Authors: John Carlin
One Oscar was ‘an international superstar, more confident and feeling more in control at 1.84 meters (six feet) tall’; the other Oscar was ‘a vulnerable and fearful disabled person, at less than 1.5 meters (4 feet 11 inches) once his prostheses were removed and he was alone at night’.
Scholtz added that Pistorius’s vulnerability without his prostheses heightened his fear of crime, and actions that might have seemed extraordinary in an able-bodied person could be classed as ‘normal in the context of a disabled person with his history’.
Scholtz said, however, that Pistorius was ‘gentle, respectful and conflict-avoidant’ and he had found no evidence of ‘abnormal aggression or explosive violence’ in him; neither did he display ‘the personality characteristics of narcissism and/or psychopathy that are mostly associated with men in abusive relationships and have been linked to rage-type murders in intimate relationships’.
But what Nel took from the Weskoppies reports was not insignificant either. He could savor the satisfaction of knowing that they did not offer the defense the help they had sought from Dr Vorster in terms of providing an excuse for what would remain – along with the screams the neighbors testified they heard – the strongest element of the state’s case: Pistorius’s woeful performance under cross-examination.
In sum, the month-long psychiatric and psychological evaluation had been of value for both the prosecution and the defense. The prosecution was able to say that Pistorius’s mental condition was not so grave as to exclude him from assuming criminal responsibility for his actions in the early morning of Valentine’s Day 2014; the defense could persist in the argument that the phobias and stresses he endured reinforced their case that he had fired the shots that killed Reeva not out of rage, but out of fear. In order to try and tilt the balance further in favor of this latter interpretation, Roux called as his next witness the surgeon who had performed the amputation on the infant Pistorius, Dr Gerry Versfeld.
Versfeld’s purpose was to explain to the court the physical difficulties, pain and vulnerability experienced by a person obliged to walk on two stumps. Roux calculated that it would help his case if the judge were given a second opportunity to see for herself what Pistorius’s stumps looked like. Early on in Versfeld’s testimony, Roux asked Pistorius to leave his seat, move to the front of the court, by the witness stand and next to the bullet-holed door which still remained in place, and remove his prostheses. He did as Roux asked. This time the judge came down from the bench to take a closer look. It did not escape the attention of anyone in court that she walked with great difficulty. Unsteady on her feet, she made her way slowly down from the raised platform where she sat and around the front of the
courtroom to where Pistorius had been asked to stand, all the while holding onto the hand of a policeman.
But if her arthritis was causing her pain, she did not show it. Her ankle-length red robes looked as if they were too big for her small frame, but she did not lose her dignity, paying studious attention as Dr Versfeld explained the procedure he had carried out on Pistorius’s legs twenty-seven years earlier. He informed the judge that he had positioned the heel cushions of Pistorius’s mangled feet onto the base of his stumps, but, with time, one of them had moved up the side of his leg, rendering it more painful for him to walk now than when he was a child. The judge did not shy away from looking at Pistorius’s stumps. Nel did. He pointedly ignored a spectacle that generated a keen, if morbid, interest in everyone else in the courtroom. He sat with his back turned to the spectacle Roux had staged, as if it were beneath his dignity to take part in it. There were two other possible reasons why Nel refused to look: that he found the defense maneuver not only manipulative and distasteful but of dubious legal value; or that, just as the comedian Nik Rabinowitz had not wanted to engage personally with the man who was the butt of his jokes, he did not want to run the risk of feeling pity for the man he was professionally required to try and send to jail.
The last defense witness was Wayne Derman, a sports medicine professor at the University of Cape Town who had been the team doctor for South Africa’s Paralympic team at the Beijing and London Games in 2008 and 2012. Derman’s role was to back up both the psychiatric arguments put forward by Dr Vorster and the ‘two Oscars’ split-personality theory put forward by Professor Scholtz. But Derman had a weakness as a witness of which he made no secret – his friendship with, and affection for, the accused. Nel targeted that weakness and also, with some success, Derman’s authority to testify about the
psychological factors that might be at play in Pistorius’s response to a perceived threat.
But through Derman, Roux was nevertheless able to persist with his deeper strategic objective of seeking to soften the judge’s heart.
