Oscar Pistorius Trial Day 21: 'Did she scream at all whilst you shot her four times?'
PRETORIA, South Africa – "Did she scream at all whilst you shot her four times?" prosecutor Gerrie Nel asked Oscar Pistorius Friday, the Blade Runner's fifth day on the witness stand.
"No, my lady," Pistorius responded in a crackling voice, directing his answer to Judge Thokozile Masipa.
"Are you sure? Are you sure, Mr. Pistorius, that Reeva [Steenkamp] did not scream after the first shot?" Nel persisted. "Are you, Mr. Pistorius?"
The athlete fell silent, stiffly staring at some fixed point ahead, expressionless. The courtroom waited for his response.
Moments went by, without a word. Then Pistorius emitted a deep sigh of resignation, leaning back, dropping his shoulders into his chair, his face frozen, blank.
"My lady, I'm giving him the witness time to console himself," Nel told the judge. "He is distressed, I'll wait a bit."
Making an effort to compose himself, Pistorius straightened up. Taking a breath, he looked directly at Judge Masipa.
His voice tearful, tremulous, he struggled to enunciate the words. "My lady," he said, "at no point did Reeva shout out, or scream. I wish she let me know she was there; she did not do that."
The Paralympian, on trial for the premeditated murder of his girlfriend Steenkamp in the early hours of Valentine's Day last year, appeared exhausted.
Visibly strained under a third day of cross-examination by Nel, he stumbled over his answers, correcting himself time and again as the "bull terrier" prosecutor relentlessly pursued minute details of his account.
Appearing confused with Nel's non-chronological questioning, and frustrated with repeated questions, the murder-accused admitted he misspoke several times during the course of Friday morning's testimony.
"I must have, but I don't remember. I made that mistake because I am tired," he told Nel, exasperated as the prosecutor asked him again about whether he remembered deactivating his home alarm system before carrying Steenkamp's body down the stairs, or if he just assumed he must have.
The mistakes have mostly been about semantics – if he meant to say "may have" or "did"; if he meant to say he "remembered" or "surmised" based on later fact – but Nel has latched onto each slip, triumphantly declaring that it shows Pistorius is tailoring evidence.
It is an assertion the prosecutor repeated often, raising his eyebrows as he told the athlete again and again he was lying; his version of events "so farfetched, it's impossible."
Nel's resonant rhetoric earned the slight prosecutor a warning from stern-faced Masipa, who reminded him to "mind his language."
"You don't call a witness a liar while he is in the witness box," she told Nel to nods of approval from the Pistorius family bench.
The South African Human Rights Commission confirmed Friday it has been contacted by a former commissioner from another government rights body, who says he intends to lodge a complaint over Nel’s words in court.
The complainant, Jan Landman, said it was his opinion that in calling Pistorius a liar, Nel infringed on his right to a fair trial.
The Human Rights Commission said it would assess the complaint to decide if it would investigate.
An improbable account?
Nel attempted to detail the improbabilities in Pistorius' account of that morning: Why would an intruder go into the toilet? Why would Pistorius not check on Steenkamp's location and welfare as soon as he heard a suspicious noise? Why would he run towards perceived danger instead of fleeing?
But most critically, Nel questioned Steenkamp's alleged lack of response to Pistorius' shouts. Tuesday, during questioning from his defense attorney, Barry Roux, Pistorius testified that as he entered the bathroom and noticed an open window, he screamed to Steenkamp (who he insists he believed to still be lying in bed) to call police.
Pistorius argued that it was not improbable she would not have responded to his shouts if she believed danger to be approaching.
"Reeva had been involved in a similar incident before in her life, where she locked herself away," the athlete told the court. "From my understanding it was that she couldn't speak to people for a day or so afterward."
Nel was incredulous. "She wasn't scared of any intruder. She was only scared of you."
The prosecution's case is that the couple had a fight that night, with Steenkamp fleeing Pistorius, running to the bathroom.
Several neighbors testified to hearing a woman's "terrified, terrified screams," including during what they assumed to be a flurry of gunshots.
Pistorius remains adamant that Steenkamp did not scream, or say a word. "A woman didn't scream at any point," he told the court.
State pathologist Gert Saayman said it would be "unnatural" for someone who sustained Steenkamp's injuries not to cry out in pain.
Questioned about whether he heard screaming as he fired his 9mm, he told the court his ears were ringing as soon as he had fired the first shot. "If I couldn't hear, I couldn't hear. … The sound of the gunshots in the bathroom … you would not have heard anyone scream. The decibels of the gunshots … When I had finished firing the gunshots, I was screaming. I couldn't hear my own voice," he said.
"How could you exclude the fact that she was screaming, if you couldn't hear?" Nel asked.
Pistorius has a few other logical difficulties with the state's circumstantial evidence against him: that fans, a bedspread on the floor and now a pair of Steenkamp's jeans that he alleges he used to cover a small light on his amplifier, all shown in the first police photographs of the scene, are in positions that contradict his story.
The athlete has conceded that, if the photographs of his bedroom are correct and the items untouched, then his version can't be true. However, he continues to insist that police officers have disturbed the scene.
These discrepancies will, too, come down to a balance of probability: Is it more likely that others moved the items, or that Pistorius has fabricated his testimony?
The prosecution wants Pistorius' patchy account discarded in favor of a different narrative: that the couple had a fight, with Steenkamp fleeing Pistorius, terrified and running to the bathroom.
Rational thought
Pistorius has said time and time again that he fired his 9mm Taurus at the bathroom door "without thinking." In his first spoken account, he said he pulled the trigger "before I knew it."
The Paralympian's defense rests heavily on what exactly he was thinking when he fired the four shots that killed his girlfriend, and he is the only one who can explain that to the court.
On Friday, he described for the first time the noise that precipitated his bullets. "I heard a noise like wood moving," he told the court. "I thought it was the door opening and someone was coming to attack me."
The athlete says he shot out of fear, not out of rational thought.
His intent to kill – or lack thereof – potentially represents the difference between two different levels of intent to murder. Under South African law, dolus indirectus (or indirect intent, whereby an individual intends to kill an unidentified person) is regarded as a more serious form of intent than dolus eventualis, whereby someone kills out of recklessness, when they should have foreseen the possible consequences of their actions.
Nel is trying to get inside Oscar Pistorius’ head.
The prosecutor pointed out that Pistorius, a seasoned gun owner, remembered – despite his fear – to release the safety mechanism on his pistol.
"So if I needed to use my firearm I could protect myself," Pistorius explained.
Speaking about the slamming door that convinced him someone was in his bathroom, the athlete played into Nel's hands.
"Considering the sounds," Pistorius said, "I had to consider that there was someone in the toilet, or that there was somebody on the ladder."
"Consider. Let's just use that word," Nel said smiling. "You know what you considered? You considered where you had to walk slowly, where you had to be quiet. … You had to consider to walk slowly down the passage, keeping your attention to the danger."
"That's correct," Pistorius said, going on to explain that he'd had the time to rationally think about the situation.
"Consideration as I said, my lady, takes time to reason," Pistorius told the judge. "When I was standing at the bathroom, looking at the window and the door, I was shouting at that point. There was time for me to consider. I was thinking, 'Is the person on the ladder? Is the person in the bathroom?' There was a thought that happened."
Nel smiled and nodded.
Pistorius has said on several occasions that he was "overcome by fear."
Were there alternatives?
For the principle of "self defense" in South Africa to apply, the mortal threat must be "immediate," meaning that there could be no alternative courses of action, like fleeing the situation.
For Pistorius to be found guilty of "culpable homicide" – South Africa's equivalent of manslaughter – instead of murder, he needs to show his actions were in line with "putative self defense," meaning he genuinely believed no other courses of action were possible and his life was in danger.
Nel attacked that element of Pistorius' account Friday.
Alluding to the "reasonable man" test in South African law – would a reasonable person in the same situation react similarly? – Nel asked the athlete why he ran towards the source of his fear.
Pistorius has said repeatedly he wanted to put himself between his perceived danger and his girlfriend, to protect her.
"I could have gone out on the balcony," said Pistorius. "I could have left the room, but that wasn't what happened."
"Why didn't you take her [Reeva] out of the bedroom door?" Nel asked.
"I don't know why I didn't do that," Pistorius said.
"You did the opposite. You approached the danger. That doesn't make sense. It's not true," Nel told him.
Referencing his ex-girlfriend Samantha Taylor's evidence, Pistorius said his instinct is to investigate rather than flee. "That's my personality, my lady. That's how I am, so instead of cowering and running away, at that split moment, I wanted to put myself between the danger, the perceived danger, and Reeva, my lady. I cannot explain why I didn't … I wish – I wish I did all these other things that are put to me."
"So you wanted to go confront them, that's me, Oscar, I want to go confront them?" Nel suggested.
"That's correct, my lady," Pistorius said.
"Stand up for myself?" Nel asked.
"That's correct, my lady."
"If I [Oscar] see them, I'll shoot them?" Nel pushed, smiling encouragingly at the athlete.
"That's not what I said, my lady," Pistorius interjected.
"But isn't that the inference?" Nel pressed. " 'I wanted to go confront these robbers?' "
"That's correct, my lady."
"And you did by firing?"
A pause.
"That's correct, my lady," Pistorius admitted.
"Ah," said Nel.
Watching from the public gallery, Pistorius' sister Aimee furrowed her brow, her lip trembling.
Earlier in the day, when asked about his patchy memory of that evening, Pistorius' face quietly crumpled.
Asked if he was feeling emotional, he retorted, "Yes! I'm very emotional."
"It's a difficult time to remember," he muttered, as the court adjourned for him to gather himself.
"This is the night I lost the person I cared about. I don't know why people don't understand that."
As proceedings began Friday, Nel told the court that Steenkamp's mother June had passed a note to the prosecution, confirming that Pistorius had indeed requested a meeting with the family, prior to the trial, but that they had declined because "they felt they were not ready."
Nel had previously vociferously criticized the athlete for his emotional public apology to the Steenkamps as he began testimony Monday, suggesting that Pistorius had chosen not to consider the feelings of the family, instead staging a selfish public spectacle.
Pistorius' cross-examination will continue on Monday, after which Roux will try to undo the damage wrought by Nel.
The defense is expected to call up to another 15 witnesses before closing its case.
More coverage of the Oscar Pistorius trial on Yahoo Sports:
