Double Jeopardy

Judgment in Berlin, by Herbert J. Stern, New York: Universe Books, 384 pp., $15.95

On the quiet morning of August 30, 1978, amidst the then-silent ghosts of Hitler's Germany, a small Polish airliner made an unscheduled stop at West Berlin's nearly deserted Tempelhof Airport. According to the riveting John Le Carré–like opening of Judgment in Berlin, by Judge Herbert J. Stern: "Hans Detlef Alexander Tiede, a resident of East Berlin, holding his arms raised with his fingers showing 'V' for victory, came through the hatch. He grinned at the Americans]…and threw his pistol to one of the colonels. 'Welcome to free Berlin,' said a colonel with a smile. A beautiful blonde woman, holding the hand of a twelve-year-old girl, stepped into the doorway. The other colonel roundly kissed her, as she and her daughter alighted from the plane. Eight of the other passengers immediately defected to the West. It was, obviously, another daring act of piracy by desperate East Berliners to win their freedom. But this one would be treated very differently from any other."

Just how differently this escape from communism would be treated—by supposedly free governments—is simply unimaginable until one reads Judgment in Berlin. The woman, Ingrid Ruske, and her young child would be held incommunicado for more than two months. When relentless interrogation would fail to produce a "confession," she would be tricked and coerced into making a statement against her interest. Although a prosecutor would be appointed hastily, she and Tiede would be denied counsel for months. The prosecutor would tell the judge not only that the "hijackers" had no right to a jury trial but also that they had no rights at all—except those that might be granted merely as a dispensation by the political and military authorities. In the months to come, those authorities would, more than once, tell the judge how to rule. And in the end, they would try to veto any decision not to their liking.

Were these the machinations of the Soviet Union, East Germany, or Poland, from which Tiede, Ruske, and her daughter had escaped? Was this an example of the practices of the Federal Republic of Germany or of West Berlin, whose continental legal systems are vastly different from our own?

No, indeed. Unbelievably, they were the policies and conduct of the US government, expressed and carried out publicly and without apology by representatives of the State Department, the Department of Justice, and the American military. Our government, in what had been the capital of Hitler's rights-less society, had decided that the three defectors had to be sacrificed to political considerations.

When the refugees stepped off the Polish airliner in the American sector of West Berlin, they walked into one of the most anomalous political jurisdictions in the free world. The complex legal-political status of West Berlin is not easy to explain (although Stern succeeds admirably). It is enough to know that in order to protect this free city deep in the heart of communist East Germany from the Soviets, and to preserve the rights of West Berliners and others who venture there, the post–World War II "occupation" by the United States, France, and Britain still exists. So although German civil institutions do function in West Berlin, in both a practical and symbolic sense they are subordinate to allied military commanders.

The West German constitution presents a further complication: It recognizes all East Germans as West German citizens, with the right to defect from communism. Yet at the time of the Tiede-Ruske escape, the Bonn government—as well as the United States—was a party to international conventions requiring all airplane hijackers to be either extradited or prosecuted.

Because the West German government wished to do neither, it passed the buck to the United States. Using the "occupied" status of West Berlin as the pretext, the West Germans prevailed on us to convene an American "occupation court" in the American sector—a court that would apply West German law.

But did the US government undertake the case in order to see that justice was done? Were the rights of the defendants to be fully protected in accordance with an American-style trial on the merits? Or did the State Department merely want a political forum in order to satisfy international treaties and foreign pressures? Was it out to get a quickie nonjury-style inquiry, a prompt conviction, a compromise sentence tough enough to appease the communists but not so tough as to enrage the West Germans?

In answering these questions, Judgment in Berlin chronologically traverses the nine months of events from the August 1978 hijacking to the case's conclusion in May 1979. In between, we come to know the refugees and the motives and events leading to their dramatic grab for freedom aboard a Polish airliner.

We learn how the US District Court for (the American Sector of West) Berlin was established by the State Department, how a "law and order" federal district judge from New Jersey—Stern—was chosen to preside, and how a US attorney for Berlin and a Justice Department trial prosecutor were selected. We are privy to the judge's appointment of eminent trial counsel, Judah Best and Bernard Hellring. We listen with the judge as he ponders the charges (hijacking, taking a hostage, depriving persons of their liberty, doing bodily harm to another, possessing an unlicensed firearm) and the possible defenses under West German law (justification and excuse, choice of evils).

We are incredulous as American prosecutors make inconceivable arguments: The US Constitution does not apply in the US District Court for Berlin; no one in the American sector of West Berlin—soldiers, dependents, government employees, Germans, or tourists (including Americans)—possesses any rights other than those granted by the Department of State; the judge is not an objective dispenser of justice but a mere government flunky.

And dimly we hear echoes of the same ideas from a Berlin of decades past. We realize, with the judge, that "somehow, beyond their comprehension, [the defendants] had inadvertently generated forces that were about to do battle over issues and principles that had nothing directly to do with them."

We watch as the judge tries to persuade the government to abandon its position. And when he fails, we applaud his ruling. We are fascinated at how a West Berlin jury is obtained and are appalled at how an American military witness for the prosecution bends the truth.

We choke with emotion as defendant Tiede rejects a deal that, at worst, would net him a few months in jail, in favor of a trial that could get him years—because he believed in his innocence and because he had just witnessed the unimaginable scene of an American judge standing up to his government by suppressing Ruske's unconstitutionally obtained statement. We are caught up in the dramatic testimony of the defecting passengers. We see defense counsel Best and Hellring fighting for their clients with passion and eloquence.

We hear about other successful escapes from behind the Wall—and about unsuccessful ones. We read, awestruck, the summations. Prosecutors deny the defendant's right to break free as he did. Hellring, tearing at our hearts and consciences, tells the West Berlin jurors that "there comes a time for those of us who are blessed to have a moment in our lives when we can strike for freedom, one small stroke which can be heard around the world. This is such a moment for me and it is such a moment for you."

We hear the charge: burden of proof, justification and excuse, choice of evils, freedom and communism, the Wall. We await the verdict, drained. And greet it with surprise.

We experience all this—and more—in Stern's beautifully written, clearly organized, and highly dramatic Judgment in Berlin. The book contains great irony, agonizing introspection, personal heroism and national pride, fiction-like drama and real-life consequences. Included are hard choices, clever tactics, cruel dilemmas, legal puzzles, political contradictions, blatant compromises, and cherished principles.

But Judgment in Berlin is still more. It is, in essence, the story of a moral stand. It is the story of how and why Stern said no to his own government's arrogant attempt to railroad two desperate and vulnerable people, refugees from beyond the Wall.

Somewhere in his book the author observes that a judge's sacred duty is to do justice. Judgment in Berlin is a shining and eloquent example of how Stern—alone in a distant land, armed only with his black robe, its moral authority, and the American Constitution—discharged that duty.

Henry Mark Holzer is associate dean of Brooklyn Law School and the author of Sweet Land of Liberty? The Supreme Court and Individual Rights. This review is reprinted from Legal Times of New York.