Published on 11 Mar 2014

Pistorius trial: TV pantomime where the judge makes up the rules

Again, the trial of Oscar Pistorius highlights many aspects of wider South African society in ways which are of significance far beyond the courtroom and who did what to whom and why.

Not least the issue of televising courts, which is slowly but surely permeating our legal system, too. At least one major legal case has already been in front of cameras in Scotland, for instance, as a (no pun intended) trial. It is creeping up on us.

I remain firmly opposed to this, and it seems to me that the current unfolding mess in South Africa serves only to underline some of the reasons why.

You either do it or you don’t. Yesterday’s proceedings were held up for several hours while lawyers argued to the judge from positions they all agreed upon: that the pathologist’s evidence should not be heard live because it is distressing for the public and relatives of Reeva Steenkamp.

I have never heard of this happening in any court case I have ever covered, here or abroad. The judge appeared to accept the pathologist’s medical arguments about duty of care to the patient, dignity of the deceased and “do no wrong” – whatever that may mean…

Olympic and Paralympic track star Oscar Pistorius sits in the dock at the North Gauteng High Court in Pretoria

All well and good in the medical world. But should such arguments gain any purchase at all in a murder trial? Incredibly, both prosecution, defence and even the brief representing the media accepted this outlandish argument, that medical rules override legal needs in a major murder trial. That evidence in a major murder trial must be censored because it might just be upsetting to someone, somewhere, somehow.

Oh, please.

And to see the South African media willingly going along with all this via their lawyer was truly something to behold.

The judge not only  entertained the argument but accepted it.

The media’s lawyer was rushed to court to argue from a supine position of utter capitulation that the media should somehow get together and produce a summary vt of pathological evidence at the end of the day to be decided upon by – of all people – lawyers for prosecution and defence!

Incredible.

Since when have they been or should ever be co-opted as public censors on ground of taste? Do they not have ever such a slight declaration of interest?

This is an utter absurdity and has no place in any competent court of law, nor ever should it. I have sat through countless inquests, murder trials and the like where medical experts patiently and dispassionately lay out how bullets and blades and other objects pass through key human organs of the deceased, thus rendering them so.

It’s normal. Deal with it.

But this court could not deal with it. South Africa, clearly, cannot deal with it. And the unanimity of all lawyers – most of all, perhaps, the media’s own lawyer – says much about the peculiar lack of self-confidence pervading the conduct of this trial.

Going forward, if this country really is hell-bent on TV trials, we trust by precedent that a poor – and, yes, black – man who has been done to death, will also not have those details transmitted live in any future televised court case, lest persons unknown become upset.

And this is not the only floundering here. The judge seems completely at sea with the Twitter phenomenon. Yesterday tweets were banned completely on the pathologist’s evidence. So all the world got to hear about was Mr Pistorius’s very loud and very public vomiting.

Vomiting over what? We could scarcely tell.

The judge then changed the order so reporters could summarily tweet the evidence after the event.

Today – another day and another ruling – reporters can now tweet the evidence as it is given. The judge, quite literally, is making up the rules as she goes along. That’s not unusual and it happens here sometimes as judges get to grips with social media. But it’s been particularly flagrant and cackhanded in Pretoria this week.

As for the televised nature of the trial, it remains one of the most untelevised televised trials I have ever not seen, witness after witness preferring to give evidence behind screens.

As I say, you either televise or you don’t and much of what is happening in this pantomime only strengthens my own view that cameras should not be admitted to courts at all.

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6 reader comments

  1. Philip Edwards says:

    Alex,

    I am against televising trials live, either in highlights or in full.

    Basically it turns the process into a sensationalised media circus. The OJ Simpson trial was the absolute pits, a media event, not a demonstration of democratic justice decided by a jury of citizen peers.

    I have only served once on a jury. It was a case that lasted seven days and in the end was decided on a majority verdict. It was perhaps the most sobering experience of my life knowing that individual freedoms depended on what was said and decided in the jury room. The defendants were found guilty, a verdict I agreed with and would not change. But it took a few days of gruelling discussion back and forth since none of us wanted to send potentially innocent men to jail. There was nothing “glamorous” about it and nothing sensational in it, though the local press tried to make it so.

    Justice is best served when it is looked for with full honesty, which is why the adversarial system is unsuited for some trials. Live TV broadcasts hinder the process by turning it into a media event, not a search for the truth. TV trials are just another branch of infotainment, which is yet another reason journalism is among the least liked (and I am being kind) of occupations.

    At the moment, South Africa seems to have the worst of all worlds. A real tragedy.

  2. Frances Gray says:

    Not having been to SA, (but having relatives who lived and were born there), I feel I cannot make any comment on Alex’s view of a disintegrating society in South Africa, as he sees it. One thing I can and will comment on, however, is the creeping intrusion of the media into the courtroom. In recent years, I have become more and more alarmed at reports of trials in the media, where so much information is given in the public domain, in what I was always taught, should be circumstances “sub judice”. In our system of trial by jury, it would indeed be amazing that jurors were not influenced by what they read, hear and see in the media. It doesn’t matter how many times a judge tells them to disregard certain things… too late, “the cat is already out of the bag”/ “no smoke without fire” etc etc, no matter how hard they try to disregard it.! The media are always telling us that what they do is “in the public interest”. I think that the overwhelming public interest is in justice and a fair trail and, as long as these intrusions happen, there is often doubt that these two outcomes will occur also. I have experience and knowledge of the French magisterial system and I used to think it was not as good as ours. However, after two different friends telling me on different occasions (with no references and no substantive details), how media coverage had affected things – and also having to explain the simplest of concepts/ facts to their fellow jurors, I’m not so sure. It sounds as though I would not be being tried by a jury of my “peers”… scary! I did say that, if there was any further meddling in the judiciary by the executive, I’d be off… watch this space! Where to?? hmmm… seems the media are taking over everywhere. ” All the news we never use,” as a loved one once said!

  3. Julia Sykes says:

    Hi Alex – did you wonder whether the pathologist’s argument was in strange way sexist? The fact that he would be uncomfortable describing, in public, the bullets disfiguring a “beautiful” model. I can’t help wondering if the same argument would have been made if the murder victim had been a man (and what of a black man?). I’d be interested to know if you think this has any credence? If this might be the case, it could say something about how we view women. They have to be seen as physically perfect, even in death.

    I agree with you about cameras in court. – I’m not sure what any of us gain by allowing them. Surely it is mostly prurience. I catch myself “enjoying” the footage, and wondering why.

    1. Mike Power says:

      The details WERE described in public. In court. They just weren’t televised for a mostly prurient audience. You seem conflicted. You oppose televising cases but you want to see all the grisly details nevertheless, even though you admit it is motivated mostly by prurience. You seem rather confused.

  4. william says:

    I’ve always known the law is a joke. You only need to be involved in a couple of petty cases to see how arbitrary and biased it is. And the media are like a pack of rats who couldn’t care less about the truth.

  5. Mike Power says:

    Get it right. The evidence WAS presented in open court it just wasn’t broadcast to the general public. As you oppose the broadcasting of trials in any case I find it difficult to understand your complaint about the particularly gruesome forensic evidence not being broadcast. You have sat through trials and listened to disturbing evidence. Just like everyone in the court at this trial! The judge decided that there was no public interest to be served by allowing this graphic evidence, including images, to be broadcast to the world. Your criticism of the judge seem patronising at the the very least.

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