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b) First preliminary considerations

What rational considerations lead to a suspicion of innocence? There are seldom judgements that have become final and non-appealable which do not convey a convincing impression. If they do not do so, they only rarely overcome the hurdle of appeal (just as conversely, in view of the at present widespread result-oriented style of working of the Federal Court of Justice, a well-reasoned judgement in the first instance is able to pass even appeal complaints an points of law which appeared dead certain). The written judgement is always the way into the reopening. The defense counsel's first field of work are the files of the closed criminal case which have been placed at his disposal by the public prosecutor. To read them thoroughly is always the first challenge of the judgement: If serious discrepancies appear between witnesses' testimony in the preliminary investigation proceedings and their reproduction in the judgement, the objective is to check whether these are to be attributed solely to the immediacy of the trial and a correction of earlier statements which may possibly have taken place there. A careful presentation of reasons for a judgement would let one expect an explanation and resolution of differing testimony contents. If this has not occurred, it gives rise to the suspicion that the reasons for the judgement might have been smoothened at one or the other point for the purpose of increased chances of legal force.

The suspicion arising becomes firmer when witnesses who have been heard, whose testimony is of importance according to the contents of the file, are completely ignored in the reasons for a judgement. Finally, the uneasiness becomes even stronger when the reasons for a judgement show obvious errors: It is held against the convicted Person as a dearth of credibility that she had only made a certain statement at a late point during the trial whereas the exploration record of the psychiatric expert clearly shows that the (later) convicted person had expressed herself identically in content already three months before the beginning of the trial.[2] A judgement's power of persuasion is really shaken already when the files are being read for the first time if it is based solely an the convicted person's murder confession, but this confession is based an Police interrogations which must have been insinuated in part.[3]

An additional point is that well written judgements sometimes contain constructions even if now and then at an inconspicuous point - which appear daring and succeed in arousing mistrust. Thus a criminal court dealing with cases involving drugs claimed in its written reasons for a judgment[4] that the chief witness had been prepared, an the convicted person's behalf and for the purpose of paying off a gaming debt he had with him of just DM 5.000, to bring a total of three kilos of heroin and one pound of cocaine from Hamburg to Munich and to hand it over to an unknown third party. In the same breath, the criminal court imputed that the witness, who had turned state's evidence, was involved completely independently in the dealings with narcotics and, namely, "to a considerable extent". This simultaneous juxtaposition of the role of a servile underling and that of an independent large-scale dealer in itself seemed scarcely plausible (even if not impossible); in the course of the defense counsel's further investigations, the role of one merged with that of the other. The consultation of ever more new files from the key wittness's milieu brought to light that the recipient of the delivery allegedly made an the convicted person's behalf in Munich was in fact a debtor of the "underling" - and the sum collected from him was just a payment towards debts from the key witness's earlier deals!

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2. Thus in the trial before Fulda Regional Court in the criminal case against Monika Weimar.
3. Thus in the case of Holger Gensmer heard before Hamburg Regional Court who in 1971 had not only confessed to the murder of a policeman's child, but at the same time had described six still unsolved cases of rape to the same detective officer in detail; from the file, however, it emerged from the sperm examination an the clothing of one of the rape victims that the perpetrator had blood group 0, whereas Gensmer - as was also to be seen from the file - was a secretor of blood group A. At least one of these detailed confessions had been put into Gensmer's mouth.
4. Hamburg Regional Court, judgement of 6.10.1995 - 619 KLs 13/95, p. 24.