Madeleine McCann: German prisoner identified as suspect #30

[mrjitty]

Here is how the US courts deal with the presumption of innocence:


A presumption of innocence means that any defendant in a criminal trial is assumed to be innocent until they have been proven guilty. As such, a prosecutor is required to prove beyond a reasonable doubt that the person committed the crime if that person is to be convicted.

presumption of innocence | Wex | US Law - Law.Cornell.Edu​

How does the state prosecution overcome the presumption of innocence of a criminal defendant?

Once the trial begins, however, the presumption of innocence becomes a “rebuttable” presumption, meaning that the prosecution can overcome the presumption by introducing evidence at trial tending to show that the defendant is indeed guilty of the alleged crime.



So the prosecutor must introduce evidence that the defendant is guilty of the crime, and while doing so, they are allowed to state that they believe him to be GUILTY, thus that is why they are offering the evidence to the jury.

Hi Katy

The key point in your post is that the accused has been charged, and thus the matter is before the Courts.

That is a key constitutional idea. The state accuses a person, via the process of charging, but a person cannot be deprived of their liberty, or convicted, without judicial oversight and the presumption of innocence applies. Such person must be brought before the Court expeditiously. Especially the case against the accused must be disclosed (discovery).

What we are talking about here is where a person has not been charged and maybe not even arrested

In general the state does not accuse people of crimes pre-charge.

Otherwise, as happens in countries with weak rule of law, an unscrupulous sheriff could accuse our dear Katy of crimes in the media, but keep the evidence secret, and you don't have access to the Court to clear your name.

 

[mrjitty]

Thank you for the reply, mr jitty. So you don't know that the court's permission was sought, it's just your impression that it was.

I know there is a judicial process, so there is oversight. It is at the stage before the accused gets access to the evidence.

I don't know that the Court has made any particular order. My memory is that the Court had allowed this appeal - but now I don't remember why i think that.

 

[Dave55]

Isn't the attitude of a prosecutor, which appears to be guilty until proved innocent, at odds with human rights laws which say that suspects are entitled to the presumption of innocence.

In the link to the ECHR ppaer you quoted it looks as though things are not as simple as you think. It says in the absence of criminal proceedings objection to prejudicial statements are best served by article 8...defamation.... CB has recourse to challenge these statements under german defamation law...a much more interesting point is why hasnt he.
My feeling is that Wolters would be delighted if he did.

 

[C.greek]

In the link to the ECHR ppaer you quoted it looks as though things are not as simple as you think. It says in the absence of criminal proceedings objection to prejudicial statements are best served by article 8...defamation.... CB has recourse to challenge these statements under german defamation law...a much more interesting point is why hasnt he.
My feeling is that Wolters would be delighted if he did.

I agree with you - the point is why hasn't FF challenged this. The only plausible answer is that these statements are really not defamatory. Remember he sued the journalist for defamation because she said that CB let his dogs starve to death or something along these lines! So, it appears HCW is not breaking any Human rights law in claiming CB is guilty based on the evidence they have. Again as I said above, FF should be the first person to jump on that bandwagon, but clearly he hasn't. I doubt he doesn't know his client's rights... so, the answer is simpler than we think. jmo

 

[mrjitty]

There are also human rights laws, which prohibit suggesting someone is guilty before a trial has been held.

RSBM

As I understand it, the critical difference with Germany is that the judicial process has already begun, which would not be the case pre-charge in Britain or America.

Law enforcement cannot accuse without charging, though in practice they can sail close to the line. Arrest triggers a requirement to bring a suspect before the Court or release. So there is a balance of interest. If you are accused you get access to the case against you, and the court has oversight, and presumption of innocence applies.

Germany differs due to the inquisitorial rather than adversarial process.

So HCW already showed the Judges this evidence which leads to his high conviction that CB murdered MM.

The evidence is secret to us, and to the accused but not to the Court.

Personally I find it somewhat Kafka-esque that you can be accused of murder in the media based on evidence that the prosecutor keeps secret for 2+ years but presumably the Court is ensuring there is no injustice there

 

[mrjitty]

In the link to the ECHR ppaer you quoted it looks as though things are not as simple as you think. It says in the absence of criminal proceedings objection to prejudicial statements are best served by article 8...defamation.... CB has recourse to challenge these statements under german defamation law...a much more interesting point is why hasnt he.
My feeling is that Wolters would be delighted if he did.