‘You’ve got a paradox,’ Derman said. ‘You’ve got an individual who is supremely able and an individual who is significantly disabled . . . Although he loathes to be pitied in any way, the hard truth is that he does not have lower legs.’
Derman, who was familiar with the daily hardships endured by people with disabilities, added, ‘The saddest thing I have learned through my six years of working with athletes with disability is that disability never sleeps. It’s there when you go to sleep at night, and it’s there when you wake up in the morning. It affects nearly every aspect of your life.’
Roux, who could only hope that Judge Masipa heard some echo of her own affliction in those words, declared at the end of Derman’s testimony that the defense case rested. The date was July 8. The court had sat for thirty-nine days, but, due to the various long and unexpected adjournments, the trial had been running for four months and five days, since March 3. No further evidence would be heard in the trial. On August 7 and 8, Nel and Roux delivered their closing arguments. Then Judge Masipa announced the date for the verdict: September 11.
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Doubt is disagreeable, but certainty is ridiculous
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in the morning of Thursday, September 11, 2014, Judge Masipa entered the courtroom to deliver her judgment. Every seat was taken; even the gap between the family and friends of Pistorius and the family and friends of Reeva Steenkamp had disappeared, the bench they sat on swelled by the presence of Henke Pistorius and Barry Steenkamp. They had both made their first appearance at the trial during closing arguments a month earlier, but had not greeted each other and neither did they do so now.
Carl Pistorius had not been able to make it for the closing arguments because six days earlier, on August 1, he had been in a head-on collision between a car he was driving and another vehicle. His two legs had been crushed below the knees. Reported to be in critical condition when he arrived in hospital, it was not clear initially whether he would live or, if he did, whether he would be able to walk normally again. But he had made a surprisingly strong recovery and doctors said he would be on his feet again before the end of the year, and here he was now in court, in a wheelchair, to listen to the verdict. The other driver in the collision was badly injured too, and the police had opened an
investigation into negligent and reckless driving, though Carl denied all blame. Press reports of the incident recalled that in May 2013 he had been acquitted of culpable homicide after another car accident in which he had been the driver and a woman had died. Today in court Carl was praying, along with the rest of the Pistorius family, that culpable homicide would be the verdict pronounced on Oscar.
When Judge Masipa sat down, Pistorius alone remained standing, as court rules required. But the judge, signaling that it would be some time before she announced the final verdict, turned towards him and said: ‘Mr Pistorius, you may remain seated. I will tell you when to rise.’
Masipa adjusted her glasses, held with two hands the top page of a thick sheaf of papers on her desk – the judgment would turn out to contain a total of seventy-two pages – and began reading.
She named the four counts on which Pistorius was charged, count one being murder; she quoted extracts from the explanation plea that Kenny Oldwadge had read out on Pistorius’s behalf at the trial’s start, detailing the defense’s version of the ‘tragic incident’ at his home in the early hours of February 14, 2013; and then she stated the prosecution case: ‘that the accused and the deceased had had an argument and that the accused had then intentionally shot and killed the deceased who had locked herself in the toilet’.
The judge offered a brief summary of the main evidence put before her, then listed the facts that were not disputed – among them, that Pistorius had fired the shots while on his stumps, that the toilet door had been locked from the inside, that Pistorius had called for help, that he had used a cricket bat to break down the door, that he was very emotional after the incident and that he was seen trying to resuscitate the deceased.
‘It is clear, therefore,’ she said, ‘that the issues are limited to whether at the time the accused shot and killed the deceased he had
the requisite intention, and if so, whether there was any premeditation.’ She dismissed as insignificant the claim raised by the defense that the police had contaminated the crime scene and declared, ‘I proceed to analyze the evidence. I deal first with count one.’
Masipa read through the judgment in a steady, clear voice, never deviating from her prepared text. Millions of people were hanging on her words, which were being broadcast live around the world, but she betrayed no suggestion of stage nerves and neither did she reveal any inclination to indulge in theatrics. Pistorius’s eyes did not deviate from the judge and, initially, his face revealed no emotion.
