PRINT PAGEThe “Bull Dog” Cross

Written by Roy Black

Gerrie NelIn the beginning I had little interest in the Oscar Pistorius trial; only after reading descriptions of Gerrie “The Bull Dog” Nel’s cross-examination of Pistorius (OP) did I pay attention. The skill of cross examination is something I am intensely interested in and Nel failed to disappoint me. I could teach a seminar using his technique.

The Bull Dog tortured poor Oscar for an intense five days. He brutalized him, beat him into Silly Putty, and hectored him into vomiting, crying, fainting and pleading for recesses. Pistorius looked dazed as if hit by a runaway truck when he had no idea he wandered into the street. He entered this battle of wits unarmed.

Nel is a sarcastic SOB which I enjoy so long as he is not assaulting one of my clients. I have never seen a prosecutor as skilled in the art, but remember this was a judge trial. No rational prosecutor could do an assault like this in front of a jury. They would see it as too over bearing and smack of inspector Javert, but you can’t beat this for pure sadistic enjoyment.

Rarely do I read any textbooks or law review articles on cross. They are usually too simplified or impractical to use, but Nel is neither. He puts the theory into practice. His lines of questions are ready to use like a guide book. And his method is easy to grasp: He challenges every detail of the story, every claim, every dodge, every obfuscation.

So what did he do? Let me show some of the exchanges and how deliciously clever Nel is with innuendo and sarcasm. Unfortunately our judges won’t allow the personal comments, but they really work for him because they add a conclusion to his line of questions.

The Opening Salvo

At first I thought Nel was out of his mind, but he was devilishly clever. He wanted to frighten Pistorius and throw him off his game while getting everyone’s attention.

Nel took the defense by surprise when he played a video, taken just months before Steenkamp’s death, of Pistorius shooting a watermelon at a firing range with friends and describing the impact as a “zombie-stopper.”

Nel: “You know that the same happened to Reeva’s head? It exploded.” Then Nel showed a grisly photograph of Steenkamp’s wounded head, her hair soaked in blood and tissue from the impact of the bullet that tore through her skull, causing spectators in the public gallery to gasp.

Nel, almost shouting: “Have a look there, I know you don’t want to because you don’t want to take responsibility, but it’s time that you look at it.”

Pistorius, sobbing heavily, said: “I’ve taken responsibility but I will not look at a picture where I’m tormented by what I saw and felt that night. As I picked Reeva up my fingers touched her head — I remember, I don’t have to look at a picture, I was there.”

Pistorius’ attorney, Barry Roux, objected calling Nel’s tactics an “ambush.” It was and the court adjourned for a recess, leaving a hysterical Pistorius to weep in the dock. This is starting with a bang.

Responsibility

Nel hammered Pistorius’ lack of taking responsibility as one of his premiere themes:

Pistorius acknowledged that people around the world used to look up to him as a sporting hero until he made a mistake.

Nel: “You made a mistake? You killed a person. You killed Reeva Steenkamp, that’s what you did. You killed her. Won’t you take responsibility for that?”

OP weakly: “I did.”

* * *

Nel: “Sometimes you have to take responsibility.”

* * *

Nel closed his cross-examination by inviting Pistorius to take the blame for shooting Steenkamp, but he refused to give a direct response, saying only that he opened fire because he believed his life was in danger. That remark drew barbed follow-up questions from the prosecutor.

Nel: “We should blame somebody . . . Should we blame Reeva?”

Nel harshly criticized Pistorius as someone who is unwilling to take responsibility and in a final volley of accusations Nel told Pistorius that he intentionally killed Steenkamp.

Nel: “She was locked into the bathroom, and you armed yourself with the sole purpose of shooting and killing her . . . and that’s what you did.”

Nel: “Afterwards, indeed, you were overcome by what you’d done, that is true. Only because you intentioned to kill her. You realized that.”

Pistorius, in the dying moments of his cross-examination, still resolutely refused to accept “blame” for Ms. Steenkamp’s death and continued to claim his own, ultimate innocence on all the charges. It didn’t go over well. The great athlete devolved into something much smaller.

The Bail Hearing

A great lawyer can use anything the witness has said written or adopted to his advantage. Pistorius’ lawyer was successful getting him bail, but his bail application came back to haunt him as Nel wielded it as a weapon.

When Nel would point out contradictions between Pistorius’ bail hearing affidavit and his court testimony, Pistorius blamed his defense lawyer, Barry Roux. For example, he blamed Roux for an error saying he went out onto the balcony, when he did not. Nel tortured him with that excuse. Every time Pistorius changed his version or made a mistake Nel would ask if that was his lawyer’s fault. Not only did Nel damage Pistorius, but he equally impeached his opponent’s lawyer.

