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18 March 2018 08:04 (South Africa)
Life, etc

Pistorius trial: Closing arguments

  • Rebecca Davis
    bec photo
    Rebecca Davis

    Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.  

  • Life, etc

It’s almost the end of the road, folks. It’s been a seemingly interminable journey, but today the closing arguments will be presented in the Oscar Pistorius murder trial. Lawyers for the state and the defence are now faced with the unenviable task of shaping thousands of pages of witness testimony into two compelling stories. One will tell the tale of a disabled, anxious man who believed it necessary to protect himself and his lover from threat. The other will tell the tale of an angry, trigger-happy narcissist who killed his girlfriend in a violent rage. Judge Thokozile Masipa has to pick one. By REBECCA DAVIS

09.00 And on the 40th day, the arguments closed. Lawyers for both sides have had exactly one month to put together their closing arguments. As is customary, the state will present their case first, with the defence following. We can’t say exactly how long it will take, but given the amount of testimony to summarise, court could easily be in session for both Thursday and Friday. Neither do we know anything about what’s in the closing arguments, because Judge Masipa ruled that after the heads of arguments were filed with the court last week, nothing could be reported on.

Though the court has been inactive over the past weeks, Pistorius’s trial by media has continued unabated. Less than a week after court went into recess, Pistorius managed to get himself into an argument in the VIP section of a Sandton nightclub. Depending on who you believe, Pistorius was either aggressive and drunk (and slagged off the President), or Pistorius was the innocent victim of trial-related verbal abuse which culminated in him being pushed over.

Pistorius’s response was to break his long social media silence with a series of tweets about heartbreak and God.

Either way, lead detective Vineshkumar Moonoo confirmed to SAPA that the incident would have no bearing on the trial.

A week later, another scandal struck, with the Sunday Times reporting that Pistorius had hit on a “Reeva Steenkamp lookalike” only weeks after Steenkamp’s shooting.

And just when you thought things couldn’t get worse for the beleaguered Pistorius family, Oscar’s brother Carl was involved in a head-on collision which left him seriously injured. Carl Pistorius is reportedly out of danger.

But now the seat of the drama returns to its rightful home: Courtroom GD of the North Gauteng High Court, where the final scenes will play out.

The Associated Press quoted defence lawyer Marius du Toit as saying that if you want a hint as to which way the judge is leaning, listen out to how she questions the lawyers.

“The judge will show where her allegiance lies once she starts asking questions,” du Toit said. “The party that gets hammered by the judge when arguing is the party that’s got the short end of the stick when it comes to the ruling.” We’ll be all ears.

11.00 And we’re off. Nel began his closing argument by contending again that the defence team have presented a number of different defences – putative self defence for one; involuntary action for another. He would proceed to knock down both.

Nel has spared little in his attack on Pistorius, who he has called a “deceitful witness” with a “blatant disregard for the laws and the lives of others”. He relied on two rather torturous extended metaphors: one, the “mosaic” of evidence which the court should consider in reaching a verdict; the other, Pistorius as a relay runner who has “dropped the baton of truth”.

Because Nel has read the defence’s heads of argument, it was revealing to see which defence witnesses he devoted most time to tearing down, as it is obviously this testimony that the defence will rely most strongly on. He barely bothered with the testimony of expert witnesses Roger Dixon and Wollie Wolmarans, for instance, calling them some of the “worst witnesses” he had encountered in his time in the law.

He took more pains with the defence’s star witness, Dr Wayne Derman, who testified as to Pistorius’s anxiety and the “startle” responses to noise which would have induced a “fight or flight” response.

If Pistorius was so anxious, Nel argued, one would expect this anxiety to be on display in all stressful situations. But he cited the incident in which Pistorius, ex-girlfriend Samantha Taylor and friend Darren Fresco were driving back from the Vaal River (during which Pistorius allegedly fired a shot through the car’s sun roof) as a counter-example. When they were stopped by Metro police officers, Nel said, one would expect Pistorius to have been timid and anxious. Instead he challenged the police officer. “We say the anxious nature is anxiety on call,” Nel concluded.

He raised the fact that the defence at several points near the beginning of the trial hinted that they would be calling a witness to testify that Pistorius screams “like a woman”. This never happened. No decibel tests of Pistorius screaming were ever brought to court. If such tests supported the defence case, Nel suggested it would have made sense for the defence to play the recordings for witnesses. Later he described it as “telling” that the defence had at one point asked a female neighbor of Pistorius’s on the stand to produce an impersonation of Pistorius screaming.

As part of a theme he would return to, he read from Pistorius’s account to support the state’s claim that Pistorius fired at his toilet door with intention: “I felt that when the intruder came out we would be in grave danger…I fired shots at the toilet door.” Pistorius also said that “I mistakenly believed that intruders had entered and posed an imminent threat…the shooting was precipitated by a noise which I believed to be intruders coming out of the toilet”.

