The defense counsel in the reopening of a case [*]

by Gerhard Strate, Attorney-at-Law, Hamburg

A defense counsel who is offered a brief to reopen a case, sees himself confronted in practice with a variety of problems. When dealing with the client, he needs a great deal of knowledge of human nature, when dealing with himself equanimity and when dealing with the judicial authorities perseverance. If he has once taken the decision (which he should make as difficult as possible for himself) then an absolute will to succeed is required to carry it through. Impetuosity is less in demand here, a faculty of judgement and pleasure in detail all the more so.

a) On dealing with the client

Anyone who has tried his hand at some time or other at reopening a case will very quickly learn that there are very many people in our prisons who carry the conviction within them subjectively that they have been convicted wrongfully or even though they are innocent. The letters received as soon as even just one has been answered positively multiply within the shortest time like a geometrical progression. It is a question of one's own working capacity as to how many of these brief inquiries are capable and worth being examined with regard to their substance. The attorney - particularly the young one - should beware of overhastily promising an examination of the brief being offered. Because the problem of almost every reopening is its financing. As a rule, a person convicted and finally sentenced has lost everything he had, and left his last liquid funds with the lawyers who were unable to prevent his conviction and finally also the legal validity of the judgement. The financial fiasco of most clients means ultimately that the reopening is a pro bono brief for the attorney as a rule.[1] Such a retainer can only be taken on if other clients, in effect, pay towards it. Therefore, for that reason alone, a reopening brief is always inevitably something exceptional. Any lawyer working conscientiously can therefore never fulfil a large number of promises to make a preparatory examination. On the other hand, the people with whom he corresponds or possibly even talks see in him their last ray of hope, the only one who is capable of opening locked doors and rescuing their blackened reputation. A letter promising to help may well be well-meant, but is sometimes, however, devastating for the recipient if the promise of help cannot be met. It is worse to first arouse hope only then to disappoint it then to reject it right from the outset.

Every lawyer daring to tackle a reopening should therefore First examine whether his financial and scheduling scope is sufficient in order to be able to prosecute such a brief alongside current business. If he believes he can answer this with yes, moderation is called for: It is better to conduct one brief fully than ten briefs half-heartedly. How to make one's choice? Firstly, every defense counsel must be clearly aware that though our constitutional state has many faults, it does, however, find the right person in effect in the overwhelming majority of cases, even if the reasons given for the judgements are at times fragmentary, sometimes even slipshod, and the amount of the sentence is occasionally excessive. Every other assessment would be fatal: a criminal justice system which sends fifty percent innocent people into prisons is only to be found under the conditions of state terrorism. Reopening of cases has its field solely in the minimum percentage range in which stupidity, prejudice and arrogance intermingle fatally. It may still be large enough; nevertheless the defense counsel should reserve a considerable portion of skepticism when reading the requests to take up a brief. In the course of time, each one develops his own approach: There are letters in which the loving arrangement of handwritten lines for over twenty pages (often without any margin) conveys the certain impression that forty further pages will follow them as soon as the lawyer in his response reveals even the slightest indication of interest. There are pompous offers in which the advocate's passion for fame is flatteringly appealed to: one had already heard a great deal about him and he was the only one who could manage it. The question of fees is studiously disregarded or veiled with the reference to excellent earnings to be had from exclusive contracts in the media sector which are undoubtedly to be quickly made. Such letters should, it is true, be read, but only rarely be taken as the cause for further consideration. Innocence - and that is all it is about - states its case "innocently" as a rule: factually, sometimes coupled with bitterness, but always clearly.

Innocence? In the practice of a normal criminal case, the criminal defense lawyer has missed his vocation and mistaken his role for that of the judge if he is concerned about more than repelling the state claim to punish. Its repulsion is morally and professionally justified already if the evidence does not support the imputation of wrong. In the practice of reopening a case, the roles are reversed (also that of the justice system - see more on this below): A defense counsel who, after a thorough study of the files and conscientious questioning of the client is not convinced of the latter's innocence, at any rate borne by a lasting "suspicion of innocence" should desist from any further activity.

There are simple and therefore good reasons for this. A petition for reopening always requires a great deal of research. Not every trail that is followed leads to the goal: witnesses have died or refuse, traces have been blurred or can no longer be examined, files have been destroyed or have disappeared, amateurishly proposed hypotheses come to nothing after expert consultation. A defense counsel can only find his way back from all these cul-de-sacs and wrong tracks to the path of knowledge if he is guided by the fundamental conviction that he will in fact be successful, and is driven an by the inner confidence, after the trouble of many vain attempts, to be at last able to hold the exhibit in his hand which will deal a deathblow to the judgement being contested. Solely the feeling, coming close to an inner certainty that the convicted person is innocent gives a motive for all the efforts.

This should not be misunderstood. It is not personal sympathy for the client or the faint belief in his protestations of innocence which are the basis for successful investigation activities, but solely an assumption of innocence which is fed by an intellectual pervasion of the material. It may be accompanied by human experience and occasionally also confirmed by irrational sentiments. What is decisive, however, is that the doubts in the sustainability of the judgement and the strong presumption of a miscarriage of justice have a rational basis; furthermore, the client must, in personal confrontation with his defense counsel, have contradicted the continuing suspicious circumstances logically and constantly. This presupposes a questioning by the defense counsel which is not shaped by a premature confidence in the client, but rather the contrary: The more mistrust against the client there is in the initial phase of the brief, the greater the chances of success in the final phase. In the reopening of a case, only an attorney who sees his mirror image in the better public prosecutor will prove himself as a defense counsel.

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The paper seeks to impart practical assistance; Marxen/Tiemann, Die Wiederaufnahme in Strafsachen [Reopening in Criminal Cases], Heidelberg 1993, is to be recommended as a (more or less) topical compendium of the established precedents. Steffen Stern devotes himself very vividly to the practical problems of the defence in NStZ 1993, 409 ff.; Wasserburg, Die Wiederaufnahme des Strafverfahrens [The Reopening of a Criminal Case], Stuttgart 1984, is helpful but also voluminous. On the reform of the law an reopening last: Rieß, NStZ 1994, 153 ff. There have been no empirical studies an the legal reality of the law an reopening since the imposing study by Peters, Fehlerquellen im Strafprozeß [Sources of Error in the Criminal Trial, Karlsruhe 1970. Radelet/Bedau/Putnam. In Spite of Innocence - Erroneous Convictions in Capital Cases, Boston 1992, contains a comprehensive evaluation of 400 reopened Gases in the USA from the eighties; Huff/Rattner/Sagarin, Convicted but Innocent - Wrongful Conviction and Public Policy, SAGE Publications, London 1996, endeavours to analyse the causes.

Is this due to the fact that reopening leads a shadowy existence in a lawyer's professional practice? The law on reopening cases is also outside of any discussion from the professional and legal policy aspect -apart from the widening of the reasons for reopening a case made last year to include infringements of the European Convention on Human Rights (§ 359 No. 6 of the German Code of Criminal Procedure). Of 21 Congresses of Criminal Practitioners, just one - the 16th Congress of Criminal Practitioners in Hamburg in 1992 - dealt with the law an reopening in one panel. The two speakers - Peter Rieß and Steffen Stern - addressed three interested listeners.