Double Jeopardy

The Victorian opposition leader has announced that he would abolish the so-called "double jeopardy" rule. This is the rule that makes a verdict of “not guilty” final, and a bar to any further prosecution for the same offence.

Ted Baillieu announced the same thing before the 2006 election, so we are going over old ground – yet again.

This is part of the “tough on crime” race to the bottom which we see all too often before elections.

Determination of guilt or innocence is imperfect, depending as it does on human fallibility.

Criminal trials are prosecuted by the executive branch of government.

There is, generally speaking, a significant imbalance between the resources available to the State in prosecuting offences, and the resources available to individuals in defending them. Generally (but not always) the State has far greater resources.

Unless there are some limits to the criminal justice process, it can be used, as it has been used in otherwise civilized countries in the last 60 years, as an instrument of tyranny by the executive.

The principle that a verdict of acquittal is final is one of the most important safeguards circumscribing the prosecution process. The term “double jeopardy” is a misnomer. If the verdict of “not guilty” is no longer final, then a person may be tried again – and again – and again – and again.

They are not called “trials” for nothing. A criminal trial places immense strain on those involved – not just the accused, but witnesses and victims and others involved in the process. The whole future course of lives will often be at stake, and it is important that we can draw a line under this process and declare it over, so that controversies are not allowed to drag on and on.

Human rights are not abstract concepts which are to be given lip service but no teeth. They are our protection against tyranny. They are hard won in struggles that have extended over centuries. Take them away, and we place our whole way of life in jeopardy, because we open the way to abuse of power.

Trials of courage

Lawyer Josef Wirmer faces his judges

On 20th July 1944, Colonel Claus von Stauffenberg planted a bomb in the Wolf's Lair which narrowly failed to assassinate Hitler, and although the subsequent coup hung in the balance for hours, it eventually unravelled.

Hitler ordered show trials to humiliate the surviving conspirators. The defendants were tortured, and when they came before the court, all knew they faced certain execution within hours.

Despite this, their clear courage is still inspiring.

Judge Roland Freisler, specially chosen by Hitler, opened the proceedings with a statement which cast aside any pretence at judicial impartiality:

Today it is the task of the People’s Court of the German Reich to pass judgment on the most horrific charges ever brought in the history of the German people. Traitors have come amongst us. Led by the murderous scoundrel, Colonel Stauffenberg, a rabble of criminals, with the character of pigs, has, in the very hour of Germany’s need, tried to murder one of the greatest leaders in the history of the world.

To ensure humiliation, the Defendants were not permitted ties, belts, braces, or false teeth. The great Field Marshal von Witzleben, without his dentures, mumbled as he held up his trousers in court.

The prisoners were provided with legal representation, but they were not permitted to approach their lawyers. The worth of the assistance can be gauged from the following statement by Witzleben’s court-appointed counsel, Dr Weissmann, in his final address:

The court’s decision has, in effect, already been rendered when, in a miraculous act of deliverance, it protected the Führer for the sake of the German people. The deed of the accused stands, his guilt is manifest, and the perpetrator will go down with it.

Count Fritz-Dietlof von der Schulenburg gave a particularly stirring account of himself, despite Freisler’s almost apoplectic attempts to stop him: When asked whether he was ashamed of his actions, he answered: “I am proud that we sought to rid the world of one of the greatest murderers in history.”

Later he said: “We resolved to take this deed upon ourselves in order to save Germany from indescribable misery. I realise that I shall be hanged for this, but I do not regret what I did and only hope that someone else will succeed in luckier circumstances.”

Berlin lawyer, Dr Joseph Wirmer, had been banned from practice for years, but defended himself with great dexterity, always calmly accepting that he was about to hang. At one point he said: “When I hang, I will not know fear. But you …”

Freisler screamed at him: “Soon you will be roasting in hell!”

Dr Wirmer bowed curtly and gave the immortal retort “I’ll look forward to your own imminent arrival, your Honour.”

Claus von Stauffenberg’s cousin, Cäsar von Hofacker, could expect no mercy, but he was coldly determined when he addressed the court: “On November 9th 1923 Hitler tried to stage an insurrection when he conducted his ‘beer hall putsch’. I acted with as much right as Hitler on that occasion.”

Freisler angled for an abject apology: “And do you not regret your part in this evil conspiracy?”

“I regret that I was not chosen to carry out the assassination, because then it would not have failed. But I in no way regret that I attempted to save Germany from the destruction to which Hitler and his evil cohorts are leading us.”

“Do not dare to use this court in this way! I will not have …”

“Be quiet now, Herr Freisler, because today it’s my neck that’s on the block. In a year it will be yours!”

The trials were a propaganda disaster for the Nazis, and soon all publicity was stopped.

All of us face challenges in our lives, but few of us are called on to show such courage.