Oscar Pistorius ordered to undergo psychiatric evaluation

May 14, 2014

Wednesday, May 14, 2014

Good morning:

Welcome to The Game Within The Game in which I explain why lawyers and judges are making certain strategic decisions.

Judge Masipa has granted a prosecution request to order Oscar Pistorius to undergo a comprehensive psychiatric evaluation by a panel of state experts. The evaluation will take place over a 30 day period at a state institution. The trial will be suspended until the evaluation has been completed.

Pistorius will not be held in custody during the 30 day period.

Prosecutor Gerrie Nel requested the evaluation after Dr. Merryll Vorster, a defense psychiatrist, testified that Pistorius suffers from General Anxiety Disorder (GAD), a mental health disorder defined in the DSM V. She described the disorder as a pervasive state of anxiety that began when his legs were amputated below the knees at the age of 11 months, was exacerbated by his mother’s death at age 14, and continues to this day.

She said it manifests as a heightened fear of crime and obsession with personal security and guns with which to protect himself. She also said it likely contributed to his mistaken perception that an intruder was present when he heard a window slide and the toilet door slam, his decision to confront rather than flee from the intruder, and his decision to shoot through the toilet door without attempting to decide who was in the toilet cubicle before he squeezed the trigger.

The prosecution’s theory of the case is that Pistorius invented the story about an intruder to conceal that he lost his temper during an argument with Reeva Steenkamp and intentionally killed her when she threatened to leave him.

Until Dr. Vorster testified, the defense had not argued or presented any evidence to explain why Pistorius might have mistakenly believed that an intruder was in the toilet cubicle. Assuming his version of events that night is true, her testimony potentially bridges the gap between a normal person’s reaction to the sounds he heard and his apparent overreaction. That is why Gerrie Nel asked Judge Masipa to suspend the trial and order the 30 day observation and evaluation.

Judge Masipa granted his request explaining that, because she is not a mental health expert, she is not equipped to determine if Dr. Vorster’s diagnosis is correct and what role his mental state may have played in his perceptions and decisions that night. The evaluation will assist her to make that determination and that is why she ordered it.

I suspect her decision should be filed in the better-to-be-safe-than-sorry category because Gerrie Nel savaged Pistorius on cross examination catching him in several material lies that substantially increase the probability of his guilt, so much so that his GAD may satisfactorily explain why he killed her (i.e., because she was going to leave him) and why he offered such a lame excuse (i.e., yee olde intruder) to cover-up what he did. Consider it a form of insurance.

While the referral for observation may yield information that helps Pistorius, it’s more likely that it will not and in the end justice will appear to have been done, as no stone will have been left unturned leaving no credible argument that Pistorius was the victim of a railroad job.

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Thank you,

Fred


Oscar Pistorius: Gerrie Nel continues to cross examine defense psychiatrist

May 13, 2014

Tuesday, May 13, 2014

Good morning:

Gerrie Nel continues to cross examine the defense psychiatrist, Dr. Merryll Vorster.

He begins with a set of general questions about an anxiety disorder, after reading up on it last night in DSM V., seeking to distinguish it from generalized worrying about the thousand natural shocks the flesh is heir to (as Shakespeare once said in another context).

She said it doesn’t come and go depending on external circumstances. It’s always there. She used the word “pervasive” to describe it.

Follow along with us and comment as we watch Gerrie Nel attempt to turn her into a prosecution witness on you tube.

Keep in mind that her vulnerability is that she did not get involved in the case until a little over a week ago and claims not to know much about the case. Taking her at her word, this means that she does not know about Pistorius’s lies that Nel exposed when he cross examined Pistorius and her diagnosis is based on her assumption that Pistorius told her the truth when she interviewed him.

She is not incompetent or naive for doing so because this is standard operating procedure for mental health professionals. They are not independent fact gatherers. They start with what the patient says to develop trust and work with that to probe their minds and moods.

Session 1

Session 2

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Oscar Pistorius trial: IMPORTANT UPDATE BELOW

May 12, 2014

Monday, May 12, 2014

Good morning:

Trial resumed with Gerrie Nel cross examining Thomas Wolmarans, the defense ballistic expert. Also, a psychiatrist is on the stand today. Please join us to watch and comment.

Session 1

Session 2

UPDATE:

Fascinating development today. After the conclusion of Thomas Wolmarans’s testimony, the defense shifted from not guilty to not guilty due to diminished capacity.

In fairness to defense counsel, Barry Roux, however, the shift was not entirely unexpected because he did say at the beginning of the trial that the defense would show that Pistorius’s feelings of “vulnerability” and his disability contributed to him shooting Steenkamp.

