On the murder of Habil Kilic – and on the media hype surrounding the change of office of Zschäpe defence counsel Anja Sturm

Several witnesses and expert witnesses testified on the murder of Habil Kilic today.

The trial day began with the testimony of a pathologist on the post mortem and of a weapons expert on a reconstruction of the crime. According to their testimony, the murder of Habil Kilic – the fourth in the series of NSU murders – also had the appearance of a professional assassination: one shot to the victim’s head, a second shot to the back of the head from a short distance to ensure his death. In contrast to the first three murders, no shell casings were found at the scene – apparently the killers had put a plastic bag over the gun.

Three witnesses also testified – a lady who had seen two suspicious bicyclists close to the crime scene, followed by a neighbor and a postman who found the dying Kilic in his shop and called the police. The testimony again afforded glimpses into the way these crimes were investigated: The first witness had stated at the crime scene that the cyclists had looked “Eastern European” to her. In the notes of the police officer who questioned her, this became “foreign, possibly Turks” – something she never said to the police, the witness testified today. How this “possibly Turks” found its way into the notes of the policeman is something that will have to be cleared up by calling the police officer as a witness, as was indeed suggested by the defence.

Some of the media see a big scandal relating to the trial after it became known that Zschäpe’s defence counsel Anja Sturm was leaving her law offices in Berlin and moving into the law offices of co-defence counsel Heer in Cologne. Sturm had stated in an interview with Berlin daily Tagesspiegel that the Zschäpe defence was seen as a “killer case” and that this was the reason why her law office colleagues wished to end their cooperation and why no other law office was willing to offer her a place. The move to Cologne with her husband and two kids is described by daily newspaper “Die Welt” with the heading “Beate Zschäpe’s counsel loses job and home (Heimat)”.

That the defence of Zschäpe is a well-paid job, one that many lawyers in Germany would compete for, is ignored in such reports. Part of the media rather prefers to see discrimination on the part of fellow lawyers against Sturm, who they claim is being mobbed for defending a Nazi. This is seen as an attack on the rule of law. A further fact cited in evidence of this theory is that Sturm, after having just moved from Munich to Berlin in 2012, had applied for the position of deputy chair of the Berlin association of defence lawyers, had not been elected. The association had issued a press release (in German) regarding this issue today.

It is certainly awkward for Anja Sturm to be disappointed like this by her office colleagues in Berlin. However, that she was unable to immediately find a new office willing to act as a full-in is hardly worth a press report. Criticism concerning the defence of actual or assumed criminals is a daily occurrence for defence counsel. The circumstances under which Sturm changed office do not show any peculiarities which would call into question the possibility of an optimal defence in this or other cases. An attack on the rule of law, on the fair trial principle, as imagined by some of the media, is nowhere to be seen.

The old lady from the Frühlingsstraße

The court heard three witnesses concerning the Frühlingsstraße fire today. All three are relatives of the old lady who lived wall-to-wall with “the Three”. One of the witnesses brought her into safety after the fire had started.

Their testimony showed clearly that the trio’s neighbor was not in very good health, in particular that she was not able to walk well or far and that she was hearing-imparied, and that Beate Zschäpe was aware of this. The indictment charges her with attempted murder of her neighbor. Today’s testimonies show that there was indeed a very serious danger to the old lady’s life. They also showed that the old lady had trouble coming to terms with the fire and the loss of her apartment.

One of the witnesses also reported – just as several witnesses last week had – that she saw Zschäpe carrying cat baskets shortly after the fire broke out. Where she differed from the other witnesses was in how Zschäpe was dressed at the time.

The Zschäpe defence tried to raise doubts concerning their testimony, but accomplished the opposite: one of the old lady’s nieces had stated in her police examination that Zschäpe had set the fire knowing that it could well lead to the death of her aunt. Asked how she arrived at that thought, she was quick on the comeback and summarized how this charge against Zschäpe will be proven: Zschäpe had run from the house directly before the explosion, the two men had already been dead – who else should have set this fire? The questioning also revealed that the old lady’s three nieces met with their aunt for coffee in her apartment every Friday afternoon and that on the day of the fire, they were a little later than usual. It remains to be seen whether the court will now announce that there is a suspicion of not only three counts, but six counts of attempted murder.

