Wednesday, May 14, 2014
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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