Oscar Pistorius: Gerrie Nel continues to cross examine defense psychiatrist

Tuesday, May 13, 2014

Good morning:

Gerrie Nel continues to cross examine the defense psychiatrist, Dr. Merryll Vorster.

He begins with a set of general questions about an anxiety disorder, after reading up on it last night in DSM V., seeking to distinguish it from generalized worrying about the thousand natural shocks the flesh is heir to (as Shakespeare once said in another context).

She said it doesn’t come and go depending on external circumstances. It’s always there. She used the word “pervasive” to describe it.

Follow along with us and comment as we watch Gerrie Nel attempt to turn her into a prosecution witness on you tube.

Keep in mind that her vulnerability is that she did not get involved in the case until a little over a week ago and claims not to know much about the case. Taking her at her word, this means that she does not know about Pistorius’s lies that Nel exposed when he cross examined Pistorius and her diagnosis is based on her assumption that Pistorius told her the truth when she interviewed him.

She is not incompetent or naive for doing so because this is standard operating procedure for mental health professionals. They are not independent fact gatherers. They start with what the patient says to develop trust and work with that to probe their minds and moods.

Session 1

Session 2

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55 Responses to Oscar Pistorius: Gerrie Nel continues to cross examine defense psychiatrist

  1. ed nelson says:

    RE: Astrology, Fred did refer to a book… “”Cosmology… ” or somethihg like that, which I took out of the library, I got to about page 100 or so, big thick paper back!

    I sawr enough to see that it was what I thought it would be….

    INOW’s… I don’t need to read the fine print sweet heart! I get it!!

    Bottom line: Synchronicity: Carl Jung… da da da…

  2. Ann Hamilton says:

    Amendment .. Astrologers correct name is JOJo Savard.. You tube

  3. Ann Hamilton says:

    On a completely esoteric level…And I must add that I am someone who does have a great interest in the works of Astologers from all cultures, I thought the astrological viewpoint of JOJo Barby( on you Tube ..read in immediate aftermath of crime) was extremely interesting astrological view of the incident… Just for interest sake…I watch with great respect of the judge and both advocates and am not biased in any direction…

  4. fauxmccoy says:

    i have invited my friend Bren, the former police woman in SA to come join us. she is smart as a whip, cares about social justice just as much as any of us here but can also shed some real light on life in SA, the police force and justice system.

    she says she has not followed this very closely, but would be happy to jump in where we are as well as go back to the beginning as i am doing.

    below are just a few quotes from my recent conversation with her and i hope we’ll be seeing her here tomorrow

    … I hear he is a jerk though. The ONLY thing I heard was just a few days ago, that he said because he is a high profile sportsman, he considered himself a bigger target for criminals. Now that……. is totally the truth. He most definitely is a bigger target. They all know him, and they see him as rich and privileged. And their mentality is that they are entitled to take from him.

    I don’t know the circumstances of the shooting, but the possibility is high that he could have mistaken her for an intruder. In S.A., an intruder in your house means you are 99% likely to be killed by them. That is a fact. And if there is a woman in the house, be it a child or grandmother, she WILL be raped and tortured, then killed, in front of the man, before he is tortured and killed.

    Many people also have no concept of how people in SA live. It’s a defensive, dog eat dog country. You cannot let your guard down for a minute. You cannot drive without your car doors locked, windows up, gun under your leg, and purse tucked under the seat. And don’t dare talk on your cell phone because they will smash a brick through the window to get at it. People are always on high alert, and quite rightly, expect the worst, because the worst happens…… more often than not.

    So, I’m sorry, I don’t know [much] about the case, but considering the place, I tend to believe he shot her by accident. They want him to be guilty of murder, for the exact reason he rightly considers himself to be a bigger target than the average man on the street… and personally, I believe the legal teams are enjoying the worldwide attention they are receiving from his case

    … The living conditions are a lot worse there. I didn’t even scrape the tip of the ice burg. If [doubts it], ask them if any of them know that the ex president of S.A. – F.W. de Klerk’s wife was raped and murdered in her own kitchen by her gardener???

    one of my best friends daughters…… was raped when she was sixteen, at the sportfield of her school?? or that my ex fiance’s uncle was abducted and burnt alive…. don’t get me started lol

    • Great! Looking forward to reading what she has to say.