On the Özüdogru murder case, on the Frühlingsstraße fire – and on whether Gerlach will testify further

The trial first dealt with the Özüdogru murder case. Two expert witnesses, a weapons expert from the Bavarian Office of Criminal Investigations as well as a pathologist, reported: Özüdogru was shot in the head twice, the second shot being fired from a very close distance when Özüdogru was already lying on the ground. Abdurrahim Özüdogru was dead after a few minutes. In contrast to the first crime, the murder of Enver Simsek, this murder had the outward appearance of a professional execution.

Given that the last trial days had seen the testimony of several witnesses who had interrogated Gerlach during the investigation, the presiding judge asked whether Gerlach planned to make further statements. His defence counsel answered for him. Apparently the defence is seriously considering making further statements, but in any event, this will not happen before the summer break. It thus remains to be seen whether Gerlach will be able to bring himself to stop playing down his role in connection with the NSU.

The afternoon was again devoted to the Frühlingsstraße fire. A couple from the neighborhood confirmed the testimony of yesterday’s witness: they too had seen Zschäpe in the vicinity of the house directly after the explosion; they too had been struck by her calm demeanor. Thus the body of evidence that it was Zschäpe who set the house on fire continues to grow.

More on the Frühlingsstraße – and an “entirely normal” Hitler portrait.

Today the court again heard several witnesses on the flat “the Three” inhabited in the Frühlingsstraße in Zwickau. First to testify was a neighbor of “the Three” who had hosted get-togethers in his basement, some of which included Beate Zschäpe. Zschäpe had given her name as Susanne Dienelt and had told him that she was living with her boyfriend and his brother. The witness remembered that cars and caravans would often be parked in front of the house, a fact which Zschäpe explained by stating that the two men made a living by transferring cars. The witness denies having had political discussion with Zschäpe, but claims to only have talked about “everyday stuff”. According to the witness, he was not annoyed at all that the two men had not participated in the social life of the neighbors, but was instead happy to have an attractive woman amongst them.

There were a number of questions concerning his political leanings given that the witness, who claims to be entirely apolitical, had a portrait of Adolf Hitler prominently displayed in his party basement. According to him, this was simply a remembrance for a neighbor who passed away and who had had the portrait displayed on top of his TV. Accordingly, he claims that there had never been any complaints from visitors. Of course, this testimony provides clear evidence for the witness having severe right-wing leanings – which may also explain why he does not want to remember much.

One interesting statement of his concerned regular visits from the so-called sister of Zschäpe, who, along with her boyfriend and their kids, had regularly visited “the Three”. The witness was shown photographs, on which he identified the wife of accused André Eminger as well as the accused himself or his twin brother respectively as having been the visitors.

A computer expert from Zwickau police reported on the contents of a computer used by Zschäpe which had been found in the apartment after the fire. According to the data, she was online until about 30 minutes before the fire started, searching for news about the two Uwes and afterwards for a place to leave her cats – apparently in preparation for setting the apartment in flames within half an hour of shutting down the computer. The case file also contains the entire Internet history of Zschäpe, which will have to be considered in detail at some point during the trial.

An expert witness from the Saxonian Office of Criminal Investigation gave an expert opinion on the danger emanating from the explosion and the fire. According to him, both events had been uncontrollable and had endangered the lives of all persons present in the house. The expert had a slight disagreement with the expert from the Bavarian Office of Criminal Investigation, who was also present, about the precise method used to light on fire the gas that had been poured out in the apartment.

Finally, a witness who was present by accident shortly after the outbreak of the fire reported that she had seen Beate Zschäpe approach from the direction of the house, two cat carriers under her arms. Having had the fire pointed out to her, she had left the cats with a neighbor and had run into the opposite direction on a pretext. The witness reported that Zschäpe had appeared remarkably calm during this meeting.

