Germany/Portugal - Christian Brueckner, 27 @ time of 1st crime (2004), charged with sexual assault crimes, Praia de Rocha, Portugal. #2

[C.greek]

In a UK or US trial with jury, you'd have a pretrial hearing to determine whether the material is admissible, and if not, then the jury doesn't get to hear about it.

In the German system where there is no jury, the Judges already have all the evidence and just need to determine whether to exclude it if it was illegally obtained.

So they decide after the trial has started! Interesting

 

[mrjitty]

From what I've read on here, it seems to me that the items found at the factory could have been open to abuse and manipulation if the search wasn't conducted legally and with a proper chain of custody record.

Well if the search is illegal, the evidence will often be excluded anyway - otherwise the police would always just do illegal searches without a warrant

It seems FF is suggesting that the police officer did an illegal search then pretended that the civilian had found the material - perhaps as a way to generate the probable cause to enter

At the end of the day, the police can't enter and dig stuff up - so perhaps they pretended they thought they had found a body, in order to create a reason to enter. You can't enter just because someone buried some digital media in a bag.

 

[LenaOdenthal]

It's not as if the first police officer on the scene dug everything up by herself - or is it? There were 100 officers involved, presumably that can't happen without the chain of command issuing correct instructions. JMO

Burying nearly anything in the ground probably is actually illegal waste disposal, which gives grounds to start investigating, but not without calling it in, I'd have thought.

 

[RichardKimble]

Well if the search is illegal, the evidence will often be excluded anyway - otherwise the police would always just do illegal searches without a warrant

It seems FF is suggesting that the police officer did an illegal search then pretended that the civilian had found the material - perhaps as a way to generate the probable cause to enter

At the end of the day, the police can't enter and dig stuff up - so perhaps they pretended they thought they had found a body, in order to create a reason to enter. You can't enter just because someone buried some digital media in a bag.

The bigger picture being if it's thrown out in these trials then it'll not be allowed in anything related to MM.

 

[mrjitty]

The thing is, you can't manufacture yourself probable cause for the search. You need a good reason to suspect you'll recover evidence relating to a crime in order to get a warrant.

So maybe a civilian is trespassing, and his dog starts digging up something that might be a body - rings police. That would pass muster.

I think FF is suggesting the police officer was illegally looking around, then got her husband to 'find' something suspicious buried there. That could invalidate the warrant if true.

There isn't really enough info in the article to determine this, and the court might want to question the witnesses who recovered the evidence.

 

[mrjitty]

The bigger picture being if it's thrown out in these trials then it'll not be allowed in anything related to MM.

Yes. This could be why he's never been charged relating to the CSAM on the drives

 

[RichardKimble]

It's not as if the first police officer on the scene dug everything up by herself - or is it? There were 100 officers involved, presumably that can't happen without the chain of command issuing correct instructions. JMO

Burying nearly anything in the ground probably is actually illegal waste disposal, which gives grounds to start investigating, but not without calling it in, I'd have thought.

The issue being, the premises were previously searched under a search warrant, nothing was found, a secondary search at a later date was which FF claims was not done under a search warrant, did the woman police officer compromise the chain of custody by digging up the sd cards etc with out warrant or was it done as part of a search?

 

[RichardKimble]

The thing is, you can't manufacture yourself probable cause for the search. You need a good reason to suspect you'll recover evidence relating to a crime in order to get a warrant.

So maybe a civilian is trespassing, and his dog starts digging up something that might be a body - rings police. That would pass muster.

I think FF is suggesting the police officer was illegally looking around, then got her husband to 'find' something suspicious buried there. That could invalidate the warrant if true.

There isn't really enough info in the article to determine this, and the court might want to question the witnesses who recovered the evidence.

The thing is, if the officer investigated and found the dead dog, why would she further investigate?

 

[Davieson]

The issue being, the premises were previously searched under a search warrant, nothing was found, a secondary search at a later date was which FF claims was not done under a search warrant, did the woman police officer compromise the chain of custody by digging up the sd cards etc with out warrant or was it done as part of a search?

If nothing was found at the first search there is always the possibility that the material was planted before the second search. I'm sure the defence will exploit that possibility.