None of this suggested a man so overcome with fear that he didn’t know what he was doing, or acting on some kind of auto-pilot, Nel said. On the contrary, it was a man discharging his firearm in response to a specific threat. Nel pointed out that Pistorius never said to any of the early arrivers on the scene that the shot “just went off”, or that he didn’t intend to shoot, or that he didn’t know what happened. Instead, Pistorius said: “I shot Reeva, I thought she was an intruder”.

Nel gave a hint of what the defence will argue when he said that their own heads of argument concedes that Pistorius gave a poor showing on the stand. It appears that the defence will argue that this was because Pistorius was intimidated by Gerrie Nel, who among other things repeatedly called him a liar. Nel responded that he had called Pistorius a liar only once.

Moving to what is certain to be one of the cornerstones of the defence’s case, Nel tackled the notion that the police work on the investigation had been shoddy or that evidence had been tampered with. He said in South African court cases these days it has become “fashionable” for the accused to blame the state. “It happens in almost every case,” he said, and rubbished the idea.

The “most devastating aspect of the accused’s evidence”, Nel said, was his “inability to contest the veracity of crime scene photographs”. (It is Pistorius’s contention that police moved several aspects of the scene, including the position of fans and his duvet, before photographs were taken.) Nel scoffed at this because he said that the police would have had to have “astounding foresight” to tamper with the crime scene in a way that would hurt Pistorius’s version, without having any idea what Pistorius’s version of events actually was.

When Nel prosecuted South African top cop Jackie Selebi, he indicated to the court that he would focus on “five big lies”. It appeared that he was going for a similar technique here, when he announced that he would present 13 inconsistencies in Pistorius’s version. But in the end he seemed to stop enumerating them clearly after he got about halfway. Among the lies he did present: Pistorius claimed not to be familiar with the term “zombie-stopper”, despite featuring in a video in which he is clearly heard uttering the phrase.

Pistorius said in his bail application that he went out on to the balcony to fetch a fan, but on the stand was adamant that he had never said this. On the stand Pistorius added an extra fan which he said he was moving around, which Nel says was a lie to create time for Steenkamp to have moved to the bathroom while Pistorius had his back to her.

13.00 After tea, Judge Masipa gently informed Nel that he was moving too slowly, and reminded him that the two sides had to wrap up this week because she is unavailable all next week.

Nel continued enumerating the improbabilities of Pistorius’s version: that Pistorius first said it was so dark in his room that he could not see Steenkamp, and yet later decided he could remember having seen the duvet covering up her legs. When Pistorius heard the noises that he allegedly mistook for an intruder, he did not think to say anything to Steenkamp (who on his own version he believed was awake and lying in bed at the time) – despite the fact that all the other couples involved in the trial had discussed noises with each other, and despite the fact that ex-girlfriend Sam Taylor had testified that Pistorius had once woken her in the night to express alarm about a noise.

Nel also brought up an issue we didn’t hear a lot about during the trial: the fact that at some point between shooting Steenkamp and calling for help, he went to the kitchen to plug his phone into a charger. (Johan Stander and his daughter confirmed that the phone was on a charger in the kitchen when they arrived at the house.) The fact that Pistorius had the forethought to deactivate his alarm and go downstairs to plug in his phone again suggested considered actions, Nel said. He also indicated that he did not believe that Pistorius’s alarm was actually on that night. If it was, he said, why didn’t Pistorius just set it off? It would have saved time spent deactivating it and would have ensured that help arrived sooner.

Nel moved on to the strangeness of Reeva Steenkamp’s actions in Pistorius’s version. Why would Steenkamp walk past the toilet to open the bathroom window, he asked? (It was the noise of the bathroom window opening which allegedly provided Pistorius’s first “startle”.) Why would Steenkamp take her cellphone to the toilet at 3am? (In fairness, many trial observers have said this behaviour is not at all uncommon.) Most crucially, why wouldn’t Steenkamp say anything when Pistorius was shouting at her to call the cops?

The defence says that she wouldn’t have said anything because she was scared, and that she thought that by speaking out she might reveal her position to intruders. Nel says that the state’s ballistics evidence shows that when the first shot struck Steenkamp, she was standing upright facing the door. Surely, if she was so scared, she would have been cowering away?

Steenkamp was talking to Pistorius through the door, Nel says, which is why her body was angled towards it. Pistorius knew from the sound of her voice where to aim, which explains why the four shots were grouped neatly together, not wildly sprayed around the door.

When we broke for lunch, Nel was singing the praises of the state’s witnesses. Witnesses like the Stipps and the Burgers (couples who lived on the estate) had no possible reason to lie to incriminate Pistorius, he said.

