THE TRIAL OF TALAAT PASHA
THE SECOND DAY OF TRIAL
Presiding Justice Lehmberg convenes the court to session at 9:15 A.M.
PRESIDING JUSTICE — We will continue with the trial. All the questions required to bring about the verdict are present.
The de facto evidence, to the extent it is mentioned in the writ of accusation, has been exhaustively reviewed.
That being so, I would like to read the questions that I have drawn up:
1. Is the defendant Soghomon Tehlirian guilty of having intentionally killed Talaat Pasha on Charlottenburgstrasse on March 15, 1921?
This question pertains to unpremeditated killing. The second question pertains to premeditated killing. The second question shall be answered only if an affirmative answer is given to the first question.
2. Did the defendant commit the crime with premeditation?
After this comes the third question, which is to be answered only in the event that the answer to the first question is affirmative and the answer to the second question is negative.
3. Are there extenuating circumstances?
Are there any gaps to be filled pertaining to these questions? If not, I shall recognize the District Attorney.
VON GORDON — All the witnesses suggested by us have come here. They should be officially informed that we have refrained from questioning them. In addition, Mr. Vosganian, who was going to testify concerning the background of the defendant and his family, has arrived here from Serbia. Also I am informed that Armin Wegner, whom we had asked to testify and who had taken pictures at the time of the massacres, has placed himself at our disposal. However, in compliance with the wishes of this court, we feel we do not need additional proof; we already know what we needed to know.
JUROR — Mr. President, we have present, here in the audience, an Indian who has said that all those fights and killings were caused not by economic factors but rather religious ones.
PRESIDING JUSTICE — Gentlemen, that has no direct bearing on the homicide; however, in order to make it possible for the motives to be revealed in all their depth and in order to understand the tremendous impressions generated by those horrible events, I gave a lot of leeway to obtain an overall picture of what happened. Therefore, I do not feel it necessary to concern ourselves with those matters again today.
VON GORDON — Your Honor, if members of the jury wish, I feel we should supply all the information necessary to satisfy them. I should thus like to recall Professor Lepsius as an expert witness.
PRESIDING JUSTICE — Dr. Lepsius has already expressed his opinion in detail.
JUROR — In a general sense we are satisfied with the proof presented thus far; we would like elucidation only on this particular point.
PRESIDING JUSTICE — Nevertheless, I am opposed to listening to any testimony today which, to my way of thinking, is not germane to the issue before us.
VON GORDON — We have heard that certain foreigners have talked to a number of the jurors on this subject and, if members of the jury would like further clarification, we should try to fulfill their desires.
PRESIDING JUSTICE — Whether it was for religious or other reasons one of the witnesses also indicated that these measures were considered by the Turkish government to be indispensable ... these are all tangential to the issue before us.
VON GORDON — Perhaps you will allow me to say a few words on this subject.
PRESIDING JUSTICE — I would prefer that you cover this topic in your summation. I would now like to thank all the witnesses who have come here. The participants in this trial have abstained from calling any new witnesses. Naturally, those who wish may remain and listen to the conclusion of the trial.
I will now call upon the District Attorney to present his opinion concerning the guilt of the defendant.
DISTRICT ATTORNEY — Members of the jury, it is not the legal implications of this criminal case which give it special significance and explain the intense interest being shown in it, not only in our country, but in other countries as well. To account for such attention we have to look at the other aspects of this case. In view of its psychological causes, the incident takes us back to events that took place during the World War. This case has, as its root, the bloody and savage events that took place in Asia Minor and it is as if we again have to hear the thunder of the World War. Furthermore, it is the personality of the victim of the act that gives the latter an added significance. From a nameless and unknown mass of people, a hand rose up and struck down a human being who held the reins of his country in band while it was involved in a world struggle. He was the faithful ally of the German people and together rode the waves of fortune.
However, gentlemen of the jury, these recollections and impressions cannot obligate the accuser and the judge to dismiss the incident and let the perpetrator of the incident go free. We must view the matter solely from the point of view of penal justice, as the law demands.
From a legal point of view, the case is quite simple. On March 15, 1921, the defendant shot and killed Talaat Pasha on Charlottenburgstrasse. The aim was well taken. Death was instantaneous and there is no doubt that the defendant wanted to kill. He committed the act intentionally. Did the defendant not testify that he still felt gratified in having successfully committed that act? The commission of a homicide is punishable under German law. The perpetrator has to be punished where a human beings life has been taken. In the eyes of the law, it makes no difference whether the victim was a German citizen or not. According to Article 3 of the Penal Code, the law applies throughout Germany for any crimes committed within its borders.
