Posted by: Kennedy | February 9, 2010

Strafrecht

Before I wax poetic about my latest juridical German adventures, it might be helpful for me to give my readers a brief overview of how all these courtroom mornings fit into my future: To begin with, a year from last Saturday, I took the LSAT. Allow me to just pause and say how the sweet the passing of time can be sometimes. Last Saturday, I slept in, ate a leisurely breakfast with my German host family, read English and German literature to my heart’s content, tutored my host brother in music theory, went for a run around the frozen Schlachtensee, and baked a delectable chocolate sour cream cake with some wonderful German, American, Kenyan, Swiss, and Jamaican friends. Life is good. I have no pictures of me inside German courtrooms, so I’ll include a few photos here. As you can see from the far right, the Berlin weather finally came in handy! We iced the cake with snow from the bottom up, and with frosting from the top down.

Last fall, I applied to 12 law schools in the US, and, in early January, I received an acceptance to Wake Forest University. I have a small stack of rejection letters building as well, but I have 8 other schools yet to hear from, and it’s exciting just to know that I get to go to law school next year! In mid-August, I will find myself with a typical 1L class schedule and, undoubtedly, also catch myself thinking about the ways that the German legal system compares and contrasts to ours. At this point, I have actually spent more time in German courtrooms than I have in an American one, but one of the differences I find most striking in our systems is the way the profession of a judge works.

In the United States, the people elect the lower levels of judges. In the Supreme Court, the president appoints the judges. I cannot speak to the highest levels of court in Germany, but judges in the Amtsgericht and Landgericht (district and regional courts) apply and compete with other applicants for their jobs, just as people do in many other professions. In the US, one must have some legal experience— roughly ten years or more as a lawyer— before becoming a judge. In contrast, after completing the 7 years of law school and legal internships required to become a lawyer (somewhat equivalent to the American system, considering that the average time to acquire an undergraduate degree in the US is 4 years and law school requires 3), a German “jurist” may choose to be a judge or a lawyer immediately. After a trial period, a German judge’s peers vote on retaining him or her. If yea, the judge receives a position for life (much like a Supreme Court Justice). If nay, you’re out of luck in that particular court. (Presumably one can apply for a position elsewhere, or try again later— not sure on this.) Judges assess their peers during the their lifetime terms through a hierarchical system of administration that stays within the judiciary, though there is minimal accountability to other branches of government for the highest-ranking judges. The German judiciary is thus extremely independent from politics and the other branches of government. This system, as one Potsdam judge explained to me, was a reaction to the corruption and show trials of the Nazi period.

I’ve noticed that German judges are predominantly women, a fact corroborated by some of the judges themselves. This is because judges work two full days in court every week, and have a lot of flexibility in where and when they do the preparation work for their cases. In other words, it’s an ideal position for women who want more flexibility to be available to their children. I can imagine pros and cons to both the German and American judicial systems, in particular regarding judges, so I’ll wait till I get a closer look at the American system next year before I give preference to one or the other.

In more immediate news, I accompanied a Vorsitzende Richterin (the presiding judge, where there are more than one hearing a case) from the Strafkammer (the division of criminal law) to a trial today. As an American Praktikantin bouncing from judge to judge and from division to division, I never know what I’m going to get in court that day. Luckily, because I have permission from the right people and I’ve signed the right forms, I’m allowed to read the case files, which means I get a fifteen-minute preview of what’s to come each morning. I’ve mostly been sitting in on civil and labor law cases, so today was my first time in a German criminal court (or any criminal court, in case you’re wondering about the way I phrased that). After jogging from the bus to the judge’s private office— half to keep warm and half to maximize my fifteen minutes of case-reading— I was a little shocked to find myself reading a detailed explanation of the several charges of child molestation against the defendant. For once, my knowledge of German was sufficient not to hide the gravity of the charges.

The court will meet once again to hear more witnesses, and I should keep my opinions about the outcome of the case to myself anyway, so I will focus on procedures used in today’s case that were different from other Landgericht cases I’ve heard. The courtroom was much more full, for starters. A veritable panel of prosecuting attorneys sat across from the defendant and his sole lawyer. I haven’t yet been able to ask the presiding judge all of my questions about the case (we’re meeting on Monday to do just that), but I think the number of prosecuting attorneys can easily be chalked up to the multiple accusations against the defendant. I have seen Landgericht cases in the civil court that were determined by one or three judges, but in this trial, there were two. The presiding judge acted as the facilitator and primary poser of questions (interrogator being too strong a word), except when it was a lawyer’s turn to examine the defendant or the expert. The secondary judge also had opportunities to ask questions, but otherwise her primary purpose seemed to be to consult with the presiding judge during breaks— two heads being better than one, I suppose.

I was present for consultation with an expert at the Ortstermin a few weeks ago, but the expert in this case was a doctor whose purpose was to establish how much of the accounts of the prosecutors and defendant could be corroborated by medical theories and corporeal evidence. Another notable difference between this case and others lay in the presence of two thick security guards, who escorted the accused in and out of the courtroom and moved forward and back accordingly whenever the judge called the defendant to identify pictures in front of the courtroom. All in all, the most surprising thing for me was still the detailed level of personal information required from the defendant. The moral of the story here? If ethical commitments aren’t enough to keep you out of trouble, just think about what an entire courtroom might learn about your personal mistakes, tastes, habits, and relationships if you get caught. Even if one has nothing to hide, I don’t think anyone would much like the events of his or her life and those of their friends and family to be put onto a spreadsheet and run through legal and psychological theories like so many numbers to be crunched.

I’ll go ahead and remind you up front that these are only the translated impressions of a young American aspiring lawyer, and that everything I’ve said should therefore be taken with a grain of salt. But, hopefully, my account of my legal experiences here will provide you with some new topics to mull over in the back of your mind, and raise questions for which you can seek more reliable answers than one student’s experience can provide.

Advertisements

Responses

  1. Hey, nice pics. You are really neautiful!


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: