16 November 2017

„You will not silence these voices” – meritless objections by the Zschäpe defense remain unsuccessful.

Zschäpe defense counsel Sturm, Stahl and Heer today continued their sabotage tactics begun yesterday, once more without any success. Their relentless interruptions did lead to a delay of several hours before Dr. Mehmet Daimagüler, counsel for the families of murder victims Ismail Yaşar and Abdurrahim Özüdoğru, could continue his closing statement. Daimagüler was, however, able to finish his statement, largely without further interruptions, in the early afternoon.

Sturm, Stahl and Heer claimed that the closing statement consisted of a “political address, which may in parts be justified, but not in this courtroom”. They even went so far as to claim that it was “unseemly” and unpermissible to address the topics of racism, institutional racism, criticism of law enforcements agencies in closing statements. Their claims were countered persuasively not only by several victims’ counsel, but also by the federal prosecution and even by defense counsel of co-accused Schultze. Zschäpe herself as well as her fourth defense counsel Grasel did not say a word all day.

The court clearly rejected these objections: “Victims’ counsel Dr. Daimagüler is in the process of explaining why he is of the opinion that the actual investigation of the crimes in the indictment only began in 2011. This complex may indirectly influence the sentencing and is concerned with evidence heard in court, which in the view of the speaker was too narrow.” The court also noted that a closing statement can only fulfill its potential if it is presented as a whole, and that it is therefore not to be interrupted only if there are actual reasons for objecting.

It is particularly interesting to look at the sections of the closing statement to which Heer and Stahl reacted in this severe and unreasonable manner: Daimagüler was in the process of explaining that discussions of racism often lead to defensive mechanisms, particularly where the person discussing the topic is considered not to be “German” – the fact that Heer and Stahl chose this precise moment to intervene and claim that such statements were provocative and did not belong in the courtroom clearly shows how right Daimagüler’s statement was.  When Daimagüler noted that he was only presenting the views of his clients, defense attorney Heer replied that this showed Daimagüler not taking seriously his task of making sure that these views were not presented “unfiltered” in court. In other words: the task of an attorney, according to Heer, is not to present his clients, but to “filter” them along the lines of what he considers proper in court. Daimagüler’s anwer was clear: “what I am presenting here is the unfiltered view of the survivors of the NSU, my clients. You will not silence these voices.”

Indeed, after the final court decision, the defense followed the rest of closing statement with hardly any interruptions. Daimagüler dealt with the problem of institutional racism in the police agencies and the decision of the prosecution to draw the focus of the case much too narrowly.

Whether this persistent defense obstructionism has finally ended or whether it will be taken up again in the further closing statements remains to be seen. What is clear is that it makes no sense from a procedural or defense point of view. After all, the defense will not be able to appeal the judgment based on the argument that the court had allowed parties to hold “peripatetic” closing statements. And neither can the defense attorneys have believed that their objections would be successful – not only victims’ counsel, but also the prosecution – which at that point in time was being severely attacked by Daimagüler – and the court had very clearly stated why the law allows interruptions of closing statements only in very exceptional cases which were not even in sight here. Accordingly, the final motion for reconsideration brought by the defense, which again cost several hours of trial time, consisted largely in a repetition of the same unconvincing arguments which had already been rejected several times.

The behavior of the defense attorneys therefore says a lot about themselves and their inability to actually conduct a valid defense for their client. Sturm, Stahl and Heer were obviously not motivated by courtroom tactics, but arose from their own convictions – it really seems like these three lawyers hold that a fundamental criticism of state institutions, of police, secret services, prosecution and court, simply has no place in a courtroom. This view on the relationship between state and individual, which is rather similar to that portrayed in Heinrich Mann’s “Man of Straw”, would also explain the subservient way in which the three act vis-à-vis the presiding judge.

However, if the three counsel actually hold it to be unthinkable that state agencies share responsibility for the crimes in the indictment, that state agencies could have actively hindered the investigations, and if they therefore did not consider a defense strategy for their client along such lines, they also roundly rejected certain potentially helpful defense strategies. This may well be one of the core reasons for the deterioration of the defense relationship.