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The Life and Times of a Local Court Judge in Berlin

Published online by Cambridge University Press:  06 March 2019

Stephen Ross Levitt

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In the study of comparative law and legal systems, a problem of focus and perspective presents itself. Comparative scholars often examine the “important” cases decided by appellate courts of foreign nations and the writings of their most important scholars. In Anglo-American nations, jurists are taught in law school, and then in the practice of law to look for authoritative texts, which are often the words of appellate court judges who set precedent. The results of these searches for the authoritative, both in national as well as comparative legal research, may be that scholars do not give enough attention to the average and the pedestrian, but rather focus upon the exceptional, the appellate, the influential and the newsworthy.

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Articles
Information
German Law Journal , Volume 10 , Issue 3: Special issue - Germany's 1968 and the Law , 01 March 2009 , pp. 169 - 204
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Copyright © 2009 by German Law Journal GbR 

References

1 This problem of perspective and focus is found in the discipline of history as well. Social historians focus much more of their attention on the lot of the average person. See Harold Perkin, Social History, in The Varieties of History from Voltaire to the Present 430,455 (Stern, Fritz ed., 1973).Google Scholar

2 See Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2d ed. 1997). See also Nigel Foster, German Law & Legal System xli-xlii (1993). In Foster's book of 148 cases, 60 of these cases come from the Federal Constitutional Court and 54 from the Federal Supreme Court (both civil and criminal). Cf. Inga Markovits, Justice in Luritz, 50 Am. J. Comp. L. 819, 820 (2002). Inga Markovits indeed looks at the Kreisgericht (District Court) of East Germany in her article. She writes: “I want to know what happened at the bottom. Central decisions must be carried out by local people, and there is no reason to believe that the famous gap between law on the books and in real life did not also exist under Socialism. What did socialist justice and injustice mean to those who experienced it first-hand?” See also Sybill Bedford, The Faces of Justice (1961).Google Scholar

3 See Dow, Steven B., There's Madness In The Method: A Commentary On Law, Statistics, and the Nature of Legal Education, 57 Okla. L. Rev. 579, 591 (2004).Google Scholar

4 Rüdiger Warnstädt, Recht so, 80 Originale Strafurteile von Amtsrichter Rüdiger Warnstädt aus dem Kriminalgericht Moabit (2003) (Quite Right, 80 Original Criminal Judgments by Local Court Judge Rüdiger Warnstädt from the Criminal Court of Moabit). The book has been published by Das Neue Berlin Verlagsgesellschaft mbH in Berlin in 2003. I purchased my copy of this book at the Parlaments Buchhandlung in Berlin (www.parlamentsbuchhandlung.de) (last visited on January 26, 2009).Google Scholar

5 Rüdiger Warnstädt, Herr Richter, Was Spricht Er? (Mr. Judge, What Does He Have to Say?) 71 (2004). Judge Warnstädt writes that there are twelve Amtsgerichte (Local Courts) in Berlin. Eleven of them have directors and one has a president. The President of the Amtsgericht Tiergarten, where Warnstädt sat and delivered his judgments, is the president of all twelve local courts. In Germany there are four levels of courts: Amtsgericht (Local Court), Landgericht (Regional Court), Oberlandesgericht (Regional Court of Appeal), and Bundesgerichtshof (Federal Court of Appeal). The Judicature Act (Gerichtsverfassungsgesetz) sets out the names of these four courts in Article 12. It sets out the jurisdiction of the Local Courts as well as the maximum penalty they may impose in Article 24. See http://bundesrecht.juris.de/gvg/__24.html (last visited January 31, 2009).Google Scholar

6 Warnstädt, supra note 4, at 9. Warnstädt writes, “I am not claiming too much when I say that for a Local Court judge to publish his decisions is somewhat new.”Google Scholar

7 The German Office of Statistics publishes information concerning the number of cases heard by different courts in each of the sixteen states and terminated. I understand the term, terminated, to mean resolved or completed. http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/EN/Content/Statistics/Rechtspflege/Gerichtsverfahren/Tabellen/Content75/Gerichtsverfahren,templateId=renderPrint.psml (last visited on January, 31, 2009).Google Scholar

8 Warnstädt, supra note 5, at 9. When the old-time wooden chairs at the Moabit Court were replaced with plastic seats, Warnstädt kept one wooden chair for his office and one for his courtroom. He considered the new plastic chairs were not only gray, but terrible.Google Scholar

9 Warnstädt, supra note 4, at 5.Google Scholar

10 Als ungekrönter König abgedankt- als Jungliterat auferstanden, Der Tagespiegel, August 3, 2003. See also Rebecca Niazi & Caroline Labusch, Pointen vor Gericht, Zitty, September 3, 2003 at 32. They write, “At Warnstädt's [courtroom], it was always full, even if he had no sensational trials.” See also Geschichten aus dem Moabiter Amtsgericht, Berliner Zeitung, January 30, 2006 at 29. “[He] is the most famous local court judge in the city.”Google Scholar

11 Jutta Voigt, Sibylle Bergemann & Anne Schönharting, Der gute Mensch von Moabit (The Good Man of Moabit), Geo, October, 2007 at 78, 80. A memorable quote from this interview is the following: “In the courtroom I could do nothing about the injustices of the world…but I could see to it that each [person] in front of my court would be treated fairly, not as a file, but rather as a human being. The further down one is [in society], the more he needs recognition as an individual.”Google Scholar

12 Rüdiger Warnstädt im Porträt (MDR television broadcast November 7, 2007). See also http://www.mdr.de/riverboat/archiv/4987478.html (last visited January 25, 2009).Google Scholar

13 His upcoming engagements are listed here: http://www.ruedigerwarnstaedt.de/termineindex.html (last visited January 31, 2009). It is indeed through Warnstädt's notoriety and writings that I first got to learn about his work, life story, career and views during my sabbatical semester spent in Berlin during the summer and fall of 2003. In subsequent summers, 2004, 2005, 2006, 2007 and 2008, I traveled back to Berlin where we spoke on many occasions. Each summer I rented an apartment in Moabit.Google Scholar

14 Warnstädt was born in 1938. At the end of the war, he was seven years old, and too young to be exposed for any length of time to National Socialist propaganda at school. He is neither victim nor perpetrator. However, during the 1950s, some judges, who had served during the Third Reich, remained on the bench. These would be persons “tainted” by the National Socialist past. See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 16 (1976). “It has been estimated that of the eleven thousand judges in the Bundesrepublik, five thousand were active in the courts under the Hitler regime.” See also Hans-Ernst Böttcher, The Role of the Judiciary in Germany, 5 German Law Journal 1317, 1320 (2004), available at: http://www.germanlawjournal.com/article.php?id=508.Google Scholar

