Authors: John Carlin
Roux made a special point of questioning Dr Vorster about Pistorius’s present mental state, the lawyer’s notion being that it would shed useful light on his fraught emotions and rambling inconsistencies when under interrogation by Gerrie Nel. She replied that since the shooting Pistorius had been suffering from depression, fed by guilt and remorse, and from Post-Traumatic Stress Disorder. Roux sought more in this vein, asking Dr Vorster how Pistorius had appeared to her when he talked about the events of the night the incident took place.
‘As he described the events, he was distressed, crying and retching,’ she replied. Roux asked her if she believed those emotions had been real. ‘In my opinion they were genuine,’ she replied. ‘You cannot feign
retching. If one had to feign retching one would develop a hoarse voice, red in the face. He was pale and sweating. This is difficult to feign.’
Nel, as Roux had expected, appeared restless during Dr Vorster’s testimony, concerned that his good work in cross-examining Pistorius might be undermined. Nel needed advice on how to address this unexpected contingency, and when the first adjournment came he engaged in animated discussion with Gerard Labuschange, who remained head of the South African police service’s forensic psychology section and had been present throughout the trial. Nel was unhappy with Dr Vorster’s testimony for precisely the reasons that Barry Roux wanted him to be unhappy. She was offering, first, what the judge might interpret as scientifically plausible excuses for Pistorius’s poor performance on the witness stand; and, second, she was opening up the possibility that the legal notion of what constituted ‘reasonable’ behavior at the time of the shooting might be broadened to accommodate the unusual levels of anxiety deriving from Pistorius’s disability and the childhood complications that had gone with it. Roux was angling for the judge to accept Dr Vorster’s premise and agree that a response to a perceived threat that might be considered criminally disproportionate in an ordinary, able-bodied person might be regarded as reasonable in a disabled one.
This, for Nel, was poison. For the prosecution case to succeed, he needed Pistorius to be regarded by the judge as he had always portrayed himself prior to the trial – more able than disabled, a strong-minded athlete capable of competing against the world’s fastest men at the Olympic Games. Nel needed Oscar Pistorius the myth, not Oscar Pistorius the man, to be the person in the dock. To prove that Pistorius had knowingly killed Reeva Steenkamp, Nel had to portray
him as a champion whose feats rested on free will, not as a man at the mercy of fate or of motivations he only faintly understood and over which he had limited control. Nel had to deny the existence of the secretly vulnerable and fear-plagued amputee as vigorously as the Blade Runner himself had sought to do all his life until the night of the shooting.
Following his consultation with Colonel Labuschagne, Nel hatched a plan, but he did not reveal it until the end of what turned out to be a dispiriting cross-examination of Dr Vorster. She was a model witness. She spoke in crisply formed sentences and was confident enough in her expert knowledge to answer with a simple ‘yes’ or ‘no’, or even ‘I am not certain’, when that was what the questions required. She also made it clear that she was not tailoring her evidence to suit Pistorius, by agreeing that he would be a person especially anxious about losing a relationship and therefore especially prone to jealousy, and that for a person with Generalized Anxiety Disorder to own firearms represented a danger to society.
But Dr Vorster would not budge on her core contention that special circumstances – notably, the amputation at eleven months old and his mother’s anxiety and alcohol abuse – had decisively shaped Pistorius’s character, rendering him more fearful and insecure than most other people in all areas of life. Whether these factors should be taken into account in judging the guilt or innocence of the accused was, she said, for the court to decide. But, in sum, she said, her opinion was this: ‘As one is increasingly anxious, one feels more and more insecure about one’s personal safety, even though factually one’s safety may not be threatened. By having increased levels of anxiety, you perceive your surroundings as being threatening, when maybe they are not.’
In other words, yes, it could reasonably possibly be – in the legal language pertinent to the case – that Pistorius was telling the truth
when he said he thought there had been a dangerous intruder lurking behind the bathroom door.
Alarm bells were ringing in Nel’s head. He would never look more flustered during the defense case than when Dr Vorster was on the witness stand. So much so, that before resuming his cross-examination of her after an adjournment, he neglected to turn off his mobile phone before the judge made her entrance. To Nel’s acute embarrassment, his phone rang as he was in the middle of questioning Dr Vorster, prompting another rebuke from the judge and profuse apologies from him.
