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.

Witness identifies Böhnhardt and Mundlos as murderers of  İsmail Yaşar

Today’s trial saw a remarkable testimony by a bakery shop assistant who had apparently passed by Ismail Yasar’s kebap shop directly after his murder and who had seen two bicyclists there. One of the two was just putting into the other’s backpack an object about 20 cm in length and wrapped in a plastic bag – this may very well have been the murder weapon. The witness had wondered why the owner of the kebap shop was nowhere to be seen.

She had stated all this already in her first statement to the police and had also pointed out that the two bicyclists had certainly not been of Southern European origin. Nonetheless, when the police had shown her pictures of potential suspects, many of these had shown men of Turkish origin.

The witness had also found a striking similarity between the two perpetrators of the bombing attack in the Keupstraße in Cologne, who had been captured on video, and the bicyclists in Nuremberg. After the NSU was uncovered, she also found that Böhnhardt und Mundlos looked very similar to the bicyclists she had seen in front of Ismail Yasar’s kebap shop.

The other witness statements today did not yield much.

The trial will continue on 17 to 19 September.

First day after the summer break

The first trial day after the summer break was rather uneventful. The first witness was a police officer from the Federal Bureau of Investigations who had been present when Gerlach showed the police the flat where he had handed over the gun to “the Three”. The officer confirmed all this upon questioning by the presiding judge.

In preparation for the testimony of further witnesses concerning several crimes who had seen the likely perpetrators on bikes, several videos and photographs were shown – a video bulletin concerning the search for Zschäpe, Böhnhardt and Mundlos, footage from a surveillance camera in the Keupstraße in Cologne from the day of the bombing attack showing the perpetrators on bikes, as well as a number of pictures of the fire in the Frühlingstrasse in Zwickau.

One witness from Nuremberg confirmed that she had seen two byciclists dressed in black shortly before the murder of İsmail Yaşar and very close to the crime scene. She had become afraid because one of the two men had stared at her. When driving away, she had heard four or five shots, but had pushed that thought aside and explained the noised to herself as noise from playing children.

In her first police examination, she had described one of the perpetrators as “of Southern European origin”, but that she had called the police the next day and described him instead as well-tanned.

“For me personally, by 2005 it was clear that there was a xenophobic background. No one in the investigating group ‘Bosporus’ really had any doubts on this question.”

This clear statement, made during the trial on 6 August by Manfred Hänßler, the chief of the murder unit of Nuremberg police, stands in clear contrast to the way the investigating group ‘Bosporus’ conducted its investigation until 2011. Whether his statement is true, or whether it is an attempt to conceal his mistakes, is a question that will have to be answered by the testimony of further investigators.

Of course, given the evidence heard on the last trial day before the summer break, a racist background to the murder of Nuremberg kebap shop owner Ismail Yasar all but suggested itself. Hänßler reported that the there had been two main leads: one was the so-called bike lead – several witness had seen two bicyclists directly in front of the kebap shop and heard shots very close in time to those sightings. The other was the so-called Cologne lead given similarities between the descriptions of bicyclists in Nuremberg and the two suspects in Cologne – one of the investigators from Cologne had contacted the Nuremberg police. The connection thus arising between the nail bomb attack in the Keupstraße in Cologne, inhabited mostly by Turkish and Kurdish people, and the murder series against migrants left little doubt that there was a xenophobic motive.

Hänßler reported that the Nuremberg police had also investigated the militant Nazi scene. However, the Bavarian “Office for the Protection of the Constitution” hat not provided them with the data requested, but only with a selection of some 600 data sets concerning Nazis from around Nuremberg. The witness was unable to discuss the reason why investigators had not received the material requested or to answer the question whether the Federal “Office for the Protection of the Constitution” or the equivalent offices in other federal Länder had been included at this point. He referred to a colleague who had conducted this aspect of the investigation.

A number of questions are raised by the fact that the police continued to conduct investigations against the victims’ families from 2005 to 2011, and that they failed to conduct adequate investigations concerning the militant Nazi scene, while according to the witness no investigator had any doubts as to a xenophobic motivation of these crimes. It remains to be seen whether these questions will be allowed during the trial.

Another police officer testified that possible targets of attacks, among them the kebap shop of Ismail Yasar, had been marked in city maps and on computers found in the remains of the burned NSU flat in the Frühlingsstraße in Zwickau. Given this evidence as well as the NSU video in which the group claimed responsibility for the murder of Yasar, establishing that this was an NSU murder should prove to be easy enough.

The next trial days after the summer break will take place on 5 and 6 September.

The Nuremberg saw “no concrete clues” for a racist motivation of the murders

Besides a first witness in the Turgut murder case, whose testimony did not bring significant enlightenment, the head detective of the Nuremberg police in the Simsek and Özüdogru murder cases testified today. The investigation headed by him had not at all considered a possible racist motivation for the crime, especially in the Simsek case it had instead focused above all on Simsek’s family and its environment. Accordingly, harsh criticism from victims’ counsel was to be expected. Two family members of Enver Simsek followed the proceedings from the court room.

The witness still seemed to be focussed on the supposed reasons for suspicion against Simsek and his surroundings – it was only upon questioning by the presiding judge that he also said some words on the personality and personal life of the murder victim. The idea that a racist motivation might be behind the murders was not seriously followed over the years – there simply had not been any concrete the leads, the witness claimed in court.

The questions of counsel for the Simsek family focused above all on the determination that all clues and all investigations directed against the family had proven wrong. The witness will be called again to testify on later parts of the investigation; it is to be expected that further questions will follow then.

Questions by the defence did not contribute much to the proceedings. The Wohlleben defence asked the witness what percentage of murders were committed by relatives or partners of the victim – roughly 60 to 70 per cent, according to the witness. Victim’s counsel Narin proved the absurdity of this question by asking the witness what percentage of serial murders were committed by relatives or partners – none that he knew of, the witness answered. Of course, it was directly after the Özüdogro murder, and thus at the beginning of an investigation lasting years, that the police considered the crimes as serial murders.

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.