What does sent to court mean?

theme - truth

The case

On the evening of October 28, 2008, the 87-year-old Lieselotte Kortüm from Rottach-Egern in Upper Bavaria was found dead in her bathtub. While examining the corpse, the coroner discovered two bruises on the head. The criminal police conclude from this that Ms. Kortüm was violently killed and not, as initially assumed, fell into the tub and drowned in it. The caretaker of the residential complex, Manfred Genditzki, is suspected. He denies the crime, but is found guilty and sentenced to life imprisonment.

Genditzki, who looked after Ms. Kortüm in addition to his job as caretaker, picked her up at noon on October 28th from the hospital, where she had been treated for diarrhea, and took her home. The court ruling says that afterwards he wanted to visit his own mother in the hospital. Therefore, Ms. Kortüm became jealous and started an argument. Genditzki then hit or pushed her and injured her so much that he was afraid of being reported. He then drowned her in the tub to simulate a domestic accident.

The Munich lawyer Regina Rick calls this sequence of events “highly unlikely”. In June 2019, she applied for a retrial: she wants to be renegotiated again and to be able to provide new evidence of Genditzki's innocence. There is also a petition calling for a retrial. The more than a thousand people who signed it are, like Rick, convinced: This murder never happened.

What is the truth?

In his book “The Truth in Front of the Court”, defense attorney Klaus Volk writes: “I would never swear that I would have learned the whole truth in even one of my cases. But I want to insist that it was mostly just. ”So truth and justice are not directly related to one another. The legal scholar and philosopher Frauke Rostalski from the University of Cologne also says: “The truth is not absolutely necessary for the establishment of justice.” A judgment would be fair if we as a society could say: “On this basis we can live with it, even if we should have made a mistake and it was actually different. "

In principle, the following applies: “In case of doubt, for the accused.” Genditzki's lawyer is of the opinion: In his case, doubts prevail. The judgment is "arbitrary" and "completely out of thin air". She believes the truth is very different.

But what definition of truth actually applies here? The Federal Constitutional Court says that the “material truth” is researched in criminal law, that is: the agreement with the facts and the reality. But Frauke Rostalski says it is unrealistic to try to find out this “material truth” in court. Rather, it is a matter of fathoming the "procedural truth": the knowledge that is possible if all the rules in the procedure are adhered to.

Evidence # 1: Certificates

Section 261 of the Code of Criminal Procedure states: "The court decides on the result of the taking of evidence according to its free conviction drawn from the epitome of the hearing." . from a psychologist or forensic doctor), certificates and inspection (e.g. photos or video recordings).

"Certificates are particularly reliable," says law professor Frauke Rostalski. Because they represent reality objectively. In this case, telephone logs show that on the day Ms. Kortüm died at 2:57 p.m., Genditzki made two brief attempts to contact her family doctor and called her nursing staff at 3:09 p.m. to inform them that she had been discharged from the hospital. And there is a receipt showing that Genditzki went shopping at 3:30 p.m. in the supermarket in a neighboring town.

This evidence is factual. However, they can be interpreted differently. The court says: Genditzki hit or pushed Ms. Kortüm on the head during an argument. She passed out or was light-headed, so he wanted to call her family doctor. But fearing she might charge him with assault, he hung up right away. Then he drowned the woman in the tub to fake an accident. Then he called the nursing staff and went shopping to get an alibi.

Those who doubt the verdict say: At 2:57 p.m. was Ms. Kortüm still alive, at 3:09 p.m. she was supposed to have been dead? Twelve minutes to drag a grown woman into the bathroom, lift her into the tub, and drown her? They think that is very unlikely.

Evidence # 2: Expert Opinion

In the 2010 trial against Genditzki, the forensic doctor Wolfgang Keil's opinion was particularly important. He found the bruises under Frau Kortüm's scalp. And with a self-made bathtub model, he simulated how she could have gotten into the position in which she was found. Keil's result: Without external influence, this is "highly unlikely".

Genditzki's lawyer Regina Rick has had new reports drawn up. One that, based on the water temperature, delimits the time of death - to a time long after Genditzki left the apartment. And a computer simulation that shows that it could well be that Ms. Kortüm slipped and then landed on the right side in the tub, with her left leg over the edge of the tub to the left. These reports were not yet possible at the time, says Rick, and technology has made great strides in recent years. It assumes that reality can be reconstructed more precisely today. But the public prosecutor's office, which has to decide on the application for reopening, does not want the new reports to apply. Which side is right must now be checked by the 1st criminal division of the Munich I Regional Court.

Evidence # 3: Witnesses

Witnesses are less reliable compared to certificates or reports, says Frauke Rostalski from the University of Cologne, "because there are often gaps in memory or perception restrictions." Even if witnesses tell the truth - as they are required to do in court - their testimony may not be true. In other words: one and the same reality can contain different truths, depending on who is talking about it.

In the trial of Genditzki, witnesses testified and medical records showed that Ms. Kortüm had fallen more frequently in the past. In her medical file, however, no more falls were documented in the months before her death. This is one of the reasons why the court ruled out an accident.

One question during the trial was why Ms. Kortüm should have stood by the tub filled with water at all. One witness stated that she never bathed. The defense said: She wanted to soak laundry that was dirty from her diarrhea. The court held this out of the question because "only the defendant claimed that Ms. Kortüm sometimes soaked laundry in the bathtub".

Regina Rick's application for readmission is based on a new witness in addition to the new reports. She used to know Ms. Kortüm very well and says she often soaked dirty laundry in the tub before putting it in the washing machine. That was her "quirk". This witness also says that Ms. Kortüm often suddenly fainted. Once she found her unconscious in the full bathtub. The public prosecutor's office does not consider the witness to be suitable because she had not seen Ms. Kortüm for a long time before her death.

The motif

An important question in order to fathom the truth in a criminal trial is that of the motive: Why should Manfred Genditzki have killed Lieselotte Kortüm? The public prosecutor initially said that Genditzki had embezzled money and that Ms. Kortüm had caught him, hence the argument and the murder. But the evidence showed that he did not embezzle any money. So the public prosecutor's office switched to the new motif: Mrs. Kortüms jealousy of Genditzki's mother, hence the argument and the murder. In May 2010, Genditzki was convicted, but the Federal Court of Justice overturned the judgment because the motive could not be changed in the middle of the trial. So “for procedural reasons” - because the “procedural truth” can only be fathomed if all the rules are adhered to. It was renegotiated, with the second motif as the basis. And Manfred Genditzki was convicted again.

The convict

Is Manfred Genditzki guilty or not? He says it wasn't him. But it is not up to him what ends up as “procedural truth” in the judgment. It wouldn't even be so if he confessed to the murder. The confession, writes Klaus Volk, is "far overestimated" in our society. Because actually it is just one proof among many. Unlike witnesses, defendants are not even required to tell the truth. You have the right to remain silent. You are even allowed to lie - although this is not explicitly permitted in criminal law, it is also not prohibited.

Just by the fact that some consider Manfred Genditzki innocent and the others not, one can see that there is one reality that Genditzki and Lieselotte Kortüm experienced. But there is no one truth about this reality.