by John Carlin
Judge Masipa bowed reverently before the court and Pistorius bowed back, as did his lawyer, Barry Roux, the prosecutor, Gerrie Nel, and everyone else in the packed courtroom. Then she took her seat on a black orthopedic chair, while the assessors settled down either side of her, in burgundy leather chairs of the type on which judges normally sat.
Pistorius sat alone, facing the judge, on the extreme left of a wooden bench long enough to have accommodated thirty defendants. In front of Pistorius, between him and the judge, sat his defense team: his attorney and old friend Brian Webber, two junior defense clerks, Barry Roux, and Roux’s number two, Kenny Oldwadge. Roux and Oldwadge, in black gowns, had the title of advocates. They were the trial lawyers, their job to speak on Pistorius’s behalf. Roux, the more senior of the two, would do the lion’s share of the interrogation of witnesses and presentation of the defense case; Oldwadge, a junior counsel, would be his occasional backup.
Oldwadge had handled some high-profile cases before. He had successfully defended the driver of a car that had crashed four years earlier, killing Mandela’s thirteen-year-old great-granddaughter, Zenani, the night before the start of the 2010 soccer World Cup in South Africa. The driver was charged with culpable homicide, driving under the influence of alcohol, and reckless and negligent driving. It was a difficult and politically delicate case, but Oldwadge won it, securing the defendant’s aquittal on all charges. Olwadge persuaded the magistrate that there had been no evidence of alcohol consumption or of negligence on the part of his client, and came up with two expert witnesses who convincingly testified that it had been a freak accident.
Oldwadge had a bigger personal stake in the current trial’s outcome. He had not known Pistorius since childhood, as Brian Webber had, but they had struck up a friendship after Oldwadge represented him in 2009 following the incident at a birthday party at his home when he was arrested, and spent a night in police custody, for having allegedly assaulted a young woman. She claimed that he had slammed a door on her, injuring her leg. Oldwadge’s swift intervention ensured that no charges were ever pressed.
Oldwadge, like Webber, was almost family, and while it was comforting for Pistorius to hear his lawyer rage indignantly in private at the iniquitous way in which the news media had turned against him, it would not have been wise to place his fate entirely in Oldwadge’s hands. Oldwadge was a big man, with a blustery nature, and there was a risk that if he played too central a role in the case Gerrie Nel might rattle him. His judgment might be swayed by his emotions.
Roux, on the other hand, approached his task as a surgeon would an operation. A cold-blooded professional in the courtroom, away from it he was a mild-mannered man, light-hearted and affable, a wine lover who was never happier than in the company of his many friends. Silver-haired and stockily built, he was regarded by his peers as one of the top two criminal defense lawyers in South Africa. Roux had been in legal practice since 1982, often taking on cases without regard for his personal belief as to whether the defendant was innocent or guilty – sometimes, not unusually for a defense lawyer, even when he suspected his client was lying to him. In such instances he would recommend a guilty plea, but if his advice was turned down the ethics of his profession required him to go ahead and conduct the defense to the very best of his ability. In this case, the biggest of his life, he had sincerely convinced himself of his client’s innocence. At least in the sense that Pistorius had not shot his victim knowingly, that Reeva’s death had been a terrible mistake. Roux’s considered judgment in this matter was that it had all been, as he would tell friends over a bottle of red, ‘a fuck-up, the epitome of a fuck-up’.
Pistorius trusted Roux. It was going to cost him a fortune to pay for his services, draining him of his savings and, in due course, of his house. But Oldwadge and Webber had told him that he was the best advocate money could buy and Pistorius was grateful to have him on his side. Roux was at least the equal of his adversary, the short, ginger-haired prosecutor sitting parallel to him, over on the far right of the court.
Nel was an Afrikaner, as was Roux. Doggedness came with the culture and the two shared a reputation for nitpicking persistence in their interrogation of witnesses. But where Roux saw himself as a hard-eyed lawyer trying to make an honest living, Nel had a touch of the moral crusader about him. As an employee of the state, he earned less than private practitioners like Roux, but he found sufficient compensation in the belief that he was contributing to the consolidation of his country’s new democracy by upholding the law without fear. A prosecutor since 1984, he had played an Eliot Ness role as the chief in Gauteng province of South Africa’s ‘Untouchables’, a supra-police organization called the Directorate of Special Operations (known popularly as ‘the Scorpions’) that specialized in combatting organized crime and corruption in government. Nel, whose hobby was wrestling, was known by his peers as ‘pit-bull’ for the aggressiveness of his cross-examinations, though colleagues who knew him outside court described him as self-effacing and likable. He had leapt to national fame in 2008 when he led an investigation into the national commissioner of police and former head of Interpol, Jackie Selebi, who was accused of receiving bribes from a convicted Johannesburg drug-smuggler and mafia chief. As Nel prepared to arrest Selebi, he himself was arrested – twenty armed policemen loyal to Selebi had detained him at his home, in front of his wife and children. He was released on bail and absolved of what were revealed to have been baseless fraud and perjury charges, but, far from being intimidated, he pursued the police commissioner with still greater animus, eventually putting him in the dock and subjecting him to a brutally relentless cross-examination. ‘You know what this means, Mr Selebi?’ Nel said at one point. ‘It means that you are arrogant and that you lie.’ Nel won the case and Selebi went to jail.
