Defence Trickery 2


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We have seen it in the Inge Lotz case and we have seen it in the Oscar Pistorius case – blatant and dishonest attempts to discredit the police in order to draw the focus away from the real and incriminating evidence. In the Inge Lotz case a defence expert went as far as to fabricate evidence and then very publicly used such evidence to instead accuse the police of fabricating evidence. In the Oscar Pistorius case all kinds of tricks were used “to throw pepper in the judge’s eyes”. We saw this trickery in action recently during the sentencing hearing when Advocate Roux asked Oscar to remove his stumps in order to waddle unsteadily around the courtroom. In the meantime there is a video of Oscar on the internet where he runs and walks on his stumps without problems.

In this post we look at how Adv Roux tricked the judge to take a very negative view of the police – over something that is really of no significance whatsoever. Take something insignificant and make an issue of it, blow it out of proportion. The insignificant issue that we’ll be looking at here is about the so called “missing” extension cord.

 

Let’s first look at exactly what Adv Nel asked Oscar about the extension cord.

When I went out on to the balcony I pulled both doors open. When the balcony, when the fan was on the balcony it was between the two doors. It was not that I had opened one door and then put the fan in. The doors were opened and [Indistinct 14:52:03]. So the fan was … where the curtains are drawn all the way closed now, the fan was in that place, when I brought it in. When I brought it in, I placed it [Indistinct 14:52:13] a case of picking up the small fan, placing it on the floor, just enough space so that I could move the bigger fan in and place it on the floor as well. I then turned back and closed the doors. The whole time my back … where I was … where I placed the fan my back was facing the bed.

 

I just want us to My Lady, the point that was indicated with a circle, I have marked it on my exhibit. It is where there is a fold, it looks like a little mountain in the duvet. That is the best I can describe it. So that we have it for the record purposes, My Lady.

photo55

cord_photo

 

COURT: Yes. Mr Roux, would you agree with that? Would you agree with that description?

 

MR ROUX: I can also see it. It is a fold in a duvet then.

 

COURT: Yes.

 

MR NEL: It is a fold in a duvet. Good. So the bigger fan would have been there and it would have faced the bed? — That is correct, My Lady.

 

Okay. You see the most amazing thing is, yesterday when we showed you these photographs, you did not say that. Why not? — [Indistinct 14:53:51] No, you must be sure. You cannot tell this court you are not sure. Tell me why not? — I do not remember seeing photo 55 yesterday, My Lady.

 

Let us look at 56. — We are talking about photo 55 now My Lady, and I do not remember seeing [intervenes]

 

Go to 56. Why did you not say that fan is totally wrong, it should not have been there? — I am not sure it came up in question, My Lady.

 

No, no. Remember I asked you if there is anything wrong with that photograph? But there is one other aspect. I put it to you now, if you moved that fan to the fold in the duvet, the plug will not stay in. — My Lady, if you look at photo 56 the extension cord is not … has not been stretched. If anything it goes behind the big cabinet. If you look at photo 55, the cord of the fan is not stretched either. It could very easily be placed where I said it was placed.

On Oscar’s version it would have been possible to move the big fan to where the little “mountain” in the duvet is because the extension cord could have stretched. This would therefore imply that the police not only moved the big fan but also the multi-plug.

One thing … let us just agree on one thing, if the multi-plug, the white multi-plug that one can see on 56, if it remained in that position where it is now, have a look at the photograph, I do not want you to say that you did not look. If the multi-plug remained in the position where it is now, you cannot move that fan to the position that you said you put it in. — I would not, I do not know how long the cord is for the fan, My Lady.

This is very important to remember, Adv Nel accepts Oscar’s argument that the extension cord could have stretched. The argument that Adv Nel made had nothing at all to do with the length of the extension cord – what he argued was that if the multi-plug remained in the position shown the cord of the big fan would have been too short.

Look at it. Look at it. — If I look at photo 55, the cord would easily without the plug being moved, the fan would easily be able to be placed there.

 

No. It is not true. Look at it, Mr Pistorius. I put it to you it is not so. Because you have to pull it, you have to … remember the multi-plug has to stay where it is at the photograph. The multi-plug is not supposed to move, that is my question. If it does not move, can you move the fan to that fold? — I do not know, My Lady.

