Prosecution is more cynical than we imagined

During her two hour long closing address, state prosecutor Friederike Dopke demanded long prison sentences for all the  

for the Prosecutor the "expert" age determination are more valid than the somali birth certificate or the letter of the mother confirming his age.

defendants today. For most of the adult defendants, she demanded 10 years, for one she demanded 7 years because of his 'good conduct' during the trial, and for one defendant she demanded 11 years. For the three juvenile defendants, she demanded 
four years, five years and five years and six months. 

We can't say that we are surprised about this. All the way through the trial, the prosecution has made it clear that they are not 
willing to believe anything the defendants say. The prosecution objected to hearing any defence witnesses and they objected to 
any application the defence made. They made absolutely no effort to investigate the circumstances that may have led the 
defendants to attack the Taipan. We had the impression all along that the closing address was written before the trial had 
started. 

What did surprise us, however is the cynicism displayed in the reasoning for the long sentences for the under-age defendants 
(one of whom produced a birth certificate showing that he was only 13 at the time of the alleged offence, but the Prosecution prefers to believe the German "Expert" in Age determination who decided that he is older than what his mother says)): only by being 
imprisoned in Germany for a along period of time could they receive some education! The situation in Somalia didn't allow for 
this. This statement, which also shows a staggering degree of racism, is particularly cynical because throughout their two year 
long imprisonment in Hamburg, the teenagers have received almost no German language lessons, despite an offer of free 
lessons from a teacher. This offer was declined by the prison management on the basis of equal opportunity: if the Somali 
inmates were to receive these language lessons, then all other inmates would also be entitled. With this in mind, it is easy to 
imagine how  the three might be denied entry to any courses the prison might offer - due to their lack of German language skills. 

trying to avoid getting  fotografed against your will

Report from Day 10

Day 10 – 12 January 2011

We here more from the second officer, from one of the accused and from another 'expert' from the forensic institute.

The second officer from the Ukraine is back giving evidence. He is asked about the guns and keeps referring to a photo the captain made which he says clearly shows a person with a grenade launcher. The judge shows him the only photo he has that matches the description – but it's from far away and no details are visible. Strange how the human mind interprets things. But he says that there were a lot more photos on the ship's computer. The judge asks if the officer had a copy of them and the answer is a maybe. So the judge orders the photos to be brought to court.

It turns out the officer has been interviewed four times already – first by the Dutch military, then by German police in Dubai, then by the Dubai authorities and finally again by German police in the Ukraine.

Report from Day 8

Report from Day 8 – 05 January 2011

“None of us who sit here know how old they are – they weren't present at their birth”.
Forensic Expert Witness Dr. Helmke, University Hospital Eppendorf (UKE), Hamburg.

Today, we hear again from the two expert witnesses, Dr. Helmke and Prof Furhmann, who already gave evidence on day 3 and day 5, as well as from Captain Eggers.

Age Determination

Disputes about the process of “Age Determination” have a history in Hamburg. The process has been used for decades to ascertain if refugees arriving in Germany are minors (people under the age of 18) or adults. This distinction is important from a legal perspective: minors are granted a number of protections that adults aren't. Minors have a right to attend school and cannot be deported as easily as adults (according to the Dublin II agreement, adult refugees can immediately be deported back to the country of their first entry into the EU). The state has an obligation to care for children, which it doesn't have for adults.

The process of 'age determination' is therefore, in reality, one of 'making people older'. 

Report from Day 5

Day 5 - 17 December 2010

The day stars with the judge observing that still no representative of the Youth Authority or the court aid for minors are present. According to German law, when minors are on trial, these have to be present in order to ensure correct proceedings. But since the personal details of the accused aren't being discussed yet, the judge decides to proceed. 

Then there is more debate about whether the press should be allowed to make drawings of the accused, and whether the accused can be identified from the drawings. The press wins, drawings are allowed.

Finally, the examination of Dr. Helmke from the Hamburg University Hospital (UKE) on determining a person's age continues. He states that the certainty for determining a person's age by examining the carpal bones is 95%. Depending on the method applied, he estimates that the youngest accused (who claims to be 13) is at least 14, or 19 plus or minus 4 years.

A lot of details follow about the growth of bones and the different ways of analysing them and why the  Dutch expert originally estimated a younger age. In cross examination it turns out that the statement of “95% certainty” has to be qualified somewhat. The number is based on a study from the late 1930s, done with North American children from a white middle class background between the age of 0 and 19. Nutrition or malnutrition, illnesses, traumatic experiences, ethnicity can all skew the results in either direction. 

