Life, etc

Pistorius Trial: Week 8, Day 2

By Rebecca Davis 13 May 2014

This could be an interesting day in the Oscar Pistorius murder trial. State prosecutor Gerrie Nel indicated at the end of yesterday's proceedings that he intends to press an application to see Pistorius taken off for mental evaluation, on the basis of the defence introducing evidence from a forensic psychiatrist that Pistorius suffers from a psychiatric disorder. We'll have to see if Nel arrives in court today still bent on this course of action - which Pistorius reportedly described as a "joke" yesterday. By REBECCA DAVIS.

09.00 It’s the 31st day of the Pistorius murder trial, and it may contain some drama. The first order of business is expected to be Gerrie Nel’s continuing cross-examination of the defence’s forensic psychiatrist Merryl Vorster (who was allegedly referred to as ‘Merryl Streep’ accidentally in a local radio broadcast earlier this morning). After that, we should see the defence’s Barry Roux get his crack at further questions to his witness. But who knows what’ll happen, really: yesterday’s left-field announcement that Nel wants Pistorius carted off for assessment seems to have taken most of us by surprise.

If Nel is resolute on bringing his application to have Pistorius independently evaluated, it will be up to Judge Masipa to decide whether 78 of the Criminal Procedure Act does indeed not just allow for this to happen, but dictate that it must happen.

In the unlikely event that Pistorius does get sent off for a month’s evaluation, those in the know say the most likely host institution would be Weskoppies Psychiatric Hospital in Pretoria: the oldest such establishment in Gauteng, and the biggest in South Africa. But let’s not pick out his bed just yet.

10.45 An early adjournment for tea, after a first session in which Nel seems to have changed tack. He has parked the issue of Pistorius being committed for mental observation for now, and is focusing on attacking the substance of psychiatrist Vorster’s report.

Under cross-examination, Vorster clarified the actual manifestations of a generalized anxiety disorder (henceforth abbreviated to GAD). She said it involves having more anxiety than not, for an extended period, with attendant symptoms like nausea and irritability. As with any disorder, there are varying levels of severity.

“GAD by definition is a psychiatric diagnosis so one can say it is a mental disorder,” Vorster said, but we have to look at the extent to which it would impact one’s ability to live a normal life. In Pistorius’s case, he was able to function at a high level as an athlete, socialize, and so on.

Nel wanted to deal with Vorster’s assertion yesterday that Pistorius’s anxiety led him to institute “excessive” security measures, a statement she stood by today. Nel asked Vorster to give an example of these.

Vorster explained that after a burglary at his previous residence, he moved to the Silver Woods estate to be more secure. There, he has dogs, beams, burglar alarms, and yet would still lock himself in his bedroom. She also said that Pistorius had informed her that he intended to move from the estate because he no longer felt safe. (Interestingly, neighbor Mike Nhlengethwa testified last week that Pistorius had told him he was intending to move in order to be closer to Reeva Steenkamp.)

Nel suggested that the security precautions taken by Pistorius were, in fact, quite common for many South Africans. Vorster replied that most people wouldn’t lock themselves in their bedrooms. Nel pointed out that Nhlengethwa had said that he and his family did exactly that too.

Beyond that, Nel asked if there was not an inconsistency between someone being excessively concerned with security, and the same person not fixing a broken window downstairs for a long period; not having checked if his external alarm beams were working; and allowing ladders to be placed against the exterior of his building? Vorster allowed that one would expect a hyper-anxious person to have resolved these matters.

Nel picked away at a number of other aspects to Vorster’s testimony, including the idea that he had developed GAD as a very young child – Nel said that the evidence that Pistorius had coped well at crèche and school surely ran contrary to this, since children would be incapable of suppressing such anxiety. Vorster reiterated her belief that his family would have placed pressure on him to cope as “normally” as possible.

Nel also suggested that some of the formative events of Pistorius’s life – losing his mother, writing Matric exams etc – would be expected to induce anxiety in anyone, and not just someone with GAD.