* * *

Most damning of all was the noise Pistorius has claimed to have heard, of the toilet door slamming, but which was not mentioned either in his bail application, or his plea explanation this time around. It is the crucial noise which convinced Pistorius an intruder was in his bathroom.

At his bail application, Pistorius claimed: “I saw the bathroom door was closed and I thought someone could be in there.”

Nel: “There’s not a single word of that door closing in your bail application. Why?”

OP: “I’m not sure, my lady.”

“It’s not in your plea explanation either, why is that?”

“I’m not sure, my lady.”

“If you said it to your counsel? Why did they not put it in?”

Again, the reply was the same. “I’m not sure, my lady.”

* * *

Nel alleges it was never in the bail application because he never told his legal counsel – like many of the other details he has “added” into his version during evidence.

Nel: “And when you were in the bathroom you saw the window open, and the toilet door shut. This particular noise – that’s a significant noise. It’s important . . . because there’s not a single word about that door closing, shutting in your bail application.”

OP: “I understand that’s the case, my lady.”

Nel: “Why?”

OP: “I’m not sure, my lady, you’ll have to ask my legal team.”

Nel: “It’s not true because you invented it.”

OP: “That’s not true, my lady.”
This exchange is proof that sometimes you can get away with a “why” question on cross-examination. Nel knew he didn’t have a good answer.

 “Tailoring”

Nel loves to accuse OP of tailoring his evidence and then giving an answer that is nonsensical. Throughout the grueling questioning, Nel accused Pistorius of “tailoring” evidence and “concocting” a story that he shot out of fear of an intruder in a toilet cubicle in his bathroom in the predawn hours of February 14, 2013.

* * *
Nel: “Unfortunately I have to put it to you that it’s getting more and more improbable.”

* * *

For example Nel said to OP that he didn’t give any evidence about anybody working on his alarm in February 2013.

OP: “If I didn’t then I didn’t.”

Nel tells him it isn’t that easy.

Pistorius says he doesn’t know why it wasn’t mentioned earlier.

Nel then says I suppose we are adding this to the list of Mr Roux’s mistakes.

* * *

Nel: “You fired before you saw the door move?”

OP: “I fired as I heard the noise.”

Nel: “But you could see the door, see the handle?”

OP: “Yes I could see the handle.”

Nel: “You never saw the door or the handle move?”

OP: “I fired as I heard the noise.”

Nel: “You’re not listening.”

Nel: “You’re changing your view as you go, aren’t you?”

OP: “It’s not true, my lady.”

* * *

Nel really hammers the inconsistencies and improbabilities in every detail of Pistorius’ version: amplifier lights, TV lights, duvet position, fan position, and even the whispering to Reeva.

Nel tells Pistorius to “remember the theme of today is tailoring your evidence.”

But OP says he does not believe he is doing that. Just telling the truth and what he remembers.

* * *

Nel asks why Pistorius’ barrister Barry Roux did not cross-examine van Rensburg about the location of the fan.

Nel: “The only reason is that it was never your version, until cross-examination.”

Then Nel added it is another “tailored version” made on the spot.

Nel: “Mr Roux would not have done it because of the position of the duvet, is that not true?”

OP: “It’s not true, my lady.”

“The Truth”

Nel constantly accuses OP of not telling the truth, or tailoring his evidence:

Nel: “Your version is not only untruthful but it’s so improbable that it cannot be reasonably, possibly true.”

* * *

Nel: Your version is “so improbable that nobody would think it is reasonably or possibly true.”

He was referring to Pistorius’ account that items had been moved in the room before a police photographer took pictures.

He also says we’re adding it to the list of Mr Roux’s mistakes.

* * *

Nel: “You are getting deeper into trouble Mr Pistorius. You are tailoring your evidence.”

* * *
Nel asks him if he is tired and wants time. Pistorius starts getting emotional. “I am tired . . . . I made a mistake and I’ve admitted making a mistake.”

Nel: “With respect, Mr Pistorius, I’m not convinced about your answer now. I think you’re trying to cover up for lies.”

* * *

Nel grows angry when Pistorius says that he can’t remember who he called to pick him up at a restaurant. He is talking about the improbabilities of him being unable to remember who he phoned and that his counsel wouldn’t ask him. Nel says that he can’t remember because it never happened.

