Life, etc

Pistorius Trial: Week Seven, Day Three

By Rebecca Davis 8 May 2014

It’s official: finally something dislodged the Pistorius trial from being the major focus of the media’s attention in South Africa. That something was the elections. With the majority of the votes still uncounted, will many be swapping their Oscar Channel viewing for compulsive refreshing of election results apps? REBECCA DAVIS is trying to do both at the same time.

09.00 Welcome back to the Pistorius trial, folks, after a day’s absence in which the country chose their rulers for the next five years. Oscar Pistorius himself told a journalist on Tuesday that he would be voting, but there were no reports yesterday of the athlete being spotted exercising his democratic franchise. Journalists’ eyes will be fixed on his left thumb today, to see if the telltale voting mark is there.

On Tuesday we continued with the testimony of neighbours from Pistorius’s estate. We’re expecting to be hearing shortly from more expert witnesses of the defence, including ballistics expert Tom “Wollie” Wolmarans, who was reportedly spotted heading to court this morning. However he voted, the ruling ANC looks set for a tidy victory in Pistorius’s province.

10.15. An early adjournment at the North Gauteng High Court, where the defence’s first witness of the day was not Wollie Wolmarans but an anaesthetist from the University of the Witwatersrand, Christina Lundgren. Lundgren holds the distinction of being the trial’s first and only female expert witness thus far.

Lundgren has been brought in to testify on the thorny issue of gastric emptying. Remember that state pathologist Gert Saayman testified that Reeva Steenkamp’s stomach had traces of vegetable and cheese in it, which he suggested might mean that she last ate as late as 1am. Pistorius’s version is that they were tucked up in bed by 10, and didn’t emerge until he woke up around 3am.

This stuff is important because the defence needs to counter any suggestion that Steenkamp was awake and active before the shooting, since that opens the door to the state’s version that Pistorius and Steenkamp were both awake and arguing.

Lundgren has conceded that she is not a forensic pathologist, but anaesthetists have to be exceptionally careful about the food contents of stomachs, because if patients go under anaesthetic with food in their stomach it can be very dangerous. Lundgren stressed that gastric emptying is not an exact science, but said there were a number of factors which could delay gastric emptying. Vegetables and fat take longer to digest; pre-menopausal women like Reeva have delayed gastric emptying; the use of slimming drugs or herbal medication can delay it, as can exercise. (Pistorius says Steenkamp was doing yoga before bed.)

Any of these factors, she suggested, might have led to Steenkamp’s stomach not being empty when she was shot, even though her dinner – of chicken stirfry – was eaten between 19h00 and 20h00 the night before.

It was a short questioning session from the defence’s Barry Roux. When the state’s Gerrie Nel took over, he needled away at what would be considered “normal” in terms of timeframes for gastric emptying. Under cross-examination, Lundgren conceded that many anaesthetists would be satisfied that a stomach should be empty 6 hours after eating.

In Steenkamp’s case, it was 8 hours, Nel said, between eating close to 19h00 and being shot around 03.00. If Steenkamp wasn’t “abnormal”, wouldn’t her stomach have been empty? Lundgren repeated that factors like Steenkamp being pre-menopausal could delay the gastric emptying process.

The court adjourned for Nel to consult with colleagues on Lundgren’s deductions.

11.15 Tea-time in the Pistorius trial, and we’ve finished with defence witness Christina Lundgren already.

When court resumed after the earlier adjournment, Nel and Lundgren were still engaged in a tango about the issue of gastric emptying. Nel continued to make the point that state pathologist Saayman believed Steenkamp’s last meal was at 1am, asking Lundgren if she felt capable of disputing that.

Lundgren replied that she was “not prepared to criticize a forensic pathologist”; she herself is a clinician.

Lundgren also read to the court a passage from a forensic pathology textbook, however, which stated that for many years pathologists have argued about the reliability of gastric emptying as a means of measuring time of death. It concluded that the method is “too uncertain to have much validity”.

