Authors: John Carlin
On the same long wooden bench as Pistorius’s family members, separated by a small gap imposed by tacit mutual consent, sat family and friends of the woman he had loved. Barry Steenkamp, Reeva’s father, was not there. He feared that the shock of exposure to the
details of what had happened to his daughter the night she died would be dangerous to his fragile health. But June, Reeva’s blonde mother, was in the courtroom and the eyes in the public gallery were on her almost as much as on Pistorius. His feelings towards Mrs Steenkamp combined guilt and shame, made only worse by his failure to express his sorrow to her in words, not even in a letter, in the year since the shooting happened. He had summoned up the courage to say, ‘Good morning, Mrs Steenkamp,’ but she had responded only with a curt nod. The blank, bitter look he saw on her face as he slid in front of her to take his place in court only encouraged the suspicion that she would not have responded well to him telling her how much he had loved her daughter, and treasured her memory her still. Sitting alongside June Steenkamp were her daughter Simone, older than Reeva and born to a different father, and friends of Reeva’s whom Pistorius had barely known but who, he sensed, shared the prosecution view that he had killed her deliberately, following an argument. So did two black ladies sitting next to Mrs Steenkamp, both in the green and black uniform of the ANC Women’s League, an organization that had never ceased to proclaim that the shooting of Reeva fell into the category of gender violence.
Behind them, on four more rows of wooden benches stretching to the back of the room, sat members of the public who had managed to get in to watch the most eagerly anticipated event in town, among them his two Icelandic friends, Ebba Guðmundsdóttir and her mother Sigga Hanna Jóhannesdóttir, who had flown to South Africa to reciprocate the kindness he had shown them. Sitting close by them were eighty journalists from South Africa and elsewhere in the world. Such was the global interest that a similar number of journalists had also been accommodated in an overflow court room, where they were able to follow the case on CCTV screens.
The case, as Mike van Aardt knew better than anyone, was not in itself especially complex, save for the identity of the celebrity at its center. This was not a classic whodunnit like the O. J. Simpson case. The who was beyond dispute. The only question the judge would have to rule on was why. If she found that he had acted with conscious premeditation, even if it were only for a matter of seconds before he pulled the trigger, she would have the option to pass a life sentence, which meant a statutory minimum of twenty-five years in prison. She might also determine that it was not murder but culpable homicide, known elsewhere as manslaughter, following which she would have to make a judgment on the degree of criminal negligence he had shown. The highest jail term in such an event would be fifteen years but – following the precedents of the man who had shot his daughter in what he thought was his stolen car, or the rugby player who had unintentionally beaten a policeman to death – she could also spare him jail altogether, settling for a suspended sentence, or even community service. Given that Pistorius’s sole responsibility for Reeva’s death could not be denied, that would be the best outcome he could hope for, the one Barry Roux would endeavor to obtain.
But there was also a third possibility, and it was the one that a number of South African lawyers who were not involved with the case anticipated. They said that, even by his own version of events, and even if the judge found that he had not known that the person behind the toilet door was Reeva Steenkamp, he had known that there was a human being in there, and he was therefore still likely to be found guilty of murder – a lesser charge than premeditated murder, in terms of the sentence he would receive, but murder nonetheless. Barry Roux understood this as well as anyone. There was a name for this category of murder in South African law,
dolus eventualis
, or legal intention – present, as the statutes put it, when the perpetrator subjectively
foresees the possibility of his act causing death, but persists regardless of the consequences. Were it to come to that, the question would boil down to whether or not Pistorius had murder in his heart when he fired the shots.
Roux’s first challenge was to defeat the premeditated murder charge by undermining the state’s contention that Pistorius knew at whom he was shooting and that he did so as a result of an argument. The judge, were she to prove as tough-minded as her sentences in previous cases indicated, would need some persuading that he had fired four shots not in a fit of rage but out of a mistaken fear of an invisible intruder. She would also ask herself why he did not check that his girlfriend was in bed next to him before advancing down the passage that led to the bathroom, gun at the ready. The question would also be raised in her mind – as it had been in that of the magistrate at the bail hearing a year earlier – whether Reeva would have screamed out in terror or pain before he opened fire or in between the shots, alerting him to the fact it was her he was firing at. In short, Judge Masipa might struggle to understand why he had shot first and asked questions later.
