Madeleine McCann: German prisoner identified as suspect #28

[C.greek]

BBM
Why cant it?
If they focus specifically on the sadistic nature of those rapes? Not age of victim. We know from the DM rape that he tortures.
If he's prosecuted for the HB rape that's more propensity evidence, they said they know how MM died, or think they know.
CB mentioned torturing a child in the chat.
His stash of pics might reveal child torture.

Torture runs through this as a main theme and his crimes had obviously escalated from 'touching a child' at the age of 19, to saying he wants to torture a child.

A tortured child cannot be returned to a parent without serious consequences, what exactly was he planning to do with the child afterwards?

JMO

correction: at the age of 17 he was charged with molesting two girls at two separate incidents, a 6 year old girl and a 9 year old girl!

in the chat he mentions explicitly about destroying the evidence after the torture. What would he mean by that? it is clear he talks about murdering it it a specific way.

 

[tedtink]

correction: at the age of 17 he molested two girls!

in the chat he mentions explicitly about destroying the evidence after the torture. What would he mean by that? it is clear he talks about murdering it it a specific way.

I'll edit - thanks.

 

[C.greek]

DDP

 

[tedtink]

correction: at the age of 17 he was charged with molesting two girls at two separate incidents, a 6 year old girls and a 9 year old girl!

in the chat he mentions explicitly about destroying the evidence after the torture. What would he mean by that? it is clear he talks about murdering it it a specific way.

I think the 'evidence' is the child but he dehumanised the child by referring to it as 'evidence', it's chilling.

JMO

 

[C.greek]

I agree the chat could be admissible.

The chat would prove his motive. It is really damning in this case - and we are not privy to what else he was discussing with panikspatz or other child sex abusers. or not even what kind of photos or videos they were exchanging.

In the Libby case, the previous offences were admissible because they proved why he was lurking around late at night - contradicting his version.
I agree they go to motive, but they don't prove "ability to commit murder" - that is not legitimate reasoning.
Rape was proved in that case by semen. He had never done a rape before, so the prior offences did not prove that at all, nor can they be used in that way.

Such crimes escalate. This was admissible in court. The previous offences were admissible not because he was out at night, but for what he did those nights.

I agree the DM case will be admissible in the rape of HB if charged.
But I doubt it clears the bar for similar fact evidence in respect of an abduction case.
Where his priors are likely to be relevant is if the prosecution theory is burglary. So a history of breaking into places would be relevant for those purposes.

DM's rape and his conviction for it is not only related to HB's rape. It is the sadistic nature of these crimes, and that he filmed them, together with the chat where he mentions explicitly that he will film himself torturing a child. Why would this in combination not be admissible to a judge? It was enough to let the BKA go public with the suspect.

 

[mrjitty]

The rules against propensity evidence and similar fact evidence are large areas of course work in Crimes and Evidence law at university, so I will leave it with the general point that they are not allowed in evidence, unless an exception is made out.

But even where an exception exists, propensity reasoning is not allowed.

In countries/cases where there is no jury, we trust judges to weigh evidence according to the rules and principles - they are not excluded from knowing about things

This is my beef with JR and TV crime shows in general.

They frequently indulge in propensity reasoning. A pedo is the kind of guy who would do a child abduction/murder.

"Ability to do a crime" is not a thing, legally speaking.

 

[mrjitty]

BBM
Why cant it?
If they focus specifically on the sadistic nature of those rapes? Not age of victim. We know from the DM rape that he tortures.
If he's prosecuted for the HB rape that's more propensity evidence, they said they know how MM died, or think they know.
CB mentioned torturing a child in the chat.
His stash of pics might reveal child torture.
MS said the video's he saw were like the women were being tortured.

Torture runs through this as a main theme and his crimes had obviously escalated from molesting a child at the age of 17, to saying he wants to torture a child.

A tortured child cannot be returned to a parent without serious consequences for the perp, what exactly was he planning to do with the child afterwards?

JMO

In general terms, you have to show sufficient similarity in the facts of a prior offence or act such that it establishes a distinctive method that is probative.

So a brutal rape, with specific type of clothing, conducted over an extended period, and video taped is sufficiently distinctive that the prior rape would be probative in the HB case because of those distinctive features

It isn't probative in an abduction - based on what we know, where is the similarity?

