Why is the Texas criminal justice system controversial
German journalists seem obsessed with American criminal cases. Hardly a week goes by without a report from an American courtroom or prison appearing somewhere.
But hardly any case has exerted such a lasting fascination as that of Jens Soering. In 1985 he killed Derek and Nancy Haysom, the parents of his girlfriend at the time. Soering confessed and was sentenced to life imprisonment in Virginia in 1990.
In November 2019, Soering was surprisingly released on parole. He was not pardoned: The Virginia Board of Parole explicitly emphasized Soering's guilt. Despite this, Soering was celebrated by many as a victim of justice when he arrived in Germany on December 17th. He failed in all instances, and his innocence legend is based primarily on misrepresentations and exaggerations.
Many German journalists who reported on the Soering case have thrown any approach of neutrality overboard. A prime example of this is the documentary film “The Promise - First Love Lifelong” by Markus Vetter and Karin Steinberger, which was released in 2016.
Andrew Mutton is a writer, translator, and lawyer (admitted in Texas, dormant). From 1996 to 2005 he represented death row inmates in the USA. He now lives in Düsseldorf. Twitter: @ AndrewHammel1
In the past few weeks, Hammel has reported in detail on the Soering case at "FAZ Einspruch":
He has written a short FAQ here about his particular interest in the case.
But they are not alone in their fascination with American criminal cases, especially among suspects with German roots. In 2004, Peter F. Müller made the film "Death Penalty for a Lie" about Dieter Riechmann, who in 1987 killed his girlfriend in Miami Beach. His death sentence was commuted to life imprisonment in 2010.
Both films are examples of a whole genre of German reporting: the critical appraisal of American court judgments. The films show the typical weaknesses of true crime stories: the pressure to squeeze everything into an “innocent / guilty” scheme and to find “dramatic moments”. As Stefan Winterbauer and Christian Meier note, this is also often found in American films and podcasts. But German media makers face an additional hurdle - they report on a foreign legal system. And they are not always able to recognize their own knowledge gaps. Therefore, they often have a selective, misleading view of the dynamics, the social environment and the structure of the American criminal justice system.
In my opinion, it is high time for a correction. Here are the most common mistakes and misconceptions from my point of view in the form of a list of commandments.
1. You should never forget that a trial has taken place
The German journalist flew to Texas or Florida or Virginia, rented a car, drove to the prison and through the security gate and is now sitting across from an inmate who explains to him why he is innocent.
But why is this person sitting on the other side of the pane of glass?
In true crime documentaries, the imposition of a prison sentence or the death penalty is the first chapter of an exciting judicial crime thriller. The main process is often far in the past and is shown at most in flashbacks - and then only to document alleged errors and inadequacies. The viewer only gets to see excerpts from hours of testimony lasting several seconds. They do not convey any idea of the entire body of evidence that led the jury to find the defendant guilty, or of the lengthy investigation that unearthed the necessary evidence.
In the real world, however, the court ruling is that latest Chapter of a very long and often very expensive story. In the beginning, the police investigate. If there is enough evidence, the prosecutor will bring charges. To do this, he must have an independent special body (grand jury) convince an initial suspicion (probable cause) exists against the accused. At this point at the latest, suspects who cannot afford a lawyer will be provided with a public defender.
Now there has to be a jury (petit jury) be chosen for the main proceedings. Although over 90 percent of American criminal cases are settled with one deal, we can safely disregard these cases; Media makers are almost never interested in such cases.
The selection of the jury is also a lengthy process. The judge summons a group of around 50 randomly selected citizens. Serving as a juror is a duty. The members of this random community are now questioned in detail. Biased or otherwise unsuitable people will be excluded until only twelve remain.
Then the main proceedings begin. The evaluation of evidence is followed by a strict code (Rules of Evidence) regulated. At the end of the gathering of evidence, the jury receives detailed written instructions on the applicable law. All twelve members of the jury must unanimously decide that the accused is guilty. The benchmark is beyond a reasonable doubt - beyond any reasonable doubt. This standard is often paraphrased as follows for laypeople: You need to deliberate as carefully about the question of guilt as you do with the most important decisions of your life - for example, buying a property or getting married.
Every defendant also has the right to appeal. A public defender will comb through the verbatim court minutes in several volumes to find reasons for an appeal. Only if this revision is rejected is the judgment final.