15 Another book has appeared recently that also deals with criminal cases before the Local Court at Moabit in Berlin. See Renate Rauch, Eine Leiche im Keller und andere Geschichten aus dem Amtsgericht (2005). This book, written by a newspaper columnist, who covered the courts for a number of years, contains a compilation of forty-three reports, originally written about interesting cases for the Weekend Magazine of the Berliner Zeitung. An interesting historical view of the courts at Moabit during the Weimar period is found in the following two books, both published by Das Neue Berlin Verlagsgesellschaft mbH: See Sling, Der Fassadenkletterer vom “Kaiserhof”, Berliner Kriminalfälle aus den Zwanziger Jahren (Greuner, Ruth ed., 1989); Tergit, Gabriele, Wer schiebt aus Liebe? Gerichtsreportagen (Brüning, Jens ed., 1999).Google Scholar

16 Interview with Judge Warnstädt in Berlin, Germany (May 26, 2005). Warnstädt explains that the German state of Prussia was dissolved after World War II in an act of retribution. However, Bavaria, which was no less implicated in the German catastrophe, was permitted to remain entirely intact after the war. Large companies moved out of a divided Berlin and Russian-occupied Prussia often to southern Germany. Warnstädt finds it ironic that Bavaria emerged after the war, occupation and reunification with great benefits, while Prussia was disbanded, divided and demonized. See also Warnstädt, supra note 5, at 71. Warnstädt mentions that after the war Siemens went to Munich, AEG, the railway, and all the banks to Frankfurt am Main, the post office to Darmstadt, Lufthansa to Cologne, and the government to Bonn. One might look at the following historical account of Prussia: Christopher Clark, Iron Kingdom, The Rise and Downfall of Prussia, 1600–1947 (2006).Google Scholar

17 Warnstädt, supra note 5, at 75. Rüdiger writes about the fact that the family had to go to the airraid shelter because of heavy bombing. Id. at 76.Google Scholar

18 Id. at 77–78. Only a tea wagon and a radio were recovered from the house. Luckily, the Warnstädts were in Poland when their Berlin apartment was destroyed by bombs. Although the radio from Berlin arrived in Poland, it was useless in Strzygy because there was no electricity in the tiny village. Warnstädt writes that many of the Polish people from the area had been expelled or killed. He heard that there was a cellar in nearby Rypin where so many Polish people were executed that the blood was knee-high.Google Scholar

19 Id. at 81–82.Google Scholar

20 For a recent discussion in German about the flight of German civilians from the Russians see Guido Knopp, Die Grobe Flucht: Das Schicksal der Vertriebenen (2003).Google Scholar

21 Warnstädt, supra note 5, at 81–84. “Suddenly one evening … Jaschu, the son of the local blacksmith, came to the house and said ‘the soldiers are coming.'” The next morning, Jaschu took the Warnstädt family to the train to escape. Here the reader should note that it was a Polish citizen who came to the rescue of Rüdiger and his family.Google Scholar

22 Id. at 88. When the family was in Wismar, Warnstädt's mother remembered that a close friend of his aunt was a landowner and lived on the Island of Poel. Because the property of the aunt's friend was overcrowded with refugees already, the Warnstädt family moved in with a local fisherman's family.Google Scholar

23 Id. at 89.Google Scholar

24 Interview in Berlin with Judge Warnstädt (November 21, 2003).Google Scholar

25 Warnstädt, supra note 5, at 90–94. For five years, Rüdiger and his brother lived on Poel with his mother and attended school on the island. His father, who had returned from civil service in the Ukraine, worked on the mainland at a bank in Wismar. In 1950, the family moved to Wismar and Rüdiger attended the Gerhart Hauptmann School, which was overcrowded with refugee children.Google Scholar

26 Id. at 114–115. Rüdiger went to the Goethe Oberschule (high school) in Bad Doberan. This was a boarding school. His mother died suddenly and he could not pay the fees. However, the director told him to stay and he was not obliged to bring in fees any longer.Google Scholar

27 Id. at 128.Google Scholar

28 Id. at 129.Google Scholar

29 Id. at 129. At that time, East Germans who came to the “West” to study had to spend six months repeating the final year of high school.Google Scholar

30 “I did not want to join in, so I left.” Interview in Berlin with Judge Warnstädt (July 26, 2004).Google Scholar

31 Id. at 149. “The eastern way of playing with justice was already at that time not for me.” Later he writes, “Had I been given the opportunity to study law in the German Democratic Republic in 1957, I would have refused.”Google Scholar

32 Id. at 130.Google Scholar

33 Interview in Berlin with Judge Warnstädt (November 21, 2003).Google Scholar

34 Warnstädt, supra note 5, at 149.Google Scholar

35 The significant components of Warnstädt's training in the 1960s reflect the regime of education that is still largely in place today in each of the sixteen states. For a good discussion of German legal education see David S. Clark, The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat, 61 S. Cal. L. Rev. 1795 (1988); Schack, Haimo, Private Lawyers in Contemporary Society: Germany, 25 Case W. Res. J. Int'l L. 187, 190–192 (1993); Szto, Mary C., Towards A Global Bar: A Look At China, Germany, England, And The United States, 14 Ind. Int'l & Comp. L. Rev. 585 (2004).Google Scholar

36 Warnstädt, supra note 5, at 166. As a probationary judge, one works for about five years as an assistant judge and a state prosecutor before being offered a life-time appointment.Google Scholar

37 Id. at 167–168. Warnstädt found that the court awarding restitution and reparations to the victims of the Nazi regime, often haggled over every penny. Warnstädt said that he spent long hours with the question, “Where the stamp collection, which the German occupiers in the Government General of Poland had stolen, above all from Jewish Poles, had gone.…Where the moving firm Schenker, on the orders of the German occupiers, had taken the furniture of the Greek Jews of Thessalonica, while the owners of the furniture had been sent by freight car to Auschwitz.” Only if the property ended up on German soil could compensation be paid out. “I never found anyone who considered this regulation to be just.”Google Scholar

38 Id. at 197.Google Scholar

39 He heard his first case in December 1978 and his last in October 2002.Google Scholar

40 For a map of all 12 city districts see http://www.berlin.de/rubrik/politik-und-verwaltung/bezirksaemter (last visited February 1, 2009). For information about Berlin Mitte, see http://www.berlin.de/ba-mitte/ (last visited February 1, 2009).Google Scholar