      • fauxmccoy says:

        having seen a photo of her house, which was considered to be ‘good” in a ‘safe neighborhood’ i was literally reminded of san quentin. i think her perspective here will be invaluable.

    • Malisha says:

      Given that Pistorius was living in a crime-ridden society, that explains his belief that the story of “a home invader scared me” would work to excuse the killing, but it doesn’t fit the facts of the case. If a home-invader of the “torture and kill” type were in his house, you can bet that he would NOT be locking himself in the bathroom and you can also bet that if Pistorius thought he was about to be killed by a home-invader, he would check his girlfriend’s whereabouts immediately — after all the guy might have a hostage!

  5. Judge Masipa will announce her ruling tomorrow morning at 9:30 am.

    Court adjourns until then.

  6. Roux seems to be trying to have his cake and eat it too because he obviously intends to base his argument for an acquittal on a mental condition based on OP’s misperception of a need to use deadly force due to his anxiety disorder, while claiming that the court should not make the referral since he won’t be arguing for an acquittal based on a finding of mental illness or mental defect.

    Clever, but lame nevertheless.

  7. Roux now reveals that he has a second witness coming who is going to testify about the fight or flight syndrome and the vulnerability of disability. Therefore, referring OP would be premature.

    Regarding which party has the onus to raise the issue, there is a presumption is that a person is not mentally ill or disabled. The onus is on the party who raises the issue and the accused is not raising it.

  8. Roux is objecting to Nel’s request for a referral on the ground that it isn’t necessary.

    He says OP isn’t mentally ill. He has an anxiety disorder that does not prevent him from distinguishing between right and wrong and conforming his conduct accordingly.

    He says Nel isn’t concerned about OP’s mental health. Instead, he wants a second opinion to counter Dr. Voerster’s, someone who disagrees that OP suffers from GAD and will say he’s just a liar.

  9. Nel is arguing that OP should be referred for observation based on Dr. Voerster’s testimony that his GAD may have played a role in his perception of the situation and need to act.

    The test is whether there is a reasonable possibility of a mental illness or defect that resulted in the shooting.

    He asks can the decision to present this evidence be a fall-back position based on how the case was going (i.e., inserting potential reversible error into the record when the case was going badly in hopes of the court overlooking the importance of a referral for observation, even if defense counsel argues that he does not want a referral)?

    In the US, we would call this setting up a potential ineffective assistance of counsel argument.

    Nel cites a case that says mental illness or mental defect are morbid disorders that the court cannot determine without the assistance of experts in the matter.

    He argues that as long as diminished responsibility is an issue, and the defense has interjected that issue through Dr. Voerster, there must be a referral.

    Looks like US practice varies from SA in that SA courts are more vigilant about mental health issues than US courts that would leave it to the defense to raise the issue and preserve it for appeal by requesting a referral for evaluation, which Roux isn’t doing.

  10. HamRadioElijah says:

    Really the best stateside running commentary on the web Professor.

    Donay on the way. Super hot day here in LA & loving’ it.

  11. Dr. Voerster is excused at the 31:30 mark.

  12. Roux tries to undo some of the damage inflicted by Nel’s cross by mentioning a door that he not only locked but propped a cricket bat between it and a cabinet to assure that it could not be opened,

    But Judge Masipa recalls testimony about that and interrupts him recalling a different reason. Turns out the reason was the lock wasn’t strong enough, so using the bat wasn’t so exceptional.

    He also referred to the broken window establishing that the replacement window was stored away awaiting contractor installation, which if true, still doesn’t describe the actions of a man obsessed with security.

  13. colin black says:

    He Is so anxious about crime he chooses to remain in S Africa where he Is or was a hero to the Nation an a A List celeb.

    Rather than move to a Country or tropical island some where .

    Thats far less violent and stressfull .

    But he enjoys the adulation far more than he fears violence.Thats not someone suffering from anxiety an fear of violence….

    Also whats the point of requesting a 30 day evaluation now to discern if he is suffering severe anxiety .

    As he is on trial for murder it would be almost certain he is at the moment.He wouldnt be human if he wasnt.