Once more on Gerlach’s testimony – and on “higher priority assignments” in Nuremberg

Today the court first considered the Simsek murder case. A pathologist detailed the wounds suffered by the murder victim. Enver Simsek was hit by eight bullets, one of the five shots to the head led to his death. A weapons expert from the Bavarian Office of Criminal Investigations reported on a reconstruction of the crime, which showed that it was committed either by two perpetrators or by one perpetrator who switched weapons in the middle of the killing.

One victim’s counsel asked the expert witness why it had taken him roughly two years to finish his first report on the reconstruction. He gave an evasive answer, stating that he was part of a small team and that they had probably been busy with “higher priority assignments”. He did not give any indication which case took priority over a series of murders of people with Turkish origin.

Afterwards, the trial dealt with police officers from the Federal Office of Criminal Investigations (BKA) who had interrogated accused Gerlach during the investigation. First, the parties gave statements on the testimony of the main interrogator who had testified the previous week.

The Zschäpe defence lamented that the officer had not asked necessary questions arising out of Gerlach’s testimony. The defence also claimed contradictions in Gerlach’s statements. A number of victims’ counsel, on the other hand, showed that Gerlach had indeed been somewhat hesitant in disclosing what he knew, but that there is no reason to disbelieve the facts he did in fact disclose. On the other hand, his testimony also showed that Gerlach is still playing down his role and his knowledge concerning the NSU’s crimes. The statement by victims’ counsel is available, in the original German version, here.

The Wohlleben referred to the right to a contradictory questioning of witnesses under the European Convention on Human Rights, claiming that since Gerlach refused to answer questions and since necessary questions had not been asked during the investigation either, his statement could not be used in evidence against Wohlleben.

After these statements, the court heard the testimony of a further BKA officer. He had been the first BKA officer to question Gerlach, on 13 November 2011. This interrogation took place at the point in time when Gerlach was still rather reluctant to disclose what he knew. One interesting detail: this officer was the first to officially charge Gerlach with providing aid to a terrorist organization. He also formally notified Gerlach at the beginning of the interrogation that an investigation was also conducted against him in connection with the then so-called “kebap killings”: Asked whether he remembered any sign of Gerlach being surprised by this statement, the witness could not recall any such sign.

The final witness was a police officer who had questioned a witness of the murder of Abdurrahim Özüdogru. The witness had claimed in court that she had seen the victim lying in his tailor shop, had seen a man run out of the shop, and that she had seen Beate Zschäpe at the crime scene. She had also stated that she was afraid to continue to testify for fear of being killed (see the report on 24 June 2013). Back then, many participants had already had the impression that the witness was mashing up her own memories and news reports she had since then seen. This impression was reinforced by the police officer’s testimony today. The testimony of the original witness will not be a serious factor in the judgment.

On earlier statements of accused Gerlach

Contrary to the original plans, only two witnesses testified during the week of 16 to 18 July. An officer of the Federal Bureau of Criminal Investigations who had interrogated Gerlach several times during the investigation testified on all three trial days. His testimony showed once again that Gerlach only disclosed his knowledge bit by bit over the course of several interrogations.

Gerlach told the witness on several occasions that Beate Zschäpe was on an equal footing with Böhnhardt and Mundlos, in particular that she had handled the group’s finances. It also became apparent several times that Mundlos und Böhnhardt had blabbed details of crimes several times – for example, Mundlos had proudly shown Gerlach a pumpgun he had bought. These details will be building blocks for the court convicting Zschäpe as co-perpetrator, but also show that the supporters of the NSU had knowledge of the group’s crimes.

The officer stressed that Gerlachs statements had furthered the investigations quite a bit – an announcement which will likely earn Gerlach a sentence reduction under the crown witness rule. However, the testimony also raises serious doubts concerning whether Gerlach’s own role is in fact limited to those acts he has so far admitted. For example, the witness entertained serious doubts whether it is true, as claimed by Gerlach, that he had only been in the NSU flat in Zwickau twice overall. Finally, the officer’s testimony showed again that Gerlach must have known more about the crimes of the NSU than he has admitted.