41 See Berlin Mitte, Das Lexikon 424 (Hans-Jürgen Mende and Kurt Wernicke, eds., 2001). See also http://www.luise-berlin.de/lexikon/mitte/m/Moabit.htm (last visited January 25, 2007) Not available any longer due to cuts in government funding. See also http://www.moabitonline.de/12 (last visited January 29, 2009). But see Dr. Vera Bendt, Warum heißt Moabit eigentlich Moabit?, http://bendt.org/pdf/Moabit-Texte%20und%20Notizen.pdf (last visited January 31, 2009). Dr. Bendt suggests that the name may actually be connected with Protestants who emigrated from the principality of Orange in 1704 as a result of the War of the Spanish Succession, rather than the first group of Protestants, the Huguenots who fled after the Edict of Nantes was revoked in 1685. There is no doubt that the Protestants who settled Moabit planted Mulberry trees, hoping to create in Prussia a silk industry. Ultimately, these plans were not highly successful. The soil was too sandy and too marsh-like. Dr. Bendt suggests that when the silk industry failed to thrive, the Protestants themselves or the King of Prussia or one of his officials used the name, “Moabit,” not to signify a refuge just short of the Promised Land, but an area of agricultural wasteland.Google Scholar

42 Haase, Norbert & Borgas, Hans-Michael, Bau- und andere Geschichten aus dem Kriminalgericht Moabit (eine Führung durch das “Neue” Kriminalgericht) in Das Neue Kriminalgericht in Moabit, Festschrift zum 100. Geburtstag am 17. April 2006 11 (Wosnitzka, Alois ed., 2006) [Hereinafter: Das Neue Kriminalgericht]. Arnd Bödeker, Hätten Sie gedacht…-Das Kriminalgericht Moabit in Zahlen- in Das Neue Kriminalgericht at 50. Bödeker indicates that in 2005 there were 194 judges sitting in the criminal division, and of these 194 judges, 74 were women. It might help Anglo-American readers to know that Judge Alois Wosnitzka is currently the President of the Tiergarten Local Court and the book mentioned above is an anthology containing articles published in honor of the one-hundredth anniversary of the opening of the New Criminal Court building. The thirteen articles deal with the construction of the court, the history of the court, famous trials and even some current issues.Google Scholar

43 See the Berlin City Government website concerning monuments and go to object number: 09050355 http://www.stadtentwicklung.berlin.de/denkmal/liste_karte_datenbank/de/denkmaldatenbank/index.shtml (last visited January 26, 2009) One can find wonderful photos of the court at the following address: http://www.berlin.de/sen/justiz/gerichte/ag/tierg/lageplan.html#%20Lageplan (last visited Feb. 1, 2009).Google Scholar

44 Haase, & Borgas, , supra note 42, at 12.Google Scholar

45 Id. at 16. Haase and Borgas write as well that some mean-spirited persons sometimes phone court offices and ask whether the telephone system from 1906 is still being used.Google Scholar

46 Id. at 18.Google Scholar

47 Schertz, Georg, 100 Jahre Prozesse in Moabit auch ein Spiegel ihrer Zeit, in Das Neue Kriminalgericht, supra note 42, at 30. For more information about this trial and its significance see Benjamin Carter Hett, The Captain of Köpenick and the transformation of German Criminal Justice, 1891–1914, 36 Central European History 1 (2003).Google Scholar

48 Schertz, supra note 47, at 30.Google Scholar

49 Id. at 31.Google Scholar

50 Id. at 34. Also see Heinrich Hannover & Elisabeth Hannover-Drück, Politische Justiz, 1918–1933, 250 (1987). In this case that ultimately was appealed to the Reich Supreme Court the state charged the artist George Grosz with blasphemous libel for painting three pictures, one of which portrayed Christ with a gas mask.Google Scholar

51 Norbert Haase, Das Reichskriegsgericht und der Widerstand gegen die nationalsozialistische Herrschaft 9 (1993).Google Scholar

52 Rudolf Wassermann writes that in Berlin SA men stormed the Kammergericht (Court of Appeal) in Kleistpark at the end of March 1933 and assaulted a judge named Friedrich Nothmann. As well, it was reported that a Nazi crowd stormed the courts at Moabit on March 31, 1933 demanding the immediate removal of Jewish judges. Rudolf Wassermann, Kammergericht soll bleiben: Ein Gang durch die Geschichte des berühmtesten Deutschen Gerichts (The Court of Appeal shall remain: A Walk through the History of the most famous of German Courts) 109, 110 (2004). See also Richard J. Evans, The Coming of the Third Reich, 432,437 (2003) (Professor Evans mentions attacks on Jewish judges and attorneys in courthouses as well as their dismissal from practice.)Google Scholar

53 Id. at 130. Some of these trials from the 1930s are described in English. See Edith Roper & Clara Leiser, Skeleton of Justice (1941).Google Scholar

54 Pabst, Pamela, Das Königliche Untersuchungsgefängnis im Stadtteile Moabit in Das Neue Kriminalgericht, supra note 42, at 177–178. Some of these well-known political prisoners of the Nazi regime held at Moabit included Ernst Thälmann, (head of the Communist Party), Hermann Müller (former chancellor of Germany) and Marinus van der Lubbe (charged with setting fire to the Reichstag).Google Scholar

55 Albrecht Haushofer, Moabit Sonnets 181 (M.D. Herter Norton trans., 1978); Brodersen, Arvid, Epilogue to Albrecht Haushofer, Moabit Sonnets 165, 176 (M.D. Herter Norton trans., 1978). Albert Haushofer wrote the beautiful Moabit Sonnets while imprisoned from December 1944 until his extrajudicial execution on April 23, 1945, barely one week before Soviet troops reached the Reichstag. As a word of explanation, it must be remembered that the JVA Moabit (Justizvollzugsanstalt) (correctional facility) comprised a number of buildings, which officials administered as one unit. The oldest building called the Zellengefängnis (a prison built with single person cells) located at Lehrter Strasse 1–5, was opened in 1849. In 1906, a new prison was added when the new court was built. The distance between the old prison at Lehrter Strasse 1–5 and the new prison on Alt-Moabit Strasse was about one kilometer. During the Third Reich, parts of the old prison, the Zellengefängnis, were used by the army and/or the Gestapo for housing political prisoners. See http://www.berlin.de/sen/justiz/justizvollzug/moabit/historie.html (last visited February 1, 2009). The Berlin city officials had the Zellengefängnis torn down in the 1950s. Recently, the land on which the old prison sat has been converted to a park honoring the memory of the political prisoners who passed through the jail, in particular Albrecht Haushofer. For visitors to Berlin today, the Moabit Prison Memorial Park is located only one minute's walk away from the new and quite impressive Main Train Station. See http://www.moabitonline.de/600 (last visited February 1, 2009).Google Scholar

56 Valkyrie (United Artists 2008). See also http://valkyrie.unitedartists.com (last visited February 1, 2009).Google Scholar

57 Karsten Stroschen, Herbert Späth & Petra Klein, Tiergarten Mai 45: Zusammenbruch, Befreiung, Wiederaufbau 35 (1999).Google Scholar

