The cashier said she hadn’t felt at all afraid. She had felt sorry for the robber more than anything, as he’d looked so sad. “Like a dog,” she said. The prosecutor asked if she now experienced anxiety at work, if she’d had to report in sick or had to undergo any course of therapy for the victims of crimes. She said no to all of it. The robber had just been a poor soul, and more polite than most of their customers. The prosecutor was obliged to ask these questions: If the witness really had been afraid, it would have been grounds for a higher sentence.
The toy pistol was introduced into evidence. It was a cheap model from China, weighing less than an ounce and looking utterly harmless. When one of the jurors picked it up, it slipped, fell to the floor, and a piece of plastic broke off. It was impossible to take such a weapon seriously.
After the crime itself has been laid out during a trial, it is customary for the accused to be questioned about his “personal circumstances.”
Michalka was almost entirely withdrawn the whole time; it was hard to move him, at least initially, to tell the story of his life. It was only slowly, piece by piece, that he could try to recount it. He barely succeeded; words failed him. Like many people, he found it hard to express his feelings. It seemed simpler to let the expert psychiatrist present the life of the accused.
The psychiatrist was well prepared and he laid out Michalka’s life in every detail. The judge knew all this already from the written report, but it was new information for the jurors. They were paying attention. The psychiatrist had questioned Michalka over an unusually long series of sessions. When he finished, the presiding judge turned to Michalka to ask if the expert had rendered it all accurately. Michalka nodded and said, “Yes, he did.”
Then the expert witness was questioned about his professional evaluation of the accused’s psychic state during the bank robbery. The psychiatrist explained that the three days Michalka had spent wandering around the city without food or drink had measurably diminished his capacity for rational behavior. Michalka had hardly known what he was doing anymore, and he had lost almost all control over his actions. The hearing of evidence was concluded.
During a recess in the trial, Michalka said none of it had any point; no matter how much trouble people were going to, he was going to be found guilty anyway.
In a trial, it is the district attorney who presents his closing argument first. Unlike in the United States or England, the prosecutor takes no position; he or she is neutral. The DA’s office is neutral; it also establishes exonerating circumstances, and thus it neither wins nor loses—the only passion in the DA’s office is for the law. The law is all it serves—that, and justice. That at least is the theory. And during preliminary proceedings, it is the rule. But circumstances often change in the heat of a trial, and objectivity begins to suffer in the process. That is only human, because a good prosecutor is always a prosecutor, and it is more than hard both to prosecute and to remain neutral. Perhaps it is a flaw woven into the very fabric of our criminal justice system; perhaps the law simply demands too much.
The DA demanded nine years for Michalka. He said he didn’t believe Michalka’s story. It was “too fantastic and probably a total invention.” Nor did he want to accept an argument of diminished capacity, because the psychiatrist’s explanations rested solely on the accused’s statements and lacked substantiation. The only fact was that Michalka had committed a bank robbery. “The minimum sentence for bank robbery in the law is five years,” he said. “It is the second time the defendant has committed this offense. The only admissible cause for leniency is that the money was secured and he made a full confession. Nine years are thus the appropriate sentence for the crime and the defendant’s guilt.”
Of course it cannot all turn on whether a defendant’s statements are believed. In court, what is at issue is proof. The accused thus has an advantage: He doesn’t have to prove anything, neither his innocence nor the accuracy of his statement. But there are different rules for the district attorney’s office and the court: They may not state anything that they cannot prove. This sounds much simpler than it is. No one is so objective as to be able always to distinguish conjecture from proof. We believe we know something for sure, we get carried away, and it’s often far from simple to find our way back.
Final arguments are no longer decisive in trials these days. The DA’s office and the defense are not speaking to sworn witnesses, but to judges and juries. Every false tone, every bit of hair tearing, and every pretentious turn of phrase is unendurable. The great closing arguments belong to earlier centuries. The Germans no longer tolerate pathos; there’s been too much of that already.
But sometimes one can allow oneself a little dramatic production, an unanticipated final request. Michalka himself knew nothing about it.
An acquaintance of mine worked in the diplomatic service. She was stationed in Kenya, and she helped me. By many roundabout routes, she had located Michalka’s friend, the doctor from the local town. The doctor spoke perfect English. I had talked to him on the phone and begged him to testify as a witness. When I told him I would cover the cost of the airfare, he laughed at me and said he was so happy his friend was still alive that he would go anywhere to see him. And now he was waiting outside the door to the courtroom.
