Skip to main content

Opinion: Winners and losers in the Pistorius trial so far

By Kelly Phelps, legal analyst, Special to CNN
updated 4:15 AM EDT, Fri March 28, 2014
STORY HIGHLIGHTS
  • Oscar Pistorius is on trial for the murder of his girlfriend, model Reeva Steenkamp
  • Olympic and Paralympic runner Pistorius shot and killed her at his home in February 2013
  • Defense in his trial is due to get under way on Friday; Pistorius may give evidence
  • Lawyers for the "Blade Runner" claim he shot Steenkamp by mistake, believing she was a burglar

Editor's note: Kelly Phelps is a senior lecturer in the Public Law Department at the University of Cape Town, and a former assistant editor of the South African Journal of Criminal Justice.

(CNN) -- Four weeks into South Africa's trial of the century, and the state has rested its case. On Friday the defense was due to begin arguing its case, possibly beginning with Pistorius himself, but this has since been delayed due to the illness of one of the assessors. The time is ripe to evaluate the evidence we have heard so far; so, how successful has the state been in establishing their claim that Pistorius intentionally murdered Reeva Steenkamp?

"Ear-witness" testimony

Kelly Phelps
Kelly Phelps

The state opened its case with a number of Pistorius' neighbors all claiming to have heard the terrified screams and cries of a woman on the night in question, the suggestion being that Pistorius must have known it was Steenkamp he was shooting behind the locked door to the toilet, as he too would have heard her screaming. The defense countered this in cross-examination with the much-publicized contention that Pistorius sounds like a woman when he screams.

Though the image of Pistorius screaming like a woman has been met with public skepticism, the defense has managed to lay some foundation to the claim. First, a number of state witnesses have confirmed that Pistorius was in an hysterical state when they arrived on the scene. Second, the state's own witness, neighbor Estelle Van Der Merwe, acknowledged in her testimony that she had heard a distressed woman, asked her husband to go and see who it was, and that when he came back and said it was Pistorius she replied that she had thought it was a woman. So perhaps it was not such an absurd claim after all?

The ear-witnesses also claimed to have heard two sets of gunshots, broken by the alleged woman's screaming. If there had indeed been a significant pause between the first shots fired and the second set of shots fired this would be damning for Pistorius. Is the only reasonable inference that he hunted Steenkamp down and, after initially shooting and incapacitating her, he finished the job with the final shots?

However, none of the neighbors concur on how many shots they heard. For example, Johann Stipp recalls hearing two sets of three shots, Michelle Burger recalls hearing one shot followed by three shots in quick succession, and her husband Charl Johnson couldn't recall exactly how many shots he heard. We know, as a matter of fact, there were only four shots fired - this is uncontested. We also know that Pistorius used a cricket bat to bash down the toilet door to get to Reeva. The defense has persuasively relied on telephone records from the night in question which track the timing of the various neighbors' calls to security in order to suggest that the neighbors are mistaken as to what they heard.

Pistorius expected to testify Friday
Prosecution rests in Pistorius trial
Steenkamp texts to Pistorius read in court
Pistorius physically sick in court

According to the defense, the first set of shots heard was indeed the last of the bullets fired in quick succession, which woke the various neighbors. Pistorius's lawyer Barry Roux argues that the second set of what the ear witnesses called, 'shots' was in fact the sound of the cricket bat striking the locked bathroom door. The defense claims the screaming that punctuated the two sets of loud noises was Pistorius hysterically screaming for help when he realized his mistake. Having cast doubt on the accuracy of the neighbors' recollection in cross-examination, the defense has now laid the foundation to further establish their claims when their own case proceeds.

Security logs:

Pieter Baba, another early witness for the State, was the security shift supervisor at Pistorius' residential complex. After receiving reports of gunfire from various neighbors on the night in question, he called Pistorius to check if he was alright. When he got hold of Pistorius, he claims he could hear Pistorius crying, and that he was therefore perplexed when Pistorius said to him "Security, everything is fine."

He went to investigate further and, upon arriving at Pistorius' home, was greeted by the shocking image of Pistorius carrying Steenkamp's bloodied body down the stairs. Johan Stander - the manager of Pistorius' complex - was already in his home assisting him. If Pistorius had just shot Steenkamp by mistake, believing she was an intruder, why would he tell security "everything is fine"?