Roux, familiar with Nel’s reputation, had a grudging professional regard for him, but detected a measure of vanity behind his image as a man with a mission. Sensing that Nel might be unable to resist playing up his pit-bull persona on the big stage, Roux’s greatest fear in this case was that his emotionally fragile, manifestly traumatized client would fall apart when the two came face to face in court.
Sitting alongside Gerrie Nel from the first to the last day of Pistorius’s murder trial was Mike van Aardt, the policeman who had been put in charge of the investigation after the first detective at the scene of the crime, Hilton Botha, had been taken off it. Tall, heavy-set, jowly, with bulbous, melancholy eyes, Van Aardt was divorced with two teenage children, wished to give up smoking but could not, wished also that he was paid more, but contemplated nothing other than persisting at a job that he found endlessly compelling and, he wanted to believe, socially useful. Liked and admired by his colleagues, black and white, he had been a homicide detective for twenty-two years, witnessing unutterable horrors but striving always to keep a clinical distance from the cases he took on, finding solace in his children, watching rugby and reading books.
The Pistorius case had demanded a great deal of his time, day and night, over the previous year because of the four different charges against the accused and the large number of witnesses he had needed to interview, but it had presented far fewer difficulties than other crimes he had been tasked to solve, and keeping himself emotionally disengaged had not been difficult. The cases he usually took on tended to be gruesome, along the lines of ones that had come to light just the previous month, such as the murder and rape of two little girls, two and three years old, whose bodies had been found, coincidentally, in a toilet cubicle; or the serial killing and burning of three girls aged six, nine and eleven; or the seventeen-year-old boy who had raped and murdered a girl of fourteen, then killed both her parents.
The particular crime he was engaged with now was itself quite routine in a country where murders of women by men were a dime a dozen. The case would have generated no public interest whatsoever had it not been for the identity of the accused. Unusually for a South African, Van Aardt had not paid much attention to the explo
its of the celebrated Blade Runner, and he undertook the case with no strong feelings either way. His chief concern was to ensure that he left no loose ends in the investigation, in the manner of the hapless Hilton Botha. His superiors would be watching carefully and any publicized lapses would do his prospects for promotion or a salary increase little good. Otherwise, it was one more case in his busy life in a country where the grisly rate of forty-five murders a day had not diminished over the past year. On the other hand, Van Aardt did take some satisfaction from the notion that his work might serve as a deterrent, for the fact was that, in spite of public perceptions, during the time he had worked in the homicide department the number of murders nationally had dropped almost by half. He also noted with satisfaction that thefts were being accompanied by less violence, the message having got through to criminals that they would be pursued with more vigor in the event of murder than for just theft.
Van Aardt was satisfied too that he had supplied Gerrie Nel with the raw material, chiefly in terms of witnesses, to present a solid enough case. He would sit in court alongside Nel for the duration of the trial and, warmed by the belief that he had done an honest and thorough job, and redressed the damage done to the police force by his chaotic predecessor, he was content for the law to run its course and for the judge to draw her own conclusions. Van Aardt had no dog in the fight.
Pistorius understood the nature of the detective’s job and had no quarrel with him. It was not on him but on Nel that Pistorius concentrated his loathing, never forgetting how at the bail hearing a year earlier the prosecutor had sought to portray him as a man whose regret at shooting Reeva did not extend beyond the damage he had done to his own life.
Pistorius had never felt this way towards an adversary before, not even towards the Brazilian, Alan Oliveira, who, he would always believe, had cheated him of a gold medal. Yet he understood that the one thing he must not do when the critical moment of the trial came, when he came face to face with Nel, was to allow his anger to explode the way it had in London. To remind him of this, and to provide him with the love and support he needed, Pistorius had a dozen members of his family sitting on the bench immediately behind him. Arnold Pistorius, in dark grey suit and tie, and his ever-elegant wife, Lois, were there; Aimée, in a black jacket and skirt, her dark hair coiled up in a severe bun, and Carl, wearing a suit but no tie. His mother’s sister, Diana, and other uncles, aunts and cousins on his father’s side were there, too. He was particularly glad to see his cousin, Maria, there, the one who lived next door to her father, Arnold. Six months after he shot Reeva, Maria had given birth to her first child, a boy, and as a gesture that both moved him and would give him more relief from his black moods than anything else, she and her husband had named him as the child’s godfather. The vote of confidence from the family gave a boost to his morale; the connection between him and his godson would endure whether or not the court deemed him a murderer, whether he went to prison or not. During the months before the trial he had spent long periods cradling the baby, gazing at eyes that held no knowledge of misfortune, pity or reproach. Of all the human beings he knew, only this one was innocent of the horror of what he had done, and in the connection with him he found a refuge and some measure of peace.
Not so with his father. Henke Pistorius was not there on the first day of trial, nor would he be until near the very end. Pistorius had no desire to see him there. He had had practically no contact with his father for six years, a period during which he had refused to take his calls. Now the suffering he had endured had brought home to him more clearly than ever how negligent a father Henke had been, how dismally he had failed to fill the parental vacuum left by his mother’s death. Henke’s presence now would have brought him scant comfort.
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 argu
ment. 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.