9 May 2018

Closing statement of the Gerlach defense: quite well done but disproved by their own client.

Today the Gerlach defense held its closing statement. And while this statement, too, remained unconvincing in the end and will not save Gerlach from his well-earned conviction, one can at least state, at least with regard to the statement by counsel Hachmeister, that this, finally, was an actual closing statement. Yes, Gerlach’s counsel attacked “political circles” using the trial for political issues, and yes, they brought ludicrous claims, e.g. that nobody had had to deal with right-wing terror prior to the 2000s. But they at least made an actual effort to convince the court and dealt in some detail with the evidence presented and considered by the prosecution.

Hachmeister began by lamenting the “pressure to penalize” bearing on the trial and referred to his client’s fear of being used as a “scapegoat” for the crimes of Böhnhardt and Mundlos given that these two could not be punished anymore. Now, one can easily call into question whether there was such pressure to a significant level with respect to Gerlach – the sentenced of five years proposed by the prosecution is hardly testament to an overly punitive approach.  Quite to the contrary, one may well say that Gerlach profited quite extensively from the less than eager investigations into persons surrounding the NSU’s core trio given that he, as an old friend and faithful comrade of the three persons, who moreover subjected himself to regular “system checks” until the year 2011, could well be suspected of having been a member, rather than just a supporter, of the NSU.

However, given the lack of objective elements of proofs concerning Gerlach’s relationship to Zschäpe, Böhnhardt and Mundlos, the defense could quite easily present him as someone who, based on a long friendship with there three, wished to support them in living “underground”, who also accepted that they might commit crimes to finance their livelihoods, but who never considered that they might commit murders and bombing attacks. Accordingly, he was to be convicted of only one count of supporting a criminal, rather than a terrorist organization (the criminal nature being due to the robberies in fact committed). According to counsel Rokni-Yazdi, this called for a sentence of two years or less. He added that Gerlach had asked them not to argue for a concrete sentence as he was ready to accept any sentence handed down by the court. Rokni-Yazdi continued that is was possible that the court, if it handed down a sentence of two years or less, would opt not to hand down a suspended sentence, despite Gerlach’s fulfilling all the usual criteria for such suspension, based on topos of “defending the legal order” given the importance of the NSU complex as a whole. This was a clear invitation to the court to hand down a short sentence of twelve or eighteen months and “balance” this by opting for a custodial, rather than a suspended, sentence.

Now, the arguments brought above all by counsel Hachmeister as to why Gerlach had no inkling of the danger of murders and bombing attacks could have been quite convincing when considered in the abstract – Hachmeister proved quite able to capitalize on the failures and lacunae of the investigation. However, his client himself had already thrown a monkey wrench in his plans: in his statement to the police and in court, Gerlach had admitted that in 2001 or 2002, he had provided the NSU core trio with a pistol and had told them that they should not try to “save the world with five people”. Carsten Schultze’s defense counsel have correctly explained last week how this sentence, especially the number five, is to be understood – it describes the NSU as a logical extension of the “Comradeship Jena” and its discussions on the use of armed violence in furtherance of its political goals, with the three who had “gone underground” prepared to commit violent crimes while the two remaining “aboveground” supported them and functioned as their “legal arm” – these latter two being Gerlach and Wohlleben, André Kapke, the final core member of the “Comradeship”, having been out of the picture since he had been accused of having embezzled money meant to support the three. In other words, then, Gerlach himself has admitted that he had indeed foreseen the danger of violent crimes, but has claimed to have tried to get “them” to refrain from such crimes. He has never reported that his efforts of persuasion had been successful, but nonetheless, he provided the NSU core trio not only with the pistol, but also with several identity papers, relying on alleged promises that “no stupid shit” would happen with them. Accordingly, Gerlach himself has done all that needs to be done to prove that he acted with the requisite mens rea of supporting a terrorist organization, a fact which no closing statement in the world could have changed.

In passing, it should be noted that his defense attorneys, too, presented some arguments which were, to say the least, less than convincing. We would like to mention only one: both Hachmeister and Rokni-Yazdi referred to the ease with which Zschäpe, Mundlos and Böhnhardt had allegedly accepted Gerlach’s “exiting” the Nazi scene. This may well have been due to the fact that this “exit” was not all it was made out to be: when the police searched Gerlach’s computer and telephone in 2011, they found a large number of Nazi songs and pictures, an invitation to a “Hammerskin” music festival etc. As to pictures showing Gerlach participating at a minimum of three Nazi demos after his alleged “exit”, the court had not deemed it necessary to show these in court.

In summary, while parts of today’s closing statement were quite well-presented, none of it will be of much help to Gerlach.

The trial will continue on Tuesday, 15 May with the closing statement of the Wohlleben defense.