So by the time the accused is convicted, dozens, if not hundreds, of people have been involved in the case. You have invested thousands and thousands of hours to meticulously work through the case. Depending on the complexity, the total costs for a process and subsequent revision can amount to several million dollars. The purpose of this complex procedure is to keep the number of wrong judgments as low as possible.
That's working. In the USA, just like in Germany, wrong judgments are very rare; in American federal courts around six percent of the appeals are successful, in Germany it is three percent of the appeals and three percent of the retrial. These quotas are positive testimony: both in Germany and in the USA, criminal proceedings are generally compliant with the law, and the right person is convicted. There will always be exceptions, but they are exceptions.
2. You should read the previous court decisions and take the judges' work seriously
In the case of an appeal, there is usually an oral hearing in which several auditors ask pointed questions to the defense lawyer or the public prosecutor. But there are other legal remedies: The convicted person may enter habeas corpus-Initiate proceedings, the counterpart to the German retrial. This time the convicted person (just like in Germany) usually has to pay a lawyer himself or write the request for readmission himself.
German media makers often dismiss these court decisions with a casual sentence ("The revisions were all unsuccessful."). It is seldom explained Why the courts have dismissed the objections.
In “The Promise”, Soering and his supporters claim that the judge was biased in his first instance trial and that the defense lawyers were incapable. These are serious allegations that need to be investigated. The critical viewer, however, asks himself: The process already took place 1990 instead of. Hasn't anyone looked into these allegations since then?
The film doesn't answer that question. But there is an answer, and it is: yes. As early as 1991, in the first of many appeal and retrial proceedings, Soering asserted the judge's alleged bias as a reason for an appeal. The Virginia Court of Appeals has analyzed the procedural record and found no evidence of it.
Soering's alleged inadequate defense of the law has also been the main subject of retrial in both the Virginia and federal courts. Each time the behavior of Soering's defense attorney was checked and found to be competent. For example, in 2000 the Federal Court of Appeals for the Fourth Circuit scrutinized Soering's defense attorney's strategy and found no errors. Even if there had been an error, the court concluded, it would not have had any impact on the outcome of the proceedings, as Soering's guilt was confirmed by “overwhelming evidence” (see Commandment 8).
Soering has received at least four revision and appointment procedures. At least 15 judges at state and federal level have examined the reasons for his appeal. Each of them, without exception, found Soering's claims unfounded - and explained exactly why.
All of this is ignored in “The Promise”. The same goes for "death penalty for a lie". The years of procedures, the debates, the decisions - everything is dismissed with a brief reference to unsuccessful revisions. One wonders why judges are appointed and paid in the first place when their work is ignored.
3. You should not believe everything a convict says
The overwhelming majority of American (and German) prison inmates have been rightly sentenced. Many of them still do not agree with it. Detainees claim their innocence for several reasons. A small minority is innocent, which of course must never be forgotten. Some are guilty but are convinced otherwise. Still others are guilty and know it, but also know that no one in the outside world cares particularly about the guilty. That's why they lie and plead their innocence.
To support their claims, they deny long-established facts, downplay their role in community crimes, build conspiracy theories, and scrutinize every piece of evidence and testimony against them.
A warning to be careful with allegations of innocence from prison may seem superfluous at first glance. However, healthy skepticism is eliminated when a German journalist flies to the USA.
There are dozens of reports in the German-language media in which legally convicted criminals are interviewed in detail and uncritically. The two documentaries mentioned also focus on long interviews with the convicted murderers. No critical questions are asked. Wrong world: When interviewing a suspected murderer, a journalist is less critical than with any local politician.
I look at these interviews and think: “With four to five pointed questions I could get these people into great need of explanation.” Actually, anyone could - the stories of the convicts are often obviously contradictory. But these contradictions are not dealt with.
The reason is obvious: critical questions would damage the credibility of the convict, who is practically the star of the show. The David versus Goliath scheme (innocent underdog versus the almighty state) would become blurred. In the end, a critical perspective would help to establish the truth, but would not inspire an audience of millions.
4. Do not believe everything a defense lawyer says
I was once a public defender in the United States. Defending penniless people against the state is a beautiful and honorable job. At that time I also gave interviews to journalists. I never knowingly lied because that would have been a serious violation of my professional duties. But I've never told the full truth - mostly because that also would violate my professional duties.