Nel: “You remember exactly where you turned left, where you turned right, but you don’t remember who you called. You don’t want anyone to check up on it.” He adds that this is because it’s not true.

* * *

OP: “If I was sure I wouldn’t have made a mistake . . . .  I forgot about that point. I can’t explain why I forgot.”

Nel: “I’m putting it to you that your mistakes are as convincing as your evidence in the way you deliver it. And that’s a problem. Do you want to comment on it?”

OP: “No my lady.”

* * *

Nel says Pistorius wants the court to believe that an intruder came through the window then closed the door. Pistorius says he is not sure what an intruder would do if he was caught off-guard.

Nel: “It’s so far fetched that it would happen that it’s improbable.”

* * *

Pistorius says he stood at the point where he had moved back to and he could see the window with his firearm still in front of him. He shouted for Reeva to call the police and kept shouting.

Nel says that this is the most improbable part of his evidence. She is three meters away from him in the toilet and she “never uttered a word.”

OP: “She would have been scared.”

Nel says this is the most improbable part of his version. “She would have responded.”

OP: “That’s not true, my lady.”

Nel: “In fact she is standing on your version and the state’s version, she is standing behind the door facing the bathroom. If she was scared, she would not have been there, she would have been hidden somewhere in the toilet.”

He says she was talking to Pistorius and that’s the reason.

Nel: “She wasn’t scared of anything, except you.”

* * *

Nel says it is the state’s version that Pistorius fired at Reeva, put the gun down then tried to rescue her.

Nel: “I’m saying your version is so improbable because you wouldn’t have run up and down with the gun in your hand.”

OP: “I understand it doesn’t sound rational, but I didn’t have a rational frame of mind.”

* * *

Nel: “I’ve heard your evidence of how it affected you and how you felt. You’ll agree with me that for Reeva being in that small cubicle when four shots were fired must have been horrific.”

Nel: “You knew that Reeva was behind the door and you shot at her. That’s the only thing that makes sense.”

Pistorius: “That’s not true my lady.”

* * *

Nel: Why did you spontaneously just testify, “I checked the balcony?”

OP: I don’t know my lady – I ran out, I screamed for help. I don’t know why I said that.

Nel submits he just said that because he knows he’s been caught out on logic at least, for not having checked the bedroom door to see if Reeva went downstairs.

Pistorius can’t explain why he said “checked.”

Nel: “Because you are tailoring your evidence.”

* * *

Nel: “You have to create time, in your version. You have to build a time gap for Reeva to get to the bathroom. That’s why you invented the blue light.”

* * *

I love this exchange. Nel gets Pistorius to call himself a liar:

Nel: “When you armed yourself and spoke to Reeva, what did you say?”

OP: “I told her to get down and phone the police.”

Nel: “Did you whisper?”

OP: “I didn’t. I said it in a low tone.”

Nel: “So the person who said you whispered would be lying?”

Pistorius: “Correct.”

Nel: “That person is you Mr. Pistorius.”

OP: “I made a mistake.”

* * *

When Nel accuses Pistorius of “tailoring his evidence,” he also combines it with “implications.” Meaning Pistorius, when boxed in by Nel’s questions, searches for any way out:

Nel: “You aren’t listening to my questions. You’re thinking of implications.”

Tear Breaks

Pistorius breaks down in tears many times, prompting the judge to call for adjournments. The media starts calling them “tear breaks.”

Nel will have none of it; for example he accuses Pistorius of trying to “hide” the real version of how he came to shoot the model through his locked bathroom door by sobbing when inconsistencies and improbabilities that tarnish his case are pointed out:

Nel: “When I said you wanted to shoot Reeva you didn’t burst into tears you just said ‘No.’ I indicated to you how your defense came unstuck. That caused the emotion.”

Nel: “You’re not using your emotional state as an escape, are you?”

* * *

Nel ties Pistorius in knots as he clobbers him on the illogic of his answers. He is trying (successfully) to get Pistorius to contradict himself as many times as he can.

Nel asks why he’s tearful, because he hasn’t mentioned Reeva.

Nel: “Mr Pistorius, your using your emotional state as an escape.”

He is relentless; pushes Pistorius on how improbable it is that in the aftermath of the shooting, he ran up and down the corridor with the firearm cocked in his hand, and it didn’t fire.

OP: “I wasn’t thinking about the firearm. If I was so calculating I would have put the gun on safe and put it somewhere.”

* * *

Nel: “Mr. Pistorius, this is not good for you. You said you never faced the bed, you would have faced the passage.”

Nel latches on – so you foresaw the danger of firing the warning shot?

