Defending Oscar: Team Pistorius' case
- Rebecca Davis
- South Africa
- 09 Jul 2014 01:43 (South Africa)
On Tuesday, Oscar Pistorius’ defence team rested their case. It’s taken them over three months to complete, thanks to various delays – most notably the 30-day mental evaluation of Pistorius in a psychiatric hospital. The defence called fewer witnesses than the state: 16, to the state’s 21. While the state and the defence prepare their closing arguments to be heard before the court in a month’s time, REBECCA DAVIS summarises the defence’s witness testimony.
(Warning: Because this is a summary, we had to leave stuff out. Please don’t get mad – it’s still really long. We hope all the important bits are in here.)
Witness 1: Jan Botha
Position: Forensic pathologist
Testimony summary: Cast doubt on state pathologist Gert Saayman’s testimony that Reeva Steenkamp had last eaten around 1am, saying her last meal could have been eaten “considerably longer” before her death. Contested state ballistics evidence, saying Steenkamp would have been positioned too high if she had fallen onto magazine rack as claimed by Captain Mangena. Said it would be “highly unlikely” for Steenkamp to have been able to cry out during bullets.
Questions arising: The first – but not the last – defence witness to seemingly overstep his area of expertise, having testified about ballistics despite admitting that he was not a ballistician. Conceded under cross-examination that Steenkamp may have emptied her bladder as much as 15 minutes before death – begging the question of what she was doing in toilet thereafter.
State says: Timing of last meal is an inexact science, which means Saayman could still be right. There were blood spatters on wall behind magazine rack.
Witness 2: Oscar Pistorius
Position: The accused
Testimony summary: Testified to his anxiety and grief after the shooting; his upbringing, including having inherited security concerns from his mother; his previous exposure to crime, including claims to have been followed on the highway; and his 2009 Vaal River boating accident. Testified that he was aware that building was going on around his complex at the time of the shooting, and that he had heard of an incident involving the use of a ladder to gain access to a house. Described his relationship with Steenkamp as loving and mutually supportive.
On the night of the shooting, said he had dinner with Steenkamp at 7pm and that he did not believe it would have been possible for her to have gone downstairs to eat later without his knowledge. Before they went to sleep, said that he propped his cricket bar against his bedroom door for extra security because his lock was weak. Was aware that his outdoor security beams were not functioning properly. He asked Steenkamp to bring in the fans from the balcony before she fell asleep, which she clearly failed to do for unexplained reasons.
Says that when he woke up in early hours of 14 February, Steenkamp was awake too and they had an exchange about Pistorius inability to sleep. Moved fans inside, locked sliding door and drew curtains. Picked up a pair of jeans from the floor and placed them over a flashing amplifier light. Heard what he thought was the sound of a window closing in the bathroom and immediately thought it was a burglar who had entered the bathroom through a ladder he believed to be leaning against the window.
Grabbed his gun and whispered for Reeva to get down and phone police. Made way down passage screaming at burglar to get out of his house and for Reeva to call police. Just before bathroom heard what he thought was slam of toilet door.
Reaching toilet, he saw it was closed and then heard what he thought was someone coming out. Fired four shots through door and again shouted to Reeva to call police. Walked back to bedroom and felt for Reeva on bed. Not finding her, he searched behind bedroom curtains. Returning to toilet, he tried handle and found it locked. Screamed for help. Rushed back, put on prosthetic legs, ran to bathroom, tried to kick open toilet door, ran back to bedroom to grab cricket bat, ran back to toilet and began hitting door with bat.
He found Steenkamp still breathing in the bathroom and tried to pick her up. Called estate manager Johan Stander and security. Ran downstairs to open front door, then returned to carry Steenkamp down. Stander and daughter then arrived and informed him ambulance was en route. Pistorius put his fingers in Steenkamp’s mouth to help her breathe and his hand on her hip to stem bleeding.
The Stipps said that they had seen a man walk across Pistorius’ bathroom; Pistorius said that given the angle of the bedroom window they could only have seen him if he was wearing his prosthetic legs.