American lawsuits are not cooperative, they are adversarial (adversarial). The prosecutor's aim is to prove the guilt of the accused. The defense attorney's goal is to obtain an acquittal. Both sides may use any tried and true means.
Thanks to this emphatically opposing structure, the opponents (public prosecutor and defense attorney) often represent two opposing versions of the crime and attack the other version head-on. At the end of the battle, so the logic goes, the truth will stand there, like a lonely survivor on a still-smoking battlefield. The “crucible of meaningful adversarial testing” is what an American fundamental judgment says.
This has several side effects. The most important for our purposes: Becoming an American criminal lawyer always reflect only one side of the story. Even if he knows that his client is guilty, he will - may he - never reveal this without the client's consent. The defense attorney must not spread lies, but he must do everything possible to downplay incriminating facts and statements and to draw attention to weaknesses in the evidence. A criminal defense attorney's testimony is relevant and interesting, but only as long as you know that it is only one side of the story. The same applies to the prosecutor - but this reference is superfluous; German journalists always show a healthy journalistic skepticism when talking to American prosecutors.
5. You should report honestly and transparently about the motives of those affected and the general conditions of your report
If there is media interest in a case, there is always a very sensitive question for the defense lawyer: Should the accused speak to the press?
Mostly clients want to tell their point of view and counter the “lies” of the public prosecutor's office. But an interview with a press representative can - depending on the client and the evidence - easily turn into a disaster. Perhaps the detainee is telling a story that does not match what he said at the main trial. Or he gets angry with critical questions and threatens the journalist. Or he expresses racist prejudice or hair-raising conspiracy theories.
In a case I know of, a defendant once said with his characteristic juicy choice of words: “The prosecutor is a fucking liar. She says I shot the victims with a 9mm pistol. Bullshit! I shot the motherfuckers with a 32-caliber revolver! ”Every criminal defense attorney in the USA can tell a song about such derailments.
For fear of this, many lawyers urgently advise their clients not to interview journalists. But if the client absolutely wants to talk to the press, many lawyers compromise: The reporter is allowed to talk to the client, but not ask questions about the crime or the process, for example. Is it justifiable with journalistic ethics to conduct interviews under such conditions?
Probably yes. But in my opinion, one thing is essential: the audience must always be made aware of the conditions or requirements under which the interview took place. This is common in American documentaries: “We are allowed to talk to Mr X, but his lawyer told us not to ask any questions about the night of the crime.” Sometimes, on the other hand, the note is that no questions are taboo (off-limits) were.
I have never heard such a reference in a German documentary about American criminal cases. I think it is likely that the interviews with Jens Soering and Dieter Riechmann were conducted under such conditions. If that's true, the audience should have been informed.
The same transparency requirement also applies to partisan experts and appraisers. In the credits of “The Promise” it says: “In August 2016 the Forensic Medicine Institute of Virginia confirmed that the traces of blood at the crime scene, blood group O, did not come from Jens Soering.” That is not true. This conclusion comes from Soering's lawyers and two appointed, partisan experts. Independent experts, on the other hand, have all come to the conclusion that the DNA analysis and blood group typing do not rule out Soering's presence at the crime scene.
In “The Death Penalty For A Lie” we hear from forensic scientists and ballistics experts. But it is never made clear who paid these people. The filmmakers? Riechmann's lawyers? Or did the appraisers work pro bono publico?
In Germany, experts are usually appointed by the court, but in the USA they are almost exclusively appointed by the parties. Once again the opposing quality of American law comes to the fore. Do we have to assume that these experts are lying for money? No. The answer to forensic questions - when did the victim die? What does the blood trail pattern mean? What kind of knife was used? - is often controversial; two experts can come to conflicting conclusions in a perfectly honest way.The conclusions of a paid, partisan appraiser are never the last word. It is legitimate to quote from these reports and to talk to them - but the arguments must always be marked as partial.
6. Understand the role of those involved
Most German journalists only have a rough idea of what an American jury can and cannot do. The reason for this is simple: There are no juries in Germany, only jury courts. In Germany the judge is the focus of the process; he or she literally leads the process. In the USA, on the other hand, the role of a judge is similar to that of a referee: He must punish rule violations and resolve conflicts, but must not interrupt the "flow of the game".
In every process, the jury - and only the jury - decides on the all-important question of guilt. She receives a detailed explanation of the relevant law and applies it to the facts. The judge may only change the jury's decision in exceptional cases. Many German observers find the institution of the jury strange, but it is firmly anchored in the American judicial consciousness.