Similar Fact Evidence (SFE) is a form of character evidence that relates to "extrinsic misconduct by an accused" and is presumed inadmissible.[1] The SFE rule is described as an exception to the general rule against bad character evidence.[2]

SFE may be admitted even where some prejudice may attach to it so long as there is sufficient probative value to it.[3]

SFE of general propensity, disposition or bad character that only goes to prove the accused is the "type of person" to commit the offence is always inadmissible.[4] Similarly, it is inadmissible when tendered to "establish character, as circumstantial proof of the accused's conduct".[5]

Similar Fact Evidence - Criminal Law Notebook
​

I've seen a rape case where even the fact that the accused was already in jail for a gang rape was kept from the jury. The reason was because the jury might well assume that because he was a rapist, he therefore did this new rape

 

[mrjitty]

I agree that much of the evidence against CB would be deemed prejudicial in a UK Jury trial. It will be different before a Judge who knows what importance to attach to past crimes, character, confessions, etc.

If he was tried in UK, the case would revolve around eye-witnesses, phone evidence, contradictions in his alibi and the confessions & comments he made specifically re MM. We would hear nothing about his paedophilia or his burglary.

Because a Judge can’t be influenced by media, we will get a lot of gory details during trial about him. This case is as much as about convincing the public as a Judge.

The burglary stuff is likely to be quite critical IMO.

We know he has priors, but I wonder how they prove he was breaking into these apartments?

 

[tedtink]

The burglary stuff is likely to be quite critical IMO.

We know he has priors, but I wonder how they prove he was breaking into these apartments?

The stolen SIM from OC, witness statements?
I'd be interested to know what happened to all the passports CB is alleged to have stolen.

 

[mrjitty]

The stolen SIM from OC, witness statements?
I'd be interested to know what happened to all the passports CB is alleged to have stolen.

BIB

I see this as a crucial piece of evidence - if it actually exists.

 

[C.greek]

reading for anyone interested...: (https://www.justiceinitiative.org/u...sal-jurisdiction-law-and-practice-germany.pdf )

going through EUlex.

@mrjitty could you please find the relevant laws for Germany? because I am not sure whether the same applies to Germany as you quote above for the UK.

On opening an investigation in Germany
"The threshold to open an investigation is defined in Section 152 paragraph 2 StPO and provides that there must be sufficient factual indications (zureichende tatsächliche Anhaltspunkte) of a crime for the prosecutor to investigate." p. 21

"Under German law, the threshold to open investigations is rather low. However, mere suppositions are insufficient. The initial suspicion must be based on concrete facts. Such facts may also be based on a rumor or an assertion by a third party that is not completely unfounded, since the verification of certain indications is precisely the task of the investigation procedure. Suspicions can be demostrated, for instance, by testimonies, documentary evidence, or open source material." (p. 28)

on arrest
"An arrest warrant and pre-trial detention may be ordered against the accused regardless of whether the accused is located in Germany. It requires a significant suspicion (dringender Tatverdacht) that the alleged offence was committed by the suspect and, in addition, the existence of one of the following grounds for an arrest (Haftgrund):
(i) it is established that the accused has fled or is in hiding;
(ii) there is a risk that the accused will evade the criminal proceedings; or
(iii) the accused’s conduct gives rise to the strong suspicion that he or she will destroy, alter, remove, suppress, or falsify evidence; improperly influence the co-accused, witnesses, or experts; or cause others to do so, and if, therefore, the danger exists that establishment of the truth will be made more difficult." (p. 23)

CB is not going anywhere, no reason to arrest him yet before the investigation finishes!

on the Necessary evidence for an indictment
To justify an indictment, evidence gathered in the investigations has to support reasonable grounds to suspect that the person has committed a criminal offence (hinreichender Tatverdacht). This is the case if the competent prosecutor considers the case to be capable of supporting a conviction with a high degree of certainty after evaluating the factual and legal situation at the end of the investigation stage.

Admissible evidence
The competent investigating authority is free to take all admissible evidence into account and will designate its weight at its discretion. During the investigation proceedings, the prosecution can obtain all forms of evidence as long as the means to obtain them follow the legal requirements and limitations.

 

[mrjitty]

The main difference is that in the Jury system the judge determines admissibility according to the rules of evidence, to control what the jury knows about, or to instruct them as to what limited purposes evidence may be used.

In Judge alone systems, the judge(s) do not need to exclude evidence from themselves.

Unlike jurors, judges have studied the law and know how evidence can be used. So a judge understands that evidence of character cannot be used as circumstantial evidence - and the dangers of propensity reasoning.

Again my point is not that the Judges will get this wrong, but rather we should be careful about this kind of "TV reasoning". Of course JR is not in a court of law, so for her purposes, in the court of public opinion, this flies.

Personally i find profiling of CB irrelevant at this stage.

We already know he is the main suspect, and await hard evidence of his involvement. JR has introduced nothing to demonstrate that IMO.