The defense called Dr. Merryll Vorster, a forensic psychiatrist who teaches at Wittwatersrand University.

She testified that she was requested by the defense to evaluate Pistorius earlier this month long after he had concluded his testimony. She said Pistorius suffers from general anxiety disorder (GAD) and, although he can tell the difference between right and wrong, he would be a danger to society if he had a gun. Because of his heightened fear of crime, due to his disability and the influence of his mother who slept with a gun under her pillow, he would tend to perceive threats where others would not and react aggressively rather than retreat (fight rather than flight).

Prosecutor Gerrie Nel said he would submit a request to refer Pistorius for a 30 day evaluation by its own experts to determine if they agree with Dr. Vorster’s diagnosis.

Barry Roux argues that a 30 day referral for observation isn’t necessary because he isn’t claiming that Pistorius was delusional (i.e., insane) and could not distinguish between right and wrong. He says Pistorius’s anxiety disorder is relevant to show his mental state and explain why he acted as he did.

Diminished capacity is a defense that admits the acts that constitute the offense (i.e., actus reus), but denies the existence of the requisite mental state (i.e., mens rea) due to a diminished mental ability to form that mental state. It is not a claim of insanity that, if true, would generally require extended hospitalization in a secure facility until the person is deemed safe to be released into the community.

Stunning development that likely resulted from Nel’s destruction of the defense case.

Roux contacted Dr. Vorster a little over a week ago and asked her to evaluate Pistorius.

Many US courts would prohibit switching to diminished capacity after the trial started. let alone in the defense case.

Usually, defense has to file a written notice of intent to claim insanity or diminished capacity no later than six weeks before trial and the prosecution can then have its experts evaluate the client.

I am not familiar with the law in SA, but I imagine that Nel can seek an evaluation.

His theory is that Pistorius killed her after an argument and made up the story about an intruder. He trapped Pistorius in at least two conflicting versions of the incident and the gastric contents in Steenkamp’s stomach blew up his story that they ate dinner at 7 pm and went to bed at 10 pm.

However, since he has the burden of proof, he may seek to have his experts evaluate Pistorius’s mental state and blow-up Dr. Vorster’s evaluation.

Gerrie Nel asked for an early adjournment to prepare the rest of his cross examination of Dr. Vorster.

Court is in recess until tomorrow at 0930.

Crane and I are working hard for you. Her article on saliva testing leading to a conclusive presumption of DUI guilt for anyone stopped by the police while driving a motor vehicle, regardless if they are impaired, is muckracking at its best and going viral. I am giving you the straight skinny on the Pistorius trial.

Please, we need donations. We have received four donations for less than $50. Please donate today.

Thank you,

Fred


Oscar Pistorius Trial: Gerrie Nel cross examines Thomas Wolmarans

May 9, 2014

Friday, May 9, 2014

Good morning:

Thomas “Wollie” Wolmarans resumes his testimony today. He is the respected defense ballistic expert who testified yesterday that the presence of small wood splinters in Reeva Steenkamps’s arm indicates she was reaching for the door handle of the toilet enclosure to open the door and not cowering behind the toilet when Pistorius fired through the door.

Gerrie Nel will be cross examining him and will have to bring his best game because Wolmarans has been around the block and is unlikely to be intimidated. How well Wolmarans withstands the storm, may determine the outcome of this trial.

This dream match-up has been a long time coming and should be fascinating to watch.

See you in court.

Session 1

Session 2

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Oscar Pistorius: Did he lie about when they ate dinner to conceal an argument

May 8, 2014

Thursday, May 8, 2014

Good morning:

The Oscar Pistorius trial resumed today in Pretoria after yesterday’s recess for election day.

We are well into the defense case. Defense counsel, Barry Roux, told Judge Masipa today that he will wrap up his case before the end of next week, so we could possibly see final arguments next Thursday or Friday.

Defense began the morning session by calling Professor Christina Lundgren, an anesthetist (we call them anesthesiologists) to counter the testimony of Dr. Gert Saayman, the pathologist who conducted the autopsy. On the basis of Steenkamp’s stomach contents, which contained identifiable items of food, he said she had last eaten within a few hours before her death, probably around 1 am.

Dr. Saayman’s testimony contradicts Oscar Pistorius’s claim that they ate dinner around 7 pm and went to bed by 10 pm. The prosecution’s theory of the case is that Pistorius shot and killed her during an argument after she attempted to get away from him by locking herself in the toilet stall. Prosecutor Gerrie Nel has accused Pistorius of lying about when they ate dinner and went to bed in order to conceal that argument.

