Game within the game: Why defense fears Pistorius evaluation

Tuesday, May 20, 2014

Good morning:

According to the Guardian, Judge Masipa has ordered Oscar Pistorius to spend 30 days as an outpatient at Weskoppies state psychiatric hospital in Pretoria, beginning on Monday 26 May.

• He must attend every weekday between 9am and 4pm (or until excused by the medical superintendent at the hospital).

• The four professionals overseeing his assessment include Dr. Leon Fine, Professor Herman Pretorius and Dr. Jonathan Scholtz.

• This panel will compile separate reports for the court to judge whether Pistorius was criminally liable for his actions, and whether he “appreciated the wrongfulness of his conduct”.

• Setting out the details and purpose of Pistorius’s evaluation, Masipa said:

“The panel [of mental health professionals] will establish whether the accused was by mental illness or defect criminally responsible for his actions.

The panel will also seek to establish whether Pistorius appreciated the wrongfulness of his conduct.”

• The court will resume on 30 June to hear the results of the evaluation.

Dr. Scholtz is a psychologist. Dr. Fine and Professor Pretorius are psychiatrists.

Here’s a description of what will happen during the 30 day observation and evaluation provided by Carly Danielle, a psychologist who did her internship at Weskoppies state psychiatric hospital where Pistortius will be evaluated. This is a standard procedure.

Conduct lengthy psychiatric interviews in which they will obtain his full life history, his family background, his criminal history, and also importantly his psychiatric history.

Administer a range of psychological and other tests. These will include personality tests, neuropsychological tests, tests for malingering (the technical term for faking a mental illness) and general cognitive tests that evaluate each and every cognitive process from intelligence to memory. Each test can take between 30min – 3 hrs to complete. It is an extremely rigorous process. To give an example, the MMPI (The Minnesota Multiphasic Personality Inventory) has over 500 items.

Observe him during every single minute of every procedure. In addition to the formal interviews and tests, OP’s every move will be scrutinized. He will be evaluated on his appearance, attitude, behaviour, mood and cognitions.

After each member of the team has concluded theses procedures, they will then meet and together they will formulate a diagnosis.

The first question is whether he suffered from mental illness or defect at the time of the shooting.

Dr. Vorster diagnosed him with a general anxiety disorder, which qualifies as a mental disease or defect under DSM V. The panel may agree or disagree. Regardless, I believe there is a substantial probability that they may diagnose him with an antisocial personality disorder and/or narcissistic personality disorder.

Either or both will eliminate any possibility of a favorable outcome to this process for Pistorius because people who have that diagnosis can distinguish between right and wrong and appreciate the wrongfulness of their conduct, but they go ahead and commit the crime because they want to and think they can get away with it. If they do get caught, they will often attempt to lie their way out of trouble.

Probably most politicians, corporate CEOs, white collar criminals and the criminal banksters share this diagnosis. Many cops do too.

Defense counsel, Barry Roux, will argue, that because of his general anxiety disorder, OP misinterpreted the sounds he heard as caused by an intruder instead of by Reeva Steenkamp.

State prosecutor Gerrie Nel will argue that OP shot her to death because he lost his temper during an argument in which she threatened to leave him and then he lied about it to escape legal responsibility.

The problem with the defense argument is that even an anxious person has a duty to exercise reasonable caution to avoid shooting through closed doors with intent to kill the person on the other side without determining if she be friend or foe and when the use of deadly force isn’t reasonably necessary to protect themselves from death or serious bodily injury.

Barry Roux knows this and that is why he so vigorously resisted the 30 day commitment. He also probably fears that the team will come back with the APD and/or NPD diagnosis.

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5 Responses to Game within the game: Why defense fears Pistorius evaluation

