Case Study of an All-Out Assault: The Oscar Pistorius Cross-Examination by Prosecutor Gerrie Nel

For trial as theater, a more gripping spectacle than the Oscar Pistorius murder trial could hardly be imagined. In the middle of a February night in 2013, the famous blade runner fires four shots through a closed bathroom door in his bedroom suite. The model-perfect head of his girlfriend Reeva Steenkamp explodes from the bullets’ impact. Neighbors report hearing a woman’s scream just before the shots rang out, but Pistorius maintains that was his scream, that he thought he was confronting an intruder, and that it was all a tragic mistake. The authorities charge him with premeditated murder. The case is assigned to chief prosecutor Gerrie (pronounced Harry) Nel, a career prosecutor for three decades. Trial takes place in a large, wood-paneled South African courtroom starting in April 2014 and is broadcast live to the world.
Judge Thokozile Masipa, who hears the case without a jury but with two “assessors” to help her sift the evidence, sits mostly silent as Nel rains down questions on Pistorius for five days of intense cross-examination. The judge occasionally speaks up to admonish him mildly for some of his more theatrical assertions that Pistorius is a liar. At turns sarcastic, accusatory, blunt, the prosecutor, wearing formal black judicial garb, peering over tiny glasses, relentlessly pounds Pistorius with question after question, as the track star repeatedly dissolves in tears, his voice quavering, breaking, sobbing, but maintaining throughout his innocence of premeditated murder.
This excerpt, from April 11, 2014, day three of the five-day cross, covers some of the central events of the Valentine’s Day night when Pistorius left the bed he shared with his girlfriend and moved awkwardly on his stumps down a dark hallway to the bathroom, then fired his pistol into the door of the toilet cubicle.
The clichéd description of Nel, an Afrikaner with close-cropped sandy hair, is “pit bull.” That conveys to me an image of uncontrolled savagery and brutality, which doesn’t capture this remarkable lawyer. Yes, he is relentless. Yes, he occasionally goes over the top, as when, early in the cross, he showed a photo of the victim’s bloody head to Pistorius. And yes, he is confrontational and shows open disdain and disbelief for the defendant’s story. But in the passage here, and in many others, Nel displays an icy calm as he lines up logic and common sense on one side and compares them to the Paralympics runner’s story on the other side. Yet whenever he points out the defendant’s contradictions and inconsistencies, he invites Pistorius to explain himself in his own words. What could be more fair? Of course, each time he does so, the cross-examiner has placed in the spotlight a particular troubling item of Pistorius’s behavior. So Nel never loses control over the subject matter or over himself.

The judge in the bench trial returned a verdict finding Pistorius guilty of a lesser degree of homicide, manslaughter. Then, on appeal, a higher court agreed with the prosecution that Pistorius deserved a guilty verdict of murder (an outcome that could never happen in American criminal law, which doesn’t let appeals court judges reach their own verdict but allows them only to opine on the legal correctness of what happened at trial). According to news reports, a five judge appeals court panel held, in a ruling read by Justice Lorimer Eric Leach: “The accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent.” He also described Pistorius’ trial testimony as “vacillating and untruthful.” So that’s a vindication for the tactics readers will see displayed below.

Whatever the ultimate outcome, this is a brilliant example of how mastery of the intricate facts gives the attorney all the control he needs, without the cramped artificiality of a purely leading style of questions. Notice how the prosecutor repeatedly breaks the so-called cross-examination Commandments, directly asking the witness “why” and “explain yourself.” The non-answers that follow become all the more persuasive for the prosecutor’s point when the witness has been allowed to say anything he wants.

[Malone comments are throughout the transcript in red]

Q. Mr. Pistorius, let us just carry on and take you up on your last answer. You have a good memory of what happened until the time you fired the shots?

A. That is correct, my lady.

Q. And thereafter your memory is not that good.

A. That is correct, my lady.

Q. When you, you’ve got your gun. You had to bend down and get it from under the bed?

A. My lady, I was on my stumps, so I was making my way to the bed as quick as I could, so I was using my hands and my legs. The gun was next to the pedestal so I had to bend down but I already was in a low position when I got my firearm and I was looking back towards the passage.

Q. You are looking back at the passage and you now, you got your gun and what did you do?

A. I turned around and I said to Reeva to get down and I made my way as quickly as I could to where the wall of the bedroom is just before the closet, the entrance of the closet.

Q. And your intention was to?

A. My intention was towards the closet, my lady.

Q. And what was your intention when you made your way to the–

A. My lady, my thought was to put myself in between the harm—to put myself between Reeva and where I thought the people were, my lady, which was in the bathroom.

Q. You see, on your version, Mr. Pistorius, if you cared about Reeva, you would have made sure that she hears you, that she’s there. You didn’t.

[A tough cross-examiner labels the witness’s story “your version.” He confronts with a flat statement that invites the witness to explain why he didn’t make sure the girlfriend heard what he says he told her. This sets up the impeachment that directly follows, based on conflicts between his two statements shortly after the shooting.]

A. I was sure that she was there, my lady, because I just spoken to her shortly before, when I got out of bed, and just before I got out of bed she spoke to me, so at that time I thought she was in the bed.

Q. That is why you changed your 1-1-5?

A. I do not know what a 1-1-5 is.

Q. That’s why, in your plea explanation you said that you spoke to her, but not in your bail application. Am I right?

A. That is correct, my lady.

Q. So why did you not say that in your bail application?

[It’s okay to violate the rule against asking “why” on cross, when the cross-examiner is reasonably sure there are no good explanations. The next answer in the witness’s own words is much stronger for the cross-examiner than a one-word response to a leading question on the conflicting statements would have been.]

A. I’m not sure, my lady, I can’t explain.

Q. In your, when you prepared for court, you wanted the Court to understand that you knew she was on the bed. That’s why you invented a discussion with her.