As with the "ear-witnesses," the defense seemed to provide a plausible explanation and backed it up with evidence. First, they produced an earlier statement Baba gave to the police in the immediate aftermath of the killing in which he recounted that Pistorius said to him on the phone "I am ok." In other words, Pistorius was not suggesting to security that everything was fine, but rather that he was not injured.

Pistorius physically sick in court
Defense looks for forensic mistakes
Pistorius: Cricket bat shown in court
Friend: Pistorius shot gun in restaurant

Secondly, phone records showed conclusively that in fact Pistorius had tried to contact security first, before Baba phoned him.

He was not successful at reaching security but he had called Mr. Stander -- the complex manager -- who answered and had already come to his assistance by the time security reached him on the phone.

Even if the court believes Pistorius said "everything is fine" and not "I am ok," this chain of events suggests a very different interpretation to that suggested by the state. Far from intentionally trying to throw security off the scent, he had actually reached out to them for help, and when they did get hold of him, he was merely indicating that he had already received help. Hardly watertight evidence for the state then. If Pistorius was really trying to lie to security, why would he have called them first when seeking help?

Physical evidence:

Considering the state themselves described their case as circumstantial in opening statements, it is unsurprising that the physical evidence presented has been inconclusive in proving their version of events - you don't describe an open and shut case as "circumstantial."

The pathologist, Gert Saayman, did however point to one inconsistency with Pistorius' story. At his bail hearing, Pistorius claimed he and Steenkamp went to bed at about 10pm on the night in question. However, Saayman estimated by the contents of her stomach at the post-mortem that she had eaten two hours before she died. He based his estimate on medical knowledge concerning gastric emptying. Considering she died at around 3am, this would mean that she ate at 1am, some three hours after Pistorius claimed they had gone to bed.

Nonetheless, Saayman himself prefaced his evidence by emphasizing that gastric emptying is notoriously difficult to measure. There are various opinions expressed in the academic literature on the subject, variables within an individual person depending on the food eaten among other factors, and variables and discrepancies from one individual to another. So not exactly hard scientific fact then.

In cross-examination the defense submitted a number of academic articles highlighting the contested nature of knowledge surrounding gastric emptying. They also have their own highly experienced and respected forensic team who will no doubt testify during their case to cast further doubt on Saayman's finding. Most importantly though, what does this evidence really tell us anyway, even if it wasn't contested? Reeva could have woken up and gone to get a snack without Pistorius even knowing - it is hardly compelling evidence that Pistorius intentionally killed her.

The remaining physical evidence was as ineffective at proving a compelling case and in many respects helped Pistorius more than the state; for example, the blood spatter expert openly stated in his affidavit that Pistorius' version was the most probable on the blood spatter evidence.

Furthermore, the police officers on the stand painted a picture of bungling and inefficiency at best, and theft and bias at worst. We heard about a ballistics expert holding the gun without gloves, investigators haphazardly stepping on top of the door -- the most important piece of physical evidence -- expensive watches stolen from the scene, and the fact that only the marks on the door that were relevant to the state's version of events were subject to forensic testing. In court, the police investigator admitted there was a mark on the door that he did not investigate.

Former police Col. G.S. van Rensburg described finding a police ballistics expert handling Pistorius' gun without wearing gloves and reprimanding the officer, who apologized and put on gloves. And he said he was "furious" when at least one of the Olympic athlete's valuable wristwatches disappeared.

Though the claims of theft and bungling are arguably the most sensational, it is the claims of bias in the investigation that are potentially the most damaging to the state's case. Their burden of proof is beyond a reasonable doubt. If they haven't even bothered to investigate alternative theories, how can they possibly argue that their theory is the only reasonable possibility? This threatens the fundamental reliability of the whole investigation.

Data evidence:

Though much emphasis has been placed in the media on the implausibility of Pistorius' version of events, this has distracted from the inherent implausibility of the state's own version of events.

If one reviews the evidence they have managed to gather, or perhaps more appropriately the lack thereof, their version of events can essentially be summed up in the following terms: A man, with no previous criminal record or track record of violence, in a new and loving relationship, woke up one morning and decided to murder his girlfriend for no apparent reason. This is a fundamentally implausible claim. And this is where the evidence extracted from various cell phones taken from the scene is potentially crucial.

In the second to the last day of their case the state finally provided some basis for a motive. While in law a motive is not the same thing as intention to kill, it at least provides a basis from which to infer intention. A police data extraction expert for the state read through a number of potentially damning messages that cast Pistorius as a jealous and possessive boyfriend, who was prone to nasty outbursts. In one of the messages, Steenkamp actually said she was afraid of him sometimes, and that he picked on her incessantly. These messages had been sent just a few weeks before she was killed.

