Leinen got to his feet. He went the few steps to the judges’ bench and picked up one of the grey volumes of legal commentaries on the table in front of the presiding judge. He held the book out to the expert witness. ‘Forgive my asking, is this the same Dreher? Dr Eduard Dreher, author of the most popular commentary on the criminal law? A commentary now to be found on the desks of almost every judge, prosecuting and defending counsel?’
‘Exactly,’ said the expert witness. ‘He was co-author of the “Dreher/Tröndle” commentary.’
Leinen let the book drop back on the judges’ table. Then he sat down again.
‘Was Dreher called to account?’
‘No. To this day it can’t be proved beyond all doubt that Dreher himself didn’t simply make a mistake. He died, highly esteemed, in 1996.’
‘Back to our case,’ said Leinen. ‘You said that in principle the shooting of partisans was justified, in certain carefully defined circumstances, by the international law in force at that time. How would the courts and the public prosecutor’s office have judged Hans Meyer in the 1960s? Would he have been a murderer or an accessory to murder?’
‘Of course that is a highly theoretical question. If I look at what Hans Meyer did beside comparable incidents of the same period… I think the courts would not have considered the shooting of those partisans cruel.’
‘Would it be different today?’ asked Leinen.
‘The Auschwitz trial of 1963 to 1965 in Frankfurt confronted large parts of the population with the full horror of the past for the first time. But it was not until the end of the 1970s that the mood really changed. That was when the American series Holocaust first went out on German television. Every Monday, between ten and fifteen million people watched and discussed the latest episode. Our lives and judgements are not the same now as they were in the 1950s and 1960s.’
‘And what would the outcome be now?’
‘The partisans were shot where they would fall into a pit on Meyer’s orders. They wore no blindfolds. They saw the dead on whom they fell. They had to hear their comrades being shot before them. The journey to their place of execution lasted for hours, and all that time they knew that they were going to die. Shooting them where they would fall into the pit is reminiscent of the mass shootings in concentration camps… Yes, I think that the Federal Supreme Court would judge matters differently today: Meyer would be regarded as an accessory to murder.’
‘But if I have understood you correctly, even that would not have been any use.’
‘Yes, that’s so. Meyer’s actions were subject to the statute of limitations. Jurisprudence and the law would have protected him.’
‘Thank you, Dr Schwan.’
Leinen sat down again. He felt exhausted.
The presiding judge discharged the expert witness without requiring her to take the oath. Then she said, ‘We will adjourn for now. In view of the new evidence that has been given, the court will discuss how the schedule should continue. Please keep yourselves free for sessions on Mondays and Thursdays for the next few weeks. The main trial will resume in this courtroom next Thursday. Good day.’
The courtroom slowly emptied. Leinen remained sitting. Collini said nothing for a long time, and Leinen did not want to break his silence. After a while he came back to the present. ‘I’m not that good with words, Herr Leinen. I just wanted to say I don’t think we have won. At home in Italy we say the dead don’t want revenge, it’s only the living who want it. I sit in my cell all day, thinking about that.’
‘It’s a wise saying,’ said Leinen.
‘Yes, a wise saying,’ said the big man. He stood up and shook hands with Leinen.
Collini had to bend to get through the little door leading to the prison. The usher locked it after him.
Mattinger was waiting outside the courtroom door. He had a cigar in his mouth, and when he saw Leinen he smiled. ‘Well done, Leinen, it’s quite a while since I was defeated like that. Straight down the line. Congratulations.’
They went down the steps to the main entrance together.
‘Tell me, how did you know I was going to call the director of the archive as an expert witness?’ asked Mattinger.
‘You’re right that I did know. In Ludwigsburg Dr Schwan and I found that we saw eye to eye. She called me after you had been in touch with her. I was able to prepare.’
‘Excellent. That’s the way to win cases. You’re probably the most sought-after lawyer in the Federal Republic at this moment. But my dear Leinen, you’re wrong all the same.’ The old lawyer drew on his cigar and puffed smoke into the air. ‘Judges can’t decide according to what seems politically correct. If Meyer acted correctly by the standards of the time, we can’t blame him for it today.’
They went out through the main entrance.
‘I think you’re mistaken,’ said Leinen, after a while. ‘What Meyer did was always cruel, objectively speaking. The fact that judges of the 1950s and 1960s might have decided in his favour doesn’t alter that. And if they wouldn’t do so today, it just means that we’ve made progress.’
‘That’s exactly what I mean, Leinen. It’s the zeitgeist. I believe in the laws, and you believe in society. We’ll see who turns out to be right in the end.’ The old lawyer smiled. ‘Anyway, I’m off on holiday now. I don’t want to take any further part in this trial.’
Outside the door, Mattinger’s chauffeur was waiting by his car. ‘Oh, Leinen, did you know that Johanna Meyer fired Baumann, the company lawyer, yesterday? She was outraged when she heard that the idiot had tried to bribe you.’
Mattinger got into his car, the chauffeur closed the door. He lowered the window. ‘And if you still want to be a defence lawyer after this trial, Leinen, come and see me. I’d be very happy to take you into partnership.’
The car drove off. Leinen watched it go until it had disappeared in the traffic.
19
When Leinen woke up it was already light. The time was seven in the morning; the tenth day of the trial would begin in two hours’ time. He went into the kitchen in shorts and T-shirt, made coffee and lit a cigarette. He fetched the newspaper from the corridor, put on a coat and sat on the balcony with his coffee cup.
When he entered the courtroom at nearly nine, an officer told him that the trial would not resume until eleven. ‘By order of the presiding judge.’ Leinen shrugged his shoulders, put his robe and files down at his place and went into Weilers with only his briefcase. The wind was still chilly, but you could sit outside. A journalist came over to his table. He was phoning his editorial office, the resumption of the trial was delayed, he said, no one knew why, he suspected it was some new petition on the part of the defence. Leinen was glad that the man didn’t recognize him. He looked at the people going into the courthouse: defendants, witnesses, a class of schoolchildren with their teacher. A taxi driver was arguing with a policeman: could he or couldn’t he park outside the main entrance? Leinen ran his hand over the soft leather of the briefcase; it was stained, and torn in two places. His father had given it to him when he’d taken his examinations. Leinen’s grandfather had bought it in Paris after the end of the war; it was so expensive that his grandmother had been horrified. But in the end the briefcase had proved its worth. It had come to be almost a part of Grandfather. ‘A good briefcase gives you a touch of style,’ he always used to say.
Just before eleven Leinen went back into the courtroom. The accessory prosecution bench was empty. Leinen looked round at the glass cage behind him. ‘Where’s my client?’ he asked the officer on duty. The man in the grey-blue uniform shook his head. Leinen was about to ask him what that was supposed to mean when the presiding judge came into the courtroom.