Oscar Pistorius murder trial: the unanswered questions

Debora Patta writes:

Prior to the break Pistorius was in the witness stand for seven days – much of that was spent under a gruelling cross-examination led by Chief Prosecutor Gerrie Nel. Pistorius retched and sobbed his way through his testimony. But he also made a series of damaging mistakes – contradicting his own evidence and forgetting crucial pieces of information whilst remembering in perfect detail irrelevant points.

‘Belligerent, petulant or pitiful’

He argued with Mr Nel instead of answering questions, blamed his defence team when things didn’t go his way, refused to take responsibility for anything including firing a gun in a crowded restaurant (he said the gun was in his hand but he did not pull the trigger). And his performance under pressure didn’t help his case – when he wasn’t breaking down in uncontrolled sobs, he was either belligerent, petulant or pitiful. Pistorius, his legal team say, had to testify in his own defence. Other than his girlfriend Reeva Steenkamp, who obviously cannot speak for herself, he is the only person who knows what happened on the night he shot her.

South African Sunday newspaper City Press asked six senior criminal defence attorneys to rate Pistorius’s performance in the witness box out of ten. They gave him an average rating of 2.3 with the highest score being 4 and the lowest a damning -1. Attorney Ike Motloung said: “At the end of the day he has no version, his versions were mutually destructive.”

Read more: Most dramatic moments of the trial so far

So it’s clear the defence team has some serious damage control to do over the next two weeks. It has a dozen or more witnesses that it still intends calling and they have to counter strong ballistic evidence, neighbours who described hearing the blood-curdling screams of a terrified woman and give credence to Pistorius’s version that he mistook Steenkamp for an intruder.

‘Mental state’

Included in the list of defence witnesses is the head of security at Pistorius’s estate, a neighbour who lives closest to Pistorius and will testify he heard the athlete screaming and not Steenkamp and a ballistics expert who will counter the State’s evidence that Pistorius shot his girlfriend four times and that there was a pause between the first and second shots allowing time for Steenkamp to scream.

It’s also likely the defence will call a psychologist to testify about Pistorius’s mental state (which he claims was one of extreme fear) at the time of the shooting. The defence is hoping that its experts will provide enough doubt to acquit their client. Ultimately Pistorius’s fate is in the hands of Judge Thokozile Masipa and her two assessors as South Africa does not have a jury system.

These are some of the questions the judge will have to weigh up when deciding if Pistorius is guilty of deliberately murdering his girlfriend in the early hours of Valentine’s Day last year.

1. Did Pistorius make up a version of events and tailor his evidence accordingly?

Repeatedly during cross-examination Prosecutor Nel accused Pistorius of lying and tailoring his evidence. Mr Nel said Pistorius kept on making mistakes because he was trying to remember a version of events that simply wasn’t true. Some examples of this include the fact that during his bail application he said he woke up and went onto his balcony to bring in a fan, now he says he just went to the edge of the door to the balcony and not outside.

He made no mention of Steenkamp being awake and speaking to him during his bail hearing before he went to retrieve the fan, now he says she asked him “can’t you sleep, Baba?” And during his own testimony he said he said he whispered to Steenkamp to get down and call the police.

But soon after stating this he then denied saying it and said he spoke in a “low tone.” Are these the actions of a man who is lying under oath because he is making up something that never happened as Mr Nel asserts or are they the legitimate mistakes of a man who is under extreme emotional duress?

2. Whom did neighbours hear screaming?

Five neighbours told the court they were woken in the early hours of Valentine’s morning last year to the sound of a woman’s terrified screams followed by gunshots. The defence asserts that it was Pistorius that neighbours heard screaming like a girl after he realised that it was Steenkamp he had killed and not a burglar. Pistorius made much of this under cross-examination. He said he screamed at Steenkamp to call the police, and at the burglars he believed were breaking into his home.

When Mr Nel asked him to say exactly what he shouted at the intruders, Pistorius put his head in his hands and there was a long pause then in a voice quivering with emotion he told the court he screamed “Get the f***k out of my house.” To which Mr Nel retorted that Pistorius did indeed shout those words but at Steenkamp not at a burglar after they had an argument.

