by John Carlin
‘No. Because it’s the truth.’
Pistorius tried standing up to Nel. He tried engaging him in verbal battle, but this was Nel’s terrain, not his. And he repeatedly got caught out.
‘Are you thinking of the implications of what you are saying, Mr Pistorius?’
‘My lady, if I was sitting here and I wasn’t thinking of every implication of what I say it would be reckless. My life is on the line.’
‘Reeva doesn’t have her life anymore because of what you’ve done,’ Nel shot back. ‘She’s not alive anymore. So please listen to the questions and give us the truth, and not just the implications for you, Mr Pistorius.’
As Nel did not tire of reminding the judge, the accused’s notion of the truth was too contradictory to be credible. One moment he said he had not meant to shoot at the door, the next he said he had shot at a door behind which he heard an imagined attacker, yet he never meant to shoot anyone, let alone the woman whose life he had ended. He even said at one point that he had not fired at the shower because he feared a bullet would ricochet from the tiles, which in turn suggested to Nel that Pistorius was admitting to having engaged in some forethought after all.
Whether Pistorius was genuinely confused by Nel’s cleverly choreographed attempts to unsettle him, or whether he was tired, as he said several times that he was, what was clear to most people in the court was that he was talking too much for his own good, arguing too much, volunteering too much needless information. That, certainly, was Roux’s opinion.
Roux had warned him not to fall into the trap of becoming over-combative with Nel, but to limit himself to short answers or, when appropriate, to a simple ‘I don’t know’ or ‘I don’t remember’. But, as Roux found to his exasperation, his client’s competitive vanity was getting the better of him. Suddenly he was behaving as if he imagined he had found an opportunity to recover his shattered dignity. He could not resist trying to go toe to toe with the prosecutor. And, as Roux revealed in a rare moment during Nel’s cross-examination, when he put his hand to his brow and shook his head, it was folly for his client to engage as an equal in a battle he could not hope to win.
Roux had faced a decisive question before the trial began: whether to put Pistorius on the witness stand or not. To do so would inevitably be self-incriminating, for he had no choice but to confess to firing the fatal shots. But not to do so would also incriminate him, because it would indicate a lack of faith in his ability to defend his core claim, that he mistook Reeva Steenkamp for an intruder. Roux had opted for what he considered to be the lesser of two evils.
As the cross-examination wound on into a third, fourth and then a fifth day, Roux had reason to re-examine that decision.
He would not have failed to notice that things did not improve for Pistorius when Nel examined the detail of his actions just prior to the shooting, dwelling at length on the fans that he said he had retrieved from the balcony. When Pistorius told Nel he was so absorbed in the task that he had failed to notice that Reeva had got out of bed and gone to the bathroom, Nel’s response was, ‘Keep trying Mr Pistorius. It’s not working. Your version is so improbable that nobody will ever think it’s reasonable.’
Nel pursued this seam. He knew it was a profitable one for him. From the very beginning, when the news broke of the shooting and word got round that Pistorius had believed there was an intruder in his home, the question in many people’s minds was how could he not have noticed that Reeva had gone to the bathroom?
Did he not hear her get out of bed? Nel asked
‘No. I had the fans blowing in my face,’ he replied.
Nel could not resist laughing out loud. The judge stepped in.
‘You possibly think this is entertainment. It is not,’ she told him. ‘So please restrain yourself.’
‘I apologize, my lady, for laughing,’ Nel said. ‘It won’t happen again. I was surprised.’
The judge’s rebuke obliged Nel to recover his professional poise. Soberly, he took up his next theme, a minute examination of the items in Pistorius’s bedroom that had been photographed by the police after the shooting. Nel initiated a debate that his opponent would have been wise to avoid entering. It concerned the position of a duvet and a pair of jeans which he claimed the police had moved after they arrived on the scene. Pistorius remembered them having been elsewhere in the bedroom at the time of the incident. Nel wanted to know why the police would have moved them. Pistorius did not have an answer, but insisted that they had done so. His stubbornness gained him little and lost him more. His claim to an exact recollection of where those items had been did not help him, for, as Nel pointed out, it indicated a degree of lucidity on his part that was entirely at odds with the state of terrified befuddlement he said he was in. Again, as Roux would lament, Pistorius was too clever for his own good. Or maybe, as his family would suggest, too honest. It would have been better for his case, because it would have been better for his credibility, to have said he had no recollection of where the duvet and jeans were.