Other important differences concern the role of the accused. As in Germany, he has the right to refuse to testify in the USA. But if he does testify, he will be treated like an ordinary witness in an American court. He must take an oath and may be cross-examined.
If the accused is silent, the jury may not find out about any previous offenses. But if he testifies, the jury can know everything that concerns his credibility - for example, any convictions for fraud, perjury, theft.
The defense attorney can only warn the client of the disadvantages of a statement: The accused has an absolute, inalienable right to testify before the court. That's why I had to smile when the voice-over in “Death Penalty for a Lie” said that the defense attorney had made a “decisive mistake” when he “called” Dieter Riechmann to the stand. Since Riechmann had ample criminal record - including a previous homicide - I'm pretty sure his lawyer warned him not to testify. But Riechmann made the fateful decision to testify anyway. The judges learned of his seedy past life as a pimp, impostor, and booze, and his credibility was badly damaged. However, it was only Dieter Riechmann who was to blame for this catastrophe, not his lawyer.
7. Use common sense
In a report in the “Bild” newspaper about Soering's release, the sentence: “Even the bloody sock print [at the crime scene] could not have come from Soering - it was too small.” In fact, Jens Soering left a bloody sock print at the crime scene. A photo of it was evidence in his trial, and the jury and everyone else were allowed to compare the sock print with a print of Soering's foot.
If you read the "picture" sentence, you wonder why no one noticed the difference between Soering's footprint and the footprint at the crime scene. Why did the judge allow two completely different footprints to be presented as "comparable"? Did Soering's defense attorney raise no objection? Were everyone involved in the process blind or bought?
An English saying goes: "If it's too good to be true, it probably is." If it seems almost unbelievable that such a blatant mistake went unnoticed, it should indeed be not to believe. Soering's footprint was of course comparable to the sock print at the crime scene. Anyone can confirm this - the pictures that the jury saw are all over the internet.
Common sense also helps with the documentary about Dieter Riechmann. His attorneys have found numerous people from the streets of Miami Beach who tell a different version of the murder than the prosecutor's office. This is no surprise: Riechmann's supporters once offered $ 15,000 for advice. They put up posters in the Miami Beach drug district. It should come as no surprise that even decades after the trial, people came forward to contribute new information to the murder.
But these extremely questionable witnesses are not confronted with any critical question. Common sense does not forbid listening to the stories of drug dealers, drug addicts, robbers, and prostitutes; but he forbids these stories to be reproduced without comment. Incidentally, common sense also requires people who have changed their version of a story several times - like Jens Soering and Dieter Riechmann according to their own information have done - to distrust.
8. You should realize that not all process errors are serious
Why are there courts of appeal and appeal courts? To ensure that every criminal trial is flawless? No. Your job is to make sure that the accused get one sufficient had legal process. A judgment will only be overturned under two circumstances: 1. There is a serious mistake that invalidates the whole process per se (for example, a judge who wasn't one); or 2. There is a bug related to the wrong result could lead.
In both the USA and Germany, errors in these two categories will inevitably result in the judgment being overturned. But there is a third category of errors that is far more common: errors that affect the outcome of the process Not influence, harmless errors.
Every constitutional state has similar rules on procedural errors because resources are scarce and criminal proceedings are expensive and time-consuming. The vast majority of errors that have been claimed by defendants belong to this third category, which is why the overwhelming majority of revisions fail. They fail not because the process was error-free, but because the process did not produce the wrong result.
The overwhelming majority of German journalists covering American criminal trials do not seem to have really understood these principles. Again and again they complain about alleged "errors" in American criminal trials, without mentioning that after a detailed examination (see Commandment 2 above) a court of appeal found that the error had no influence on the outcome of the process.
9. You should not ignore the demographic and socio-cultural environment
I once read a report on WDR by a journalist who was visiting a pen pal on death row in Florida. It was noted that the pen pal was one of the "few" death sentences in Florida with "white skin". Surely thousands of Germans read this report and thought: “Yes, that's how it is with the Americans. Only poor black people end up in prison. "
That's not true. In fact, there are currently 203 white and 124 black people on death row in Florida. “Granted,” says the German critic of the American judiciary, “but blacks make up only 13 percent of the population, but 37 percent of the people on death row in Florida. That is a clear case of discrimination! "
Not necessarily. The reason for this is as unfortunate as it is indisputable: some violent crimes are much more common among black Americans than among other groups. In the United States, statistics on the origin of defendants and convicts are meticulously collected to uncover evidence of discrimination. According to this, black people commit around half of all homicides in the USA (over 90 percent of the victims are also black). The frequency of homicides by blacks is eight times higher than that of whites, serious robberies are around ten to twelve times as common, and sexual offenses are around six to eight times. An investigation by the “New York Times” showed that around 75 percent of all mass shootings (shootings with at least four victims) were committed by black people. Occasions were usually arguments among party guests, insults, and / or gang crime.
