Taking up a theme recently discussed on allmystery, let’s look at Söring’s stay in British prisons.
When Jens Söring is asked why he confessed, he says it was to protect Elizabeth Haysom from the electric chair. This is usually enough for most journalists, who dutifully transcribe his story. Sometimes people dig a little deeper, though, and find out that Söring’s white-knight “I confessed to protect Elizabeth” story dates only from June 1990. But Soring was in prison in England for more than four years. Why didn’t he produce the white-knight story sooner? Why didn’t he retract his confessions during those four years?
Söring knows this is a problem and, being Söring, he’s got excuses and explanations ready. Let’s look at Chapter 10 of Söring’s 1995 e-book Mortal Thoughts, which still exists online despite Team Söring’s Herculean efforts to scrub it from the web. I’ll post a long excerpt to give a sense of the context, but I will highlight the crucial part in italics:
Only a few weeks later, however, my lawyers visited me at Her Majesty’s Prison Brixton to personally deliver the worst possible news: Commonwealth’s Attorney James Updike wanted to have me extradited for capital, not first degree murder, and he planned to seek the death penalty at my trial. Since he had never lost a capital case my execution was a virtual certainty, my attorneys explained. Of course they would file appeals in all the courts, but those efforts were doomed to fail because the English government supported prosecutor Updike’s extradition request over the German government’s. To please the American authorities England was even willing to breach the requirements of its own extradition treaty: before a prisoner was returned from British territory to a country where he faced capital punishment, the English government was supposed to obtain a binding assurance that the death
penalty, if imposed, would not actually be carried out. In my case, however, England had declared itself satisfied if the judge at my trial in Virginia merely read a letter to the jury, explaining that the English government objected to execution.
Like doctors informing a patient that he has a terminal disease my lawyers bent over the table in the prison visiting room and looked deeply into my eyes. A moment of silence passed before they told me, I should not get my hopes up. What happened to my partial diplomatic immunity, I asked them. Through my father I had always had a German diplomatic passport, and while I had lived in the United States that passport had carried a large American diplomatic visa. How could all that suddenly be irrelevant? Surely this must be a mistake.
The mistake was mine, according to the attorneys. Because my father was Vice-Consul at the German Consulate General in Detroit, the American government classified him as a consular staff diplomat, as opposed to a diplomatic staff diplomat at the German Embassy in Washington D.C. This distinction was completely arbitrary, of course, since all country’s foreign services transferred their officers back and forth between consular and diplomatic assignments; my father, too, had performed both types of duty during his career. But unlike most countries the United States extended diplomatic immunity only to the family members of diplomatic staff diplomats, leaving the families of consular staff officers uncovered. So I would be executed because of a technicality in diplomatic procedure, the lawyers told me.
Sitting in the cramped, shabby legal visit cubicle I tried hard to contain my
extradition request over the German government’s . To please rising panic and sense of outrage. Going to the electric chair had not been part of my promise to save Elizabeth! Five years in a German youth prison, that was to have been the extent of my “sacrifice,” as she had once called it in a letter to me. Somebody cheated somewhere but now I had to be careful, lest my mouth get me into even more trouble.
Hesitantly I asked the attorneys what my legal position would be if I were not guilty? My lawyers’ eyes immediately widened in horror: Heaven forbid the possibility of my innocence! To have any hope at all of gaining a binding assurance that the death penalty would not be imposed, it was essential to maintain my complete guilt throughout the extradition proceedings. If we conceded that I might have a defence against the murder charges, the appellate judges would rule that I needed no binding assurance, because an innocent man would presumably not be convicted and executed anyway. The legal term for this was “the necessity of proving the ‘seriousness of risk’ of execution,” the attorneys explained.
So if I wanted to live no one could know that I had not killed the Haysoms. Even then I could not help but smile at the poetic irony of my position: my innocence, if it became known, would kill me! Playing the role of the accomplice Lady Macbeth, as Liz and I discussed after she killed her parents, had already saved her from the electric chair. And continuing to play the part of the murderer Macbeth was the only hope I new had of saving my own life.
There’s a lot to unpack here.
First, Söring says his lawyers told him a death sentence would be a “virtual certainty” if he were extradited to Virginia. This immediately strikes a false note. This is not how lawyers speak to their clients, or to pretty much anyone. You don’t tell your client he or she is doomed, even if you privately think they are. You use cautious, hedging phrases which preserve hope: “The odds are against us, but we’ll do our best.” “We’ll hope for the best, but prepare for the worst.” “This will be a big challenge, but all hope isn’t lost.” You might use stronger language if you want to convince your client to take a deal, but that’s not what’s happening here.
Second, all this nonsense about different kinds of diplomats is red-herring nonsense. Diplomatic immunity is a very limited form of immunity which protects certain kinds of diplomats from prosecution for certain kinds of crimes related to their work as diplomats. It is not a license to commit murder. And it’s especially not a license for a diplomat’s family members to commit murder. No sane country would agree to such a scheme, which is why it doesn’t exist. Further, if Söring thought he would enjoy diplomatic immunity from prosecution, then why does he also claim he wanted to be prosecuted in Germany, where he’d receive a short youth sentence? As is so often the case, Söring can’t pick a lane, so he straddles the middle: I though I could get away with the murders scot-free, and also wanted to be convicted of the murders — but only in Germany.
