When Murray sat down I stood up immediately.
‘May it please M’Lord, my Learned Friend Mr Wierda will cross-examine this witness.’
‘Very well,’ said Judge van Zyl.
Wierda and I had spent hours working out lines of cross-examination, taking turns in the roles of counsel and witness. You could attack an expert witness on limited grounds, their expertise, their methodology, the facts upon which their conclusions were based, or their reasoning. The last one was a tough row to hoe because experts always knew more than the cross-examiner and could easily make a fool of you. We had decided to stick to the methodology and some isolated facts. Now it was up to Wierda to implement our plan.
I moved over for him to get to the microphone and sat down in his chair. I caught the professor looking at me, a slight frown on his face. It was the perfect opportunity to return his wink. I opened my notebook to keep track of the cross-examination. This is going to be fun, I thought to myself.
‘Professor,’ said Wierda without further ado, ‘you did not at any time conduct a clinical interview with the defendant, did you?’
Professor Nienaber looked at the Judge. ‘I was not given an opportunity to examine him.’
‘You did not ask for one either, did you?’ Wierda said tartly.
‘Correct,’ said the professor as if he were marking a student’s script.
Wierda was tougher than I had thought. ‘But you would have liked to, wouldn’t you?’
It was a beautiful question. If the professor said yes, Wierda would have him on the ropes and we would be able to undermine his opinions in our closing argument. And if the professor said no, we could argue convincingly that his methods were unscientific.
But Professor Nienaber was also tougher than I had anticipated. ‘I would have liked an opportunity to examine the defendant but assumed that I would not be given access to him. I therefore did the best I could with the material at my disposal. You know, M’Lord,’ he said as if they were old friends, ‘in psychiatry we often have to make diagnoses without being able to interview or examine the subject.’
‘And that’s what you did here, isn’t it?’ suggested Wierda. ‘You assumed you would not be given access to the defendant, and you therefore based your opinions on the evidence you heard and the observations you made here in court, is that right?’
‘Correct.’
‘Because you did not have access to the defendant you did not have an opportunity to conduct the usual tests you would otherwise have done, is that right?’
‘Correct.’
‘You did not conduct a neurological examination of the defendant to test his brain function?’
‘No, and I would not have done so either. That can only be done by a neurologist.’
‘Indeed,’ said Wierda, ‘and you did not conduct an IQ test, did you?’
‘Correct.’
‘You did not conduct the usual battery of psychometric tests, nor have you seen the results of the battery of tests conducted by Miss Schlebusch, I assume?’
‘Correct.’
‘You did not conduct the Minnesota Multi-phasic Personality Inventory?’ Wierda read the words carefully from his notes. ‘Did you?’
‘No.’
‘Nor the Millon Clinical Multi-axial Inventory Test?’
‘No.’
‘Nor did you complete the 16 Personality Factor Questionnaire?’
‘M’Lord, I have already said that I did not have access to the defendant. How could I have conducted these tests?’
But Judge van Zyl didn’t come to the professor’s assistance. Wierda was undeterred.
‘Nor the Thematic Apperception Test or the South African Wechsler Adult Intelligence Scale?’ he asked.
‘Correct,’ said the professor. ‘And, M’Lord,’ he added with a trace of sarcasm in his tone, ‘the Wechsler is the IQ test Mr Wierda referred to earlier. It is not a second intelligence test.’
Wierda didn’t bat an eyelid. ‘These are the tests you would have preferred to conduct for a proper evaluation of the defendant if he had been assigned to you as a patient, are they not?’
‘Correct.’ The professor returned to marking scripts.
‘The result is that you could not arrive at any positive diagnosis of your own, am I right? You were reduced to making the best you could with the evidence you heard here and your own observations in court? And in the process the only option open to you was to fault the opinions of Dr Shapiro and Miss Schlebusch, was it not?’
Wierda had put the question in such a way that it was argumentative, but James Murray didn’t object. I glanced in his direction. He and Niemand were both taking notes.
‘Well, I question the correctness of their conclusions. I don’t think they are correct,’ said Professor Nienaber. ‘I am here to help the Court understand their evidence.’
It was time to get something positive from the witness and Wierda did it superbly.
‘Professor Nienaber, you do not deny the existence of the condition described as a catathymic crisis, do you?’ he asked.
‘No, but I would prefer to call it a dissociated state.’ He looked up at the Judge. ‘May I add something, please?’
‘Yes,’ said Judge van Zyl.
‘I would like to add that I disagree with the defence categorisation of the condition as a catathymic crisis. We use that term only when a personal relationship is involved, and when events within that relationship give rise to the complete breakdown of the psyche. I would agree that such a condition is similar to a dissociated state, but the mechanisms giving rise to them are different.’
‘Fair enough,’ said Wierda, ‘we don’t have to debate those issues here. But it means that there is a separation of intellect and emotion to the extent that an individual’s mental equilibrium is overwhelmed and his or her logical thinking is so disrupted that the individual does not act consciously.’
