Interim Report on the Oury Jalloh Trial

The first day of the Oury Jalloh trial the delegation and members of the public were met with an absurd level of security. Given that there were only fifty seats available for the public in the court, an estimate of a police-to-public ratio of almost 1:1 would not be over-exaggerated. Three police officers guarded the stairwell of each of the floors, another six or seven were present in the lobby, three or four were permanently deployed in the rear access to the court next to the armoured vehicles. Police dogs and handlers were regularly deployed in the lobby throughout the hearing. Additionally a team of "Justiz" security officers were charged with overseeing body searches and regulating entry and exit. Outside the court a whole infantry of police officers were awaiting the slightest sign of any trouble . On the first day a police camera was set up in a room above the entrance to monitor the street, another was mounted on a police van opposite the court on the other side of the road. This exercise in intimidation was at best unnecessary, at worst heavy-handed and antagonistic in itself.

On one occasion, as Ulrich M left the courtroom and waved to several of his uniformed colleagues guarding the rear entrance, it gave the impression that this was like a football team playing at home. In some way one couldn't help thinking that the excessive security and heavy police presence seemed to endorse the actions of the two defendants. It was clear that the police turnout was a reaction to their being put on trial as an organisation.

After the public and media interest of the first day had subsided it was a surprise to be confronted by the same number of police personnel on the second day of proceedings and subsequently throughout the week. Already on the second day I asked myself the question;"what are they afraid of?"

Maybe one could take heart in the notion that from the resources invested in manning the court, in some way the police acknowledged the gravity of the charges brought against them and the outrage that was bound to ensue.

The power relations inside the court were however markedly different. Throughout all four days of the proceedings the public gallery was full of supporters, the majority of whom were themselves refugees or asylum seekers. Others were largely local supporters from radical left associations who had been involved in running the campaign. Amnesty International and The International League of Human Rights also had observers present. This overwhelmingly critical contingent of the audience helped to provide a counterweight to the angry, authoritarian outbreaks of the judge, especially on the first day. Indeed it is important to note that the first person to mention the word "racism" aloud was a Black member of the audience who stood up and protested loudly when a transcript of a telephone conversation containing racist remarks was read out. He left the court and did not come back.

The vigil outside the court building coupled with media coverage of the delegation's involvement and the efforts of the "Initiative in Gedenken an Oury Jalloh" made for an uncomfortable mood in the courtroom both for the presiding judge, the defendants and their lawyers. However even before proceedings had begun it was clear that the court was hostile to an international delegation of observers as only two personal applications by delegates were accepted, both were German nationals who are well known in their own right as human rights activists. Thus the court's unwillingness to cooperate with the other delegates must be construed as an extension of the very attitudes and prejudices which would be witnessed so often in the following days inside the courtroom.

The Proceedings

A rather insensitive start saw the hearings begin without any recognition of Oury Jalloh's family who had travelled from Guinea and had been overwhelmed by press cameras and the public gaze. Not once did the judge acknowledge their loss or the emotional ordeal that was still to come throughout the trial. Shortly after the beginning of proceedings Oury Jalloh's mother wept aloud in a silent courtroom, comforted only by her son and Mouctah B a friend of Oury and proponent of the campaign.

There was a marked difference in the conduct of the presiding judge from the first day's sitting to the subsequent days. Contributions made by the family's lawyers on Tuesday were punctuated with choleric and reactionary outbursts from Judge Steinhoff. These seemed typically loaded in favour of the defence as they invariably came as objections to appeals and questions made by the familiy's lawyers. This exchange reached critical mass on two occasions the first was when the family's lawyers made an application to the bench that questions relevant to the case of Mario Bichtemann (who also died in the same cell as Oury Jalloh under the watch of Andreas Sch and was examined by the same doctor Andreas Bl) be permitted in the hearing. Judge Steinhoff and the defence tried at great length to rule out any questions on Bichtemann and at one time the judge was positively irate at the Ulrich von Klingräffs persistence in pursuing the validity and relevance of an examination of the events surrounding Mario Bichtemann's death. It was clear that the judge was keen to put down all attempts which would allow for the scope of the case to be widened to take in the highly relevant case which, it could be argued, set a precedent for Oury Jallohs death.

The second occasion on which the judge lost his composure was a reaction to the claim made by the prosecution lawyers and the lawyer representing witness Mahmadou B, Oury Jallohs flat mate that he was "manipulating the witness". The judge made several attempts to discredit the witness by implying that he did not want to give the court information about Oury Jalloh, not, as the witness says, that he was unable to give the requested information. Indeed this cross-examination was very aggressive and the judge's line of questioning wasted a valuable opportunity to find out more about Oury Jalloh as a person and to explore the wider social context in which he lived and thousands like him still do. Due to the judge's merciless pressuring of the witness one had the impression that he "clammed-up" and the prosecution lawyers were unable to get answers to their questions as a result.