From one moment to the next, Michalka woke up. He leapt to his feet as the doctor entered the court, tears poured down his face, and he tried to get to him. The guards held him captive, but the presiding judge waved them away and allowed it. The two men embraced right in the middle of the courtroom, Michalka lifting the small-boned man right off his feet and hugging him. The doctor had brought a video, and a guard was sent off to get a player. We saw the village, the cable railway, the trucks, all the children and grownups, who kept laughing into the camera and calling “Frroank, Frroank.” And then at last we saw Ayana and Tiru. Michalka wept and laughed and wept again, completely beside himself. He sat next to his friend and almost squashed the doctor’s fingers in his own enormous hands. The presiding judge and one of the witnesses had tears in their eyes. It was nothing like a normal scene in a courtroom.
Our system of criminal law is based on the requirement of personal guilt. We punish according to someone’s guilt; we ask to what extent we can make him responsible for his actions. It’s complicated. In the Middle Ages, things were simpler: Punishment was only commensurate with the act itself. A thief had his hand chopped off. It was all the same, no matter whether he’d stolen out of greed or because he would otherwise have starved. Punishment in those days was a form of mathematics; every act carried a precisely established weight of retribution. Our contemporary criminal law is more intelligent, it is more just as regards life, but it is also more difficult. A bank robbery really isn’t always just a bank robbery. What could we accuse Michalka of? Had he not done what all of us are capable of? Would we have behaved differently if we had found ourselves in his place? Is it not everyone’s deepest desire to return to those they love?
Michalka was sentenced to two years. A week after the trial, I ran into the presiding judge in one of the long halls in the court building in Moabit. She said the jurors were getting together to buy him an air ticket.
After Michalka had served half his sentence, he was released on probation. The presiding judge at the parole hearing, a wise old man, had them run through the whole story all over again, and just muttered, “Wild.” Then he ordered Michalka set free.
Michalka is back living in Ethiopia today and has acquired full citizenship. Tiru now has a brother and a sister. Sometimes Michalka calls me. He still tells me that he’s happy.
Ceci n’est pas une pomme.
AFTERWORD
Many things in the German justice system are different from the way they are in America. We don’t have juries anymore. Back in the 1920s they became too expensive for the thrifty Prussians. For larger trials, today’s court consists of three career judges plus two lay judges who are ordinary citizens without legal training and are appointed to serv
e for a specific term. Their opinions carry the same weight as those of the career judges.
And unlike in America, the prosecutor is not on the side of the state. Like a judge, he is obliged to be impartial; he must also ascertain if there is evidence that can be used in the defense of the accused, and he must move for acquittal if the guilt of the defendant is not proved. Only the defense attorney takes one side against the other; he may act only in the interests of his client.
Almost every criminal case in Germany is heard by a court, even those in which the accused has confessed. A person’s guilt and his or her punishment can only be established by a court; they are not the subject of bargaining by a prosecutor and a defense attorney.
There are many other differences. We all wear robes in court, black cloaks made of cloth or silk; the judges and prosecutors wear white cravats and white shirts. But finally, the differences between our two justice systems are insignificant.
A NOTE ABOUT THE AUTHOR
Ferdinand von Schirach was born in Munich in 1964. Since 1994, he has worked as a criminal-defense lawyer in Berlin. Among his clients have been the former member of the Politburo Günter Schabowski, the former East German spy Norbert Juretzko, and members of the underworld.
A NOTE ABOUT THE TRANSLATOR
Carol Brown Janeway’s translations include Bernhard Schlink’s The Reader, Jan Philipp Reemtsma’s In the Cellar, Hans-Ulrich Treichel’s Lost, Zvi Kolitz’s Yosl Rakover Talks to God, Benjamin Lebert’s Crazy, Sándor Márai’s Embers, Yasmina Reza’s Desolation, Margriet de Moor’s The Storm, and Daniel Kehlmann’s Fame and Measuring the World.
Table of Contents
Cover
Title Page
Copyright
Epigraph
Preface: Guilt
Fähner
Tanata’s Tea Bowl
The Cello
The Hedgehog
Bliss
Summertime
Self-Defense
Green
The Thorn
Love
The Ethiopian
Afterword
A Note About the Author
A Note About the Translator
Crime Page 15