PRETORIA, South Africa – An expert called by Oscar Pistorius' defense team has opened the door for the Paralympian to be sent to a psychiatric institution – but the most damaging part of her testimony could be a Latin phrase dolus eventualis, which could put the Blade Runner in prison for a minimum of 15 years.
Called as a witness by the Paralympian's defense, psychologist Merryll Vorster testified Monday that the star athlete – who shot his girlfriend in the early hours of Valentine's Day morning last year – possessed an intent to murder, under South African law.
"When he armed himself," state prosecutor Gerrie Nel asked the psychologist, "he at least then foresaw the possibility that he might have to shoot, otherwise why would he arm himself and approach the danger? Am I right?"
"Well, he must have," Vorster agreed.
"He must have foreseen the possibility that …" Nel began.
"… he may have to shoot," she finished for him.
"And you know, he then went further and he did shoot," Nel went on.
"We know now that he did shoot, yes," Vorster said.
"So just by arming himself, and approaching the danger, just on that, it already indicates that he acted in dolus eventualis before he got to the door. And that when he fired, he completed the dolus eventualis.
"So you agree with me if I say that he foresaw the possibility that he had to shoot, when he armed himself and approached the danger?" Nel pressed.
"Yes," said Vorster.
Although referencing a dry, legal term, Vorster's agreement could have fairly damning consequences for Pistorius.
Dolus eventualis is a form of intent in South African law where an individual foresees a possibility that a set of events resulting in death can occur as a result of their actions, and yet they recklessly proceed.
It is also considered murder and carries a minimum 15-year prison sentence.
The Paralympian maintains that when he fired his 9mm Taurus four times through a door at his girlfriend Reeva Steenkamp, it was a case of mistaken identity.
"He wanted to shoot an intruder, is that what he said?" Nel asked Vorster.
"That's what he told me, yes," she replied.
"And his deep remorse is that it wasn't an intruder that he shot, but Reeva?" Nel asked.
"Yes," Vorster said.
The prosecution is expected to argue that regardless of whom he intended to harm, Pistorius intended to shoot someone.
"He is certainly remorseful. He feels guilty that he caused Miss Steenkamp’s death," Vorster told the court. "It was a recurrent theme."
Describing his state of mind during their interview, the psychologist said the athlete was devastated, distressed, crying and retching. "In my opinion they [his emotional reactions] were genuine," she said, explaining that his accompanying chalky pallor and profuse sweat would be near impossible to feign.
Leaving the courtroom, an individual close to the case muttered, "Pistorius appears to be sorry he killed the deceased – but would he have been sorry if he killed someone else?"
Back inside the courtroom, when Vorster was asked if Pistorius could tell the difference between right and wrong, she was clear in her response: yes.
But pressed in cross-examination to determine if he was able to act in line with his moral assessments, the bespectacled expert was hesitant.
"It may be that GAD [Generalized Anxiety Disorder] affected his ability to act in accordance with his understanding of right or wrong," she said.
It is a significant concession.
These two questions – can someone tell the difference between right and wrong and can they act in accordance to knowing the difference between right and wrong – are the tests included in Section 78 of South Africa's Criminal Procedures Act that determines someone's "criminal responsibility": Can an individual be held responsible for their actions?
If they cannot, and they pose a threat to the public, then they must be sent to a psychiatric institution.
This is the basis for Monday's bombshell dropped by the prosecution.
AN ANXIETY DISORDER
Vorster described, in great detail, her diagnosis of Pistorius' psychiatric condition: Generalized Anxiety Disorder (GAD).
Not an uncommon condition, individuals may have a genetic predisposition to GAD, she told the court, but it is an "all pervasive" condition, "which affects all aspects of function."
According to the U.S. National Institute of Mental Health, GAD affects about 6.8 million American adults, and about 3.1 percent of American adults in a given year.
Individuals with GAD, Vorster explained, "work hard to control their environment and work hard to alleviate their levels of anxiety," and while Pistorius' strict training regime and diet initially helped, his growing celebrity made things more difficult to manage.
After his double amputation at 11 months old, "perceived by infants as a traumatic assault," Vorster said, Pistorius became the product of a household with a father who was "irresponsible and mostly absent," and a loving, but very anxious mother who abused alcohol.
Pistorius had previously told the court that his mother – who died suddenly when he was 15 years old – used to sleep with a firearm under her pillow. Vorster testified that he also told her his mother used to call the police and others to investigate sounds in the night.
"The children were not soothed by their mother and rather developed anxiety," Vorster read from her report. "They were reared to see the external environment as threatening."
