Murray was entitled to be displeased. This was the last thing he would have anticipated. He had to change the topic of his questions or sit down on an unfavourable answer. He did the former.
‘There are parallels between this case and the cases of the two soldiers in the Eastern Cape and the two Johannesburg policemen who went about killing black people, aren’t there?’
It was a question that had preyed on my mind from the first day when Roshnee had come to my chambers to ask me to undertake the defence. Our witness had to concede.
‘Yes,’ she said.
Murray wrapped the point up quickly. ‘And if what the defendant told you is untrue, then we would have every reason to think that he’s no more than a racist murderer, wouldn’t we?’
‘That is for the Court to decide,’ she had the grace to concede.
‘I have no further questions for this witness, thank you, M’Lord.’ Murray sat down after the favourable answer.
I was about to say that I had no re-examination when the Judge spoke. ‘I wonder if I could ask you to elaborate on a few matters that are still unclear to me.’
‘Certainly, M’Lord,’ said Marianne. I sat down and watched.
Judge van Zyl started with an observation. ‘I watched the defendant very closely when he gave evidence and I don’t know whether he was acting or not when he said that he couldn’t believe that he could have done what he did at the reservoir. He said it more than once. How would that fit in with your theory, if that reaction is not faked?’
‘M’Lord, this is a known phenomenon in psychiatry and very typical of a catathymic crisis. We say that the patient experienced events as unreal, ego dystonic. In other words, the patient cannot understand how he could have done something like that. The event clashes with his own perception of himself.’ She looked at the Judge. ‘I hope I’ve made it clearer rather than confusing the issue.’
‘Thank you, I think I followed that,’ said the Judge. ‘My next question relates to the defendant’s behaviour after his arrest. We learned here that he wouldn’t speak to anyone, not even his parents, for months. Why would he do that?’
‘It is not uncommon in this kind of crisis that for a long period the patient is devoid of emotion and withdraws into a cocoon of silence. We have to treat that, of course, because the patient cannot hope to be able to deal with the reality of the current, post-crisis situation unless he learns to accept what he has done and to live with the consequences.’
Judge van Zyl looked up at the spectators in the balcony at the back of the court, but his eyes were not focused on them. Something was troubling him, it appeared.
‘How certain are you that the defendant has told you the truth about his work?’ he asked at last.
There was an even longer pause. Marianne bit her lip and I saw just the slightest shake of her head.
‘You don’t appear to be certain,’ said the Judge, but his tone was not unkind.
She sighed and a small crack opened in the facade of our case. The Judge opened it wider. ‘Please tell us what doubts you have.’
‘I think his work gave him satisfaction,’ she said. The answer was as enigmatic as it was vague.
‘He did his job willingly and it made him feel good, is that what you think?’
‘Yes.’
Wierda whispered under his breath, close to my ear, ‘Fuck!’
Judge van Zyl had not finished either. His next series of questions had nothing to do with guilt or innocence.
‘I’d like to hear your comments on another aspect, Dr Schlebusch,’ he said.
Marianne was an attractive woman and Judge van Zyl had turned his charming side to the witness box.
‘It appears from the evidence that the gallows escorts are all young men in their early twenties. How is the work they have to do going to affect them in the long run, in your opinion?’
It was a question Wierda and I had been afraid to ask. The answer could so easily go against our client. What if the other warders coped perfectly well with their situation?
‘M’Lord,’ she said, ‘how this type of work would affect an individual escort would depend on a number of circumstances, of which two factors are perhaps more significant than the others. The first is that they may develop a dependency on the adrenalin rush the process induces. The other is whether they receive appropriate counselling on a regular basis.’
The Judge watched her as she added, ‘I could elaborate if you want me to.’
‘Thank you,’ he said. ‘Perhaps you could tell us what you mean by developing a dependency? Are you saying that a person could become addicted to killing in this way?’
The question had come out in a particularly menacing way, for the defence, but the Judge’s tone was inquisitive, not suggestive, and I didn’t quite know what to make of his line of questioning. Wierda and I knew very well that Labuschagne had confessed to us that he had become addicted to escort duty.
Marianne Schlebusch gave another lecture. ‘M’Lord, you can develop a dependency on killing just as you can become dependent on alcohol, or drugs, or tobacco, or even sex.’ There was a semi smile on her lips when she continued, ‘A dependency can be created deliberately or accidentally. It is created accidentally when repeated use of the substance or participation in the event leads to an addiction to the effects that the substance or activity produce. It is deliberately created if the subject is manipulated in such a way that the dependency is created in a controlled fashion. I could give two examples. The first is a medical example. Some orthopaedic surgeons deliberately create a dependency on opium-based painkillers in patients who have suffered severe injuries that produce chronic pain of such severity that the patient is in danger of suffering psychological damage. The opiate dependency is not in itself the desired end result but a means to treating the patient. The philosophy behind it is that it is easier to cure the patient of the opiate dependency later than to cope with the psychological fallout from chronic, unbearable pain.’