I happen to know more than a little about the digestive process because the subject often comes up in murder cases relative to estimating the time of death (i.e., the unknown) based on when the last meal was consumed (i.e., the known). I agree with Dr. Saayman’s opinion. It takes about 6 hours for the stomach to empty.

I have a feeling Dr. Lundgren is in for a rough time when Gerrie Nel cross examines her.

So, pop some corn, get comfortable, watch the proceedings and join us in the comments below.

Session 1

Session 2

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Fred


Oscar Pistorius cannot control himself in court and lies about it

May 7, 2014

Wednesday, May 7, 2014

Good afternoon:

Oscar Pistorius apparently has an impulse control and anger management problem that manifested yesterday in court when he spoke to Kim Meyers, who was a friend of Reeva Steenkamp, asking her the following question:

How can you sleep at night?

She was upset by the question and informed her lawyer about it. In turn, he told the National Prosecuting Authority which is not going to do anything about it because it is not a threat.

Stupid move by Pistorius.

The gracious and proper thing for him to have done would have been to apologize.

Instead, he denied making the statement even though a police officer heard him say it and other witnesses saw him lean toward her as if to speak to her.

Everyone who had not yet figured out that he is a liar, now knows that he is a liar. That most definitely will not help him win his case.

Kim Meyers knew Reeva and she was not even a witness against him, yet he could not restrain himself from attempting to guilt-trip her for coming to court to support Reeva’s family.

What was he thinking?

He is his own worst enemy in that he cannot restrain himself from a public display of self-centered emotional immaturity in a courtroom and lying about it afterward, which are actions that are consistent with the prosecution’s theory of its case.

Incredible.

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Thanks,

Fred


Oscar Pistorius trial: Neighbors confirm he was distraught

May 6, 2014

Tuesday, May 6, 2014

Good morning:

The defense continues to present evidence today from Pistorius’s neighbors confirming his distraught emotional state after he shot and killed Reeva Steenkamp. As I said yesterday, I do not believe this evidence helps his cause because no one disputes that he was upset.

The central issue in this case is whether he was upset because he killed her by mistake believing she was an intruder or was he upset because he took her life and destroyed his own after losing his temper during an argument. Since either scenario could have caused his extreme emotional distress, we must direct our attention away from his reaction and focus it on evidence that will assist us to determine what caused it.

Inconsistencies in his various statements about the events that evening and inconsistencies between his statements and the evidence at the crime scene should ultimately determine the outcome of this trial. Forensics will be critical.

Here are the links to today’s events in trial.

Join us in the comments below as we continue to watch and discuss this tragic case.

Session 1

Session 2


Oscar Pistorius trial resumes today

May 5, 2014

Monday, May 5, 2014

Good morning:

The Oscar Pistorius trial has resumed in Pretoria, South Africa.

They’re in the defense case and have completed two sessions. The first witness today is Johan Stander. He was the manager of the gated neighborhood where Pistorius’s residence is located. Pistorius testified that he was the first person he called after the shooting.

Open two windows in your browser and split your monitor screen so that you can display this article on one side with the video on the other. Join us in the comments as Crane and I blog.

Session 1

Session 2

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Thanks,

Fred


Gerrie Nel destroys a defense expert and gets him to implicate Oscar Pistorius

April 17, 2014

Thursday, April 17, 2014

Good evening:

In the following exchange regarding the position of the magazine rack in the toilet room where Reeva Steenkamp was shot to death, we are going to see an excellent example of a skilled prosecutor leading a very compliant defense expert witness into a trap and springing it shut.

The position of the magazine rack is important to the outcome of the trial because Oscar Pistorius testified that he fired his gun in response to hearing the magazine rack hitting or being hit by something and he was certain that it was not in the position in which the police claimed to have discovered it when they investigated and photographed the scene. The graphic photo showed the magazine rack next to the toilet bowl on the side opposite the door and positioned at an angle to the wall.

The defense contends that the magazine rack was close to the door when Reeva Steenkamp bumped it while reaching for the handle to open the door.

The prosecution contends that they were having an argument and she locked herself in the bathroom to get away from him. They argue that he fired through the door, killing her as she stood away from the door on the far side of the toilet bowl.

Roger Dixon is the compliant defense expert because Gerrie Nel so thoroughly humiliated him yesterday regarding his lack of integrity that today he was absolutely determined to defend his integrity no matter the cost to Pistorius by insisting that the magazine rack was positioned where the police said they found it. That is, on the other side of the toilet contrary to what Pistorius said.

The exchange begins around the 45 minute mark of Session 1 earlier today.

Nel: Now are you saying that after the wound to the back was sustained on your reconstruction, that the deceased got up again . . . you’re not saying that?