When we broke for tea, Nel was getting down to the nitty-gritty of the events of 14th February 2014. Vorster testified that Pistorius had told her that he fired shots at the noise from the bathroom, because he was scared. Nel pointed out that Pistorius had denied that he fired at the noise.

“It would appear there are inconsistencies,” said Vorster, after a pause. She then said that it was likely that Pistorius would not be able to remember events accurately.

“Or he could be lying,” Nel offered.

“He could just be lying too. It’s another explanation,” conceded Vorster.

13.00 An early finish for the court today, as Judge Masipa is off to consider Nel’s application to have Pistorius mentally evaluated – which he has now formally launched.

Nel concluded his cross-examination of Vorster by confirming that she believed that GAD may have played a role in the events of 14th February 2013 – together with Pistorius’s vulnerability, she said. He also confirmed again that GAD is listed in the psychiatrists’ Bible, the DSM 5 (Diagnostic and Statistical Manual of Mental Disorders).

It should be noted that the DSM is a controversial document which has come under fire on numerous occasions. It originally listed homosexuality as a sociopathic personality disturbance, for instance, and only removed it in 1974. It has been repeatedly criticized for medicalizing human experience. In 2011 the British Psychological Society wrote in response to the DSM that “clients and the general public are negatively affected by the continued and continuous medicalisation of their natural and normal responses to their experiences”.

This was, in a way, part of Nel’s critique of Vorster’s report: that it would have been natural for Pistorius or anyone else to experience anxiety in response to objectively traumatic life experiences, such as the early loss of his mother.

When Roux had the chance to re-question his witness, he cast doubt on the DSM’s relevance himself by asking Vorster if the manual had a cautionary statement against its application in situations like these. Vorster confirmed that it is advised that the DSM be used cautiously in forensic contexts, because it can’t be taken to mean that an individual definitely meets the legal standard for a mental disorder.

Roux also read Vorster, from the court record, her response to Nel stating that she didn’t say Pistorius had a mental illness as envisaged by the terms of the Criminal Procedure Act. Vorster confirmed that GAD does not render you unfit to stand trial, or not criminally responsible for your actions. Even if Pistorius was taken for 30 days’ observation, it was highly unlikely that at the end of it he would be declared a patient of the state.

She confirmed, too, that she had not found evidence of paranoid delusion in Pistorius.

Roux brought up an incident in which Pistorius had gone to the aid of a taxi driver being assaulted, an incident which we heard about from Pistorius’s own testimony on the stand. Vorster said that the fact that Pistorius had not used his gun in that situation, despite being under stress, suggested that he was able to use his firearm responsibly despite his anxiety disorder.

Returning to the issue of whether Pistorius did indeed take “extreme” security precautions, Roux reminded Vorster that Pistorius had also said that he barred his bedroom door with his cricket bat – evidence of further vigilance. Judge Masipa jumped in, however, to remind Roux that Pistorius had said he did this because his lock mechanism was not very reliable. Roux also put it to Vorster that Pistorius had procured glass to fix his broken window and was waiting for it to be installed, and had asked builders on the estate to put away their ladders.

Vorster said this would fit with her diagnosis: anxious people want to keep their environment as secure as possible, and take extra care with preparations.

Roux finally wanted to deal with Nel’s assertion that Pistorius had contradicted himself when he told Vorster that he had fired at a noise that he heard. Reading from Pistorius’s testimony, Roux suggested that Pistorius had indicated that his firing had been precipitated by the noise, if not explicitly aimed at it. Vorster confirmed that this was not meaningfully different to what she had been told by the athlete.

With Roux’s questioning concluded, it was over to Nel to bring his application for Pistorius to be referred for evaluation.

Nel stated that the purpose of Vorster’s evidence had been to present psychiatric factors relevant to conviction and sentencing, and that she had diagnosed Pistorius with GAD. Vorster, Nel said, had indicated that her diagnosis was directly relevant to the shooting of Steenkamp and that GAD may have affected Pistorius’s ability to act in accordance with awareness of the wrongfulness of the act. Vorster described GAD as a psychiatric disorder; at the least, Nel said, it was a psychiatric factor impacting on events. As such, he believed Section 78 of the Criminal Procedure Act clearly directed the court to refer Pistorius for mental observation.