 

[Mex]

Translated.

Braunschweig: Im Prozess gegen Maddie-Verdächtigen geht's auch um Inga

Im Prozess in Braunschweig gegen Christian Brückner beantragte dessen Anwalt, Beweise nicht zu verwenden – da sie illegal beschafft worden sein sollen.

www.bild.de

Braunschweig – Next bang in the trial of Maddie suspect Christian Brückner (47)!

He is actually in Braunschweig (Lower Saxony) because of three rapes and two cases of sexual abuse of children in court – not because of the disappearance of Maddie McCann, who had been missing since 2007 (then 3), although the prosecutor thinks he's the murderer. But suddenly another missing child is an issue …

It's about Inga Gehricke (then 5), who attended a barbecue in a forest in 2015 Saxony-Anhalt disappeared. Why? Because the defense made a surprising request on the second day of the trial.

Inga (then 5) disappeared almost eight years after Maddie in 2015 –
Photo: POLICE IDECTION HALL
Defender Dr. Friedrich Fülscher (39) demanded in process, that evidence brought up by the prosecutor against Brückner must not be used. Specifically, it is about two Word files that were found on a USB stick of the accused.

Lawyer speaks of „ fingered search measure “​

In the texts with the file names „ Mother-daughter story “ and „ Zofengeschichte “, the accused fantasizes about the kidnapping of children and rape. According to Fülscher, this evidence was secured during a „ fingered search measure “ on Brückner's property in Saxony-Anhalt – and was therefore worthless.

Inga disappeared at a barbecue at Wilhelmshof in Saxony-Anhalt
Photo: picture alliance / dpa
After Ingas disappeared on the 2nd. In May 2015, the police apparently suspected the criminal pedophiles early on. His property in Neuwegersleben is 100 kilometers from Wilhelmshof, where Inga disappeared.

Police are said to have tricked​

Because there was no permit to search the property, the police tricked.

The accused owned a dilapidated crate factory in Saxony-Anhalt
Photo: Peter Gercke
According to police files, a neighbor was on 14. Walk with his dog on January 2016. This is said to have run through a hole in the fence on Brückner's property and dug it.

Suspicious bag with children's *advertiser censored* photos​

The witness followed his dog and then noticed a piece of fabric protruding from the ground and a smell of decay. Then he called the police.

The officials should then a. found a Lidl bag with a case. Inside: six USB sticks and two SD cards with texts, videos and child *advertiser censored* photos.

​

The defense's accusation: It was not a dog who found the data carrier, but a police officer – the dog owner's partner.
She had previously searched the property, photographed the site. Your note to your colleagues: „ I think you would have to look it up. “ Attorney Fülscher: „ Utilization of the found files would violate the principles of a fair trial. “

One appreciates that the short delay in proceedings might have been unavoidable because the lay judge objected to had only recently been appointed.

But one cannot fathom why the objection to the digital data was not raised pre-trial when the prosecution evidence was shared with the defence.

 

[Davieson]

Was that data shared pre-trial or did FF only find out about it later ?

 

[RichardKimble]

Was that data shared pre-trial or did FF only find out about it later ?

Isn't the prosecution files presented at the time of charges, so is the only recourse to question them at the trial?

 

[Monic]

The thing is, if the officer investigated and found the dead dog, why would she further investigate?

And how did they know it was CB´s dog?

 

[RichardKimble]

And how did they know it was CB´s dog?

Is it actually known the dog belonged to CB?

 

[Davieson]

And how did they know it was CB´s dog?

Assumption I would say. I doubt there was any way of proving it. And it might have been the media that actually made that claim anyway.

 

[RichardKimble]

The dog walker episode was 14th Jan 2016, the following article dated 23 Feb 2016, this search involved the 100 officers.
Translated.

