel asked Pistorius who we should blame for the fact that he shot Steenkamp.

“I don’t know, my lady. I was scared,” Pistorius replied.

Should we blame Reeva? The government? Nel asked. “You must be blaming someone.”

Pistorius reiterated that he had acted out of fear.

“Who should we blame for the Black Talon rounds that ripped through her body?” Nel asked. Upon an objection from the judge, he changed the question to a query about why Pistorius had used this type of ammunition. Pistorius replied that it was routinely used with his type of firearm.

Nel concluded by suggesting that Pistorius’s version of events is so improbable that the court will find:

  • That Reeva ate within two hours of her death
  • That while awake, eating, the argument between the two that was heard by witness Estelle van der Merwe took place;
  • That the screams heard by the Stipps and other neighbours were those of Reeva, not Oscar, while escaping from Oscar;
  • That Pistorius shot four shots while knowing that she was standing behind the door, talking to him
  • That Pistorius armed himself with the sole purpose of shooting and killing her, which he did;
  • That afterwards Pistorius was overcome with the realization of what he had done

And that was it. The tense cross-examination of Oscar Pistorius by Gerrie Nel  came to an end. While Pistorius’s testimony on the stand was undoubtedly vague, confused in parts and sometimes unconvincing, many will wonder again if the state has really done enough to assert their version as more probable than Pistorius’s.

13.00 With a number of legal eagles opining that Pistorius’s testimony on the stand would be problematic for his defence team to ‘fix’, you may have thought that Barry Roux would take his sweet time over re-examination. But then again, options in re-examination are limited: the advocates cannot ask questions that are construed as “leading”, or introduce any new evidence. If your client has really made a mess of things in cross-examination, a lawyer friend tells me, it’s often better to get them off the stand as soon as possible to avoid doing further damage, and save matters till closing arguments.

And so it was that the mighty Barry Roux took under ten minutes to re-examine Oscar Pistorius.

Rather than getting into any extended questioning of Pistorius, Roux worked his way through a rapid checklist of loose ends to clarify or correct. What had Pistorius meant by saying that the shooting was an “accident”?

The situation as a whole “wasn’t meant to be,” Pistorius replied. He said he been terrified, thinking about what could happen to “me and to Reeva”. He was “overcome by a sense of terror and vulnerability”. When he believed he heard the toilet door opening, he felt a strong sense of helplessness.

“Did you consciously pull the trigger or not?” asked Roux. No, replied Pistorius; it had happened before he could think. (Whether this confirms that Pistorius is now opting for a defence of automatism, generally reserved for incidents like sleepwalking, is anyone’s guess.)

Roux showed Pistorius a different photo of Steenkamp’s jeans lying on the bedroom floor. Unfortunately for Nel, they were not inside out this time, suggesting that at some point their position had been altered.

He also handed Pistorius the Valentine’s card which Steenkamp had prepared for him on the day of the shooting, to read to the court.

“Roses are red, violets are blue”, it said  on the outside. On the inside, Steenkamp had written: “I think today is a good day to tell you that I love you.”

The defence’s aim in producing this was clearly to hammer home the strength and warmth of the relationship between Pistorius and Steenkamp prior to the shooting. But given the manner in which her life was ended, Steenkamp’s words certainly rang with poignancy and irony. Roux had no further questions.

For the first time in this trial, we heard from one of the judge’s assessors, Janet Henzen du Toit, who asked for clarification on two points. Would Steenkamp have known how to control the alarm, she asked (of relevance if Steenkamp went downstairs to eat a later meal). Yes, Pistorius replied. Was the bathroom light working, she asked. No, Pistorius replied.

And with that, the athlete’s almost seven day stint on the stand came to an end.

15.00 It’s already clear that it’s going to take some doing to adjust to life after Pistorius’s testimony, which kept much of the country (and beyond) gripped. But back go to the world of expert witnesses giving rather more dry evidence.

In this vein, the first post-Pistorius witness called by the defence (which makes their third witness so far) was forensic scientist Roger Dixon. In an interesting interview with TIME magazine before the trial began, Dixon said that he was initially unsure of whether to join the Pistorius “dream team” because he had spent 16 years working with the SAPS.

And indeed, Dixon testified on the stand that he had worked with police colonel Johannes Vermeulen, one of the state’s witnesses. Dixon clarified that he was not a ballistics expert or a DNA expert; he is a “trace evidence expert”, and appears to have been called to give evidence on quite a range of things relating to the crime scene.

Dixon testified firstly that he had carried out tests to see how dark it was in Pistorius’s bedroom with all the curtains closed and the lights turned off, since Pistorius’s version depends on it having been so dark that he could not tell whether Steenkamp was in the bed. Dixon testified that it was indeed pitch dark in the bedroom, so much so that he could barely see his own hand in front of his face. He said whatever minimal light was emitted by the amplifier was unhelpful.

Dixon also said that he had carried out tests from outside the house of the Stipp witnesses to see what was visible from afar. He testified that with the lights off in Pistorius’s bathroom, nothing could be seen from the Stipps’ house. When a model was photographed against the window on his stumps, only a tiny bit of his head was visible. (Johan Stipp testified that he saw a person walk across the window, which the defence argues has to mean that Pistorius was on his prosthetics.)

It was also Dixon’s task to carry out tests relating to the sound made by a cricket bat striking a door at a distance. At night recording stations were set up at 60m and 180m, to test the sound, which was then played for the court. Certainly to an untrained ear, the sounds of a cricket bat striking wood with force sounded very much like gunshots.

Dixon showed a photograph of the underside of Pistorius’s prosthetic foot to bolster the defence’s assertion that the athlete had tried to kick the toilet door in while wearing his prosthetic legs. There was damage to the rubber visible and a dark stain on the sole which “could only come from a hard forceful kick going upwards,” Dixon said, rather than Pistorius stumbling over the door. He also testified to white fibres in a mark below the toiler door handle which are consistent with Pistorius’s socks, again suggesting a kicking attempt while wearing prosthetics.

Dixon had some harsh words for the work of his ex-SAPS colleagues in preserving the evidence of the door, saying that it was “most unprofessional” that there were shoe prints on the door panels. “Unless there is a pressing need to save a life,” Dixon suggested, there is no justification for walking on a crime scene.

Wood splinter injuries suffered by Steenkamp suggest she was close to the door when shot, Dixon said, and possibly even reaching for the door. The contusions on her back, meanwhile – which the state says were caused by a bullet ricochet – Dixon concluded were caused by falling against a blunt object like a magazine rack. He could not agree, he said, that the wound was caused by a ricochet because the bullet would have had to strike the floor first.

And so court adjourned for the day. Tomorrow morning we’ll be hearing from Judge Masipa whether she consents to a trial postponement as proposed by Gerrie Nel. Until then, it’s business as normal. DM

Photo: State prosecutor Gerrie Nel cross examines South African Paralympic athlete Oscar Pistorius (unseen) during another day of cross examination at his ongoing murder trial, Pretoria, South Africa, 14 April 2014.  EPA/Antoine de Ras POOL Independent Newspapers Ltd Pool

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