Publications
Partners
The Defence case is still confused and confusing. The picture presented is remarkably like the legendary accused who said : “I wasn’t there. And if I was, then I didn’t do it. And if I did, I didn’t mean to. And if I did, I meant no harm. “
Amazingly, as we hear from the Defence’s last witness, we still don’t know what Oscar’s actual plea and explanation is. Since he pleaded last year we seem to have run through a variety of possible defences, rather like a legal fashion show, with models stalking up and down the cat-walk and changing dresses rapidly behind the scenes.
Read: Cherry-picking the report and the release of the re-enactment video
In recent discussions on Channel 199 the presenter wondered aloud why the issue has been absent from the media. Yet of course I have often discussed it here on Health24.
But it does indeed deserve more attention. We have seen, to our surprise, that one can spend a great deal of money, and hire two very highly regarded senior advocates, and still fail to defend oneself well.
Read: Is Oscar's defence imploding?
Almost always one’s best bet is to get the best lawyers you can find and take their advice. But, as especially emphasized by the flurry of notes Oscar scribbles and passes forward, it really looks as though he has insisted on running the case himself. Other than to formally withdraw from the case the lawyers, and perhaps especially the advocates, are expected to “take instruction” from their client.
Provided that they do not themselves do anything illegal or deliberately mislead the court they are supposed to follow those instructions, even if these seem very unwise.
One wonders whether they have recommended actually competent and effective expert witnesses, only to have them turned down if they seemed unlikeyl to reflect Oscar as he wishes to be portrayed? There seems to have been an undue emphasis on friendly witnesses who will say nice things about him.
But character evidence is really of little value. Even adorable people sometimes do awful things, and some utterly horrid people can be innocent.
Any genuine expert witness worth his salt will be clear. He will agree to explore the case and advise the advocate whether he can be useful or not, but he is there to assist the Court, and to be as neutral as possible under the circumstances, not to fight on one side or another.
He needs to acknowledge where there is doubt, or where there are alternative explanations to his own. He must refuse to take instructions to find only what they want him to find.
Read: Pistorius has no mental defects
He must look for the important questions the court needs answered and see how his particular expertise can help the court do so. He must not adopt the prosecution or defence strategy and pick out only such aspects of his field of knowledge as can fit that argument.
If a Defence team are adamant that they want witnesses to conform to a particular party line, they may find few if any real experts prepare to go along with that. Then they may need to make do with second-best, with whatever is available and pliable.
We obviously don’t know what has been going on behind the scenes in this particular case, but the pattern has been discouraging.
Otherwise, the team can be like a child with a jig-saw puzzle depicting a seaside scene but who really wanted one showing mountains. They can be bashing the pieces together trying to make them fit, cutting off inconvenient shapes that won’t join up like the pattern they insist on.
A disgraceful insult to all disabled people.
Before the St. Valentine’s Day massacre, Oscar had not merely been a skilled runner, but had done much good work for people with all forms of disability, mainly by emphasizing our abilities, and our rights to be treated like other citizens.
But in this trial, through various evidence, but most of all that of Dr Derman, great damage is being done to all disabled and handicapped people. Derman, to the extent that he’s understandable, seems to be emphatically insisting that just because Oscar’s legs are not entirely typical, his brain and mental state have somehow been deformed and (he even at times seems to explicitly refer to all disabled people) cannot react normally to crises and may have a predilection for violence.
Maybe this is not what he means, but it is the impression that has been created by insulting and simplistic stereotyping.
Read: Oscar's awful witnesses
Oscar did not need ordinary legs to be able to behave sensibly on that awful night. A long time ago he lost part of his limbs, not his mind. Derman, lacking any qualifications whatsoever in psychiatry, has chosen to ignore the expert opinions of four genuine psychiatrists who found no anxiety disorder, insisting that Oscar is exceedingly anxious.
I’ve never before heard an “expert” hint at secret evidence, such as when he said there were important issues about intimacy but that he wouldn’t go into them. If you don’t intend to reveal and explain them, don’t mention them at all.
The Blonde on the Clapham Omnibus.
The proper legal expectation is that we should all behave like an ordinary, average, reasonable person. Derman seems to want a new standard to be created especially for Oscar, with his version of the reasonable disabled person who he assumes must be different and more forgiving of behaviour that, in anyone with ordinary limbs, would be considered definitely criminal.
But why stop there? Should we create separate expectations for people of differing gender, or cultural backgrounds? Maybe expect less from Blondes than Brunettes? This is dangerous nonsense, and should be cast aside vigorously by the court.
Derman has been, as I spotted from the start, a bad witness, maybe due to inexperience in court. He has been petulant, arguing sarcastically with Nel, and pleading to the court that he feels as though it is him on trial.
He has denounced a question as impossible for him to answer, only to answer it very clearly about a minute later. This is pathetic, and undignified, and he has still been treated far more gently than many of us have been in other cases. Give him a green bucket, and encourage him to see this as a learning rather than only a teaching experience.
Read: Why Oscar went for observation
Interestingly, Dr Derman has not mentioned what might be a very relevant and even potentially mitigating factor. He mentioned that Oscar has had sleep problems and that he has been receiving treatment for this.
We don’t know what drugs he has been prescribed, but most of those used are benzodiazepines or similar drugs which, like alcohol, can be significantly disinhibiting and can make it easier for an angry person to fly into a rage and harder for them to control their reactions.
Since returning from observation (possibly relating to effects of the medications he’s said to have received) Oscar’s demeanour has changed noticeably. He has been more chirpy, and has been seen grinning and smirking on his bench apparently in relation to the evidence, and with nary a sign of the green bucket.
Read more:
Who's nuts Oscar or his defence?
Oscar's part-time assessment
Why was Oscar vomiting?
This article is from one of our contributors and the views expressed in it do not necessarily represent those of Health24 and it's staff
