Defence lawyer: Oscar Pistorius may be in trouble

Rebecca Davis explores the views of one of SA’s most high-profile defence lawyers.

In the last few days before Oscar Pistorius hears his fate in the North Gauteng High Court, any legal eagles willing to stick their necks out with semi-definitive predictions will always be guaranteed an audience. On Monday, one of South Africa’s most high-profile defence lawyers was on hand to tell the Cape Town Press Club what he thought of the Pistorius defence team’s handling of the case.

Defence lawyer William Booth says the Pistorius case dragged on for way longer than it needed to – an idea that will likely brook no argument from trial observers or journalists.

“The trial could have taken a week,” Booth told an audience in Cape Town. “The facts are not complicated. I think they’re very simple.” He suggested that perhaps the defence and prosecution could have come to an agreement before the trial about the matters in dispute. This is the purpose of pre-trial conferences in the high courts, he pointed out: to cut out evidence and shorten the trial, since it’s one of the cornerstones of justice that the accused and the victims are entitled to a speedy trial.

In Booth’s estimation, the only truly significant witness of the trial was Pistorius himself, though he conceded that the testimony of neighbours – in terms of sights seen and sounds heard on the evening in question – was also of importance.

He had harsh words for the case presented by Pistorius’s defence team, saying that the “majority of evidence” put forward by Pistorius’s side was “a smokescreen”.

In particular, Booth expressed bemusement at the amount of time taken by Barry Roux’s side in picking apart the state’s forensic evidence and the police’s handling of the crime scene.

“If Pistorius said that he was never there, that he was out jolling, that he didn’t handle the firearm”, then the question of the precautions taken by police in managing the scene would be of significance, Booth said; but not in this case.

The defence team “dragged out a lot of irrelevant evidence” and put “poor witnesses” on the stand, Booth contended. “That has to have a negative effect on the defence case,” he said. Booth suggested that there was little justification for the amount of time taken by the defence in attempting to counter state witnesses’ evidence on aspects like ballistics.

“Red herrings are all very well, but there needs to be a reason behind the way you cross-examine witnesses,” Booth said, suggesting that Judge Thokozile Masipa might well look askance at this.

Defence witness Dr Roger Dixon – who testified on everything from the quality of light in Pistorius’s bedroom to the significance of wounds on Reeva Steenkamp’s back – came in for particular criticism from Booth, who said that he could not understand why a man whose professional training was in geology would be called to testify in this matter.

“Maybe at the Marikana Commission he might have played a vital role,” Booth said.

Forensic expert Dr David Klatzow, who was present in the audience, later chipped in to suggest that Dixon was the “worst” expert witness he had seen in his entire professional career.

Booth also criticised Roux’s defence team for failing to raise the issue of Pistorius’s state of mind “right at the beginning”. The issue of Pistorius’s potential anxiety disorder was only aired mid-way through the defence’s case, by forensic psychiatrist Dr Merryl Vorster, necessitating Pistorius’s dispatching to the Weskoppies Psychiatric Hospital for a month’s worth of out-patient observation.

Pistorius’s own performance on the stand came in for a slamming, with Booth asking just how prepared the athlete had been by his defence team for questioning. It would be normal, Booth said, for a client’s lawyers to sit with the accused and meticulously prepare him for cross-examination; to clarify exactly what his defence was, and to suggest questions that prosecutors will likely ask. Pistorius’s argumentative, rambling testimony did not bear the hallmarks of his kind of preparatory work, Booth suggested.

“But maybe [Pistorius] just went off on a tangent because of the type of person he is,” Booth conceded. He later clarified that he was not “blaming” the defence team for Pistorius’s poor testimony; “I think that was probably Oscar,” he said.

Booth had praise for the state’s “clever move” at last February’s bail hearing. “I don’t believe the state had any reason to oppose bail,” he said. But the state’s opposition to Pistorius’s bail meant that the defence bore the onus of persuading Magistrate Desmond Nair of why Pistorius should be released, and in the course of this it was necessary for Roux’s team to reveal a fair amount of their hand as to what their trial defence would constitute.

Another canny move on behalf of Gerrie Nel’s prosecution was to charge Pistorius with the three minor offences he faces: two counts of discharging a firearm in public, and one count of illegal possession of ammunition.

