by Mandy Wiener
The professor had known Oscar for six years, conducting periodic health assessments of the athlete and making direct observations during medical consultations. Derman said he got to know Oscar better by spending time with him during the 2008 Beijing and 2012 London games, but he has also remained his treating physician outside of his role as team doctor.
Derman said Oscar’s most significant medical issue over the years has been his stumps, which were chronically problematic, particularly the left one. This meant he was unable to bear full weight on that stump, had poor balance and walking was difficult – in other words, Derman was echoing the observations of Oscar’s orthopaedic surgeon Dr Gerald Versfeld.
In terms of his patient’s psychological well-being, the professor noted:
My observations relating to aspects of Mr Pistorius’ interactions with myself, is that he is an anxious individual. I have found him to be anxious during most interactions, with myself and others within the Paralympic village and other environments particularly related to competition. He has a tremor of the hands. He also presents with a sleep disorder, a disorder for which I have previously had to medicate him.
Derman referred to a study that looked at markers of psychological stress, particularly anxiety and depression, which found these indicators higher in athletes with disabilities as opposed to a control group of able-bodied athletes. He said Oscar’s results for this same test were higher than the average for the group, which meant he exhibited higher levels of anxiety and depression in relation to this test:
I also found Mr Pistorius to be hyper vigilant. I have observed this behaviour particularly with him rapidly looking around the room and scanning when we are in the dining hall setting, the team setting and even during one on one consultations in my rooms.
He presents with a very exaggerated startled response which I have observed a number of times at opening or closing ceremonies when the events were marked by fireworks. Whilst I have seen this exaggerated response in a number of the Paralympics athletes, Mr Pistorius exhibits an excessive response which involves him covering his head and ears and cowering away until the noise ends.
Derman pulled these threads together by concluding that, in his experience, the levels of anxiety and fear as well as the startle response, and fight-or-flight response, is increased in certain people with a disability.
He explained this response as how the body prepares itself for strenuous physical activity in the face of an emergency or stressful situation. To add to this, he found that the fight-or-flight response featured more prominently with people with disabilities, particularly those with mobility impairment. The professor further differentiated between these responses: the startle is the stimulus, usually auditory or visual, that triggers the fight-or-flight response.
Derman then produced academic literature that further showed that the startle response, which triggers the fight-or-flight response, was also exaggerated in individuals with high anxiety. It was becoming clear where the defence was going with this witness: the court would have to place Oscar in the bathroom, consider all the factors related to his psychology and then trigger this response.
Derman explained the anomaly that Nel had identified, that despite Oscar’s claim that he felt vulnerable, he went towards the danger. ‘Well, in this context, M’Lady, fleeing is not an option. The individual has no lower legs, so to flee is not an option and if one finds oneself without the ability to flee, the other option is to fight. So to approach the danger is an understandable physiological phenomenon,’ he said.
Under cross-examination, when questioned about those seconds before he pulled the trigger, Nel had challenged Oscar on his evidence that ‘I was not thinking’. Derman referred back to his explanation about how the unconscious part of the brain comes into play in such a situation, and how that part of the brain has even greater control over the conscious part of the brain in individuals who present with higher anxiety. He argued that this accounted for Oscar’s apparent inability to think in that moment.
Applying this to Oscar’s version, Derman identified three auditory events that constituted the triggers for the startle that led to the fight-or-flight response.
• The bathroom window opening.
• The toilet door slamming shut.
• The noise inside the toilet cubicle – the magazine rack.
Derman believed the court should consider Oscar’s significant disability when passing judgment on his reaction on the morning of the shooting. Without his prosthetic legs fitted he did not have the option to take flight when presented with a threat; he has a lifetime of real and learnt vulnerability; a profound fear of crime; added to that his hyper-vigilance that results in an exaggerated startle response, and heightened anxiety that results in a significant fight-or-flight response; and his training as an athlete to be primed to react to the auditory stimulus of the starter’s gun:
It is my considered view, having regard to my knowledge and experience of Mr Pistorius, my knowledge and experience of disability and athletes with disability and my knowledge of the physiological responses under stressful conditions, all of which render it probable that his version of having experienced auditory stimuli, which he perceived to be life threatening to both himself and Ms Steenkamp, resulted in a significant startle and the flight and fight response, as he is not able to flee, due to his disability, his fight response dominates his behaviour, as it has in the past, and he approaches the perceived danger.