In contrast, an attempt by prosecutor Regina Goetz to explore Sch's background with regards to his training and relevant competences was swiftly put down by the judge and not surprisingly gave the impression that a scrutiny of the victim's alleged dependency on alcohol and drugs was central to the proceedings whereas an examination of Sch's background was not. This selective questioning left the court wide open to accusations of bias.

However Wednesday brought a change in the mood of judge Steinhoff. Contrary to all expectations the court granted the prosecution questions on the Bichtemann case. After this the judge seemed resigned to the fact that the case would be long and complex and that the family lawyers had a whole raft of unanswered questions which could only be resolved by widening the scope of the trial to the Bichtemann precedent and complex social factors such as everyday attitudes and practices within the police force. It is to the credit of the family's lawyers that the proceedings will now examine these important "external" influences. Later in the week on cross-examining U Sch, who accompanied Ulrich M to the scene of Oury Jalloh's arrest, the defence made an objection to this witness being questioned at all (as the defence argued that he was at risk of implicating himself), judge Steinhoff continued to surprise when he overruled this objection by granting the witness a right to silence only in relation to questions about the bodily search of Oury Jalloh and otherwise allowed the witness to be questioned. As of Tuesday his authoritarian contempt for the "insubordination" of the family's lawyers was contained to a minimum. Ultimately the trial has been extended to twenty sittings which could arguably be seen as a significant concession.

Witnesses - bad cop, bad cop

Without entering into a technical discussion as to which of the witnesses were police officers and executors of the law and which were merely staff on the police payroll, I will risk a potentially contentious categorisation of Brigitte Schl, an admin worker at Dessau police station as a "civilian". Apart from the uniformed officers, to date the court has cross-examined Mahmadou B., Anette F., Karin R-S, Angelika B., Siegrind Z. and Brigitte Schl. - all of whom I will regard as "civilians"

With the exception of the two street cleaners who originally reported the alleged "harassment" to the police and whose statements conflicted both with each others and their own original statements, the testimonies given by the civilian witnesses have by far been the most direct, seemingly honest and generally credible. Maybe the fact that these witnesses are not implicated "by uniform" and effectively have no colleagues to look out for gives them a greater degree of spontaneity and relieves them from having to think twice about everything they say before the words leave their mouths. The frank and vivid descriptions of the events given by Anette F. and Brigitte Schl. emphasise a stark contrast between their "civilian" testimonies and the seemingly contrived, complicit and rehearsed accounts given by the police officers. This thinly veiled display of connivance was at times pitiful and provided the public and the court with the paradoxical spectacle of the so-called "upholders of the law" apparently covering for their colleagues and superiors by losing a few metres here and a couple of minutes there. Ultimately these clumsy, blundering and inept versions of the day's events make a conspiratorial murder plot virtually inconceivable as I am not convinced that several of these witnesses would have the astuteness to avoid making grave errors which would expose the guilty parties.

Apart from the "quality" of some of the witnesses, the other failings of the cross-examination of witnesses was the sequencing. At first glance it seems that the order of witnesses is an attempt at trying to chronologically reconstruct the truth - the phrase "in order of appearance" comes to mind. It is widely agreed that Beate H., Sch's colleague with whom he shared an office is the central witness upon whose testimony the case may well stand or fall. It seems illogical that if her testimony is so important that she should be heard so late in the trial.

The police and the lines of (ir)responsibility

After hearing the testimonies from Sch and M it became immediately clear that to view the escalation of the events of January 7, 2005 in their real context it would be necessary to explore attitudes and prejudices in everyday police practices. How could the nullity of an arrest made on very questionable legal grounds snowball into the horrific and painful death of Oury Jalloh and the violence which preceded it?

The death of Oury Jalloh did not take place in a vacuum, where certain actors were, or were not inclined to intervene, would ultimately result in tragedy.

The cross-examination of witnesses throughout the week produced numerous discrepancies between the testimonies of the respective witnesses and their individual statements taken on the day of, or shortly after Oury Jalloh's death. A whole catalogue of negligence, indifference, selective responsibility and contempt for human rights seemed to blight the deutsche Ordnung that is otherwise so punctilious and omnipresent when one just wants some information or, God forbid, help from the authorities. Sch told the court that although in his opinion he was "responsible for just about everything" he had in fact never received formal training for his post and that he had taught himself the necessary skills by "watching others." The same is true of training in fire safety, although he was responsible for training the other members of staff he maintains that he never received expert training himself and relied upon self-acquired knowledge for the purpose of training. In fact almost all of the police staff who regularly worked in the custody block could not affirm the location of the bitterly inadequate fire saftey equipment.