Under cross-examination Pistorius said he fired at the door “by accident”. Later, he denied firing at an attacker: “I fired at the door”, he said. Re-questioned at the end of his time on the stand, he said he did not consciously pull his gun’s trigger.
With regards to the three minor charges Pistorius faces: Pistorius flatly denied the incident when he allegedly discharged a firearm through the roof of Darren Fresco’s car when driving back from the Vaal River. Denied discharging a firearm at Tasha’s restaurant and asking his friends to take the blame, though admitted firearm was in his possession when it went off. Said he believed it was not illegal to store his father’s ammunition in his safe.
Questions arising: Pistorius’s testimony about what happened during his 2009 boating accident has been called into doubt by eye-witnesses to the immediate aftermath. Pistorius testified in tears that he saved Steenkamp’s Valentine’s present to open on Reeva’s birthday, 8 August, but her birthday was 19 August. His denial of the shooting incident in Fresco’s car, and his version of the shooting incident at Tasha’s, contradicts the testimony of eye-witnesses in both cases. The reason why Reeva Steenkamp brought her cellphone into the bathroom was not addressed by either prosecution or defence. Pistorius at one stage said “I can barely stand on my stumps”, which has been disproved by re-enactment footage shown by Australian TV. Pistorius said his and Steenkamp’s last meal was chicken stirfry, but state pathologist Gert Saayman said the contents of Steenkamp’s last meal looked to be vegetables and cheese.
State says: There are discrepancies between Pistorius’ bail affidavit and his testimony; in the former there was only one fan on his balcony, the latter specified two. Bail affidavit said Pistorius went “on to balcony” to fetch a fan; on stand Pistorius said he was within room. Bail affidavit also made no mention of Pistorius having exchanged words with Steenkamp in the early morning, and did not mention Pistorius’s claim to have heard the toilet door slamming. State showed a photo of plugs which seemed to show there was only space to plug in one, not two, fans. WhatsApp messages from Steenkamp to Pistorius were read out to suggest Pistorius was controlling and narcissistic within the relationship. Police photos of crime scene show a duvet on the floor, which may have made the absence of Steenkamp easier to see (Pistorius says police moved it). State says a man as security paranoid as Pistorius would surely have ensured his alarm system was working and a broken window fixed. Why would Reeva Steenkamp pack all her clothes neatly in a togbag except her jeans, discarded on the floor? State suggests Steenkamp was in the process of putting them on, ready to leave after an argument.
Sideshow: Pistorius began his evidence with an emotional apology to the family of Reeva Steenkamp. State played a video, originally obtained by Sky, of Pistorius firing at watermelons at a shooting range. Gerrie Nel attempted to force Pistorius to look at a picture of Steenkamp’s wounded head.
Witness 3: Roger Dixon
Position: Forensic scientist (trace evidence expert)
Testimony summary: Carried out tests in Pistorius’s bedroom and found it was pitch dark; carried out tests from the Stipps’ house and found nothing was visible from Pistorius’ bathroom with the lights off. Carried out tests as to sounds made by cricket bat striking door vs. gunshots. Said marks on Pistorius’ prosthetic foot were consistent with attempts to kick in door. Said contusions on Steenkamp’s back were caused by falling against magazine rack and not bullet ricochet as state claimed. This led him to contradict Pistorius’s own account of where the magazine rack was positioned in the toilet.
Questions arising: Dixon gave evidence on a bizarre range of subjects which he lacked formal expertise in, given that he is actually a geologist by training and not currently attached to any forensic body. The highly precise instrument he used to determine darkness levels in Pistorius’ room was “his eyes”. The gunshots used in his sound test were recorded individually and edited together by a sound engineer because the gun kept jamming. Dixon said the Black Talon ammunition used by Pistorius was “hard to come by”, while Pistorius said it was simply the type of ammo used for his firearm.
State says: Gert Saayman is more qualified than Dixon to comment on bruises and contusions. The recording of cricket bat bangs made by defence sounded like it had been amplified. Dixon’s visibility tests from the Stipps’ were carried out from the street, not the Stipps’ balcony.