There are many other factors that put these discrepancies into perspective - but the differences are so great that no one doubts the existence of this phenomenon. It is by no means that black Americans are generally more criminal than others - the overwhelming majority have no criminal record. It does mean, however, that there is a specific criminal Subculture in share the black community that leads to these disproportionate crime rates.
Incidentally, the same applies in Germany, where foreigners and people with a migration background are clearly overrepresented in prisons. The reasons are probably similar in both cases: a mixture of discrimination, poor educational opportunities, and a macho subculture that glorifies violence. In the USA, of course, there is also the ubiquity of firearms.
Caution is also advised with the issue of the police officers shooting at black people. Some murders like Laquan McDonald or Walter Scott have rightly caused a stir. The "Zeit" reported in 2016 under the title "Police violence against black people has reached a peak":
A total of 1,134 people were shot dead by police in the United States last year. Of these, 577 were white, 300 were black, and 193 were Hispanic. Black and Hispanic people combined make up less than 38 percent of the total US population.
But as we've seen, there is a marked difference in the crime rate between black and white Americans. This is why young black men are much more likely to be involved in dangerous confrontations with police officers. If you take that into account, the differences between whites and blacks who are shot by police officers are dramatically put into perspective, as scientific studies by Roland Fryer and other researchers have shown. An overview of the literature came to the following conclusion:
Indeed, taking into account differences in arrests and violent crime, black citizens were less likely to be shot and killed in clashes with police - a pattern that contradicts a number of media interpretations.
It is undeniable that there is discrimination in the American criminal justice system. According to an ambitious study, black-skinned defendants receive 19.1 percent longer prison sentences in federal courts than comparable white defendants. This is a serious problem that needs to be addressed - but not the seemingly blatant disparity that superficial comparisons suggest.
10. You should always ask yourself: Would I report on a German criminal case like this?
Would I relate the allegations of a convicted murderer without scrutiny?
Would I not mention the detailed decisions of the Higher Regional Court or the Federal Court of Justice or dismiss them with a few words?
Would I broadcast long excerpts from interviews with criminal defense lawyers without also giving due consideration to statements from the public prosecutor's office?
Would I draw conclusions about the entire German criminal justice system on the basis of a single case?
Would I brand the entire German criminal justice system as racist because foreigners and people with a migration background make up the majority of all German prison inmates?
The above questions are based on a conclusive assumption: The American and German criminal justice systems are on the whole similarly reliable, and therefore one should not treat both systems uncritically, but with a certain degree of respect.
As a rule, educated Germans are proud of the Basic Law and the German judiciary. This pride is also justified. In most cases, German courts come to fair judgments. But the same is true for the US. The penalties are much harsher in the USA than in Germany (this is another explanation for the aversion of educated Germans to the American criminal justice system), but they mostly hit the right person.
Many media consumers in this country will certainly quarrel with this statement: After all, German newspaper readers and television viewers only know the criminal justice system in the USA from alleged and real misjudgments and legal errors. It is as if the only sources about the German justice system are the Mollath, Wörz and Rupp cases.
The result is a distorted perception, which unfortunately is also sometimes shared by German politicians. Think of Hertha Däubler-Gmelins famous statement that the American judiciary is “lousy”. This perception apparently also prevails in the executive floors of some German media houses. This is the only way to explain how Claas Relotius got away with his absurd stories about the USA (including one about an American who travels from state to state to attend executions).
America is not a developing country with a corrupt, immature, and drastically underfunded criminal justice system whose judgments cannot be relied upon. There is a need for reform and much room for improvement in the US, and millions of Americans from both political parties are uncovering weaknesses in the criminal justice system and implementing fundamental reforms. German journalists could contribute to similar tendencies in Germany - if only they showed as much enthusiasm for reform at home as they are in the USA.
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