Pistorius: Defense rests closing arguments on August 7 and 8

July 8, 2014

The Reenactment Video

Tuesday, July 8, 2014

Good morning:

The defense rested this morning in the Oscar Pistorius trial.

Judge Masipa has scheduled closing arguments on August 7th and 8th.

The State’s written closing argument is due on July 30th.

The Defendant’s written closing argument is due August 4th.

The video is a reconstruction of the shooting and Pistorius carrying Steenkamp’s body downstairs. His sister Aimee plays the role of Steenkamp’s dead body.

Note that Pistorius does not exhibit emotional distress reliving the event and he has little problem moving on his stumps.

His right shoulder does not appear to bother him, which is surprising since he testified that he slept on the right side of the bed, instead of the left, because his right shoulder was bothering him.

The defense claims that the video was shot for trial preparation and they never intended to introduce it at trial.

Prosecutor Gerrie Nel has decided not to bring up the video.

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Pistorius: Defense presents evidence that disabled people have heightened responses to stress

July 2, 2014

Wednesday, July 2, 2014

Good afternoon:

The Wednesday session has ended.

The Daily Maverick is reporting that the defense presented evidence yesterday and today that Pistorius has been depressed and at risk to commit suicide since he shot and killed Reeva Steenkamp. This evidence cuts both ways because he could be depressed about shooting her by mistake believing she was an intruder or he might be depressed because he lost his temper during an argument and shot her to death during a rage outburst. Therefore, this evidence is not useful in determining whether he shot her by mistake as he claims.

To bolster its case that he shot her by mistake, the defense called Pistorius’s manager, Peet van Zyl, who testified that Pistorius was not an angry or violent person and he was very much in love with Reeva Steenkamp. Gerrie Nel pounced on cross examination by confronting him with evidence that Pistorius’s roommate during the London Paralympics asked to be assigned to a different room because Pistorius was on the phone yelling at people for several hours late at night disturbing his sleep.

Nel then asked him if he knew about the time that Pistorius attacked and destroyed a chair upon being informed that he was not selected to run the 4 X 100 meter relay. Van Zyl denied knowledge of the incident which was widely reported at the time. He also denied knowing about Pistorius’s gun fetish.

Given his denial of information that he almost certainly would have known, his close personal relationship with Pistorius and a strong financial interest in a favorable outcome of the trial, I believe it’s unlikely that Judge Masipa will conclude that he was a credible witness.

After reading a portion of Pistorius’s mental health evaluation into the record, which concluded that Pistorius was not narcissistic or psychopathic and there was no evidence that he had a history of aggressive violence, the defense called Sports Medicine Professor Wayne Derman, the Paralympic team doctor. He testified that he worked closely with Pistorius and he noticed that Pistorius had a heightened startle response to loud noises compared to the reactions of other disabled people. He said disabled people generally are more anxious and fearful of being assaulted than people who are not disabled and he cited two studies which show that disabled people are 50% more likely to be assaulted than people who are not disabled. Their elevated anxiety results in a loss of control over their automatic response.

Court recessed until tomorrow morning when Professor Derman will resume the stand.

I presume he will conclude sometime around midmorning that Pistorius had little control over his response to hearing a noise in the bathroom and reacted on autopilot without intent to kill when he shot through the door to the toilet stall.

Then we will watch the master of cross examination, Gerrie Nel, attempt to deconstruct the defense theory of the case.

Professor Derman’s opinion, of course, is based on an assumption that Pistorius told the truth. His theory is vulnerable to attack because of the amount of time that passed between the sound that supposedly awakened him and the specific things that Pistorius said he did before he pulled the trigger. Pulling the trigger was not an automatic response.

He was armed and he pulled the trigger four times firing four shots through a closed door when he was not in any immediate danger of an attack. Even if he believed that an intruder was in the toilet stall behind the door when he pulled the trigger, he was at least grossly negligent, if not reckless.

Unfortunately for Pistorius, it’s difficult to imagine that he did not know Reeva Steenkamp was behind that door.

Until tomorrow.

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Pistorius was not mentally ill and could appreciate the wrongfulness of his act

June 30, 2014

Monday, June 30, 2014

Good morning:

CNN is reporting:

According to the findings by an independent panel of doctors, Pistorius did not suffer from a mental defect or mental illness at the “time of the commission of the offense that would have rendered him criminally not responsible of the offenses charged.”

The report added that “Mr. Pistorius was capable of appreciating the wrongfulness of his act.”

In other words, Pistorius does not have a mental illness defense and the trial can proceed.

Game within the Game:

Mental disorder defenses should be raised before trial. Since the defense did not do that, we can reasonably assume that they they thought that they had a much better chance of winning, if they went with the intruder defense. Unfortunately for the defense, however, Nel eviscerated that claim leaving them up the proverbial creek without a paddle.

Defense counsel’s last minute decision to raise the mental heath issue appeared to have been a desperate move to counter the damage that Nel inflicted. It had little chance to succeed. Instead, the defense appears disorganized and desperate.

Now we have to wait and see how the public perceives the decisions by the defense.

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Game within the game: Why defense fears Pistorius evaluation

May 20, 2014

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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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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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


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.

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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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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.


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