He called it the equilibrium of instinct and intelligence.
I checked that the Judge and Assessors were following the evidence. They had the written report we had handed in as the basis of Dr Shapiro’s evidence and were alternating their attention between listening to the evidence and taking notes. We went on very slowly.
For a person to behave according to the norms of contemporary society, said Dr Shapiro, the emotional and intellectual sides of the mind need to be more or less in equilibrium. When the emotions overshadow the intellect, we get irrational actions. When the intellect overrides the emotions, we get unduly flat, distant, unsympathetic behaviour.
I took a deep breath because I knew that the most crucial piece of evidence was to follow.
‘What in your opinion happened here?’ I asked Dr Shapiro when the foundation had been laid.
What happened, he said, is such a build-up of external stimuli over an extended period of time that the patient – and I noticed how he referred to Labuschagne – entered a state where his intellect was completely drowned by his emotions. In that state the emotional load on him was so great that he would not have had a conscious awareness of his physical acts. Yet the eyes would see, the motor functions would remain, like they do in a sleepwalker. Thus he could shoot accurately while having neither intellectual control nor any memory of the shooting. His acts were neither conscious nor voluntary, he concluded.
Judge van Zyl intervened with a question. ‘What would cause a situation where the intellect would be submerged by the emotions in an ordinary law-abiding member of society?’
‘Oh, Your Honour,’ he said, addressing the Judge as if we were in California, ‘there could be any number of causes, for example, extreme intoxication, drugs, emotional entanglements such as love or hatred, and there have been cases where severe and chronic spousal or child abuse has led to such a breakdown of the mind.’
‘But is such a condition not insanity?’ asked the Judge before I could pick up the strings again. ‘Surely that is insanity as defined by law.’
Dr Shapiro must have met the question before and was able to answer immediately. ‘Your Honour would be correct if the condition was permanent or even of lengthy duration; where it is chronic, to use the medical term. But if it is acute, meaning that it happens on one discrete occasion, and before and after that occasion the patient functioned normally, then that person is not insane within the definition of insanity adopted by medicine. At best it could be said that he or she is temporarily insane, and then only for the duration of the moment when the intellect is submerged completely.’
It was, for the defence, the perfect answer. It was even better that it had been elicited by a question from the Judge.
I had two prepared questions left.
‘Dr Shapiro, in your professional opinion, and taking into account all the facts of the case and the evidence you have heard during this trial, what was the defendant’s state of mind during the incident at the reservoir when he shot the deceased?’
Dr Shapiro measured his answer. ‘In my professional opinion, to such a degree of medical certainty as I require, the defendant was in a state of automatism. As a result of prior events and trauma he had suffered, his mental processes were not functioning normally and his intellectual mind had been swamped so completely by emotions that he did not act voluntarily or consciously.’
‘Dr Shapiro, my last question is this,’ I said. ‘If his intellectual mind was not functioning, how could he have fired those thirteen shots with such deadly accuracy?’ I had to deal with the point before James Murray could cross-examine on it.
‘That is not unusual, Your Honour,’ said Dr Shapiro, ‘in fact, it is quite common. When the intellect no longer functions, the emotional or instinctive mind is still functioning. Learnt or instinctive conduct would still be possible. The sleepwalker walks without bumping into anything. The drunk drives the car with a manual gearbox for miles without incident, even though he has no memory of it afterwards. There are many examples of such instinctive behaviour. Rote activities, especially, can be performed with a fair to complete degree of accuracy. And in this case the patient has always been a good shot with the very same pistol he used at the reservoir. He would be able to shoot with the same degree of accuracy he had acquired as learnt behaviour on the shooting range. And he would do that while unconscious of it; his eye would see, his hand would take aim, his finger would pull the trigger, and he would not have any intellectual control over the physical acts of his own body.’
‘We have no further questions, thank you, M’Lord,’ I said. ‘Thank you, Dr Shapiro. Would you please wait where you are in case my Learned Friends have questions for you?’
Of course they were going to have questions.
The cross-examination was predictable in most respects, but James Murray started with a question we had not anticipated. Murray was able to see angles that Wierda and I could not.
‘Does California have the death penalty?’ he asked.
‘Yes,’ said Dr Shapiro.
‘When did you last have an execution?’ asked Murray. It was not clear from the way he intoned the question whether he actually knew the answer.
‘It must have been in 1973 or even before that, I can’t remember.’ Dr Shapiro looked as baffled as we must have. ‘We had regular executions, by our standards, until the Supreme Court declared the death penalty as it was then applied unconstitutional in 1973. The State Legislature reinstated the death penalty in 1977, but even though a number of persons have been sentenced to death since then, none have been executed.’
Murray made his point. ‘Do you have any personal experience of the effect of participation in the execution process on the warders who attend executions, here or in California?’
Dr Shapiro had to concede. ‘No, I do not.’
‘What method of execution is used in California?’ asked Murray. For a second time I could not quite see where he was heading.
‘The law prescribes lethal injection.’
‘Don’t you use gas?’ asked Murray.