Sideshow: The unfortunate Dixon was nicknamed ‘ContraDixon’ by social media users. While on the stand Dixon took to social media himself to express his disappointment at how he was being treated in court and beyond, announcing that he was looking forward to “beer o’clock”.
Witness 4: Johan Stander
Position: Manager of Pistorius’ Pretoria estate
Testimony summary: Heard neither shots nor screams. Was called by Pistorius who told him he had shot Steenkamp thinking she was an intruder; arrived at Pistorius’s house with his daughter while Pistorius was coming downstairs with Steenkamp in his arms. Went to call ambulance after being given number by Johan Stipp. Described Pistorius’ “commitment” to saving Steenkamp’s life. Told court of three crime incidents at Silverwoods Estate which he said Pistorius would have been made aware of.
Questions raised: N/A
State says: Not much. Insinuated that Stander couldn’t be objective due to close relationship with Pistorius.
Witness 5: Carice Stander
Position: Johan Stander’s daughter, a legal assessor who lived on estate at time of shooting
Testimony summary: Went to sleep with balcony window open and was woken by her dog barking. Then heard person shouting ‘help’ three times. Went to parents’ room and was informed Pistorius had shot Steenkamp. Drove with father to Pistorius’s house, where Malawian housekeeper Frank Chiziweni was outside. Tried to fashion tourniquet to stem Steenkamp’s bleeding. When Pistorius went upstairs to fetch Reeva’s ID for police she was worried he might shoot himself. Helped Pistorius’ sister Aimee to pack clothes for Oscar.
Questions raised: The mysterious Frank Chiziweni mentioned by Carice Stander, Pistorius’ live-in housekeeper, was staying at Pistorius’ house on the night of the shooting but claimed to have heard nothing and hence was not called to testify by either defence or state.
State says: Not much. Tried to suggest that Pistorius’ pleas to Carice to help stem bleeding were a sign that he was in control.
Witness 6: Michael Nhlengethwa
Position: Pistorius’ immediate neighbours
Testimony summary: Was woken by wife, who said she heard a bang. He himself heard no bangs. Once awake, said he then heard man crying as if in danger and needed help. At no point heard woman screaming. Phoned estate security. Went to Pistorius’ house and found him kneeling over Steenkamp in shock and distress.
Questions raised: Claims Pistorius introduced Steenkamp as his “fiancée”, though this point was not pursued by state or defence.
State says: Extracted acknowledgement that Nhlengethwa had been following case and knew what other neighbours had claimed to have heard. Nhlengethwa conceded that differences between what he heard and what the Stipps heard might be explained by his being asleep while Stipps were hearing bangs.
Witness 7: Eontle Nhlengethwa
Position: Pistorius’s immediate neighbour; Michael’s wife
Testimony summary: Was woken by loud bang. Heard someone saying “help, help, help” and the sound of a man crying. At no point heard woman screaming.
Questions raised: Said she had been watching trial on TV virtually continuously.
State says: If she heard only one bang followed by Pistorius’ cries for help, the bang she heard must have been Pistorius’ final blow on toilet door with cricket bat.
Witness 8: Ricca Motshwane
Position: Pistorius’s neighbour across the road
Testimony summary: Went to bed around 10pm. Was woken in early hours of 14 February by sound of man crying “a cry of pain”. Woke husband up, who confirmed what she heard. Was adamant she heard only a man crying, not a woman. Heard no bangs. Estimated that not more than ten minutes elapsed between hearing crying and seeing Johan Stander’s car pull up outside Pistorius’ house.
Questions raised: Motshwane was the final neighbour witness called by either state or defence, and like all others before her, she said her first instinct on hearing a strange noise was to confer with her partner – an instinct apparently not shared by Pistorius.
State says: Not much.
Witness 9: Christina Lundgren
Position: University of the Witwatersrand anaesthetist
Testimony summary: Called to testify on the issue of gastric emptying (when Steenkamp ate last meal), because anaesthetists have to be very careful about food contents of stomachs. Even if Steenkamp ate her last meal at 19h00, factors which might have led Steenkamp’s stomach not to be empty at time of shooting could be: vegetables take longer to digest; pre-menopausal women have delayed gastric emptying; use of slimming drugs can delay it.
