Authors: John Carlin
‘You just don’t take responsibility, Mr Pistorius! You just don’t do anything wrong, do you?’
‘That is not true, my lady,’ he said. ‘I do take responsibility for what happened, but it was an accident. I didn’t have time to think about what I was doing. I fired before I could think.’
Nel dripped disbelief at his repeated mention of the word ‘accident’. Seeming almost to enjoy the unevenness of the contest, he bounced with ever more vigor on the balls of his feet.
‘What was the “accident”, Mr Pistorius? Did your gun go off accidentally, or not?’
‘When I fired I believed someone was coming out of the toilet to attack me, my lady,’ he replied. ‘I don’t know what the implications are of what Mr Nel is asking me, whether it was accidentally or not accidentally . . . My firearm was in position. I had my finger on the trigger . . . I didn’t have time to think about what was happening . . . I thought that somebody was coming out . . . It’s easy for me to think back to that day and what I would have done or what I could have done if I had all the time in the world, but at that time I didn’t. I had to deal with the situation and I believed I was going to be attacked, that my life was in danger. Many thoughts were going through my mind of what could have happened to Reeva . . . I can say that when I heard a noise inside the toilet, before thinking, out of fear, I fired four shots. When I realized the scale of what was happening I stopped firing. I was in shock . . .’
At that he sobbed again. Nel reacted with exasperation. ‘Why are you emotional now? Now that the questions are difficult . . . why are you emotional? What happened now?’
‘Now hold on, hold on, Mr Nel,’ interjected the judge, this time unprompted by Barry Roux.
‘He is emotional my lady,’ Nel said. ‘May I just ask why . . .?’
The judge cut him off. ‘It’s fine,’ she said. ‘He may be emotional. I don’t think you can ask him why now. He has been emotional throughout.’
It was an important moment, because it showed that Judge Masipa did not share the view, held by some members of the press and the public, that all of Pistorius’s weeping and retching had been faked. A debate had arisen on social media and in some newspapers as to whether the previous day’s breakdown had been a dramatically calculated show of remorse.
Few who had sat in court watching Pistorius had any doubt that
his anguish was real, including the judge. She gave him license to express his emotions, and the pugnacious prosecutor had no option but to display some rare meekness and respond, ‘I will abide by the court’s ruling, my lady.’
Nel, however, was not going to be persuaded by the judge, or anybody else, to ease up on Pistorius. He was going to do his job as he best saw fit, and that meant menacing and terrorizing on the witness stand a man who, he believed, had menaced and terrorized Reeva Steenkamp in his home the night he killed her. As Nel said, with very deliberate menace, at the end of one particularly bruising exchange, ‘I am not going away, Mr Pistorius.’
Neither was he going to stop pummeling away at the question on which everything turned: what was going through Pistorius’s mind when he pulled the trigger? In Nel’s view, all he had received in response was lies. One moment Pistorius said he had fired in what he imagined to be self-defense, the next he said he had succumbed to an inexplicable and involuntary action. He claimed he had thought ‘somebody was coming out’, that he ‘was going to be attacked’, that his life was ‘in danger’, but almost in the same breath he said, ‘I didn’t have time to think about what was happening.’ Which, Nel reminded him, was much the explanation he had given for that ‘miracle’ at Tasha’s when the gun ‘went off by itself ’.
Which was it? Nel wanted to know. What did his defense truly consist of?
‘My defense is, my lady, that I heard the noise and I didn’t have time to think and I fired my firearm out of fear,’ Pistorius said. Nel said that meant he had two different defense arguments: he was pleading that he had acted in self-defense, and, at the same time, that he had reacted out of blind instinct.
‘Which was it?’ Nel kept on asking, reminding Pistorius that in his
recent testimony with Barry Roux he had said, ‘Before I knew it I had fired four shots at the door.’ Did that mean, Nel asked, that he ‘never purposely fired shots into the door’?
‘No, my lady, I didn’t.’
Nel, unable to repress a smirk, paused for a moment to look around the courtroom, as if to confirm that everybody present must share his bemusement.
‘ “
I never meant to pull the trigger.” Is that what you said?’ Nel asked.
‘That’s correct.’
‘You didn’t want to shoot at intruders?’
