Zschäpe and Wohlleben ask for disqualification of judges for alleged bias

It was planned that the court would deal today with the murder of Mehmet Turgut, who was shot to death in a kebap shop in Rostock on 25 February 2004. Instead the parties dealt with motions for disqualification of all members of the court, which were brought by accused Zschäpe and joined by accused Wohlleben. The background was as follows:

Defense attorney Stahl had asked for an advance of € 77,000 on a lump-sum payment he will later receive for his work in the investigation phase of the trial. Judge Kuchenbauer, the member of the court who is responsible for such matters, had only granted € 5,000. (Zschäpe’s other two defense attorneys Sturm and Heer had not made any request for an advance so far.) This, the Zschäpe defense argued, showed the court trying to keep the defense from being able to do its job properly. Stahl himself had not even shown up for the trial day today.

In addition, Judge Kuchenbauer had stated in his decision that the advance should be paid because the defense’s work was particularly laborious inter alia because of “problems of proof of guilt” (“Probleme des Tatnachweises”). This is read by the Zschäpe defense as evidence for a pre-judgment of the guilt of the accused. In reality, it is probably simply a rather infelicitous wording for “difficulties in fact-finding” or the like – a lapse, of course, which should not happen to a judge at the Court of Appeals.

At first, it was unclear why the defense challenged all members of the court: The decision had been issued by Judge Kuchenbauer as single judge, accordingly the other members of the court only stated, in their written statements on the challenges, that they had taken no part in the issuance of that decision. By contrast, the defense claimed that Kuchenbauer had stated in a phone call to defense attorney Stahl that he would discuss the issue with the other members of the court before issuing a decision. Accordingly, Zschäpe brought an additional challenge against all judges claiming that they had not been truthful in their written statements.

The prosecution as well as private prosecutors had moved that the court continue with the trial while the challenges are pending. This is an option the German Code of Criminal Procedure explicitly grants in order to avoid delays – after all, five witnesses in the Turgut murder case were waiting in the hallway, family members of Turgut’s were in attendance, and a number of additional witneses, including two private prosecutors, were due to give testimony on the following trial days. However, presiding judge Götzl interrupted the hearing and also cancelled the trial date for Wednesday. The trial will thus continue on Thursday. If the other chamber of the court responsible for deciding on the challenges has not issued a decision until then, Götzl will have to decide on Thursday whether to continue nonetheless – or whether to send parties and witnesses home again.

All in all, the trial day was more than disappointing from the point of view of the private prosecution – even more so given that the challenges are far from strong. True, a lump sum of € 5,000 for the investigation phase of a trial like this is insufficient. However, there are other ways to challenge such a decision, particularly given that this was just a question of the advance and given that the much more important question of the payment for the trial phase is still being discussed. The claim that the decision was aimed at hobbling the defense is clearly excessive.

Neither do the formulations in Judge Kuchenbauer’s decision show bias, even though they are quite infelicitous when read in isolation: the context clearly shows that what was meant are simply difficulties in fact-finding.

The question arises what exactly the defense are trying to accomplish. It seems that the Zschäpe defense is trying to build itself up as a kind of victim in order to conceal the fact that its defense strategy has not borne fruit. The defense has so far refrained from confronting the court either as to the substance of the charges or as to procedural issues – it seems that this would not fit their self-image and experience. Instead they seek confrontation only with respect to rather incidental issues. The challenges brought now show the Zschäpe defense again seeking confrontation only with respect to its own interests, in this case the lawyers’ fees, and not to central issues of the defense.

The Zschäpe defense must also ask itself how they can on the one hand claim that three defense counsel are absolutely necessary for the defense, when on the other hand defense counsel Stahl simply remains absent from the trial because of the discussions on payment.

What is more important from the point of view of the private prosecutors is how the court reacts to such challenges – it has again allowed the defense to totally disrupt an entire trial week with unsubstantiated challenges, and very likely private prosecutors have again come to Munich entirely in vain. This despite the fact that the court could easily have continued the trial at least until Wednesday evening.