58 Schertz, supra note 47, at 39. Georg Schertz tells us that this occurred in October 1945 and that visitors and court officials sat in winter coats by candle light. Many of the windows were boarded up.Google Scholar

59 Id. at 40. In 1967, the state prosecutor charged Rehse, who had been an associate judge on the notorious People's Court during the Nazi period, with aiding and abetting murder in three cases and aiding and abetting attempted murder in four cases.Google Scholar

60 Id. at 42. This trial lasted two years and twenty-one defense attorneys were involved. Drenkman had been killed in his apartment by the Red Army Faction. Terrorists also kidnapped Lorenz, who had been head of the Christian Democratic Party in Berlin.Google Scholar

61 Id. at 18. See also Five Go on Trial in Berlin over 1986 Bombing of Disco, N.Y. Times, Nov. 19, 1997 at A5. See also Philipp Hoffmann, Terror and Law: The sentencing of a terrorist bombing under the German Penal Code: The La Belle Trial, 6 German Law Journal 667 (2005), available at: http://www.germanlawjournal.com/article.php?id=582. This trial lasted 281 days and the court called more than 170 witnesses.Google Scholar

62 Schertz, supra note 47, at 45–46. The trial of Erich Mielke went on for 87 days. On October 26, 1993, he was not convicted for the crimes he committed as Minister for State Security in the German Democratic Republic, but rather for the murder of two policemen in August of 1931.Google Scholar

63 See John H. Langbein, Comparative Criminal Procedure: Germany 1 (1977); Mary Ann Glendon, Michael Wallace Gordon & Christopher Osakwe, Comparative Legal traditions 180–191(1985); Schlesinger, Rudolf B., Hans Baade, Mirjan Damaska & Peter E. Herzog, Comparative Law 473–491 (5th ed. 1988).Google Scholar

64 I have decided to use the more general term “written accusation” in this sentence. In the United States a “written accusation” might be a complaint, an information or an indictment depending on the circumstances, whether the charge is a felony or a misdemeanor, and whether or not a grand jury is involved. For a quick discussion of the history of the grand jury as well as the use of the information and the complaint at the state level, see Richard E. Shugrue, The Grand Jury In Nebraska, 33 Creighton L. Rev. 39, 39–40 (1999).Google Scholar

65 Gerhard Schäfer & Günther M. Sander, Die Praxis des Strafverfahrens: An Hand einer Akte 285–286 (6th edition 2000).Google Scholar

66 See Volker F. Krey, Speech: Characteristic Features of German Criminal Proceedings - An Alternative to the Criminal Procedure Law of the United States?, 21 Loy. L.A. Int'l & Comp. L.J. 591, 603 (1999) See also Dr. Klaus Haller & Klaus Conzen, Das Strafverfahren 153 (2003). See also Langbein, supra note 60, at 164. Langbein has translated § 238 Section 1 of the Code of Criminal Procedure: “The presiding judge conducts the trial, examines the accused, and takes the evidence (Beweis).”Google Scholar

67 Haller & Conzen, supra note 66, at 154.Google Scholar

68 Karl Edmund Hemmer & Achim Wüst, Strafprozessrecht:Die wesentlichen Grundzüge, Ablauf des Strafverfahrens, Rechtsbehelfe im Strafprozess 75 (6th. edition, 2004). Hemmer publications summarize the law to help prepare students for the first and second state examinations. On page 75, reference is made to § 240 of the Code of Criminal Procedure. If there are lay judges sitting with the presiding judge, they too have a right to pose questions.Google Scholar

69 Langbein, supra note 63, at 71–72.Google Scholar

70 Haller & Conzen, supra note 66, at 154–155. Haller and Conzen state that the final statements are made pursuant to the requirements of § 258 of the Code of Criminal Procedure. As well, they note that if there is an attorney representing the victim, known as the Nebenkläger (additional private prosecutor or intervener), this person may address the court at the end of the proceedings as well.Google Scholar

71 Id. at 155. § 258, Section 2 of the Code of Criminal Procedure sets this out. See also Schäfer & Sander, supra note 65, at 449.Google Scholar

72 Schäfer & Sander, supra note 65, at 451. If the judge is sitting alone, she will have to decide the issue of guilt and sentence. If there is a penal panel consisting of two lay judges and one professional judge constituting the court (Schöffengericht), there will be a discussion and vote taken on the issues of guilt and sentence. Schäfer and Sander point out that the discussion concerning verdict and sentence is held in secret. The only person, aside from the judges, lay or professional, who may attend the discussion, is the Referendarin (legal apprentice), if she is being mentored by the presiding judge.Google Scholar

73 Prof. Dr. Lutz Meyer-Goßner & Dr. Ekkehard Appl, Die Urteile in Strafsachen 5 (27th ed. 2002). § 275 Section 1 of the Code of Criminal Procedure sets out that the full written judgment must be filed five weeks after the main proceedings have been completed, unless the main proceedings lasted longer than three days.Google Scholar

74 See Gerichtsverfassungsgesetz (GVG)(Court Organizational Statute) § 25.Google Scholar

75 Schäfer & Sander, supra note 65, at 6. There is a possibility under §29 Section 2 of the GVG for the State Attorney to request in certain criminal matters that a second judge be added to the Schöffengericht. This is called in German Erweitertes Schöffengericht and on this court one will find two professional judges and two lay judges. A good discussion concerning lay judges in German courts comes from Gerhard Casper & Hans Zeisel, Lay Judges in the German Criminal Courts, 1 J. Legal Stud. 135 (1972).Google Scholar

76 See Hemmer & Wüst, supra note 68, at 82–83. The files are restricted to the possession of professional judges. In fact, it constitutes an error according to § 261 of the Code of Criminal Procedure if any lay judge has access to the court's files. According to the principle of orality, all evidence, which will be considered when the judges arrive at a decision concerning guilt and sentence, must be adduced in open court during the main proceedings.Google Scholar

77 Meyer-Gobner & Appl, supra note 73, at 804.Google Scholar

78 Warnstädt, supra note 5, at 248. Warnstädt explains that “much depends upon the judge.” If he is not interested, then the case will not be interesting for everyone. However, if he is interested, then even the most brittle case will blossom. For an example of Warnstädt's ability to reach defendants in court, see infra note 79. See also infra note 81.Google Scholar

79 Id. at 225, 226. In the case concerning a Russian woman who had married a German man and moved to Eastern Germany, who was accused of stealing a winter coat at Woolworths Department Store, the defendant did not want to speak at all. Judge Warnstädt got her attention and made her smile when he addressed her, not as Mrs. Schulz, her legal name, but instead according to her Russian name, Tamara Wladimirowna.Google Scholar