The witness was also questioned by the defence, above all the Zschäpe and Wohlleben defence teams. Their questions concerned mostly aspects where they felt that the officers should have asked specific follow-up questions concerning Gerlachs statements. And indeed the testimony showed a certain disinterest of the police in conducting a thorough investigation – however, any clues that Gerlach’s statements incriminating Zschäpe and Wohlleben are untrue did not arise.

On 17 and 18 July, the arson investigator from Zwickau continued to testify on the effects of the fire in the Frühlingsstraße apartment, showing a large number of photos of the house after the fire. The investigator’s testimony will continue on a later trial day, next time he will also report on several items (inter alia guns as well as the handcuffs of murdered police officer Kiesewetter) found in the wreckage of the house.

Another police officer from Nuremberg who was originally summoned as a witness for 16 July will now likely testify on 1 August.

Beside the testimony of these witnesses, the trial day also saw debates concerning the way the trial is conducted. Victims’ counsel for the Yozgat family moved that in the future, witnesses again be summoned according to the chronology of the crimes concerning which they are to testify. Recent weeks had often seen several murders being considered in the same week alongside witnesses concerning statements of the accused and the Frühlingsstraße fire. The presiding judge reacted in a quite exasperated manner and explained that, in planning the summoning of witnesses, he had to take into account inter alia vacations of witnesses and private prosecutors.

Counsel for the Yozgat family also gave a statement on the announcement by the Federal Prosecutor’s Office that they would object to any question not directly concerning the crimes charged. Counsel Dierbach stated that she would of course ask such questions since an investigation of racist methods of investigation was simply part of the investigation concerning the NSU as a whole. Meanwhile, federal prosecutors began to put into action their announcement by objecting to several questions asked of the witness by the Wohlleben defence, despite the fact that these questions did in fact have a connection with the case at hand. The presiding judge held all these questions to be admissible.

Testimony concerning the Şimşek, Özüdoğru and Kiliç murder cases

In the morning of 10 July, the court informed the parties of further dates for the continuation of the trial. The court has announced dates until the end of 2014 and thus seems to foresee a much longer duration than originally, when the last trial date announced had been in early 2014.

Both trial days were mostly concerned with testimony concerning the murders of Şimşek, Özüdoğru and Kiliç, particularly as concerns the situations in which their bodies were found.

Police officers reported that Şimşek had been shot several times from two guns. Two witnesses who had passed Şimşek’s delivery van had heard “metallic sounds” and had seen two young men in bicyclist’s clothing run away from the scene. However, they were not able anymore to precisely describe the situation.

Clues concerning two young male cyclists dressed like bike couriers, who had been seen driving towards and then away from the murder scene, also came up early in the Habil Kiliç murder case. This murder was described as “professional” – Habil Kiliç was first shot in the head while standing behind the shop counter, then another shot was fired at his head while he was lying on the ground to make sure he would die.

One officer leading the investigation took particular care to state that the police had investigated “in all directions”. However, police had simply not thought possible that the two cyclists might be the killers.

The testimony of police officers was subject of disputes between victims’ counsel on the one hand and federal prosecutors and the court on the other. Above all prosecutors objected to all questions concerning the faulty police investigations. Some private prosecutors reacted with a statement in which they stressed that one question to be answered in the trial is whether or not the police would uphold their suspicions against their families and if not, for what reasons. Questions concerning this issue are thus pertinent for the trial. Prosecutor Diemer on the other hand stated that he would continue to object to all questions not directly concerning the guilt or innocence of the accused.

One examination that proved particularly difficult was that of Habil Kiliç’s widow, who had been in Turkey at the time of his murder. In the particular situation of an examination in court, she was not ready to describe her life circumstances then and now. She referred to several documents her counsel had sent to several agencies. Of course, the examination was already started in an insensitive manner by Presiding Judge Götzl. He asked the witness to state her current residence and it took specific protest from the witness for him to instead allow her to show her id card only to the court. One would have expected the presiding judge to consider beforehand potential fears of murder victims’ families and to take them into account. What’s more, the presiding judge only called in a translator after the witness stated that she was unable to continue. Given these difficulties, the testimony of Kiliç’s widow proved quite dissatisfactory.