‘May be disrupted,’ the professor corrected. ‘The individual who experiences a catathymic crisis or who is in a dissociated state may not do anything at all. So it is not correct to assume that such a person will do something wrong.’
‘Professor Nienaber,’ said Wierda, ‘you don’t deny the existence of the phenomenon of a catathymic crisis as a condition known to medical science and you don’t dispute Miss Schlebusch’s evidence that it has the eight known features she explained in the course of her evidence, do you?’
‘No, M’Lord, but I do dispute her conclusion that it was present in the current case.’
This was exactly what I didn’t want to happen. The additional question had given the professor an opportunity to strike a blow against us.
When Wierda didn’t immediately respond to the last answer, the Judge intervened. ‘Mr Wierda, if you are going to another topic, perhaps we could take the short adjournment now?’
‘As M’Lord pleases,’ said Wierda. The Court adjourned for tea.
I went to speak to Pierre de Villiers. He had a batch of papers for us, but I cut him short.
‘What was that about?’ I asked.
‘What do you mean?’ he said.
‘I mean you sitting next to the other side’s expert witness all the time and talking to him like you are old friends.’
Pierre shook his head and smiled. ‘So who’s paranoid now?’ He pointed at me. ‘It’s you, buddy.’
Wierda, who had joined us now, intervened. ‘What have the two of you been talking about?’
Pierre played hard to get, a trace of mirth still present in his voice. ‘You mean the professor and I?’ he asked.
‘Yes, the fucking two of you,’ said Wierda, the stress evident in his voice.
Pierre pressed a batch of papers against Wierda’s chest. ‘I have nothing to say to you,’ he said to Wierda.
Then he took me by my arm and pulled me aside. We went into the atrium under the cupola. ‘He’s the psychiatrist who treated me at 1 Mil,’ he said.
I sighed. ‘I hope the two of you haven’t bee
n discussing the case.’
Pierre looked disappointed. ‘As a matter of fact we have.’
‘What did you tell him?’ I asked.
‘It’s not what I told him. It’s what he told me.’
‘Fuck off, Pierre,’ I said, suddenly tired of his game. I was beginning to sound like Wierda. ‘Get to the point. What did he have to say?’
‘He said he thought we were going to win.’
’ I looked at my brother-in-law long and hard.
‘I’m not joking,’ he said.
We returned to Wierda, who had been studying the documents Pierre had so unceremoniously handed to him. They gave us another line of cross-examination. We were too busy for the usual stroll to the Square and worked at the defence table. Every now and then we would ask Pierre a question and he would produce more information.
By the time the Court resumed Wierda was ready to question Professor Nienaber on his work at 1 Military Hospital and his treatment of soldiers who had returned from the war in Angola, but I vetoed the idea. Our case was not going to get any better with more cross-examination. We needed to finish on a high note, however, so I allowed Wierda to parade one of our themes.
‘I have only a few more questions, M’Lord,’ said Wierda. Judge van Zyl gave him the nod. The professor, buoyant from his little victory just before the break, smiled and leaned with his elbow on the side of the witness box.
‘I take it, Professor Nienaber,’ said Wierda, ‘that you would agree that the execution process is by its nature traumatic for all its participants?’
‘Yes,’ said the professor, then checked himself and added with a little smile, ‘to a greater or lesser degree, depending on your role in it and, obviously, most of all for the condemned man.’
Wierda seized on the unexpected opportunity. ‘Jokes aside,’ he said acidly, ‘a multiple execution must be even more traumatic.’ He looked at his notes. ‘And so it must be also for the condemned men, not so?’
‘Correct.’
‘The more people you execute at once, the more traumatic it must be for everyone?’
‘Yes, I said so.’ Professor Nienaber was beginning to see where we were heading.
‘And the amount of psychological trauma any individual would suffer in that situation would be specific to the make-up of that particular individual, would it not?’
‘Correct.’
‘Repeated exposure to executions would exacerbate the trauma, correct?
‘Correct.’
‘And it would be much, much worse with multiple hangings on consecutive days, wouldn’t it?’
‘I’m sure it would be,’ said the professor, minimising the effect of his concession with a bland answer.
Wierda’s next question came from left field. ‘Professor Nienaber,’ he said with a smile, ‘is it true that psychiatrists submit themselves to psychoanalysis every second year or so because they know that exposure over an extended period to other people’s phobias and anguish may rub off on them?’
‘Yes, that is so,’ said the professor. ‘May I explain?’
Before Wierda could answer, the Judge said, ‘Yes, please do.’
‘Thank you, M’Lord,’ said the professor with exaggerated politeness and a slight bow in the direction of the bench. ‘Psychiatrists have submitted them selves to analysis for a long time, but in recent years they have put a name to the phenomenon that causes such analysis to be desirable. It is called compassion fatigue. It is a known psychological condition suffered most commonly by health professionals like doctors, nurses, psychologists and, yes, psychiatrists.’ He nodded an acknowledgement in Wierda’s direction. ‘It is common where the carers become victims of secondary traumatic stress disorder, another name for compassion fatigue, as a result of helping or wanting to help a traumatised patient. You could also call it vicarious traumatisation; you suffer because you watch someone else suffer.
‘M’Lord,’ he concluded, ‘that’s why we go through a cleansing process of analysis and counselling and do so regularly to get rid of the accumulated trauma of our patients’ suffering.’
‘And prison warders are in a similar position, aren’t they, to suffer vicarious trauma as a result of their close relationship with the condemned prisoners and their daily exposure to their prisoners’ suffering?’
It was a question we hadn’t scripted, but there could only be one answer.
‘Yes.’
‘Does it surprise you then to hear that the defendant and the other prison warders, who by nature of their duties had to participate in executions, received no advance counselling, and received neither analysis nor treatment after the event?’
Professor Nienaber thought for a while. Wierda had him in a corner again, and again there could be only one answer. ‘Yes, I’m a bit surprised at that, because the prisons usually make extensive use of analysis and counselling for prisoners.’
Wierda was ready to play one of our trumps. ‘I suppose, Professor, that it would serve no purpose if I were to ask you if anyone has done scientific research to determine the effect of participating in multiple executions, day in and day out, on a young man of previously good character and exemplary behaviour.’
‘M’Lord, I don’t expect that anyone could do research of that nature; it would simply be impossible to reproduce the conditions prevailing at the prison.’
Wierda had established one of the fundamental points of our closing argument and he had done it with a witness called by the prosecution.
I distracted him with a meaningless note to allow the implications of the answer to sink in.
‘Professor,’ said Wierda after reading the note, ‘I have a series of propositions to put to you in conclusion. Could you please tell me each time whether you agree or disagree with my proposition and add any explanations or elaborations you think fit?’
Then, without waiting for an answer, he put the first proposition.
‘The warders chosen for duty as gallows escorts should have been profiled for their psychological suitability for the work they were required to do, do you agree?’
‘I do.’
‘And they should have been given counselling on a regular basis, do you agree?’
‘Yes, I do.’
Wierda continued in the same vein. ‘Even so, it is not a good idea that the warders, who had to guard the condemned prisoners for months or years, should be involved in the execution process.’
‘I agree.’
‘The roles should be separated so that those who guard the prisoners are not involved in the execution process, do you agree?’
‘I do, M’Lord, you cannot be a shepherd and a butcher at the same time.’
I tugged at Wierda’s robes to get his attention.
‘M’Lord,’ he asked, ‘may I confer with my Leader before I sit down?’
Judge van Zyl nodded absently, scribbling a note without looking up.
Wierda leaned down so that I could speak in his ear, but I made a show of handing him a note. He played along and held it up, reading it slowly. All eyes were on us.
‘Sit down,’ I whispered to Wierda.
‘No further questions, thank you,’ Wierda said with exaggerated courtesy and sat down.
When James Murray had completed a perfunctory re-examination we immediately departed for the reservoir, ostensibly for Labuschagne to point out the various positions as far as he could remember them, but in reality for me to test a theory that had been growing in my mind. I made sure all three expert witnesses came along.
‘I know why you did it,’ said Wierda as we were going down the steps at the front entrance on the way to his car.
‘Did what?’ I asked.
‘Let me cross-examine Nienaber. You wanted to minimise the impact of his evidence by pretending that it was unimportant. Then, for the same reason you pretended not to listen to my cross-examination, to undermine his opinions.’
‘Nah,’ I said, ‘I just thought it was time for you to do some work in the case.�
�
The cross-examination had gone well, and we were in reasonably good spirits.
‘Fuck!’ Wierda exclaimed. A woman going up the steps gave him an angry look. ‘I haven’t done any other work the last six weeks. I have had to pass one good brief after another on to my colleagues. And you say I haven’t been working on this case. I’ve been doing nothing else!’
I elbowed him on his upper arm. ‘I know,’ I said, ‘my own practice is no more than a distant memory now.’ I thought of Liesl again, and our sons. I wanted to go home very badly.
Wierda drove us to the reservoir. ‘Thanks for having my car washed,’ he said. ‘Now it’s bound to fall apart.’ I looked at him, and he added, ‘It was held together by good old Pretoria dirt and grime, and you’ve washed it all away.’
I myself had a lot of Pretoria dirt and grime on me by now, but not the kind you can wash away. I thought about what the professor had said about accumulated trauma and the need for cleansing, and wondered if lawyers were also at risk of suffering from compassion fatigue.
Magazine Hill & Maximum Security Prison
59
When we arrived at the reservoir, the minibus and the bakkie we had arranged for the experiment were already in position and the Warrant Officer was standing next to his car in the shade of a tree. Judge van Zyl drove up in his Mercedes with his Assessors. He negotiated the last stretch carefully and parked off the track behind Wierda’s car. James Murray and Sanet Niemand turned up and next the handcuffed Leon Labuschagne arrived in the back of a police van. The cell sergeant was there to look after him. To my surprise Professor Nienaber arrived with Dr Shapiro and Marianne Schlebusch; they were chatting amicably. Birds of a feather, I thought.
Shepherds and Butchers Page 44