Nel took a mathematical approach, based on the defence assertion that any food in Steenkamp’s stomach was from her last meal at 19h00, and that it was possible for 10% of a meal to be left in the stomach 4 hours after eating. 200ml worth of food was found in Steenkamp’s stomach after death, he said. If that was 10% of her total meal, then she would have had to have eaten about 4 litres of food at 19h00, he suggested. Did Lundgren not find that less probable than Saayman’s version?

“It is less probable,” Lundgren conceded.

Covering his bases, though, Nel also returned to something mentioned by Lundgren earlier: that one of the factors that can delay gastric emptying is if the subject is anxious. Nel’s point is that if anxiety delayed Steenkamp’s gastric emptying, it could point to an argument having been had between Steenkamp and Pistorius. What if the person became anxious after food was eaten, Nel asked. Could that delay gastric emptying? Lundgren confirmed that it could.

Roux, up for re-examination, chose a mathematical path to rubbish Nel’s mathematical path. He pointed out that 200ml of food was still in Steenkamp’s stomach at 11am the next morning. If Saayman was correct and Steenkamp ate at 1am, then – using the 10% of total food measure – Steenkamp would have had to have eaten 5 litres of food at 1am. Roux’s point was that all this speculation can only ever be just that: speculation. Lundgren agreed.

Hopefully that’s it for the gastric emptying theme. The major thing we seem to have learnt is just how inexact forensic pathology is on the issue of the timing of last meals. Lundgren said it was plausible that Steenkamp could still have had food in her stomach after eating at 19h00, but she couldn’t rule out that Saayman’s 1am meal was impossible either. It appears this is one of those issues that science can’t resolve clearly one way or the other.

13.00 This trial is full of surprises, and in the post-tea session we saw one of them. The defence introduced witness Yvette van Schalkwyk, a social worker who assessed Pistorius after he was arrested post-shooting last year. Van Schalkwyk came forward to the defence just 72 hours ago because, she said, she was “upset” about what she had heard in the media. By this she seemed to mean the claims that Pistorius had taken acting lessons for his time on the stand – put forward in a widely-shared piece by former SA journalist Jani Allan – and in general that his emotional displays have been insincere.

When she assessed Pistorius, van Schalkwyk said, he was heartbroken. “He loved Reeva,” she began, and at this point the state’s Nel jumped up with an objection to the evidence. Barry Roux argued that it was a relevant rebuttal to the state’s claims that Pistorius has been all “me me me” about the shooting and the aftermath, failing to take responsibility. Nel was overruled.

Van Schalkwyk testified that Pistorius was very sad after shooting Steenkamp, and mentioned her family several times. It was her court-mandated role to carry out weekly supervisions of Pistorius and then write reports. She read excerpts of these to the court. “The accused still has a lot of emotions and stress,” one stated. “He had a lot of heartbrokenness,” stated another of her reports.

Van Schalkwyk also said that Pistorius had participated in “art therapy” after the shooting as a way of handling his trauma. She testified too that she had seen the athlete vomit twice from distress while in police cells.

You could almost see Gerrie Nel sharpening his teeth as he got up to commence his cross-examination. Under his interrogation, the social worker admitted that she had never previously worked with any accused directly after their arrest. (Nel’s point was that then she was in a poor position to tell whether Pistorius’s emotional displays were a typical part of post-arrest behaviour or not.) Van Schalkwyk stressed nonetheless that she had 24 years of experience to her name.

Nel asked what Pistorius had told her about the shooting. “He said he accidentally shot her,” van Schalkwyk replied, which Nel pounced on because she hadn’t explicitly mentioned the intruder element of Pistorius’s story. Nel also wanted to know if Pistorius had said that he felt sorry for killing Reeva, and van Schalkwyk conceded that he had not.

Re-questioning her, Roux elicited from van Schalkwyk that Pistorius had said to her that he believed he heard an intruder, went to the bathroom where he heard a noise and shot.

