Wednesday, March 05, 2014

Oscar Trial: If the witnesses are reliable, what were Oscar and Reeva arguing and screaming about? [REFERENCES: OSCAR'S VERSION AT BAIL APPLICATION + NEW DODGY UPDATED VERSION]

Note: This analysis is available for syndication.

Analysis by Nick van der Leek
Well the apparently tough defense lawyer Barry Roux seems to have met his match in the hard-as-nails lay witness that has stood her guns, and is rapidly emerging not only as a star witness, but an intelligent, sensitive woman and conscientious wife. Michelle Burger now even has a Nandos hamburger named after her:

One of the strange things with a defense doing a cross examination is that so much time is painstakingly spent examining the minutia that it becomes easier to start forgetting the obvious.  In this case, whatever witnesses say or believe, however faulty or flawless the police procedure, irrespective of evidence led by the prosecution or defense, THERE WAS ULTIMATELY NO INTRUDER.

Something else that ought to be highlighted are Burger's answers.  The defense, during cross examination, does actually not want explanations or hypothesis from a witness, they want "yes", "no", or "I don't know".  In this way they can build their narrative. It is interesting that Roux has often allowed Burger to prevaricate at times.  This certainly supports the state's case, and it is likely Nel has encouraged the witness to give reasons and also to refer to previous statements rather than simply answering in the affirmative or otherwise.

But the judge did eventually seize on it:

After Roux had asked her a question several times Tuesday, Judge Thokozile Matilda Masipa intervened: “When counsel asks a question, you answer that question … The quicker way to get out of that (witness) box is to answer exactly what counsel is asking.”

Read more:

Now onto another point.
If there are two witnesses who see the same thing, as in the case of Burger and her husband Charl Johnson, the defense can cynically complain that either the evidence is too similar, or that it is too different.  Roux is using both tactics, which beggars belief.  Which is it, too similar or too different?  On this issue one expects the prosecution to eventually highlight what testimony of the couple is consistent or why inconsistencies are entirely reasonable (or not, if that is the case).

Since we now know there was no intruder, and it's been strongly suggested by at least three witnesses that a woman was screaming, that there were sounds of loud talking and arguing, one has to wonder, if a woman was screaming, why was she screaming?  Why hasn't Nel asked whether lights were on or off?  Oscar's affidavit states that it was pitch dark, but if the couple were arguing, it's credible that the lights of their home would have been on. Also, the defense alleges that the 'incident' took place with only Oscar shouting, and his insinuation that bat thuds were gunshots also insinuates the whole 'incident' started and ended very quickly, and it all happened in the confusing dark of night.  If the lights were on, it would give the state a better contextual basis for their case.  Also, if the lights were on, how could you not see someone in bed, or mistake sounds or intruders or feel afraid?

Burger herself, when asked to explain the inconsistency of a man killing his girlfriend and shouting help described Pistorius' behaviour as a 'mockery'. It may seem like a strange word, even the wrong word, but if one considers the possibility of intent, that the couple were arguing, that Oscar did intentionally kill her, then his shouting help and carrying her downstairs ostensibly to take her to hospital when he was really trying to make sure he was killing her, demonstrate an elaborate theatre in this case. [ In is own words, there is little real accounting for exactly how Oscar helped Reeva after shooting her: trying to render assistance yes, but no mention of exactly what assistence - CPR, bandages, any specific attempt to stop the bleeding, because that ought to have been his absolute first thought - if it was an accident - besides calling the ambulance.  Also, did he call security first or the ambulance first?:
 I phoned Johan Stander ("Stander") who was involved in the administration of the estate and asked him to phone the ambulance. I phoned Netcare and asked for help.
We now know Pistorius says he called the complex owner first, and asks him to call the ambulance. Is there proof that he called Netcare?  Phone records will show who was called and when. But this is very irregular by any standard: Someone is bleeding to death...and you call the owner of the complex first?  That's the first thing you do?].

Assuming Burger's version is accurate, and Reeva felt threatened, what was actually happening?  There's the possibility that Oscar had armed himself and was walking around on his stumps early on...and that Reeva then felt too threatened to leave the house, or was unable to leave perhaps because her keys had been confiscated.  But she did manage, it seems, to 'escape' to the bathroom.  Whilst she screamed louder and louder  (probably realising what was coming) hoping someone would hear her, it must have occurred to Oscar the absurdity of it.  One woman's screams, with him standing on the other side of the locked door.  So he shouted loudly "help, help, help" presumably to an imagined audience of residents possibly overhearing the altercation.