A. I didn’t invent a discussion with her, my lady.

Q. During your bail application, you did not think that there would be a need to invent a discussion. Isn’t that so?

A. I didn’t invent any discussion that was in my bail nor that was now, my lady. I haven’t invented anything.

Q. You see, Mr. Pistorius, the nature of the discussion before you got up was such that at least you thought that she was awake.

A. I thought she was awake, and I thought that she was next to me, my lady.

Q. What I don’t understand is why you wouldn’t make sure that Reeva was fine before you storm off.

A. I’m not sure, my lady. I was in a panic and my thought was to get between the perceived danger and Reeva as quick as I could.

Q. It’s because it’s not the truth, Mr. Pistorius. That’s why it’s difficult to explain why you did not see if she was fine. Isn’t that so?

A. That is incorrect, my lady.

Q. You see in this method we had two couples give evidence. The Stipps gave evidence. The first thing that happened between them is they spoke to each other. “Did you hear that? What was that?” The same with the Johnsons. Johnson and Byrd. When something happened, they conversed. But you didn’t.

[A quick sketch of the neighbors’ testimony confronts Pistorius with the difference between his behavior and what ordinary couples sharing a bed do when they hear a strange sound in the middle of the night.]

A. I didn’t, my lady.

Q. Why?

A. I was not next to Reeva at the time, like the Johnsons and the Stipps were, and I didn’t believe that I needed to confirm what I heard.

Q. You were right next to her. You were right next to her in a situation of danger. But you did not take the time to talk to Reeva.

A. My lady, I was not right next to her when I heard the window open. I was on the other side of the bedroom.

Q. When you got your gun, you were right next to her. If she was in the room.

A. I would have been next to her then, my lady. At that point I was overcome by fear. I was wondering if the person was coming down the passage. I had to keep my eyes on the passage and I had to arm myself. I didn’t have time to think about anything else. I spoke to Reeva and I said to her, get down, call the police.

Q. I say, Mr. Pistorius, a reasonable person would have looked where Reeva was, looked if she was safe, and if she panicked. But you didn’t. You just grabbed a gun. On your own version, not my version, on your own version, you did not find out if she was OK or scared or [unintelligible]. Am I right?

A. My lady, there were a couple of questions that were put—

Q. Ok, let’s stop.

[Nel breaks down his overly long question into its component facts.]

Q. You never established if she was scared?

A. I never established if she was scared, no.

Q. You never established if she heard you?

A. That is correct, my lady.

Q. If she heard the danger.

A. That is correct, my lady.

Q. You wanted to arm yourself.

A. That is correct, my lady.

Q. That’s the first thought that went through your mind.

A. There were many, many, many thoughts that were going through my mind at that time, my lady. I knew I had to, I knew I didn’t have any way of defending myself without my prosthetic legs on, so I ran for my firearm.

Q. That’s not true. I mean, if, if you spoke to Reeva, the two of you could have taken lots of other steps. Am I right?

A. There was no time, my lady.

[The prosecutor has obviously thought through how the witness could answer, and has a rejoinder ready.]

Q. You see, that’s what you say. You’re saying there was no time. You heard something in the bathroom. You and Reeva in the bedroom.

A. That is correct, my lady.

Q. There’s a passage leading between the bedroom and the bathroom.

A. That is correct, my lady.

Q. You could have done lots of other things.

A. I don’t agree, my lady.

Q. You could have, let’s agree that, arming yourself, you and her could have both gone onto the balcony?

A. In the balcony there wouldn’t have been any way of escaping if we had got cornered, my lady. We wouldn’t be able to move anywhere.

Q. But it is a possibility?

A. It’s a possibility, my lady.

Q. You could have both hid behind the bed.

A. That’s a possibility, my lady.

Q. You both could’ve been on her side of the bed, with your view on the passage.

A. My lady, I didn’t want harm to come to Reeva so I wanted to put myself as I said between the harm and Reeva. If I had stuck next to Reeva it would have put her in harm, my lady so I didn’t think of it. I told her to get down and call the police. I could have done a host of things but at that time it was a decision that I made.

Q. You see, Mister, you know it’s my view that your version is not correct. And it’s improbable that you would act in that way but let’s take it one step further. When you armed yourself, you rushed towards the area of the passage?

A. I rushed towards where the passage and the bedroom meet, my lady, just before you enter the passage.

Q. And then you entered the passage?

A. That is correct, my lady.

Q. Ready to shoot.

A. That’s incorrect, my lady.

Q. What, then? Were you not ready to shoot?

A. I was not ready to shoot, my lady, at any point was I ready to shoot. I was trying to see what was happening in my home.

Q. But why would you go, arm yourself, rush toward the danger, if you’re not ready to shoot? That’s not true. Not on your version, either.

A. My lady, I didn’t have time to think. I was dealt with the situation in which I had to protect Reeva and I had to protect myself.

Q. It’s not that easy. You cannot tell the court I didn’t think. You armed yourself and I am sure you released the safety mechanism on your gun.

A. That is correct, my lady.

Q. So you did that. You got your gun, released the safety mechanism. Why?

A. So that if I needed to use my firearm I could protect myself.

Q. And that’s why you stormed. You wanted to shoot.

A. We’re talking about two separate times in the evening. I didn’t storm to the bathroom, my lady. I ran to get to where the passage began and then I walked extremely slowly and cautiously until I got to just before the corner where the bathroom passage is.

Q. Ready to shoot, if you saw something you would have just pulled the trigger. Am I wrong?

A. I am not sure, my lady.

Q. No, but what was your intention? I’m walking down the passage. I want to protect Reeva. You would have fired a shot.

A. My intention was to protect Reeva and to protect myself.

Q. And if you saw somebody?

A. I’m not sure, my lady.

Q. What were you ready to do?

A. I wasn’t ready for anything, my lady.

Q. You were. You armed yourself. You’re ready to shoot.

A. As I said, my lady, I didn’t want to take anybody’s life. I screamed at the intruders to get out of my home.

[When the witness doesn’t answer the question, the prosecutor brings him right back.]