  1. Sarah Strongworth says:

    Honestly, I’m having a very difficult time agreeing with the what appears to be the general consensus online. I am no push over either. I followed the Casey Anthony, George zimmerman and Jodi arias trials. In CA and JAs case I found them both guilty beyond reasonable doubt. Their stories weren’t credible and the evidence proved it. To GZ trial I think judicial errors were made in GZs favor and understand acquittal though I believe him guilty if racially profiling TM and killing him when he started something he could not finish. Somehow and bizarrely TM was given no such right to defend himself against GZ without it being called an attack worthy of GZ shooting him.
    But with OP case I don’t see a man faking anything. I don’t think he’s been honest abt everything but on the issue of intent to kill I don’t think the state has met it’s burden. It seems people are blood lusting for a guilty verdict and that troubles me.
    What will you say if the psychiatrists hired by the court find that his mental defect of anxiety (that IMO is completely understandable given his handicap, loss of mother and extreme crime in SA) was real. I don’t disagree that people with anxiety still HAVE to be responsible for their deeds, but we are talking abt the fact the state has to prove CLEAR intent. I hv found nels to be typical if what I usually see in defense lawyers. His argument is often more like testimony and time and again I see him playing word games with the defense witnesses to WIN as opposed to be attempting to argue justice.
    All we really hv is the one witness who claims to hv heard a fight that night. Correct? The rest to me, while may not look good for OP still doesn’t rise to the level of proof he had intent to kill Reeva.
    The witnesses that I think hv been most compelling were the father daughter who saw OP IMMEDiately following the shooting. This man is not a professional actor. Additionally Samantha Taylor was heartbroken over their breakup. Most women who’ve been abused are not angry and devastated their boyfriend has moved on. And I understand another old girlfriend of his Jenna has recently spoken out that OP has never been abusive to her in the slightest. So we are to believe that without any evidence of history of abuse to his girlfriends, the man became suddenly not only abusive but murderous? It is an extreme position that requires proof of intent. It’s not there that I see.

    I will not be surprised at all if the psych experts agree mostly with Vorster. He needs to held accountable. Yes. But M1 would be a tragedy twice over.
    And just an FYI, I don’t live in SA, and I’ve been surrounded by victims and perpetrators of DV. for the last ten years. This is not one of those cases.

    • You may be right about whether he intended to kill Reeva, and if Judge Masipa agrees with you, I won’t be protesting her decision, even if I disagree with her.

      For the sake of argument, let’s assume you’re right. He truly believed an intruder was in the toilet room.

      Was it reasonably necessary for him to use deadly force to prevent being killed or seriously injured by the intruder in the bathroom?

      I don’t believe shooting through a closed door was reasonably necessary.

      That might result in a guilty of manslaughter decision.

      Welcome to the site.

  2. Malisha says:

    I am surprised Dr. Carly Danielle described the MMPI rather than its more recent iterations, the MMPI-2 and, especially relevant here, the MMPI-2-RF (MMPI-2-Restructured Form) which has only 338 questions but has some fairly exquisite scales to measure “faking good,” under-reporting, over-reporting, prevaricating and exaggerating. The MMPI, with over 500 questions, was primitive compared to the newer versions. I sure hope the government-run psych hospital is not still using the outdated forms!

    IMO the defense is in real trouble with this ploy. Roux may be the best defense lawyer in the country down there but really, he should have had Pistorius totally evaluated BEFORE THE TRIAL BEGAN and then soberly and wisely considered how to present the information that resulted.

    I’m not saying that Pistorius’s psychology was unrelated to the crime; obviously Fogen’s psychology was very much related to HIS crime (and his jury, suffering from the same psychosocial gangrene that affected him and stinking from it just as odiously) too. But if an insane level of rage engendered by running smack into the fact that your disaffected lover (or some “up to no good” stranger) does not have to bow to your every will and whim motives you to kill, does that mental defect make the act of killing un-criminal?

    • But if an insane level of rage engendered by running smack into the fact that your disaffected lover (or some “up to no good” stranger) does not have to bow to your every will and whim motives you to kill, does that mental defect make the act of killing un-criminal?

      Nope, but a so-called intentional killing in the heat of passion could be a second degree murder or first degree manslaughter, depending on how the applicable statutes define those crimes.

  3. I am familiar with this process because, with one important exception, this is standard operating procedure in death penalty cases.

    The exception is we do not ask the court to send our clients to a mental hospital for the work-up.

    We select the experts we want to use, get them appointed by the court via ex parte applications under seal, and they meet with the client in jail to do the work.

    The identity of the expert and his or her findings are confidential and protected from disclosure as attorney work product.

    We only have to disclose that information to the prosecution, if we use it for mitigation purposes in support of a request that the prosecutor not seek the death penalty or if we endorse the expert as a witness we intend to call during the guilt/innocence phase or penalty phase of the trial.

    Knowing Judy Clarke as I do, I’m certain she and her legal team have completed this process with Dzhokar Tsarnaev, the alleged Boston Marathon bomber.

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