Friday 11 April 2014

Agent Pistorius


I used to be in favour of televising trials, on the basis that justice needed to be seen to be done, and that the legal process should be known to all citizens as part of their education, in case they gave evidence or had evidence given against them, or wondered why someone had been set free or convicted, or failed to appreciate the power and majesty of common law.

Now I am not so sure. Why should I be watching a trial in another country, concerning people I do not know, in a case which is unrepresentative of South Africa, a country with very high rates of murder and rape perpetrated against the anonymous multitudes? Celebrity and beauty seem to be the answer. We can be enthralled, entertained and, perhaps, educated by someone famous and someone beautiful. More than that, we can be beguiled by the redemptive story of a man who, in the harsh parlance of the past ,would have been considered a cripple, rising on magic blades to take all the prizes including the prize girl.  The populace like nothing more than to see someone rise to the stars and then fall to the ground. Even better, they get to see the couple’s private text messages. Awesome.

Milady Judge Masipa, who looks like a bright cookie, was understandably severe with the hoi polloi who chattered at the dramatic bits, telling them acidly that this was not a public entertainment, but that’s what it is. It is both a very serious trial and an entertainment. I am in the audience, complicit in the drama, as are you, dear reader, if you know anything about this case.

Everyone has a cover story. The State wants to show that pretty, high status White Folk don’t get special treatment. The Judiciary want to parade their independence, and don’t mind their 15 minutes of fame, which will buttress their profiles and do their pensions no harm. The media and their lackeys, including psychologists it must be admitted, opine. The Police have been revealed to the world as flat-footed bunglers and watch thieves, which must bring some comfort to the long suffering public, though some embarrassment to the State. Best of all, South Africa puts on a riveting detective story which might even lead to a True Confession, and which might conceivably lead people to forget that the average victim of South African crime gets far less attention and the perpetrators far less flamboyant and expensive defence barristers.

What of the psychology? First things first. Mr Pistorius’s defence is that he made an honest mistake, understandable in the context of high crime South Africa, and even more understandable in terms of White fear of violent black men in the dark, but that doesn’t need spelling out, and is best left unsaid anyway. The State has a mammoth task, because they have to prove a malicious intention, yet all the material facts from which intention might be deduced have been admitted. So, the case hinges on some very psychological but intangible factors.

Rightly, the two barristers Roux and Nel have become stars in their own right. I think I have had about 8 cross examinations as an expert witness, and probably about 20 case conferences with barristers. In my experience they are bright, quick witted, adept at dissecting language and drawing out subtle implications from statements. They try to be several steps ahead, and usually succeed. They also have a large bag full of tricks. They love side alleys into which the unwary can be drawn, for no other purpose than to reveal them to be idiots or liars. They will pounce on an obscure and irrelevant distinction and worry it to death until the poor witness agrees to anything out of pure frustration and boredom, only to have this concession turned against them on contrived grounds.  They revel in double negatives, elaborate dependent clauses, arch suggestions and tendentious interpretations. Best trick of all is Nasty Surprise. The victim, known to them as Baby Seal, is fed a comforting diet of banal questions, each answer being met by flattering agreement “Absolutely right. So very helpful. I am most grateful to you for saying that” and then a new document is produced showing that the person you are championing has some fatal flaw they have not disclosed to you, or that you have ignored vital contrary evidence in a major publication. Too late, you look back at your former replies with painful regret. Another trick is to take a specific issue and to discuss it to death so that its importance rises to dominate the case. For example, a barrister of my acquaintance, later a notable Judge, was defending a driver who was so drunk that Police decided to skip the “walk a straight line” test, fearing he would fall on the station floor and injure himself. Roydon, for that was his name, spent a long time convincing the jury that the one single test which mattered, on which the entire case must hinge, was the straight line test, and that had not been carried out. Case dismissed. The prime aim of all barristers is to secure for their client a miscarriage of justice. For the barristers the Pistorius trial is business as usual, but this time with a global audience. In some South African township hovel a young child is muttering: That’s what I want to be when I grow up.

What do we make of Oscar Pistorius? As I said in another place (see below) psychologists should not comment on people they have not interviewed. A televised trial does not give you first hand observation of a person’s face, though one certainly picks up a lot from the tone of voice. Most important, the contingencies are that Pistorius will gain considerably if his account of what happened is accepted, so his statements and behaviour cannot be taken at face value. Perhaps viewers are learning first hand some of the expensive merits of adversarial justice.

The prosecution case has centred on a theme which is a staple of criminal justice: responsibility. Perpetrators tend to minimize their actions and wish to show them as reactions. The retired prison doctor Theodore Dalrymple described a young man’s account of stabbing someone thus: “Then the knife went it”. The knife did it. The guy just happened to be there, admittedly with a knife in his hand.

Agency has a dual meaning. It can signify that you understand that you are able to operate on the world, or it can mean that you are merely an agent, carrying out a role as required. In that sense perpetrators cast themselves as victims of circumstance, agents of some higher cause, in this case the respectable home owner defending himself and his guest from intruders. 

Prison psychologists once approached me to offer trauma services to perpetrators who were traumatised by what they had done. I questioned whether this was a wise course of action, since vivid regret at their actions might possibly guide these malefactors into questioning their behaviour for ever, to the benefit of society. I said I would concentrate my scarce resources on victims.

There is an interesting issue here: how does one tell that a person is lying? The answer is simple: you need a stopwatch. Lies take longer than truth, because liars are fabricators not reporters. Fiction takes time. Ask any novelist.

Live update: Now I have just seen the prosecutor Mr Nel ask the defendant the obvious question: if Pistorius believed he was shouting for his girlfriend to call the Police while pointing a gun at an intruder hiding in a toilet, why did not the innocent girlfriend answer from behind the toilet door with a simple “Its me, Oscar”. An implication which hangs there, with Milady Judge making a note, before the Court is adjourned till Monday.

What’s my cover story? CNN asked me to comment on the trial. Otherwise I would have continued leading the search for MH370. Honestly.


  1. I'm afraid i get pistorius mixed up with the fictional Dr. Pretorius in the Bride of Frankenstein - about every 20 minutes in that fine film Dr. Pretorius is caught in the act of vice (smoking, drinking, etc.) & always proudly announces "it's my only weakness" - that's how i remember it anyway. perhaps a similar defense will work for pistorius.

  2. i suggest making him spend the rest of his life searching for that malaysian airplane.

  3. i suggest making him spend the rest of his life searching for that malaysian airplane.

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