‘That’s correct . . . I heard a noise and I discharged the firearm My eyes were going between the window and the toilet door. It was an accident.’
Nel looked almost gleeful.
‘Well, unfortunately, Mr Pistorius, I will have to show you something. I will be referring to the bail application . . . There, you said, “I felt trapped, the bedroom door was locked, I had limited mobility on my stumps. I fired shots at the toilet door.” Why did you say then that you shot at the door and today you say you never did?’
‘I think it’s obvious, my lady, that I shot at the door. I do not deny shooting at the toilet door, my lady. I fired shots at the toilet door. That is what I did.’
‘You cannot get away with it, Mr Pistorius. I said, did you deliberately shoot at the door and you said no, then I read out your words in the bail application and now your story changes. Why?’
‘I never said I didn’t do it.’
‘But you said you shot at the door because it’s “obvious”.’
‘No. Because it’s the truth.’
Pistorius tried standing up to Nel. He tried engaging him in
verbal battle, but this was Nel’s terrain, not his. And he repeatedly got caught out.
‘Are you thinking of the implications of what you are saying, Mr Pistorius?’
‘My lady, if I was sitting here and I wasn’t thinking of every implication of what I say it would be reckless. My life is on the line.’
‘Reeva doesn’t have her life anymore because of what you’ve done,’ Nel shot back. ‘She’s not alive anymore. So please listen to the questions and give us the truth, and not just the implications for you, Mr Pistorius.’
As Nel did not tire of reminding the judge, the accused’s notion of the truth was too contradictory to be credible. One moment he said he had not meant to shoot at the door, the next he said he had shot at a door behind which he heard an imagined attacker, yet he never meant to shoot anyone, let alone the woman whose life he had ended. He even said at one point that he had not fired at the shower because he feared a bullet would ricochet from the tiles, which in turn suggested to Nel that Pistorius was admitting to having engaged in some forethought after all.
Whether Pistorius was genuinely confused by Nel’s cleverly choreographed attempts to unsettle him, or whether he was tired, as he said several times that he was, what was clear to most people in the court was that he was talking too much for his own good, arguing too much, volunteering too much needless information. That, certainly, was Roux’s opinion.
Roux had warned him not to fall into the trap of becoming over-combative with Nel, but to limit himself to short answers or, when appropriate, to a simple ‘I don’t know’ or ‘I don’t remember’. But, as
Roux found to his exasperation, his client’s competitive vanity was getting the better of him. Suddenly he was behaving as if he imagined he had found an opportunity to recover his shattered dignity. He could not resist trying to go toe to toe with the prosecutor. And, as Roux revealed in a rare moment during Nel’s cross-examination, when he put his hand to his brow and shook his head, it was folly for his client to engage as an equal in a battle he could not hope to win.
Roux had faced a decisive question before the trial began: whether to put Pistorius on the witness stand or not. To do so would inevitably be self-incriminating, for he had no choice but to confess to firing the fatal shots. But not to do so would also incriminate him, because it would indicate a lack of faith in his ability to defend his core claim, that he mistook Reeva Steenkamp for an intruder. Roux had opted for what he considered to be the lesser of two evils.
As the cross-examination wound on into a third, fourth and then a fifth day, Roux had reason to re-examine that decision.
He would not have failed to notice that things did not improve for Pistorius when Nel examined the detail of his actions just prior to the shooting, dwelling at length on the fans that he said he had retrieved from the balcony. When Pistorius told Nel he was so absorbed in the task that he had failed to notice that Reeva had got out of bed and gone to the bathroom, Nel’s response was, ‘Keep trying Mr Pistorius. It’s not working. Your version is so improbable that nobody will ever think it’s reasonable.’
Nel pursued this seam. He knew it was a profitable one for him. From the very beginning, when the news broke of the shooting and word got round that Pistorius had believed there was an intruder in his home, the question in many people’s minds was how could he not have noticed that Reeva had gone to the bathroom?
Did he not hear her get out of bed? Nel asked
‘No. I had the fans blowing in my face,’ he replied.
Nel could not resist laughing out loud. The judge stepped in.
‘You possibly think this is entertainment. It is not,’ she told him. ‘So please restrain yourself.’
