Tuesday, July 08, 2014

Did you think Gerrie Nel would bring up the re-enactment video in court today? Some People Didn't!

Over the weekend, and on Monday morning the media and even some lawyers were trumpeting the 'illegal leak' of the re-enactment video a across mainstream media.

Of course if it is a leak, then what the media and the public effectively do is participate in perpetuating a scheme.  There didn't seem to be much circumspection around either the timing or the nature of the leak (the statement itself tells us it was an arrangement between the defence and co).

This morning, before the trial commenced, I asked civil litigator David Dadic, whom I also interviewed about Oscar's chances of appeal, how Nel was likely to respond to this circus.

Remember, this is South Africa. There's no jury. And a trial by media is less relevant than in many other countries.  A good judge simply will not pay attention to the media, in order to maintain an appropriate guardianship of the trial narrative and process.  It is the judge that must exercise personal integrity in how he (or she) exposes him (or her) self to the media, or isolates him (herself) from public opinion.  Of course, as anyone knows, it is simply a matter of personal discipline (and good judgement)to filter out messages and media that might contaminate one's mindset.  The simplest way to do this is of course to avoid the news in its entirety, especially online news, and to a lesser extent, televised news.

This must be done by South African judges and their advisers in order to be able to maintain and apply reasonable and ethical standards in the administration of justice. If the state prosecutor Gerrie Nel had mentioned the video, and let's face it, the video was FODDER to his case, he would almost certainly have found himself tied up what may well have been a ploy laid by the defence (in case their case didn't pan out)...

Note: The defence didn't even use their own version (ie their own video evidence/the re-enactment) because it contradicted their version stated in court, so why wouldn't their opposition seize it?

Because in the trickery of the law, the leak and the way it was framed (note that word) the video material is 'privileged' information belonging to the defense (assuming it was used without their permission). So even if Nel had come across this information fortuitously or even in the public domain, the defence would have an argument that the prosecutor's access to this 'evidence', no matter how it came to his attention, it would nevertheless have prejudiced the defence's case.

Even so, Nel did seem to tease both the media and court by shifting the state's narrative closer to elements from the video (Oscar's ability to run on his stumps).
 Nel is brilliant here because he can (whether he knows or does not know about the video) pretend to know nothing about the video, and yet, at the same time, expect the court and even the defence, to do the same. Isn't that exactly what happened?

At the same time, he can ask questions which have relevance to the video, and place the defence in a crazy position.  If he asks them questions and their answers contradict their own video evidence (now in the public domain) this - perhaps no more than hypothetically, strengthens his case.  Of course, the court record will simply reflect the defences increasingly fragmenting case.

At the end of the day, not even the defence raised the issue of the leaked video, because if they were to lead this, it would further fragment the already brittle pieces that remain of their crumbling case.

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