Review of “The Judge and His Victim” on Miscarriages of Justice in Germany

Why, I’ve often asked myself on this blog and elsewhere, do German journalists travel the globe looking for miscarriages of justice both real and imagined, without giving a thought to simply visiting the nearest jail or court and seeing if there are any just around the corner? After all, Germans are more familiar with their own justice system than those abroad, and a convincing exposé is much more likely to bring fruitful consequences in Germany than it is elsewhere.

My explanation is a combination of chauvinism, class solidarity, and academic disinterest. First, the chauvinism: Educated Germans are taught that their criminal-justice system is a finely-honed machine, lubricated by centuries-old principles, which finds the truth while scrupulously respecting the rights of the accused. To be fair, they’re not that far off; the German criminal-justice system does work quite well, on average, and German criminal-law thinking has been hugely influential worldwide. A bit of class solidarity is also at play: German journalists tend to be sympathetic to judges and prosecutors, who come from similar social classes to journalists and often have similar center-left views. This is especially true when it comes to news coverage. When a screaming tabloid headline denounces a judge for coddling a criminal or being bamboozled by a bogus psychological defense, the instinctual response of a German journalist is to place themselves between the judge and the braying horde of ignoramuses. Finally, there’s academic disinterest. For decades, German criminologists and law professors occupied themselves with abstract debates of little consequence, and showed little interest in how well their criminal-justice system worked. The last comprehensive analysis of miscarriages of justice in Germany was published in the 1970s. The DNA revolution seemed, until recently, to have passed Germany by.

Yet not all journalists have focused their critical searchlight anywhere but Germany. Like so many American societal trends, concern about wrongful convictions reached Germany after about a decade, and inspired some German journalists to begin turning more attention to matters domestic. One of the first fruits is Thomas Darndstädt’s excellent 2013 book (g) “The Judge and his Victim: When Justice Errs” (Der Richter und sein Opfer: Wenn die Justiz sich irrt). In clear, accessible prose, Darnstädt, a journalist and lawyer, surveys a series of recent miscarriages of justice in Germany, seeking out common themes and suggesting potential reforms. Darnstädt includes long interviews with two sitting German criminal judges, a psychologist expert on witness credibility, and one of Germany’s most prominent criminal-defense lawyers.

Darnstädt also includes revealing case studies, including the cast of Benedikt Toth, who was convicted of killing his aunt to speed his inheritance, and the building supervisor Manfred Genditzki, convicted of drowning an elderly woman whose caretaker he had been. These are fascinating cases, in which the evidence hangs on a knife-edge. Darnstädt also profiles much more famous cases, including the notorious “Farmer Rupp” (g) case, in which the family of an ornery Bavarian farmer falsely confessed to killing him and feeding his body to dogs and swine — only for the body to be dredged up from the Danube years after the initial convictions. Another famous exoneration is Harry Wörz (g), who was convicted of breaking into his ex-wife’s home and strangling her nearly to death. Darnstädt also profiles Jörg Kachelmann, a popular weather forecaster and playboy who was falsely accused of rape by a mentally-unstable ex-girlfriend.

However, by far the most frequent cases of miscarriage of justice in Germany involve cases of alleged child abuse. Germany, like the United States, had a run of mass child sexual abuse cases in the 1990s which later proved baseless. The most spectacular of these was the infamous Worms (g) debacle, the largest child-abuse case in German history. The case started, as so many do, with allegations being traded in the midst of a bitter divorce. The child in question was then referred to a non-profit which cared for abused and neglected children. These organizations — with poetic names like “Wildwasser” or “Violetta”, or “Zartbitter” — recur over and over in Darnstädt’s book. Darnstädt applauds the valuable work they perform, but warns against their missionary zeal to uncover cases of abuse, and shows how their unscientific and suggestive “believe the children” attitude caused massive problems. In Worms in the mid-1990s, 25 people were put on trial in three separate proceedings, accused of abusing 16 of their own and other people’s children. The children had been interviewed using anatomically-correct dolls and a method developed by the Münster child psychiatrist Tilman Fürniss, which consists of leading questions couched as hypothetical suggestions.

The results included many of the outlandish exaggerations common to these cases, but these were explained away by prosecution experts as the products of post-traumatic stress disorder. The defendants were caught in the typical heads-you-lose, tails-I-win dilemma: When the children described outlandishly perverse sex acts, this was considered a sign of their credibility, since “no child could possibly invent” these allegations. On the other hand, when the children came up with accusations which were impossible as a matter of anatomy or timing, these glaring warning signs were dismissed as the product of PTSD. Fortunately the Worms judges became suspicious, and hired experts to review the credibility of the children’s accusations and the methods used to question them. The experts denounced the interview techniques as suggestive, and highlighted the massive inconsistencies in the children’s accounts. The courts ended up acquitting all 25 defendants, and issuing that rarest of statements from German officials: an apology. The judge in one of the cases, Hans E. Lorenz, said: “The Worms mass child-abuse case never existed. We must apologize to all of the defendants, whose long path of suffering now ends.” The cases ended on a bitterly ironic note: One of the caretakers in the “Sparrow’s Nest” children’s home to which the alleged victims were relocated — and a main witness against the innocent parents — was later convicted of molesting the children under his care.

