by John Carlin
— Approximately 03.15, the accused was seen walking in the bathroom.
— 03.15.51, the duration was 16 seconds, Dr Stipp telephoned Silver Lakes security.
— 03.16, the duration was 58 seconds, Mr Johnson called and spoke to Strubenkop security.
— 03.16.13 Mr Michael Nhlengethwa made his first call to security. This call did not go through.
— 03.16.36, the duration was 44 seconds, Mr Michael Nhlengethwa made his second call to security.
— 03.17 Dr Stipp attempted to make a call to 10111.
— 03.17 second sounds were heard. These were cricket bat striking against the door.
— 03.19.03, the duration was 24 seconds, the accused called Johan Stander.
‘The chronology above,’ the judge said, ‘gives a feel of where various witnesses corroborate one another’s evidence and where they contradict one another. An analysis of the evidence using the timelines as a basis will also assist this court to determine whether the state has proved beyond reasonable doubt that the accused had direct intention and premeditation to kill the deceased.’
A core point in the case for premeditated murder made by Gerrie Nel, based on the evidence of the neighbors he brought to the stand, had been that Reeeva Steenkamp had screamed in terror – ‘blood-curdingly’, in Michelle Burger’s words – prior to her death. Therefore Pistorius had to have known he was shooting at her. Judge Masipa dealt Nel’s case a double blow when she said, first, that the first sounds heard by the neighbors had been the shots and not the screams, and, second, ‘What is also clear is that the screams that were heard shortly after the shots were fired and before the second sounds, which turned out to be the sounds of the cricket bat striking against the door, could not have been those of the deceased as she had then suffered devastating injuries.’
In other words, there was no reliable evidence that Reeva had screamed at any point. This conclusion was further bolstered, the judge said, by the testimony of Mr and Ms Nhlengethwa, Pistorius’s next-door neighbors, who both said they heard a man screaming after the shots. ‘This version,’ the judge said, ‘has a ring of truth.’
Pistorius’s version of the events that ended with him striking the cricket bat against the toilet door also convinced the judge.
‘The number of these loud bangs or thud sounds, as well as the time, is consistent with the version of the accused that soon after he had realized that the person behind the toilet door might have been the deceased, he ran to the balcony from where he screamed for help, took the cricket bat and proceeded to the bathroom where he struck the toilet door three times with the cricket bat.’
Roux continued to sit alert as a hound at a hunt. Nel, who was looking down or to the side, seemed to be struggling to look at the judge. Pistorius, no longer weeping, sat expressionless, even though so far he had heard nothing but good news.
But a question still remained as to whether, as the prosecution contended, there had been an argument between Pistorius and Steenkamp prior to the shooting. The prosecution case supporting this ‘theory’, as the judge called it, rested on four different pieces of evidence: that the deceased had taken a mobile phone with her to the toilet, which she then locked from the inside; the WhatsApp messages between the deceased and the accused; the partially digested food in the deceased’s body found in the post-mortem, indicating to the prosecution that the accused had lied when he said she had not got up again after going to bed with him at 9 p.m. the previous night; and the specific argument Estelle van der Merwe said she had heard after being woken at 1.56 a.m., approximately one and a quarter hours before the shots were fired.
Many people around the world who had been watching the case keenly from the beginning argued that Reeva’s decisions to take the phone with her to the toilet and then to lock the door offered clear indications that she had fled from Pistorius. She must have taken the phone with her to call for help; she must have locked the door to prevent him from physically attacking her. As to Pistorius’s contention that she had remained silent throughout, even after he asked her to call the police, it seemed to make little sense.
Months before the trial, the defense team had come up with a possible explanation as to why she had locked the door and why she did not identify herself to Pistorius, but they had chosen not to bring this up in court. It concerned the incident five years before Reeva died, when she was alone at home with her mother in Port Elizabeth and thieves had broken in, remaining in the house for fifteen minutes as the two terrified women hid inside a locked bedroom. Pistorius’s lawyers believed that the recollection of this trauma might have influenced Reeva’s actions and state of mind after Pistorius warned her that there were intruders in the house. It would have been of value to the defense case to raise the incident as evidence in court – but Barry Roux calculated that, on balance, it would be best not to. They would have had to call either June Steenkamp or Reeva’s boyfriend at the time as witnesses. Neither would have taken the stand willingly; both would have been ‘hostile witnesses’, and Nel might have elicited additional evidence from them that would have been detrimental to the defense case.
Judge Masipa was therefore in no position to rule in her judgment as to why Reeva had locked the door or why, according to Pistorius’s version, she had kept silent. These and a number of other questions raised by the case would have to remain, she said, ‘in the realm of speculation’.
But she did note that there might be ‘a number of reasons’, as suggested to her by the defense, why Reeva had taken the phone with her to the toilet. ‘One of the possible reasons,’ the judge said, ‘is that the deceased needed to use her cellphone for lighting purposes as the light in the toilet was not working.’
As to the evidence of the WhatsApp messages that both prosecution and defense had presented, Masipa gave it short shrift.