Further sounds then lead to further potentiated startles and in the setting of the complexities mentioned above, resulted in an exaggerated fight response, which culminated in this horrific tragedy.
Derman’s evidence set out one possible defence of the accused; it explained why he fetched his gun instead of running away, as Nel had suggested he could have done, and it explained why he said he did not intend to shoot, but he did ‘by accident’. But would the judge accept it and how would the prosecution react?
The prosecution’s first problem with Derman was whether he could in fact be seen as an expert witness – he conceded he had never testified in a criminal matter. The prosecutor’s second issue was whether the professor could be considered unbiased, with a duty towards the court, when the accused was also his patient. Nel argued there was a conflict of interest, in that as a medical practitioner the witness would have an obligation towards his patient. The cross-examination was thus characterised by several tense exchanges between the prosecutor and the witness, with the judge having to step in on several occasions. The questions were not about the science of the responses Derman described, but rather about their application in this particular scenario.
Derman consulted with Oscar first before the trial started and for a second time before he was referred for psychiatric observation. Nel questioned the witness on the information Oscar had provided to him about the incident, and tested him on his thoroughness.
Nel: Now, you … I am sure you still have your notes of all these consultations you have had and if somebody would ask you, specifically what happened the first and second occasion, you would be able to tell the court?
Derman: Well what I can tell you, Mr Nel, M’Lady, is that I asked Mr Pistorius, what happened on that night. It was very important that I heard from him first-hand, to which he described that to me. I did not take any notes about that. I listened carefully to him and when I spoke to him subsequently to that, I again spoke to him. I wanted to make sure that there … some of the things in the record that I read, did not make sense to me and again, I did not take specific notes about this. I made sure that I understood it as it was here.
Nel argued that an expert witness, expected to give evidence in a criminal trial in a High Court, would have taken notes of the meetings he had with the accused. He also wanted details of the original version of events given by Oscar to Derman. Oscar had only given the explanation of the magazine rack noise triggering his reaction under cross-examination and Nel implied it was a new invention.
/> Derman said Oscar told him about the magazine rack at their first meeting.
When Nel questioned the time period during which a person would be less in control of the conscious part of their brain, Derman explained that on the first startle – the window opening – Oscar froze.
‘Ja, so now he froze,’ said Nel. ‘So whatever he done after that, that was him being in control of himself, thinking what he is doing?’
‘Well, I know that the … his next response is, he told me was to go and get the gun next to his bed,’ said Derman.
Nel’s issue with this version was the apparent contradiction of the startle response being a freeze, and then the accused fetching his firearm. ‘You cannot now freeze and then fight,’ he argued. The prosecutor was attacking the defence that Oscar was not consciously thinking about his actions when he fetched his firearm and stormed the perceived threat in the bathroom. ‘Okay but, what you will … what you are able … what you will concede is, there is an element of thinking,’ said Nel.
‘There is indeed,’ answered Derman. ‘Because he realised he has to get a gun.’
The prosecutor zeroed in on the effect that time has on this type of response:
Nel: Now in an incident like this, where there is a startle with … the accused finding a gun, knowing where it is. Getting the gun to fire, going to the bathroom, killing someone. Would that still make sense to you, if there was just one startle?
Derman: No, there would need to be more startles.
Nel: Okay. Good now there we are. Why?
Derman: Because of the period of time that elapsed between that first startle and the reaction.
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. ‘My memory is a bit fuzzy on this …’ he said, which highlighted Nel’s concerns about the expert witness not taking notes.
Derman said the crucial third sound – the so-called third startle, the magazine rack moving – 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 – 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. ‘Absolutely, 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. ‘When 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 ‘visual 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 ‘staggering 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, ‘we 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 – 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. ‘We 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 pres
sing question was whether Nel would attempt to introduce the video as evidence as he had done with the ‘zombie 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 ‘I never ran, I moved cautiously’.
Derman: No, I wanted to gauge what he meant by ‘run’, 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?