80 Warnstädt, supra note 4, at 5. Renate Rauch uses specifically this word in the introduction.Google Scholar

81 Voigt, Bergemann & Schönharting, supra note 11, at 83. The reader needs to know that Judge Warnstädt is a great lover of theater and opera. In fact, “from very early on the theater made him aware of the various kinds of people …” Warnstädt writes in his text also that “criminal proceedings and theater have much in common …” Warnstädt, supra note 5, at 236.Google Scholar

82 Id. at 8.Google Scholar

83 Langbein, supra note 63, at 56. “A German judgment is a highly stylized and impersonal document. There are elaborate judicial conventions (as well as statutory requirements: StPO §§ 260, 267, 275) about judgment writing. Law students, apprentices, and young judges spend years learning to master the techniques…” In the Langbein text one finds a full translation of a “highly stylized” 1959 case from the Landgericht (Regional Court) of Karlsruhe. Id. at 39–56.Google Scholar

84 Meyer-Goßner & Appl, supra note 73, at 5. Professor Meyer-Goßner and Judge Appl also make reference to §§ 260, 267 and 275, as well as § 268 Section 1 of the Strafprozeßordung (stop) (Code of Criminal Procedure) concerning the content of judgments. A number of examples of judgments are found at the end of the text. An entire judgment from a Local Court, with a judge sitting alone following closely the typical style for the writing of opinions, is found on pages 270 to 274. An interesting judgment from a Schöffengericht concerning drug smuggling is found on pages 275 to 278.Google Scholar

85 Id. at 5. “Statutory provisions are not exhaustive; they are supplemented in many ways through established judicial practices.”Google Scholar

86 Id. at 3.Google Scholar

87 Id. at 3.Google Scholar

88 Schäfer & Sander, , supra note 65, at 509. In German these are listed as: “Urteilskopf, Urteilsformel, Strafvorschriftenliste, Urteilsgründe, Unterschriften der Richter.” A typical judgment from the Amtsgericht is found on pages 543 to 546.Google Scholar

89 Schmehl, Martin & Vollmer, Walter, Die Assessorklausur im Strafprozess 155–157, 162, 172, 175 (7th ed. 2003). In the Schmehl and Vollmer book, concerning writing the second state examinations in the field of criminal procedure, these questions are also reduced to single words: persönliche Verhältnisse (personal circumstances), Sachverhaltsschilderung (description of the facts of the case), Beweiswürdigung (evaluation of the evidence), rechtliche Würdigung (legal consideration), and Strafzumessung (assessment of penalty). See also Meyer-Goßner & Appl, supra note 73, at 81. The authors of this text name a sixth division of a judgment, the decision concerning court costs. The authors state that these “groups are to be distinguished strictly from one another.”Google Scholar

90 Warnstädt, supra note 4, at 222.Google Scholar

91 Warnstädt, supra note 5, at 48. Warnstädt was actually on the bench for ten years before the court officials made the first evaluation that occurs normally after five years.Google Scholar

92 Id. at 50.Google Scholar

93 Id. at 50.Google Scholar

94 Id. at 50. See also Meyer-Goßner & Appl, supra note 73, at 75, 80 concerning the standard tenor of a judgment. It is stated that judgments should not be amusing or satiric. As well, the criminal judgment should not be “drafted like a criminal novella.” The authors say that the reasons must be set out according to a “well thought-out plan” with clear development and divisions.Google Scholar

95 Niazi, & Labusch, , supra note 10, at 32. The authors write that his judgments were “artistic pieces of literature” rather than “dry legalese.” See also supra text in note 94.Google Scholar

96 Telephone interview with Dr. Uwe Frommhold, a judge at Nuremberg-Fürth, Germany (March 31, 2007). See also infra Section H herein of this article concerning “Anpassung and Advancement.”Google Scholar

97 Warnstädt, supra note 4, at 218. The defendant was convicted of arson and sentenced to one year's imprisonment because Warnstädt feared that in the defendant's current fragile condition, he might commit further criminal acts. Id. at 219. The reader needs to know that completed judgments are put in the court file and also sent to the defendant. They are not public. Therefore, the names in Recht So have been changed to protect the dignity of the defendants and comply with the Datenschutz (Protection of Data) legislation, both state and federal. As well, protection of personal information, and prohibitions against its dissemination, is grounded in constitutional cases. See Gerhard Knerr, Die Veröffentlichung von Namen in gerichtlichen Entscheidungen 71 (2004).Google Scholar

98 Warnstädt, supra note 4, at 104. The defendant, caught stealing a pair of gloves and children's pants as well as a child's jacket at Woolworths, was sentenced to prison for one month and two weeks, suspended to probation.Google Scholar

99 Some Germans would find American punishments draconian. See Cornelius Nestler, Model Penal Code: Sentencing: Sentencing in Germany, 7 Buff. Crim. L. R. 109, 110 (2003). “The United States has reached a level of punitiveness in criminal law which is so much higher than the German level that many German criminal law scholars consider the strongly punitive nature of the American system to be out of proportion and unacceptable.”Google Scholar

100 Id. at 121. “The imposition of sentences to imprisonment of less than six months has been strongly discouraged since the reform, and courts must provide additional justification for refraining from a suspension of punishment and grant of probation in the case of a sentence of less than one year.” See also Strafgesetzbuch (StBG) (Criminal Code) § 47. “(1) A court may impose imprisonment for less than six months only when special circumstances exist, either in the act or the personality of the perpetrator, which make the imposition of imprisonment indispensable to exert influence on the perpetrator or to defend the legal order.” A translation to English from the German language of Section 47 is found online at: http://www.iuscomp.org/gla/statutes/StGB.htm#47 (last visited February 1, 2009).Google Scholar

101 Loewenstein, Karl, Reconstruction of the Administration of Justice in American-Occupied Germany, 61 Harv. L. Rev. 419, 432 (1947). Loewenstein writes, “[t]he German judge worships the written law and slavishly follows its letter. He is unaffected by intellectual doubts as to the intrinsic justice of the legal rule he has to apply, provided it is enacted by the authority of the state, and he does not question whether the authority is legitimate or not.”Google Scholar

102 See discussion infra Part F III.Google Scholar

103 This occurred on at least two occasions. The first occasion concerned the immigration of Jewish citizens from the Soviet Union. See infra note 140 for more details. The second time occurred in 1998 when the city authorities in an austerity measure closed the Metropol Theater. In an act of protest, Warnstädt wrote an obituary notice for the theater, which was published on the theater advertisement pages of Der Tagespiegel. Warnstädt, supra note 5, at 44–45.Google Scholar

104 Warnstädt, supra note 4, at 12, 25, 38, 44, 61, 71, 73, 79, 90, 93, 128, 142, 149, 151, 155, 161, 169, 172, 174, 191, 194, 201, 210, 218. In the case on page 93, there are two defendants. While both are sentenced to prison, the prison sentence of the second defendant is commuted to parole.Google Scholar