  14. Pat deadder says:

    I don’t understand why Nell wants him reevaluated? Seems to me his cross examination of the doctor was more than sufficient he demolished her.
    Is it just for appeal purposes?

    • Yes, I believe Nel is attempting to remove a potential appeal issue by new counsel for OP on appeal after OP is convicted.

      I imagine he also figures that his experts will disagree with Dr. Voerster’s diagnosis and provide him with yet more evidence to bury him.

      Nel appreciates the danger that a GAD diagnosis together with sympathy for a national hero may carry the day and he is determined to do everything he can to prevent that.

      I believe that’s the real reason that he wants to load up on sympathy-killing ammunition.

      This back and forth is less about what the lawyers are saying and more about the defense playing the sympathy card and the prosecution attempting to prevent it.

      Excellent example of the game within the game.

      You’re watching two very smart and very smooth lawyers at work.

      Two of the best I’ve had the pleasure to watch.

      And the judge appears to be no slouch either.

      Class act all around compared to that miserable Zimmerman trial.

      • Pat deadder says:

        Thank you so much Mr.Leatherman for answering my question.
        I also find it difficult to take the doctor’s testimony as seriously as perhaps I should.
        She only cared about Pistorius’s version and after all he was paying the bill.
        Maybe I’m too cynical or have GAD.
        I really like that you are so willing and happy to give other lawyers praise .
        We can’t watch trials in our country but they are so fascinating.
        Mr. Nell is a gem.
        I also think Roux was playing the sympathy card.

  15. She admits that she is not saying he was delusional; rather, that he may have misinterpreted sounds that he heard (i.e., the window sliding and the toilet door slamming) in a manner that is consistent with his anxiety disorder.

  16. Nel’s cross ends at 5:45 of Session 2.

    Roux asks and gets a 10 minute break to prepare his redirect.

  17. She concedes that “it could be” that his GAD would not affect his understanding of the difference between right and wrong, but it might affect his ability to act according with his understanding of that difference, a 78(1)(b) instead of 78(1)(a) matter.

    (That’s a reference to the applicable legal rule)

  18. Court’s in recess. Next up is Session 2.

  19. Nel does the fumble thing with his robe and eyeglasses and scratches his ear as though lost in thought as he milks that last bomb for all it’s worth and then casually suggests they break for tea, “as I’m coming to the end of this cross examination and would like to consult with my team.”

    (Dayam! I wish I said that sometime during my career)

  20. It gets worse.

    She says “I wouldn’t expect a person with GAD to remember every detail, but he told me that he remembered shooting at a noise.”

    Nel: “There’s another possibility isn’t there? That he could be lying.”

    “Yeah. That could be another explanation.”

    • Malisha says:

      In my dream comedy script:

      NEL: “Could another possibility also be that he murdered the victim and then planned to get away with it?”

      Vorster: “uh…that wouldn’t be very nice, would it?”

      NEL: “Is that a diagnosis described in the DSM-5?”

      Vorster: “uh…we’re trying to get it approved for the DSM-6.”

  21. Malisha says:

    “If the court finds that he thought he was shooting an intruder, then the diagnosis would play a role, but if the court finds that he knew he was shooting at Ms. Steenkamp, it would not play a role.”

    Then I fail to see how her report would be useful at sentencing!

    Frankly, he should have gone with the truth, that he freaked out and killed his GF because she was about to leave him, and he lost the ability to moderate his reactions because of his mental disorder — which looks a bit more like Intermittent Explosive Disorder to me.

    DSM-5 has refined the diagnosis of IED a bit (very much appreciated by those of us who always suspected that the diagnosis was made up by psychiatrists who had to find a way to get wife-beater clients off serving jail time) although it is not based on very much research. It is characterized by violent rage attacks that (a) are severe enough to cause financial and/or legal consequences to the “patient” AND (b) cause enormous disturbance (afterwards) to the “patient” as well. So, his crying and wretching and vomiting and screaming and so forth would support an IED diagnosis AND relate to a rage killing just as well as an anxiety-based assault on a purported pissing burglar.