3. Exactly how did Reeva Steenkamp die behind that locked toilet door?

State Ballistics expert Captain Chris Mangena told the court that Steenkamp was directly facing the toilet door when Pistorius fired the first shot (as if she was talking or arguing with him the prosecution will maintain). The first bullet shattered her in the hip and she fell partially. There was a pause between the second bullet during which Pistorius changed position. Then Mr Mangena says the second bullet ricocheted and missed causing abrasions on her back. The third and fourth bullets shattered her arm and skull and during this her hands were in a defensive position.

The defence has already led evidence from forensic geologist Roger Dixon on the bullet sequence. Mr Dixon told the court he had no ballistic experience and yet he felt bold enough to provide his version of events. He disputes the state’s case saying Steenkamp right arm was leaning towards the door as if she was coming out when the first bullet hit her hip. The rest of the bullets hit her as she was falling to the ground in quick succession leaving no gap for her to scream. It’s expected the state will bring in a proper ballistics expert to talk to this issue but Judge Masipa will have to determine which version is more likely.

4. How serious are allegations that police contaminated the crime scene?

We know from police evidence that on one occasion forensic experts picked up the gun Pistorius used to kill Steenkamp without hand gloves, that Pistorius’s watches were stolen from the crime scene and that the integrity of the chain of evidence was not always properly preserved. How damaging is this for the State’s case? Judge Ms Masipa will have to decide if some of the crime scene evidence has to be discarded because of contamination. But Pistorius testified that it was far more serious – when he was unable to explain discrepancies in his version of events he blamed it on the fact that police tampered with the crime scene.

Mr Nel was having none of it saying that essentially Pistorius was trying to suggest that police deliberately opened the curtains wider, moved the fans, threw the duvet on the floor and a pair of jeans on top of it. The prosecution used photos of the duvet with the jeans on top of it to suggest that Steenkamp and Pistorius were fighting and that she was trying to get dressed and leave the house. Mr Nel has told the court that Pistorius and Steenkamp had an argument and she fled screaming to the toilet and locked herself in there.

5. Did Pistorius and Steenkamp have a troubled relationship?

The prosecution provided evidence of mobile phone communications between the couple which showed Pistorius has jealous, controlling and possessive. At one point Steenkamp said she feared him. The defence poured cold water on this saying that the majority of messages were those of a normal, loving couple and they even provided video footage filmed on security cameras at a local grocery store showing the couple flirting and kissing just ten days before the shooting.

A Valentine’s Day card was also handed over to the court. In it Steenkamp declared her love for the athlete but never got to give it to him as that was the day on which he killed her. The judge must determine if there was an argument between the couple in the early hours of Valentine’s Day that led to Pistorius shooting his girlfriend in a murderous fit of rage.

6. Is Pistorius acting?

Much has been made of Pistorius’s emotional state. He has at turns sobbed, howled, vomited and broken down uncontrollably during this trial. What will Judge Masipa make of this – is this a man in genuine torment who is deeply remorseful and mortified that he shot his girlfriend by accident or is he crying for himself and the fact that his life as a star athlete is over and he could be facing a life behind bars.

The defence has vehemently denied allegations that Pistorius was taking acting lessons and certainly nobody sitting in that courtroom could not see that his almost unearthly howls were genuine. He would certainly have to be one of the finest actors of this generation to pull that off. But it is what is behind that emotion that really speaks to Pistorius’s state of mind.

7. Is Pistorius’s version credible?

Mr Nel repeatedly stated that it was incomprehensible that Steenkamp did not answer back or talk to Pistorius during the period he believed a burglar was breaking into his home. The defence also has yet to explain state pathologist Gert Saayman’s assertion that Steenkamp ate two hours before her death. They have simply said the science of gastric emptying is at best inaccurate. Even if there was an intruder was it reasonable to shoot four times through the toilet door knowing that in all likelihood this could kill whoever was behind the door?

Initially Pistorius said he fired the four shots believing it was a burglar, but on the witness box he then stated that he fired “without thinking” and by accident. Judge Masipa must decide if he planned to kill the person behind the door. Even if he didn’t know it was Steenkamp as he maintains he could still be found guilty of intentional murder.

@Debora_Patta is a South African broadcast journalist and TV producer. She reports regularly for Channel 4 News. Follow live updates from the Oscar Pistorius murder trial here.