‘I apologize, my lady, for laughing,’ Nel said. ‘It won’t happen again. I was surprised.’
The judge’s rebuke obliged Nel to recover his professional poise. Soberly, he took up his next theme, a minute examination of the items in Pistorius’s bedroom that had been photographed by the police after the shooting. Nel initiated a debate that his opponent would have been wise to avoid entering. It concerned the position of a duvet and a pair of jeans which he claimed the police had moved after they arrived on the scene. Pistorius remembered them having been elsewhere in the bedroom at the time of the incident. Nel wanted to know why the police would have moved them. Pistorius did not have an answer, but insisted that they had done so. His stubbornness gained him little and lost him more. His claim to an exact recollection of where those items had been did not help him, for, as Nel pointed out, it indicated a degree of lucidity on his part that was entirely at odds with the state of terrified befuddlement he said he was in. Again, as Roux would lament, Pistorius was too clever for his own good. Or maybe, as his family would suggest, too honest. It would have been better for his case, because it would have been better for his credibility, to have said he had no recollection of where the duvet and jeans were.
As it was, Pistorius was providing ammunition for Nel to argue that he was lying.
‘I’m not trying to lie,’ he replied. ‘I can’t change the truth.’
Nel said the truth was the last thing on Pistorius’s mind. His testimony, he repeated over and over, was an invention.
‘You are just adapting as you go,’ he said. ‘It’s improbable.’ ‘You concocted it.’ ‘You tailored your version.’
At one point Nel exclaimed, ‘Your version is a lie. When you got up you had an argument, which is why she ran away screaming.’
‘That is not true, my lady.’
‘You fired at Reeva.’
‘I did not fire at Reeva!’
Whether Nel’s feelings were running away with him or he was seeking deliberately to provoke a rash reaction was hard to tell, but he kept on insisting that all he was hearing was lies until he said it once too often, prompting the judge to intervene again.
‘Watch your language, Mr Nel,’ she said. ‘You don’t call the witness a liar, not while he is in the witness box.’
Tea-leaf readers in the public gallery pondered whether the judge’s intervention on the accused’s behalf once more signaled her willingness to be sympathetic towards him, despite the hole he seemed to be digging for himself. Pistorius seemed to sense an opportunity.
‘My lady, if I was tailoring my evidence, I would tailor it to suit me,’ he complained, revealing some clarity of mind. It appeared to have dawned on him that the confusion and inconsistencies in his testimony, even if he regarded each individual statement as true, were not doing his case much good. ‘I understand it doesn’t sound rational,’ he continued, ‘but I did not have a rational frame of mind at the time.’
Nel restrained himself from laughing at that and, despite the judge’s rebuke, proceeded on his next line of attack with his confidence undimmed.
A question people following the case from afar had been puzzled by was why, if it was pitch-dark, Reeva Steenkamp had not turned on the lights on the way to the bathroom. Nel wanted to know, too. On this occasion, the explanation seemed a plausible one, not least as it
also helped resolve another troubling question – namely, why had she taken her mobile phone, as all sides agreed she had, to the bathroom?
Pistorius’s answer was that it might well have been that she used the light on her mobile phone to guide her. People did that. It was not such an unlikely possibility.
But Nel, it turned out, had set a trap.
‘That is what I was waiting for you to say!’ he cried. ‘That is devastating for you, Mr Pistorius. If it was pitch-dark, you would have seen the light from the phone in your peripheral vision!’
Pistorius, however, seemed to have an answer to that, and he delivered it with some composure.
‘Peripheral vision doesn’t mean you can see behind you. If my back was towards her, I wouldn’t have seen. I had my back to the bathroom.’
Nel was unimpressed.
‘Mr Pistorius,’ he said, ‘this is not good for you. If you are facing away from the bed, and you just put the fan down, if you then turn your head to the right you would look down the passageway . . . Being pitch-dark, a cellphone screen light would have been in your peripheral vision. So why didn’t you see it?’
He had no answer this time.
‘I don’t know,’ he said.
Nor did he have an answer when Nel asked him, ‘Before you ventured into the passage, if you fired a warning shot into that passage, that would scare anybody, wouldn’t it? Why did you not do that?’