‘The purpose of such evidence was to demonstrate to this court that the relationship between the accused and the deceased was on the rocks and that the accused had a good reason to want to kill the deceased,’ the judge said. ‘In a bid to persuade this court otherwise, the defendant or the defense placed on record more WhatsApp messages that painted a picture of a loving couple.
‘In my view, none of this evidence from the state or from the defense proves anything. Normal relationships are dynamic and unpredictable most of the time, while human beings are fickle. Neither the evidence of a loving relationship, nor of a relationship turned sour, can assist this court to determine whether the accused had the requisite intention to kill the deceased. For that reason this court refrains from making inferences one way or the other in this regard.’
Judge Masipa dealt with the evidence of the partially digested food in Reeva’s stomach and the argument Estelle van der Merwe said she had heard in summary fashion, too.
Noting that expert witnesses had agreed that ‘gastric emptying was not an exact science’, Masipa said that even if she were to accept that the deceased had eaten something shortly before she was killed, it would not lead to ‘the only possible inference’ that the accused had been lying. ‘She might have left the bedroom while the accused was asleep to get something to eat.’
In bringing forward the evidence of Van der Merwe concerning the alleged argument, the judge said that the prosecution had lost sight of the fact that she ‘had no idea where the voice came from, what language was being spoken or what was being said’. ‘Accordingly,’ the judge ruled, ‘there is nothing in the evidence of Ms van der Merwe that links what sounded like an argument to her to the incident at the house of the accused.’
That was the end of Judge Masipa’s dissection of the prosecution case, and it pointed to the conclusion that she would be finding Pistorius not guilty of intentionally killing Reeva Steenkamp. The judge had found no proof that there had been an argument, that Reeva had screamed before the shots were fired, or that problems in their relationship had provided Pistorius with a motive for killing her.
She now turned her attention to the
defense case, which centered overwhelmingly, as she made clear, on the testimony Pistorius had given. Gerrie Nel’s closing arguments had also identified Pistorius’s testimony as the crux of the defense case, and Nel had savaged it accordingly. Nel had said that Pistorius had been ‘an appalling witness’, ‘a deceitful witness’, ‘one of the worst witnesses ever encountered’, that his testimony had been full of ‘glaring contradictions’ and ‘devoid of any truth’. Giving full flight to his rhetoric, Nel had compared the trial to a relay race in which Pistorius ‘had dropped the baton of truth’, and described his evidence as a ‘snowball’ of lies.
Judge Masipa agreed with Nel to the extent that Pistorius had been ‘a poor witness’ and that his testimony had contained many inconsistencies. Quoting extensively from Pistorius’s testimony, the judge pointed out that he had said, ‘I fired before I could think’; that he had said ‘I shot because . . . I believed someone was coming out to attack me’; and that, in reply to a question from Nel as to whether the discharge had been accidental, he had replied, ‘The discharge was accidental, my lady. I believed that somebody was coming out. I believed the noise that I heard inside the toilet was somebody coming out to attack me or take my life.’
Pistorius had testified later that he had not shot to kill, otherwise he would have shot higher up, which was conclusive proof to the judge that he was contradicting himself. ‘This assertion,’ she said, ‘is inconsistent with that of someone who shot without thinking.’
The judge proceeded gently to mock Barry Roux’s repetition of the very same contradiction in his closing arguments when he had said that Pistorius had ‘not consciously discharged his firearm in the direction of the toilet door’, and yet, ‘in the same breath’, had ‘submitted that the fact that when the accused approached the toilet, he had the intention to shoot to protect himself did not imply that the accused intended to shoot without reason’.
Alert to the fact that the defense had submitted Pistorius to assessment by Dr Merryl Vorster not before but after he had testified, the judge addressed herself to the psychiatric and psychological arguments produced to account for the accused’s ‘strange conduct’ on the witness stand.
The question raised by Dr Vorster’s testimony, by the month-long examination Pistorius had undergone at Weskoppies psychiatric hospital, and by the testimony of Dr Wayne Derman, was whether Pistorius’s criminal culpability was in some way diminished by his mental state. The specific point the defense had sought to make was that firing the shots that killed Reeva had been an uncontrollable reflex response, and that accordingly he could not be found guilty of murder, or even of culpable homicide.
Judge Masipa disagreed.
‘There was no lapse of memory or any confusion on the part of the accused,’ she said. ‘On his own version, he froze, then decided to arm himself and go to the bathroom. In other words, he took a conscious decision. He knew where he kept his firearm and he knew where his bathroom was. He noticed that the bathroom window was open, which is something that confirmed his correctness about having heard the window open earlier. This is inconsistent with lack of criminal capacity.’
Masipa was undermining the defense’s psychiatric and psychological case as thoroughly as she had the part of the prosecution’s case built on the sounds the neighbors had heard. She also turned out not to be as impressed as Roux had hoped by the argument that Pistorius’s disability should afford him a special latitude in terms of the legal interpretation of what constituted reasonable behavior.