If this is true it supports the idea of premeditation.  Also, it suggests something set off Pistorius which made him absolutely determined to kill Reeva; to shoot Reeva until she was dead.  And when he had shot her and found her still alive? Did she have her phone with her in the toilet?  Did he have to break down the door to also make sure she did not send a message whilst injured (and still alive?)

Despite Roux's allegation, that Reeva would have died instantly from her head wound, this is contradicted both by expert witnesses and by Oscar's own version:

_Defence advocate Barry Roux told the court that the impact of the shots - as proven by ballistic experts - meant Steenkamp could not have screamed after the gun was fired.
The court then heard a portion of a statement by the expert stating the extent of the damage Steenkamp had sustained from the bullets. Her hand trying to cover her head had been penetrated, the bullet travelling into her head resulting in death.
When this was read out, Pistorius in the dock bent down, holding his head in his hands for more than two minutes. He eventually emerged red-faced and teary-eyed, taking out a tissue and wiping his nose before quickly maintaining his composure.
Read more here.

Interestingly, SA media didn't seem to follow Roux's failed attempt to trap the witness. There is some talk, even in the above article of Nel complaining that Roux was 'badgering' Michelle Burger.  When Nel objected (calling the judge 'madam') she told the Pistorius' lawyer: "Mr Roux, I really think you have exhausted this."

For Oscar's defense, Roux insisted that Reeva had died instantly after the first shot:

He told the court: “We will have experts state that there was serious brain damage after the shot to the head, that it would not have been possible for her to scream at all.
“With the head shot, she would have dropped down immediately.”
There is word play in the above, as it implies without actually saying that Reeva died instantly.  It's irrelevant because Oscar's own version indicates that he found Reeva alive after breaking open the toilet door (see below).  But this fakery from Roux solicited an interesting disclosure from Nel.
Crucially, the state prosecutor pointed out the exact succession of bullet wounds Reeva suffered.
Remember, she was standing by the door.  Oscar may have assumed she was sitting, or assumed she was using the toilet.
In any event, she was shot by the first two bullets in her right side (in other words, towards the left, towards the toilet, following an assumption that she was sitting).  Then on the third bullet he either changed his trajectory, Reeva began to fall, or the kick of the gun made him miss, but the third bullet hit the wall and the fourth and last penetrated two fingertips and head. The mere movement of Reeva's hand to protect her head indicates enough time to take a defensive posture.  This time gap is also critical when deciding whether the killing was both premeditated and intentional.

What is Oscar doing during the trial?  According to the Daily Mirror:

Pistorius again took lengthy notes during the witnesses's  testimony with a black Mont Blanc pen and using an orange highlighter and sticky notes to mark certain passages. 
During adjournments, he huddled with his legal team.  At one point, he removed a child’s small lunchbox from his briefcase to retrieve a can of fizzy juice and a wrapped snack.

Read more:

But during *this* part of the testimony Oscar was less composed:

As Roux claimed a gunshot wound to the head would have made it impossible for Steenkamp to scream, Pistorius bowed his head and folded his hands behind his neck.
“The person with that brain damage will have no cognitive response,’’ continued Roux. “It cannot be. She could not have screamed.’’
Prosecution lawyer Gerrie Nel interjected to say it was the last of four shots that struck Steenkamp’s head, the first two hitting her right side, the wall and her shoulder.*
“I heard her voice just after the last shot,’’ Ms Burger said. “It faded away.’’
From  More here.
*Does that make sense?  Four shots...first two hitting her right side and the wall (respectively?) the third (?) hitting her shoulder and the fourth her head.  One must also conjecture how Oscar was able to shoot the fourth and last shot into her head.  Was it possible to see or hear where she was?  Was it a fluke?  The changing trajectory may also speak of intention, in that as she moved, he anticipated where to shoot.

Another point: A firearm owner is supposed to fire a warning shot, and is never permitted to shoot at someone they can't see, for example behind a door or through a wall.  This is part of the process of applying for and receiving a firearm license.

Then: How did the shell end up in the toilet bowl?  Was it sitting in Oscar's clothes?