Dixon: The deceased was lifted, up my Lady, by Mr. Pistorius when he took her out of the bathroom. Other than that, I do not believe that she made any more voluntary movements after she fell to the floor.

Nel: On your reconstruction [with glasses twirling], having fallen on the magazine rack, the furthest point of the magazine rack from the toilet, that’s what you said, and that caused the bruise to the buttocks . . .

Dixon: The contusion as Mr. Simmonds said . . .

Nel: Good. And in the same movement, it caused the two contusions on the back, am I correct?

Dixon: That is correct, my Lady.

Nel: And from that position she must have fallen forward toward the toilet bowl . . .

Dixon: That is my interpretation, my Lady.

Nel: Then one would expect the magazine rack to be there?

Dixon: That is so, my Lady.

Nel: The accused said to this court that it definitely wasn’t there. Are you giving a version that is different than the accused version?

Dixon: My Lady, my reconstruction of the events in that toilet is based on the evidence that I can see and measure and has been recorded by other people.

Nel: So what you’re saying, let me just get that . . Whatever the accused is saying, you’re saying he’s wrong.

Dixon: My Lady, I am giving testimony on what I observe and interpret. I am not saying that anyone else is right or wrong.

Nel: Can the accused be right, if you’re right? He said the magazine rack was definitely not there. Then he must be wrong. You’re his witness. What are you saying about that?

Dixon then refers to a photograph of the blood on the floor next to the toilet and shows two marks — one of a dry spot where the blood congealed around one leg of the magazine rack, which was positioned in a pool of her blood next to the toilet bowl on the far side of the toilet from the door, and the second of a bloody smudge on the floor next to the wall after the magazine rack was moved. The photograph contradicts Pistorius’s testimony.

In other words, in a desperate move to salvage his honor, dignity and professional reputation, Dixon used the photograph to drive another nail into Pistorius’s coffin.

I have never seen that done before.

Nel is a master of his craft and if you are at all interested in the art of cross examination, you need to watch him in action.

The trial of Oscar Pistorius resumes on Monday, May 5th.

That is also the scheduled date for the beginning of Michael Dunn’s retrial, although I am still anticipating a defense continuance.

In the meantime, we will check in on the other cases we have been covering and take another look at the Boston Marathon Bomber case.

Please let us know if you have any other cases you would like to see us discuss.

Finally, if you have not already made a donation this month and can afford to make one, please do so.

Thank you, Fred


Pistorius: Gerrie Nel’s savaging of Roger Dixon continues

April 17, 2014

Thursday, April 17, 2014

Good morning:

Gerrie Nel continues his savaging of Roger Dixon, the defense “expert” witness whom Nel exposed yesterday for testifying outside his area of expertise, which is geology. Dixon expressed opinions in pathology, wound ballistics, ballistics, as well as audio and video analysis that contradict the state’s theory of the case as laid out by its expert witnesses during the state’s case in chief.

Not a good idea, Roger, old chap. In fact, it was a really bad idea, unless his idea of fun is to be discredited and humiliated in front of a world audience.

Unfortunately, the field of forensic science is densely populated by all sorts of unqualified people from all sorts of backgrounds eager to make money pretending to be scientists. They lie about their credentials, fake their results, cut corners, tailor their testimony to fit their master’s desire and complain loudly whenever anyone dares challenge their results. What cheek!

Regulatory oversight is about as desirable to them as daylight to a vampire.

Their idea of proficiency testing is to know when they are going to be tested and the correct results before they do the test. If a miracle happens and they get a wrong answer, they get to do it over again until they get it right so that they can testify that they have a perfect record on their proficiency tests.

Their idea of peer review is to have a supervisor, who often is another charlatan who has been around a little longer, glance at their results and sign-off on them.

Most of the laboratory analysts who work for state crime labs are wannabee cops and the prosecutors who rely on them to obtain convictions do not want rock the boat, so they also resist regulatory oversight.

No one knows the ratio of charlatans to legitimate scientists, but I would not be surprised to discover that it exceeds 50%.

Gerrie Nel is a great white shark in a robe, an apex predator with attitude. He is one of the best prosecutors I’ve ever seen and a treat to watch.

Pop some corn, settle in and join Crane-Station and me as the master flogs Roger Dixon before a world audience and a more than a little worried Oscar Pistorius.

Watch his command of language, timing, voice, the way he worries his robe and twirls his reading glasses. Note how he controls a witness by interrupting an unresponsive answer by repeating his question and then asking, “Why won’t you answer my question? “You’re not doing yourself any favors, you know.”

I especially like how he uses pauses to create tension.

If any of you are fledgling trial lawyers, study this man.

And don’t forget to make a donation, by the way, if you have not already done so.

Thanks,

Fred

Session 1

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