Questions raised: A point returned to by everyone who testified on the timing of last meals is that it’s virtually impossible for science to pinpoint this precisely.
State says: Many anaesthetists would consider it “normal” for a stomach to be empty six hours after eating. Anxiety after food is consumed can also delay gastric emptying.
Witness 10: Yvette van Schalkwyk
Position: Social worker who assessed Pistorius after he was arrested post-shooting.
Testimony summary: Pistorius was heartbroken after the shooting. She supervised him weekly and wrote reports. Pistorius participated in art therapy after shooting. She saw Pistorius vomit twice from distress while in police cells.
Questions raised: Van Schalkwyk approached defence just 72 hours before being put on the stand because she was “upset” by claims she read in media that Pistorius was play-acting his distress on the stand.
State says: Van Schalkwyk is in a poor position to determine whether Pistorius’s post-arrest behaviour was normal or not because she had never previously worked with any accused directly after their arrest.
Witness 11: Wollie Wolmarans
Position: Independent forensic ballistics expert
Testimony summary: Wolmarans first visited Pistorius’s house on 17 February 2013. Though toilet door had already been removed by police, Wolmarans found bullet fragment left behind in toilet bowl. Said that state findings as to bullet trajectory were questionable because they hadn’t considered the deflection potential of the door. Disputed state’s claims that bruising on Steenkamp’s back was caused by bullet ricochet, supporting Dixon’s magazine rack theory. Disputed state claim that Steenkamp was cowering with hand against head when shot, saying there should be secondary wounds on inside of hand in that case. Said Steenkamp fell back after being struck on the hip and was hit by other bullets in such close succession that had no chance to scream. Participated in sound tests and said gunshots and cricket bat bangs “resembled each other”, although gunshots were louder. Said Pistorius did not use “Black Talon” ammunition but similar ranger-style ammo.
Questions raised: Wolmarans took part in sound tests despite admitting being hard of hearing. Said he had had a beer with Roger Dixon after Dixon’s stint on the stand. The two enjoyed T-bone steaks, but what Wolmarans wanted was pork chops.
State says: Wolmarans and Dixon may have conferred to make their ballistics evidence match, since Wolmarans only submitted his report in late April. If Wolmarans account of how Steenkamp fell backwards after being shot was correct, state claims she could not have ended with her head on the toilet. State says second bullet missed Steenkamp, allowing window for her to have screamed.
Witness 12: Merryl Vorster
Position: Forensic psychiatrist contracted to evaluate Pistorius
Testimony summary: Pistorius suffers from a “generalised anxiety disorder” (GAD) originally stemming from operation to remove legs, later heightened by absorbing his mother’s anxiety. Testified that Pistorius was hyper-vigilant as to threats in his environment and took “excessive” security precautions. Introduced the notion of the “fight or flight” response to threat; said Pistorius would be unable to flee and would have to fight. Said it was possible that Pistorius’s GAD could have affected his capacity to act on the distinction between right and wrong.
Questions raised: Vorster only interviewed Pistorius twice, just a week before her testimony.
State says: “Excessive” security precautions taken by Pistorius were quite normal for many South Africans. It would be natural for Pistorius to experience anxiety in response to objectively traumatic life experiences like the loss of his mother. If Pistorius is diagnosed with a psychiatric disorder, the court has to have him independently mentally evaluated.
Sideshow: Dr. Vorster will go down as the woman who halted the trial, after Judge Masipa ruled that her testimony did indeed necessitate Pistorius’ independent mental evaluation due to the possibility that GAD may have compromised Pistorius’ ability to act on his awareness of right and wrong on the night of the shooting. Pistorius was duly packed off to Weskoppies Psychiatric Hospital for 30 days’ evaluation as an in-patient. The panel of experts evaluating him there found that he did not have GAD and it did not affect his ability to perceive the wrongfulness of his actions on the night of the shooting.
Witness 13: Gerald Versfeld
Position: Orthopaedic surgeon who amputated Pistorius’ legs as a baby and continues to treat him
Testimony summary: Testified that Pistorius has limited and painful mobility on his stumps and his ability to flee from danger is greatly impaired. Pistorius would not have been able to strike the bathroom door with a cricket bat on his stumps (as claimed by state) because he would fall down. Pistorius needs sight to help him balance.
Questions raised: N/A
State says: If Pistorius needs sight to help him balance, how could he have made his way around his bedroom without falling if it was as pitch dark as claimed?
Witness 14: Ivan Lin
Position: Acoustics expert
Testimony summary: Undertook sound tests for defence. One cannot always reliably differentiate between a man and a woman screaming. At a distance of 177m (the distance from the Stipps’ house to Pistorius’), it is unlikely one could hear a scream from a locked toilet. From a distance it is difficult to accurately interpret screams at all.
Questions raised: Lin, like many other defence witnesses, compiled his report only days before taking the stand. He repeatedly conceded that it is extremely difficult to accurately replicate conditions in a sound test because even something as small as the grass length can affect how sound is heard. Why was the only dedicated sound expert called by the defence not asked to give testimony on whether cricket bat blows do indeed sound like a gunshots (the defence’s claim)?
State says: Topography of Pistorius estate has changed considerably between the shooting and when Lin visited the estate, affecting perception of sound. It is common sense that more often than not, people can tell male from female screams.
Witness 15: Peet van Zyl
Position: Pistorius’ agent/manager
Testimony summary: Pistorius was easily startled and hyper-vigilant. Pistorius only lost his temper on two occasions in van Zyl’s presence. His relationship with Steenkamp was more serious than any previously, because he asked van Zyl for the first time if he could bring her with him to an overseas athletics fixture.
Questions raised: N/A
State says: There were a number of media reports about other incidents on which Pistorius lost his temper over the last few years. Pistorius had also told ex-girlfriend Sam Taylor that he was instructing Van Zyl to find her a ticket to come overseas with him.
Sideshow: One of the temper incidents Gerrie Nel referred to was based on an article written by local broadcaster David O’Sullivan, who wrote that Paralympic athlete Arnu Fourie had told him he asked to move rooms before the London Games because Pistorius was always shouting at people on the phone. Van Zyl denied being aware of this. After the matter was raised in court, Fourie released a Twitter statement saying that he “wanted to rest and recover” in his own room before an important race (though neither denying or confirming the shouty phonecalls). Witness Wayne Derman then said on the stand that Fourie had moved rooms because he had the beginnings of a viral infection. O’Sullivan, meanwhile, has maintained his version.
Witness 16: Wayne Derman
Position: Sports Medicine Professor; Paralympic team doctor
Testimony summary: Pistorius was more anxious than other disabled athletes. Disabled people justifiably fear more for their personal safety than able-bodied people because they are more frequently the victims of attacks. People with high levels of anxiety have less control over the amygdala, governing automatic responses, during stressful situations. The “startle” reflex, heightened in anxious individuals, would trigger a “fight or flight” response in which Pistorius would choose fight due to his inability to flee. Pistorius experienced three “startles” leading up to the shooting, each of which was a noise he perceived as indicating a threat. Pistorius is not capable of running on his stumps.
Questions raised: Derman seemed unwilling to entertain any scenarios outside that which Pistorius specified happened.
State says: Derman is surely biased due to being Pistorius’ physician. Derman also overreached his expertise by veering into the territory of psychologists. Pistorius’s actions before shooting into the toilet door – finding his gun, unholstering it etc. – surely suggested more conscious thought over a longer period than would be explained by the fight/flight reflex. Won the concession from Derman that Pistorius must have “intended” to shoot someone. DM
- The State’s case against Oscar Pistorius, on Daily Maverick
Photo: Defense team leader Barry Roux (L) talks to South African Paralympic athlete Oscar Pistorius at the High Court in Pretoria, South Africa, 04 March 2014. EPA/KIM LUDBROOK/POOL