Three Major Cases in the 20th Century Illustrate the German Legal System

Whether in real life or fiction I am always interested in how legal cases are conducted. Starting with a class in legal history in law school through the 38 years I have been practicing law I am familiar with the Anglo – Canadian – American systems of justice. I know much less about the legal systems of continental Europe. Over the past 5 years I have had a chance to read books on a trio of German cases that span the 20^th Century. They have provided with me with the chance to see how Germany’s justice system has dealt with cases drawing great public attention.

TheButcher’s Tale by Helmut Walser Smith dealt with a murder in 1900 when a 19 year old student, Ernst Winter, was killed and dismembered in Konitz, West Prussia. Rumours soon swirled through the town that he was the victim of a Jewish ritual murder.

The blood libel remained strong in the minds of the townspeople despite centuries of efforts by churches and government to convince the populations that it was a myth and had no substance.

The Prussian Government sent in investigators who pursued leads involving Jewish and non-Jewish residents of the community. While not well done the investigators were not swayed by the majority of the population who were sure of Jewish culpability. (The author told me less than 50% of murder cases were solved at that time.)

It is not easy to conduct a neutral investigation amidst public certainty of guilt no matter how little evidence exists.

The Prussian Government went further in protecting the Jewish community. Twice army units were sent to the town to maintain order.

By 1932 the German justice system was being threatened by the rise of the Nazi party. While not yet in power they were ignoring the law and violently attacking Communists throughout Germany.

Crossing Hitler by Benjamin Carter Hett features a fearless German lawyer, Hans Litten, who, as permissible under German law, joins as the legal counsel for the victims in the prosecution of SA Nazi storm troopers charged with assaulting Communists at a party at the Eden Dance Palace.

Litten manages to get Hitler summoned as a witness to try to explain the dichotomy between the Nazi Party publicly stating it would only pursue power by legal means and the actions of the SA in attacking people on the streets of Germany. Hitler is provoked into a profound rage and is fortunate not to have been convicted of perjury. Of all the “what ifs” of 20^th Century denying Hitler power I wonder if he would have been denied power had he been found guilty of perjury.

While Litten draws attention to the Nazis and fights them skillfully in court the legal system is perverted when the Nazis come to power. Hitler has recognized that an independent legal system cannot be trusted to allow him to carry out his plans. Litten is arrested and imprisoned in a concentration camp where he loses hope after 5 years and commits suicide.

In 1992 the assassination of four Iranian Kurdish activists in Berlin forces the German legal system to face the challenge of politically directed murders being committed in Germany by the Iranian government.

My last post, a review of the Assassins of the Turqouise Palace by Roya Hakakian, discusses the background to the killings and the 4 year long trial of those killers who were arrested before they could exit Germany.

It is clear German prosecutors and judges will fairly try the accused but will political considerations be allowed to usurp the judicial system. Will the desire for greater trade with Germany lead her politicians to make a deal with Iran that does not implicate the Iranian government and will either let the killers go free or receive nominal punishment? To the credit of Germany there is no deal.

As the trial wound down I was struck by the plea, late in the trial, by some of the accused that they should not be punished as murderers as they were just following orders. While Hakakian did not reflect on the attempted justification I thought it must have stirred all the Germans. They would not have forgotten how, in the Nuremburg War Crimes trials after WW II, the effort by German defendants to deflect responsibility by claiming they were just following orders was specifically rejected.

In the beginning and end of the 20^th Century the German legal system reached just results in high profile cases. Political and racial considerations were not allowed to influence the decisions. Unfortunately, for Germany and the world in between those cases the Nazis were able to corrupt its judicial system so there were no checks on their murderous impulses.