PRETORIA, South Africa – The prosecution in Oscar Pistorius' murder trial demanded Tuesday that the Paralympian spend 30 days being evaluated by psychiatric experts in a state-run facility.
Judge Thokozile Masipa is due to rule Wednesday morning whether the star athlete – who shot and killed his girlfriend Reeva Steenkamp in the pre-dawn hours of Valentine's Day last year – will be referred for psychiatric observation.
If she decides the court must have the opinion of a panel of experts on Pistorius' mental state, then trial proceedings will grind to a halt while the former Olympic star spends a month in Weskoppies Psychiatric Hospital, on the outskirts of Pretoria.
Prosecutor Gerrie Nel told the court that psychologist Merryll Vorster, a defense witness, had made it clear Pistorius is "a danger to society and himself, and that he should not be allowed to possess a firearm."
Arguing at length that Vorster's diagnosis of generalized anxiety disorder (GAD) "played a significant role" in how Pistorius behaved, Nel insists the court needs a second opinion.
In South African law, two tests apply for someone to have "criminal responsibility" for their actions: (1) Can they tell the difference between right and wrong? And, (2) can they act in accordance with their understanding of right and wrong? If the answer to either is "no," they can't be convicted and would be sent to a psychiatric facility indefinitely until a panel of experts deemed them to be of "sound and sober mind."
Vorster stated several times on the stand that generalized anxiety disorder may have affected Pistorius' ability to act in accordance with his appreciation of morality, giving the prosecution the basis for their application.
Does it change things?
"I wouldn't expect [Pistorius] to remember absolutely, with crystal clarity, what happened at the time, if he had GAD and a trigger of a fear of an intruder," Vorster told the court.
She said the athlete had told her he fired at the noise he heard behind the door – a critical detail that may influence the judge's deliberations about his intent when he shot. But in his testimony, Pistorius vehemently denied it.
"In a fear situation, I wouldn't expect him to remember each and every detail," Vorster said.
But Nel persisted.
"There could be another explanation, he could just be lying," he told her.
"He could just be lying too. It's another explanation," she admitted.
The prosecution argued that if Pistorius does have a psychological condition, its wants an independent panel of experts to gauge whether it existed at the time of the shooting, if it played a role and to what extent.
It is not a simple decision for the court.
There is no evidence Pistorius has any delusions or paranoia, and in South Africa's Criminal Procedures Act, there is no definition of "mental illness or defect", which would require a psychiatric evaluation. It is now up to Masipa to decide if a "mental disorder" would fit into that category.
Previous case law, cited by Nel, suggests a "lay court" needs guidance from expert psychiatric evidence to diagnose anything of the sort.
Vorster says Pistorius has been encouraged by his family from a young age to "act normal," suppressing his disability and his needs for emotional support, which exacerbated his disorder.
Although she insists his GAD doesn't make Pistorius unfit for trial, she says he could still pose a danger.
The defense witness said her diagnosis of GAD was not one that she would associate with violent behavior or threat, but that the addition of a firearm "makes that person at risk of being involved in violent activities."
"People suffering from generalized anxiety disorders are not dangerous as such, your ladyship," Vorster said, "People with GAD probably shouldn't have firearms. That creates the element of the dangerousness.
"And it is so, that unfortunately people who are anxious about their personal security, are the very ones who are more likely to want to purchase a firearm," she said.
Preoccupation with security
Vorster says Pistorius' condition and heightened anxiety means he had installed a host of security measures at the home where he shot Steenkamp. "In my opinion, more than the average South African," she said.
In addition to the estate's perimeter security, which included 24-hour patrolling security guards, Pistorius had dogs, security beams outside his house. and an alarm system. He locked himself in his bedroom at night, as well. Nel pointed out in cross-examination that these measures are not uncommon in South African homes.
Vorster also said that in their interview, Pistorius told her of his plans to move to the nearby city of Johannesburg.
"He informed me he intended to move because he no longer felt safe," she said.
