On Monday morning, the 30th of June 2014, the trial of Oscar Pistorius resumed in the North Gauteng High court in Pretoria, South Africa. The day kicked off with the unanimous findings of the three psychiatrists appointed to evaluate Pistorius, during a 30 day evaluation period at Weskoppies Psychiatric Hospital, being read into the record. It was found that Mr. Pistorius, understands right from wrong, can appreciate the wrongfulness of his actions and was not suffering from any mental illness or mental defect that could have impacted on his actions on the night that he killed Reeva Steenkamp. In other words he has criminal capacity and the possible defense that he lacked criminal capacity at the time of the crime is no longer one that can be relied on by the defense.
Judge Thokozile Masipa indicated the court accepted the findings contained in the reports and the trial continued immediately.
The first witness called to the stand this week was Dr. Gerald Versfeld. He is the Orthopaedic Surgeon who treated Pistorius from infancy, who performed his bilateral amputation and continues to be his doctor to date. Pistorius had provided Dr. Versveld with a description of his current physical challenges which the doctor read out in court. This explanation detailed how Pistorius has to use his arms for balance and is in significant pain when walking on his stumps. The pain is allegedly, primarily due to the slippage of the heel pad that covered Pistorius left stump. The pad has moved behind the stump, resulting in a loss of protective cushioning at the base of the stump.
Pistorius put forward that because of this, he struggles to walk on hard and uneven surfaces and cannot place his stumps on the grouting of tiles or other uneven surfaces, without suffering significant discomfort and even pain. However Pistorius earlier told the court that he was wearing socks cushioning his stumps on the night he killed Steenkamp making it easier for him to move around.
Versveld also pointed out that Mr. Pistorius is only 1.56 m tall and weighs 73 kg without his prosthetics causing him to feel vulnerable which would account for his deadly actions on the night he killed Steenkamp.
In another unforeseen twist, Channel 7 News Australia managed to secure and air a video on the 6th of July 2014. This video was produced by an American company, The Evidence Room, at the request of the defense team and depicts Pistorius version of what happened on the night he killed Steenkamp. On the video Pistorius is seen almost “running” forward, right arm outstretched holding a gun at shoulder height. He is also seen walking backwards with no apparent difficulties. Pistorius appears to have much more mobility and far better balance than he, and his expert witnesses represented to the court. It is rather ironic that a man who spent his entire life telling the world how “normal” he is, now appears to be exaggerating and exploiting his disability in order to escape the consequences of his lethal acts on the night he killed Reeva Steenkamp.
Next defense acoustics expert, Mr. Ivan Lin, was called to the stand where we heard very technical sound evidence, leaving me and most of the journalists in court totally confused at times. In my opinion the important part of Mr. Lin’s testimony, was his statement that it was impossible to recreate the exact conditions of the night Pistorius killed Steenkamp, but, that he was of the opinion that although the witnesses living 177m away from Pistorius, may have been able to hear sounds, these sounds would have been unintelligible from that distance. He also testified that it was unlikely that these witnesses would have been able to differentiate between male and female screams. However, during cross-examination, Advocate Gerrie Nel, pointed out that trees had grown, new houses had been built and that there were many new factors that could have influenced Lin’s tests. He also pointed out factors which may have amplified the sounds or screams emanating from the toilet that evening. Because of these factors not being originally considered or factored in to his calculations, Mr. Lin was forced to concede that he could not say with any certainty that the state witnesses Dr. Burger and Mr. Johnson who lived 177m from Pistorius’ home had not heard exactly what they had testified to hearing that night. Thus their evidence stands and is in effect unchallenged.
The next witness called to the stand was Mr. Pistorius manager or agent Mr. Peet van Zyl. What followed was a character assassination. Mr. van Zyl testified to Oscar or Ozzie as he calls him, driving at high speeds, disregarding the law and the safety of others because he was afraid of being followed or hijacked. He said that he had not questioned Pistorius’ speeding as he didn’t feel that the athlete was driving recklessly at the time. He explained that to him Pistorius was always anxious and hyper vigilant.
He explained to the court that he had met Reeva Steenkamp on many occasions. He said that he had only ever observed a warm and loving relationship between Pistorius and Steenkamp. He also put forward that Reeva Steenkamp was the first girlfriend that Pistorius had requested accompany him to an oversees athletics competition, saying that Pistorius wanted to “introduce her too, and show her how, his world worked”.
During Cross-examination Gerrie Nel read out a letter written by Pistorius to Samantha Taylor in which he told Taylor of how he had instructed Peet van Zyl to secure a ticket for her to the 2012 Olympic Games, making either van Zyl a liar when he said Steenkamp was the first, or Pistorius a liar to Taylor when he told her he had asked van Zyl to secure her a ticket to the Olympic Games.
Peet van Zyl however stuck to his guns saying he could not recall this request. Nel then hauled out an e-mail Pistorius had sent van Zyl with Taylors passport attached indicating that they (being Pistorius and Taylor) had “sorted out their shit” and that van Zyl should keep her passport on file for the future. Nel also put it to van Zyl that he knew of the problems in Pistorius relationship with Taylor. This was vehemently denied by van Zyl, who said that he had only ever seen Pistorius treat his girlfriends “kindly and lovingly”.