105 Dubber, Markus Dirk, Theories of Crime and Punishment in German Criminal Law, 53 Am. J. Comp. L. 679, 706 (2005). Dubber states, “The primary sanction in German criminal law is not imprisonment, but the fine.CrossRefGoogle Scholar

106 Warnstädt, supra note 4, at 22, 29, 31, 36, 41, 49, 52, 54, 56, 64, 76, 86, 93, 97, 101, 104, 112, 122, 137, 144, 153, 158, 167, 174, 177, 187, 189, 205, 212. On page 93 the sentence against one of the defendants, Kuchenbecker, is suspended in favor of probation.Google Scholar

107 See Dubber, supra note 105, at 699–703.Google Scholar

108 Professor Dr. Franz Streng, Sentencing in Germany – Basic Questions and New Developments, 8 German law journal 153 (2007) available at: http://www.germanlawjournal.com/article.php?id=801. Streng writes, “One of the principal aims of sentencing is therefore the rehabilitation of the offender.”Google Scholar

109 Warnstädt, supra note 5, at 39. “Although it should be quite clear, I want to state explicitly, that the trial serves in the first place [the purpose] of education. The accused should learn in the proceedings that his conduct will not be tolerated and is not worthwhile.”Google Scholar

110 Warnstädt, supra note 4, at 81. “It is not strict punishments that stop crime but rather the immediate prosecution of criminal acts.” See also Id. at 103. In case 35, Warnstädt mentions that the release of the defendant immediately after arrest was the “birth defect” of the case and a subsequent incarceration of the defendant for one year and six months, which was demanded by the prosecutor, would not cure this defect.Google Scholar

111 See discussion infra notes 112, 116, 117, 118.Google Scholar

112 James Q. Whitman, Harsh Justice, Criminal Punishment and the Widening Divide between America and Europe 57 (2003). Whitman writes, “[i]ndeed, we have now reached the point where American convicts…serve sentences roughly five to ten times as long as similarly situated French ones; and almost certainly even longer by comparison with German convicts [footnote omitted] [italics in original].” See also Nestler, supra note 99, at 110. See also Eva S. Nilsen, Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, 41 U.C. Davis L. Rev. 111, 113, 161 (2007). Nilsen writes, “[d]uring the last quarter century, American punishment has become degrading, indecent, and undeservedly harsher despite a Constitution designed to protect people from infliction of excessive punishment [footnote omitted].” Then later in the article it reads, “[i]n Germany, where human dignity is enshrined as the first principle of its constitution, imprisonment is a last resort. Prison sentences, when imposed, are short. Prison administrators are expected to govern under a principle of normalcy, which means that prison life should, as much as possible, approximate life on the outside.”Google Scholar

113 Warnstädt, supra note 4, at 36–37. The court considered a number of factors in determining its sentence including the fact that the accused had never been convicted of a crime previously and this action was completely out of character. Also, the defendant was required to pay back the amount of money he stole in monthly payments, to the best of his ability. This civil judgment will follow him a very long time. Interview with Judge Warnstädt in Berlin, Germany (August 9, 2004).Google Scholar

114 Id. at 128–129.Google Scholar

115 Id. at 157.Google Scholar

116 Email from Roger H. Stefin, Assistant United States Attorney, sent to Spencer Gaines and Judge Jeffrey R. Levenson answering a question posed by Stephen Levitt concerning the sentence that would be imposed on a postal worker, without a prior criminal record, who stole a bag of money containing three hundred thousand dollars. Gaines forwarded the email answer to Stephen Ross Levitt. (April 2, 2007, 15:38:24 EDT). Stefin writes that “[u]nder US sentencing guidelines, specifically sections 2B1.1 and 3B1.3, the defendant would be facing about 24–30 months incarceration if he pled guilty and around 33–41 mo[nth]s if convicted after trial. This would be followed by a term of supervised release of 2–3 years.”Google Scholar

117 Compare the sentence of fourteen months for the drug dealer in Germany, who resisted arrest and pulled out a knife on a police officer, with the sentence of thirty years imposed upon Bryan R. Bailey in Delaware. Bailey was convicted for selling 3.04 grams of cocaine to an undercover policeman. Superior Court Judge James T. Vaughn Jr. sentenced Bailey to such a long sentence because the defendant had a prior conviction. At 18 years of age, Bailey had been convicted of selling $10 worth of cocaine. To be fair, it must be noted that, “Superior Court Judge James T. Vaughn Jr., who sentenced Bailey, was not convinced a 30-year term was in society's best interest. But the law [creating minimum mandatory sentences] gave him no choice.” See J.L. Miller, Mandatory drug sentence debate renewed in The News Journal, (Wilmington, DE) at A1-A2 (March 5, 2007).Google Scholar

118 Stealing cars is not uniformly punished with long prison sentences in the United States. See, Sam Skoknik, Car Thieves Setting Records, Seattle Post-Intelligencer (WA) Edition at A1 (August 11, 2005). “In fact, under current state sentencing laws, adult car thieves can expect, at worst, to spend 60 days in jail after their first offense.” See United States of America v. Terrance Ross Willaman, 2006 U.S. App. LEXIS 3993, 437 F. 3d 354 (2006). The appellate court upheld Willaman's conviction for possession of a machine gun and punishment to “a custodial term of 27 months to be followed by a three-year period of supervised release.”Google Scholar

119 Strafgesetzbuch (StGB) (Penal Code) § 185 states, “[i]nsult shall be punished with imprisonment for not more than one year or a fine and, if the insult is committed by means of violence, with imprisonment for not more than two years or a fine.” http://www.iuscomp.org/gla/statutes/StGB.htm#185 (last visited February 6, 2009).Google Scholar

120 It might help the reader to know that Judge Warnstädt does not own a car and he relies upon public transportation, walking, and his bicycle to get around Berlin.Google Scholar

121 Warnstädt, supra note 4, at 220.Google Scholar

122 Id. at 220.Google Scholar

123 Id. at 221.Google Scholar

124 A citizen of France, like a citizen of Germany, is a citizen of the European Union.Google Scholar

125 Warnstädt, supra note 4, at 115.Google Scholar

126 Interview with Judge Rüdiger Warnstädt in Berlin, Germany (August 9, 2004).Google Scholar

127 Interview with Dr. Ulrich Thölke, an attorney (currently a partner at Salans) in Berlin, Germany (July 16, 2006). The American commentator, James Q. Whitman, writes: “‘Respect’ matters over the whole landscape of law and society in Germany and France.” James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 Yale L.J. 1279, 1282 (2002).Google Scholar