Several other witnesses, along with Pistorius himself, had previously stated under oath that the Paralympian had spoken of wanting to relocate to be closer to Steenkamp. A neighbor even said he referred to the model as "his fiancée."
The state is also questioning the defense's decision to raise the athlete's psychiatric disorder at such a late stage, insinuating it is part of a "fallback" strategy.
The prosecution says it's a "patent fact" that Vorster only became involved with the defense's case on May 2 – less than two weeks ago – after Pistorius and two experts had already testified.
Nel pointed out to the court that there had been no suggestion of "general anxiety" when three of his friends and his former girlfriend, Samantha Taylor, testified.
Bristling at suggestions from Nel that Vorster diagnosed an anxiety disorder partly derived from Pistorius' stress after testifying, defense attorney Barry Roux insisted that if Vorster had consulted with Pistorius before or after he took the stand, it would have made no difference; he was still murder-accused and anxious during his trial. She agreed.
Just what defense is he using?
But the prosecution's allegations in their argument for psychiatric referral go beyond insinuations about the defense's witness order.
Nel has pointed out several times that Pistorius appears to be attempting to employ several legal defenses, or has switched from one to another.
Under South African law, a murder-accused can only have one legal defense.
The Paralympian's bail affidavit suggests a strategy of "putative self-defense" in which an individual may believe his or her life to be in danger – even if that isn't the case in reality.
But on the stand, Pistorius refused to admit that he fired shots at a perceived attacker, insisting that the gun went off without any intent, suggesting a legal defense of "automatism."
The state pointed out that Vorster's testimony "affords the accused with another version," questioning his mental capacity, which would require psychiatric evaluation.
In a vociferous, emotional opposition to the application, Roux insisted the defense doesn't intend Pistorius' diagnosis of GAD to be his legal defense, but that it simply wanted to introduce "relevant issues" to the court before deliberations.
"I would also be as emotional [as Roux] if I called a witness and that witness left open the door for the referral of my client," Nel retorted sarcastically.
Even if Pistorius does not intend to use GAD as a form of legal defense, Vorster's testimony is of such a nature that legal experts say it would be relevant at the sentencing stage as a form of "diminished responsibility."
The state is arguing that for the athlete's "mental disorder" to be regarded as significant at all, it must be independently evaluated, which would also prevent it from being used as the basis to appeal a verdict.
Roux insists that the simple allegation of a psychiatric problem doesn't mean it must be referred.
Dismissing the prosecution's application as "just a ruse to get a second opinion," Roux described it as "manifestly absurd."
But the state's demand for a psychiatric referral may have more strategic implications.
Opposing the application means Pistorius now can't appeal his verdict on the basis of his mental state, nor use it as a significant mitigating factor during his sentencing. If his GAD should be considered as such a serious factor that it influenced his actions when he shot Steenkamp, the athlete should be referred for observation. If not, then the state will argue for it to be disregarded.
The prosecution says it's "mindful of the practical implications" of its request and understands it "may lead to a significant delay in the matter."
The trial – initially set down for three weeks of court time in March – has already been significantly extended, and Masipa has repeatedly shown her eagerness to finalize the case.
If she grants the order, Pistorius must wait for a hospital bed, which legal experts estimate will take a week or so, with the request likely fast-tracked ahead of the months-long waiting lists at most of South Africa's psychiatric facilities. Then, the athlete would spend 30 days under observation, with court reconvening to hear the results of those assessments.
At that stage, depending on the severity of his "mental disorder" as gauged by a panel of experts, the trial will either proceed, or Pistorius may be remanded to a psychiatric hospital indefinitely, until psychologists deem it safe to release him.
Even if the application for referral is refused, the defense is now unlikely to finish calling its remaining witnesses before the end of the week, despite its initial assertions it would conclude its evidence by Tuesday.
Roux has already said the defense plans to call another witness to testify about the double-amputee's reaction to "fight or flight" situations of fear and his vulnerability as a result of his disability, suggesting that the state's application was "premature."
Court proceedings are scheduled to continue until Friday.