Nel said they were aware that the observation would cause a delay to the court’s proceedings, but pointed out that other courts have referred an accused for observation at the point of sentencing or even after a guilty verdict. He stressed the fact that it was the defence who had elected to call Vorster at such a late stage to introduce the evidence of Pistorius’s disorder.

“There was no indication before [Vorster’s evidence] of any psychiatric condition that may have affected the accused,” Nel said. Sure, Pistorius was vulnerable; sure, he was worried about crime – but so are most South Africans, Nel suggested. He asked that the court consider why the evidence had been brought in at this late stage, after Pistorius’s testimony and other expert testimony.

Nel said that Vorster’s evidence in essence paved the way for a third defence for Pistorius (after putative self defence and automatism), and that the court might even expect “there could be another one”. Was it not the case, Nel argued, that Vorster was called now because Pistorius had been such a weak witness? He indicated that the state may even move to have Pistorius’s entire version of events disregarded on the basis of his weak testimony. “The court is entitled to know what the accused’s defence is,” Nel said.

He cited case law to suggest that if there is a reasonable possibility of the accused’s mental illness, the court must refer them for observation. He also hinted that this was an issue that could come up on appeal: if the matter reached the Supreme Court, he said that they might ask why the athlete hadn’t been referred earlier.

In conclusion, Nel said: even though he would argue that GAD played no role in the shooting of Steenkamp, Section 78 of the Criminal Procedure Act demanded the referral of Pistorius irrespective.

A seemingly rattled Roux began his rebuttal by referring to Nel’s interpretation of case law as “rather unfortunate”.

Reading from a law report, Roux quoted: “Section 78 does not mean that the mere making of such an indication [that an accused has a mental disorder] per se directed the court to make an inquiry”.

What Nel wanted was simply a second opinion on Pistorius’s mental state, he said, and this was his way of getting it. Roux pointed out that Nel had made it clear that the state accepts Dr Vorster’s expertise – and yet Vorster had stated that she did not believe a referral was necessary in Pistorius’s case.

Roux irritably dismissed the idea that there were three defences for Pistorius, calling this “irrelevant”. He said that Nel’s application for referral was in any case premature because the defence would be calling another witness to talk about Pistorius’s “fight or flight” response and the vulnerability of disability. Nel’s application, he said, had “no merit”.

Nel responded that the fact that the defence planned to call yet another witness to testify as to psychological factors made it all the more necessary that Pistorius be referred.

Snidely, he commented: “I would also be as emotional [as Roux] if I called a witness and that witness left open the door for the referral of my client”.

And now it’s up to Judge Masipa to make her decision, which she has indicated she will give tomorrow morning.

Retired Judge Chris Greenland, appearing on DSTV’s Channel 199, said that if he were Judge Masipa he would grant the application immediately. Greenland said that between today and tomorrow Masipa will be looking at the facts to see whether they constitute a reasonable possibility of a mental disorder at the time of the shooting, and will be consulting case law for precedents to guide her.

Does Nel actually expect his application to succeed? In one sense, what the state is doing here is pretty clever. Nel is forcing Roux to downplay the importance of Vorster’s GAD evidence to the shooting in order to prevent his client from being referred. He is also likely aiming to cut off the possibility of the defence using Pistorius’s mental condition as grounds for a later appeal against a guilty verdict.

On the other hand, as we said yesterday, the obvious risk in this manoeuvre is if Judge Masipa grants the observation application and Pistorius is found to be not criminally responsible for the shooting at the end of it. This seems highly unlikely, however – so Nel must have calculated that it’s a gamble worth taking. DM

Photo: South African Paralympic athlete Oscar Pistorius yawns as he sits in the dock during his ongoing murder trial, at the high court in Pretoria, South Africa, 12 May 2014. EPA/KIM LUDBROOK / POOL

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