Q. You see again, Mr. Pistorius, you say I wasn’t ready to take somebody’s life, you’re arguing. Just think of the questions. Walking down the passage, you had your gun. The safety was disengaged. You were ready to shoot.

A. That is correct, my lady.

Q. You wanted to shoot. If you saw somebody you wanted to shoot.

A. There’s a massive difference between being ready to deal with the confrontation in that manner, in that situation, in the limited time, my lady, and wanting to shoot someone. There’s a massive difference between those two.

Q. The difference is that you were ready to shoot. If somebody moved you would have fired?

A. That’s not the difference, my lady. That’s the point that I said yes to. The point was that I don’t agree that I wanted to shoot someone.

Q. If you saw somebody in that passage, what then?

A. I would have to defend myself, my lady. As I said, I cannot engage in a physical altercation if I don’t have prosthetic legs on.

Q. Walking down the passage, gun in hand, if you saw somebody, you would have fired?

A. I am not sure, my lady. That’s not the situation that I was dealt with.

Q. But remember, you remember so much detail. You know when you walked slow. You know when you walked a bit faster. You know when you walked really fast. Now I’m asking you to tell the court, when you walked down that passage, the gun was pointing towards the bathroom.

A. That is correct, my lady.

Q. Any movement, you would have fired.

A. My lady, I remember facts, and I remember things about the truth. I am not sure what I would have done in a hypothetical environment.

Q. And then you started screaming?

A. No, I started screaming before that point, my lady.

Q. Oh. Tell me then, at what point—you see, it’s interesting. You remember the detail so well that you correct me. And I just want you to remember. Now, when did you start screaming?

A. I started shouting and screaming, my lady, as I entered the passage way.

Q. What did you shout and scream?

A. I screamed for the persons to get out of my house. I screamed for Reeva to phone the police. I repeated that several times.

Q. And there was no response from Reeva?

A. No, there was no response from Reeva, my lady.

Q. At that time your intention is to go towards the danger.

A. That is correct, my lady.

Q. You’re vulnerable, but you go towards the danger?

A. That is correct, my lady.

Q. Why would you do that?

A. Because if I had stayed where I was, my lady, Reeva and I would be in danger.

Q. Nobody would have been in danger because there was no intruder. That’s the fact of this matter.

A. I didn’t know that at the time, my lady.

Q. I know that’s what you’re trying to say but the fact of this matter is that if you had stayed in that room, Reeva would have been alive. Those are the facts. I’m testing you on a version that’s not true.

A. That’s not a test, my lady, that’s a hypothetical version, that if I had stayed in my room, no life would have been lost that night. I understand that. I agree with that. But that’s not a test.

Q. You see my problem is the following. You said you were vulnerable. You felt vulnerable. Am I right?

A. That is correct, my lady.

Q. But you approached the danger. The two doesn’t make sense. You can’t be vulnerable and approach the danger.

A. My lady, if I had stayed where I was anything could have happened. We hear every day about how people are caught in their house or mace sprayed or shot at. If I had stayed in my room and somebody came down and they tried to shoot at me somebody could have shot Reeva. I they had come in my room and they sprayed mace in my room, something could’ve happened.
I wanted to put distance as much distance as I could between Reeva and what I had perceived to be the danger

Q. Reeva was the one person that you didn’t even talk to. So you can’t bring her into this. You didn’t even talk to her.

A. That isn’t correct, my lady.

Q. Well, there wasn’t a conversation. Let me rephrase that. I’m sorry. You didn’t even make sure that she was there, and that she heard you before you left.

A. I didn’t make sure. I was sure at that time that she was. I didn’t make sure, my lady, that is correct.

[This next question would be objectionable as phrased in an American court, since the prosecutor seems to assert his personal disbelief in the witness’s story.]
Q. What I don’t understand, Mr. Pistorius, is, and I’m just testing your version, because as far as I’m concerned, it’s not true. If you had remained in your bedroom you had a clear view of the passage.

A. That is correct, my lady. If I had stood in a certain place in my room, I would have. If I had hid behind the bed I wouldn’t have had a clear view.

Q. But, right around the corner you could peep down the passage with a clear view of the bed.

A. That is correct, my lady.

Q. So that would put you in a position where somebody coming out of the bathroom had to walk at least 5 meters to get to you.

A. That is correct, my lady.

Q. And you would be able to see them.

A. That is correct, my lady.

Q. But you rushed towards the danger.

A. I didn’t rush towards the danger, my lady, that’s incorrect.

Q. You walked towards the danger.

A. That is correct, my lady.

Q. Why would you do that?

[Another “why” question works because it is narrowly focused on an apparent contradiction.]

A. I’m not sure, my lady. As I said at that point I was trying to get myself and Reeva as far away from the danger as possible.

Q. You know, when you just said, “I’m not sure,” that indicates the probability of your version, because nobody would be sure why you did it. It doesn’t make sense.

A. I don’t agree, my lady.

Q. And you agree by saying, “I’m not sure.” I’m not sure why I did it.

A. I’m not sure, my lady, I didn’t have any time. That was my instinct that told me to do it. I’m not sure why.

Q. You see, I find your instinct strange. I find your instinct strange for the following two reasons. One, instinct would have made sure Reeva is safe. That was never instinct, to make sure she’s safe. Am I right?

A. My lady, I think everybody’s instinct is different. That’s why it’s instinct, my lady.

Q. So, your instinct wasn’t to make sure she’s safe.

A. I thought that she was safe, and in the process of what I did I was thinking that I was making it safer.

Q. We will go through this. You gave the court unbelievable detail about thought processes in your evidence. Where you walked slowly, where you walked faster, where you shouted. And I’m testing your thought processes because you put yourself out there.

A. That is correct, my lady.

Q. Why did you approach the danger?

A. Because I wanted to put myself between the harm, the perceived danger, the threat , the people that I thought were in my home. I didn’t want to bring that upon Reeva. I was in my room. There were a number of things that could have happened.

Q. And you and Reeva could have gone out the main bedroom door.

[The prosecutor refers to the door leading from the bedroom suite to the rest of the house.]

A. Could have, my lady.

Q. Why did you not do that?

A. I’m not sure, my lady.

Q. That is the one thing in this case, Mr. Pistorius, that you cannot explain. Not on your version. Why did you not leave through your bedroom door?

A: My lady, I have very, very limited mobility on my stumps on a hard surface like tiles.

Q. Is that your reason why you did not leave through the main bedroom door?

A. My lady, I am not sure.

Q. Then give us a reason. You went past the bedroom door. You two could have left through that main bedroom door to safety.

A. My lady, it’s easy to now look back and talk about all the possibilities but it’s not what happened in the time that I had that evening.

[When the witness doesn’t answer the question about the easy escape route, the cross-examiner rephrases the same question, echoing the witness’s use of the word “easy.”]

Q. It’s easy to think of a version why you killed Reeva and to come up with an innocent reason, that’s also easy. But the defects are that the door, the bedroom door, was the closest escape there was.

A. My lady, I haven’t come up with a version. This is the same version I had in my bail. The state’s case has changed many times, my lady. My version has stayed the same. I didn’t come up with the version. I didn’t even know the facts. I was only handed the docket last year in August with all the facts. Yet my version hasn’t changed. Yes, granted, I could have gone onto the balcony. I could have left the room. But that isn’t what happened.

Q. Mr. Pistorius, you have to come up with a version to put Reeva in the bathroom to explain why you went to the bathroom. Your whole version is to explain why you got to the bathroom innocently. That’s why the one major issue of the bedroom door you cannot explain. Explain that. You have to tell the court why you didn’t take Reeva out that bedroom window to safety—out the bedroom door.

A. I don’t know why I didn’t do that, my lady.

Q. You see, you did the opposite. You approached the danger. That doesn’t make sense. It’s not true.

A. My lady, If you listen to Miss Taylor’s evidence, where she said that when there was an intruder I went downstairs and I looked, that’s my personality, my lady. That is how I am. So instead of cowering and running away at that split moment I wanted to put myself between the danger, perceived danger, and Reeva, my lady. I don’t, I can’t explain. I wish I did. I wish I did all these other things that are put to me.

[In a nice bit here, the prosecutor becomes the witness for a short series of statement questions.]

Q. So you wanted to go confront them, that’s me, Oscar. I wanted to go confront them?

A. That is correct.

Q. Stand up for myself.

A. That’s correct, my lady.

Q. If I see them I’ll shoot them.

A. That’s not what I said, my lady.

Q. But isn’t that the inference? I wanted to go confront these robbers.

A. That’s correct, my lady.

Q. And you did, by firing.

A. That’s correct, my lady.

Q. You walked down the passage, your intention is to go confront the intruders.

A. My intention was not to confront them. If you remember what I said it was that I was shouting for them to get out of my house. I didn’t want a confrontation.

Q. Now if that is true, finish up now, I’ll give you an opportunity—

A. But I was aware, my lady, more terrified, that maybe these people weren’t there to leave, if I was shouting at them. That’s why when I got to the entrance to the bathroom as I said I stopped shouting because I wasn’t sure if they’d left the house or not.

Q. Now you see, let us just take it slowly, you knew your bathroom very well. You know what it looked like, how big the toilet is, in the bathroom, how where the shower is, you knew it well, am I right?

A. Of course, my lady, it’s my house.

Q. You knew the only way into your house through the bathroom is down that passage? From the bathroom [bedroom]?

A. If one hadn’t obtained means through the window then that is correct, my lady.

Q. If you’re in the bathroom, to get from the bathroom to the house, the only way to do that is to walk down the– .

Judge: To the bedroom.

A. The bathroom’s in the house, my lady.

Judge: To the bedroom.

Q. Yes.

A. I don’t understand that question, I’m sorry my lady.

Q. Let me try again. For an intruder that gained entry through your bathroom, if you take that as a fact, to get to your bedroom he must walk down the passage.

A. That’s correct, my lady.

Q. That is the passage that you could control from your bedroom?

A. That is correct, my lady.

Q. But you didn’t.

[A short plain statement confronting the witness with his inconsistencies often works best.]

A. I didn’t, my lady, I’ve said that before.

Q. When you shouted and screamed you said you shouted for them to leave and for Reeva to phone the police.

A. That’s correct, my lady.

Q. You got no response from Reeva?

A. That is correct, my lady.

Q. Now, do you think…do you think it was loud, the screams?

A. The shouts and screams, my lady, were very loud. I was shouting and I was screaming and they were very loud. I was shouting at the people to get out.

Q. Shouting at Reeva?

A. And I was shouting at Reeva. I shouted at her in the beginning to get down and phone the police, and as I was progressing up the passage I was shouting for the people to get out, I was shouting get out.

Q. And she never responded?

A. My lady, this is the fourth time I’ve said she never responded.

Q. And I’ll ask it more. She never responded?

A. No, my lady, she never responded.

Q. Then you got to the entrance of the bathroom?

A. That’s correct, my lady.

Q. And you kept quiet?

A. That’s correct, my lady.

Q. The reason being?

A. I didn’t want to give my position away. I was scared that the person was around the corner. I knelt down. I was holding the cupboard. I had my firearm in front of me. And I was worried that the person was waiting there to ambush me, my lady. I wanted to peer around the corner.

Q. Okay, so this wasn’t split second. Now we’re thinking, now you’re thinking, and you are kneeling down and your gun is facing towards the bathroom?

A. Everything about that event was split decision, my lady. Every moment there was a difference in something that could have happened. What I was in the passage it was that the person would have been a little further in proximity, that they could have stuck their hand around the wall and fired at me. When I got to the entrance of the passage it was a different situation. Somebody could have attacked me with a firearm or they could have just run up to me and choked me, my lady.