 

[C.greek]

The main difference is that in the Jury system the judge determines admissibility according to the rules of evidence, to control what the jury knows about, or to instruct them as to what limited purposes evidence may be used.

In Judge alone systems, the judge(s) do not need to exclude evidence from themselves.

Unlike jurors, judges have studied the law and know how evidence can be used. So a judge understands that evidence of character cannot be used as circumstantial evidence - and the dangers of propensity reasoning.

Again my point is not that the Judges will get this wrong, but rather we should be careful about this kind of "TV reasoning". Of course JR is not in a court of law, so for her purposes, in the court of public opinion, this flies.

out of interest, can you please link to sources specifically about the inadmissibility of such evidence in the German legal system?

eta: I know this is a quite widely discussed topic in law, especially in the US . But it would be interesting to see the actual laws which define what is admissible and what not in a trial for murder in Germany

 

[mrjitty]

out of interest, can you please link to sources specifically about the inadmissibility of such evidence in the German legal system?

Like I say, German courts do not have a focus on exclusion of evidence. The Court is responsible for an inquisitorial process to determine all the circumstances, and then "the truth" of the matter.

German criminal procedure law places great emphasis upon judgements made pursuant to the “substantive truth.” Therefore, exclusion of evidence tends to be an anomaly as it compels the trial court to disregard certain evidence, which implies that the court must base its judgement on something less than the whole truth. German law does provide for the exclusion of evidence in some situations, but its effect is limited to preventing the trial court from explicitly relying on the inadmissible evidence as a basis for the judgement. That said, in most cases the judges nevertheless remain aware of the excluded evidence.​

The Potential to Secure a Fair Trial Through Evidence Exclusion: A German Perspective

This makes sense as a practical matter. The reason why a Judge excludes evidence from a jury is because it is too prejudicial. In other words, the jury cannot be trusted to apply the correct reasoning.

In the german system, it makes no sense for the Court to exclude evidence from itself. The Court understands what is prejudicial.

 

[Chiatos]

yeah I tried that but it’s only german subtitles. Thanks though!

I'll try to high light:

02:00; Jutta informs us that many films were found on USB's at the old factory sight. Many films (plural) shot with images of CB while in the act of abusing children (plural). But: no trace of MM in these specific films.

09:00; HCW specifies that BKA is (still) searching for the person that had been on the phone with CB back in 2007.

15:00; Jutta says that it's very important to find the person of the other phone.

22:00; Jutta received a phone number of a female friend of NF. The friend's son joins in and both recognise that phone number as NF's number in 2007. In order to verify this info, Jutta will have to contact NF in Germany.

 

[Chiatos]

00:30; NF does not want to speak with Jutta

02:45; Jutta visits DF. He tells her about the Winnebago and strangely enough, in this film he does not mention Russia!!! So how come there are two versions of this interview? Superdad?

06:00; CB writes a letter to Jutta saying that DF has lied about transporting children in the Winnebago.

08:00; Jutta verifies CB's phone number with a former friend of CB. This friend of CB told Jutta that CB as a maintenance man, easily walked in and out the OC for years.

12:00; Jutta investigates about the Belgian ring (als mentioned in the pjfiles)

14:30; "Casa Pia"case is mentioned and Joao explains that back in 2007, there was no awareness about child rings etc.

18:30; Jutta pays a visit to Panikspatz but he doesn't open his door. So she phones him up and he denies being Panikspatz, the chat friend of Wahinsinnderholger. Then he says that he had sought closure and that he didn't want to be involved "any more".
Jutta understands that he ís Panikspatz.

My comment: So Panikspatz is currently not in prison? I thought that he was?

 

[SuperdadV8]

00:30; NF does not want to speak with Jutta

02:45; Jutta visits DF. He tells her about the Winnebago and strangely enough, in this film he does not mention Russia!!! So how come there are two versions of this interview? Superdad?

06:00; CB writes a letter to Jutta saying that DF has lied about transporting children in the Winnebago.

08:00; Jutta verifies CB's phone number with a former friend of CB. This friend of CB told Jutta that CB as a maintenance man, easily walked in and out the OC for years.

12:00; Jutta investigates about the Belgian ring (als mentioned in the pjfiles)

14:30; "Casa Pia"case is mentioned and Joao explains that back in 2007, there was no awareness about child rings etc.

18:30; Jutta pays a visit to Panikspatz but he doesn't open his door. So she phones him up and he denies being Panikspatz, the chat friend of Wahinsinnderholger. Then he says that he had sought closure and that he didn't want to be involved "any more".
Jutta understands that he ís Panikspatz.

My comment: So Panikspatz is currently not in prison? I thought that he was?

