On September 6th, Jens Söring appeared for a 90-minute conversation (g) with Richard David Precht as part of the phil.cologne pop-literature festival. I bought a streaming ticket and recorded it and watched it to see whether Söring would argue his innocence. He did.
This isn’t a very important media appearance, since the number of tickets was limited and it wasn’t public. Nevertheless, there were a few things worth noting.
First of all, Precht — a sort of pop philosopher who’s the same age as Söring — told the audience he had read Söring’s new book and decided to invite Söring at the last moment. The invitation came so late Söring’s interview wasn’t even in the official printed program. Precht made the fatal mistake so many people do: He read what Söring said about his case and obediently swallowed every word.
Like so many other German journos before him, Precht simply let Söring ramble on, issuing misleading nonsense, lies, and false accusations. At one point, Söring denounces American society as “racist”, at which point Precht nods in sage understanding, since every upper-middle class German knows, as part of the catechism of acceptable beliefs, that America is an irredeemably racist nation. Söring also accuses the prosecutor at his trial of suppressing favorable evidence “three times”, without providing any specifics. I’ll be notifying Judge Updike of this unfounded attack on his professional reputation.
Söring does make what might be an important admission: He says he can’t “positively” prove his innocence. I.e., he has no new evidence that might exonerate him. He didn’t mention that he tried to find such evidence for three decades and failed. All he can do now is rehash ancient, long-resolved complaints about his trial. Söring also makes a bunch of confused remarks about the ’21-day rule’, which I explain in this footnote1, insinuating that it somehow affected his case. This is a new twist: He never mentions anything about this rule in ‘Mortal Thoughts’, his 1995 biography.
Just as squids shoot ink to confuse and distract predators, Söring spews bits of half-digested legal knowledge and misleading claims to try to generate an aura of unfairness, without ever furnishing proof. The main way Söring generates these ink-squirts is through this syllogism:
- There is Problem X with the American criminal justice system.
- I was tried in America.
- Therefore my trial was affected by Problem X.
The 21-day rule has screwed over some people, ergo it screwed me over (it didn’t). Some people give false confessions, ergo I did (he didn’t). The fact that neither Precht nor any of Söring’s supporters seem to realizes there’s a crucial missing link here is a sign either of stupidity or, more charitably, confirmation bias.
In any case, it was another case of Söring painting a grotesquely false portrait of the American criminal justice system, and of prejudiced and gullible Germans swallowing every word. After all we know about the case now, there is no excuse for this to be still going on. But as long as it does, I’ll be there to clean up the ink. It’s a dirty job, but somebody’s gotta do it.
First, let’s clear things up. At the time of Söring’s trial, and for a long while thereafter, Virginia indeed did have a ’21-day rule’, which provided that a defendant must introduce new evidence of innocence within 21 days of his conviction for a judge to be able to consider it. Söring states that the rule prohibits consideration of any new evidence of innocence forever if the defendant doesn’t introduce it within 21 days of being convicted.
This would be pretty bad if it were accurate, but it isn’t. In Virginia, you can bring up new evidence that your trial was unfair and a court will consider it, as long as you make a claim your first trial was unfair because of a constitutional error. That is, if you claim your original trial lawyer was incompetent and overlooked a key piece of evidence, you can introduce that evidence to show your trial lawyer was incompetent. If you claim the prosecutor hid a favorable piece of evidence, you can introduce that piece of evidence to show the prosecutor’s actions harmed you. And in fact, Virginia’s appeals courts hear claims like this all the time.
The 21-day rule, which doesn’t apply to DNA, applies to evidence which is “free-standing”, that is, not linked to any claim of legal error.
The case linked to above is a classic example: A man is convicted of sexual assault based on a victim’s testimony and nothing else, but then the alleged victim recants years later — long after the 21 days — and says it wasn’t him. The problem for the defendant is that nobody violated the constitution. The prosecution believed the victim was telling the truth (or at least nobody can prove otherwise), so they didn’t violate Napue v. Illinois, which prohibits prosecutors from knowingly using perjured testimony against a defendant, the crucial word being knowingly. When the defendant’s lawyer contacted the witness before trial, she said the defendant had raped her, so the defense lawyer did his job. So the new evidence cannot be heard by a court, because the false testimony was not knowingly created by the government to violate the defendant’s rights. It was simply a private individual’s choice to falsely testify.
Is the 21-day rule a good idea? I would say definitely no; defendants should be able to bring new evidence in indefinitely, so long as it’s reliable. And the rule has since been amended to exclude criminal cases. But here’s the rub:
The 21-day rule had nothing to do with Söring’s case.
Söring makes a few confused remarks about some imprint of Elizabeth’s feet which was supposedly not turned over to the defense, but doesn’t make clear what he’s talking about. By the way, the prosecution entered Elizabeth’s footprint into evidence at Söring’s trial — since they knew the defense were likely to do so anyway. Elizabeth’s footprint was compared and contrasted with the bloody sockprint at the crime scene by both the prosecution and the defense. During the prosecution’s closing argument, the prosecutor argued that Söring left the bloody sockprint at the crime scene. The defense then argued that the bloody sockprint could have been, and in fact was, left by Elizabeth.
You have got a heel print on the kitchen floor, and if you look at that heelprint on the kitchen floor that’s made in the sock print, and it’s going in the direction of the side door. The width of that heel print is about four and a half centimeters, about a little more than an inch and a half, it’s there on the floor and if you take that and compare it to the width of Elizabeth Haysom’s heel on the print that the Commonwealth [of Virginia] put into evidence, it’s almost an exact match, ladies and gentlemen. (Trial transcript, 21 June 1990, pp. 143-144, emphasis added).
So if Söring claims the 21-day rule prohibited the jury from being able to compare Elizabeth’s footprint with the sockprint, he’s lying. As usual.