To me, what effectively emerged was that Mr. van Zyl was not forthcoming in his testimony, he was guarded and appeared to have a very selective memory. Although it was his job to manage the image of Pistorius he repeatedly stated he had no knowledge of negative articles and events in which Pistorius’ name was mentioned. I found myself questioning his credibility as a witness and the honesty of his testimony. If his testimony was truthful, then in my opinion he must be the world’s worst agent, having no idea of what was really happening in his clients life, failing to manage disputes in which his clients reputation may have been seriously marred and just generally failing to act in circumstances where strong management seemed to be necessary in maintaining Mr. Pistorius image. He also explained the bright financial future of Pistorius as well as the lucrative sponsorship and royalty deals that had been secured by Pistorius well into the future. Of course these offers have all since been rescinded and Mr. Pistorius faces financial difficulties at present. It has been widely publicised that he can no longer even afford to fund his own defense, now allegedly being paid for by his uncle, Mr. Arnold Pistorius. Mr. van Zyl’s evidence was a textbook example of why attorneys and advocates stay away from introducing character evidence at trial.
Next Prof Wayne Derman was in the box. He testified to Mr. Pistorius being a highly anxious person and one who is easily startled. He described the fight, flight or freeze reflex and the how the sympathetic and parasympathetic systems contribute to this process by secreting adrenaline and other hormones in response to being startled or feeling fearful. He also pointed out that Pistorius is hyper vigilant. What I think Derman was trying to put forward here was that Pistorius actions and reactions were dictated by the physiological processes he was experiencing at the time of the crime ie. his startle and fear responses to the noises that he claims he heard and believed to be a burglar and not by lucid and rational thought processes.
In support of his arguments that Pistorius felt vulnerable because of his disability, Derman put forward that research has shown that disabled people are more likely to be targeted and attacked than able bodied people and that these attacks have increased in London since 2012. The studies he used in support of his evidence were firstly not South African research but pertained to studies done in Europe and the USA where conditions are very different.
In addition the studies primarily involved disabled research subjects who were also mentally impaired and thus these studies were in Advocate Nel’s opinion of little value as they did not apply in the case of Pistorius who has no mental illness. Other point of concern was that the studies used research subjects who were institutionalised, had little means and were living in assisted care facilities. Conversely Mr. Pistorius was not financially vulnerable, as he has means, lived in a security complex, was armed and could afford and purchase security if he felt the need to do so.
On cross-examination Advocate Nel repeatedly challenged Prof. Derman on his impartiality and the objectivity of his testimony. Derman has been treating Pistorius as a physician for the past six years. In effect Nel pointed out, that as Oscar Pistorius’ doctor he has a medical duty to act only in the best interests of his patient. It is for this very reason that a counselling psychologist will never undertake a forensic evaluation of their client and in my opinion Nel made a very valid point in this regard. It is not easy to give evidence against a person with whom you, as a doctor, have formed a close and often intimate, confidential relationship. It was fairly obvious that Prof. Derman struggled to give evidence that may have been harmful to his patient and seemed to struggle with the recall of facts that could possibly be detrimental to Pistorius’ case.
Prof. Derman testified to Mr. Pistorius state of mind at the time of the crime, venturing into dangerous territory in my opinion. Much of Denman’s testimony was psychological or psychiatric and he was testifying outside of the ambit of his expertise. This opinion was obviously shared by Gerrie Nel as he asked for a postponement of the trial until Monday the 6th June 2014 in order to consult with the state psychiatrist Dr. Carla Kotze before continuing his cross-examination of Denman.
The culmination of Derman’s testimony ended with him making a statement that in his opinion Pistorius fired at the sound behind the door with the intention of killing the person behind the door. As soon as he elicited this admission from Denman, Nel hastily closed his cross examination and sat down.
Rather bizarrely, Adv. Roux for the defense then requested to consult with the State Psychiatrist, Dr. Carla Kotze with a view to calling her as a final witness for the defense. Gerrie Nel objected violently to this request saying that he felt the defence should consult their own Psychiatrist in Dr. Leslie Fine. The court ruled in the state’s favour and the defense was barred from approaching or consulting with Dr. Kotze.
On the 7th July 2014 the defense closed its case. Before doing this Advocate Roux placed on record that Dr. Fine was not in a position to testify for them due to a recent heart attack he had suffered. He also put on record that many of the witnesses that they had wanted to call refused to testify, as they did not want, even their voices to be heard throughout the world. This was rather sneaky and in my opinion done to pave the way for a possible appeal. However, SA has a mechanism where a witness can be subpoenaed to court to testify, under duress if necessary, should their evidence be critical to the case and Roux admitted that he has chosen not use this avenue for whatever reasons.
The State indicated that they will not apply to reopen their case in order to refute Derman’s testimony. Adv. Nel indicated that all outstanding issues can be dealt with in heads of argument and later in closing arguments. The State has undertaken to submit heads of argument on the 30th of July and the defence their heads on the 4th of August. Closing arguments have been set down for the 7th and 8th of August 2014 after which Judge Masipa will retire in order to consider and draft her judgement.