Yet the prosecution would not have it easy, for, in the absence of any eyewitnesses, they would have to prove beyond reasonable doubt that Pistorius had knowingly killed Reeva Steenkamp. The defense team had had access to the core points of the state’s case before the trial started, as required by law, and they led them to believe that, in terms of challenging the charge of premeditated murder, they had the upper hand.
So, while the question that agitated the millions of people who were following the case worldwide – did he or did he not know at whom he was shooting? – was critical in terms of the public opprobrium he would encounter and the length of the sentence he might
receive, it would not be decisive in relation to whether or not he would end up behind bars. Under South African law, killing a person, unless that person was found to have posed an unequivocal danger to one’s life, was still classified as an intentional act of murder. By way of example, a lawyer who was not engaged in the case told the story of a situation he had recently faced at his own home which could have landed him in jail.
The lawyer and his wife were in bed at night when they heard a noise coming from a window downstairs. He looked out and saw two men trying to get in, whereupon he grabbed a gun he had by his bedside, moved towards to his bedroom window and prepared to fire. His terrified wife cried, ‘Shoot them! Shoot them!’ For a moment he debated whether to act on her words, but then, he said, his legal mind kicked in. He realized that if he killed one of the intruders he might well be charged with murder and, quite possibly unable to prove that he had acted out of a legitimate fear for their lives, be found guilty. Wisely, he limited himself to firing a shot in the air, which was enough to persuade the two men to run away.
‘Pistorius’s problem,’ the lawyer said, ‘is that even if his victim had been a burglar and not Reeva Steenkamp, even if the victim had been carrying an axe and had run into the bathroom and locked himself in, under South African law, unless it could be proven that he faced an imminent threat to his life, he would still be facing trial, he would still be looking at a possible guilty verdict for murder.’ As the law saw it, he explained, ‘a reasonable person – this is the key – would not have reacted to the perceived threat in such a gross and lethally disproportionate manner’.
Some white media commentators suggested that another possible difficulty for Pistorius could be that the judge might regard the accused as racist. The reason for this was subtle, but, at first sight,
not unconvincing. His version of what happened at his home that night did fit into a familiar South African crime narrative, where the aggressor was always black. As the judge would not have failed to register, if his story were true – and even if it were not – the faceless intruder of his imagination had to have had a black face, because the fact was that for white people crime mostly did have a black face. The point she might have understood just as well, however, was that this did not necessarily have to reflect a racist perspective. The face of crime in South Africa was overwhelmingly black for black people, too. Jesse Jackson, the black American civil-rights leader, had once said, ‘There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps . . . then turn around and see somebody white and feel relieved.’ It took courage for Jackson to say that. The average black South African, less squeamish about race matters than most Americans, would have volunteered that observation more readily. Judge Masipa would have been no exception. Contrary to what some might have imagined, race was highly unlikely to be a factor in her calculations.
The nub of the matter for Roux, rather, was how to persuade the judge that his client’s state of mind at the time of the shooting was such that he might reasonably have been expected to respond the way he said he did. In the likely absence, as he chose to see it, of compelling evidence either way, he believed that much rested on ‘softening the judge’s heart’, as he would put it to his colleagues, by persuading her to redefine her notion of what constituted the legal figment known as ‘a reasonable person’.
Barry Roux saw an opportunity in seeking to persuade her to determine that as a disabled person his client should be granted more leeway than an able-bodied person, in terms of what constituted a reasonable response to the threat he said he had perceived. The way
Roux would have to do this would be by presenting the famous Blade Runner as a far more vulnerable, stressed and fear-ridden individual than the public had been allowed to see. In other words, the defense case rested on exposing as a lie, or at least as a giant act of self-delusion, the entire premise on which Pistorius had constructed his public persona.