OP: “I pulled the trigger as I perceived danger to be coming towards me.”

Nel: “So it was just lucky that the gun was pointed at the door?”

OP: “Why would it be LUCKY? She lost her LIFE!”

Nel: “Now you cry again . . .”

I’ve never seen a witness cry and sob as much as him. I’ve never seen someone vomiting in court. I’ve never had a client who reached the emotional level of Pistorius. But Nel, like some kind of agent of vengeance, is without any sympathy, and continues to drill down into the minutiae of Mr. Pistorius’ story, accusing him of willfully turning his emotions on and off:

Nel once again: “You’re not using your emotional state as an escape, are you?”

Pistorius Changes His defense

Nel actually badgered Pistorius into changing his defense.

The prosecutor started by trying to pin down Pistorius on whether he intended to shoot at the perceived intruder.

OP: “I didn’t have time to think about what I wanted to do.”

Nel asks him whether he was changing his legal strategy from “self-defense” to “involuntary action.”

* * *

Nel: “I’m going to argue that you got emotional because you got your defenses mixed up. That caused the emotions in you.”

Pistorius disagrees, says he doesn’t even understand the differences in the two.

* * *

He finally got him to switch his defense. Pistorius seemed to move away from self-defense, to claiming that the shooting was involuntary, saying at one point:

OP: “Before I could make sense of the situation, I fired four shots.”

* * *

Nel: “Why would you fire, if the magazine rack moved, because it has nothing to do with the door?”

OP: “Because I didn’t have time to interpret it, my lady. I thought it was the door opening. In retrospect, it could be the only thing that moved in the bathroom. It was the only loose thing in the bathroom, my lady.”

This is a devastating admission because self-defense requires the existence of an imminent danger of death or serious bodily harm before a person can use deadly force in self-defense. I don’t think a magazine rack would qualify.

* * *

Pistorius said he shouted for any intruder or intruders to get out of his house and that he had no idea who was behind the toilet door when he fired.

Nel immediately jumps on this claim and says if true he didn’t know whether a child, an unarmed burglar or more than one person could have been in the toilet stall.

Nel: “You never gave them a chance, in your version,” noting that he never fired a warning shot. Nel says the truth is that he shot to kill — and that his target was Steenkamp.

* * *

Nel takes Pistorius back to the athlete’s bail application. In the application, he says he heard movement in the bathroom – and the day before Pistorius said it sounded like someone was moving wood near the toilet.

Pistorius tells the court he is “getting confused” as Nel accuses him of “constantly thinking of a version” of events.

Nel: “She never told you she was going to the toilet.”

When Pistorius responded with another reference to a perceived attacker in his toilet:

Nel: “Who should we blame for the Black Talon rounds that ripped through her body?”

Then he asked: “Should we blame the government?”

* * *

OP: “My memory is not very good at the moment, I’m under a lot of pressure sitting here. I’m defending for my life.”

Nel: “But Reeva doesn’t have a life anymore, because of what you did, Please answer and don’t think of the implications to you.” Ouch.

* * *

In response to Pistorius’ claim that he “wasn’t thinking.”

Nel counters: “That is so reckless. You weren’t thinking, you just fired.”

* * *

Nel: “If you wanted to shoot at an intruder, how would you do it?

OP: “probably higher,” makes reference to chest-height.

OP: “I fired because I got a fright.”

Nel: “So we can conclude for once and for all that you did not intend to shoot an intruder based on the fact you shot at chest height.”

OP: “If that’s what you say.”

Nel: “It’s not what I say, it’s what you say.”

* * *

Then there were Reeva’s jeans, found on the floor, when all her other clothes were neatly packed away.

Nel: “The jeans were out because she wanted to leave.”

OP: “It’s not true, my lady.”

* * *

When asked about the contents of Ms. Steenkamp’s stomach in her autopsy, that appear to indicate she was highly likely to have eaten within two hours of her death at 3am – significantly later than the 7pm, Pistorius has claimed, he can offer no explanation.

OP: “I don’t know why.”

Nel: “This particular point I put to you is devastating. She cannot have gone down and ate because the alarm would have gone off.”

Oscar has a problem – shooting through a locked door is not self-defense. According to his version of what happened, a reasonable person in his situation would not have believed that he was in imminent danger of death or serious bodily harm. He had a loaded gun in his hand. As long as the door remained shut, he was not in imminent danger. It does not matter who was in the bathroom. No matter what the person was up to, Pistorius had no reason to shoot. He was not in any danger. And instead of robbers or burglars, that person was his girlfriend. That is not self-defense.

