One Tragic Night (91 page)
Authors: Mandy Wiener
The point Nel was making is that over a period of time the physiological response to the startle would diminish, so for Oscar to claim this defence he would have to have experienced those additional startles.
Nel tested the witness on his understanding of Oscar's intentions when he approached the danger:
| Nel: | Now with a gun in front of me the confrontation is, shoot. Am I right? |
| Derman: | Yes I would say if one has a gun in front then the intention is to shoot. |
| Nel: | So at least we can say that walking down the passage even in your ⦠even on your version being in the fight mode, his intention was to shoot, whoever he would come across ⦠if he comes across someone? |
| Derman: | Yes I would say to shoot to protect one self, I agree with that statement. |
| Nel: | You see, professor my statement is not shoot and protect but to shoot and you agree with that statement. His intention is to shoot? |
| Derman: | Yes. That is correct, if one is walking out with a gun outstretched in front of you. |
| Nel: | Even in the fight mode the accused on this night, the intention, the clear intention was to shoot if he came across something. Am I right? |
| Derman: | I suppose if you come across an intruder or danger you would shoot, I do not know. |
This was the evidence the defence did not want to hear because it contradicted Oscar's own claims that he never intended to shoot anyone.
The second startle was the toilet door being closed, but Derman couldn't tell the court exactly what this caused Oscar to do. âMy memory is a bit fuzzy on this â¦' he said, which highlighted Nel's concerns about the expert witness not taking notes.
Derman said the crucial third sound â the so-called third startle, the magazine rack moving â culminated in the shooting. He agreed with Nel's proposition that Oscar fired at the sound but could not explain why, merely stating that that was his fight-or-flight response. He did, however, concede that when he fired at the sound it was to nullify any threat. It is there where Nel ended his cross-examination and asked that the matter adjourn until the Monday to allow himself time to consult with an expert. The court agreed.
By the Saturday afternoon, word was spreading quickly on social media that
an Australian TV network had obtained exclusive footage of Oscar re-enacting the events of Valentine's Day. Channel 7's investigative show
Sunday Night
had obtained secret footage filmed by American forensic and crime scene reconstruction experts, The Evidence Room.
Oscar's defence team hired the Cleveland, Ohio-based company run by Scott Roder in October 2013, but no evidence or witnesses from the company had been presented in court. The footage was broadcast on the Sunday, about midday South African time, and showed Oscar on his stumps, in a blue Nike vest and black pants, acting out various aspects of his version some eight months after the killing.
In one scene, the athlete moved quickly towards the camera with his arms stretched out in front of him as if holding a firearm; in another he was asked to run as quickly as he could. The awkwardness of his movement was evident, but he was able to move with some speed and without the need to hold on to something, even when pretending to hold a firearm and walking backwards. The footage was filmed at his uncle Arnold's house in Waterkloof.
Oscar was also timed as to how quickly he could put his prosthetic legs on â about 25 seconds. Aimee played the role of Reeva as Oscar demonstrated how he picked her body off the floor of the bathroom and carried her downstairs. In one scene, portraying how Oscar had discovered his girlfriend behind the door, he positioned himself over the toilet bowl illustrating the scene.
Roder told
Sunday Night
that he believed Oscar never intended to kill Reeva. âAbsolutely, the physical evidence is consistent and his story remains unchanged. If you look at the evidence Oscar's clearly not guilty,' he said.
Roder described what the psychologist identified as the Two Oscars. âWhen he's on his prosthetics, you know he's very tall broad-shouldered athletic guy; he looks like he can really handle himself. But when he takes his prosthetics off and he's on his stumps uh he's short, the confidence washes away from his face.'
Despite the forensic expert believing Oscar's version of events, the video appeared to show that the accused was far more mobile than the defence team wanted the court to believe. A lot had been said about the difficulties Oscar faced on his stumps, so why not show the court exactly how he is able to move? Speculation suggested that the footage had not been shown because it did not support his case.
That Sunday afternoon defence attorney Brian Webber issued a statement confirming that The Evidence Room had been hired to map visually the events of the morning and in this process videos were made:
The âvisual mapping' was for trial preparation only and was not intended to be used for any other purpose.
We wish to make it very clear that the material that has been aired was obtained illegally and in breach of the non-disclosure agreement with The Evidence Room. Its usage also constitutes a breach of privilege as this material was produced for trial purposes on the instructions of a commissioner, and the ownership of the copyright vests in the commissioner.
No permission for the disclosure thereof has been given.
Webber added that the Pistorius family was angry because the broadcast constituted a âstaggering breach of trust and an invasion of the family's privacy'. But then Webber made a curious comment: that in their discussions with the Australian channel, âwe received an undertaking that they would not air any of the material before the end of the trial'.
