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Psychiatric Tests Raise Question of Pistorius’s Criminal Liability

By Alan Cowell | The New York Times | May 22, 2014

Oscar Pistorius

In more than just miles, it is a long way from Olympic Stadium in London to the Weskoppies Psychiatric Hospital in Pretoria, South Africa, but that is the journey that Oscar Pistorius is about to complete.

Less than two years after he was celebrated at the 2012 Olympic Games as the first disabled athlete to compete against able-bodied runners, Mr. Pistorius on Tuesday was ordered by the judge presiding over his murder trial in Pretoria to present himself as an outpatient at the Weskoppies hospital for up to 30 days of psychiatric assessment.

Starting Monday, a panel of mental health experts will seek to determine whether Mr. Pistorius, in the words of Judge Thokozile Matilda Masipa, was “capable of appreciating the wrongfulness of his act or acting in accordance with appreciation of the wrongfulness of his act” when he opened fire on a locked bathroom door at his home in the early hours of Feb. 14, 2013.

Mr. Pistorius says he feared that an intruder hiding in the bathroom was about to attack and fired in what his defense lawyers call “putative self-defense.” It was only after he broke through the door with a cricket bat that he realized that his girlfriend, Reeva Steenkamp, 29, a model and law school graduate, was on the other side, he has said. The prosecution says he killed her in a jealous rage after an argument.

Since the trial opened on March 3, those two narratives have formed the core of the legal battle. The introduction of a new element — Mr. Pistorius’s mental health, and with it, the question of criminal responsibility — has shifted the case into a new, high-stakes phase that could sway the course of the trial.

By some accounts, the examinations at Weskoppies — built in 1892 in what was then the Republic of Transvaal, and known initially as the Pretoria Lunatic Asylum — could even determine whether the hearings proceed at all.

Tyrone Maseko, a criminal lawyer, said on the television station eNCA in South Africa that the question the psychiatric panel would seek to answer from Mr. Pistorius was “Do you have the ability to appreciate the difference between wrong and right?”

If Mr. Pistorius passes the first part of the test, Mr. Maseko said, the panel’s next move will be to evaluate whether, “at the time of the commission of the offense, he had the ability to act in accordance with that appreciation.”

“If he fails that second part,” he added, “we say he has diminished capacity.”

Two South African lawyers not connected with the case said the country’s Criminal Procedure Act stipulated that defendants found to have a mental disorder or defect that rendered them unable to distinguish between right and wrong at the time of an offense must be committed indefinitely to a mental hospital.

On Tuesday, the 33rd day of the trial, Judge Masipa adjourned the oft-delayed case until June 30 to allow time for the psychiatric evaluation.

The debate about Mr. Pistorius’s mental health erupted last week, when a forensic psychiatrist, Dr. Merryll Vorster, testified for the defense that the athlete, born without fibula bones, had a generalized anxiety disorder dating to a double amputation below the knee at the age of 11 months that was followed by a difficult childhood.

Dr. Vorster said that the disorder did not mean Mr. Pistorius could not distinguish between right and wrong, but that the condition would have affected his behavior on the night of the shooting. Mr. Pistorius’s defense lawyer, Barry Roux, apparently intended the evidence to bolster the argument that the athlete was unusually susceptible to fears about intruders, particularly in light of a sense of vulnerability related to his disability.

The prosecutor, Gerrie Nel, said the mere suggestion of a mental disorder demanded a full psychiatric report, and the judge agreed.

Mr. Pistorius faces a mandatory 25-year minimum prison term if convicted of premeditated murder.

Such considerations seem remote from the heady days of August 2012, when Mr. Pistorius was lauded by his peers as an inspiration, even though he came in last in the Olympic 400-meter semifinals. “Oscar is someone special, especially in our event,” Kirani James of Grenada, who won the race, said after waiting to hug Mr. Pistorius at the finish line. “It’s a memorable moment for me to be out here performing with him.”

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