* * *

Nel sums up his own style of questioning in this testy but classic exchange:

Nel is pushing and badgering Pistorius who finally says: “I don’t want to argue with you.”

Nel fires back: “Well I want to argue with YOU!”

The Pit Bull v. The Blade Runner

This was a battle that could only have one winner. Nel may not have totally destroyed Pistorius’ defense, but he certainly rocked his credibility. Pistorius was forgetful, evasive, agitated, uncertain, and deliberately ambiguous about the key issues at the heart of the trial. There can be no confidence in his testimony.

Nel is a nitpicker. He seizes on the smallest contradiction and blows it into importance. Every detail is picked apart. He often confuses Pistorius and causes him to muddle his story. Piece by piece, the picture painted by Pistorius, of a tragic accident in which he mistook Reeva for an intruder locked in the bathroom, was pulled apart, and all Pistorius could do is repeat: “It’s not true, my lady,” “I’m not sure, my lady,” and “I don’t remember.”

When I started writing this blog, my intention was to study the art of advocacy. To find out what works in the courtroom. This post is the best example. I studied Nel’s style to find out why his cross worked and what can I learn from it. It has enhanced my skills yet I can’t put a finger on any one idea. It is the whole experience. The idea of challenging everything no matter how small. It can bring wonderful gifts.

Addendum: How well did Nel perform in Pistorius’ cross-examination? The South African Times reports the following: “Nel would get ‘people’s choice’ prize if it were put to a vote. The biggest drawcard of the Oscar Pistorius murder trial was the cross-examination of the Blade Runner by prosecutor Gerrie Nel. This is according to global statistics of online news and social media coverage of the trial compiled by media monitoring company Data Driven Insight. Interest in the trial peaked in the week of April 7 – when Nel started his cross-examination – with 563864 clips on social media and 29514 online news items over seven days.”

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11 Comments to The “Bull Dog” Cross

  1. April 24, 2014 at 9:35 pm | Permalink

    Roy-great post! Of course, we can’t get away with the ad hominem attacks, but it is interesting to watch Nel’s attack.

  2. April 24, 2014 at 11:40 pm | Permalink

    Fascinating. Apparently, “Objection, argumentative” is not available in South Africa.

  3. April 25, 2014 at 9:15 am | Permalink

    Great catch-up transcript….

    Several things popped-out, one being “Nel tells Pistorius to “remember the theme of today is tailoring your evidence.”

    Nel declaring the “theme of today”- creating the theme like a predetermined stamp of approval from the audience- that can not be, or will not be disputed, as no one would dare want to interrupt their popcorn eating while a theme is played out.

    Who would have tried to interrupt the theme of Peyton Place? Smart tag!

  4. April 25, 2014 at 9:23 am | Permalink

    P.S. People like when others create theme’s for them. Theme’s are easy spaces to join. The theme of the event is white tie- and we are already wearing that white tie and need not come-up with an attire idea for that event. It is done, it is said.

    Smart marketing. Smart PR. And it appears, smart legal strategy too.

  5. marc cooper's Gravatar marc cooper
    April 25, 2014 at 9:49 am | Permalink

    The reason it is a judge trial and not a jury trial is because essentially the system doesn’t trust juries. http://www.businessinsider.com/heres-why-oscar-pistorius-wont-get-a-jury-trial-2014-4 As you point out, this limitation has other unintended consequences.

  6. Bob Rodriguez's Gravatar Bob Rodriguez
    April 25, 2014 at 12:03 pm | Permalink

    Excellent summation Roy. Now the million dollar question is will he be convicted. South Africa does not exactly heed the clarion call for women’s rights. It will be interesting to see if justice prevails.

  7. Allison Williams Esq.'s Gravatar Allison Williams Esq.
    April 28, 2014 at 7:34 am | Permalink

    My take is that Pistorius was already at a disadvantage given the weak and avoiding nature of his responses to Nel’s inundating attacks.

  8. April 28, 2014 at 8:49 pm | Permalink

    From reading the cross exam by Nel quoted above I think much of what he did would be too argumentative for a judge not to sustain an objection based on such grounds. However, as you say, the prosecutor is not doing this “mean cross,” which is my term, in front of a jury where he would not be received well by most people. He sounds ruthless and very bright.

  9. May 24, 2014 at 4:20 pm | Permalink

    https://www.youtube.com/watch?v=MQUW3Km01BM video posted the day before killer killed 6 people in college town. he doesnt mention hunting deer as his justification for his gun ownership.

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