Roux would seek to persuade the court that Pistorius’s private endeavour to deny his disability had shaped his public persona. Shunning compassion, detesting the idea that people might feel sorry for him, Pistorius had portrayed himself as a man with no limits to his physical achievements, succeeding to spectacular effect by qualifying to compete against the world’s fastest runners in the Olympic Games. In order now to win the toughest contest of his life, he had to reveal himself as a weak, twitchy, nervous wreck, a man psychologically burdened and physically constricted by the absence of his legs. He had to obliterate the wall of pride that had preserved his fragile self-esteem since childhood, turn his entire personality inside out, and persuade the court to take pity on him.
The worst of it was that he would have to do so before a worldwide audience of millions. Against his objections, and those of his defense team, the Judge President of the Gauteng High Court, Dunstan Mlambo, the man who had appointed Judge Masipa to the case, ruled that for the first time in South African history the entirety of the trial could be televised live. Barry Roux believed that having cameras in court would undermine his client’s right to a fair trial, but Mlambo overruled him. Mlambo’s reason for doing so had its origins in the apparently scant regard he had for journalists’ ability to report on the case adequately. He wrote that journalists’ ‘summarized versions’ were ‘liable to be inaccurate’, and that it would be better to let the public follow the proceedings as they happened without the dubious filter of
the news media. The Judge President’s one provision was that while the testimony of witnesses would be carried on audio, each would have the right to choose whether he or she appeared on camera, except the state experts and police witnesses who had no choice.
The prosecution’s support for the motion helped carry the day, encouraging the suspicion harbored by the defence lawyers that Gerrie Nel’s zeal was fueled in part by vanity. It would also lead to the creation of a new South African pay-TV channel whose sole mission would be to provide live coverage of the trial, broadcasting repetitions and expert opinion twenty-four hours a day. ESPN in the United States and Sky Television in the United Kingdom ran live feeds from the courtroom throughout. Reporters for the BBC, the big American news networks and the world’s biggest newspapers flocked to South Africa, drawn by the knowledge that there was only one thing the public found more appealing than the story of the hero, and that was the story of the fallen hero.
The upshot was that as many spectators would witness Pistorius’s shame in Pretoria as had celebrated his glory in London – but one thing would not change: they would be following the courtroom drama as if it were a sports contest.
Most viewers had made up their minds beforehand which side they wanted to win; once the game got under way, one camp would cheer and the other grimace when Gerrie Nel landed a blow for the prosecution, then do the opposite when Barry Roux struck back for the defense. On the ‘Oscar Channel’, as it became known, experts would provide blow-by-blow commentary, complete with edited reruns of the liveliest court action. Foreign channels would do much the same, inviting guests to be interviewed during breaks in the trial in one of a number of tented studios erected by the big American and British networks specially for the event, on a terrace overlooking the court
building on Madiba Street. Newspaper and broadcast journalists inside the courtroom would provide up-to-the-minute commentary for their employers’ internet blogs or on social media, providing subscribers to both Twitter and pay-TV with the opportunity continually to switch between screens as the drama unfolded. The chatter, the indignation, the jokes, the spoofs, the wise and witty pronouncements would then migrate to other virtual meeting venues and thence to bars, restaurants and living rooms where individuals would debate the case face to face in New York, London, Paris, Barcelona, Rome, Sydney, Buenos Aires, Berlin, Amsterdam and, with varying degrees of fascination, all corners of the globe.
In South Africa there was a general election coming up two months after the start of the trial and all parties were furiously campaigning, but it was a measure both of the country’s political stability, with the ANC certain to win, and the pull of celebrity, that there was only one subject people wanted to talk about. On the morning the trial began the deputy editor of
The Sowetan
, the newspaper for which Judge Masipa had once worked, went on the radio to say that, never mind the election, for her overwhelmingly black audience the Pistorius trial was the story of the year.