Großeinsatz in der Börde:Kinderporno-Razzia auf vermülltem Fabrikgelände

Bei einer Großrazzia in einem kleinen Dorf in der Börde geht es um Kinderpornographie und illegale Abfallentsorgung!

www.bild.de

From: BY T. SCHOLTYSECK
02/23/2016 - 4:57 p.m
Neuwegersleben (Saxony-Anhalt) – On Tuesday morning, more than a hundred police officers suddenly moved through the small village of Neuwegersleben in the Börde. They combed the huge area of the old box factory on the outskirts of the community.
The large raid against a 39-year-old is about Child *advertiser censored* and illegal waste disposal!
The two-hectare site of the old box factory has been empty for a quarter of a century. Blown windows, garbage everywhere. There is an old caravan behind the large iron gate.
Residents were amazed in the morning. A neighbor: „ That was a surprise when so many officials came to our small town early Tuesday morning. “

The site is sometimes used with heavy equipment. In other places, officials in Watthosen are busy searching.

First, the police investigated suspected illegal waste disposal. But then they came across indications that the user of the property should have prohibited children's *advertiser censored*.

Police spokesman Marc Becher confirms: „ The large number of officials deployed is due to the size of the area to be searched. “ The 39-year-old accused did not stay there during the raid.
Becher: „ Since child *advertiser censored* is suspected, the central office at the Halle public prosecutor conducts the entire investigation. It will take a while for seized cell phones, data carriers and computers to be evaluated. “

Since the man also has a side apartment in Braunschweig, the premises and a garden plot were also searched there. Only after the computer data has been evaluated does the public prosecutor want to determine how to proceed against the accused.

 

[Mex]

Isn't the prosecution files presented at the time of charges, so is the only recourse to question them at the trial?

German criminal law is tremendously complex to understand particularly for those of us used to the adversarial system. Which makes it difficult for us to speculate about what steps the judges will choose to implement.

The judge appears to have a great deal of autonomy over what is and what is not admissible evidence to the court.
Probably this is why CB's defence thinks it worthwhile to have a go during the trial and why the prosecution will prepare a counter argument. The judge will decide the outcome. Probably explains why in a complex case such as this there are many judges sitting, not just one.

Makes it doubly difficult for those of us unfamiliar with this type of process to follow procedures. Something we may think highly significant probably isn't as important as we think it is. Particularly as it seems nothing is writ on tablets of stone.
My opinion

Snip
The German response to such conflicts is determined, to a large extent, by the German legal system’s traditional reliance on the inquisitorial system, which places on the trial court the responsibility for collecting and evaluating the evidence as well as for finding the facts relevant to the judgement.

According to § 244sec. 2 German Code of Criminal Procedure (CCP), the trial court, in particular the presiding judge, is responsible for deciding what evidence will be presented at the trial.

The prosecution as well as the defense may propose additional pieces of evidence, but the court decides on the relevance and admissibility of the proposed evidence (§ 244 secs. 3–6 CCP).

The court is in any event free to introduce evidence that neither party has proposed.

https://lgcl.csl.mpg.de/attachments/Weigend_2019_The_potential_to_secure_a_fair_trial_through_evidence_exclusion.pdf

 

[Denis R Tandib]

They only mentioned them now though... I don't know this is getting very confusing!

They were first made public by GA. JC discussed them in his book.

Within the last couple of months HCW discussed the contents - auto-biographical writing and drawings including crimes of sexual violence etc.

The defense has known about them since the charges were laid.

FF only challenges the procedural process prior to trial i.e. jurisdiction. Perhaps challenging the evidence is only done once the trial begins.

 

[RichardKimble]

The issue being, the premises were previously searched under a search warrant, nothing was found, a secondary search at a later date was which FF claims was not done under a search warrant, did the woman police officer compromise the chain of custody by digging up the sd cards etc with out warrant or was it done as part of a search?

Looking again at the dates of the searches, the dog walking incident was in January so the search was without a warrant, the warranted search was in February.

 

[Mex]

It's not as if the first police officer on the scene dug everything up by herself - or is it? There were 100 officers involved, presumably that can't happen without the chain of command issuing correct instructions. JMO

Burying nearly anything in the ground probably is actually illegal waste disposal, which gives grounds to start investigating, but not without calling it in, I'd have thought.

I agree with that reasoning.

To start a search involving that number of personnel required organisation. I doubt the basic protocols to enable that process were overlooked.

It certainly wasn't an operation which was carried out clandestinely.