    Another thought: The houseman who lived on the first floor of the house could have been in that bathroom if, say, the toilet were clogged in the floors below. It’s a stretch to think Pistorius had to assume the locked bathroom door meant a burglar was in there. Even a crazy person could come up with something better than that.

  22. That would change your opinion, he says.

    No, she answers. His anxiety disorder would affect how he viewed the threat, whether the threat was an intruder or a threat to end the relationship.

    (Roux must be in agony and struggling to look like this is no big deal. Never let them see you sweat is one of the commandments of criminal defense, even if you are dying.)

  23. Regarding the shooting, he told her that he thought there was an intruder, that he went toward the noise instead of retreating, and that he fired at the noise.

    Nel points out that he denied shooting at the noise when he testified and “there must be red lights flickering for you as far as his version is concerned.”

    (Long pause)

    “It would appear that there are inconsistencies,” she said.

  24. She adds,

    “If the court finds that he thought he was shooting an intruder, then the diagnosis would play a role, but if the court finds that he knew he was shooting at Ms. Steenkamp, it would not play a role.”

  25. Nel reminds her that he was charged with a felony and had finished testifying in his trial, so why wouldn’t she expect him or anyone else in that situation to be extremely anxious?

    She concedes that to be true but points to other factors, such as an absence of close friends in whom he could confide and a series of short term sexual relationships with women, as evidence of his GAD.

    She emphasized that it’s up to the court to decide whether it was a factor in the shooting based on all the other evidence in the case.

    She appears to be distancing herself from OP with this statement.

  26. Because he presented with an anxiety disorder when she met him for the first time and she attempted to determine what caused it.

  27. Even though his mother died when he was 14, and she was his primary relationship figure, he still managed to appear normal.

    Why, then did Dr. Vorster elevate his diagnosis to a disorder, Nel asks.

  28. She says his anxiety would have started when he had his bilateral surgery at 11 months of age and would have continued to get worse as he aged.

    Yet, at age 14, he demonstrated no symptoms of the disorder, according to her report. Nel wants to know why.

    “Because he wanted to appear normal.”

  29. Dr. Vorster: “People with GAD should not have firearms.”

    They pose an elevated risk to react violently by using them when emotionally disturbed because that is the nature of their disorder. “Unfortunately,” she adds, “they are more likely to want the added security of a firearm than the rest of us and that is why they are dangerous.”

    She admits that she prepared her report to also be considered at a sentencing, which is an admission that she expects a sentencing is more probable than not.

    In other words, she does not see GAD as a defense; rather, she sees it as evidence to be considered in mitigation.

  30. As we approach the 40 minute mark, Nel gets Dr. Vorster to agree that a threat to end a relationship could have motivated a person with GAD to feel so threatened that they might react by killing their partner. “It would play a role in the build-up, but not the act itself.”

  31. I will add parenthetically that it looks like Nel is not going to request the Rule 78, 30 day observation.

    Nope, he’s going for the jugular.

  32. Roux objects to the “generalized” statements Nel has elicited, “which of course I can correct” because OP “was concerned beams and not all aspects of the burglar alarm system . . .”

    Judge Masipa gives him the look that all trial lawyers fear (i.e., shut up and sit down)

  33. After fiddling with his robe and glasses with a seemingly perplexed look on his face, he turns to the witness and says,

    “You wouldn’t expect a person with GAD not to be concerned about whether their alarm system worked, would you . . . because the accused did not know if his system worked or not.”

    “No, I wouldn’t expect that,” she responds.

    (Strike 3?)

  34. We’re 18 minutes in and Nel has already struck 2 potential death blows to the GAD defense by exposing facts that no mental health professional would have known and considered in making a diagnosis, unless they had independent knowledge from following the case.

    This is the right way to cross examine a mental health expert.

  35. Nel then mentions the ladders that were not put away and she responds by saying she would expect a person with GAD would insist on putting them away and securing them.

    (Roux: more Rolaids, please)

  36. Are you sure? (Always a dangerous question when asked by Nel)

    Yes.

    Wouldn’t you also expect a person with GAD to take extra precautions to secure access to the rest of the house from burglars, particularly downstairs?

    Yes.

    Didn’t you know that he had a broken window downstairs with no burglar alarm associated with it that he did not bother to fix for a prolonged period of time?