Next up is Dr Fuhrmann again, also from the University Hospital, who already gave evidence on day 3. He talks of ways to determine someone's age by their teeth and the collar bone. The tooth method is focussed on the wisdom teeth. According to the decay of the wisdom teeth, he estimates the age to be 23. But socio-economic factors can influence the results.

During the last hour, one of the defendants repeatedly takes his headphones off and massages his ears. I'm thinking: he can't stand it any more. Then the youngest accused complains about headaches and it looks as if he's wiping tears from his face. Court takes a short break.

Fuhrmann is head of the quality control board in his department. Counsel Jung wants to know what quality control means – does it mean that everyone reaches the same results? Yes, when every medical expert starts with the same data, there shouldn't be any discrepancies. Jung quotes from a study that was presented at Fuhrmann's own conference two years ago, which found that the age development among Canadian First Nation people differed from any other ethnic group. Furhmann says he hasn't actually read the study and can't comment. Jung continues to present findings that show a wide range of estimates for the same person, ranging from 14 to 25. Again, Fuhrman doesn't know the details and can't comment.

Court closes. The cross examination of Dr Helmke will continue on 5th January.

Report from Day 4

Day 4 - 15 December 2010

Hardly anyone is there – only 4 members of the public and 4 press. Additionally 3 innocuous looking men are sitting there, more interested in observing the public than the trial.

An argument develops about whether the press should be allowed to make drawings in the court room (cameras have already been banned), because again, one newspaper published a drawing that clearly showed one defendant.

The judge continues with the objections to the expert witnesses. He takes a 15 minute recess to discuss his findings with the three jurors. When he comes back he spends an hour reading his 12 page decision not to grant the objections. It's impossible to transcribe all of this, but the reasons were mostly formal.

As I listen to all this I wonder what the interpreters are saying. I hope they are speaking nice stories into the headphones of the accused.

Counsel Jung asks the judge how it was possible to discuss the 12 page document with the jurors in just 17 minutes. The judge declares that is not going divulge where and when he discusses with the jurors.

The judge continues with the examination of another expert witness, Dr. Helmke from the University Hospital. He explains the procedures. “This patient didn't have an interpreter, and we didn't try to communicate in English or French with him”. He wants to quote from a dissertation, is asked by whom, he doesn't know. He says he read it on the internet. He talks a lot about the growth of bones in the hand and the difference in development between girls and boys.

Report from Day 3

Day 3 - 8 December 2010

One of the expert witnesses on the question of the age of the youngest accused, Dr Fuhrmann, is supposed to give evidence today. But first counsel Jung submits an objection to the witness for a number of reasons.

The prosecution has failed to notify the defence of the medical examination performed on their client. They have also failed to explain to the accused why he was dragged out of prison and into hospital and what the medical examination was about. The accused was not informed of his rights, no interpreter was involved. His medical history was not recorded. The accused was ordered by means of gestures to open his mouth, to get undressed, to lie down underneath the x-ray machine, while he had no idea about the purpose of the machine. The defence had no possibility to object to any of this.

The defence then reads from publications by the witness and his colleague, in which they write about the role of the 'Expert Witness in Court'. They write that the primary goal is not to establish the truth, but to fend off critical questions by the defence and never to allow any doubt about the expertise. Otherwise they would risk their status as experts. In other words: if they were to give evidence that ran contrary to the prosecution, they could forget about their next job. There is obviously a monetary interest involved and the accused becomes an object of that interest.

More questions are raised about the relevance of the findings, the lack of a reference population, etc.

Then the lawyer raises the question if the experts aren't guilty of intentionally injuring his client by subjecting him to an x-ray examination without any medical indication. Therefore it would be in the witness' own interest not to give evidence because of the risk of self-incrimination.

After some discussion, the judge decides to proceed with hearing the witness and decide about the objection afterwards.

But now another problem arises: the defendants complain that they haven't been able to understand due to the speed of the exchange. The translators haven't been able to keep up, because many of the words used don't exist in Somali and had to be circumscribed. And how would the counsel know what their clients think was said? The judge reminds everyone to talk slowly and suggest that the translators should re-translate the circumscribed terms into German to check if they are correct. No doubt we are witnessing great moments of the German justice system.

But now it's back to the witness. Dr. Fuhrmann explains that in his opinion the accused is at least 18 years of age. The judge wants to know why no interpreter was present. That wasn't necessary, says Fuhrmann, because he was able to indicate to the accused what he wanted him to do. There was no communications problem. Does he remember his publication? No, not precisely.

The examination of the witness isn't finished but court closes.