Habil Kilic’s mother in law reported on how the murder had impacted on her family. Among other issues, her granddaughter’s school wanted her to switch to another school, claiming a danger of attacks on the school. It took considerable efforts to ensure that the granddaughter could stay in her school. The witness also reported how she had been interrogated by the police, against her wished, directly after having been informed of her son in law’s death.

A lack of sensitivity on the part of the presiding judge also showed when crime scene photos were shown as evidence and a photo of the naked body of Mr. Kiliç was projected onto the court room wall in the absence of any necessity of doing so – hardly a sensitive and dignified approach to communicating with the crime victims.

As expected, the motion by André Emingers defense to be allowed to remain absent from certain trial days was rejected by the court.

The Gerlach defense as well as victims’ counsel Kuhn and Hoffmann commented on the testimony of witnesses concerning statements of accused Gerlach. According to his defense, Gerlach had, from the very start, cooperated in an open and believable manner and without holding anything back and was thus eligible for a sentence reduction under the crown witness rule. What’s more, according to them Gerlach had never thought that the documents he had provided to “the Three” could be used for any wrongful means, let alone for crimes. By contrast, victims’ counsel stressed that the testimonies showed Gerlach to have reckoned with the weapon he had transported being used for politically motivated crimes. In addition, it has become clear that when providing his passport in 2011, Gerlach had anticipated that it would be used for further crimes.

Not discussed in open court, but nonetheless of considerable interest for private prosecutors were reports on a series of house searches in connection with the violent neo-Nazi network “Freies Netz Süd” (“Free Network South”). Reportedly, one of the apartments searched was the apartment where accused Andrè Eminger resides when in Munich during trial days.

On earlier interrogations of Holger Gerlach

This morning was devoted to the testimony of prosecutor Dr. Moldenhauer of the Federal Prosecutor’s Office. He testified on earlier interrogations of accused Holger Gerlach before the investigating judge of the Federal Court of Justice. Gerlach had provided “the Three” with several identity papers which were then used to rent mobile home for the NSU’s murders and bank robberies. Inter alia, Gerlach had provided, in 2011, a passport in his name and with a picture in which he closely resembled Uwe Böhnhardt, having changed his apperance before taking the photo.

In his interrogation, Gerlach had stated that he did not then think that there was an arrest warrant against “the Three” – he had read in a newspaper that the crimes they were originally accused of were time-barred by then. What’s more, “the Three” had told him that they owned a computer store, and they had arrived to meetings in new and expensive cars.

If Gerlach assumes that “the Three” were not subject to arrest warrants and that they had enough money, it must have been clear to him that they would use his identity papers to commit crimes based on ideology. This is all the more so given that he had, as he related to the witness, already told them ten years earlier that one could not “rescue the world with five people.”

As far as his interrogation concerned the delivery to “the Three” of a pistol he had been given by Wohlleben, Gerlach had tried to talk his way out by claiming that he had not looked into the bag containing that pistol and/or that he had not seen any way to safely “get rid” of the weapon without endangering others.

Somewhat surprisingly, the defence of accused Eminger moved to be allowed to remain absent on all trial days not concerning crimes Eminger is directly charged with. Given that all crimes concerned here were committed by a terrorist organization which Eminger is charged with supporting, this motion does not seem destined for success.

At the end of the trial day, two police officers testified on the initial discovery of the body of Enver Şimşek, who had been shot dead in his flower van.

Catastrophically bad investigation leads to catastrophically bad trial days

The first half of this trial day saw the low quality of police investigations reflected into the courtroom.

Carsten Schultze has stated that he provided a silenced pistol to Böhnhardt and Mundlos and that he believes this pistol to have been the Ceska. He stated that when first interrogated, he had been shown grainy black-and-white copies of several weapons. In a later interrogation he had been shown several weapons. He was not able definitely to identify one of those as the weapon he had bought and given to “the Three”.