‘We started with hanging, then we went to the electric chair, and then we went to gas.’
‘Electricity and gas are far more dramatic methods of execution than hanging, aren’t they?’ Murray suggested. He stood with one hand behind his back, toying with his pen, with the other hand resting lightly on the lectern in front of him, the picture of calm and control. The thought crossed my mind that he was, like me, comfortable when he was on his feet in court while nervous and restless when not. I wondered if surgeons were like that, nervous wrecks until they make the first incision, returning to their former state only when they have closed the patient up.
I had missed the answer and asked Wierda to read it back to me: ‘I think those three methods are equally dramatic, to adopt your description. They burn, break, distort and disfigure the body, and that is why we have moved on to lethal injection.’
‘I would suggest that hanging is far less traumatic for everyone involved than the electric chair or the gas chamber.’
‘Sir,’ said Dr Shapiro, ‘I cannot think of anything more traumatic, of any torture more cruel, of any practice more certain to cause a total breakdown of a perfectly sane and well-balanced young man than exposing him to a hanging, to multiple hangings that is, week in and week out, to the tune of a hundred and sixty-four people in a year.’ He shook his head. ‘Do you realise that you made him attend the killing of twenty-one men in three days? Why do you act surprised that he has broken down, that he has departed from normal behaviour to such an extreme extent that he is standing here facing the death penalty himself?’
When Murray didn’t immediately respond to the outburst, Dr Shapiro’s voice rose in both volume and tone. ‘Do you realise that you made him kill and then you made him clean the bodies? You made him responsible for them in life and in death. You made him kill, and then you made him feel guilty.’
Murray held his ground. ‘My suggestion is that the ele
ctric chair and the gas chamber are worse methods of execution than hanging. What is your answer to that?’
‘My answer to that is that you don’t seem to see the point. It does not matter whether the electric chair or the gas chamber is worse or better than the gallows; the point is that making a man do this kind of work is bound to cause him to break down. He would have broken down if you had used the electric chair and he would have broken down if you had used the gas chamber. It is not the method that matters; it is the fact of killing a human being you have known for a long time, or watching him being killed.’
‘Have you finished?’ asked Murray with exaggerated politeness.
‘Actually, I haven’t,’ said Dr Shapiro. ‘The British hanged no more than thirteen or fourteen people a year this century.’
‘What does that have to do with this case or, for that matter, my question?’ asked Murray, but I could see that Judge van Zyl was interested in the evidence. He was lapping up every word the witness spoke.
‘It has this to do with this case,’ said the American, visibly upset. ‘The British always used a professional executioner who only ever met the prisoner on the morning of the execution and was assisted by a man, sometimes two, who were not warders who had looked after the prisoner during his stay in the death cells. And they never hanged more than one person at a time, even if two or more had to be hanged on the same day.’
‘They hanged more than that at Nuremberg,’ Murray said tartly, but Dr Shapiro was no fool.
‘They hanged them one at a time, and the Hangman was an American soldier.’
‘And he made a mess of it, from what I have read,’ said the Judge unexpectedly.
‘Exactly,’ said Dr Shapiro. ‘That is exactly my point, Your Honour. Executions are for professional executioners, and that soldier was not a professional executioner. And prison warders are not soldiers or executioners.’
Murray ignored the bait. ‘In California you don’t have to contend with racist murderers who go around killing black people in order to make a political point, do you?’ he asked.
‘No, thank God we don’t!’
‘Well, we do. And you don’t have any experience in dealing with such killers, do you?’
‘No, I don’t.’
‘Well, we do. And I suggest to you that you have no way of knowing whether this defendant isn’t just such a killer.’
At first Dr Shapiro didn’t answer. I watched the Judge and his Assessors. They were watching Labuschagne. I turned to see what had caught their attention and saw Labuschagne sitting bolt upright, with his eyes closed, rocking slowly, forwards and backwards. He showed no interest in the evidence. He looked like someone who did not want to hear.
‘Is that a question I have to answer?’ asked Dr Shapiro.
‘Yes, Dr Shapiro,’ said Murray, ‘and what is your answer, please?’
‘I’m not aware of any evidence that he is a racist or a killer.’
This gave Murray the opening he had been waiting for.
‘Well, let’s examine that,’ he said. ‘Let’s recount the facts one by one.’
‘Take a note,’ I whispered to Wierda. It was quite unnecessary; he was studiously recording every word of the exchange.
James Murray started with apparently innocent facts. ‘The defendant participated in every execution in 1987, according to his own evidence; we know that for a fact.’
‘Yes, it appears so.’
‘When he could have refused or asked for a transfer. We know from his evidence that other warders refused or asked for transfers.’
‘Yes.’
‘And he cleaned and serviced the equipment when others refused to work in that room, is that not so?’
‘Yes,’ the American sighed.
‘And he took the measurements and calculated the drops when that was not his job to do, am I right so far?’
‘Yes.’
‘And we know from his own evidence that he pulled a prisoner up by the rope and dropped him a second time to ensure that his neck was broken, don’t we?’