 

You cannot. Show the court … we can see, the court can see the photograph, everybody can see the photograph, can see the length of that cable. It cannot go to there. — My Lady, that is not what I see.

 

Ja, well, the court will make up … the court will make a finding, but I put it to you that if that multi-plug does not move, that fan cannot move all the way to that point and face the bed. — My Lady, that is on assumption that the multi-plug did not move. If you look at the photo [intervenes]

 

Yes. — There is lots of space for the multi-plug to move. Even if the multi-plug did not move My Lady, in this photo that is being displayed here, photo 55, the cord is more than long enough to … for the fan to move. We are not talking about five metres. We are talking about the fan moving just under a metre. The cord in the photo shows that there is room for the fan to be moved. The fan is not at its … it is not at its point that it is being reeled out or pulled straight.

Oscar evades the question – that if the multiplug does not move then the fan cannot move to the end of te bed. He was the one that started talking about the length of the extension cord. And not once did Adv Nel argue that the extension cord was too short to move.

You are trying, Mr Pistorius. It is not working. Your version is … I say it with … let me rather look at a word … your version is so improbable that nobody would ever think it is reasonably possibly true. It is so improbable. Nobody … you would not convince people that that what you said now about the multi-plug not moving and the fan moving, is reasonably possibly true.  It is impossible. Do you want to respond to that? — Sorry, My Lady, I thought that was a statement, not a question.

 

So do you want to … if you want to say something about that, say something. Otherwise, shall we move on? — Yes, I think we should move on, My Lady.

Now that we know what actually transpired between Nel and Oscar regarding the extension cord and multi-plug let’s see what Roux said when he introduced the issue of the missing extension cord.

What happened M’Lady, that during the adjournment we saw that a number of questions were asked by Mr Nel in cross-examination of the accused about the electrical cord and if it could move or not. If it could to longer or shorter.

As you can see for yourself, this is blatantly false. Adv Nel did not argue whether the cord were long enough, and certainly didn’t make the argument that the multi-plug couldn’t move because the cord was too short.

Why did Adv Roux do this? It was all part a calculated strategy to paint the police as incompetent, negligent and crooked. As you will see later Judge Masipa fell for this one hook line and sinker.

Adv Roux continued:

So we wanted that cord on account of information that we have, so the first document SSS, was a letter then addressed to Captain van Aardt, saying that:

 

“Please can you make available to us for inspection as soon as possible the electrical extension cord that was removed from the main bedroom.” (Record 2624, Lines 11–20)

 

The crime scene photos taken in early hours of 14 Feb show the white extension cord on the right side of the bed. There are photos taken on the 15th in which the white extension cord in no longer next to bed where it was on the 14th.

Read now how Adv Roux skillfully exploits this discrepancy between the photos to successfully poison the court against the police.

… the response came back that the police did not have the extension and the letter came back to say, but it cannot be and that you will see it is a letter dated 6 June 2014 where we refer to image 0184, at 05:58 on 14th February and you will see that photo if you page on, M’Lady.

 

There is a copy just to make it convenient to the court. You will see the extension cord there.

The defence requested the extension cord from the police 16 months later, on 6 June 2014! The house was sold in July 2014, after it has been standing empty for over a year. (Source)

 

COURT: Yes.

 

MR ROUX: And we say that is there, but if you go the next day and we give the time there was an image 0856 at 06:34 PM on the 15th, there is no extension cord. So we say, you had sealed the house. Where is that cord, because we need that cord.

 

Then, Captain van Aardt then came back and say, well I hear what you say and that is what the letter is saying. We do not have the cord and we again say but it cannot be, we need the cord and the letter comes back, but we do not have the cord. So we say it cannot be and we ask the court to consider making … ordering the state to make the cord available, because that is important in the accused case to get the length.

 

We say it is five meters long and we need that to show that to the court as an answer to the cross-examination and the difficulty of course, is that the state tells us that they do not have it. They took possession of the house so to speak and it is not good enough, we say to say we do not have it. Someone must then explain at least, what happened to it. They secured the house, they sealed the house. Where is that cord and that is the difficulty for us, because we really feel that we are prejudiced, M’Lady.