The court had again become very quiet. Marianne did not speak very loudly and her voice could not have carried beyond the first few rows in the public gallery. Everyone was straining to hear. She waited for a hint from the Judge and when he lifted his pen, she continued, ‘The second example is in the training we give our soldiers, especially the men in the Special Forces such as the Parabats, the Navy divers and the Recces. We train them for special activities that produce large amounts of adrenalin in their bodies and they become addicted to those activities or, should I say, they become addicted to the adrenalin and in order to obtain it they initiate the activities concerned. They want to jump out of the aircraft when every sane person – I should not use that word, because they are all sane soldiers – when every ordinary person would baulk at the thought of jumping out. The same goes for the divers, they want to go down into those cold, murky and dark waters when the rest of us are too scared to go anywhere near.’
She wanted to say more but the Judge stopped her. ‘We get the point,’ he said. ‘What these specially trained men do is to participate in extraordinary and dangerous activities and they look forward to it. Is that what you are saying?’
‘Indeed, M’Lord.’
Judge van Zyl received a nudge from the Assessor on his left. ‘What was the other factor you mentioned?’ he asked.
‘It is whether counselling is available, M’Lord,’ she said.
‘Tell us about that, please.’
Wierda had stopped taking notes. I pretended to write down every word but was more concerned about the direction of the Judge’s questions. I did not like the idea that control over the evidence was slipping away from me.
‘The escorts should have received regular counselling and should not have been threatened with dismissal or punitive duties or any form of disciplinary action if they availed themselves of counselling.’ Marianne turned her head to look directly at the Warrant Officer, but he avoided her eyes and sat staring at James Murray’s back.
‘How wou
ld counselling help them? I mean, can a counsellor really do anything for someone with this kind of job?’ asked the Judge.
‘They can indeed, M’Lord. They can help by encouraging the subject to speak, to talk about his experience and by talking about it to start processing it and coming to terms with his fears and anxieties and feelings of guilt or even inadequacy. You must remember, M’Lord, that what is expected of these escorts in the prison is an attitude and behaviour that would not be acceptable outside the prison gates. Inside they are expected to be controlling, harsh, even cruel, and then, as soon as they are outside the gates, they have to turn into sympathetic husbands and dutiful fathers, or into obedient sons. To make that change is not easy to manage without counselling. In fact, I think it’s impossible and this case is proof of that.’
At last she had come up with a fact clearly in our favour.
The Judge had no more questions and invited us to ask any questions we might have arising from the exchanges between him and our psychologist.
I had one question. ‘How is the evidence you have given about counselling to be applied to the defendant from this time forward?’
‘Oh,’ she said, ‘M’Lord, I think he’s the lucky one, the one who has escaped from the oppression of the code of silence they have in the prison. He has escaped by talking, first to his lawyers, then to me, and now to the Court. He has by the force of his circumstances been compelled to confront his own actions in open court, here in front of his parents and the public, and in front of the relatives of his victims. He has progressively told more and more, disclosing the most intimate details of his actions and his life. He has been castigated in cross-examination.’
Marianne stood silent for a good ten seconds before she added, ‘I would never have thought of cross-examination as therapy, but I think the court process may have been as good a psycho-therapeutic session as my profession could ever hope to achieve. He has been forced to talk about his worst experiences and to do so in public. It doesn’t matter that he had no choice; what matters is that he has talked about it.’
I sat down immediately.
James Murray had only one question. ‘He told his lawyers more than he told you, and he told the Court more than he told his lawyers. It would appear that there is probably a lot more that he could tell, but hasn’t. Do you agree?’
She did not have to think long about the answer. ‘Yes, of course,’ she said, driving another nail into our case.
Judge van Zyl conferred briefly with his Assessors before he told Marianne that she was released from further attendance. When she walked past me I held up my hand and whispered for her to wait. It was just as well, because James Murray asked for permission to recall Dr Shapiro for further cross-examination and the Judge granted it.
I took notes as the battle of wits continued.
Murray wasted no time after Dr Shapiro had been reminded that he was still under oath. ‘You were in court while the previous witness gave her evidence?’
‘Yes.’
‘You heard her opinion that the defendant enjoyed participating in the killing process and that it was addictive.’
Dr Shapiro nodded his answer.
Murray didn’t wait for an audible answer. ‘It follows that the defendant’s evidence here was not true when he said that he did not and only took part because he had no choice, doesn’t it?’
Dr Shapiro was stoic in his response. ‘Yes.’
‘You must have noticed too that Miss Schlebusch changed her own evidence. She first said that she had not detected any untruthful answers and that her tests did not reveal any. Yet she admitted to having some doubts and that she formed the view that the defendant probably enjoyed participating in the hanging process.’
‘What is the question?’ asked Dr Shapiro. He stood upright but very still in the witness box, his eyes on James Murray, his hands held together in front of him. ‘What is the question you want me to answer?’ he insisted.
Murray obliged. ‘I would like to suggest to you that you cannot form a reliable expert psychiatric opinion in this matter when the defendant has been untruthful in some respects and has not taken the Court completely into his confidence.’