Let's remind ourselves again of Oscar's version last year:

During the early morning hours of 14 February 2013, I woke up, went onto the balcony to bring the fan in and closed the sliding doors, the blinds and the curtains. I heard a noise in the bathroom and realised that someone was in the bathroom.
I felt a sense of terror rushing over me. There are no burglar bars across the bathroom window and I knew that contractors who worked at my house had left the ladders outside. Although I did not have my prosthetic legs on I have mobility on my stumps.
Now contrast that version with this, updated version:
I had mistakenly believed that an intruder or intruders had entered my home and posed an imminent threat to Reeva and me.
4. In my application for bail, I concisely dealt with the events of February 14, 2013. I am advised that I will have an opportunity to deal with a comprehensive version of the events when I testify. For purposes of my plea explanation, I emphasise the following:
4.1 During the early hours of the morning, I brought two fans in from the balcony. I had shortly before spoken to Reeva, who was in bed beside me.
4.2 Unbeknown to me Reeva must have gone to the toilet in the bathroom at the time when I brought in the fans, closed the sliding doors, the blinds and the curtains.
4.3 I heard the bathroom window sliding open. I believed that an intruder or intruders had entered the bathroom through the bathroom window, which was not fitted with burglar bars.
4.4 I approached the bathroom, armed with my firearm, so as to defend Reeva and I. At that time I believed Reeva was still in the bed.
4.5 The discharging of my firearm was precipitated by a noise in the toilet, which I, in my fearful state, knowing that I was on my stumps, unable to run away or properly defend my self physically, believed to be the intruder/s coming out of the toilet to attack Reeva and me.
Click here for the full plea.
I believed that someone had entered my house. I was too scared to switch a light on.
I grabbed my 9mm pistol from underneath my bed. On my way to the bathroom I screamed words to the effect for him/them to get out of my house and for Reeva to phone the police. It was pitch dark in the bedroom and I thought Reeva was in bed.
I noticed that the bathroom window was open. I realised that the intruder/s was/were in the toilet because the toilet door was closed and I did not see anyone in the bathroom. I heard movement inside the toilet. The toilet is inside the bathroom and has a separate door.
It filled me with horror and fear of an intruder or intruders being inside the toilet. I thought he or they must have entered through the unprotected window. As I did not have my prosthetic legs on and felt extremely vulnerable, I knew I had to protect Reeva and myself. I believed that when the intruder/s came out of the toilet we would be in grave danger. I felt trapped as my bedroom door was locked and I have limited mobility on my stumps.
I fired shots at the toilet door and shouted to Reeva to phone the police. She did not respond and I moved backwards out of the bathroom, keeping my eyes on the bathroom entrance. Everything was pitch dark in the bedroom and I was still too scared to switch on a light. Reeva was not responding.
When I reached the bed, I realised that Reeva was not in bed. That is when it dawned on me that it could have been Reeva who was in the toilet. I returned to the bathroom calling her name. I tried to open the toilet door but it was locked. I rushed back into the bedroom and opened the sliding door exiting onto the balcony and screamed for help.
I returned to the bathroom [bashed down the door?]and picked Reeva up as I had been told not to wait for the paramedics, but to take her to hospital. I carried her downstairs [why is this section not written in chronological order?  When did you put on your prosthetics, why do you only mention it in the next paragraph?] in order to take her to the hospital. On my way down Stander arrived. A doctor who lives in the complex also arrived. Downstairs, I tried to render the assistance to Reeva that I could, but she died in my arms. [This means she was alive after the shooting, after the door was opened, and possibly when others arrived.]
I battled to get her out of the toilet and pulled her into the bathroom. I phoned Johan Stander ("Stander") who was involved in the administration of the estate and asked him to phone the ambulance. I phoned Netcare and asked for help. [Did the complex security call you? What did you say to them?]I went downstairs to open the front door. [The front door was open...was Reeva trying to leave?  Where were Reeva's car keys?] I put on my prosthetic legs, ran back to the bathroom and tried to kick the toilet door open. I think I must then have turned on the lights. I went back into the bedroom and grabbed my cricket bat to bash open the toilet door. A panel or panels broke off and I found the key on the floor and unlocked and opened the door. Reeva was slumped over but alive. [Note: by his own version she was still alive after all four bullets were fired.]

I am absolutely mortified by the events and the devastating loss of my beloved Reeva. With the benefit of hindsight I believe that Reeva went to the toilet when I went out on the balcony to bring the fan in.

Then, back to the updated plea:
The State is furthermore in possession of statements by a number of witnesses, including witnesses resident either in the estate where I reside, or in an adjacent estate. None of these witnesses claim to have heard any argument between Reeva and I, nor any woman’s voice talking, prior to the shooting, [Pistorius seems awfully confident that there are no witnesses....?] notwithstanding the fact that two of the witnesses (who live in closer proximity to my house than Van der Merwe) were awake at the time when Van der Merwe alleged that she heard a woman’s voice. Watch Video Highlights from Day 2:

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