Most of the other wrongful-conviction cases involving sexual abuse follow a similar pattern: A young woman, often with undiagnosed personality disorders, accuses a man in her environment of sexual abuse. Child-welfare and feminist activists take over, getting friendly doctors and mental-health professionals to endorse the accusations and explain away any consistencies. The defendant — often a relative — is confined pending trial and sentenced to years in prison, effectively destroying his livelihood. Later, the young woman in question launches another round of accusations, but this time they are so implausible or impossible that they spark serious concern about her credibility. The old case is re-investigated, and evidence emerges that activists and sympathetic “experts” (and sometimes even prosecutors) covered up evidence of the accuser’s mental instability. This instability usually takes the form of some sort of personality disorder — usually borderline personality disorder, which fuels a pathological craving for drama, attention and sympathy.

The question remains: Why did judges accept these accusations? In Germany, serious criminal cases are heard by regional courts (Landgerichte). At the end of evidence-gathering, the presiding judge is required to write a formal explanation of why he or she convicted the accused. The judicial report follows a strict formal style based on subsumption, a German term for applying the law to the facts in a controlled, “scientific” manner. The judge must resolve credibility conflicts and make fact determinations: Did a sexual assault occur? Did the defendant have the necessary motive for murder? Interestingly, the formal burden of proof is never set out explicitly in German law. The judge may engage in “free evaluation of the evidence”, and should convict if the he believes the defendant is guilty with “a level of probability bordering on certainty”. This gives the judge huge responsibility — if she becomes convinced the defendant is guilty early on, ignores contrary evidence (confirmation bias), and shades her conclusions to shore up her intuition of guilt, the fact-finding process can become completely distorted. German lawyers have a word for such distorted judgments: they’re like watching “the wrong movie”. Darnstädt provides several examples of just this sort of distorted reasoning — some of which were corrected on appeal, but not others.

As Darnstädt points out, judges in Germany are given almost no practical training to help them determine how to find facts. Law schools famously train German law students to be judges, and schools them to perfection in how to apply the facts to the law. But it does almost nothing to prepare them for the other crucial part of their role: Figuring out what the facts are in the first place. Most judges will develop a “gut feeling” for how to do this, but may make mistakes along the way, or fall victim to biases of which they’re not completely aware. Darnstädt also points to the enormous importance court-appointed experts enjoy in Germany. To reduce their burden — either in terms of workload or moral responsibility — judges will appointed expert witnesses to help them resolve various fact questions and judge witness credibility. Yet expert witnesses can suffer from their own limitations, and may have distinct political or epistemological agendas. In many cases, Darnstädt (and some of the judges he interviews) argues, it would be better for the judge, after proper training, to make these findings himself.

How serious is the problem of wrongful convictions? Darnstädt quotes Ralf Eschelbach, a judge at the Supreme Court of Justice and stringent critic of German criminal justice, that up to 1/4 (g) of all criminal convictions in Germany might be wrongful. This seems spectacularly high to most observers, including myself. Yet Eschelbach’s motives are noble; he is trying to shake Germans out of a sense of complacency about their criminal-justice system. One more reliable statistic is the number of successful motions to re-open a case (Wiederaufnahmeverfahren). These motions are filed after the initial appeal is denied, and must be based on “new facts” which undermine the original verdict. Only about 3% of these motions are successful — and that doesn’t necessarily mean the defendant will be proven innocent, only that he will get a new trial in which the new evidence can also be considered. Yet, as Darnstädt notes, the motion to re-open the case is an imperfect remedy. If the real problem is that the trial judge simply failed to accurately weigh the evidence, or suppressed certain inconvenient facts, the motion to re-open will fail because there is no new evidence to support it.

Perhaps the most startling defect in the German criminal justice system Darnstädt identifies is that German police interrogations and criminal trials are not recorded. During an average police interrogation, the detective will ask questions, take notes, and then record the result in a “memory transcript” (Gedächtnisprotokoll). Of course this policy gives free rein to crooked cops. Incidents of outright falsification are, fortunately, rare. But there are other problems with this 19th-century technique. Darnstädt points to studies dating back to the 1970s showing that police officers routinely leave out important facts during their summing-up. Often the detective will re-formulate confessions using words which the defendant would never have used. Darnstädt cites a famous example, of a Kazakh drug addict who threw a piece of wood off a highway bridge, killing a mother of two. In his “official” confession, he claimed to have committed the act out of frustration at “failing to obtain illegal drugs”. Of course, the lack of recording also makes it impossible — forever — to reconstruct the circumstances of a police interrogation. Thousands of German prisoners have gone to prison based on a “memory transcript” of an incriminating statement or confession which was only given after an hours-long “preliminary conversation”, which isn’t further described.

Another stunning fact is that serious criminal trials before regional courts are also not recorded — judges merely prepare a summary of what happened, based on their notes. This is the not the case for civil courts, where proceedings are recorded as a matter of course. Judges and police officers have adamantly fought a recording requirement for decades, using various flimsy arguments. Darnstädt seems almost unable to believe that this reform hasn’t been implemented in Germany yet, and the reader shares his incredulity. Of course, as Darnstädt points out, the lack of a verbatim recording of court proceedings and interrogations creates hundreds of completely avoidable disputes on appeal, in which prosecutors and defense attorney squabble about the exact wording a witness used in a crucial bit of testimony, without ever being able to reconstruct it. As I recently noted on this blog, if Germany were applying to the EU today, it would be rejected on the grounds that it doesn’t create verbatim recordings of criminal trials.

Darnstädt ends the book with a set of quite sensible suggestions: Hire more judges to reduce workloads, train judges in how to evaluate evidence, limit recourse to appointed experts, and allow appellate courts more leeway to question lower courts’ decision-making. And, of course, record witness interviews and trials. After reading some of the gob-smacking miscarriages of justice Darnstädt documents, the reader will be nodding in enthusiastic agreement.