128 Warnstädt, supra note 4, at 47.Google Scholar

129 Id. at 47.Google Scholar

130 Id. at 48. See infra Appendix-Translated Decisions for a complete translation of this case.Google Scholar

131 Id. at 108.Google Scholar

132 Id. at 109.Google Scholar

133 Id. at 82.Google Scholar

134 Id. at 84.Google Scholar

135 Id. at 194. In regard to recent changes to both the Immigration Act and the Nationality Act, see infra note 155.Google Scholar

136 Id. at 81.Google Scholar

137 Id. at 103.Google Scholar

138 Id. at 103.Google Scholar

139 “There were Dutch builders and farmers and engineers, Jewish businessmen and bankers and thinkers, French Huguenots, other Protestant refugees from Poland, Italy and southern German states, soldiers from Switzerland and Sweden, Jacobite rebels from Scotland, and finally, poor immigrants from all over Eastern Europe.” Anthony Read & David Fisher, The Fall of Berlin 18 (1992).Google Scholar

140 According to Dr. Bendt, it was may have been the Orangeois (Protestants expelled from the principality of Orange) and not the original Huguenots who had difficulties with Mulberry trees and establishing the silk industry in Moabit. See Bendt, supra note 41.Google Scholar

141 The Moabit Hospital located not more than a few blocks away from the Moabit Justice Complex was a place where many Jewish doctors practiced and held leading positions during the Weimar Republic. See Nicht Mißhandeln, (Pross, Christian & Winau, Rolf eds. 1984.) In the district of Tiergarten in 1933 there were 5,658 Jews. Stroschen, Späth & Klein, supra note 57, at 65.Google Scholar

142 Stammer, Otto, The Berlin Situation as a Socio-political Problem, in Berlin-Pivot of German Destiny 110 (Charles B. Robson trans. & ed., 1960). Stammer states, “Between 1945 and 1950, there was an influx of 537,000 people.” He mentions that the number of “refugees” and “expellees” in the population “from areas beyond the Oder-Neisse” is “not less than 7.2 per cent.”Google Scholar

143 The webpage of the city district of Mitte states that of the 69,122 inhabitants living in Moabit today, at least 19,439 or 28.12 % are not of German heritage. See http://www.berlin.de/bamitte/bezirk/ortsteile/moabit.html (last visited January 31, 2009).Google Scholar

144 See supra discussion in Part C. See also supra text of note 41.Google Scholar

145 Warnstädt, supra note 4, at 27.Google Scholar

146 Id. at 177–179.Google Scholar

147 Id. at 64.Google Scholar

148 Id. at 64–66.Google Scholar

149 Id. at 187–188.Google Scholar

150 See Statistisches Landesamt Berlin, Die Kleine Berlin-Statistik 2006 4 (2006), http://www.statistik-berlin.de/kbst/kbst-2006_d.pdf (last visited February 2, 2009).Google Scholar

151 Küpper, Mechthild, Viele Fälle für “rheinische Lösungen”, Frankfurter Allegemeine Zeitung, December 24, 2003, at 3. Küpper writes that according to estimates done by the Catholic Church there may be as many as one million persons in Germany without a legally valid residency permit. In Berlin alone, this number may be two hundred to three hundred thousand persons.Google Scholar

152 See Cohen, Roger, Former Soviet Jews find uneasy peace in Germany, New York Times, August 6, 2000 at 1, 6. This article states that the Central Council of German Jews has more than eighty-five thousand members, up from twenty-nine thousand in 1990. In Berlin there are now twelve thousand Jews. On its website, the Central Council of German Jews states that there are currently (i.e. 2008) more than one-hundred thousand Jews in Germany. http://www.zentralratdjuden.de/de/topic/21.html. For a map showing the 107 communities where Jews live see http://www.zentralratdjuden.de/de/topic/5.html (last visited January 31, 2009).Google Scholar

153 The Federal Statistics Office reports that for 2006 unemployment in the five new states and Berlin averaged between 15.5 and 19.5 per cent monthly. See http://www.destatis.de/indicators/d/arb230ad.htm (last visited March 31, 2007). Malcolm MacLaren writes, “With nearly 4 million Germans unemployed, the general public is unclear as to why foreign job-seekers are automatically better than domestic.” Lastly, as nearly one-third of Germany's prison inmates are foreigners, there is in many minds a direct link between immigrants and crime. In short, Germans describe themselves as “afraid - for their jobs, their homes, their security, their very identity.” Malcolm MacLaren, Framing the Debate over the German Immigration Bill: Toward Reasoned Policymaking, 2 German Law Journal 16 (2001), available at: http://www.germanlawjournal.com:80/print.php?id=102.Google Scholar

154 For a poignant example of such an act of violence see infra the second case translation found in the Appendix concerning a violent attack on two students from Cameroon. In Warnstädt's book of eighty cases, there are four other cases that concern violent attacks on foreigners. A bus driver is sentenced for failing to assist or protect an Indian passenger who was threatened by a group of young men intent on assaulting him. Warnstädt, supra note 4, at 49. A S-Bahn (suburban train) driver of German origin was punched because the defendants thought he looked Russian or Jewish. Id. at 76. An altercation on the subway leads to the defendant hitting a Turkish victim with a hammer. Id. at 158. A violent altercation in the S-Bahn occurs between three Germans, two men and a woman, and three foreigners, one from Portugal, one from Croatia, and one named “Kusch” born in Berlin but possibly of Southeast European extraction. Id. at 212.Google Scholar

155 Id. at 194. See also Warnstädt, supra note 5, at 45–46. In September of 1980, the Soviet Union permitted a number of its Jewish citizens to emigrate to Israel. Some wished to stay in Europe and attempted to settle in Berlin. Shockingly, the Minister of Interior of West Berlin issued an order forbidding this. Warnstädt was outraged. He wrote a letter that a number of the newspapers published: “For years, sacred words were spoken, because it concerned dead Jews. Now, when live ones come, everything appears different. … Berlin became great through the Jewish spirit. Since their annihilation we have the current-day provinciality.” Recently there have been some significant changes to Germany's laws concerning both citizenship and immigration. For a good discussion of these new rules, see Helen Elizabeth Hartnell, Belonging: Citizenship and Migration in the European Union and in Germany, 24 Berkeley J. Int'l L. 330 (2006). An updated copy of the Nationality Act translated into English can be found at the following web address: http://www.bmi.bund.de/cln_028/nn_122688/Internet/Content/Common/Anlagen/Gesetze/Gesetze__Sprachen/Staatsangehoerigkeitsgesetz___englisch,templateld=raw,property=publicationFile.pdf/Staatsangehoerigkeitsgesetz_englisch.pdf (last visited on January 31, 2009).Google Scholar

156 Warnstädt, supra note 5, at 19–20. Warnstädt relates a discussion he had with a smart young Referendarin. She said, “The deadly enemy of independence is conformity, and conformity paves the path of jurists. The longer the path is, the longer lasts the conformity, and the person who has conformed for a long time, will not find his way back to independence.” However, she mentions that the Local Court judge has just a short path back and could be able to accomplish this.Google Scholar

157 Telephone Interview with Judge Warnstädt (January 23, 2007).Google Scholar

158 See Warnstädt, supra note 5, at 18–20. This theme of the relationship between conformity and promotion is discussed in Warnstädt's text as well.Google Scholar

159 At first glance, I thought that this comment seemed too particular to Germany and too influenced by Warnstädt's training in the Civilian legal tradition. However, upon reflection, when one considers this comment in terms of “small” cases, it is surprisingly accurate and applicable to both sides of the Atlantic. First, in the U.S. many misdemeanor trials are heard by a judge sitting alone. Second, while the U.S. often has a system of judge and jury, in Germany an Amtsgericht judge may be assisted in his or her decision by two lay judges. These two lay judges vote on the determination of guilt and sentence and may even outvote the presiding judge. See infra note 160.Google Scholar

160 Interview with Rüdiger Warnstädt in Berlin, Germany (December 9, 2003). See also Grundgesetz (GG) (Basic Law) Art. 97, “Judges shall be independent and subject only to the law.” One of my former students, Jack Marino, is now an administrative law judge at the Pennsylvania Labor Relations Board. He writes me, after reading a draft of this article, that “While in criminal cases, the adversarial system operates very differently than the investigatory system…in administrative hearings there are some similarities. …[I] sometimes ask the witnesses questions, [I am] responsible for fact finding. … [and I] write a decision for each case that comes before the board.” Email from Administrative Law Judge Jack Marino, Pennsylvania Labor Relations Board to Stephen Levitt, (November 7, 2007, 17:36:10 EST). Brenda Cox-Graham says after reading the article: “On the bench, he was a teacher; he showed the people what the face of justice looked like.” Telephone Interview with Brenda Cox-Graham, retired attorney in Ancaster, Canada (February 10, 2009).Google Scholar

161 The standard definition of “Rechtstaat” is “a state governed by the rule of law.” Dictionary of Legal and Commercial Terms 612 (2d ed. C.H. Beck'sche Verlagsbuchhandlung, Munich, 1985) (Part II, German-English). However, this may not be a complete enough definition. Craig T. Smith writes (footnotes omitted): “A Rechtstaat is thus a state bound in its every activity by law, a state whose law and its guardians protect the people rather than abandon them to the caprice of rules, as the Nazi justice system abandoned Germans to Hitler's grand designs. As such, it is both one of the Federal Republic's primary tools of self-definition – the constitutional requirement that the Federal Republic be such a state is a “fundamental structural principle” – and one of the key terms of German unification.” Craig T. Smith, Imperfect Justice: An East-West Diary, 11 Emory Int'l Rev. 771, 783–784 (1997) (book review).Google Scholar

162 GG Art. 1(1), “[h]uman dignity shall be inviolable.” Judge Warnstädt strongly upholds and affirms human dignity by treating each defendant in his courtroom with the greatest care and concern.Google Scholar

163 Judge Warnstädt has just completed writing a third book entitled Ortstermine that is available since March 2007. See Rüdiger Warnstädt, Ortstermine (2007). More information on this latest text is found at: http://www.ruedigerwarnstaedt.de/buchindex3.html (last visited January 31, 2009).Google Scholar

164 Warnstädt, supra note 4, at 29–30, 47–48, 71–72. Translation by Stephen Ross Levitt, revised by Dr. Peter Teupe, and Rhodes Barrett, sworn translator to the Berlin judiciary. All rights in German and in English remain with Judge Warnstädt and Das Neue Berlin Verlagsgesellschaft mbH, Berlin, Germany. The reader should note that the case found in Warnstädt's text on pages 71 and 72 is presented second, and the case on pages 47 and 48 is presented last.Google Scholar

165 According to German law, the name of the defendant(s) and the file number cannot be published. However, Judge Warnstädt agreed with my suggestion to provide the reader with a title for each case related to its subject matter. As well, the decision number refers to the order that this judgment is found in Warnstädt's text of eighty judgments. Email from Judge Rüdiger Warnstädt to Stephen Ross Levitt. (March 2, 2009, 5:39 EST).Google Scholar

166 Tiergarten is a district in Berlin.Google Scholar

167 A Plattenbau is a “panel construction building.” Some background knowledge is necessary here to give this case context. In the centrally planned German Democratic Republic, the housing authorities built many pre-fabricated apartment buildings, mostly in vast housing estates. This technique cut down cost and saved time in construction. Today, in a unified Germany, these buildings are considered to be of inferior quality and some of the housing estates have become notoriously deprived areas. After unification in 1990, many people moved away from these housing estates. Those persons, who remain now, are often those who do not have the financial means to go elsewhere.Google Scholar

168 In German, this word is tremendously insulting.Google Scholar

169 Dr. Uwe Frommhold comments that Warnstädt likely wrote this paragraph in this manner so that the mother of the accused could not be prosecuted for false statements under oath according to § 153 of the German Criminal Code. Email from Judge Dr. Uwe Frommhold to Stephen Levitt. (April 9, 2007, 15:27 EST).Google Scholar

170 Fines in Germany are set in Tagessatzsystem (daily units). The minimum fine is 5 daily units the maximum 360 daily units unless there are other legal provisions. The amount of the daily unit (day rate/day-fine) is set by the court taking into account the offender's personal and financial situation. It is normally based on the net income that an offender could earn in a day. See Gary M. Friedman, Comment, The West German Day-Fine System: A Possibility for the United States?, 50 U. Chi. L. Rev. 281, 287–289 (1983).Google Scholar

171 § 21 of the StPO concerns diminished capacity, § 223 concerns causing bodily harm, and § 224 of the StPO concerns causing grievous bodily harm.Google Scholar

172 Warnstädt, supra note 4, at 73–75. One reads in Recht So that although Judge Warnstädt had sentenced this defendant on July 5, 1999 to six months in prison, the Regional Court in Berlin commuted the sentence on October 29, 1999 to parole. Therefore, the defendant actually served a little less than four months of the six-month sentence.Google Scholar

173 In the original text in German, Judge Warnstädt begins the discussion about temporary release, gets sidetracked, and then returns to this theme at a later point in the sentence. This verbal style has been kept in the translation.Google Scholar

174 Here “state” refers to the State government of Berlin, one of the sixteen Länder (states) in the Federal Republic of GermanyGoogle Scholar

175 The reader should ask himself why the Authority did not give him the permit.Google Scholar