What I Am Reading: “Death in the Tiergarten: Murder and Criminal Justice in the Kaiser’s Berlin” by Benjamin Carter Hett

This was Benjamin Carter Hett’s first book, a Harvard University Press publication about the German legal system in the later Wilhelmine era, specifically between 1890 and the beginning of World War One, and focusing specifically on Berlin, where all the activity and dynamism was. This dynamism is the book’s thesis: that despite its authoritarian trappings, the criminal justice apparatus of Wilhelmine Berlin was subject to change as a result of the pressures of modernization.

This is contrary to the usual historiography. The primary theme of analysis of the Kaiser’s legal system is its relationship with the Third Reich. The first generation of writers on the Nazi legal system, those who lived through the Third Reich and made their accommodations with it, claimed that the legal system had served to curb the worst Nazi abuses when possible, and any of their failings had been because of “the law is the law” philosophical positivism; this history did not factor in the preceding eras. However, when the next generation came of age in the ‘60s, accounts began to view the Wilhelmine, the Weimar, and the Nazi-era legal systems as possessing an authoritarian continuity. Hett’s Crossing Hitler complicates this narrative for the Weimar judicial apparatus, and this book complicates it for the Wilhelmine.

The German legal system at the time was a mix of the accusatory (or adversarial) system familiar to Anglo-Saxon jurisprudence, and an inquisitorial system, which situates the judge as the investigator and prosecutor as well. In very broad terms, the legal system spent the time period in question moving closer to an adversarial system, while still imbuing judges with considerable discretion in how they conducted their proceedings. 

The system was ordered under the procedural code of 1879, which provided for public trials, jury or lay-judge trials in some cases, and judicial independence from the executive branch, among other liberal reforms. The first decade of operations had brought its own atmosphere, and by the ‘90s old-timers constantly complained about developments away from the tradition of a less-professionalized judiciary operating in with considerable deference to state authority (i.e. in favor of the prosecution) in the convivial atmosphere of whatever local buildings were to hand. Defense lawyers, not well-respected by the system or their colleagues, were often demagoguing politicians, when one could even find a professional defense lawyer and not just a better-respected civil lawyer who had been assigned a defense. 

The book focuses on Berlin, and criminal proceedings in Berlin focused on the large Moabit complex, where the functions were concentrated (unlike the civil trial apparatus, which was spread out throughout the city and suburbs). Depending on the crime, cases could be tried by a jury trial or a bench with lay judges, for less serious crimes, or by professional judges for many of the more serious crimes. Moabit became a synecdoche for the criminal justice system and led to a whole genre of Moabit novels and other pop cultural influences. It developed an extensive written and oral tradition both internally and within the larger culture. 

Hett compares acquittal statistics across the era in the Moabit chapter, and in aggregate about 15 to 25 percent of cases ended in acquittal, oscillating throughout different eras for different crimes. For example, in 1890, Bismarck’s laws heavily restricting Socialist activity were repealed, and the state attempted to substitute laws against libel of the Kaiser to maintain state control over political dissent. Thus, prosecution and acquittal for this crime both peaked in the 1890s and declined later. Other trend lines would be driven by state response to public pressure to address certain issues, often instigated at the behest of an activist Berlin media. This was not always an ideal process, as will be noted later. 

This decade also saw an evolving role for the defense apparatus. The prosecution, which under the 1879 reforms were now the organ responsible for bringing charges, was already institutionally empowered. They sat alongside the judges across from the defendants; they had various powers such as the ability to select the lead defendant in a trial, thus allowing a de facto selection of the judge because cases were assigned to judges alphabetically. Defense lawyers were less esteemed at the outset of the 1890s, but they set about improving their lot. They became more confrontational and less deferential; they became more professionalized and less folksy. Their role evolved within the system: traditionally, a defense attorney has served as their client’s “first judge;” their role was to bring out evidence exculpating the client and a prosecutor’s was to bring out evidence implicating them, both of them “neutral” in the process. If a defense attorney did not think their client was innocent, they were expected to say so, and present no other defense. This role evolved, through cases and resulting disciplinary hearings of boundary-pushing defense lawyers, into one more recognizable to modern Americans, where a defense attorney was to advocate for their client’s acquittal at all costs. They came to form a subculture, a class of professional defense attorneys, often flamboyantly promoting themselves through their trials and the media. Many of them were socialists, as this was one avenue for the socialist intelligentsia when they had earlier been banned from civil or political roles. They had all cut their teeth on libel of the Kaiser defenses. However, despite this clear political trend, defense attorneys were less involved in electoral politics than their progenitors, though they contributed to the debate instead as professional jurists. 

The rapidly growing city provided much of their clientele. This Berlin was, in the quote that provides a chapter title, the “Berlin of surrogates,” where everything, including the people, were cheap knockoffs, faceless and replaceable. The growing slums provided considerable anxiety for the state and reformers as incubators of crime and vice, and subjects for reform. Theories of an organized or formalized underworld were a construct useful to police operations looking to solidify their positions, useful to a state looking to extend its power, useful to criminologists looking for academic legitimacy, and useful to the bourgeoise to provide a counter-example to their own virtue. There was some evidence of an organized underworld class in some occasions, but not of a formalized structure necessarily. This class was porous, as many skirted the edges of legitimate and illegal professions.