The point is there are criminal proceedings and the statements are not prejudicial

The accused cannot gain access to the evidence via the back door of defamation law.

Implicitly or explicitly the court is allowing all this.

 

[mrjitty]

I agree with you - the point is why hasn't FF challenged this.

RSBM

Because the statements were not prejudicial.

 

[RichardKimble]

RSBM

As I understand it, the critical difference with Germany is that the judicial process has already begun, which would not be the case pre-charge in Britain or America.

Law enforcement cannot accuse without charging, though in practice they can sail close to the line. Arrest triggers a requirement to bring a suspect before the Court or release. So there is a balance of interest. If you are accused you get access to the case against you, and the court has oversight, and presumption of innocence applies.

Germany differs due to the inquisitorial rather than adversarial process.

So HCW already showed the Judges this evidence which leads to his high conviction that CB murdered MM.

The evidence is secret to us, and to the accused but not to the Court.

Personally I find it somewhat Kafka-esque that you can be accused of murder in the media based on evidence that the prosecutor keeps secret for 2+ years but presumably the Court is ensuring there is no injustice there

Could it be but a scoping exercise to try and gather evidence , the case was/is stuck and to try and move it on a suspect is needed to advance it. Did Wolters mean they has strong suspicions when saying concrete , those suspicions may remain but not sure on German concrete . Wolters shook the tree and all kinds of detritus fell out, wheat from the chaff, they probably got more chaff .

 

[C.greek]

RSBM

As I understand it, the critical difference with Germany is that the judicial process has already begun, which would not be the case pre-charge in Britain or America.

Law enforcement cannot accuse without charging, though in practice they can sail close to the line. Arrest triggers a requirement to bring a suspect before the Court or release. So there is a balance of interest. If you are accused you get access to the case against you, and the court has oversight, and presumption of innocence applies.

Germany differs due to the inquisitorial rather than adversarial process.

So HCW already showed the Judges this evidence which leads to his high conviction that CB murdered MM.

The evidence is secret to us, and to the accused but not to the Court.

Personally I find it somewhat Kafka-esque that you can be accused of murder in the media based on evidence that the prosecutor keeps secret for 2+ years but presumably the Court is ensuring there is no injustice there

so in the end we should all agree that, even if Kafka-esque for some, what the prosecution does is not prejudicial nor does it breach CB's human rights?

 

[G-Unit]

The treatment of the presumption of innocence in the US is immaterial because Germany has accepted the jurisdiction of the ECHR and is answerable to it if it breaches the rights contained therein. In order for CB and his defence team to proceed to the ECHR the matter should be raised first in the German courts. As I understand it a complaint has been registered against a German journalist/TV presenter already. If the complaint is dealt with satisfactorily by the German courts no more action is required. If not, the complainant can apply to the ECHR to decide if the German judiciary reached the correct decision...or not.

I don't know if a complaint has been made about HCW or not.

 

[C.greek]

The treatment of the presumption of innocence in the US is immaterial because Germany has accepted the jurisdiction of the ECHR and is answerable to it if it breaches the rights contained therein. In order for CB and his defence team to proceed to the ECHR the matter should be raised first in the German courts. As I understand it a complaint has been registered against a German journalist/TV presenter already. If the complaint is dealt with satisfactorily by the German courts no more action is required. If not, the complainant can apply to the ECHR to decide if the German judiciary reached the correct decision...or not.

I don't know if a complaint has been made about HCW or not.

there definitely isn't a complaint against HCW! Don't you think we would have heard about it?

 

[RichardKimble]

there definitely isn't a complaint against HCW! Don't you think we would have heard about it?

He's been misquoted imo by the brit rags, didn't the sun come out with something only for Wolters to deny it.

 

[mrjitty]

I think what is being missed is that CB does not need to apply to ECHR

There is a judicial process in Germany already. His lawyer can make complaints directly there

 

[mrjitty]

so in the end we should all agree that, even if Kafka-esque for some, what the prosecution does is not prejudicial nor does it breach CB's human rights?

We will only know for sure, if the case progresses to the point where the defence gains access to the files and charges are laid.

Seeing the conduct of german prosecutors in the Wirecard case against the Financial Times for example, I am not one of these people who blindly trusts the germans have it right. And as for the London Met, that organisation has been shown to be corrupt.