Further, Söring’s claim he was confused on this point is nonsense. As Terry Wright points out in his report (pp. 141-145 and elsewhere), Söring could not possibly have been confused about diplomatic immunity as of the time he confessed. He had access to one of the greatest law libraries in the world at UVA, had plenty of time to research during his international flight from the law, and had any number of opportunities to confer with his English solicitor, including twice on the very day he started confessing. And that solicitor, Keith Barker, didn’t tell him: “Go ahead and confess to murder, it’ll be no problem, you’ve got immunity!” No, what the solicitor told him, as any good criminal-defense lawyer would do, is say nothing without me being there. Not a word. We know this because the lawyer signed an affidavit saying exactly this. Söring ignored this advice, a decision which he no doubt bitterly regrets to this day.
But the biggest howler comes in the paragraph in italics. Söring, with his usual pathos, claims his lawyers’ eyes widened in horror when he even mentioned his possible innocence. The chances this actually happened are about the same as the chances OJ will find the real killer.
A bit of background. The European Court of Human Rights summarized British extradition law in its decision in Söring’s case:
“Section 10 of the Extradition Act 1870 provides that if “such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England … the … magistrate shall commit him to prison but otherwise he shall order him to be discharged”. A magistrate must be satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima facie case must be made out against him.”
The law’s fairly simple: If you want the English authorities to arrest American Tom in England for a crime Tom committed in the US, you have to prove to the English authorities that the evidence against American Tom would be enough to warrant holding him in prison in England, if he’d committed the crime there. In both countries (and in most countries in the world), the standard is more or less probable cause: You have to show it’s more likely than not a crime was committed, and that the defendant did it. That standard was met in Söring’s case, since the authorities had both Söring and Haysom’s confessions, among other things.
The reason Söring’s lawyers’s eyes didn’t “widen in horror” is that Söring’s own attitude toward his guilt or innocence was irrelevant to their strategy. First, as any defense lawyer can tell you, clients often fraudulently claim their innocence. Your duty as a criminal defense lawyer is to investigate your client’s innocence claims enough to see if there’s anything there. When there isn’t — as is usually the case — you simply proceed with the case as usual. You sculpt your own strategy based on the evidence and the law, and then explain it to your client. If your client wants to push bogus innocence claims, you simply explain why they won’t work. If your client wants to tell the press he’s innocent, you warn them not to discuss specific details of their case, but you can’t stop them claiming their innocence.
The other reason this didn’t happen is it makes no logical sense. Let’s say Söring told his lawyers he was really innocent. They would ask him why he thought so, and he would tell them. At this point, if the lawyers were convinced, they would obviously welcome the innocence story. After all, if they manage to convince the judges that Söring is innocent, he walks free. That’s the best outcome of all!
But even if the lawyers weren’t able to find conclusive evidence to free Söring, they could always claim he was innocent during the extradition proceedings. They could have said: “Your Honor, we acknowledge there is enough evidence for extradition, but we would also like to point out our client maintains his innocence.” What would the judge say in response? “Duly noted, counselor. Please proceed with your argument.” The judge doesn’t care, because what Söring says about his case is irrelevant to the legal proceedings.
Söring’s only path to an innocence claim requires retracting his confessions, but retracting his confessions could not possibly have affected his extradition lawsuit. “Retracting” a confession isn’t a legal term. If a sane, sober, intelligent adult confesses to a crime on tape after signing binding legal waiver forms in a formal setting surrounded by cops, detectives, and lawyers, that confession goes in the record. If you later regret confessing (without identifying any police misconduct) and say it was all fake, nobody cares. Probably 50% of people who confess to crimes “take it back” once they realize how much trouble they got themselves in. If all those people were walking free, the crime rate would be double what it is now.
So even if his lawyers told various UK and European courts he’d “retracted” his confession, they would have simply turned to counsel for the USA/UK, who would have said: “Obviously, your Honors are aware that defendants often retract confessions. This has no relevance, unless the defendant is able to demonstrate that the confession was illegally obtained. Here, there is overwhelming evidence the confessions were obtained in a scrupulously legal manner. Indeed, one of them was conducted in the presence of Söring’s defense counsel, in his own native language, after he and defense counsel had conferred privately for 20 minutes. During these extradition hearings, it is not Your Honors’ job to rule on the legality of the confessions. You are only required to determine whether there is initial, prima facie evidence the confessions are admissible. That showing has been met.”
That argument would have won the day. Söring would have been extradited anyway, regardless of his innocence claim. And Söring’s lawyers surely knew this, since they were top legal talent. Their eyes, therefore, surely didn’t widen in horror, although they might have widened in bemusement.