Gentlemen of the jury, the defendant made several remarks that were peculiar from a number of points of view when he was apprehended right after the commission of the act and found himself surrounded by an angry mob. He said, This is no loss to Germany. I am an Armenian. He is a Turk. What he meant by that was that they were foreigners and, therefore, that the act was of no concern to Germany. This exclamation has no significance at all in terms of penal justice. Whether or not the victim and/or the perpetrator of the crime were citizens of Germany has no bearing. According to our laws, the defendant has to be punished if, of course, there are no circumstances which would make this an excusable homicide. I shall get to this later.
First and foremost we should clarify the point as to whether or not this was a premeditated crime. The law distinguishes between a premeditated and non-premeditated crime. The punishment for the former is very severe — the death penalty. For the latter, that is a killing committed at the time of emotional distress, the penalty is less severe.
Likewise, I can accept a familiar fact: where the perpetration of the crime is done with definite deliberation and premeditation, when the act is committed under calm and clear circumstances, with consciousness of the rational implications and motives of the act, of the means and consequences of committing the crime, as well as of the moral absolutes to avert the act. In other words, the first type of killing is one in which the defendant can take into consideration all these factors. Furthermore, he is able to assess the pros and cons of the act and then reach a decision on the basis of these purely rational considerations.
I ask you, Did the defendant commit this act following such deliberation? Naturally I also have to ask a second question: What factors led the defendant to commit this act?
There is no question in my mind that what we are dealing with here is a political assassination. The defendants motives were political hatred and political vengeance.
A graphic picture of events that took place in far-off places unfolded before you. Without a doubt, horrid events took place; dreadful events befell the Armenian people. Undoubtedly, horrible things happened to the defendant and his family. Also there is no doubt that a brutal fate afflicted his very essence; all of his relatives were subjected to death and he was forced to be an eyewitness to all of this. The defendant, because of what he had seen and suffered, became vengeful. When he became vengeful is something I will get into a little later.
It is also quite clear that the defendant held Talaat Pasha to be the responsible party for the acts. The defendant looked upon Talaat as the person who struck down his compatriots, his parents and relatives, and, indeed, himself. Furthermore, the defendant looked upon Talaat not merely as the Minister of Interior who, because of his position, would presumably be held politically liable for the acts committed during his tenure in office, but also as personally and morally the author of the above mentioned offenses.
Gentlemen of the jury, the determination of these motives is sufficient to judge Tehlirian's act from the penal-legal point of view.
But the examination of the witnesses went into the question of whether Talaat was really the personal and moral author of these crimes. Even though, in my opinion, it makes no difference whatsoever, from a legal point of view, whether or not Talaat was the author or whether the defendants notion that Talaat was the author corresponds to the truth, nevertheless, since the witnesses did expound on this point, I feel obligated to comment.
Gentlemen of the jury, it is patently clear and witnesses have so indicated,
that the Armenians and their friends are convinced of Talaat’s responsibility
for the crimes committed against them.
However, gentlemen, this is not an impartial view. It would have been easy for us to bring a whole series of witnesses to give an altogether different picture of what took place. I have personally spoken with many Germans who were in Turkey and were close to scenes of the incidents in question, and they have an altogether different grasp of what happened than what you have heard here. They stated that there is no basis even for saying that the government of Constantinople had decided to annihilate the Armenians; rather it was the considerations of governmental and military security — perhaps misunderstood — which motivated Talaat to issue the order for deportation, the result of which, to be sure, had fatal consequences.
PRESIDING JUSTICE (interrupting) — I would appreciate it if you would not dwell at length on this matter which was not the topic of discussion during cross-examination of the witnesses. Moreover, mentioning incidents which others have discussed has nothing at all to do with the case before us.