    No, I wouldn’t expect that. I would expect him to fix it the same day.

    (Ouch! So much for his excessive preoccupation with crime. Roux must be reaching for the Rolaids)

  37. Nel asks, doesn’t everybody do that?

    She responds with, “They don’t also lock themselves in their bedrooms.”

    • Malisha says:

      What we’re not factoring in, here, is the peculiar conditions in South Africa. BEFORE Apartheid ended the white SA’s were terrified at all times because they were sitting on a powder keg and it is truly amazing they did not lose power in a veritable blood bath. AFTER Apartheid they feared crime because the general idea was that now that they didn’t have total control over those Blacks they had to keep under their thumbs, there would be massive crime. Add to that the fact that the country was in chaos and there was actually massive crime — voila, a sort of well-deserved paranoia. I remember a South African I knew saying (as she emigrated), “I don’t want to live in a country where I have to be grateful that I didn’t get killed when they hijacked my car.” I observed, “well you’re pretty lucky that you didn’t get killed, right?”

  38. She mentions that he was excessively preoccupied by anxiety about crime and whether he lived in a secure enough place. She provides an example using his preoccupation with relocating to an ever more secure residence with security guards, burglar alarms and dogs to protect him.

  39. Malisha says:

    She is not incompetent or naive for doing so because this is standard operating procedure for mental health professionals. They are not independent fact gatherers. They start with what the patient says to develop trust and work with that to probe their minds and moods.

    It is true that a psychiatrist simply works with what you tell her or bring to her, but a FORENSIC psychiatrist is a much different kettle of fish. If I understand it correctly, this woman TEACHES forensic psychiatry at Witwatersrand U, the most prestigious medical school in Jo’burg. I work with a forensic psychiatrist who has testified in courts all over the country and whose curriculum vitae is 28 pages long; he reads documents, transcripts, indictments, prior medical reports, legal documents, etc. etc. etc. before even conducting a clinical interview and THEN he administers “psychometric tests” to check his own conclusions against standardized measures. Geez! Fully 80% of his time is spent in document review.

    The purpose of an evaluation is far different from treatment. This shrink was not brought in to TREAT Pistorius’ alleged GAD; it was specific to testimony at trial. It falls short of brilliant.

  40. Nel points out that no one described him as anxious on the night of the shooting.

    She responds by saying that’s not unusual.

  41. Nel: There’s no evidence that the accused was incapacitated to that extent (i.e., miss or skip work because he couldn’t get comfortable enough to overcome his anxiety).

    V: No, he was able to compete at a high level and continue to socialize.

  42. She acknowledges that GAD is considered a “mental illness” by virtue of it being included in DSM V, however, it varies in severity and disability and many people who have it can adjust so as to appear to function normally.

    She used an example of getting up earlier and earlier to get ready for work.

    • fauxmccoy says:

      the dsm-V is considered somewhat controversial here with many practitioners disagreeing strongly with many conditions contained therein. it seems as if SA has embraced it completely.

      because of being raised by a nurse and a bi-polar, i found myself reading the dsm and the PDR at a young age and usually have the two on hand. i have not had a look at the dsm-v, but do know it has not earned wide acceptance here.

      my only surprise with this defense move is that it was not done much earlier as it seems perfectly obvious to me. when i’ve finished with the videos, i’ll explain why.

      also, if you have not watched the prosecution’s case in chief, i would consider it a must. trial by ambush seems the name of the game in SA. what we call discovery is a very different process, surprise witnesses seem to be the norm. court proceedings may be in english and largely based on english common law, but there are many differences. (law other than criminal (civil, contract, family) is basically inherited from the dutch. all branches have made an attempt to also incorporate indigenous concepts. it is not as straight forward as it appears in spite of the robes and language. i am finding it very fascinating.

      • gblock says:

        Although there are a lot of things in the DSM-V that are considered controversial, my impression is that GAD is pretty well recognized and accepted as a disorder.

        • fauxmccoy says:

          oh sure, there is no doubt that GAD is a disorder. there is some controversy over the new definition of it in DSM-V.

          also, there is the fact that not everything listed in the DSM is mental illness, which would be what Nel would have people believe.

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