Update: The Western Cape High Court is expected
to decide whether British businessman Shrien Dewani's application to be
discharged of killing his wife Anni has been successful.
The Dewani Trial is already a conspicuous failure of S.A. justice.
Enormous amounts of public funds have been spent on the battle to get Dewani extradited to South Africa (the full cost has never been revealed,) and so many aspects of this case have been so badly handled that one feels ashamed.
We can now understand why the National Prosecuting Authority (NPA) opposed the televising of the case – they wouldn’t want us to see this shambles. They would probably prefer a complete media blackout on the case.
Read: Psychiatrist: Why Oscar deserves to be on TV
The defence has managed to do exactly what it was paid to do; the prosecution, however, has been so determinedly feeble that a defence team was hardly needed at all.
The judge hasn’t helped either, showing what seems like barely controlled contempt for the prosecutors and their case.
Journalist Alex Crawford tweeted: “Occasionally, just ever so occasionally, the Judge asks a Q of the State which doesn't indicate she'd quite like to throttle him.”
Tweets by Alex Crawford
Mopping the floor with the prosecutor
Judge Traverso reminded me of the woman who said she’d found the secret to a long marriage was never to go to bed angry – which means that she’s probably been awake since 1946. She seemed at loggerheads with the hapless prosecutor Mopp from the start, highly critical of his case and his groundwork.
Read: Dewani case: latest odd claims
Frankly, as I will explore below, this was actually fair criticism of sloppy preparation and performance. Of concern, though, was her unusually unpleasant, irritable, unhelpful and disrespectful manner. It felt as though there had some prior unresolved conflict between them. When she instructed Mopp to deal with noise outside the Court, as though he were a minor orderly or servant, jaws dropped.
In contrast, she was exceedingly charitable and affable with the Defence, not only frequently encouraging and agreeing with them, but even, most unusually, suggesting further arguments they could use.
For his part, Mopp has shown the steadfast bravery of a jellyfish, as assertive as a blancmange, as effectively eloquent as a pot plant, and as confident as a turnip. Too polite, timid, passive, and tame.
An irascible judge
Bias is mostly not obvious or blatant. What troubles me in this instance is that this judge often didn't seem to be even trying to appear neutral. A judge needs to hear both sides of the argument, fully, before drawing conclusions.
It's fair for her to ask probing questions of each advocate to make sure their precise argument is clear. But I haven't noticed her making any criticism of the Defence case, or challenging any of their arguments, which included entirely unsubstantiated and untested assertions.
Various claims were made in the Dewani plea explanation, and there’s a long list of promises van Zyl made of things his client “will explain” or say – none of which should be taken into account in the slightest by the Court until they have actually been stated formally under oath and tested by cross-examination.
While the Defence appeared to receive credit for evidence not yet led or tested, the Judge rejected unheard some of the prosecution’s evidence, refusing to allow it to even be presented.
As I wrote much earlier, evidence of Shrien’s sexual orientation and preferences was surely highly relevant, providing, within his cultural setting, a clear motive for wanting to rid himself of a wife who had discovered this and may have been about to reveal it.
Watch: Anni Dewani's parents Vinod and Nilam Hindochina describe their torture listening to evidence in court and how Shrien Dewani deceived everyone.
Read: What is sexual orientation?
It would have been entirely justifiable had the judge made a reasoned decision to disregard all such evidence and the arguments based on it, after having heard it fully, explaining why she considered it not relevant. To reject it unheard is much harder to justify.
As always, one must remember that most judges have little expertise in psychology and shouldn’t pronounce on psychological matters, or make such assumptions. Traverso was quoted as speaking of how the conspirators "should have" reacted during the offence. There is no "should have" about it.
There's a wide range of possible behaviours, of varying degrees of credibility and probability, and a forensic psychiatrist or psychologist could comment expertly on this.
This was not (as far as the evidence goes) a team of professional hit-men with a practiced and effective modus operandi, but a bunch of greedy and nervous amateurs making it up as they went along.
The judge seemed to expect them to have planned in advance exactly where each person should sit. What does she expect? The issuing of numbered seating tickets?
She quibbled about the child-proof locks, overlooking the fact that they let Shrien out and ensured his safety without even creasing his suit.
Is this clumsy and isolated prosecution about to lose the case? It’s easy to understand how paranoid conspiracy theories arise. How can one explain such a carefully and persistently inept prosecution? Surely not simple incompetence or laziness, as Mopp seems to have been effective in other reported cases.
Read: Why people believe conspiracy theories
There are reports of the prosecutors saying they were entirely content with how they were presenting the case, and other reports that they showed no interest at all in friendly offers of assistance and expert advice from legal and scientific experts.
