Nel yet to prove intention to kill

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IOL SAFRICA-PISTORIUS_0410_11 REUTERS Oscar Pistorius is charged with the murder of his girlfriend, Reeva Steenkamp, on Valentines Day last year. Picture: Siphiwe Sibeko

Prosecutor Gerrie Nel must contain the melodrama and aim to extract intention from Oscar Pistorius, says Eusebius McKaiser.

Johannesburg - It’s not a crime to be a cry baby on the witness stand. It’s not a crime to be a jealous boyfriend. It’s not a crime to have anger issues. It’s not a crime to have a patchy memory. And it’s not a crime to have a motive to kill someone.

And, yes, I’m making these opening remarks in today’s column in the context of the Oscar Pistorius murder trial.

It’s gripping. Don’t lie and pretend you’re not following it.

I put it to you that if you claim to be so over this trial, you’re about as convincing as people who think it’s cool to say they don’t own a TV (um, barring poverty, of course).

In reality, the trial has become compulsory viewing or listening.

Like sands through the hour-glass, so are the days of our criminal trial lives.

Back to Gerrie Nel, the prosecutor.

The cross-examination of Pistorius continues this morning.

And it’s interesting to take stock of where the State’s case is.

Last week seemed like it belonged to Nel. But has the State done enough already?

Nope.

What’s pretty clear after last week is that Pistorius isn’t boyfriend material.

I suppose some may say that was clear two Valentine’s Days ago, but that’s jumping the legal gun.

He has anger management issues.

I know a good therapist who could help him deal with his rage and anxiety. Just give a shout, Oscar.

These are horrible personality traits that can be chipped away at with the help of an expert or Sis Dolly.

I’d not want to date Oscar.

Imagine my boyfriend dissing my accent or giving me a look, like M’Lady’s stern look, whenever I chew gum in public?

How bloody pretentious and controlling. But here’s the thing: I’m like Oscar too in some ways.

Just ask some of my exes, shame. Jealousy is hardly in short supply among men – or women for that matter.

Just have a quick look at your WhatsApp messages and tell me I’m lying.

Damn, if my WhatsApp messages could talk, Oscar would be like “I’m just a normal South African boy, M’Lady!”

So, yes okay, Nel has revealed a nasty character. But that impugns Pistorius socially and morally. It’s not a legal sin to be a bastard. If it was, many more men would be in jail.

Nel also succeeded in revealing Pistorius to be a poor and unreliable witness who is inconsistent and who gives accounts of the night he shot Reeva Steenkamp that are highly improbable.

Now this is a bit more legally salient. Sure. Because if M’Lady judges him unreliable then she will attach little or no value to his own version of what happened on that tragic night.

I grant Nel the significance of denting Pistorius’s general credibility as a witness. It is critical, given that there are no other witnesses.

It sets Nel up to argue in closing that Pistorius’s testimony about putative self-defence can be dismissed as myth-making coming from a demonstrable liar.

But, that said, Nel still has work to do. In the best-case scenario for the State, it has possibly established a motive: incessant jealousy towards Reeva that drives him, Oscar, to exert control over her.

But motive is not a nexus legal issue in our law. It’s instrumentally important if it gets the prosecutor closer to establishing intention to kill another person with no legitimate defence. And this crucial bit has not been established beyond reasonable doubt yet.

Nel must try to focus narrowly on the four shots that were fired and pressure test the claim by Pistorius that shots went off with no intention to kill.

Nel has gone there, but at times simply ascribed an intention to kill to Pistorius, rather than extracting and establishing it in the answers coming from Pistorius. I’m sure Nel will get there. He’s got probability on his side: four shots from a trained gun lover, not fired in rapid succession, and you never intended to hit the target?

Oh, please. Believe that and you’d believe a swimming pool is a fire pool.

But Nel must control the melodrama and remember the aim is extracting intention from the witness.

Let’s see what happens today. Pistorius is a survivor so far. Sadly, Reeva Steenkamp is not.

* Eusebius McKaiser is the author of Could I Vote DA? A Voter’s Dilemma, available at bookstores nationwide.

** The views expressed here are not necessarily those of Independent Newspapers.

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