Now consider Roux’s argument against the following background of facts:

Just because the cord was not in the same place on the 15th doesn’t mean that it went “missing” or that the police removed it with some sort of sinister “intent”. Why would they? On the 15th the police did not know anything about Oscar’s version (neither did Oscar likely). It was just another object in the house, in the same vein as the hair clipper, the magazines, the books, the fans, the television, the toothbrushes, the mugs, etc. After the documentation and photographing of the crime scene during the morning of the 14th the police started with the investigation of the crime scene. Naturally, during the investigation objects can be moved around; drawers are opened, things are moved out of the way. The extension cord could have been removed to another room in the house. Adv Nel made it quite clear that the cord was not taken in as evidence. They had no reason to so; the cord was not an object of interest.

The police completed their investigation of the house within three days. The keys of the house were then given by the police to Mr Stander. It was then that the defence took over the house and send in their own investigators. You will remember it was at this time that one of the defence investigators found a bullet fragment in the toilet bowl which the State investigators missed. The police did not make an inventory of the objects left in the house when they handed the house over to Mr Stander; they only made an inventory of the objects they seized into evidence. There is therefore no objective evidence that the cord wasn’t inside the house when they handed it over.

Let’s now look at Adv Nel response and how Judge Masipa took the bait that Adv Roux dangled in front of her.

MR NEL ADDRESSES COURT: May it pleases the court, M’Lady. With the utmost respect, if I may refer to the short answers. I do not have it. The state … we do not have it. I know that Mr Roux would refer to photographs, but M’Lady, the court cannot order the state to make something available that I am informed the state, we never seized. In my consultation with the investigation officer, we never seized the cord and we do not have it. So therefore we cannot make it available.

 

COURT: Where is the inventory? Was there no inventory?

 

MR NEL: Of seized items, yes M’Lady. It is not on that inventory.

 

COURT: It is not on that inventory.

 

MR NEL: Of seized items M’Lady, no. M’Lady, the defence now approaches the court now to make an order to order the state to make it available. But it is an impossible order. Where I am standing at the moment M’Lady, the state cannot comply with such an order.

 

COURT: If it is not on the inventory, it means it was not seized by the police.

 

MR NEL: Yes.

 

COURT: But it was in the house.

 

MR NEL: Yes, M’Lady.

 

COURT: That is common cause.

 

MR NEL: M’Lady, if I look at the photographs that was indicated, yes it was in the house on the 14th. That is true and the defence has now indicated on the photograph on the 15th, it is not in the same position as it was on the 14th. But M’Lady, well it is not in the same position, M’Lady. Because there is a photograph of the position where the cord was.  It is not there where it was on the 14th, that is the most anybody can say.

 

But M’Lady, where it is, was it moved somewhere else, was it left in the house, did somebody take it? I cannot answer those questions, M’Lady.

 

COURT: Well may be the police can.

 

MR NEL: M’Lady, I am answering on their behalf. They cannot M’Lady, because it was not seized by them. They will be able to say if it was seized by them.

 

COURT: Ja, it is very strange, because I mean they locked the doors every day. It was under their control and it cannot walk.

Hook, line and sinker!

MR NEL: M’Lady, that is all true and I am not saying that I have an explanation. What I am saying, M’Lady is that the position that the state is in, or that the defence is putting the court in, is to order something which … [intervened].

 

COURT: I am not about to order something. I cannot even read this. But I am very concerned. What could have happened to it?

Roux 1 : Nel 0

The judge automatically assumed, without substantiation, that the cord went missing from the house and that the police had something to do with it. What if Stander removed it, or one of the defence investigators? What if it was never removed and Oscar disposed of it along with all his other belongings in the house?

Let’s continue. Now Judge Masipa wants the know why the State and police didn’t look for the cord. Adv Nel rightfully asked the question: where to look? They can’t look at the police station as they never took it in as evidence, and it was no use looking at the house as the defence took it over three days later and by the time of the trial Oacar had already emptied the house of its contents and sold it.

 

MR NEL: Indeed, M’Lady. M’Lady, I cannot even advance … [intervened].

 

COURT: No, no, no. But the state has to know what could have happened to it.

How was the State suppose to know what could have happened to the cord that was left in the house and then passed over to the defence team?

MR NEL: Well, M’Lady I say it was left in the house somewhere.

 

COURT: It was left in the house.