A police witness who was present during an interrogation of accused Gerlach, during which Gerlach was shown several weapons, brought a box full of weapons with him into the courtroom. It turned out during the course of his testimony that these weapons were of the same make as those weapons which had been shown to Gerlach – but they were not the same weapons; in fact the weapons shown to Gerlach may well have had differently-colored barrels or grips. Accordingly, this testimony was rather useless.

However, this negligent investigation will not have an influence on the result of the trial, as one thing did become quite clear: Schultze distinctly remembered a pistol whose barrel was threaded for a silencer – the only pistol so threaded among the NSU’s weapons was exactly the Ceska used in the group’s murders. This should suffice to identify the weapon provided by Schultze and Wohlleben as the murder weapon.

Another police officer testifed about the content of the first interrogations of Gerlach. His testimony showed quite clearly that Gerlach only ever admitted facts which he had to assume the police knew anyway. Gerlach would later make long statements to the investigating judge of the Federal Court of Justice, which will be read out in court. These will show how he divulged further details step by step after he realized that his identity papers had been crucial in allowing the NSU to commit several murders.

Zschäpe’s conversations with police officers

Beate Zschäpe has so far remained silent in all formal interrogations. However, in other contexts she has talked, sometimes for several hours, with police officers. Law enforcement have thus tried to bring about situations in which officers had the opportunity to have informal talks with her. Several such talks were subject of witness testimony on 2 and 3 July 2013. The officers’ testimony proved to be very incriminating for Beate Zschäpe. Her defence argued tat evidence concerning these conversations must be suppressed, but was not able to show that the police had used illegal methods of interrogation.

The first witness was a police officer who talked to Zschäpe after she had been brought from Jena to Zwickau. He stated that Zschäpe told him that she had not surrendered to the police in order to remain silent. However, there was no formal statement at that time as her counsel was not present. Asked whether further crimes were planned or underway, she had answered in the negative. Later on she had stressed that she had never been forced to do anything.

Zschäpe also had several conversations with a young officer from the BKA, the Federal Criminal Police Office, who had already accompanied her on the flight from Zwickau to Karlsruhe, the seat of the Federal Court of Justice. He stated that during a waiting period, she noted that Mundlos, Böhnhardt and Zschäpe had always known that their cover would be blown one day. It was easier to sleep now that this had happened. Furthermore, she had promised Böhnhardt and Mundlos a long time ago that she would inform their parents in the event of their deaths, and she had done so before surrendering to the police. Asked about items in the basement of the burned house in Zwickau, she had answered in a surprised tone that she did not feel entitled to dispose of items paid with money stemming from crimes.

On 25 June 2012 Zschäpe was allowed to meet her mother and grandmother in the prison in Gera. Accordingly, she was transported from the prison in Cologne, where she was detained, to Gera. On the four hour drive to and from Gera, she was accompanied by a high-ranking BKA officer who brought up several details from the case files. Again, Zschäpe proved talkative. The officers recalled that one issue discussed was her unhappiness with the work of her defence counsel Heer. She had accused him of working together closely with the press, something she did not agree with.

According to Zschäpe, her counsel had advised her to remain silent. She had added, however, that if she testified, she would give a long, detailed statement, as she was a person who took responsibility for what she had done. The witness seemed to recall that, in answer to the possible mitigating effect of her testifying, she had said that she did not believe her testimony would have a positive effect on her sentence.

She had also stated, however, that she was on the one hand annoyed about the ugly mug shot of her that had been published everywhere, but that she was also happy about it as it would keep people from recognizing her after her release from prison. After that release, she planned to take on a different name and live a normal life.

It thus appears that a year ago, Zschäpe was rather optimistic in assessing the sentence awaiting her. However, given the testimony of police officers that she was informed of the crimes of Mundlos and Böhnhardt, that all three anticipated death at any moment and had made arrangements concerning that case, and that she considered herself personally responsible, a life sentence seems a much more realistic outcome.