More suspicious observers mutter about corruption (so common in S.A. public service) or mysterious “orders from above” instructing them to lose the case. It’s hard not to suspect that there is a fascinating “backstory” going on here, which may only be revealed later.
Preparation of witnesses seems to have been strangely inadequate, as was anticipation of weaknesses in their case and supporting arguments. They called a witness who said he wasn’t an expert in the subject he was asked about.
The very obviously relevant primer residue tests were not done until the last minute. As the Judge emphasized, due to the extradition fiasco, they have, unusually, had four years in which to prepare their case – with amazingly little to show for it.
Read: The Dewani trial finally begins
One wonders why DPP Rodney de Kock appeared to be dealing with the case for 4 years, only to suddenly and oddly withdraw at the last minute and delegate it to less experienced staffers. He owes us all an explanation for this choice.
The level of disorganization of these prosecutors is an embarrassment to everyone – they can't even get their act together enough to protect themselves, let alone the victims of this crime. When they took up the case they were described as a “formidable team” of “brilliant legal minds”, with a “powerful courtroom presence”. Such descriptions are increasingly looking like a really bad joke.
So much not done
Unwarranted assumptions were made about the significance of discrepancies in witness statements. Small discrepancies are not only usually irrelevant, but actually suggest truth-telling. If, over four uncertain years they all said exactly the same thing, it would be highly suspect, suggesting carefully rehearsed falsehoods.
The prosecution have long needed proper expert psychological advice, and to call one or more genuine experts in grief and in trauma to authoritatively clarify false assumptions.
Very highly suspicious behaviours, strongly suggesting guilt, are being misrepresented as though they were typical grief responses. Such claims need to be backed by tested expert evidence, and not accepted merely as stated by a lawyer.
There is so much the prosecutors have to do. Witness after witness has been allowed to leave the stand, mauled in cross-examination by the defence, without any effort by the prosecutor to re-examine them and clarify crucial issues.
One of the forensic witnesses was seriously deficient, but an adept prosecutor would have recognised that beforehand, and either repaired this or used another witness.
They really seem to have given up before the matter even started. Van Zyl is highly skilled, but it is the prosecutors who have been Dewani’s true “dream team”.
At no time have they managed to draw the court’s attention with proper expert witnesses to the way Shrien managed for so long to evade justice by presumably faking symptoms of mental illness. Why, if there is a charge of defeating the ends of justice, which the Prosecutor has largely neglected, are his delaying tactics not highlighted as relevant?
Read: Mental illness genes identified
It’s interesting that in 2008 Judge Traverso was criticised by Jacob Modise, head of the Road Accident Fund, complaining that their hearing was "doomed from the beginning", accusing her of "already having made up her mind" on the outcome of the matter, and that “the judge did not allow the RAF counsel enough time to state his case”.
The prosecutors seem to have just numbly absorbed all challenges and criticisms without noticeably adapting or defending their position, just plodding on. Are they really too arrogant to recognize that they have been failing all along? They seem never to have heard of rebutting the other side’s arguments.
Interestingly, in the Pistorius case, where they were competing with a live TV feed, journalists and TV channels invested more time and effort into also providing quality coverage of their own.
The Oscar TV channel with maybe one or two exceptions, found some really excellent lawyers to comment on the proceedings, but except for the admirable Dr Carr, much of their psychological commentary was lamentable.
In the Dewani matter there has been some excellent reporting by tweet, and insightful articles online, but much truly lazy reporting. Ridiculously too much coverage was devoted to very few people whose apparent bias needed to be questioned.
Nobody spoke up for Anni Hindocha, the victim. Too few reporters are standing back far enough to look at, and report on, the larger picture, which is decidedly peculiar.
Read: How a murderer's mind works
One still wonders who paid for Mngeni’s defence, and why, after confessing to the murder, he changed his plea. With the evidence against him, there was no benefit to him in changing to a not guilty plea, but it was marvellous for the Dewani defence as it forced the state to disclose much more of their case against the group of accused.
Funding was said to have come from a mysterious “Mr Edmondo”, a “human rights guy from Kenya”, never identified. What the human rights element in Mngeni’s case, a small-time crook who murdered an innocent tourist, was supposed to be, nobody has been able to explain.
This article is written one of Health24's contributors and does not necessarily reflect the views of Health24 or it's partners.
Health24 note: A petition has been organised, calling for Judge Traverso to be dismissed from the Dewani murder trial. Anni's parents have indicated that they intend to sue Dewani for not revealing his bisexuality before he married their daughter.
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