PRETORIA, South Africa – Oscar Pistorius appears to have two legal defense strategies. And both seem to be failing.
It was a heated fourth day of grueling cross-examination in Courtroom GD on Monday, with the Blade Runner breaking down several times as he repeatedly rehashed the minute details of the pre-dawn hours of Valentine's Day last year, when he shot and killed his girlfriend Reeva Steenkamp.
The prosecution says it was pre-meditated murder. The Paralympian remains adamant that he believed Steenkamp to be an intruder.
The athlete says he did not aim his 9mm Taurus at any point – neither at an intruder, nor at Steenkamp – but out of fear fired four shots through a bathroom door from where he says he heard a noise.
"Was it just lucky that your gun was pointed in the direction of the noise?" prosecuting attorney Gerrie Nel asked, his voice tinged with sarcasm.
"How would that be lucky? She lost her life, my lady!" Pistorius replied to the judge, becoming hysterical, his body heaving with sobs.
"No, Mr. Pistorius, you now try to get emotional again," said Nel, unsympathetic. "It's not worth your while."
It was the most damaging day of testimony for the athlete yet.
Isolated on the stand, and barely managing to keep his emotions in check, Pistorius' responses to Nel's non-chronological questioning were confused, at times hesitant, and seemingly ill-advised.
Nel's questioning goes to the heart of the murder-accused's defense, which, under the weight of legal interpretation, appeared to crumble.
"Is it your defense that you fired at the perceived attacker?" asked Nel.
"No. That's not mine …" Pistorius said, his voice trailing off.
"Good," purred Nel, "Then, what is your defense?"
It is a statement the court has heard time and time again.
"My defense is, as I said, my lady, I heard a noise," Pistorius replied. "I didn't have time to interpret it and I fired my firearm out of fear, my lady."
"Then out of fear, by accident?" prompted Nel.
"Because I don't understand your defense. You can't have two. You understand that you can't have two defenses?" Nel asked, openly contemptuous.
The Paralympian's defense has, until this point, been based on the principle of "putative self defense," whereby he could be found guilty of "culpable homicide" – the South African equivalent of manslaughter – if he fired at a perceived intruder because he felt his life was under threat.
But, until now, Pistorius has refused to admit this in court.
"I didn't fire to kill anyone, my lady," he said again Monday. "I didn't have time to think. I heard this noise and I thought it was someone coming out to attack me so I fired my firearm."
"Your defense has now changed, sir, to one of involuntary action," observed Nel. "It's now, 'I don't know why I fired.' "
It is a defense extremely difficult to prove without an existing medical condition, such as epilepsy, legal experts say.
"You see, Mr. Pistorius, you now have to give a lot of answers. And you know why, Mr. Pistorius, it's because you know exactly. You fired at Reeva," Nel pushed, as the Paralympian's face crumpled.
"These other versions of yours cannot work. You fired at her. You did!"
Nel – nicknamed the "bull terrier" for his unrelenting style of questioning – reduced the athlete to tears several times.
Even after a request from the defense to stop repeating the aspects of the killing that continue to trigger raw emotion – causing delays – Nel refused to let up. He maintains that the source of Pistorius' visible emotion is his own confusion around what the state alleges are lies.
An involuntary action?
A defense of "involuntary action" suggests that the gun went off unwittingly, with no intent on the part of the shooter.
It isn't the first time a gun has apparently discharged of its own accord in Pistorius' hands.
He maintains that during a January 2013 incident in an upmarket Johannesburg bistro, his friend Darren Fresco's Glock pistol accidentally fired under a table, without his finger on the trigger. The prosecution pointed out that, with the safety mechanism for that particular model, the gun could not have discharged without Pistorius pressing the trigger.
"A claim to involuntariness is a difficult one," writes law professor James Grant from the University of the Witwatersrand, "because our courts assume that ordinary conduct is voluntary. If you have done something, you need to lay a basis for a claim to have done so involuntarily.
"There appears to be no basis for this claim – at least nothing in the evidence that I have seen so far," he wrote in his analysis of the case to this point.
Pistorius may be opening up a new line of questioning for Nel to grill him with.
The prosecutor has shown the athlete was thinking rationally as he approached the toilet door. In his responses, Pistorius has admitted to rounding the corner in the bathroom with his right arm bent, to prevent any potential attackers from grabbing his gun; and also implied he decided not to fire a warning shot because he "didn't want to scare them and have them react in a more hostile way towards me."
Crucially, he also indicated that he may have been rationally considering the situation as he fired, exerting some control over his trigger finger.
"I remember discharging my firearm as quick as I could," he told the court.
"And stopping, why did you stop?" asked Nel.
"I don't remember," Pistorius said.
"Why did you only fire four times?" Nel pressed, repeating his question. "Why did you stop?"
"I'm not sure, my lady."
"Same here," said Nel. "If your version now is that you just fired because you were scared, why only four, why not empty the magazine?"
"I'm not sure, my lady," faltered Pistorius.
Questioned about whether he considered firing through the window, Pistorius was adamant. "I thought that there was someone in the door, in the toilet, and my firearm was pointed at the toilet."
"Did you ever think of firing into the shower? A warning shot?" Nel pushed.
"My lady, if I fired a shot into the shower, it might have ricocheted and possibly hit me," Pistorius replied.
"Ah," said Nel, pointing out the athlete had thought about it.
The prosecutor says the trained gun enthusiast was in "combat mode" as he approached the bathroom, an assertion that strikes a double whammy on both of Pistorius' defenses: that he was in control, knew what the rules were for firing his weapon, and recklessly disregarded the bullets.
Putative self defense
"What did you shout as you went down the passage?" asked Nel, for the third time Monday.
Pistorius took a deep breath, sitting back in his chair.
"I screamed for them to get the [expletive] out of my house!" he said, his voice rising several pitches. "Get the [expletive] out of my house!"
The athlete broke down, red-faced and shaking, a vein standing out on his forehead.
The court adjourned for him to gather himself.
The principle of "putative self defense" suggests that the shooter fired because he or she felt their life to be in danger.
As Professor Grant points out, "It is consistent with such a defense to say: I intended to kill – although I thought I was doing so lawfully; I intended to kill the person behind the door who I thought was an intruder and that I had to use lethal force. … But if this is your defense, it makes no sense to deny having intended to kill anyone."
If Pistorius were to pursue an argument of "putative self defense" – other than denying his intention to shoot an intruder – he made several other critical admissions on the stand Monday.
The athlete said he shot before he was sure of an attacker. "I could see the door," he said. "I fired before I could see the door moving. As I heard the noise, I fired."
An enthusiast with firearm training, he said he understands the guidelines for firing a gun, but also admitted he never shouted, "I'm armed, I'm going to shoot!" discharging his firearm without warning.
Pistorius' own speculation has landed him in "devastating trouble," as Nel put it.
Asked why Steenkamp had gone to the toilet in the dark, without switching on a light, the athlete said he didn't know. "Maybe she used her mobile phone for light," he said.
"Aha, so you would have seen her," said Nel, arguing that regardless of his position in the room, Pistorius would have noticed the light in his peripheral vision.
"Your version is so improbable that it can't be reasonably possible," Nel told Pistorius as he began his cross-examination Monday.
"Yours is a version tailored to fit the state's case, and, in fact, you are tailoring as you sit there," he said.
Returning to the minute details of the athlete's account, the "bull terrier" prosecutor tried to pick it apart with speculative questions, highlighting improbabilities.
• Steenkamp's injuries suggest she was facing the door when the shots were fired, Nel said. "Why would she stand there? … Looking at the danger?" he asked.
• The pathologist's report suggests Steenkamp ate two hours before her death. Pistorius said he was asleep and would not have known if his girlfriend went downstairs for a midnight snack. Nel pointed out she would have had to disengage the alarm and unlock the door to go downstairs, reactivating everything upon her return.
• There were other lights on in the bedroom – a small red LED on the television, other lights on Pistorius' amplifier – so why did he only attempt to cover a single blue power button? Nel asked. "You're creating time for her to go to the bathroom," he told the athlete.
• The placement of Steenkamp's jeans – on the floor in a heap – appears to be inconsistent with her tendency for neatness, all of her other belongings neatly packed into her overnight bag. Her rubber sandals are also on Pistorius' side of the bed.
• Pistorius admitted that his defense team is in possession of a recording of his screams, which they have suggested sound like those of a woman. "Why was it not played and put to the witnesses?" asked Nel.
"All the screams and shouts …" Nel said, "You screamed at her, and she fled for her life."
Confronted with the inconsistencies and additions to his bail affidavit, made last February, Pistorius got frustrated.
"I didn't think it had to be an exhaustive statement," he said, adding that he had told his legal team the details, but the group had neglected to include them.
Nel raised his eyebrows.
"I was in a jail cell, I was on medication, I was traumatized," Pistorius told the court.
Met in the morning by a cluster of supporters at the courthouse entrance, one clutching a small plastic trophy, others fistfuls of white balloons with "Oscar" scrawled across them in black marker pen, the Blade Runner looked mildly embarrassed, smiling wanly at the crowd.
As he left the courtroom after Nel's grueling interrogation, he signed an autograph. "Thank you for your love and kindness," he wrote on a torn piece of notepaper.
Pistorius is still a celebrity in South Africa, albeit a notorious one.
The athlete returns to the stand Tuesday, for a fifth day of cross-examination by the prosecution.
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