As it was, Pistorius was providing ammunition for Nel to argue that he was lying.
‘I’m not trying to lie,’ he replied. ‘I can’t change the truth.’
Nel said the truth was the last thing on Pistorius’s mind. His testimony, he repeated over and over, was an invention.
‘You are just adapting as you go,’ he said. ‘It’s improbable.’ ‘You concocted it.’ ‘You tailored your version.’
At one point Nel exclaimed, ‘Your version is a lie. When you got up you had an argument, which is why she ran away screaming.’
‘That is not true, my lady.’
‘You fired at Reeva.’
‘I did not fire at Reeva!’
Whether Nel’s feelings were running away with him or he was seeking deliberately to provoke a rash reaction was hard to tell, but he kept on insisting that all he was hearing was lies until he said it once too often, prompting the judge to intervene again.
‘Watch your language, Mr Nel,’ she said. ‘You don’t call the witness a liar, not while he is in the witness box.’
Tea-leaf readers in the public gallery pondered whether the judge’s intervention on the accused’s behalf once more signaled her willingness to be sympathetic towards him, despite the hole he seemed to be digging for himself. Pistorius seemed to sense an opportunity.
‘My lady, if I was tailoring my evidence, I would tailor it to suit me,’ he complained, revealing some clarity of mind. It appeared to have dawned on him that the confusion and inconsistencies in his testimony, even if he regarded each individual statement as true, were not doing his case much good. ‘I understand it doesn’t sound rational,’ he continued, ‘but I did not have a rational frame of mind at the time.’
Nel restrained himself from laughing at that and, despite the judge’s rebuke, proceeded on his next line of attack with his confidence undimmed.
A question people following the case from afar had been puzzled by was why, if it was pitch-dark, Reeva Steenkamp had not turned on the lights on the way to the bathroom. Nel wanted to know, too. On this occasion, the explanation seemed a plausible one, not least as it also helped resolve another troubling question – namely, why had she taken her mobile phone, as all sides agreed she had, to the bathroom?
Pistorius’s answer was that it might well have been that she used the light on her mobile phone to guide her. People did that. It was not such an unlikely possibility.
But Nel, it turned out, had set a trap.
‘That is what I was waiting for you to say!’ he cried. ‘That is devastating for you, Mr Pistorius. If it was pitch-dark, you would have seen the light from the phone in your peripheral vision!’
Pistorius, however, seemed to have an answer to that, and he delivered it with some composure.
‘Peripheral vision doesn’t mean you can see behind you. If my back was towards her, I wouldn’t have seen. I had my back to the bathroom.’
Nel was unimpressed.
‘Mr Pistor
ius,’ he said, ‘this is not good for you. If you are facing away from the bed, and you just put the fan down, if you then turn your head to the right you would look down the passageway . . . Being pitch-dark, a cellphone screen light would have been in your peripheral vision. So why didn’t you see it?’
He had no answer this time.
‘I don’t know,’ he said.
Nor did he have an answer when Nel asked him, ‘Before you ventured into the passage, if you fired a warning shot into that passage, that would scare anybody, wouldn’t it? Why did you not do that?’
‘I don’t know why not,’ he replied.
If he was very scared, why did he just fire four shots? Why not empty the magazine? Why did he not fire at the open window in the bathroom, given that he seemed to think there might have been someone outside on a ladder?
He said he did not know why he fired four times. He wasn’t thinking.
‘ “I wasn’t thinking” isn’t good for you, Mr Pistorius. It’s also reckless,’ Nel said.
Did he aim and then fire, or did the gun just go off accidentally in his hand?
He said he did not aim, he merely fired.
