Comparing injustices: truth, justice, and the system.

• Author: Grunewald, Ralph
• Position: Introduction through II. The Implementation of Truth and Justice Within Two Systems A. Justice and the Inquisitorial and Adversarial Paradigm, p. 1139-1168 - Miscarriages of Justice

INTRODUCTION

On the night of October 13, 2001, Rudolf Rupp, a farmer in the small town of Neuburg an der Donau (Bavaria, Germany) gets into his Mercedes and drives to the bar of the local sports club, where he sits at his table--alone. People avoid him. Often, he would not change clothes and come directly from the barn. But he is also considered a brawler and he drinks, a lot. At around one o'clock in the morning, after having eight pints of beer, he leaves with a blood alcohol level of around .25 percent. This is the last time he and his Mercedes are seen. (1) His wife gets concerned and reports him missing but nothing happens for two years--apart from the gossip that spreads through the village. Rumors circulate suggesting that the family might have killed the unsympathetic Rudi and buried him in the dung heap, or even chopped him up and fed him to the dogs and pigs. In January 2004, police, equipped with a warrant, searched the farm but could not find a trace of blood or any evidence in support of the allegations. The family of the missing Rupp is interrogated at the police station. During these interrogations, Hermine, wife of Rudi, their two daughters, and the fiance of the eldest daughter confessed to having killed Rudi that night. None of them has an IQ higher than seventy. Their confessions are detailed. They describe how they waited for the victim to come home, how they first bludgeoned him, and later dismembered the body in the basement in order to feed the pieces to the dogs. Although physical evidence is missing, the prosecutor charges all four with manslaughter. All four, now represented by attorneys, recant their confessions and deny any involvement in the killing. The case is tried regardless and although evidence is circumstantial, both Rupp's wife and the fiance of the eldest daughter are convicted of manslaughter and sent to prison for eight and a half years. The daughters are tried as juveniles and also convicted. The defendants protesting their innocence appeal the conviction but are unsuccessful.

Then, one day in March of 2009, fire fighters pull a black Mercedes E 230 out of the Danube River. Behind the wheel is the fully intact corpse of Rudi Rupp. "At that time," says the prosecutor, "we knew the story with the dogs was false." (2) Defense attorneys filed motions to reopen the case because of the newly found evidence but the motions were denied, mainly on the grounds that the confessions might have been false in regard to how the body was disposed of but still held with regard to the elements of the crime. On appeal, the State Supreme Court of Bavaria allowed the motions and ordered a new trial. This led to the acquittal of all defendants. During the retrial, the court explained that it was persuaded of the involvement of one or more of the defendants in the death of Rudolf Rupp, however, it simply could not be proven.

There is more to say about this case, about the junk dealer, for example, who was accused of aiding in disposing of the Mercedes (before it was found), who claimed that he was threatened by the police to make statements to that effect. While the original charges were unsupported, he was then accused of making false unsworn testimony when he explained that he was forced by law enforcement. This case of a wrongful conviction in Germany has received some of the highest media attention in past years. It has gained so much attention not only because of the absurdity of the circumstances, but also because it shattered the belief that the German legal system does not produce wrongful convictions. (3) Whether or not this case is exemplary or an exception cannot be answered easily since the extent of wrongful convictions in Germany is unknown. (4) Rolf Eschelbach, a judge at the Federal Court of Justice, estimates (without statistical support) that probably more than 25 percent of all felony convictions are wrongful. (5) The number of wrongful convictions may not be that high, (6) but innocent suspects are accused and convicted in Germany, and inquisitorial systems like Germany may be particularly prone to specific errors like tunnel vision--one of the leading causes of wrongful convictions in the United States. (7)