One of the many cases the book discusses involving this class had wide-reaching legal repercussions. The Braun case, involving a prostitute and her pimp who had murdered an anachronistic night watchman, led to a sensational trial. The defense attorneys, Alfred Ballien and Richard Crossmann, beyond just calling for champagne to drink in the courtroom, advised their clients to decline to testify. This was a right that they had, but an attorney actually advising it was a sensational step toward a defense wanting to “win at any costs.” The resulting Honor Court trial of the two attorneys confirmed the verdict but let them off lightly for it; thus, the norms of a defense attorney as “first judge” of their client were maintained but stressed. The case also instigated public debates on the social causes of crime, another recurring topic in the era.

The criminal justice system was of frequent interest to the press, for reasons of both reasoned public-interest debate and of lurid sensationalism. Despite the authoritarian apparatus that the Wilhelmine state operated within, government officials were still sensitive to the tides of public opinion. As a result of their aristocratic reaction against rising capitalistic classes, the personnel of the justice system considered honor to be a paramount concern. Defense attorneys considered the maintenance of their honor to be important to their rising legitimacy, while judges, their importance diminishing correspondingly, had to band together in professionals organizations to assert their rights and privileges as an occupation. 

Defense attorneys were concerned with their image to maintain their livelihoods, and the Honor Court was kept busy in the tension between publicity and propriety. Erich Sello was one attorney who led to another improvement in the legitimacy of the defense position: after a prosecutor noted that Sello’s statements would not have affected his charges against the defendant (a note arising from a criticism of Sello’s own boundary-pushing tactics), Sello challenged him to a duel. His honor had been besmirched. The eventual outcome after an Honor Court hearing was that Sello was wrong to issue such a challenge, but only because his honor was not actually in question. This established a precedent of the presumed honorable status of defense attorneys, another step up the ladder of legitimacy. Another blow was struck by future revolutionary martyr Karl Liebknecht, who was convicted of a crime for criticizing the state; he was not professionally censured, however, because this crime and the resulting sentence implied an honorable status for the criminal, as opposed to a sentence like hard labor that would have implied his dishonor. By the end of the era in question, defense legitimacy had improved to the point that the state looked to appoint defenders to the bench for the first time. 

Around the turn of the century, the legal world concerned itself with the threats of perversion of justice from plutocrats above (after a dilatory trial of a rich child molester) and from popular opinion below. Legal rationalists were afraid that cases where the facts were clear, cases that could be slotted into a statutory, rationalist formula of punishment, were being decided differently because of individual circumstances; randomness was being introduced into the system to allos the punishment to fit the criminal, not just the crime. In other words, the system was going easy on people who had been disadvantaged by their social circumstances. This was the subject of much elite liberal handwringing.

Popular sentiment was not always the good thing that it might seem in this authoritarian system. There were occasions especially in rural areas where prosecutors found themselves compelled to try local Jews for murder because their neighbors were convinced of the old antisemitic Blood Libel myth. A less ominous example comes in the form of fraud charges against a spiritualist medium; the defense was allowed to introduce evidence of satisfied clients who had been able to communicate with their departed loved ones, and some critics found such litigation of the truthfulness of supernatural claims to be unseemly for the legal system. 

Academics and practitioners turned out a literature of judicial error. Some proposed reforms to insulate the systems of justice from human failings: from ignorant jurors and public pressure. They preferred the system’s declining positivism and formalism, and not the ascendant “free law” that led to random outcomes and judges used more than just the legal code to decide cases. Some scientific and rationalist reforms, such as advances and “advances” in forensics, were welcomed, though developments such as the measurement of the racial or physical characteristics of a proposed “criminal race” of inferior humans were as foreboding as the abovementioned provincial antisemitism. 

The formalists were in retreat in the final decade before the First World War. Conservatives could only fight a rearguard culture war against modernity and mass culture, such as they rhetorically juxtaposed the equally popular “Zeppelin or Voigt?” The former was the airship pioneer, the latter, Wilhelm, was a criminal who, after serving excessive time for minor crimes early in his life, was driven out of society by the punitive post-prison system that forbade him residence in various areas, and who eventually contrived a heist where he posed as an army captain to dragoon a unit of soldiers into robbing a bank for him. Voight caused a lot of official soul-searching regarding past punitiveness and the inequities of the system. 

The right saw this as being soft in crime. The courts were much more willing in this latter day to consider the social causes of crime, to hear from expert witnesses like psychologists, and to parse insanity more finely than the stark definition in the original criminal code, and condemn or sentence accordingly. Though probably overly conservative by out standards, the courts had increasingly come to embrace the idea that a lawbreaker could be morally innocent by the time the war erupted. These trends continued into the Weimar era, despite the acrimony and bitterness that took over the political culture.

Overall, Hett’s thesis is that the system was not inflexible, and from evolving norms to scientific progress to public pressure there were many influences on judicial opinions for an authoritarian system, though not always for the better. My summary here is a bit dry, but this book has a lot of fun courtroom details and, if you’re into that sort of thing, titillating crime coverage (and you are, admit it!). It’s been on my reading list for a long time as Hett’s first book and clearly the most in-depth on his specialty of German legal history. It sits in an odd spot of being both very readable and understandable to the legal layman, and being of a specialist topic that isn’t necessarily transferable. In other words, this isn’t something like “A History of The Kaiser’s Germany Through Ten Crimes.” It is about criminal history specifically, and not the culture as a whole (except where it touches upon criminal history). That, however, is exactly what I want to go to Benjamin Carter Hett for, books like this one, or Crossing Hitler, or Burning the Reichstag. I can get my generalist histories of Churchill, Hitler, Stalin, Roosevelt, and The Road To War anywhere, but deep dives on Weimar and Wilhelmine Germany are thin on the ground in English.