DISTRICT ATTORNEY (continuing) — Nevertheless, I can make use of the testimony to the extent that there was a difference between the statements and the point of view of the two expert witnesses. I find that the testimony of Dr. Lepsius, though detailed and interesting, is nevertheless deficient in that it ascribes, in my opinion, a systematic and planned nature to the crimes committed against the Armenians. It is not hard to see that he came to this conclusion, not on account of what he saw and experienced in Turkey, but in light of evidence that has more recently been uncovered. For that reason I think I am correct in giving more weight to the testimony of General Liman von Sanders, who was in Turkey, held an important position and was close to the scene of the events that took place. General von Sanders testified explicitly as to the difference between the understanding behind the order given in Constantinople to deport the Armenians and the manner in which the deportation was carried out. The government in Constantinople had received word that the Armenians were thinking of betraying the government and plotting with the Allied Powers. It was decided that, as soon as the opportunity was ripe, they would attack the Turks from behind and create an independent Armenia. Thus, for defensive and military reasons, the government in Constantinople considered it necessary to deport the Armenians. As to the character of these deportations, we should take into consideration, gentlemen of the jury, that Asia Minor is not exactly a place in which conditions characteristic of civilized peoples prevail. I feel I should be careful in how I put this, i.e., those conditions which we were used to before the war. The tradition in Asia Minor has always been one of savagery and bloodshed, and our expert witnesses testified that, in 1915 a "Holy War" had already been declared. When people belonging to different nationalities and of different faiths saw that all the Armenians were being deported to one place by the Turks, they looked upon this naturally as an invitation to battle and attacked them. And this is how the beastly instincts of men came forth, causing tooting, killing, etc. The expert witness testified further that during the deportation the soldiers who were guarding the caravans were no longer members of the regular select military, but rather "gendarmes", actually vagabonds who, on their own initiative, committed the killings known to us all.
I feel it essential to make this digression to show that the testimony presented here does not identify Talaat as personally and morally responsible for the killings. The various documents that they wished to call to our attention do not convince me otherwise. As District Attorney, I know, for example, that exactly the same sort of documents appeared during our period of revolutionary upheavals, bearing the signatures of prominent persons. After the war, as they later insisted, it was shown that the signatures had been forged. Finally, the verdict of the tribunal in Constantinople against Talaat, mentioned in this court, cannot convince me of his culpability. I do not know if the tribunal had all of the evidence before it. It is possible; however, we must not forget that whenever a government falls, the members of the succeeding government look upon the members of the former government as criminals. I hardly need remind you of the alacrity and upheaval with which a new government came into power in Turkey, that the government of the Young Turks was friendly to the Central Powers, while the new government, on the contrary, was forced to side with the Allied Powers. Therefore, as I indicated earlier, we are unable to tell whether or not the tribunal of Constantinople acted justly in condemning Talaat. I repeat, the testimony of the witnesses did not, in the least, implicate Talaat morally for the killings of the Armenians.
To turn to the homicide. As I indicated, the motive of the defendant was to get revenge through killing Talaat, who he was convinced was the instigator and perpetrator of the massacres of the Armenians.
Gentlemen, this motive of revenge is not an ignoble one by any means; on the contrary, it is an easy one to comprehend as long as human beings are able to love and hate.
Later on, when I ask whether the defendant acted with premeditation, it will be easy to see how motives of revenge made his premeditated killing. When you consider carefully how the defendant, after seeing his parents house in Erzinga in ruins, scoured Europe until he came to Berlin and found Talaat, it will not be difficult to conclude that he was possessed by a fanatical, revengeful idea that drew him like a magnet to the home and doorway of the victim.
Thus, in my opinion, the statement he made when he was first interrogated is absolutely truthful. I have no doubt whatsoever that it corresponds to the truth. At the time the defendant said, "As soon as I saw my parents home in ruins, I wanted to avenge their deaths. In order to do that, I went and bought a pistol..."
Gentlemen, I do not want to dwell on this point any further. There may be doubts about this. In point of fact, the defendant himself retracted his statements to that effect, saying they had been made when he was weak of mind and under the immediate influence of shock caused by killing. But I would like to emphasize a statement which the defendant made to the police inspector and repeated in this courtroom. According to his statement, the first time he thought of killing Talaat was fourteen days before the actual killing. Therefore, we can see how the defendant followed through his intention to the end, with a certain plan and weighing all the factors. We see how he left his previous lodging; how he justified that on health grounds; how he followed him and found out at what time Talaat normally left his house; how, on March 15th, he put his pistol in his pocket, followed Talaat and then passed in front of him to make sure it was Talaat Pasha; how he let the victim pass him so he would be behind him again and how he fired upon him from behind. The aim was well taken; death was instantaneous.