Q. That’s why it doesn’t make sense that you approached them. You’re right. Thinking of your version that’s true, but you approached them.

A. That’s correct, my lady.

Q. That is not true Mr. Pistorius, nobody would do that. Nobody would do that. It’s a lie.

A. It’s incorrect, my lady.

Q. Just before you get to the far area of the bathroom what happened then?

[The cross-examiner asks a direct-exam style question to get the witness’s story out, for further dissection.]

A. I looked around the corner to see that there was no one in the bathroom or that there was no one around the corner. I then proceeded. I kept my distance as far away from the wall as far as possible. So I didn’t follow an arc, I walked all the way down the closet to the last cupboard so I could see the angle as much as I could with the wall that goes from the closet into the bathroom. When I couldn’t see anybody there, then I slowly moved forward along the carpet until the point where the tiles begin at the entrance of the bathroom.

Q. Yes? Then?

A. At that point I did pretty much the same as I had done when I reached the corner from the closet into the passage of the bathroom. Again, I wasn’t sure if there was somebody against the basin that was going to be there. As I went sure I saw the window was open, I wasn’t sure if the persons were standing on the ladder, if they just had opened the door, or if there was somebody inside the toilet at that point. I heard the door slam earlier so I wasn’t sure where the people or persons were.

Q. No, no, wait, you’re going too quickly now. We’re going way too quickly now. I just want to get the sequence. You, in that passage, you screamed and shouted.

A. That’s correct, my lady.

Q. Then, close to the entrance where the tiles start, that’s where you kept quiet.

A. Are we talking about what I’m doing now, my lady?

Q. Yeah, what you were doing.

A. Yes, then I kept quiet, my lady.

Q. When did you hear a door shut?

A. While I was in the passage, my lady, just before I entered the bathroom.

Q. So it was in the passage. You heard a door slam.

A. That’s correct, my lady.

Q. And the only door that could be could have been the toilet?

A. That is correct, my lady.

Q. So what did you think?

A. I thought that either there was somebody going into the toilet or that somebody had kicked the door, because the door opens up to near where the window—one of the windows—I didn’t know yet at that point which window it was that was open. So I knew that the door was in that way. So because I was screaming, “Get out of my house,” I was hoping that the person was fleeing the house and in the process had kicked the door closed. So I wasn’t sure at that point whether there was someone in the toilet, but I was 100% sure that there was someone in the bathroom that had accessed the window and climbed into my house.

Q. That long argument of 100% sure, that’s what you thought, because it never happened. There was nobody that had accessed that window on that night.

A. That is correct, my lady.

Q. Now, when you entered the bathroom you said you saw that the window was open.

A. That is correct, my lady.

Q. So there was enough light for you to see the window.

A. There wasn’t enough light. There was lights outside the window. There was streetlights and house lights.

Q. But why did you say there wasn’t enough light and then you said there were?

A. My lady, here were lights on outside, there was ambient light that was shining in. The bathroom wasn’t as dark as the bedroom. In the bedroom there was no lights. In the bathroom there was limited light.

Q. Ok, now, you saw that the window was open. What happened then?

A. I then stood at that point and I peered into the bathroom, my lady to see that there wasn’t anybody around the corner. Again I was a very low position, with my hand against the wall for balance. I peered around the corner to where the basins are and I didn’t see anyone there, my lady, and I walked back a step or two.

Q. But, before we go on, you, one thing we know is at that stage you looked in the bathroom and you were clear in your mind that there was no one in the bathroom.

A. In the bathroom, lady, yes, that’s true.

Q. That you established. There’s no one in the bathroom. And you saw that the toilet door was closed?

A. That is correct, my lady.

Q. You could see that.

A. Yes, I could see the toilet door was closed, my lady.

Q. Now, that door was usually open? Or not?

A. I beg your pardon?

Q. The toilet door, was that usually open? Or not?

A. Yes, it’s usually open, my lady.

Q. Was that strange that it was closed? Or did that not make a difference?

A. It wasn’t strange at all, my lady. I heard it slammed close. It wasn’t strange at all.

Q. You either heard someone kick the door or slam it close, but the fact that it was closed, was that, in itself, strange?

A. I never, ever said I heard somebody kick the door, my lady. I said I heard the door slam close.

Q. You know, you said so. You said one of two things. Either it was slammed closed or somebody kicked the door.

A. And in fleeing the house, that’s correct. I’m sorry, my lady.

Q. Well, you see, why are you making these mistakes? Because the fact that you’re making them is significant. Why are you making this mistake?

A. The last question to me, my lady, was it strange that the door was open or closed. For me it wasn’t strange that it was closed because I heard it slamming. Whether it was kicked closed or pulled it was slammed closed, my lady.

Q. Mr. Pistorius, you said, “I never, ever said that somebody kicked the door.”

A. I apologize, my lady.

Q. You see, you can’t just make mis—give contradictory versions and then apologize. There’s a reason for it. What is the reason why you are doing it?

A. I made a mistake, my lady.

[The cross-examiner asserts that no one telling a truthful story could have forgotten that he had just given a detail a few minutes before that he then contradicted.]

Q. No, it can’t be a mistake. It must be I am thinking of something that never happened and I have to keep up. That’s it. Your version never happened and you have to keep up with an untruth. That’s why you’re making these mistakes. Isn’t that so?

A. I made a mistake, my lady.

Q. Why would you make a mistake about somebody kicking the door? I want to know why?

A. I’m not sure, my lady.

Q. You have to be sure. You made it.

A. If I were sure, my lady, I wouldn’t have made the mistake in the first place.

Q. No.

A. So I apologize, and I don’t know why I said that. In the time I was in the passage the question that was posed to me was different to what the situation was when I said the door was slammed, was it strange for me that the door was closed. And I had heard the door slam. I had forgotten about that point and I apologized for it, my lady. I can’t explain why I forgot.