This raised the question of when exactly they had found out that this footage had been sold. Nel had unexpectedly asked for an adjournment the previous Thursday â had the defence thus anticipated wrapping up the case by the Friday and would have been satisfied if the footage was broadcast that Sunday?
Talk amongst reporters from the various international news agencies indicated they had known about the video for some time because the company was shopping it around.
Sunday Night
's executive producer Mark Llewellyn defended their decision to broadcast it. âWe would not have run the footage if we thought we had obtained it illegally. The material shown on
Sunday Night
goes to the heart of both the prosecution and defence cases, including the account provided by Oscar Pistorius,' he said in a statement.
The pressing question was whether Nel would attempt to introduce the video as evidence as he had done with the âzombie stopper' footage. A member of the prosecution team said that while the video appeared to support its case, it would be too much effort to attempt to introduce it. He said Nel did not want to lose focus at this late stage of the case. In the end, the video was not introduced and it was left for the public to debate whether the footage proved or disproved Oscar's case.
Gerrie Nel had spent the previous Friday consulting with one of the psychiatrists appointed to the panel that had observed Oscar and reported back to the court. When he returned to his lectern on Monday morning, he was better
prepared to question Dr Derman. The prosecutor wanted to know from the clinician whether he was in a position to interpret and testify on the results of various tests conducted during the psychiatric referral. Derman felt that with his 20 years' experience he could.
Nel returned to Derman's evidence of when he asked Oscar to demonstrate for him how he ran and his mobility on his stumps. The change in the prosecution's stride caught the attention of those in the gallery as it appeared Nel might refer to the leaked video.
| Nel: | So, Mr Pistorius in fact described to you how he ran or demonstrated to you how he ran. |
| Derman: | He demonstrated to me how he ran. |
| Nel: | He did not say âI never ran, I moved cautiously'. |
| Derman: | No, I wanted to gauge what he meant by ârun', because as I explained before, M'Lady, I know that Mr Pistorius cannot run, because in order to run both feet or both lower limb projections have to be off the ground at the same time. |
| Nel: | Can I just ask you then: Was it ever demonstrated to you that Mr Pistorius was able to walk backwards on his stumps? |
| Derman: | It was never demonstrated to me. |
| Nel: | You think it is possible? |
| Derman: | I have never seen him walk backwards, but I do not see why it should not be possible. |
| Nel: | Apart from the demonstration in the corridor did you see any other demonstration of the accused running? |
| Derman: | No, I have a number of times when we have been travelling seen him moving on his stumps from bed to bathroom and around his room. That is the only time I have seen it. |
That was the closest Nel came to referring to the leaked video footage, which depicted Oscar walking backwards, unaided with his right hand up as if holding a firearm. Oscar had explained that in the dark of his room and as he shuffled around on his stumps, he would use one hand on the floor to guide himself and remain steady.
The prosecutor thus challenged Derman's evidence that Oscar was vulnerable, as he was a person living in a secure complex with an alarm system, who has a big support group around him that includes family and Derman as his doctor. âNow, that whole scenario mitigates his vulnerability in his context,' Nel suggested.
| Derman: | I disagree strongly. |
| Nel: | But we have the person with a gun on the night. If Mr Pistorius was vulnerable on that night he armed himself. Am I right? |
| Derman: | He did. |
| Nel: | At least he will concede with a gun in hand he is less vulnerable. |
| Derman: | He might indeed be less vulnerable, but how much less vulnerable I do not know and I cannot think if that would reduce his vulnerability absolutely. |
The centrality of the so-called third startle showed itself again as Nel returned to the issue. One of Oscar's hobbies was shooting and he spent a fair amount of time at a shooting range. Why wouldn't the sounds of those shots trigger a startle response? asked Nel.
âM'Lady, as I understand this phenomenon,' explained Derman, âif one is expecting a sound, and is in control of that sound, then it does not have the same startle response as if you are not expecting a sound.'
It was the answer Nel wanted â standing in the bathroom with the belief that there was someone hiding in the toilet, surely Oscar would have expected a noise to emanate from inside the cubicle. On this expectation, he argued, an auditory stimulus would not have triggered the startle response. And add to that the fact that Oscar was still reacting to the second startle â the toilet door closing â he would have experienced heightened awareness of his surroundings.
Derman disagreed entirely. âM'Lady, with respect, Mr Nel has got it wrong,' he said. âIt is exactly the opposite. The startle would be potentiated in the fear setting. It is exactly opposite to what Mr Nel said.'
For Nel the most crucial aspect he needed to prove to the court was Oscar's âintention'. Did he intend to shoot at whoever was behind the door?