But that is the point of constitutional balances. We should not have to trust them.

 

[Chiatos]

When you say 'chatting', I assume you mean online chatting where a record exists, yes?

Again, an interesting thought, as is the 'Das Buch' (if it exists) possibility posited by Betty_Boop above and Megnut's earlier speculation re some crucial commonality in found images, still or otherwise.

Yes, that's what I mean.
What if CB had a pre-crime chat online, shortly before assaulting the elderly victim and shortly before assaulting HB. What if he described his future act. And then carried it out.
He might have done the same shortly before Madeleine's disappearance.

 

[C.greek]

We will only know for sure, if the case progresses to the point where the defence gains access to the files and charges are laid.

Seeing the conduct of german prosecutors in the Wirecard case against the Financial Times for example, I am not one of these people who blindly trusts the germans have it right. And as for the London Met, that organisation has been shown to be corrupt.

But that is the point of constitutional balances. We should not have to trust them.

I meant for the time being and not when and if charges will be brought forward.

I don't know if they have it right ; I think they do but I was not questioning that. I was asking whether based on what we know, there is no breach of CB's human rights (i also think there is none) jmo

 

[enquirer6]

I meant for the time being and not when and if charges will be brought forward.

I don't know if they have it right ; I think they do but I was not questioning that. I was asking whether based on what we know, there is no breach of CB's human rights (i also think there is none) jmo

I believe Walter is on record as saying that he believes he has enough evidence, already, to charge but wants the best body of evidence he can muster before he does charge.

Is that right?

If so, then my biggest question is, not with his management of the investigative side of the investigation, but with his management of release of information, which I fear may not have been as sensitive to the McCanns and Madeleine's extended family as, perhaps, it might have been.

 

[RichardKimble]

I believe Walter is on record as saying that he believes he has enough evidence, already, to charge but wants the best body of evidence he can muster before he does charge.

Is that right?

If so, then my biggest question is, not with his management of the investigative side of the investigation, but with his management of release of information, which I fear may not have been as sensitive to the McCanns and Madeleine's extended family as, perhaps, it might have been.

That was the reason for the this statement (below) on the find Madeleine site, but another reason is he cannot say the girl is dead without proof, that proof will only come at a trial (if it gets there )especially with out a body.

Operation Grange Statement: June 19, 2020​

The Met received one letter from the BKA on 12 June, which was passed to the family. The letter did not state that there was evidence or proof that Madeleine is dead, the MPS continues to investigate Madeleine’s disappearance as a missing person investigation. No letter has been received by the Met from the German prosecutor.

 

[C.greek]

That was the reason for the this statement (below) on the find Madeleine site, but another reason is he cannot say the girl is dead without proof, that proof will only come at a trial (if it gets there )especially with out a body.

Operation Grange Statement: June 19, 2020​

The Met received one letter from the BKA on 12 June, which was passed to the family. The letter did not state that there was evidence or proof that Madeleine is dead, the MPS continues to investigate Madeleine’s disappearance as a missing person investigation. No letter has been received by the Met from the German prosecutor.

the family were informed before the public appeal for information that this is a murder inquiry. it was not a letter personally written by HCW of course but since the appeal for information was also shared by the MET, the MET must have informed the family beforehand.
the family is also kept informed by all police forces, as is evident from their latest statement which was absolutely heartbreaking. I doubt they learn the news through the media as we do...

we have discussed this before - I don't think this is an important part of the investigation. jmo

eta: the statement on their official FB page:

"This year we mark 15 years since we last saw Madeleine. It feels no harder than any other but no easier either. It’s a very long time. Many people talk about the need for ‘closure’.It’s always felt a strange term. Regardless of outcome, Madeleine will always be our daughter and a truly horrific crime has been committed. These things will remain. It is true though that uncertainty creates weakness; knowledge and certainty give strength, and for this reason our need for answers, for the truth, is essential. We are grateful for the ongoing work and commitment of the UK, Portuguese and German authorities as it is this combined police effort which will yield results and bring us those answers. As always, we would like to thank all of our supporters for their continued good wishes and support. “It is a huge comfort to know that regardless of time passed, Madeleine is still in people’s hearts and minds. Thank you.”

 

[SuperdadV8]

Always interesting to see, how hard it might be for others to fathom, that it's not their job to bring the perps behind bars!

Brave new world!