Q. OK, one more time then I’m moving on. It’s not the mistake. It’s you saying, “I never, ever said somebody kicked the door.” That is, for me, what it’s about, not the fact that you made a mistake. That you were so convinced that you never said it.

A. I understand, my lady.

Q. As convinced as you are about the rest of your evidence, that is my problem.

A. My lady, I have pointed out that I’m sorry, that I understand that I made a mistake.

[The prosecutor now invites the witness to comment on his own demeanor.]

Q. I am putting it to you that your mistakes are as convincing as your evidence in the way you deliver it. And that’s a problem. Do you want to comment on it?

A. No, my lady.

Q. Now the door is closed, you know how big that door is inside? How small it is?

A. I know the size of the toilet more or less, my lady.

Q. It has been re-constructed here, that’s on scale. That’s exactly how big the toilet is behind me.

A. That’s correct, if it’s on scale, that’s correct. It doesn’t mean that I know how big that toilet is or how big this toilet is, my lady. I know about the size it is but I don’t know the measurements of the toilet.

Q. But you know that if someone’s there they’ve got limited space to move, is that right?

A. That’s correct, my lady.

A. For them to get out, if they wanted to get out of the toilet any which way, what would they be able to do?

A. They’d be able to climb out the window, or they’d be able to come out the door if they had a ladder, my lady.

Q. If there’s a ladder at the window they could go down a ladder if they get through the window.

A. That’s correct, my lady.

Q. Or come through the door.

A. That’s correct, my lady.

Q. Now, I have to test you on this. You want to tell the Court that you reasonably thought an intruder came through your window and walked into your toilet and close the door? Why would an intruder do that? Is that what you thought?

A. I’m sorry, my lady, would he somehow rephrase this question?

Q. Are you saying that it’s reasonable for any person to think that an intruder would come through the window into the toilet and close the door?

A. He’s now asking me what would be reasonable for an intruder breaking into a house, my lady.

Q. If there was an intruder, do you think he would go into a toilet and close the door?

A. I’m not sure what an intruder would do, my lady, if he was caught off guard. I don’t know how I’m expected to answer that question.

Q. Now you’re standing there, you, Mr. Oscar Pistorius standing there, thinking he came through that window, he went into that toilet. That’s what you thought.

A. That’s correct, this was a possibility, my lady.

Q. No, it is so far fetched that it would happen, Mr. Pistorius. It’s improbable that you would even think that an intruder would run into my toilet and lock the door. And close it.

A. I didn’t think I have mentioned the locking of any door, my lady. What I heard was the door slam. So it had to be, if I was in a position where I’d have to consider what had happened with the noises I heard, I had to consider that there was someone in the toilet or that there was somebody on the ladder.

Q. I just want to consider. Let us use that word. You know what you considered? You considered where you had to walk slowly where you had to be quiet. You had to consider to walk slowly beyond the passage, keeping your attention to the danger.

A. That’s correct, my lady.

Q. You had to consider when to be quiet.

A. My lady, I don’t know if that was consideration or if it was just instinct that told me it would be stupid to make a noise at a certain time.

Q. But considering as far as—

A. Considering has a time component to it, my lady, which I didn’t have the luxury of.

Q. You want to say that. We are testing it. Time, time, time is something that you’ve said and we are testing it.

A. That’s correct, my lady.

Q. Just listen to my questions. You’ve considered that it’s now time to be quiet. It’s something that you considered and followed. And did. Am I right?

A. Consideration, as I said, my lady, takes time to reason. When I was standing at the bathroom, looking at the door and at the window, I was shouting at that point. There wasn’t time to consider. I was thinking, is the person on the ladder? Is the person in the bathroom? It was a thought that happened.

Q. You had to consider and reason to be quiet. I know you want to give your version. And we’ll get there. You considered and you reasoned that it’s now time to be quiet.

A. I never said that, my lady.

Q. I asked you what, exactly. We’re testing your thought methods. Because if you want to say, now, we’re testing your thought methods, so just follow me.

A. I don’t follow, my lady, what he’s asking.

Q. I’ll try. You thought that it’s better to be quiet when you got to the tiled area of the bathroom.

A. That’s correct, my lady.

Q. And you thought it’s better to be quiet why?

A. Because I didn’t want to give my position away, my lady.

Q. Then you thought I must be careful when I go into the bathroom? Am I right?

A. The whole time I was thinking that I need to be careful, my lady. My life was in danger, so the entire time I thought that I needed to be careful.

Q. And you thought, make sure there’s nobody in the bathroom, and you did. There’s nobody there.

A. I don’t think that thought crossed my mind, that I must make sure there was no one in the bathroom, I don’t remember saying that, my lady.

Q. Or to make sure there is someone I have to shoot at, but something I have to do when you got to the bathroom.

A. My lady, I don’t think that’s a fair comment, my lady. I never said that I went there to shoot someone.

Q. Now, if you did not go there to shoot someone, what did you want to do then?

A. I wanted to make the person that was in the house flee, my lady. Get away from the danger, causing danger to myself and to Reeva, my lady.

Q. OK, let us just work on that. You intention was to make the person flee?

A. That is correct, my lady.

Q. Nothing else.

A. That’s correct, my lady.

Q. And when you got into the bathroom, there was nobody there.

A. That is correct, my lady.

Q. What happened then?

A. And then I stood at the point where I had moved back to. After I had looked in the basin I had stood back so that just the bathroom door was in line with the wall. And I could see the window and I had my firearm still in front of me. Again I screamed for Reeva to phone security or police. And then I shouted and I kept on shouting.

Q. Just one moment. Of your whole version, Mr. Pistorius, this is the most improbable. Reeva at that stage is 3 meters away from you in the toilet?

A. I didn’t know that, my lady, I thought she was in the bedroom.

Q. No, no. In fact, I’m talking about the facts, at that stage, when you shouted and screamed for Reeva to phone the police, she is 3 meters away from you in a toilet.