15.00 Nel continued to stress the reliability of the state’s witness who were neighbours to Pistorius. He said that Michelle Burgers’ evidence of the sequence in which she heard gunshots – in which there was a short break after the first shot – is corroborated by the evidence of state forensic expert Christian Mangena. It is the state’s contention that shots were fired at 3.17am, and that screams heard were those of Steenkamp. He reiterated Mrs Stipp’s claim that the light was on in Pistorius’s bathroom.

Nel then moved on to the thorniest aspect of his case: the evidence that Pistorius was angry with Steenkamp. It is this that many feel is the weakest part of the state’s case – though motive does not have to be proved in South African criminal law, only intention, the story that Pistorius knew it was Steenkamp behind the door and shot accordingly requires some motivation to be convincing.

Here Nel relies on four aspects. The first is the testimony of neighbor Estelle van der Merwe that she may have heard an argument. The second is the testimony of state pathologist Gert Saayman that food traces in Steenkamp’s stomach suggest she ate her last meal at 1am, which means she was awake far later than Pistorius claims. The third is the Stipps’ testimony that a light was on, which again suggests wakefulness and action within the house. The fourth is those Whatsapp messages revealing friction in their relationship. Taken in their totality, it’s the state’s case that these all point to an argument having taken place before the shooting.

Judge Masipa revealed herself to be skeptical about the import of the Whatsapp messages, particularly given that many messages revealed an apparently loving couple. Relationships are dynamic, she suggests; unhappiness can change from one day to the next. Nel conceded that this was the case, but he asked the court to at least concede that the messages suggest that Pistorius and Steenkamp did not have a relationship free from problems.

Nel rapidly dealt with the three minor charges that Pistorius faced. It was unlikely that Darren Fresco and Samantha Taylor had conspired to incriminate Pistorius with the story of the athlete firing the gun through a sun roof, he said: their versions contained inconsistencies and they came forward independently. It was “impossible” that the gun Pistorius had been handling in Tasha’s had discharged by itself, as Pistorius claimed. Pistorius had admitted that he was keeping his father’s ammunition in his safe, which he knew to be illegal.

Nel concluded by making an argument for Pistorius to be found guilty of everything from premeditated murder to culpable homicide. There was sufficient planning to support pre-meditation, he said, pointing to Pistorius’s sequence of actions: deciding to get his gun, finding his gun, walking down the hallway etc. If not that, Pistorius must surely be convicted of murder on dolus directus (when a certain result is intended) or dolus eventualis (when the possibility of a certain result is foreseen but recklessly disregarded).

Even if Pistorius believed it was an intruder within the toilet, Nel said, he intentionally and unlawfully shot to kill that person.

As a last recourse, Nel said Pistorius cannot escape a conviction on culpable homicide. A “reasonable person” would not have fired without cause, and there was no cause.

And that’s it. The state’s case against Pistorius, in summary.

15.30 We thought we’d be done for the day when Nel stood down, but Judge Masipa is clearly anxious about time, so she instructed the defence’s Barry Roux to get his show on the road.

Roux used the time not to argue his own heads of argument, though, but to correct “a number of material mistakes” made by the state.

Because Pistorius was not anxious at one point did not mean he could not be anxious at another point, Roux said, pointing to “the two Oscars” described by a number of defence witnesses.

Nel had said he only called Pistorius a liar once. Roux listed four or five other occasions on which Nel said Pistorius was lying.

Despite Nel’s claims that there was no police conspiracy against Pistorius, Roux pointed out that the defence had exposed police investigators van Rensburg and van Staden in testifying inaccurately that they had been alone at various points on the crime scene. Hilton Botha, the investigating officer, “told blatant lies to incriminate the accused”.

Was it so unlikely that police had moved the position of fans in Pistorius’s bedroom when we know they picked up his carpet to reveal a phone to photograph? What the defence suggested was not a police “conspiracy”, but that the scene was “disturbed”.

The state’s timeline of events did not make sense, Roux said, with witnesses claiming to have heard screams after the onset of shooting, when experts had testified that this would not be possible. One state witness, Johan Stipp, claimed to have heard screaming after 3.30am, when nobody else heard it (and after Pistorius had phoned for help).

Roux conceded that Pistorius was “negligent” when handling a firearm at Tasha’s, but said the matter would be dealt with. He also said that on the charge of Pistorius possessing his father’s ammunition, the state submitted that there was “strict liability” (absolute legal responsibility); Roux contends there is no strict liability.

When court resumes tomorrow, presumably we’ll see Roux get stuck into the meat of his closing arguments. DM

Photo by EPA.

  • Rebecca Davis
    bec photo
    Rebecca Davis

    Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.  

  • Life, etc

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