Nel understood that the trial had suddenly entered a critical phase. It was imperative for the success of his case that the accused’s disability and its psychological ramifications should be deemed to be irrelevant and not, as the defense were seeking to propose, the heart of the matter. In order for this to happen, he had to discredit Dr Vorster’s evidence. The problem, as he was shrewd enough to understand, was that he was bashing at a brick wall. Recognizing that he lacked the scientific wherewithal to expose holes in the psychiatrist’s evidence, he sought outside help.
That was where the plan he had devised with Colonel Labuschagne came in.
Nel made an application to the judge for Pistorius to be referred for external psychiatric evaluation. Suddenly it was Roux and the defense team who looked flustered. Nel had turned the tables on them with what turned out to be not an unreasonable or unusual request. As he said, psychiatric referral was common procedure in cases where the accused claimed diminished responsibility due to mental incapacity. If the judge were to accept the application, Pistorius would be sent for observation before a panel of experts at a state psychiatric facility in Pretoria known as Weskoppies. Nel’s hope was that
these experts would discredit Dr Vorster’s testimony in a way that he could not.
Roux objected bitterly. ‘This is just a ruse by the state to get a second opinion,’ he told Judge Masipa. ‘There is no merit in the application.’ Nel’s move was merely a recognition of the fact that his cross-examination of Dr Vorster had been ‘not good enough’.
Nel, rather than take offence, looked pleased with himself. ‘Mr Roux,’ he said, addressing the judge, ‘is being too emotional. I would also be if I had called a witness and that witness opened the door for the referral of my client.’ To which Roux, collecting himself, replied that Dr Vorster was not saying that his client was delusional or incapable of distinguishing right from wrong. ‘The witness,’ Roux said, ‘is simply saying that the court must take his condition into account.’
Nel, who had no intention of backing down, revealed that he understood perfectly the reasons why Roux had called on Dr Vorster to make her evaluation after his client had testified in court – on the one hand, to try and compensate for the weakness of his ‘unimpressive’ testimony by claiming he was in some way unbalanced; on the other, because the defense was placing his mental state at the center of the murder case. Nel said he was aware of the practical implications should the judge accept his application, and that an already long-delayed trial would be delayed even further. But Nel said that the accused had to be referred for observation because otherwise, in the event that he was found guilty of murder, his mental fitness to stand trial might be raised on appeal. The judge, he recommended, ‘should err on the side of caution’.
Judge Masipa, adjourning proceedings, said she would ponder the matter overnight and deliver her ruling the next morning. Curiously, heated as the debate had been between Roux and Nel, both lawyers left the courtroom that afternoon wondering whether they might
have been mistaken on the position they had taken. If the referral were to go ahead, the findings of the expert panel would have to be accepted by all parties. The judge would take them as gospel. This meant that if the panel found Pistorius of sound mind in every respect, Nel would be the victor and the psychological defense would be deprived of all validity. But if the panel agreed with Dr Vorster and found him to be a deeply damaged individual, Roux would be able to claim victory. Nel understood, on colder reflection, that he was taking a risk. Roux wondered whether it might, after all, prove to have been a risk worth taking.
The following morning Judge Masipa ruled in favor of Nel. As if she had tapped into Roux’s ambivalence, she noted that the defense had ‘strangely’ opposed the prosecution’s application. The effect of the evidence of Dr Vorster, she said, was that ‘doubt is created regarding possibly diminished criminal responsibility’, which, she implied, could work in the defense’s favor. The sum of her ruling was that neither she, nor the defense, nor the state, were in a position to reach a satisfactory understanding of these psychiatric and psychological matters without, as Nel had demanded, objective outside assistance.
‘This court,’ she declared, ‘is ill equipped to deal with Dr Vorster’s evidence . . . A proper inquiry in my view is needed so that the accused can get a fair trial.’ Stressing that her aim was ‘not to punish the accused twice’, she said it would be ‘preferable’ if it could be ensured that he would not be confined in a state facility, but treated as an outpatient.
