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Instant Legal Analysis: Day 1 of Pistorius Cross-Examination

Eric Macramalla, TSN Legal Analyst
4/9/2014 1:26:51 PM
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Gerrie Nel, lawyer for the prosecution, finally got the opportunity he's been waiting for: cross-examining Oscar Pistorius.

And he didn't waste any time getting down to business. In what was a relentless cross-examination, Nel set the stage early:

Nel: "You killed a person. You killed Reeva Steenkamp, that's what you did. You shot and killed her. "Say 'Yes' - say 'I killed Reeva Steenkamp'."

Pistorius: "I have a responsibility to Reeva and myself to tell the truth."

Nel: "You will not hide things from the court."

Pistorius: "I'm human, I have faults, I have sins. I'm a Christian. The Lord came down to this world for people who have sinned."

Nel: "As a Christian you will not lie."

And so the most critical confrontation of this trial began: seasoned litigator Nel versus Olympic double amputee Pistorius.

Here are the key points covered in this first day of cross-examination.

Pistorius: Intent To Kill

Pistorius testified that not only did he not intend to shoot Steenkamp, he didn't intend to shoot anyone. Here's what he said, and as you'll see, he made sure he was clear about it:

Pistorius: "The discharge was accidental. I believed there was someone in the toilet coming out to attack me. I never intended to shoot anyone ... I went to the bathroom and felt in danger. I didn't have much time to think. I just discharged my firearm. I didn't intend to shoot someone. I shot out of fear. I didn't shoot at someone. I didn't intend to kill anyone...I didn't have time to think about what I was doing. I had finger on my trigger. I didn't intend to shoot anyone. I fired before I had a moment to comprehend what was happening."

Nel: "Was the only way out for you to shoot an intruder?"

Pistorius: "I didn't have time to think or not think about shooting an intruder. My life was in danger and I was worried what could happen to Reeva. People had been tied up on the estate before. Before thinking I fired four shots. When I realised the scale of what was happening I stopped firing. It was an accident, the way I discharged the firearm. I didn't intend to shoot."

This is a massively important piece of testimony for Pistorius and a critical component of the trial. Here's why.

Pistorius can still be convicted of murder if it can be shown that he intended to kill - period. It doesn't matter who - just that he intended to kill someone and that the force he used was disproportionately excessive given the circumstances.

Remember, in order to make out the charge of murder against Pistorius, it must be shown that he had the requisite intent to kill and followed through on that intent. If convicted of murder, he would face 15 years in prison. So he wants to avoid a murder conviction and look to settle on a lesser charge of culpable homicide, which means killing someone by accident. If convicted on culpable homicide, he would likely only go to jail for five to 10 years.

So despite firing four shots through a locked bathroom door at 3am, Pistorius repeatedly declared that he "didn't intend to shoot anyone" and the discharge was an "accident". These statements are designed to establish that Pistorius lacked the intent needed to make out a conviction of murder.

It's not enough to say he didn't intend to shoot Steenkamp; he needs to say that he didn't intend to shoot anyone.

Pistorius' testimony shows that he was well prepared by his lawyers. He hit on the key legal points in ordinary English.

However, the issue of plausibility remains. As Nel pointed out, "was the only way out for you to shoot the intruder?". For example, he could have grabbed Steenkamp and fled.

This is the most important element from Day 1 of the cross-examination of Pistorius.

Zombie Stopper

Nel was relentless in his cross-examination. In part, that was designed to try and break Pistorius and push him to admit he intended to kill Steenkamp. One way Nel tried to apply pressure on Pistorius was by presenting the 'Melon Video.' The video was also produced because it helped paint Pistorius as reckless and gun-crazed.

In the video, Pistorius and friends blow up melons with guns and Pistorius is heard saying this: "It's a lot softer than brain but it's like a zombie stopper."

This was followed by Nel's blunt question: Nel: "One can see the effect the ammunition had on a water melon. It exploded. You know the same thing happened to Reeva's head?"

Reconstruction or Reworked Evidence

Nel also focused on inconsistencies in Pistorius statement to police right after the death of Steenkamp. Nel accused Pistorius of "reconstructing" or "reworking" his evidence. For example, in Pistorius' bail application, he said that he went to the balcony to retrieve a fan. However, on the stand today he denied that.

While some of these inconsistencies may not seem important, Nel told Pistorius they were in fact not "insignificant" as they show "you are lying."

Before the trial was adjourned for the day, Nel made a point of referring to today's testimony as "Day 1" of the cross-examination of Pistorius. This suggests that the cross may continue for days.

Indeed, there is more in store for the most critical witness of this trial.

Oscar Pistorius (Photo: The Canadian Press)


(Photo: The Canadian Press)
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