A. That’s correct, my lady.

Q. And she never uttered a word.

A. That’s correct, my lady.

Q. It’s not possible. It’s not probable. She would be scared. She would shout out and talk to you. You are in the same room.

A. My lady, I agree with Mr. Nel. She would have been terrified, my lady. But I don’t think that would have led her to scream out. I think she would have kept quiet for that reason. I was shouting and I was approaching the toilet. And she was in the—as I was approaching the bathroom, she was in the toilet. Then I would presume that she would think that the danger was coming closer to her. So why would she shout out?

Q. Because you’re in the room, sir. Mr. Pistorius, you’re now in the room, you’re shouting, she’s 3 meters away from you behind that particular door. There is no way that you’ll convince a court that she stood there saying nothing. Why? Why would she not say a thing?

A. I don’t know, my lady.

Q. It is not true. The only reason is that it’s not true, Mr. Pistorius. She would have responded.

A. Is that a question, my lady?

Q. Yes.

A. That’s not true, my lady.

Q. You see, and we’ll take it through, I see there’s 15 minutes left, in fact she is standing, on your version and on the state’s version, she’s standing facing behind the door facing the bathroom, facing you that’s shouting.

A. That’s correct, my lady.

Q. Now if she was scared she would have not have been there. She would have hid somewhere in the toilet.

A. I can’t say what she would have done. I don’t think anyone could say what she would have done, Mr. Nel.

Q. I can, Mr. Pistorius, I think the state can. She was talking to you, she was standing right in front of you by the toilet door talking to you when you shot her.

A. That is not true, my lady.

Q. That’s the only reasonable explanation for her standing upright. That’s the only reasonable explanation why you shot her in the head. The way you did.

A. That is not true, my lady.

Q. She wasn’t scared of anything. Except you. She wasn’t scared of an intruder. She was scared of you.

A. That is not true, my lady.

Q. Mr. Pistorius, on the probabilities, I am looking at the door, you don’t have to. If bullet hole A hit her on the right hand side, in her right hip, she’s standing facing you.

A. I don’t dispute that, my lady.

Q. Now if she was scared, if your version was true, she would not have been in front of the door facing you.

A. As I said my lady, I don’t think anyone could say where she would’ve stood if she was thinking that I was—in her mind, it must have been that I was retreating to the bathroom. In her mind I must have been retreating, screaming, “Reeva, phone the police!” Screaming for the people to get out. If she was in the toilet then she would have been quiet. I don’t see why she would have screamed out.

Q. If she thought you were retreating, that gives her more reason to talk. To say, you’re coming to me, come, I’ll phone the police. What’s wrong, Oscar? Never.

A. My lady, she had been involved in a similar incident before in her life, where she had locked herself away. From my understanding she wasn’t able to speak to people for a day or so afterwards, my lady, so I don’t think that is the case.

Q. You see, Mr. Pistorius, she’s awake, she’s in a toilet, you’re shouting, you are screaming. You are 3 meters from her, she would have responded. She would not have been quiet, Mr. Pistorius.

A. She didn’t respond, my lady.

Q. Did she scream at all whilst you shot her four times?

A. No, my lady.

[The defendant’s story defies what most people would think. So the prosecutor stretches the point by asking it again.]

Q. Are you sure? Are you sure, Mr. Pistorius, that Reeva did not scream after the first shot? Are you, Mr. Pistorius?

[Long pause.]

Q. My lady, I am giving the witness time to console himself. He’s distressed. I’ll wait a minute.

A. My lady, at no point did Reeva shout out or scream. I wish she let me know she was there. She did not do that.

Q. Just answer my question. After the first shot, did she scream?

A. No, my lady.

Q. Are you sure?

A. Yes, my lady.

Q. Would you have heard her?

A. I don’t think I would have heard her over the gunshot, my lady. My ears were ringing.

Q. That’s why I’m asking you the question. How can you exclude the fact she was screaming if you couldn’t hear?

A. If I couldn’t hear then I couldn’t hear it, my lady.

Q. No, you said, Mr. Pistorius, she never screamed. You couldn’t hear. You’re just saying that.

A. That is what I’m saying, my lady.

Q. No, that’s not what you’re saying. You’re saying she didn’t scream. And that’s why I tested you on it.

A. My lady, the sound of the gunshots in the bathroom, you wouldn’t have heard anyone scream. The decibels of the gunshot, I don’t think you would have heard anyone scream. When I had finished firing the gunshots, I was screaming. I couldn’t hear my own voice.

Q. You see, that’s why I’m asking you the questions. People heard a woman scream during the shots. Is that possible?

A. No, that’s not possible, my lady.

Q. Why?

A. Because a woman didn’t scream at any point, my lady.

Q. No, you can’t say that.

A. That’s my version, my lady.

Q. No you can’t. That’s your version, but that’s not something that you can with conviction say to the Court, that nobody screamed, during the shots. Can you?

A. Yes, I can, my lady.

Q. No you can’t. How can you? You just said you can’t. How can you say that nobody screamed during the shots?

A. I can’t say that no one screamed during the shots. I can say no one screamed, my lady. There wasn’t a woman screaming.

Q. How can you say that? How can you say that?

A. Because I was there, Mr. Nel. I didn’t hear anyone–

Q. I think you’re making a mistake again. The mistake is you forgot about your ears ringing.

A. I’m not talking about the shooting, my lady, I am talking about the entire evening.

Q. No, I’m talking about the shooting. You can’t get away with that every time. You don’t know what I’m talking about. Sometimes you have to take responsibility. I said during the shooting, Mr. Pistorius. You cannot have understood me wrongly.

A. I agreed with Mr. Nel when he made that point, my lady. And then he went on to talk about people heard screaming.

Q. During the shots, Mr. Pistorius, you cannot get away with this time and time again, pretending that you couldn’t follow.