Dr Shapiro turned very slowly towards the bench and when he spoke it was in even, professorial tones as if he was lecturing a class of undergraduate students.
‘Your Honour, there is something I should perhaps explain before I answer.’
Murray shifted and was about to interrupt, but the Judge stopped him with a raised hand and a shake of the head. When Dr Shapiro spoke again I wrote down every word. I was glad to see that the Judge and both Assessors were doing the same.
‘You see, Your Honour, when you have to report to the Court on the mental state of a person the process you adopt is at once scientific and intimate. Where it is scientific it is objective, but where it is intimate it is subjective. Indeed, one has to form an intimate relationship, for want of a better word, with the patient in order to gain a complete understanding of his psyche. When one does that, I mean the psychiatrist or psychologist who conducts the investigation, one cannot help but become subjectively involved with the patient’s dilemma. No one, except perhaps a psychopath, a person without feelings for others, a person without the ability to connect with others on an emotional level, can avoid being affected by the crisis that the patient faces.’
Dr Shapiro’s eyes swept the room from corner to corner. ‘What happened here is that in Miss Schlebusch’s initial opinion the objectivity to which we strive may have given way to that subjective element I’ve tried to explain. But we are trained to resist and overcome that kind of personal involvement – call it taking sides, if you will. And it appears to me that she did just that when the prosecutor’s questions steered her in the direction where she made the concession that the defendant in her opinion probably enjoyed his work in the gallows chamber.’
‘So the truth eventually came out?’ said Murray.
Dr Shapiro had been cross-examined before, and by lawyers in a far more sophisticated system where capital cases were handled by only a select few, the most gifted and skilled, the most experienced members of the legal fraternity. He had the perfect answer.
‘Yes,’ he said, ‘our systems are designed to achieve exactly that, for the truth to be revealed.’
The thought crossed my mind that the legal process was designed to do much the same, to uncover the truth, but we had the same weaknesses, having to work with unreliable evidence and with our own loss of objectivity. We are particucarly vulnerable when we have to decide who or what to believe, and we are so easily misled. I looked up at Judge van Zyl to determine whether he might have noticed the parallels between his job and that of the psychiatrist, but he gave no indication either way.
James Murray wrapped up quickly.
‘So the defendant enjoyed participating in the hangings, and he was untruthful in his evidence on that score. Would that be a correct summary of your opinion?’
Dr Shapiro was slow and deliberate in his answer. ‘I prefer to say that he gained some satisfaction from his participation in the execution process, that he probably did his job very well and received recognition for that, which satisfied his Calvinistic sense of duty. But he did not enjoy it in the sense that a sadist enjoys inflicting pain. And that is why in his own mind he cannot admit that he has participated willingly in all those executions. His mind looks for an excuse and he finds it in the idea that he was forced to do it, or had no choice.’
Murray left his final point unspoken, and was later to use it in his closing address. If Labuschagne could be untruthful about his willingness to participate when the killing was lawful and sanctioned by a death warrant issued by a Court of Law, how much greater the motive to lie about the killings at the reservoir, which were not sanctioned by the law and did not occur in circumstances of self-defence?
Nevertheless, the American had served our cause well and I nodded my appreciation as he came past.
It ha
d been a long session, and I had been operating at the extreme limits of my concentration and stamina. Although we had reached the end of the defence case as we had prepared it, we had one more task to take care of before we could move on to argument. It would be the last roll of the dice for us, but I was confident that no matter how the dice came to rest, our case couldn’t get any worse.
I asked the Judge if we could see him in chambers.
Wierda and I walked through the back passages to the Judge’s chambers with the prosecutors, the usher leading the way.
Judge van Zyl’s chambers were furnished with the same heavy wooden furniture as the courtroom. The wall behind his desk was covered from the floor to the ceiling with solid bookshelves filled with Law Reports, textbooks and journals.
‘What’s the problem?’ he asked. He was undoing the cummerbund of his elaborate scarlet robes. When he’d finished at last he sat down.
‘I would have thought you’d close your case now.’ He was looking at me.
‘I need another inspection, Judge,’ I said. ‘At the reservoir this time.’
‘Won’t the police plan and photographs do?’ he inquired.
‘No, I am afraid not,’ I said. I did not explain.
He turned to James Murray. ‘What do you say, James?’
‘It’s their case,’ Murray said.
Judge van Zyl smiled at me. ‘You heard that – it’s your case,’ he said. Then, as an afterthought, ‘You know, I grew up in the southern parts of the city, but I’ve never been up there. Maybe it’s time for me to see the place.’ He spoke softly, in his chambers voice. There was none of the formality of the courtroom and no need for his voice to carry to the last row of spectators.
‘May we make transport arrangements for you and the Assessors then?’ I asked, but the Judge said that they would make their own arrangements.
Murray then cleared his throat. ‘Judge, we would like to call an expert witness in rebuttal, but he can only attend in the morning, so I was hoping that we could take his evidence before we go on another inspection.’
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