Rebecca Davis SOUTH AFRICA 4 march 2014 01:24
The first day of the Oscar Pistorius murder trial introduced many of the elements we can expect to see throughout the case. A delay, some incompetence; a defence strategy which will see Pistorius’s crack lawyers do everything in their power to discredit witnesses; and an early verbalising of the fear that is claimed to stalk suburban South African streets. By REBECCA DAVIS.
Pistorius Trial: Day 2
Roux's opening gambit was again an attempt to convince the court that Burger's testimony had been affected by the previous media reports she had consumed on the shooting of Reeva Steenkamp. Burger again stayed resolute. Roux interrogated her again on the wording of her testimony in terms of the timing of overheard shots and screaming, and Burger still wouldn't budge.
Here's where the daily sideshow intervened. The prosecution's Gerrie Nel rose to his feet to tell Judge Thokozile Masipa that he had just been shown a picture on his phone which indicated that the face of witness Burger was being broadcast on TV in contravention to her stated wishes. Muttering that this was "serious", Judge Masipa called an adjournment.
What had happened, it emerged, was that eNCA had been broadcasting the audio feed of Burger's testimony with an old still photo of her, taken from the University of Pretoria website. ENCA were not the only offenders in his regard: Beeld, to name but one newspaper, published an old photo of Burger on their front page today too.
The court order prohibiting witnesses' faces from being shown only explicitly mentioned photos taken while the witness was testifying in court, which is presumably why media outlets think they can get away with using old photos. But Judge Masipa begged to differ. Upon returning to the court she effectively extended the ban to include all photographs, old or new, of witnesses who do not wish to have their photos taken.
And fair enough: it could be a radical disincentive for people to testify in cases like these if they suspect their faces may be splashed across national newspapers and TV broadcasts. Judge Masipa was stern, warning media that they needed to respect these kind of regulations by the letter or face penalties. She also said an investigation into the eNCA photo broadcast would be carried out.
With this resolved, Roux was at it again. This time, as we predicted yesterday, he put it to Burger that she could not possibly have heard what she claimed to hear at a distance of 177 metres - with Steenkamp screaming from behind a closed door. Roux said Burger was welcome to carry out a test to prove its impossibility. Burger responded that houses had been built between her property and Pistorius's in the interim, likely muffling sound. Roux said the test could be carried out at closer range if she liked, projecting total confidence.
When we closed for tea, Roux was grilling Burger (apologies) about whether it was possible that her husband's testimony had influenced her own. Just before the break, he threw out a weird question about whether Burger would have been certain to give an accurate cellphone number at the time of giving a statement to police investigators. Bemused, Burger replied that she knew her own cellphone number. This being Roux, this could be an entirely diversionary query, purely designed to momentarily chuck Burger off balance. Or there could be more on the cellphone to come....*cues theme music from 'Jaws'.
The last moments of Barry Roux's cross-examination of Burger started with him trying to get her to concede that the statement that she gave to police investigators, and that given by her husband, were so similar that the two must have conferred beforehand. Burger denied this, saying essentially that the reason for the similarities between the two testimonies was simply that they had shared very similar experiences on the night in question.
Roux then questioned Burger on the element of her testimony which seems weakest in terms of supporting the state's case: the fact that she claims to have heard both a man and a woman yelling for help before she heard gunshots. Why would a man shout for help if he is about to kill his girlfriend, Roux asked. Burger was evasive in response, leading Roux to accuse her of being unwilling to make any concessions at all - even logical ones - which might help Pistorius.
Burger had previously indicated that she may have heard a woman's scream continuing shortly after shots were fired. Roux rubbished this, but in order to do so he had to provide some grim details as to Steenkamp's death. Of the four bullets fired, he said, the first hit her right side, the second missed and hit the wall, the third struck her in the shoulder, and the last hit her head.
The final bullet, the bullet which struck Reeva Steenkamp's head, did so with a force that would have left Steenkamp brain-damaged immediately and therefore incapable of crying out further. For this reason it was impossible that Burger had heard a woman's scream after the last shot, Roux said: another attempt to cast doubts on Burger's credibility as a witness.
The defence's Gerrie Nel had the opportunity to help his witness regain some ground with final questions. He chose to attack the defence's claim that Burger had mistaken the sound of a cricket bat striking a door with that of gunshots. How would you break down a door with a cricket bat, he asked Burger. She demonstrated, pretending to hold a bat and swing it at a door. Now can you make the sounds that you heard that evening, he asked. "Bang....bang bang bang," Burger replied. Nel hoped to impress upon the court the difference between both the tone and the rhythm of the sounds.
It was in her final moments in the stand that Burger succumbed to tears, when explaining her emotional state upon hearing the sounds of shots and screams. Standing down, many will consider that she stood her ground with great strength.
Succeeding Burger in the dock is the eighth witness on the state's list: Estelle van der Merwe, who lives in the same estate in Pretoria where Pistorius shot Steenkamp. Van der Merwe lives a good deal closer to Pistorius's property than Burger did - 98 metres apart, as opposed to 177 metres. She has testified that she heard voices talking shortly before2am, and four "bang bang" explosion sounds at around 3am.
If van der Merwe can convincingly make the case that what she heard could have been an argument, it will bolster the state's case. But so far van der Merwe has shown signs of being a tense and nervous witness - and at the moment, she's got the guy on her side (Nel) asking her questions. When Barry Roux brings his gimlet gaze to bear on her, she may not hold up as well as the state will be hoping.