Later in life, as an international athlete training in Italy, Pistorius told Vorster he followed media coverage of crime in South Africa closely and heard stories from his family that made him fearful, so he bought a gun to protect himself.
"The safety measures at his home are out of proportion to that of the general South African population," Vorster told the court, adding that a boating accident in February 2009 made the Paralympian feel even more physically vulnerable.
And they are closely linked, Vorster said. "His physical vulnerability makes him more anxious. His anxiety makes him want to conceal his physical vulnerability."
The athlete was "hyper-vigilant," Vorster said, his sleep disturbed by sounds in the night, and he believed that being a public figure, he was at increased risk of being attacked.
"As one is increasingly anxious, one feels more and more insecure about one's personal safety, even though factually, one's safety may not be threatened," she explained. "So, by having increased levels of anxiety, you perceive your surroundings as being threatening, when maybe they aren't."
Vorsters' assessment speaks directly to Pistorius' legal defense of "putative self defense," whereby he claims to have shot out of the all-consuming fear of a perceived attacker.
In those "fight-or-flight" situations, the psychologist said, the double amputee is more likely to react by fighting, as his physical capacity for flight is limited.
"Some anxious people do act by approaching danger, especially if they can't run away. He's not mobile on his stumps," she said.
But Nel says, by calling this latest expert witness, the murder-accused appears to be changing his strategy.
The law makes provisions for "mental illness or mental defect," which may prevent someone from either being able to make a moral judgment or act on it. Post Traumatic Stress Disorder (PTSD) has been included under this provision in the past.
Nel says, from Vorster's testimony Monday, Pistorius' "mental disorder" falls under the same category. He confirmed that the state would be bringing a court application to have the athlete referred for observation, usually 30 days in a state psychiatric facility.
"Would someone with GAD be a danger to society, if he has access to a gun?” Nel asked Vorster.
“Yes,” she said.
Pistorius remained expressionless, writing notes in the dock, as Nel made his ringing announcement. Later to a reporter, the Paralympian later described the prosecution’s move to have him committed to a facility as a "joke," saying he felt the day "went well" for him.
A LONELY CELEBRITY
"He is a distrustful and guarded person," Vorster said, describing how the star athlete is "increasingly feeling generally isolated and alone," despite his celebrity.
As he grew up, Pistorius gradually developed a poor self image and feelings of inadequacy about his amputations, Vorster explained. "And because he always strove to conceal his disability, he was less able to access the emotional support he required to help with his vulnerability and self-esteem issues."
It was compounded by sexual relationships, the psychologist said, when the amputee would shy away from revealing the extent of his disability. Reading from her report, she said Pistorius had few long-term relationships, but would often invite friends to stay over, because he didn't want to be alone.
It was a report also based on statements from Pistorius' closest friends and family members, and written after her first meeting with Pistorius on May 2, 2014. Nel pointed out her interviews with the athlete only took place after the murder-accused's trial testimony, questioning if his anxiety may have been derived from the contemplation of his fate rather than an actual condition.
The defense said the prosecution's request to refer Pistorius for psychiatric observation completely took them by surprise, and that they will oppose the application.
If the judge grants Nel's request, the trial will be halted until the observation period is over and results are presented to the court. Pistorius would also likely be taken into immediate custody, says Llewellyn Curlewis, head of South Africa's Law Society, as he would be regarded as "unfit to stay on street pending evaluation."
Given the several-months-long waiting lists at the nearest public psychiatric hospitals, it could be weeks before any further court dates become clear; although legal experts say that due to the high-profile nature of the case, it is likely the request for the celebrity athlete to be assessed would be fast-tracked.
If Pistorius is found to have a mental illness that affected his "criminal responsibility," then he cannot be convicted, says Llewellyn Curlewis, head of South Africa's Law Society.
"However, the athlete would have to be institutionalized until as such that a panel of psychologists decides in the future that he is now of sound and sober mind," he told Yahoo Sports, at which point Pistorius would be sent back to court procedurally to be released.
It could be a briefer custodial fate than if found guilty of murder, which carries a minimum 15-year sentence.
“I do not think it was a wise move to call [Vorster] at this stage of proceedings," Curlewis said. "Roux just opened her up for cross examination. They should have made it clear for what purpose they were going to call her. This kind of evidence usually only becomes relevant as mitigating circumstances during sentencing."
Despite assertions that they would wrap their evidence by Tuesday, the defense is now unlikely to finish calling their remaining witnesses before the end of the week, given Nel's thorough and lengthy cross-examinations.
Court proceedings are scheduled to continue until Friday, May 16.
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