Closing statement of counsel Heer: Why Beate Zschäpe is unable to make a valid statement in court.

The court began the trial day by reading out two short documents and viewing a propaganda video found on Wohlleben’s computer. It also denied two motions for evidence brought by the Wohlleben defense. Surprisingly, the defense reacted not with a motion for a trial break and a challenge for alleged bias, but rather not at all.

Accordingly, the closing statement of Zschäpe’s “old defense counsel” could begin before noon. Counsel Heer began and announced that the defense would need at least the entire trial week. He began with the concluding motions of the “old counsel”: conviction only for the arson in the Frühlingsstraße, acquittal concerning all other charges, a sentence amounting to time served or less, immediate release from detention.

Heer than began with a long-winded complaint about claimed violations of the right to a fair trial, which the defense had already complained about in objections during the trial: pre-judgment of Zschäpe by the media, the public and politicians, the tricks used by police officers to get Zschäpe to talk despite her decision to remain silent.

These complaints do have their merit, they show how police and the judiciary – not only in this trial, but also in many others – do not often place any great weight on the rights of the accused as laid down in the code of criminal procedure. However, given the clear evidence heard in the trial, these objections will not help Zschäpe at all. Accordingly, neither Zschäpe herself – who did not look at Heer at all, but rather stared into space most of the time – nor the court or the public showed themselves much impressed.

The main problem of Zschäpe’s “old counsel” is how to justify for themselves, but also to the world, why they are holding a closing statement against the clear will of their client and contrary to her own statement in court. Heer solved this problem in a rather abstruse manner by claiming that  neither Zschäpe’s statements to police officer after her arrest nor the statement read out in court by her counsel of trust could be held against her, the latter since counsel Borchert and Grasel had missed large parts of the evidence heard in court, since Zschäpe had not been able to analyze that evidence, and since Zschäpe’s statement in court had been based on deceit, the public and the court having fooled Zschäpe into thinking she had to make a statement since her “old counsel” had chosen the wrong strategy, the court having purposely driven a wedge between Zschäpe and her old counsel.

During Heer’s statement, it became clear that he is justifying not his client, but rather his own defense activities. To Heer, the fact that the police had tricked Zschäpe into making “small talk” with them – even though he had “forbidden” them to do so – seems to be an attack on himself, not on his client’s defense rights. The same is true for the court rejecting his motions, for Zschäpe’s decision to change counsel thinking that an absurd statement was a better defense strategy than Heer’s smart-alec attempts at procedural arguments.

Heer did not seem to realize that his arguments rob his client of all agency, that he presents her as unable to make her own decision to make a statement in court. He simply does not see that the autonomy and freedom of an accused also include the right to an objectively unreasonable choice. What could not be derived from his statement so far is any hint of self-criticism, any willingness to consider why he and his colleague had apparently been totally unable to get Zschäpe to realize why silence would indeed have been the best defense strategy.