Opinionista Gushwell Brooks 14 July 2014

Injustice, media style

When the desire to create a scoop overrides the most basic of media ethics, it is perhaps time to re-look at the way we are covering the most sensational trial of the decade. Does the ability to have constant access – and constant, global communication – absolve us of this responsibility?

The Oscar Pistorius trial has broken many a frontier in terms of South African jurisprudence. Firstly, it became our very own OJ Simpson-like TV drama. But in the twenty years since the Simpson trial, social media, video streaming and archives from across the internet have turned ordinary lay-people into couch-based High Court judges.

Secondly, in giving access to a live, real-time, audio and video feed, our justice system has entered a new arena, in essence playing a game in which the rules are written as the game continues. In all fairness media access, although intrusive at times, has never really interfered with the dispensing of justice in this case. The intrusions, however, particularly the last, could have led to a term we’ve heard all too often: “a miscarriage of justice”. Gerrie Nel is not just a bull terrier; he has a lot of fox in him too.

Professor Derman, Professor of Sport and Exercise Medicine, took the stand and his testimony was colourful, to say the least. The first shocker was when Defence Advocate Kenny Oldwadge wanted to read an email from another disabled person from London into the record. The email outlined her experience as a disabled person, the vulnerability she felt and how she could relate to Oscar Pistorius. Justice Thokozile Masipa agreed with Nel’s objection to this mail being used as evidence, as the author of it could not avail herself for cross-examination, stripping the state of the opportunity to test the veracity and authenticity of the ‘evidence’. Also, logic dictates that the author of the email, although disabled herself, could never speak on behalf of all disabled persons and transplant the vulnerability she supposedly shared with Pistorius onto other people with disabilities. It was her own and Pistorius’ very subjective view of the world.

Even more puzzling was the fact that Professor Derman insisted on giving a huge volume of psychiatric and psychological evidence despite his expertise, as an expert witness, being confined to the field of being a physician for Oscar in a private capacity as well as for the Paralympic team.

In line with his expertise, the most probative testimony Professor Derman gave was his opinion on Pistorius’ expected mobility, on his stumps, on the morning of Reeva Steenkamp’s fatal shooting.  The professor painted a picture of a Pistorius that had great difficulty moving without his prosthetic legs, probably tripping over cables and items strewn across his darkened bedroom floor.

On the eve of the defence team finally resting their case, an Australian broadcaster showed the world a video of the Paralympian gold medalist re-enacting the fated morning. It is supposedly a video that was put together by a production company, at the request of the defence, a video that we now know the world was never supposed to know about as the Pistorius defence chose not to use it.

A few issues arise out of this contentious video. Firstly, the issue of litigation privilege. If you are accused of a crime, or are going through any form of litigation for that matter, what you say to your attorney, under compulsion of the law, should remain between yourself and the attorney. In essence, ethics and the law prescribe that if you had to confess to your attorney that you actually committed the offence that you are accused of, but wish to plead not guilty and seek acquittal, that attorney is precluded from making a confession on your behalf in open court. If the attorney, or advocate for that matter, had to do that, that confession would be inadmissible. This privilege might not extend to your priest in the confessional, but it most certainly extends to third parties enlisted to aide in the testimony of the accused.

That production company, or whoever leaked the video, breached ethics and the law itself by passing the video on to the broadcaster.

The next issue with this video leads us to where the media needs to take an introspective look at its ethics. The Australian broadcaster in question surely understood that the trial had not been finalised when they aired the video. Major media houses at the very minimum have a lawyer on call, someone that will explain these complexities to them. Of course any media outlet wants a scoop, especially one as scandalous as Pistorius’ re-enactment of the fatal shooting. But at what cost?

South African media do not have the deep pockets of our American, British or clearly the Australian outlets. This is one of the reasons we do not have an intrusive paparazzo culture, or why parents tell journalism students to pursue real jobs. Money, however, should never supersede ethical practice. So should it be clear that when video, written or any other form of media might have a material impact on an on-going case, then that material should not be shared whilst a case is in session.

Although no more than a minute long, the video clearly had a material impact on the case; it brought into doubt a crucial aspect of Derman’s testimony, i.e. Pistorius’ mobility. Remember, it is for the state to prove Pistorius’ guilt beyond a reasonable doubt and not for the defence to prove Pistorius’ innocence. Also, only issues dissected within the confines of the courtroom can be judged – not auxiliary, outside opinions and probable facts.

Despite that, our judges do watch the news. Justice Masipa could have seen that video and although she is mature and professional enough not to base her decision on an internet clip, it still has the potential for blighting the mind. Speculation might suggest that Nel did in fact see the video, and in fact this proposition has strong support in light of the fact that Nel’s question to Derman placed the physician in a compromising position when he asked Derman if Pistorius could in fact walk backwards on his stumps. Derman paused and answered in the affirmative, to some extent contradicting his earlier testimony relating to Pistiorius’ mobility difficulties.

Nel, of course, was smart enough not to make direct reference to the video clip, a clip he understood originated from a litigation privilege, but the video informed the question and, albeit indirectly, had an influence on the case.

That is what makes the actions of the Australian broadcaster inexcusable. Their reply that the broadcast was confined to Australia holds no water, especially in this age where anything can spread like wild fire via the internet. DM

Gushwell Brooks has been giving live coverage of the Oscar Pistorius Trial via a Primedia pop-up internet streaming site, Oscar Extra.

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