Hans-Jürgen B, a police witness who had served in the fire brigade for many years prior to becoming a detective said of the lack of fire-fighting equipment and fire safety and evacuation notices that "the police station should be closed down". Even his expert opinion and concern for the poor fire precautions never gave him cause to notify his superiors or anybody else that improvements were necessary, he said that wasn't his responsibility. This institutional blindness to matters outside an officer's remit was seen time and again throughout the trial. Whilst hearing from Udo S who conducted the body search together with Ulrich M the court heard of the absurd limits of responsibility which demarcate the duties of individual officers - Udo S was responsible for searching the upper body, Ulrich M the lower half. This officiousness sees Oury Jalloh's body as the locus of a conflict in which the officers involved are trying to divest themselves of any blame - a line is literally drawn across his body and the exact location of that line is enough to inculpate or exonorate the respective parties. Individual officer's indifference to what happens on the other side of these lines can only be described as a blinkered responsibility in which both moral and procedural duties are of little interest to police officers if they do not fall within their given job description.

"That rattling is really getting on my nerves": contempt and indifference amongst the police.

A general contempt for human rights and a disregard for the dignity of certain members of society both in police custody and in the public sphere became evident in the mindset of almost all of the police officers who were cross-examined. Sch attempted to relativise the protracted restraining of Oury Jalloh on the grounds that he was a) violent and b) that he needed time to establish the detainee's true identity as the photocopy found on Oury Jalloh during the search aroused automatic suspicion and doubt as to whether the photocopied picture matched the original. Sch told the court that he had twelve hours in which to perform such an identity check. Having been informed that the central police computer was not working correctly, Sch saw no urgency to pursue the matter further and evidently did not think to contact the local Ausländerbehörde as the most likely place to find records for Oury Jalloh in order to resolve the issue as quickly as possible. The question that has to be asked is; given that Oury Jalloh had once been deprived of his freedom by being locked in a secure cell and secondly his human rights by the legally questionable practice of being restrained at the hands and feet, did Sch view these twelve hours as a license to drag his heels on establishing the identity of his charge or did these twelve hours constitute an absolute maximum which, in a humane world, would never be made use of? The accused's account of his handling of the issue could not convince me of anything other than contempt for the dignity of the man downstairs chained to floor of cell number five. This question is central to Oury Jalloh's death, had Sch made every effort to speed up the identity check Oury Jalloh would not have been forced to endure the barbaric ordeal of detention and subsequently of course his horrific death. However, as Sch put it; "other things got in the way."

The court also heard of alleged comments made by Sch about the sounds coming from the intercom link to cell number five of the young man straining against the restraints. He instructed Bernd M and Jürgen S to check on Oury Jalloh because the rattling was "getting on his nerves".

Bernd M also gave further examples of this culture of contempt and indifference. M had obviously rehearsed his testimony together with Jürgen S to the point which, when discrepancies arose, the two almost risked perjuring themselves and under duress, one of these witness admitted to having conferred with other witnesses and the accused Ulrich M in the court building on that very same morning. When asked by Regina Goetz what happened after the fire brigade had left the scene, M replied "Nothing, we went back out on patrol." Goetz ‘s next challenge searched for the answer to the question that most of the back rows of the public gallery were asking themselves; "You didn't ask yourself if there might still be somebody chained-up in a cell down there? You didn't wonder if that person was still alive?"

This and numerous other examples illustrated a bureaucratic anaesthesia where rules and regulations sedate any feelings of compassion and render the subject numb to the unwritten moral obligations that the position of police officer bestows upon them.

Questions of legality - arrest and restraint

Udo S's testimony raised pivotal questions surrounding the legality of Oury Jalloh's arrest and the subsequent restraint techniques employed at the police station. Regarding the arrest the court heard from the original statement how Udo S had not formally and courteously introduced himself to Oury Jalloh at the scene of arrest and how he had not made any attempt to explain what he wanted from him and why. Upon approaching Oury Jalloh Udo S, in his own words, simply barked "Ausweis!" maintaining that a polite introduction wasn't necessary as "he would have recognised me as a police officer because of my uniform". For Udo S everything was seemingly routine - in his opinion an offence had been committed and that was adequate grounds for an arrest. However, when pressed by Ulrich von Klingräff as to the exact legal basis for arrest and the necessity of taking Oury Jalloh to the police station in order to verify his identity Udo S began struggling to find a legal clause that would justify the decision to arrest. Indeed when von Klingräff put it to him that detention for the purpose of an identity check would only be legal if an identifiable offence (which the lawyer, in his wisdom, could not establish) had been committed Udo S floundered helplessly. Embarrassment turned to desperation when the lawyer asked him why he had not considered other alternatives such as issuing a Platzverweis or even escorting Oury Jalloh home. The witness' bewilderment at such questions supports the theory that the way the engagement between the officer and the "suspect" was indeed a case of race politics at work.