 

MR NEL: M’Lady, the court will ask me to come up with excused and/or explanations. There are lots of those, M’Lady. That it was moved from that point and it was left in the house when the accused … when the house was handed over, in all probabilities it was still in the house. Not in the same spot, because lots of things moved. Even one can see it on this photographs.

 

COURT: Yes, but there must be a chain. It was … at the time the police handed it over to whoever, was it still there or was it not there.

Does Judge Masipa expects the police to keep a chain of every object in the house, from the toilet paper rolls to the kitchen forks and everything in between?

MR NEL: M’Lady, there was not a formal handover of what was in the house and what was not in the house. That did not happen. There was not a … what happened is, the key was handed over to Mr Stander and Mr Stander handed the key over to the defence team. The police did not make an inventory of everything they left in the house. That never happened.

 

COURT: Yes, so … [intervened].

 

MR NEL: M’Lady, I wish I did not have to try and explain it, but I am [indistinct] position that I just cannot and I do not have it.

 

COURT: Well, I am not happy. But at the same time, I do not know how I could order the state to produce something that they say is lost. But how it was lost, that is my concern. How did it get lost.

Clear bias in favour of the defence.

MR NEL: It is a concern, M’Lady and I say it with the utmost respect, I cannot blame anybody to be concerned about it. But it … the reality is M’Lady, that I am standing next to the investigating officer and I do not have it. Well M’Lady, let me rather say, it was not handed in or seized, formally seized on the scene in terms of inventory and handed in into the polices exhibit facility.

 

COURT: But did someone look for it since these correspondence happened? Did someone tried to look for it?

 

MR NEL: M’Lady, in terms of look for it, that would mean at the police station exhibits and those kind of things because …[intervened].

 

COURT: Well if you say everything that was seized was in the inventory, and it is not in the inventory, I would not expect the police to search for it at the police station.

 

MR NEL: I perhaps did not hear correctly. You would expect the police to go search.

 

COURT: I would not expect them to search for it at the police station, since according to the inventory, they did not take it.

 

MR NEL: Yes. So … [intervened].

 

COURT: But since the request was made by the defence, did someone tried to find it?

 

MR NEL: Well what happened M’Lady, is that at page … in the document that the court has … [intervened].

 

COURT: I cannot read most of it. It is just impossible.

 

MR NEL: Yes, M’Lord. May I … second page I cannot read but maybe counter pages, page 1, 2, 3, 4 is a photograph M’Lady, 5 is photograph. Then on the next page M’Lady, there is a response by the investigating officer, at the bottom of the page where it indicated by Captain van Aardt:

 

“Again checked all relevant entries pertaining to exhibits seized. I also consulted with Warrant Officer van Staden about the seizure of exhibit. The extension cord is not in the possession of the SAPS nor was it seized from the scene.”

 

And that was … the defence was informed of that on 9th June.

This is about 16 months later!

COURT: That means no one to try to look for it. Because the police did not seize it.

 

MR NEL: Well M’Lady, to try and look for it, with the utmost respect M’Lady, we looked for it in our records. We looked for it by consulting the person that seized all the exhibits. That is Van Staden. M’Lady, we will gladly look if the court say the court instructs or indicates that the court would want us to look somewhere, M’Lady. We will go and look but as I am standing here M’Lady, I cannot think of somewhere to go and look.

 

COURT: And it is not possible to go to the house anymore and look for it.

 

MR NEL: Indeed, M’Lady. I think it was sold … the accused took that house over three days after the scene. So it would serve no purpose to go back there, M’Lady. So M’Lady, I just do not know where to look. If the court would ask me if I look.

 

COURT: Alright, anything else?

 

MR NEL: No, M’Lady. That is the only way of responding to this.

Now back to Roux.

MR ROUX: M’Lady, I understand the difficulty but I think it is a bit too easy, if I may say it is not at the house. That is the first source that we tried to find it.

 

COURT: It is not at the house.

 

MR ROUX: It is not at the house.

 

COURT: Yes.

 

MR ROUX: And the fact is, these are the cold facts. The police took possession of the house. The keys were only given 18th, 19th February. Later on when we were given access. We talk about the 14th and the 15th. The police sealed the house, the cord was there. The next photo, the cord is not there at the place where it was. It is gone.

 

COURT: When did … when was the first time when it was realized that the extension was missing?