The following analysis confronts a paradox: Notwithstanding that striking example of a miscarriage of justice it will be argued that the connection between "justice" and "truth" is stronger in Europe or Germany than in the United States. Wrongful convictions happen despite that strong tie in Germany but they might not be an effect of the setup of the criminal justice system--at least not to the same degree as in the United States. While both systems agree that a verdict (tried or plea bargained) can only serve or represent justice if it is based on accurate facts, truth has much less of a systemic dimension in the United States than it has in Europe or in particular in Germany, where truth is protected beyond the trial and throughout the whole criminal process. In order to explore and support this thesis, a basic concept of truth and justice (procedural and material) will be developed. (8) Here, concepts of substantive and procedural justice will be distinguished in order to create a framework that helps to separate the roles of substantive and procedural law. In Part II, the role of truth within the adversarial and inquisitorial models will be addressed and also how (and if at all) truth is protected in stages that follow the trial. Part III will address the "elephant in the room," which is the fact that German courts produce wrongful convictions although the system itself is better equipped to filter out the innocent. In the end, the question of whether or not the known wrongful convictions in Germany are due (partly) to a failure of the system or other, less system-related reasons (like the police acting with tunnel vision) has to remain open for as long as we do not know more about these cases. However, a systematic analysis and discussion of how much truth and justice are tied will further the understanding of our criminal justice systems and their effectiveness to protect the innocent.

In Part I, this article develops and contextualizes basic concepts of truth and justice (procedural and material). Part II looks at how differently the pursuit of factual truth is implemented in the German and American systems. And Part III examines the gap between the German system in theory and how it works in reality, using the Rupp case as an example.

1. TRUTH AND JUSTICE IN A COMPARATIVE PERSPECTIVE?

   1. The Impossibility and the Value of a Comparison

      Avoiding wrongful convictions is the touchstone of every criminal justice system. Regardless of a system's design and its place in time or culture, "justice" is only served when the actual perpetrator is convicted and the innocent go free. This is at least what we would think. Different justice systems take different approaches as to how much a decision or verdict (despite its actual meaning to "speak the truth") reflects the factual truth of a case and how much it represents the results of fair proceedings; how much justice is a function of material or formal truth. The outcome of a criminal proceeding will usually be a mix of both--procedural and material considerations. Important facts, maybe the only facts that support a conviction, might be disregarded when they were found through illegal means. But a jury might at the same time convict an innocent man or woman if it believes a prosecutor's story. We all need to live with the understanding that criminal trials and proceedings are nothing but attempts to achieve justice. Truth is important but it is balanced with other goals, goals like due process, fairness, procedural tradition, democracy, and social ideas about the purpose of punishment.

      In the last decades, journalists, innocence projects, and others have shed light on the reasons and causes for wrongful convictions. (9) On the legislative, as well as the technical/pragmatic level, changes to make decisions more factually reliable were initiated. Scholarship has triggered and reflected on these changes and laid out ideas about future reforms. While all these reflections have had a tremendous impact, the analyses of causes and potential changes often lack a broader system-oriented perspective. The following inquiry will take a comparative and systematic view of the relationship between truth and justice in the context of wrongful convictions and its interrelation within a criminal justice system. The German, civil-law based, "neo-inquisitorial" (10) system will be contrasted with the American adversarial, common law-based, criminal justice system. Such a comparison might help to clarify and elucidate domestic concepts (11) and can shed light on how truth and justice are related in each system. However, a comparison is not an end in itself and any comparative approach has to be undertaken very carefully for at least two reasons: both (if not all) systems produce wrongful convictions and, although all systems stress the link between truth and justice in different ways, no system can claim superiority. (12) Just because, for instance, the German system offers a new trial (where new evidence can be introduced) for most convictions this does not make the system "safer." And, generally excluding hearsay evidence does not make the American system more reliable either.

      Wrongful convictions are a universal phenomenon because the causes for many are to a large extent rooted in the human condition and behavior. (13) Second, any comparative endeavor has to be aware of the differences in the legal cultures and the difficulty that comes with the translation and interrelation not only of legal terms but also of the function and role of institutions and procedures within a system. Prosecutors, for instance, are elected in the United States but not in Europe, which can already demonstrate that although many functions might be...