Nel will play to Pistorius's boundaries
It will be an uphill struggle for Oscar Pistorius and much – maybe all – will turn on how he fares when he takes on prosecution lawyer Gerrie Nel.
Somebody died, somebody else destroyed his own life and a small group of people are enduring hell on earth. For the public at large, or for those who are interested, it's engrossing reality TV. For some it is like good sport.
Standing back, it's tempting to see the Oscar Pistorius trial as a long-running cricket match. The prosecution, who rested their case this week, have been doing the bowling. Now it's the prosecution's turn to bat – and the defence's to bowl.
We've had the running Twitter commentaries, the Twitter spoofs, the YouTube rap, the match reports in the newspapers the day after. In the physical world, where it's been the talk of the town, most people had taken sides before the match even began. The off-with-his-head, Pistorius-is-a-monster crowd celebrate each wicket that Gerrie Nel, the prosecution lawyer, takes. The Oscar-is-a-hero, he-wouldn't-hurt-a-fly partisans celebrate each time the defence lawyer, Barry Roux, drives a ball to the boundary. Both sides choose to interpret the evidence to suit the result they seek; both sides want to believe they are winning.
But has the game been living up to expectations? It will. It will for sure when Pistorius takes the stand. The man's traumatised. Whether you think it's because he sincerely laments firing the shots that killed his girlfriend Reeva Steenkamp or because he sincerely laments his own irreparable fall from grace depends, again, on which side you are on. In any case, he will suffer torments at the hands of his inquisitor. Nel has a reputation for being as wily as he is merciless and his cross-examination of the man they called the Blade Runner will present a spectacle so harrowing that even some of those who are against him may feel compelled to cry out: "Make it stop!"
But so far, no, the game has not lived up to expectations. If those millions upon millions who, claiming divine omniscience, say they know Pistorius deliberately killed Steenkamp are honest with themselves, they will confess that they expected more from the prosecution's attack. If the (probably) fewer millions who, also claiming divine omniscience, say they know that Pistorius made a tragic mistake are honest, they will admit as much too.
Cast your mind back to before the trial began. Wasn't one side licking its lips and the other bracing itself in anticipation of some knock-out, bowled-through-middle-stump evidence from the state? Had not everyone imagined that a year's police investigation would have yielded more solid backing for the contention that Pistorius knew who he was firing at through that closed toilet door?
We expected (did we not?) that the next-door neighbours would give us an account of a vicious lovers' tiff prior to the shooting. We surmised that the geeks at Apple in California would delve into the cloudy depths of Steenkamp's iPhone and come up with a salacious Valentine's night message from some former lover, assisting what we assumed to be the state's theory that Pistorius acted in a fit of homicidal Othello rage. We'd been led to believe that his former girlfriend, Samantha Taylor, would declare in the witness stand that she had felt her life to be under threat from Pistorius, such was the mad intensity of his possessive love.
Defence lawyer Barry Roux. (Reuters)
We expected, in short, some convincing notion of motive behind the state's charge that he knowingly murdered Steenkamp. We got none.
What we did get from the prosecution was evidence of screams. The five neighbours who testified all heard screams. Captain Christian Mangena, the ballistics expert whose lucid testimony put all the other police witnesses to shame, indicated that the sequence in which the shots were fired – and the sequence of the victim's physical reactions to each shot – led one to conclude that she would indeed have had time to scream before the fatal bullet penetrated her skull.
In terms of the core question in the minds of most watching members of the public, namely whether Pistorius is lying or telling the truth, this is what the state's case boils down to: Pistorius heard the screams and knew it was Steenkamp in the toilet – not the faceless intruder of his imagination, as he claims.
If the defence succeeds in sowing sufficient reasonable doubt in the mind of the judge about whether, as they maintain, those screams – for screams there definitely were – issued from the frantic voice of Pistorius himself after he discovered what he had done, then the state will have lost that particular battle.
But will the state win the war? The defence, to return to our cricket metaphor, may have got more runs on the board than many may have expected, but they have one huge problem. The state may not be able to prove conclusively that Pistorius knew he was shooting Steenkamp, but by his own version of the truth, never denied during the prosecution case, he did know he was firing four bullets at a human being. The fact that he could not see the human being could be seen as making the crime, if anything, worse, for he was in no position to ascertain whether he – we assume he imagined it was a "he" – posed a threat to his life sufficiently severe to warrant such a lethal response.
Criminal lawyers following the case closely have been saying over and over that, "by his own admission", Pistorius committed murder, as charged. As Roux, the chief defence lawyer, begins his case now, he will face at least as hard a task in proving it was not murder, of some category, as Nel has had so far in proving Pistorius knowingly killed Steenkamp. The defence's best possible result is not an outright win, but a draw: a conviction on culpable homicide. It will be an uphill struggle for Pistorius and much – maybe all – will turn on how he fares when he takes on Nel in the stand. The real trial, and the real test for Pistorius, begins now.