Chase Your Shadow (42 page)

Court resumed and Judge Masipa turned to what she considered to be evidence more trustworthy than that provided by the ‘fallible’ neighbors.

‘Thankfully, as shall be clear from the chronology of the events, this court is in a fortunate position in that it has objective evidence in the form of technology which is more reliable than human perception and human memory and against which all the other evidence can be tested.

‘Phone records which tell us exactly who made the call, from which cellphone to which cellphone, and at what time, were made available to this court and we took full advantage of that. There is also a record of the duration of each call. It is significant that although most of the timelines were initially introduced into evidence by the state, it was the defense which analyzed the timelines as set out hereunder and addressed the court on each.’

Judge Masipa was alluding to what had been the centerpiece of Barry Roux’s closing arguments a month earlier: a detailed time chronology of the events of the early morning of February 14, 2013, which the defense team had labored over to exhaustion – going over it thirty-eight times, as one of Pistorius’s lawyers would later confide – before hitting upon their definitive version. It was significant, the judge said, that while the times of the phone calls were submitted by the prosecution, it was the defense that came up with the final breakdown. More significant still, the prosecution had not challenged the defense’s timeline.

The judge made a point of noting that when she had asked Nel whether he agreed with the defense’s sequence of events, Nel had replied that he did so in so far as the recorded times of the phone
calls were concerned, initially suggesting to her that he disputed the rest. However, she added, Nel had not come up with an alternative chronology of his own, leading her to conclude that ‘there was no address forthcoming from the state to disturb the timelines as set out hereunder’.

‘In any event,’ the judge continued, ‘one can safely use the phone records which were made between 03.15.51 and 03.17 as a base to arrive at the approximate times when the shots were fired, and when the screams were heard as well as when the sounds of the cricket bat was striking against the door were heard. In addition, the accused’s phone records are also available.’

Judge Masipa proceeded to list twenty-three episodes in the timeline, starting at 02.20 when a Silver Woods security guard passed by Pistorius’s house and reported nothing amiss, and ending at 03.55 when the police arrived. The most important evidence concerned what had happened in the approximately five minutes between the shots being fired and Pistorius’s first phone call for help. This was the sequence in which they appeared on the judge’s list:

‘The chronology above,’ the judge said, ‘gives a feel of where various witnesses corroborate one another’s evidence and where they contradict one another. An analysis of the evidence using the timelines as a basis will also assist this court to determine whether the state has proved beyond reasonable doubt that the accused had direct intention and premeditation to kill the deceased.’

A core point in the case for premeditated murder made by Gerrie Nel, based on the evidence of the neighbors he brought to the stand, had been that Reeeva Steenkamp had screamed in terror – ‘blood-curdingly’, in Michelle Burger’s words – prior to her death. Therefore Pistorius had to have known he was shooting at her. Judge Masipa dealt Nel’s case a double blow when she said, first, that the first sounds heard by the neighbors had been the shots and not the screams, and, second, ‘What is also clear is that the screams that were heard shortly after the shots were fired and before the second sounds, which turned out to be the sounds of the cricket bat striking against the door, could not have been those of the deceased as she had then suffered devastating injuries.’

In other words, there was no reliable evidence that Reeva had screamed at any point. This conclusion was further bolstered, the
judge said, by the testimony of Mr and Ms Nhlengethwa, Pistorius’s next-door neighbors, who both said they heard a man screaming after the shots. ‘This version,’ the judge said, ‘has a ring of truth.’

Pistorius’s version of the events that ended with him striking the cricket bat against the toilet door also convinced the judge.

‘The number of these loud bangs or thud sounds, as well as the time, is consistent with the version of the accused that soon after he had realized that the person behind the toilet door might have been the deceased, he ran to the balcony from where he screamed for help, took the cricket bat and proceeded to the bathroom where he struck the toilet door three times with the cricket bat.’

Roux continued to sit alert as a hound at a hunt. Nel, who was looking down or to the side, seemed to be struggling to look at the judge. Pistorius, no longer weeping, sat expressionless, even though so far he had heard nothing but good news.

But a question still remained as to whether, as the prosecution contended, there had been an argument between Pistorius and Steenkamp prior to the shooting. The prosecution case supporting this ‘theory’, as the judge called it, rested on four different pieces of evidence: that the deceased had taken a mobile phone with her to the toilet, which she then locked from the inside; the WhatsApp messages between the deceased and the accused; the partially digested food in the deceased’s body found in the post-mortem, indicating to the prosecution that the accused had lied when he said she had not got up again after going to bed with him at 9 p.m. the previous night; and the specific argument Estelle van der Merwe said she had heard after being woken at 1.56 a.m., approximately one and a quarter hours before the shots were fired.

Many people around the world who had been watching the case keenly from the beginning argued that Reeva’s decisions to take the phone with her to the toilet and then to lock the door offered clear indications that she had fled from Pistorius. She must have taken the phone with her to call for help; she must have locked the door to prevent him from physically attacking her. As to Pistorius’s contention that she had remained silent throughout, even after he asked her to call the police, it seemed to make little sense.

Months before the trial, the defense team had come up with a possible explanation as to why she had locked the door and why she did not identify herself to Pistorius, but they had chosen not to bring this up in court. It concerned the incident five years before Reeva died, when she was alone at home with her mother in Port Elizabeth and thieves had broken in, remaining in the house for fifteen minutes as the two terrified women hid inside a locked bedroom. Pistorius’s lawyers believed that the recollection of this trauma might have influenced Reeva’s actions and state of mind after Pistorius warned her that there were intruders in the house. It would have been of value to the defense case to raise the incident as evidence in court – but Barry Roux calculated that, on balance, it would be best not to. They would have had to call either June Steenkamp or Reeva’s boyfriend at the time as witnesses. Neither would have taken the stand willingly; both would have been ‘hostile witnesses’, and Nel might have elicited additional evidence from them that would have been detrimental to the defense case.