A. I didn’t pretend I didn’t follow. I agreed with Mr. Nel, my lady.

Q. Now let’s—it’s on record and I’ll argue it. Can you say that Reeva didn’t scream after the first shot?

A. I didn’t hear a scream after the first shot, my lady. My ears were ringing.

Q. You know what, it was put in in your bail application that nobody but you screamed on that night.

A. That’s correct, my lady.

Roux: My lady, I think, in all fairness, Mr. Nel just put when he’s talking about, because there’s a great deal of difference between defense and the state of when the screaming would have been, when the shots would’ve been fired. Because what I put was far in relation to when the state is saying the shots were, and I don’t want to put something in the mouth of anyone. But Mr. Nel, let’s just make that clear, because we’re not talking about the same time, my lady—

Judge: You’re also referring to the bail application:

Roux: Absolutely, my lady. Absolutely. So we’re talking about different times and that’s my concern. Just being made clear.

Nel: My lady, it cannot be, I referred to the bail application. The bail application, my lady, it’s one of those embarrassing things. When you need the bail application, it’s not here. But—

Judge: Well, it might be a good idea to point it from the record so that we know exactly what you’re talking about.

Q. Look at it, the way I remember it is that there was no woman screaming. That was what was put in the bail application. I’ve marked it on mine, my lady. I’ll carry on on this when we get back and I have the record. I will do that.

Judge: Yes.

Q. Mr. Pistorius, now you see, I’ve heard your evidence on how it affected you and how you felt. Will you agree with me that for Reeva being in that small cubicle, when four shots were fired through the door, must have been horrific.

A. I agree, my lady.

Q. For Reeva, being in that small cubicle when four shots were fired through the door, must have been horrific.

A. I agree, my lady.

Q. What happened to her that night was unthinkable. I never heard you say anything about how she must have reacted in that toilet. Thinking of it. Because that’s the crux of this case. Have you?

A. Yes, I have thought about it many, many times, my lady. In my own answering of the question I explained what Reeva must have thought when I was walking back. I’m haunted many times by what she probably thought in the last moments that she lived. Many, many times.

Q. Let us deal with it, you are standing in the bathroom, you’re now shouting and screaming at Reeva, what happened?

A. Are we talking about after the shooting?

Q. No, before the shooting.

A. At that point, my lady, I was standing in the bathroom with my firearm pointed toward the door, with my eyes going between the open window and the door. And I heard a noise from inside the toilet.

Q. What noise?

A. It sounded like wood, my lady, like wood moving.

Q. Wood moving?

A. That’s correct my lady.

Q. Is that all you heard? Wood moving?

A. I thought I heard the door opening, my lady.

Q. No, you see, there we go. There we go. Not once did you say I heard the door open. It’s the first word today that you would say. I heard the door. You perceived lots of things. But it’s not in the record that you heard the door opening. Why now today?

A. I didn’t say that I heard the door opening, my lady.

Q. What did you hear?

A. I said I thought that I heard the door opening. That’s perception.

Q. You thought you heard the door opening. But did you also think you heard wood moving?

A. Yes, that’s correct. I thought I heard the noise of wood moving, that doorframe, my lady, doesn’t fit the door properly. When you open it it makes a knocking noise. That’s what I’d thought I’d heard.

Q. You stood there, and you had your eyes on the door. And the window.

A. That’s correct, my lady.

Q. But you pointed the gun at the door.

A. Yes, the firearm was pointed towards the door, my lady.

Q. What happened then?

A. I discharged the firearm, my lady.

Q. But first you thought you heard something. What did you hear?

A. I heard a noise from inside the bathroom, my lady, and I thought or perceived that someone was coming out to attack me.

Q. You heard a noise and you thought, somebody is coming out to attack me. Nothing else.

A. Nothing else, my lady.

Q. But, thinking back, that could have been anything. Why would you think someone is coming out to attack you?

A. That’s what I thought at the time.

Q. That’s a lie, Mr. Pistorius.

A. I didn’t have the luxury to think back—

Q. No, you do. You standing there. You facing the door. Why would you think somebody was attacking you?

A. Because I heard a noise coming out—

Q. You see, the hearing of a noise and the perception of an attack is two different things. Why do you think somebody wanted to attack you?

A. Because I heard a noise coming from inside the toilet, my lady. I perceived that. I thought that was the sound of the door opening.

Q. No, you see, the two doesn’t make sense. The fact that you hear a noise, and the fact that you think the door was opening, those two is not the same thing. It is not the same thing. And your perception is impossible, Mr. Pistorius. You never perceived somebody coming after you. Am I right?

A. You are incorrect, my lady.

Q. In fact you knew that Reeva was behind the door. And you shot at her. That is the only thing that makes sense. You shot at her, knowing that she’s behind that door.

A. It’s not true, my lady.

 

Closing Comments by Malone:

The court then adjourned for the day. Pistorius was to face two more days of Nel’s relentless questions. Although not included in this excerpt because of space limits, Nel structured his cross to link the end to the beginning. Near the start, showing impatience at Pistorius’s repeated euphemism, “I made a terrible mistake,” the prosecutor said, “You killed her. You shot and killed her. Won’t you take responsibility for that?” Then in a moment that had spectators gasping, he showed a photo of the victim’s bloodied head and demanded: ““That’s it — have a look, Mr. Pistorius. I know you don’t want to, because you don’t want to take responsibility, but it’s time that you look at it. Take responsibility for what you’ve done, Mr. Pistorius.” Five days later, he ended the cross-examination by inviting Pistorius to take the blame for shooting his girlfriend. Then, when Pistorius veered away from a direct response, the prosecutor asked: “We should blame somebody. Should we blame Reeva? She never told you she was going to the toilet.” To Pistorius’s meek, “No, my lady,” Nels responded: “Should we blame the government?” When Pistorius responded with another reference to a perceived intruder in the toilet, Nel asked: “Who should we blame for the Black Talon rounds that ripped through her body?”