Because the interview in which DF mentions russia has been made by a different team of journalists from the Vox documentary a few days before i think. Maybe Jutta R. cut out that part. I don't know.....

 

[C.greek]

Like I say, German courts do not have a focus on exclusion of evidence. The Court is responsible for an inquisitorial process to determine all the circumstances, and then "the truth" of the matter.

German criminal procedure law places great emphasis upon judgements made pursuant to the “substantive truth.” Therefore, exclusion of evidence tends to be an anomaly as it compels the trial court to disregard certain evidence, which implies that the court must base its judgement on something less than the whole truth. German law does provide for the exclusion of evidence in some situations, but its effect is limited to preventing the trial court from explicitly relying on the inadmissible evidence as a basis for the judgement. That said, in most cases the judges nevertheless remain aware of the excluded evidence.​

The Potential to Secure a Fair Trial Through Evidence Exclusion: A German Perspective

This makes sense as a practical matter. The reason why a Judge excludes evidence from a jury is because it is too prejudicial. In other words, the jury cannot be trusted to apply the correct reasoning.

In the german system, it makes no sense for the Court to exclude evidence from itself. The Court understands what is prejudicial.

Thank you, this is a perfect article!

From the above article:
for those asking repeatedly why the accused has not been interrogated yet, as if it means something:
"The pretrial investigation is conducted unilaterally by the prosecutor and the police. The investigation can be conducted in secret, without the knowledge of the suspect; there is no formal announcement to the suspect that he has become the object of a criminal investigation. The prosecutor is obliged to provide the suspect with the opportunity to present his side of the case only before the conclusion of the investigation (§ 163a sec. 1 CCP);"

So, HCW is doing everything by the book!

00:30; NF does not want to speak with Jutta

02:45; Jutta visits DF. He tells her about the Winnebago and strangely enough, in this film he does not mention Russia!!! So how come there are two versions of this interview? Superdad?

06:00; CB writes a letter to Jutta saying that DF has lied about transporting children in the Winnebago.

08:00; Jutta verifies CB's phone number with a former friend of CB. This friend of CB told Jutta that CB as a maintenance man, easily walked in and out the OC for years.

12:00; Jutta investigates about the Belgian ring (als mentioned in the pjfiles)

14:30; "Casa Pia"case is mentioned and Joao explains that back in 2007, there was no awareness about child rings etc.

18:30; Jutta pays a visit to Panikspatz but he doesn't open his door. So she phones him up and he denies being Panikspatz, the chat friend of Wahinsinnderholger. Then he says that he had sought closure and that he didn't want to be involved "any more".
Jutta understands that he ís Panikspatz.

My comment: So Panikspatz is currently not in prison? I thought that he was?

No, Panikspatz is having therapy and is in parole because he cooperated as far as it has been mentioned in msm

 

[C.greek]

Like I say, German courts do not have a focus on exclusion of evidence. The Court is responsible for an inquisitorial process to determine all the circumstances, and then "the truth" of the matter.

German criminal procedure law places great emphasis upon judgements made pursuant to the “substantive truth.” Therefore, exclusion of evidence tends to be an anomaly as it compels the trial court to disregard certain evidence, which implies that the court must base its judgement on something less than the whole truth. German law does provide for the exclusion of evidence in some situations, but its effect is limited to preventing the trial court from explicitly relying on the inadmissible evidence as a basis for the judgement. That said, in most cases the judges nevertheless remain aware of the excluded evidence.​

The Potential to Secure a Fair Trial Through Evidence Exclusion: A German Perspective

This makes sense as a practical matter. The reason why a Judge excludes evidence from a jury is because it is too prejudicial. In other words, the jury cannot be trusted to apply the correct reasoning.

In the german system, it makes no sense for the Court to exclude evidence from itself. The Court understands what is prejudicial.

So bad character and previous MO can be admissible... it's good that we talk about this specific legal system that applies to the case. Otherwise we reach wrong conclusions and we speculate unnecessarily on what can be judged important or not

 

[Pixie Child]

So bad character and previous MO can be admissible...

CB had previous, means, motive, opportunity & he confessed but there are at least 2 problems - forensics & eyewitnesses.

1. A lot of DNA & fingerprints were found in & none belonged to him (or his dog?) despite his leaving forensic traces at the HB & D? crime scenes.

2.a. He’s probably not Tannerman - JS will be called for the Defence.

b. He’s probably not Smithman. The Smiths put Smithman at 175-180cm (5’7 to 5’9). CB is taller - 183cm (6’) per JC. The Smiths will also be called by the Defence to say it likely wasn’t CB they saw.

c. The eyewitnesses who could identify him (CT & TS, J sisters) saw him outside the abduction timeframe.