‘So you were just lucky that you hit the door?’
‘How would that be lucky?’ Pistorius cried, in outraged tears. ‘She lost her life!’
‘There is no need for that,’ Nel tut-tutted, as if reproving an over-wrought child.
Roux had been sarcastic at times during his earlier cross-examinations. He had been confrontational, skeptical, combative. But for the most part, he had kept his emotions in check. Nel exhibited a wider and more histrionic range of feeling. He was condescending, he was sneering, he was contemptuous, he was mocking, he was shocked, he was outraged, he was indignant, he was angry and, that one time, he laughed out loud. Yet he brought the long interrogation to its conclusion with surprising restraint. He did not end the way he had begun, with a clatter and a bang. He felt he did not need to. He might not have landed a knock-out blow – there had been no single overwhelmingly damning piece of evidence in the accused’s testimony – but, by a wide margin, he had won on points. He had achieved his chief objective, which was to damage his opponent’s credibility. The judge had seen how self-contradictory and evasive Pistorius had been, how agitated and confused at times. He had rambled and over-explained. Judge Masipa might yet conclude that Nel had failed to show beyond reasonable doubt that the accused’s version was false, but she did hear him offer Nel two different explanations as to why he had fired the lethal shots: that it had been an instinctive reaction, an accident provoked by a rush of fear and a twitchy trigger finger; and that it had been a deliberate and rational act of self-defense, intended to protect both himself and the woman he loved from what turned out to be a tragically imaginary attack.
Nel, wishing to believe the judge had reached the same conclusions as he had, brought the trial’s decisive act to a calm finale, drily reiterating his claim that the accused’s version made no sense and that the only possible inference to be drawn was that the screams the neighbors heard were the victim’s, not his own, as she ran away from him in terror for her life following an argument.
‘Your version is so improbable that it cannot possibly be reasonably true,’ Nel said. The truth was, rather, that ‘You shot four shots through that door whilst knowing that she was standing there. You knew that she was talking to you . . . You armed yourself for the sole purpose of shooting and killing her, and that’s what you did.’
‘That is not true, my lady,’ Pistorius replied.
Nel turned to the judge and announced that he had no further questions. The Pistorius family let out a collective exhalation of breath. Aimée wept and, in the break that followed, Arnold Pistorius went up to his nephew and, in a public display of affection that was unusual for him, held him in a long embrace. ‘He may have a difficult time,’ Arnold remarked to an acquaintance in the public gallery, ‘but there is one thing I can tell you for sure: Oscar is not a criminal.’
Roux judged that, by a narrow margin, he had made the right choice in advising Pistorius to testify. Roux had been irritated by his client’s insistence on debating with Nel, on over-explaining, on not answering more questions with a simple yes or no. Pistorius had been a poor witness, self-contradictory and muddled. But under South African law that was not proof of guilt; it still left scope for the judge to detect reasonable doubt. Besides, Roux’s worst fears had not materialized. Pistorius had not broken down beyond repair; he had kept answering the questions thrown at him, however inconsistently at times; and he had resisted what might have been a dangerous impulse to tell Nel what he really thought of him.
Fifteen minutes after the end of Nel’s cross-examination the court resumed, and Roux stood up to question Pistorius one last time, hoping to turn the judge’s attention away from the muddle of his client’s testimony and towards the prosecution’s failure either to give any substance to the theory that there had been an argument prior to the shooting, or to come up with any motive for murder. The signs were, rather, that at the time of the shooting his client and the deceased were very much in love, indicating no reason for a violent argument, much less a motive for murder. As evidence, Roux produced an envelope with a card inside. Pistorius had already made mention of this when Roux had led him through his testimony six days earlier, but Roux calculated that this piece of evidence was so central to his case that he should seek to imprint it as indelibly as possible in Judge Masipa’s mind.