 

MR ROUX: We saw on the photo. Because we saw a number of changes on the photo that we referred to previously and we saw on the photo there is no cord. But of course, in cross-examination the relevance of the cord became apparent. That is when it became relevant. Not before, you see a cord that is not there and you assume that the police had removed it as part of their exhibits.

Unbelievable! The defence claim that the cord went missing rest solely on the fact that it was not in the same position as on the 14th. It is NOT based on an inventory the defence team did when they took over the house; nobody on the defence team actually looked for the cord and couldn’t find it!

But the relevance came whether that cord could extend or not extend and that is why we gave them the length of that cord, because that is absolutely relevant and what I would have thought the state should do, is at least … and I know you cannot order them to give what they tell you they do not have, but at least order them to investigate.

Again Roux false misrepresent what actually transpired during Nel initial questioning. It is incomprehensible why an advocate of Nel’s calibrate would not have objected to this!

To say who was in control of the house. Who is the person that controlled the house, that sealed the house. What does he say, why was the cord there on the 14th and why is it not there on the 15th whilst the police was in possession. I think at the very least, we are entitled to an explanation and that the court can do, and if it is then a cul de sac, then it is a cul de sac with its consequences on the evidence.

Again, without substantiation Roux insinuates that the cord “left” the sealed house.

But if it not, at least the court is there and can assist us. So in the alternative, that is what we would ask in view of the response by Mr Nel. That you order them at least to provide you with an affidavit by the person responsible or the person who was in control of the house, to explain that. Because we have the photos to show you, one day it is there. The next day it is not there, they had the house. Thank you, M’Lady.

 

COURT: Yes, Mr Nel.

 

MR  NEL: M’Lady.

 

COURT: Yes, what are you saying to the suggestion by Mr Roux? Is that not a fair request?

 

MR NEL: For the state to investigate it now?

 

COURT: Yes.

 

MR NEL: May I … If I understand it correctly, Mr Roux would want the court to order that we provide an explanation by the person that sealed the house.

 

COURT: Well, person or persons?

 

MR NEL: Do … ja that sealed the house to say that … well to explain if they know anything about the cord. Because there is lots of things in the house, M’Lady.

 

COURT: I know that.

 

MR NEL: So … [intervened].

 

COURT: This one happens to be relevant.

 

MR NEL: For now, yes M’Lady. The issue is, just … we will do that. But I just do not see how that would assist. Because it is as asking a person if … [intervened].

 

COURT: Well it will definitely assist. It may not assist Mr Roux, but it will definitely assist me. Because I am very unhappy about this.

 

MR NEL: Yes, M’Lady.

 

COURT: Yes.

 

MR NEL: We have taken steps, we have to take it a step further to find out from the person that sealed the house, if he can shed any light on it. M’Lady, when I first learned of it, my first impression, if it is not on the inventory, it was left in the house.  Now that might be a possibility. But if we file an affidavit from a person in charge that said, I sealed and it was … [intervened].

 

COURT: Do we know who that person is?

 

MR NEL: Yes M’Lady, we know. It was Colonel van Rensburg and Warrant Officer van Staden. The evidence was led, Colonel van Rensburg said that he was … remained at the scene up until the time they sealed it. M’Lady, we will do that if it assist the court, but M’Lady I just think that we are talking about lots of things that happened.

 

COURT: Well it does not assist to go on and on about that.

 

MR NEL: Ja, no, no, it is fine.

 

COURT: Because I think it is very important that we should know what happened because what we have so far, is that the house was locked and there was no burglary during that time.

 

MR NEL: And we would say, it was still there. It is not at that specific spot, but ja.

 

COURT: Yes. I order that that person, whoever he is, who was in charge of the house on the 15th … is it the 14th and 15th of February. Are those the relevant dates.

 

MR ROUX: Those are the two relevant 14th and 15th because on the 14th if was there and on the 15th … [intervened].

 

COURT: Depose an affidavit to explain exactly what happened during those days while the house was under his control.

 

MR NEL: That will happen, M’Lady.

 

COURT: Yes, thank you.

 

So at the end of the day the Roux succeeded in making the Judge “unhappy” with the police, and got the judge to force the police to submit an affidavit, as if they did something wrong? Why didn’t Nel ask the Judge that she likewise order Stander and members of the defence team to submit similar affidavits? Why didn’t Roux ask the State to produce the big fan instead? Nel did argue about the length of the big fan’s cord. The reason is simple: the big fan didn’t go “missing”.