Nel has asked permission from the court to possibly re-call van Schalkwyk after consulting with his team’s psychologist, which was granted. It’s hard to see what the point would be, however. Van Schalkwyk testimony is unlikely to be weighed particularly heavily by the court; her assertion that Pistorius was upset after the shooting is not in dispute and would seem to have little material bearing on events. Her lack of experience with other subjects in Pistorius’s situation also counts against her from an expertise perspective.

The decision to put van Schalkwyk on the stand at such short notice might seem to hint at a certain trace of desperation from the defence. But their next witness may be able to silence naysayers: Tom “Wollie” Wolmarans is officially on the stand next, with decades of experience in forensic investigation and a highly-rated reputation. Nel’s unlikely to be able to toy with this witness.

15.00 So the long-awaited Wolmarans is on the stand at last. Wolmarans is a man of formidable experience who now styles himself as an “independent forensic ballistic expert” with a website proclaiming that: “The truth is nothing more than an obvious fact”. (He’s also listed as a member of a rather oddly-named outfit, Rage Investigations. ) Among the other cases in which Wolmarans has appeared was the 2007 trial of a former strip club manager accused of murdering a street child.

On that occasion Wolmarans testified in the manager’s defence that there was a strong possibility that the gun which had killed the victim was not fired by Jackson, but the accused was found guilty anyway. Pistorius’s lawyers will be hoping for a different outcome this time.

After running through his impressive CV – which included work with the UN in the former Yugoslavia – Wolmarans explained that he first visited the Pistorius house on the 17th of February 2013, just a few days after the Valentine’s shooting. He was there in protective gear to take photos. Though the toilet door had already been removed by police, Wolmarans found a bullet fragment left behind in the bowl (by simple dint of sticking his gloved hand into the toilet and fishing around). He kindly handed it over to police.

Wolmarans explained that the gun used by Pistorius could have been fired as quickly as the shooter’s reflexes allowed. He also clarified that the ammunition used by Pistorius was not “Black Talon”, as was reported, but ranger ammunition – which it appears has exactly the same effect.

Wolmarans proceeded to set the stage for taking issue with the state’s ballistics findings. He said that the way in which the toilet door was reconstructed would have not been exactly accurate, and that the subsequent deviations would have had an impact on state tests conducted with lasers to determine bullet trajectory. Wolmarans also felt that the state had not sufficiently taken into account the deflection potential of the door itself: he stressed that it was impossible to determine the exact direction of the bullet without knowing precisely where it was fired from.

With the aid of his own tests – looking at wood splintering when a door was fired at and comparing those  patterns to Steenkamp’s wounds – Wolmarans estimated that Steenkamp’s arm was positioned between 6 and 20 cm away from the door at the time of shooting.

Like former witness Roger Dixon, he disputed the state’s claim that bruising on Steenkamp’s lower back was caused by bullet ricochet fragments, preferring the interpretation that they were caused by falling on to the magazine rack placed in the toilet. Wolmarans also said that although it was hard to determine Steenkamp’s position when Pistorius started firing, he believed that she was upright and leaning forward.

It was dry, technical stuff, but the defence sorely needs some methodical, detailed testimony from a reputable expert witness delivering evidence on a subject that falls squarely within his field. (The defence has previously called a geologist to give evidence on everything from lights to sound, and an anaesthetist to challenge forensic pathology.) Wolmarans looks as if he’s just getting started on taking the court through his report; among the issues he’ll want to deal with tomorrow is the state’s claim that Pistorius fired his gun on his stumps, rather than while wearing his prosthetic legs.

In the interim, do consider reading this great New Yorker profile on the woman who will decide Pistorius’s fate: Judge Thokozile Masipa. It’s quite clear from the piece that M’Lady is not a woman to be trifled with. DM

Photo: South African Paralympic athlete Oscar Pistorius (C) talks to relatives and friends in the high court in Pretoria, South Africa, 06 May 2014. EPA/ALON SKUY / POOL

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