Roux asked Pistorius if he knew what it was that he held in his hand. Pistorius replied that it was the Valentine’s Day card he had received from Reeva ‘on the day the accident happened’. Roux asked him to describe the envelope in which the card was contained. It was addressed to ‘Ozzie’, he replied, and was covered with hearts and squiggles. Roux asked him to read the card. Pistorius, in tears, did so. Alongside a printed ‘Happy Valentine’s Day’ message she had written, in her own hand, ‘I think today is a good day to tell you that . . . I love you.’
Roux turned to the judge and said he had nothing further to add.
At 11.48 on the morning of April 15, 2014, the twenty-third day of the trial, Judge Masipa politely thanked ‘Mr Pistorius’ for his assistance and told him he could stand down. He had been on the witness stand for seven days, five of them in direct confrontation with Gerrie Nel.
Outside the court building that afternoon, when the day’s proceedings had ended, a dozen teenagers in school uniform waited to catch a glimpse of Pistorius. All of them were black. One of them, a girl of about fifteen, spoke for all of them. ‘Oscar shall always be our hero,’ she said, to nods of assent from her schoolmates. ‘What he did was very terrible, of course. And he may have to spend some years in jail. But we shall never forget what he did for our pride as South Africans.’
On a nearby bus shelter one of the students had scrawled, ‘We will honor always U.R. talent. Prison is not the end!’
19
We are often strong out of weakness, and bold out of timidity.
FRANÇOIS DE LA ROCHEFOUCAULD, MAXIMS
GERARD LABUSCHAGNE, the police colonel who had accompanied Pistorius to the hospital for medical tests on the morning after the shooting, had rightly surmised from the very start that his defense would be in part a psychological one. If Pistorius could convincingly be portrayed as mentally damaged, prey to all manner of phobias and insecurities, it might add credence to his story; it might help explain why he had reacted with such disproportionate terror to the noise he said he had heard in the bathroom. But now, as the defense case neared its conclusion, there was a second imperative to present him as damaged mentally: it would offer some mitigating explanation for his befuddled and confused testimony during the cross-examination by Gerrie Nel. It might help undercut Nel’s contention that he had told a pack of lies.
On the advice of his lawyers, in a move they had not planned at the start of the trial, Pistorius submitted himself in the first week of May 2014 to an evaluation
by Dr Merryl Vorster, a distinguished professor of psychiatry at Johannesburg’s University of the Witwatersrand. She interviewed him over two days, and spoke also to Aimée, Carl and Pistorius’s agent, Peet van Zyl. On May 12, day thirty of the trial, Dr Vorster took the witness stand, offering the court an interpretation of Pistorius’s character based on the information she had gleaned about his life up until the time of the shooting and in the fifteen months since.
Dr Vorster, led by Barry Roux, began at the beginning. She noted that the amputation of Pistorius’s legs when he was eleven months old had happened at the pre-language stage, and that he would not have been able to understand what was being done to him. But the emotional impact had been enduring.
‘There would have been pain, perceived by an infant as a traumatic assault,’ she said. ‘He would not have been able to be soothed by his mother.’
To help him cope with his loss, his parents encouraged him to behave as normally as possible. ‘He was never allowed to perceive himself as being abnormal.’
But, Dr Vorster explained, there was a downside to this.
The obligation continually to appear normal when he was not, when at primary school the children reminded him of his condition by teasing him about his prosthetic legs, established a pattern of ‘anxiety and stress’, expressed partly in chronic headaches, that never went away.
For Pistorius, to sit and listen to the implacably authoritative Dr Vorster dissect his personality was a new form of torture. She peeled away, layer by layer, the personality he and his parents had sought so assiduously to construct for him, exposing him to the world as a man who had lived a lie – or, at any rate, a half-truth. The picture he had been projecting of himself as, successively, a plucky little boy, a regular ‘one of the boys’ teenager, a champion sportsman, a seducer of beautiful women, ‘the king of the London Games’, was only a part of the story. The other part, which he tried to keep from himself and from others, was timorous, childlike, painfully self-conscious, afraid of being pitied or laughed at. Unable to reconcile the contradictions of his dual nature, he had endured life, Dr Vorster said, in a state of perpetual stress.