Judge Masipa was therefore in no position to rule in her judgment as to why Reeva had locked the door or why, according to Pistorius’s version, she had kept silent. These and a number of other questions raised by the case would have to remain, she said, ‘in the realm of speculation’.

But she did note that there might be ‘a number of reasons’, as suggested to her by the defense, why Reeva had taken the phone with her to the toilet. ‘One of the possible reasons,’ the judge said, ‘is that the deceased needed to use her cellphone for lighting purposes as the light in the toilet was not working.’

As to the evidence of the WhatsApp messages that both prosecution and defense had presented, Masipa gave it short shrift.

‘The purpose of such evidence was to demonstrate to this court that the relationship between the accused and the deceased was on the rocks and that the accused had a good reason to want to kill the deceased,’ the judge said. ‘In a bid to persuade this court otherwise, the defendant or the defense placed on record more WhatsApp messages that painted a picture of a loving couple.

‘In my view, none of this evidence from the state or from the defense proves anything. Normal relationships are dynamic and unpredictable most of the time, while human beings are fickle. Neither the evidence of a loving relationship, nor of a relationship turned sour, can assist this court to determine whether the accused had the requisite intention to kill the deceased. For that reason this court refrains from making inferences one way or the other in this regard.’

Judge Masipa dealt with the evidence of the partially digested food in Reeva’s stomach and the argument Estelle van der Merwe said she had heard in summary fashion, too.

Noting that expert witnesses had agreed that ‘gastric emptying was not an exact science’, Masipa said that even if she were to accept that the deceased had eaten something shortly before she was killed, it would not lead to ‘the only possible inference’ that the accused had been lying. ‘She might have left the bedroom while the accused was asleep to get something to eat.’

In bringing forward the evidence of Van der Merwe concerning the alleged argument, the judge said that the prosecution had lost sight of the fact that she ‘had no idea where the voice came from, what language was being spoken or what was being said’. ‘Accordingly,’ the judge ruled, ‘there is nothing in the evidence of Ms van der Merwe that links what sounded like an argument to her to the incident at the house of the accused.’

That was the end of Judge Masipa’s dissection of the prosecution case, and it pointed to the conclusion that she would be finding Pistorius not guilty of intentionally killing Reeva Steenkamp. The judge had found no proof that there had been an argument, that Reeva had screamed before the shots were fired, or that problems in their relationship had provided Pistorius with a motive for killing her.

She now turned her attention to the defense case, which centered overwhelmingly, as she made clear, on the testimony Pistorius had given. Gerrie Nel’s closing arguments had also identified Pistorius’s testimony as the crux of the defense case, and Nel had savaged it accordingly. Nel had said that Pistorius had been ‘an appalling witness’, ‘a deceitful witness’, ‘one of the worst witnesses ever encountered’, that his testimony had been full of ‘glaring contradictions’ and ‘devoid of any truth’. Giving full flight to his rhetoric, Nel had compared the trial to a relay race in which Pistorius ‘had dropped the baton of truth’, and described his evidence as a ‘snowball’ of lies.

Judge Masipa agreed with Nel to the extent that Pistorius had been ‘a poor witness’ and that his testimony had contained many inconsistencies. Quoting extensively from Pistorius’s testimony, the judge pointed out that he had said, ‘I fired before I could think’; that he had said ‘I shot because . . . I believed someone was coming out
to attack me’; and that, in reply to a question from Nel as to whether the discharge had been accidental, he had replied, ‘The discharge was accidental, my lady. I believed that somebody was coming out. I believed the noise that I heard inside the toilet was somebody coming out to attack me or take my life.’

Pistorius had testified later that he had not shot to kill, otherwise he would have shot higher up, which was conclusive proof to the judge that he was contradicting himself. ‘This assertion,’ she said, ‘is inconsistent with that of someone who shot without thinking.’

The judge proceeded gently to mock Barry Roux’s repetition of the very same contradiction in his closing arguments when he had said that Pistorius had ‘not consciously discharged his firearm in the direction of the toilet door’, and yet, ‘in the same breath’, had ‘submitted that the fact that when the accused approached the toilet, he had the intention to shoot to protect himself did not imply that the accused intended to shoot without reason’.

Alert to the fact that the defense had submitted Pistorius to assessment by Dr Merryl Vorster not before but after he had testified, the judge addressed herself to the psychiatric and psychological arguments produced to account for the accused’s ‘strange conduct’ on the witness stand.

The question raised by Dr Vorster’s testimony, by the month-long examination Pistorius had undergone at Weskoppies psychiatric hospital, and by the testimony of Dr Wayne Derman, was whether Pistorius’s criminal culpability was in some way diminished by his mental state. The specific point the defense had sought to make was that firing the shots that killed Reeva had been an uncontrollable reflex response, and that accordingly he could not be found guilty of murder, or even of culpable homicide.

Judge Masipa disagreed.

‘There was no lapse of memory or any confusion on the part of the accused,’ she said. ‘On his own version, he froze, then decided to arm himself and go to the bathroom. In other words, he took a conscious decision. He knew where he kept his firearm and he knew where his bathroom was. He noticed that the bathroom window was open, which is something that confirmed his correctness about having heard the window open earlier. This is inconsistent with lack of criminal capacity.’