Arguably the most contentious issue regarding police practice in this case is the question of restraint or indeed the incapacity of the officers to apply sound judgement in recognising the disproportionate nature of this type of treatment. As if the inhuman restraint techniques were not enough, cell checks were not as frequent as the regulations stipulated, there was no direct supervision neither inside the cell nor from the corridor of the custody area. The inherent risks of the physical restraint of a person who is drunk and who risks vomiting at any given moment are self-evident, cell checks were at times 45 minutes apart and the danger of choking very real. It should also be noted that Oury Jalloh would not have been able to independently make use of the toilet in the cell which could be the explanation for a pool of liquid on the cell floor which was sighted by one of the officers. Such disregard for a persons basic rights and personal safety can surely not be defensible.

Remorse : why me, why us?

At the initiation of proceedings Sch. made a disingenuous attempt to preempt the outrage that the transcript of his telephone exchange with Andres Bl would inevitably cause, by saying that it had been misconstrued i.e. it had no racist undertones. This was done with an apology to the court in which he expressed regret that he was not able to save Oury Jalloh's life. Listening with an open mind, there was nothing in the tone of voice or mannerisms that would give anyone grounds to disbelieve Sch. the expression of regret was delivered with ostensible sincerity. Only once the transcript had been read and the contemptuous utterances made throughout his testimony did the incredulity of the apology become clear, in turn betraying a remorse which was obviously very shallow.

Any feelings of sympathy with the police witnesses dissipated after Jürgen S gave his account of a conversation between himself and Sch. as he arrived back on the courtyard of the police station to find smoke billowing out of the basement and his colleagues covered in soot and coughing; "Oh no, not again, are we cursed? Why does this always happen to us?" This sentiment clearly demonstrates that of the remorse shown by any of the police officers for the loss of a person's life their feelings are not of those of regret, rather they express self-pity and annoyance that this event would cause them great difficulty both as individuals and as a public body. Such limited contrition was noted in almost every police witness, consistent with this self-absorption, Hans-Jürgen B's comment that the events of January 7, 2005 have never been come to terms with or reconciled by means of therapy (indeed none was offered) suggests a suppression of any guilt or ruefulness, not to mention any admission of wrongdoing.

Continuity

Whichever hypothetical version of events one subscribes to, on paper the Oury Jalloh case is almost reminiscent of a film script in its uniqueness. No other example from the UK or Germany parallels the absurd string of improbabilities which saw a young man burn to death on the very mattress he was lying on whilst in the care of the state. The death of a young African asylum seeker and a homeless man before him has left a vacuum to be filled with speculation, a vacuum where so little is credible yet everything is possible. But the uniqueness of Oury Jalloh's death is, arguably, the result of another vacuum - the absence of legal instruments which provide communities with mechanisms for holding statutory agencies to account. The discourse in the trial has so far centred upon regulations - fire regulations, regulations for the restraint of detainees, regulations for supervision of intoxicated prisoners, guidelines for arrest etc. etc. etc.

However all of these regulations are obviously institutional tools for "internal consumption" and, in this case, are only being referred to in the aftermath of a tragedy where blame must be apportioned or a defence constructed. The outcome of this trial has the potential to be a landmark case which could do for the treatment of racist crimes and discrimination in Germany what the Lawrence report did for legislation governing statutory agencies and community relations in the UK. Certainly instruments like the Race Relations Amendment Act of 2000 and other legal instruments which stem from the Lawrence enquiry give communities some degree of leverage when dealing with poor service provision or hostile practices in statutory bodies.

However cynical it may sound I remain unconvinced that a guilty verdict will lead to a humanist reappraisal by the police, other statutory agencies and society at large of the treatment of the thousands of Oury Jallohs and Mario Bichtemanns who still live with the day-to-day tyranny of perennial suspicion, "stop and search", and police brutality. The only means to instate meaningful change in the treatment of these social groups is to implement a transparent framework of accountability in which every police officer, housing officer, social landlord, council worker, teacher must fear for their job if this code is breached. In Oury Jalloh's case questions of accountability have come much too late and the challenge now is how can a single public legal instrument be developed, that doesn't collect dust on the shelves of high-ranking bureaucrats but becomes common property? With such a framework in place one would hope that future cases of such gross negligence and malpractice could be combated at a much earlier stage and with a broader influence to situate responsibility directly with individuals.