The defense was, however, quick to counter this evidence in cross-examination, getting the witness to acknowledge that there were only four negative messages found, out of a total of over 1,700 loving messages.

In one of the messages, Steenkamp actually said she was, on occasion, afraid of him: "I'm scared of you sometimes and how u snap at me and of how you will react to me," and that he picked on her incessantly. These messages had been sent just a few weeks before she was killed.

The witness was then asked to read out some of the loving messages, which showed a very different picture of a couple in love using pet names such as "baba," "baby," and "boo."

CCTV footage of the couple was then shown in court; recorded 10 days before the incident, it showed the couple in a shop, interacting lovingly and playfully together. Though the defense has placed the negative messages in context, the state has finally managed to suggest a potentially plausible explanation for the alleged intentional killing - that Pistorius, due to his temper and fascination with guns, had a row with Steenkamp and shot her -- thereby providing at least a minimum of a case to answer to.

Too little too late?

So has the state done enough to prove their case?

When a case is circumstantial like this one, it means there is no direct evidence (physical or eyewitness) conclusively proving the state's version of events. This means a court must decide the matter by making deductions from the surrounding facts that are proven - a process called drawing inferences. Since the state has the burden of proving their case beyond a reasonable doubt, in circumstantial cases the state's version of events must be the only reasonable inference that can be drawn on an evaluation of all of the evidence presented.

There is a question over whether they have met this burden of proof.

They have met the minimum standard required to compel an accused person to present their side of the case -- they have presented a reasonable case to which the accused must answer.

That, I suspect, was prosecutor Gerrie Nel's strategy from the outset: to meet the minimum standard required in order to compel Pistorius to take the stand. Strictly speaking, Pistorius doesn't have to testify in his defense. However, he is the only person who can convince the court of his own state of mind on the night in question.

When Pistorius does take the stand, we can expect to see Nel go after him with the ferocity of an angry bulldog, trying to trip him up and expose holes in his story. Therefore, although the state has officially rested its case, it is on Pistorius' testimony that it will truly rise or fall.

ADVERTISEMENT
Part of complete coverage on
Oscar Pistorius
updated 12:02 PM EDT, Fri August 8, 2014
Oscar Pistorius' defense used the final day of closing arguments to painstakingly go through a timeline of the night he killed his girlfriend.
updated 7:45 AM EDT, Fri August 8, 2014
What exactly is Oscar Pistorius charged with and why is he facing a judge rather than a jury trial?
updated 2:39 AM EDT, Thu August 7, 2014
CNN's Robyn Curnow looks back at some of the key moments in the trial.
updated 8:24 AM EDT, Tue July 8, 2014
CNN's Robyn Curnow reflects on her visit to athlete Oscar Pistorius' home, before he was on trial for murder.
updated 3:44 AM EDT, Mon June 30, 2014
Oscar Pistorius' trial is under way again -- take a virtual tour of his apartment to see each side's case.
updated 7:16 AM EDT, Fri August 8, 2014
He was the so-called "Fastest Man on No Legs," and his inspiring story captured the imagination of the world at the London Olympics.
updated 7:03 AM EDT, Fri August 8, 2014
The striking, platinum-haired model was gearing up for her reality television debut.
updated 10:03 AM EDT, Mon May 5, 2014
Oscar Pistorius was "praying, crying, torn apart," the first person on the scene testified.
updated 5:26 AM EDT, Mon April 14, 2014
Prosecutor Gerrie Nel is known as the "bull dog" in South Africa's legal circles, and it's easy to see why.
updated 7:56 AM EDT, Thu April 10, 2014
As the athlete is grilled in court, Becky Anderson asks psychologist Dr. James Thompson about his state of mind.
updated 1:45 PM EDT, Mon June 3, 2013
Reeva Steenkamp on the beach in Port Elizabeth, South Africa.
Previously unseen photographs of Reeva Steenkamp show the South African beauty just months before her tragic death.
updated 12:08 PM EST, Sun February 16, 2014
The photos of Oscar Pistorius and girlfriend Reeva Steenkamp appear to show a young couple in love.
updated 4:13 AM EST, Mon March 3, 2014
He was the first amputee to compete at an able-bodied Olympics. Now, he's being accused of murdering his girlfriend.
updated 2:13 PM EST, Sat March 1, 2014
A week before her death, South African model Reeva Steenkamp talked about her secure, blissful environment.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT