/ 1 July 2014

Oscar Pistorius: When advocates pounce

Prosecutor Gerrie Nel
Prosecutor Gerrie Nel


For a trial in which the biggest question has an undisputed answer, the Oscar Pistorius murder trial is remarkably complex. Monday’s proceedings again showed why.

It should, by rights, have been Gerrie Nel’s day in court, and indeed it started out that way.

The prosecutor with the fearsome reputation had, it seemed, outplayed the Pistorius’s defence team. There is a suggestion that the athlete’s mental state on the night he shot Reeva Steenkamp should be considered, Nel told the court six weeks ago, after the defence introduced evidence he suffers from generalised anxiety disorder. In that case a full, formal psychological evaluation is called for.

And on Monday, Nel got to present the findings of that evaluation to the court: Pistorius suffered no mental condition that could prevent him from distinguishing right from wrong on the night of the shooting, no pathology that could make him less than fully culpable for his actions.

At the time, Nel presented his application for Pistorius’s observation as a necessary fact-finding exercise, and judge Thokozile Masipa accepted it as such. Yet it is hard not to interpret the whole episode, up to the finale on Monday, as an opportunity spotted and ruthlessly exploited by a determined prosecutor. With an official report in hand, Nel now stands slightly better equipped to argue that Pistorius is not, in fact, any more anxious than the average person, and should not have his actions and intent evaluated any differently.

‘Very unhappy’
It was not a finding or a process the defence team sought; at the time the Pistorius team looked more than a little taken aback by the sudden escalation Nel demanded. but having offered a psychological argument there was no turning back, and off Pistorius was sent for 30 days of observation and examination.

But Nel is not the only one who can spot an opening and force it wide open. In the end, Monday did not go all his way, after he unintentionally made a misstep of his own.

“I’m not happy,” Masipa told Nel during the course of what amounted to a mild-manner tongue-lashing, a sentiment she upgraded to “very unhappy” along the way.

The source of Masipa’s unhappiness was an extension cord. The length of this common houshehold electrical cable, the state has previously argued, showed that Pistorius was not entirely truthful when he explained how he moved fans around on a hot night shortly before fatally shooting Steenkamp.

The cord, and its current whereabouts, have come up before; the defence team believe photos show that it could only have been moved or removed by police, the police insist they do not have it. There things may have remained in, as Roux put it on Monday, “a cul-de-sac” – except that Nel asked a surgeon about the impact of obstacles.

Doctor Gerry Versfeld was in the witness box to show X-rays and explain that Pistorius suffers from pain when walking on his stumps and has poor balance without his prostheses. Nel pounced again on what he portrayed as inconsistencies. If it is so difficult for Pistorius to move on his stumps, Nel asked Versfeld, why did he describe running on them the night he shot Steenkamp? The implication was clearly that either the doctor, who has been treating Pistorius since he was a baby was a little too close to his subject to be objective, or Pistorius’s version of events should be treated with suspicion. Through the back door, Nel again questioned Pistorius’s veracity, a key pillar of the prosecution.

Nel had further detailed questions to drive his point home. Would a duvet underfoot cause greater balance problems? Would electrical cords cause stumbling?

Brushing past the subject in a cursory manner was enough for Roux to bring up the issue of the missing cord, and almost apologetically approach the court for intervention. As a result, the police must provide an explanation of some sort as to why the cord can not be found – and the defence get to fuel its argument that police bungling makes evidence from the crime scene unreliable.