The judge’s wish was respected and Pistorius was assigned to undergo a month of tests under the supervision of three psychiatrists and a psychologist at the Weskoppies clinic, where he would report every day but would otherwise be free to carry on living at his uncle’s home.
On the face of this, it was a blow for the defense, but Barry Roux
did not look displeased when the judge announced her decision. Having slept on it, he had decided to look on the bright side and trust that the outcome of the evaluation would be favorable to the defense. Apart from Aimée, whose eyes seemed continually on the verge of watering up, the Pistorius family did not appear downcast either. Arnold, briefly addressing the news media later that morning, said they were all ‘comforted by the thoroughness and detail of this judgment’. He did not publicly reveal his nephew’s full feelings on the matter, but the word from family members was that Pistorius still retained sufficient vestiges of his pride to regard Nel’s application as a sick and vindictive joke.
As to the Steenkamp family, June, who attended the trial every day, continued to give away nothing in the courtroom. But she did give an interview to Britain’s
Daily Mirror
from which it appeared that she was finding it hard to retain the equanimity she had displayed before the trial began. Before, she had said that she wanted the truth and was prepared, if need be, to forgive Pistorius. Now, she began by telling the Mirror, ‘I don’t care what happens to Oscar . . . I don’t even care if he goes free . . . I’m not a person who wants to punish him. I want my daughter back, but it’s never going to happen.’
But while her husband, who sat in on the interview but had not yet been to court, stuck to his position that he did not seek revenge, there came a point when she could contain her fury no longer.
‘He has an aggressive persona,’ June Steenkamp said. ‘He’s used to having people adore him, so it must be pretty different for him now. He’s been spoilt by other people, that’s why he struts around and looks superior. He’s gone from hero to devil.’
June’s daughter and Reeva’s half-sister, Simone, who would accompany her mother to court, was even more forthright in an interview published two days later in the
Mail on Sunday
.
‘He killed my sister and yet he still seems to be enjoying his celebrity status,’ she said. ‘He is trying to convince the court that they were really close and that he cared for her. It’s not true. He is a disgusting liar.’
On June 30, 2014, the court resumed. The Weskoppies team had submitted two reports: one a psychiatric assessment, an evaluation of the medical condition of Pistorius’s mind; the other a psychological one, based on observation of the circumstances that shaped his behavior and character. The reports were filed away by Masipa, who would take their conclusions into account when making her final judgment. Both the prosecution and the defense said they would abide by the findings, which were not read out in court but were made available to the news media.
At first sight, the outcome of the month-long examination did not look encouraging for the defense. Dr Vorster’s opinion that Pistorius suffered from Generalized Anxiety Disorder had been overruled. The opinion of most journalists covering the case was that the defense’s decision to call Dr Vorster had backfired. Closer inspection of the reports yielded more complex conclusions, however, and they could, on balance, even be interpreted as favorable to the defense. That, certainly, was what Barry Roux chose to believe. In private, he was telling colleagues that 80 per cent of the findings favored his client’s cause.
The difference between Dr Vorster’s opinion and that of the three psychiatrists who did the evaluation at Weskoppies was more of degree than of substance. They did detect symptoms of Generalized Anxiety Disorder, but not quite enough to define the condition as ‘clinically significant’. Yet they did find that Pistorius suffered from ‘clinically significant depression’ and Post-Traumatic Stress Disorder,
and that he suffered from ‘high social phobia’, including an acute fear of being ridiculed or embarrassed. They also found that he was able to distinguish right from wrong and that – somewhat undercutting Nel’s depiction of him under cross-examination as callously self-obsessed – he was not a narcissist. The reports also said that he had an elevated risk of suicide but his strong religious beliefs and family ties mitigated this possibility.
The psychological report, compiled by the head of psychology at Weskoppies, Professor Jonathan Scholtz, was of particular value to the defense. Scholtz made the telling observation that Pistorius’s ‘biggest dream was to race against able-bodied athletes, perhaps in an attempt to give psychological credence to his mother’s position that he was not disabled’; but more importantly, and substantially reinforcing Dr Vorster’s opinion, he reached the conclusion that there were, as he put it, ‘two Oscars’.