The record of the evidence, the judge continued, ran into thousands of pages. ‘Thankfully, the nub of what is at issue can be divided into three neat categories as set out hereunder: gunshots, sounds made by a cricket bat striking against the door, and screams in the early hours of the morning.’ All three were ‘inextricably linked’, she said, and would be examined together in the context of the testimony provided by Pistorius’s neighbors, the five who had been called by the prosecution and the three who had been called by the defense.
Overall, the judge said it was clear that some of the sounds had been misinterpreted by the witnesses, who had not been able clearly to distinguish between the four gunshots and the smacks of the cricket bat against the door.
The judge first addressed the evidence of Michelle Burger and her husband, Charl Johnson, who lived 177 meters (580 feet) from Pistorius’s home. Noting that this distance put the couple ‘at a distinct disadvantage’, she said their evidence had not been dishonest, as Barry Roux had suggested, but had been ‘correctly criticized, in my view, as unreliable’. One indication of this had been Burger’s refusal to concede to Roux that the sounds she thought were gunshots could have been made by the bat.
The testimony of Johan Stipp, who lived 80 meters (260 feet) from Pistorius’s home, had also been ‘unreliable’, in his case in terms of ‘the times when different events in this matter unfolded’. But the judge criticized Roux for suggesting Stipp had colored his evidence to fit the state case, noting that Stipp had shown no bias against Pistorius, whom he described as ‘destroyed’ when he found him at his home ‘attempting to resuscitate the deceased’.
On the critical question of whether the screams heard by the witnesses were made by a man or by a woman, Judge Masipa noted that distinguishing intelligibly between the two was a ‘tricky’ matter.
‘None of the witnesses had ever heard the accused cry or scream, let alone when he was anxious. That in itself poses a challenge, as the witnesses had no prior knowledge or a model against which they could compare what they had heard that morning. Even Ms Samantha Taylor, who confidently stated that when the accused was anxious or agitated he sounded like a man and not like a woman, had to concede that she had never heard him scream when he was facing a life-threatening situation. In any event, the evidence of Mr Lin, an acoustic engineer, cast serious doubt on whether witnesses who were 80 meters and 177 meters away, respectively, from the accused’s house would be able to differentiate between a man and a woman’s screams, if the screams were from a toilet with closed windows.’
Barry Roux, who during earlier phases of the trial would recline almost languidly on the back of his chair, sat up straight, alert to every inflection in the judge’s voice. Gerrie Nel listened with his head bent.
Things so far were going Pistorius’s way, but when the judge began describing Reeva’s injuries he responded with the same display of distress as he had done each time they were described earlier in the
trial. ‘The injury to the arm was particularly devastating,’ the judge said, causing Pistorius’s face to redden. ‘A person sustaining a wound of that nature would be almost immediately incapable of voluntary action of any kind. He or she would probably also be immediately unconscious.’ Pistorius closed his eyes tight shut and a muscle began to quiver on the back of his neck.
‘There was also damage to the brain as well as substantial fracturing of the base of the skull, but minimal blood in the airways. This suggests that the deceased probably did not breathe more than a few seconds after sustaining this wound.’
Tears seeped out of Pistorius’s eyes and once more he was battling to stop himself from breaking down. He continued to battle on even as Judge Masipa began a summary of the debate surrounding the screams that clearly suggested that, on this critical aspect of the case, she was about to rule in his favor.
‘The shots were fired in quick succession,’ Judge Masipa said. ‘In my view, this means that the deceased would have been unable to shout or scream, at least not in the manner described by those witnesses who were adamant that they had heard a woman scream repeatedly. The only other person who could have screamed is the accused.’
Pistorius’s rational response should have been relief, or outright joy, but he was unable to suppress his now customary reflex response to descriptions of the wounds he had inflicted on Reeva. Tears stained his cheeks and he strained to hold himself together, at one point moving the green plastic bucket, which still stood near his feet, closer to him for fear that he would vomit. His family would say later, however, that there had been more to it than a physical reflex. The tears had also expressed a huge release of tension as, for the first time in nineteen months, Pistorius dared to believe that he might be absolved of the chief crime of which he had been charged. When the first break in the
proceedings came, after an hour, Aimée once more went to his side and embraced him, but this time she did not look sad.