German trial system differs from U.S., as in case of suspect in killing of U.S. airmen
By NANCY MONTGOMERY | STARS AND STRIPES Published: September 1, 2011
HEIDELBERG, Germany — Arid Uka’s courtroom account Wednesday of gunning down two U.S. airmen at Frankfurt Airport in March didn’t satisfy the lawyer for the family of one of the slain airmen.
“He didn’t say where he got the gun,” said Marcus Steffel, who represents the parents of Airman 1st Class Zachary Cuddeback. He and Airman 1st Class Nicholas Alden were killed and two others wounded in the March 2 shooting. “He didn’t say why he did it,” Steffel said. “The story he told us, I can’t believe it.”
Cuddeback’s parents are the co-plaintiff in Uka’s trial, and Steffel can question witnesses, file motions, recommend sentences and seek post-trial appeals.
“I can do everything that the prosecutor or defender can do,” Steffel said.
The existence in German criminal proceedings of co-plaintiffs — surviving victims or their families — gives victims a voice throughout the proceeding.
Having a co-plaintiff is one of numerous, significant differences between the German and U.S. criminal justice systems.
Uka, a 21-year-old Kosovo Albanian who lived in Germany and worked at a post office near the airport, told the Frankfurt court Wednesday that he went to Frankfurt Airport with the intention of killing American soldiers to prevent them going to Afghanistan, where he believed they might rape Muslim girls.
Uka, who attorneys said in June admitted to the killings, said he had watched a video purporting to show American servicemembers raping a Muslim girl that included clips from the movie “Redacted,” a 2007 movie that dramatized the Mahmudiyah killings — the rape and murder of an Iraqi teenager and the murders of her family by U.S. soldiers in 2006.
In the U.S., that confession, along with numerous witnesses to the crime, would likely have resulted in a plea agreement and no trial at all. More than 90 percent of cases in the U.S. end in a plea bargain.
But the German system doesn’t have plea agreements, or even guilty or not guilty pleas. And although Uka’s courtroom admission could lessen his sentence by showing cooperation and remorse, just as in plea-bargains in the U.S., the confession won’t end the trial. Uka could face life in prison if convicted, the severest sentence in Germany.
“It will reduce the number of proceedings. You won’t need to hear every witness,” said Joern Patzak, a Trier prosecutor.
Because all substantiated cases go to trial, hearing dates are staggered throughout weeks or months, alternating with other trials. Uka’s trial, for instance, is set to resume for a day on Sept. 14, then a day on Oct. 5 and Oct. 24, and subsquent days in November, December and January.
But the biggest differences between the two systems have to do with who decides the facts and whether a defendant is guilty.
In the U.S., trials are competitive and adversarial, with prosecutors and defense lawyers presenting their versions of the truth and trying to persuade a jury.
“They’re the two parties, and they duke it out,” said Emily Silverman, at the Max Planck Institute for Foreign and International Criminal Law in Freiberg. The jury renders a verdict.
Judges in jury trials decide what evidence may be brought in, according to the law, which questions are allowable and instruct the jury on the law.
“You hear references a lot to [the judge] being an umpire or referee,” Silverman said. “The judges in Germany do a lot more.”
In Germany, it’s totally different,” Patzak agreed. “You don’t have two parties. It’s not my story or the defense story.”
Germany’s system is inquisitorial: the search for the truth proceeds with professionals employed by the state — prosecutors and judges, and to a lesser extent, defense attorneys — neutrally inquiring into the facts of the case.
The judges run the show, Patzak said.
“He’s the deciding guy. He holds the whole trial in his hands,” Patzak said.
Judges question witnesses before allowing the prosecutor and the defense to do the same. Witnesses do not meet with their inquisitors beforehand and so can’t be coached. There is no such thing as cross-examination.
Because Uka’s case involves murder charges, as well as three counts of attempted murder, three professional judges and two lay judges comprise the body that will decide his fate.
Lay judges serve for a few years, after being nominated by local municipalities or political parties. They are often civil servants. The lay judges, he said, rarely ask questions, and, according to most publications on the German criminal justice system, usually defer to the professional judges.
Professional judges and prosecutors all have the same training -—four years of law school and two years practical experience.
“People who have very high marks tend to get to work for law enforcement, for the state, either as a judge or a prosecutor,” Silverman said.
Such a person may move back and forth between the two positions, she said.
Defense attorneys, who can be the swashbuckling stars of trials in the U.S. — like Alan Dershowitz, Mark Geragos and Johnnie Cochran — assume a far lower profile in the German system.
“They do not have a lot to do,” Steffel said of Uka’s two defense lawyers.
After all the evidence and witnesses are presented, a German criminal case ends with the lawyers making closing statements, followed by the defendant’s statement.
“The accused gets the last word,” Patzak said.
The judges deliberate for a variable length of time, depending on the case. A conviction requires two-thirds of the judges to agree. Disagreement is rare, experts said.
Defendants found guilty of murder in Germany are typically sentenced to life, however, there is no life without parole, just as there is no death sentence.
Those sentenced to life in Germany may be paroled after 15 years, although that’s not automatic.
Steffel said he hopes to persuade the judges that Uka deserves an exceptionally long sentence, that he is “extra guilty.”
“That’s what I want to prove,” he said. “I want the hardest sentence for him. Because he killed two people.”