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Legal Look: The Pistorius defence takes centre stage

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Eric Macramalla, TSN Legal Analyst
4/7/2014 9:04:20 AM
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Two weeks ago and 21 witnesses later, the prosecution rested its case against Oscar Pistorius. Now with the trial resuming, Pistorius' lawyers get their chance to call witnesses and present their side of the story.

Led by seasoned criminal defence lawyer Barry Roux, the Pistorius defence team will go on the offensive as its tries to convince the Court that Pistorius acted reasonably when he fired four fatal shots through a bathroom door killing Reeva Steenkamp. Pistorius has stated he believed Steenkamp was an intruder when he killed her.

The prosecution is arguing that it was no accident: Pistorius intended to kill Steenkamp. So the defence team will look to discredit the prosecution's evidence. Here are some of the things that will be the focus of the Pistorius defence.

The Couple: Were They Arguing That Night?

Pistorius alleges that the room was pitch dark that night. As a result, he had no way of knowing that while he was retrieving two fans from the balcony, Steenkamp had left the bed to go to the bathroom.

This is a key component of Pistorius' defence and for that reason the prosecution vigorously sought to discredit it at the outset of the trial. They called a number of witnesses, including Michelle Burger, Charl Johnson, Dr. Johan Stipp and Estelle van der Merwe, who testified that the lights were on and they heard arguing and screaming. Stipp recounted that he heard female screams that sounded like a woman "scared out of her mind." Burger described female screams as "petrifying" and added this:

"I was sitting in bed and I heard her screams," Burger testified. "She screamed terribly and she yelled for help. I heard the screams again. It was worse. It was more intense. Just after her screams, I heard four shots. Four gun-shots... You could hear it was blood curdling screams. You can't translate it into words. The anxiousness in her voice, and fear. It leaves you cold. She screamed terribly and she yelled for help".

The defence team will call other neighbours who will say that they did not hear screams that night or the couple arguing.

The Couple: Did The Go To Bed At 10pm?

According to Pistorius, the couple was in bed by 10pm. However, pathologist Professor Gert Saayman testified that food found in Steenkamp's stomach suggests she ate within two hours of her death shortly after 3am.

The defence has already sought to discredit this testimony when they called pathologist Professor Jan Botha as the first witness. He testified that it was difficult to determine with any certainty when Steenkamp ate that night.

Of course, the arguing and screaming would also undermine Pistorius' version of an early bedtime.

The Shooting

According to Ballistics Expert Captain Christian Mangena, Steenkamp was facing the door when she was shot (rather than with her side facing the door). The first shot hit her in the right hip. The shot broke her hip and threw her back onto a magazine holder. She then assumed a defensive position by crossing her arms over her head. The second shot missed but broke into fragments and bruised her back. The third shot hit her in the right arm, which in the opinion of the expert, supports the conclusion she was shielding herself from fire. The fourth shot hit her in the head killing her almost instantly.

The prosecution would argue that this evidence establishes that Steenkamp was in the bathroom hiding from Pistorius when she was shot. If she had simply gone to the bathroom, it would have been more likely that she would not have been facing the door as she was.

Mangena also testified that there was likely a pause between the first and second shot. This is important because it would explain the petrified screams of Steenkamp heard by neighbours. When it was put to Mangena by Roux that the four shots could have been fired in rapid succession with no time for screams, he responded that it was unlikely given the location of Steenkamp's wounds. Mangena reasoned that if the four shots were fired in rapid succession, her first two wounds would have been in similar locations. They were not: one was in the hip and the other in the arm.

The defence team will call its own ballistic experts to tell a different story. The goal will be to undermine the prosecution's position that Steenkamp was hiding in the bathroom from an enraged Pistorius.

Did Pistorius Sleep On The Left Side Of The Bed?

Pistorius told police he slept on the left side of the bed that night because of a bad shoulder. According to ex-girlfriend Samantha Taylor, Pistorius typically slept on the right side of the bed. As well, Steenkamp's overnight bag and shoes were neatly placed on the left side of the bed raising questions as to who slept where.

Why is this important? Pistorius' gun holster was on the left side of the bed. If Steenkamp had been sleeping on the left side of the bed, then it would have been more likely he would have noticed she was not in the bed when he retrieved his gun.

Pistorius Was A Volatile, Jealous Man With An Affinity For Guns

The prosecution has painted a picture of Pistorius as a volatile and jealous man who loved guns and was trigger happy.

As well, in response to Pistorius accusing Steenkamp of flirting with another man, she sent him the following text two weeks before she was killed: "I'm scared of you sometimes and how you snap at me and how you will react to me".

As well, Taylor testified that after being pulled over for speeding, Pistorius recklessly fired his gun through the sunroof. In addition, both Kevin Lerena and Adam Fresco testified that Pistorius fired a gun in a crowded restaurant hitting Lerena in the foot. Pistorius then asked Darren Fresco to take the blame.

The defence team will argue that Pistorius is not gun-crazed. Rather, as a double amputee in a violent South African culture with a high crime rate, he feels more vulnerable and his reaction to the sounds in the bathroom that night were completely reasonably.

The defence will also look to focus on a botched police investigation complete with contaminated evidence.

Overall, there are a number of improbabilities with Pistorius' story and the defence team has no choice but to work hard to discredit the prosecution's case. However, the hurdles Pistorius is facing are significant. Perhaps each piece of evidence against Pistorius when viewed discreetly and in isolation is insufficient to result in a conviction. However, when viewed in their totality they do conspire to tell a story of a domestic dispute turned tragic. As a result, it would not be a surprise to see Pistorius convicted of murder and sentenced to 15 years in jail.

Oscar Pistorius (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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