Dr Shapiro was again forced to say yes. He had become a little subdued after the heat of the earlier exchange with Murray.
‘That must have taken considerable physical and emotional effort, for sure. Do you agree?’
‘Yes.’
‘No one who was physically or emotionally weak could have done that, could they?’
‘I should think not,’ Dr Shapiro conceded.
Murray pressed on. ‘And we know from the records for that year that almost every prisoner who was hanged was either black or coloured, don’t we?’
‘There were some whites too, I’ve been told,’ said Dr Shapiro. Wierda had taken him through the registers.
‘No more than three all year,’ said Murray. ‘Scheepers, Wessels and Delport.’
‘I don’t know, but I’m not disputing that.’
‘And he killed the seven men at the reservoir, didn’t he?’
‘Yes.’
‘And they were black too, weren’t they?’
‘Yes.’
‘Forgive me, Dr Shapiro, if I express some incredulity at your opinion that the defendant is not a racist and is not a killer. I would suggest that his actions demonstrate that he is both.’
‘Am I to comment on that?’ asked the witness.
‘Yes, I am afraid so, Doctor,’ said Judge van Zyl.
‘Thank you, Your Honour,’ said the witness. ‘I disagree with the prosecutor’s suggestion. What I meant when I said he was not a racist or a killer is that he is not a racist or a killer in the sense implied by the charges against him. He acted without control over his actions, without volition, and in that state they might as well have been from Mars; he would still have shot them.’
Murray decided to call it a day and sat down. His questions had cut our case open to the bone, but the witness hadn’t let us down. I conferred briefly with Wierda and announced that we had no re-examination, but the Judge had some questions of his own.
‘Doctor,’ he said, playing with the cap of his pen, ‘Mr Murray has asked you to compare different methods of execution. I have been wondering. Is there anything significant about the method of execution we use here, that is, hanging?’
Dr Shapiro stood head up, looking at the ornate canopy over the bench as he contemplated the issue. We had not covered this in his briefing. Then he squared up to the Judge. ‘I think there may be, Your Honour, but I have not really thought this through.’
When Judge van Zyl did not respond he continued. ‘I think there is something obscene in the fact that in a hanging you use gravity to kill the prisoner. You use the weight and momentum of the prisoner’s own body to sever his spinal cord.’
The Judge intervened. ‘No, I meant as far as the defendant’s involvement in the process was concerned.’
‘Oh,’ said Dr Shapiro, ‘I am sorry. I misunderstood.’ He paused for a moment. ‘Yes, there is something significant, I think. It is this: An execution is traumatic at the best of times. A multiple hanging must be worse than any other process of execution practised anywhere, with the exception perhaps of a public beheading. And to have to participate in the execution of a person you have known intimately, as these warders must have known the prisoners after such a long period of taking care of them, must be doubly so. I should think that the two factors combined, that is the trauma of a multiple execution together with the close relationship that must have developed between the prisoners and the warders, would make your execution process uniquely disturbing.’
‘Thank you,’ said the Judge with a nod and then addressed me and James Murray. ‘Do you have any questions arising from the question I have put to the witness?’
To my surprise Murray decided to ask more questions. ‘I do, M’Lord,’ he said.
‘Carry on then,’ said the Judge as he picked up his pen.
‘Doctor,’ said Murray in a solemn and formal tone, ‘are you saying that our method of execution is cruel?’
‘But that is the impression you want to give, isn’t it?’ Murray insisted.
‘No, I don’t want to give any impression. If I want to give an impression, I will say exactly what I want to convey.’
‘You are against capital punishment and that is the point behind your evidence, isn’t it?’
The American would have none of that. ‘My own views on capital punishment are not up for debate and I have refrained from expressing any view.’
‘Then what is it that you are really saying?’
That was a mistake on Murray’s part. The question allowed Dr Shapiro to give free rein to his views.
‘I am saying that hanging is, to the onlooker and participant, an offensive, grotesque manner of execution. It is bound to overwhelm the senses. The physicality of it is intense. The noise made by the machine coupled with the cries and groans of the prisoners being executed must be severely disturbing. It is the very stuff that our worst nightmares are made of. It is bound, in my opinion, to break the participants just as it breaks the necks of the prisoners being executed. It inflicts physical injuries on the prisoners beyond the mere breaking of their necks and is bound to inflict incalculable psychological damage on the escorts. That is what I am saying.’
The answer left Murray little choice but to become argumentative. ‘You make it plain that you are against capital punishment, and I suggest to you that your views in that regard have coloured the opinions you have expressed here today.’
Dr Shapiro was an experienced psychiatrist who had been cross-examined many times in the courts of his home state. He knew how to handle hostile and argumentative cross-examination.
‘It is for His Honour to decide that,’ he said, ‘I cannot comment on my own evidence.’
Murray left it at that and when the Judge asked me if I had any re-examination, I declined the invitation.
‘You may step down,’ Judge van Zyl said to the witness, ‘and thank you for coming all this way to give us the benefit of your experience.’ The tone was friendly, but I wasn’t altogether sure that there wasn’t a hint of sarcasm in it.
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