If Steenkamp had not been killed, it would have been highly unlikely for Pistorius ever to face these charges in a court, Booth said. But introducing these charges permitted Nel’s team to introduce evidence and witness testimony as to Pistorius’s possibly aggressive and negligent character which would otherwise have been inadmissible.

The lawyer expressed mixed feelings about the effects of having televised Pistorius’s trial. On the one hand, he said, the media scrum around the case led to a situation where “you lose track of what this is about: Someone has been killed, tragically. Someone is on trial for his life.” On the other, Booth said that he hoped opening up courtrooms to this kind of scrutiny would help hold the lower courts, in particular, to account. The workings of South Africa’s magistrates courts are often particularly opaque.

He also voiced concern about the impact of the televised trial on witness testimony in the Pistorius case. “Traditionally witnesses shouldn’t talk to each other,” he said. “What happened here is that every witness who was about to testify knew what the previous witness had said. If they hadn’t seen it on TV channels, they would have picked it up on social media.”

This is not the only worry that has been aired recently about the effects of media attention on the Pistorius witnesses. The Times reported two weeks ago that research undertaken by Karen Tewson, head of court preparation at the National Prosecuting Authority, suggested that at least one Pistorius witness was downright traumatised by her participation in the trial.

The newspaper quoted Annette Stipp – one of the neighbours on Pistorius’s estate who reported hearing screams and bangs – as telling the researcher that she and her husband felt “trampled by a bus” as a result of the experience, describing testifying as “emotional, daunting and exhausting”. Stipp added that having her testimony rubbished by Roux made her feel “attacked personally”.

But at this stage of proceedings, everyone’s attention is only really on one matter: what will Judge Masipa’s verdict be on Thursday? Speculation is virtually futile, but Booth gave it his best shot.

Addressing the question of whether Pistorius could be found guilty of premeditated murder, Booth said: “My personal feeling is that the state will struggle to convince the court of premeditation”.

Even if the court accepts Pistorius’s intruder version, however, Booth said he believed there was a “significant” chance that Pistorius “could be convicted of murdering the intruder”. He cast doubt on the idea that Judge Masipa would accept that a reasonable person in Pistorius’s position – even given the athlete’s disability and concomitant anxiety – would have fired four shots into the “minute” space of the toilet without a warning shot.

A member of the Press Club audience told Booth that if Pistorius were to appeal a conviction, he had been reliably informed that the grounds might include the claim that Pistorius was badgered by the state; and the notion that the defence did not call all the witnesses they might have wanted to because said witnesses were reluctant to testify on camera.

Booth did not express much optimism for an appeal on these grounds succeeding. “If your client is being badgered, you get up as a lawyer. You object,” Booth pointed out, saying that lawyers could not sit back while their clients were being badgered in the hope of using this in appeal. If an accused is being badgered, there is also an onus on the judge to intervene.

Booth also said that the issue of witnesses being reluctant to testify on camera was a weak one, as provision was made in Judge Dunston Mlambo’s ruling on media coverage that if a witness did not consent to recording or broadcasting, the judge could rule that “no such recording and broadcasting can take place”.

Something Booth didn’t mention, but which might also be relevant, is that one of the final conditions of Judge Mlambo’s ruling specifies:

the presiding judge shall retain a discretion to direct that, in the event that it becomes apparent that the presence of the cameras or the recording and/or transmitting and/or broadcasting is impeding a particular witness’s right to privacy, dignity and/or the accused’s right to a fair trial, [media houses] will be directed to cease recording and/or transmitting and/or broadcasting the testimony.

Given that Judge Masipa did not direct media houses to cease broadcasting at any stage, it’s reasonable to assume that she did not believe that Pistorius’s right to a fair trial was being impeded by the presence of cameras.

All this hypothesising about verdicts and potential appeals is, of course, pie in the sky until Courtroom GD of the North Gauteng High Court is called to order on Thursday.

“By now, Judge Thokozile Matilda Masipa will have made up her mind,” the UK Independent wrote last weekend. “Many a legal expert in South Africa and around the world still doesn’t know which way she will turn, which is just another reason why everyone is still so transfixed, both by the trial and by her.”

This column first appeared on Daily Maverick.