Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORYAppendix 7: The VerdictI. General ConsiderationsThe notions of the public at large is often very naïve as to how averdict and in particular the measure of punishment is arrived at duringa penal trial. Law and justice, so the widespread view, ought to be decisive,but even in “normal,” apolitical cases reality is considerably morecomplex.Frequently the so-called procedural economy plays an essential role,that is to say the inclination of overburdened prosecutors and judges toget rid of a case as fast as possible. This results in them being oftenwilling to make a “deal” with the defendant in complicated cases,whereby the prosecution drops parts of the indictment and/or the courtpromises a more lenient punishment, if the defendant confesses to thereduced charges and foregoes an effective defense. On the one hand,this way quite a few rogues get away “too cheaply,” just like, on theother hand, quite a few partly or completely innocent defendants insistingon their defense, hence facing a situation of all or nothing, arethreatened with a higher punishment than confessing rogues. It is thereforeat times advantageous even for innocent defendants, in particular incase of an ambivalent evidentiary situation, to wrongly plead guilty andto receive a more lenient punishment rather than to get a full “broadside,”viz. to forego the discount for confessing, rueful sinners.This practice of plea bargaining, which is foiling, even mocking lawand justice, has even been reprimanded by the German Federal SupremeCourt, as far as I know. But because it happens behind the scenes andsince all parties involved in a trial conspire with one another, hardlyanybody complains about this custom, so that possible decisions ofhigher courts have no effect whatsoever on the widespread occurrenceof plea bargaining.Another frequently overlooked factor decisively influencing verdictand punishment is the human factor. Even if two absolutely identicaldeeds committed by perpetrators with the same personality and biographicalbackground are dealt with by a court, the verdicts andmeasures of punishment can still be widely disparate, for instance becausethe case of the one defendant is dealt with by a kindhearted judge339