This is what Judge Masipa said in her Judgment:

I may add that there were a number of issues which arose during the course of the trial. These issues took a lot of the court’s time and correctly so, as at the time such issues were important to the parties. The issues concerned were inter alia whether or not the police contaminated the scene, the length of the extension cord that went missing from the accused’s bedroom and the authenticity of photographs of items depicted in various exhibits. Having regard to the evidence as a whole this court is of the view that these issues have now paled into significance when one has regard to the rest of the evidence. (Record 3289, Lines 13 –20)

Note that now Judge Masipa only says the cord went missing from the bedroom (not from the sealed house). She says that these issues pale into significance with regards to the rest of the evidence. Remember that Oscar admitted that if Photo 55 is how the police found the room then his version is false. Since the judge accepted Oscar’s version (based on an unsubstantiated timeline) she in the same stroke implied that the police committed perjury and that they placed the duvet on the floor, unplugged the small fan from a plug it couldn’t reach, and also moved the big fan prior to taking the first photographs of the crime scene. This decision was based on her negative and suspicious view of the police, fueled by the antics of Advocate Roux.

——

We must just add that we do not excuse the police completely here. One more photo of that cord from closer or from another angle could have shown that it was not 5 metres. Now we only have one photo. Saying that, even on this one photo we can see that the cord is not 5 metres as there is no excess of the cord to be seen anywhere; the cord as we see it in the photos is stretched out and we see only about 2 metres, where is the other 3 metres of it? Had there been 3 metres excess, we would have seen the excess heaped up closer to the wall and under the right side of the headboard behind which the cord would have been plugged in; we see nothing of that. The defence took a chance here to “ask” for the cord; they were pretty sure that the chances were very small that the cord would be produced and one can be sure that had a cord been produced and it was not 5 metres, they would have said it was not that cord and that there was no chain of custody on it. While the police could have taken more care with all items in the room at least (and to take more scaled photos) while the house was still under their control, what we see here is an attempt by the defence to paint the police as dishonest and they actually successfully planted this seed in the judge’s head.

We go into much detail regarding the fans and the extension cord in Oscar vs the Truth and show why the cord was not 5 metres and that Oscar’s version of moving the fans is simply not true.

cord_photo

Above: Look at the white cord, if you take the surrounding context into account (i.e. the length of the bed) it is clear that we see a 2 metre cord here. If was 5 metres, where is the other 3 metres of the cord? We look at this in more detail in OVTT.

Of course the real question remains, where did Oscar plug the small fan in? Whether the extension cord was 5 metres or 20 metres long, its power bar did not have space for the small fan. And the plug behind the sound cabinet was too far away for the small fan to have stood at the balcony door while being plugged in behind the cabinet. So where did he plug the small fan in, or did he simply lie about it altogether? Read more about the small fan here.

The eBook of OVTT is now available for only R150 (until after sentencing). Order on www.piquetbooks.com


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2 thoughts on “Defence Trickery

  • mr_jitty

    The other comment I would make is that the Judge expressly acknowledge that Oscar’s version could not be true as to the detail, yet accepted it as to substance.

    This allowed her to avoid having to confront the crime scene photos.

    Instead she uses magical thinking that somehow it went down as an accident, but in a way the accused did not explain.

    This is a very poor quality judgement from a technical legal perspective.

  • mr_jitty

    I agree with you on all points.

    Masipa’s handling of evidential points and procedure is alarmingly poor for a High Court Judge – I suspect this is because she has no background in litigation.

    The bottom line is the initial photos are uncontested proof of how the Crime Scene presented.

    The cord was photographed in a particular state (along with the curtains and fans)

    The defence has not produced any evidence that it was otherwise save the bare assertion of the accused.

    The idea that the defence can then simply assert that the extension cord was not in the house is not only ridiculous, but also irrelevant as the State is under no requirement to safeguard or account for it.

    Notice that Masipa actually then sidesteps all of this by failing to rule on any of it!

    This also drew some adverse criticism from the SCA

    The Judge cannot simply throw all the crime scene photos out the window as if they don’t exist.

    She must rule that they are unreliable

    But this was her habit.

    Simply to not comment on inconvenient evidence.