‘It is understandable’, the judge said, ‘that a person with a disability such as that of the accused would certainly feel vulnerable when faced with danger. I hasten to add, however, that the accused is not unique in this respect. Women, children, the elderly and all those with limited mobility would fall under the same category. But would it be reasonable if, without further ado, they armed themselves with a firearm when threatened with danger? I do not think so, as every case would depend on its own merits.’
The judge had settled this particular question in favor of the prosecution. Pistorius’s behavior had not been reasonable, which spelled the end of any faint notion he might have harbored in the depths of his mind that he might somehow be found innocent on all charges relating to Reeva’s death. He had consciously, deliberately fired his gun, and that would not go without punishment. He would be found guilty – if not of premeditated murder, then of one of the two lesser charges.
‘The intention to shoot,’ she said, ‘does not necessarily include the intention to kill. Depending on the circumstances of each case, an accused may be found guilty of dolus eventualis or culpable homicide.’
In other words, intention to shoot was culpable homicide; intention to kill, dolus eventualis. The question now, two hours into the reading of the judgment, was whether Judge Masipa would find that Pistorius had intended to shoot to kill.
‘In this case there is only one essential point of dispute,’ the judge said, ‘and it is this: Did the accused have the required mens rea to kill the deceased when he pulled the trigger? In other words, was there intention? The essential question is whether on the basis of all the evidence presented, there is a reasonable doubt concerning the accused’s guilt.’
Judge Masipa returned to Pistorius’s testimony, reiterating that he had been ‘a very poor witness’ and adding that he had been an ‘evasive’ one.
‘The accused was clearly not candid with the court when he said that he had no intention to shoot at anyone, as he had a loaded firearm in his hand, ready to shoot,’ she said.
However, the judge added, ‘untruthful evidence does not always justify the conclusion that the accused is guilty’. And although several aspects of the case did ‘not make sense’ and would remain ‘a matter of conjecture’ – among them, why Reeva did not respond when Pistorius asked her to call the police, why Pistorius did not ascertain where she was before pulling the trigger, and why he had fired not one but four shots – the law said that if there was any possibility of Pistorius’s version being true he should be found not guilty of murder.
‘The onus is on the state throughout to prove beyond reasonable doubt that the accused is guilty of the offense with which he has been charged,’ the judge said. ‘Should the accused’s version or evidence be found to be reasonably possibly true, he would be entitled to his acquittal.’
This brought the judge to examine whether he was entitled to an acquittal on count one, premeditated murder. She was categorical in her findings.
‘In respect of this charge the evidence is purely circumstantial . . . Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. I am here talking about direct intention. The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding.’
In the space of two hours Judge Masipa had lain to rest the question that had been on the lips of everyone, everywhere, who had been following the case since Valentine’s Day 2013: had Pistorus killed Reeva intentionally or not? Many would continue to believe that he had, but legally that opinion was worthless. It was a blow to the prosecution, but not an unexpected one. Members of Nel’s team had confided prior to the judgment that they were reconciled to the possibility that Masipa would not find Pistorius guilty of premeditated murder. The evidence, all circumstantial, lacked the credibility to prove the charge beyond reasonable doubt. The suspense now centered on which of the remaining two possible charges had convinced the judge more.
Dolus eventualis was the verdict on which Nel had pinned, if not his hopes, then his highest expectations. Within the prosecution team they believed that the case for dolus eventualis, that Pistorius had intended to kill the person behind the locked toilet door, was almost watertight. So much so, that one senior member of the prosecution team confided that he believed Barry Roux had been irresponsible in not persuading Pistorius to pl
ead guilty to dolus eventualis – a plea that the prosecution would in all likelihood have accepted, avoiding the necessity for a trial. Had Roux succeeded in persuading him, Pistorius would have received a more lenient sentence than he was likely to receive from Judge Masipa if she found him guilty. That individual had gone so far as to attribute the decision that Pistorius should face trial to Roux’s desire to milk as much money as he could from his client.
That a member of the prosecution should have said such a thing, without any foundation, offered a measure of the bad blood that had developed between the rival legal teams. The antagonism was mutual. The word from the defense was that Gerrie Nel was a flawed glory-seeker whose ambition had blinded him to the weakness of his case for premeditated murder. He had overreached himself and was now suffering a blow to his pride, in which the defense team rejoiced. But, as to the charge that Roux should have opted for a dolus eventualis guilty plea, the individual who made this point had failed to grasp one crucial aspect of Pistorius’s character. Even in his moment of deepest sorrow and disgrace, he held onto the maternal admonition that had shaped every important decision in his life: ‘The real loser is the person who sits on the side, the person who does not even try to compete.’ It would have been impossible for Roux to persuade Pistorius to plead guilty to murder of any kind. It would even have been difficult for him to persuade Pistorius to plead guilty even to culpable homicide. That would have been Roux’s preferred option, but the problem there was that Nel would never have accepted it.
The question now, as the lunch break approached on September 11, was whether the judge would rule out dolus eventualis, too. She did, starkly declaring, ‘The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.’
Pistorius’s reaction was not as might have been expected. No description of Reeva’s wounds had passed the judge’s lips for an hour and a half, yet once more he was shaking, biting his lower lip. But this time he was fighting back tears of relief and joy.