For further proof that this was a premeditated crime, let us look to another statement he made to the police. In answer to the question "Why did you not fire when you were facing him?", he said, "I might not have succeeded. He would have tried to defend himself; he might have moved and I could not be sure that my shot would kill."
Gentlemen of the jury, we also see from the evidence that this crime was committed intentionally and very calmly. You recall how he threw his pistol away and tried to escape. When he was caught and beaten, he said, "The person I killed is not German. I am not German. You Germans have no reason to be saddened on account of this incident. It does not concern you at all."
Taking all these circumstances into consideration, we can only conclude that the killing was carried out in a perfectly cold-blooded manner; it was well thought-out and deliberated upon in advance.
Now let us took at the defendants temperament. Was the defendant hat-tempered or easily provoked? The evidence is to the contrary. He was a gloomy and calm man, wrapped up in himself. He was not one to dance with joy or have fits of passion. On the contrary, he was one who kept his thoughts to himself to a point where he would calmly analyze them and take action.
Thus, in my opinion, it is possible to consider it a totally objectively proven fact that the basic signs of a truly premeditated killing did exist. However, all this would not be sufficient to subject the defendant to punitive measures. We should also determine whether or not there are any extenuating circumstances which, as I said at the outset, would allow the defendant to go unpunished. Here is where Article 51 of the German Penal Code applies; it says that a homicide should go unpunished when the defendant committed the act unknowingly or when he commits the act under the influence of mental anguish that he no longer has control over his free will. Therefore, when the case concerns the act of an individual subject to severe emotional turmoil, the law does not recognize the killing to be punishable; rather, it treats it as an unfortunate accident— just as if, for example, someone were to be killed by the kick of a horse. Under these circumstances, according to the law, there is not a culpable party and, as such, there are no punitive measures to be taken. Hence, what we have to figure out is whether or not there were any such circumstances in the case of the defendant.
Gentlemen, it goes without saying that if all the expert witnesses were to give the same opinion, then the Court would naturally be obligated to make a decision in accordance with their conclusion. Unfortunately, however, in this case, we do not have a unanimity of opinion on the part of the expert witnesses. Consequently, the Court itself is required to decide whether or not the dispositions of Article 51 are applicable.
You heard three of the expert witnesses testify that those dispositions do not apply to this case. It is true that the defendant is an epileptic, subject to convulsive attacks. However, that circumstance in itself is still not sufficient, because the defendant was deprived of his free will only during these convulsive attacks, while he was a normal individual at other times. For this reason, every time it is said the defendant is an epileptic, the Court and the expert witnesses ask the following question: Did he have a convulsive attack at the time he committed the crime or immediately prior? If not, then be acted as a normal person.
The first three expert witnesses were of this opinion while the latter two explained that at the time of the commission of the crime the defendant was not accountable for his actions.
It is then up to the Court itself to decide. Therefore, it is essential to examine the personality of the defendant as revealed by his behavior during the trial. I am convinced that his behavior in Court demonstrated to us that we are dealing with a highly intelligent person. His answers were decisive and always to the point. We should have seen some peculiar behavior, but this was totally absent. The defendant has lived a life like anyone else his age. His economic situation was such that he was not absolutely obligated to seek employment. He visited his relatives and friends and took dancing lessons. His landladies describe him as a calm and modest person. Thus, from all the evidence, we can see that, except for the times when he was suffering from epileptic attacks, he was a mentally competent person. Consequently, I feel we must concur with the three expert witnesses who denied the applicability of Article 51 to this case.
Gentlemen, presumably you are aware that a new penal code will be forthcoming
in the near future as a result of judicial reforms; its rough draft has already
been prepared. That penal code prescribes the death penalty for premeditated
murder, but it recognizes extenuating circumstances which make it possible
to change the death penalty to another and milder penalty. However, the laws,
as they stand today, do not recognize extenuating circumstances. Though I
know that will sound quite severe to some of you, yet I am obliged to request
that you find the defendant guilty of having committed premeditated murder
We should not consider only the defendant, but also the victim. We should remember that a man's life was taken in his prime. His death is mourned by his widow and relatives. He was looked upon as a great patriot and an honorable man at least by his compatriots and coreligionists.
Finally, gentlemen, those circumstances favorable to the defendant will be taken into full consideration by the appropriate body if and when a decision is made as to whether he should be forgiven for his act.
In conclusion, I propose that you give an affirmative answer to the questions put to you by this court, and find the defendant guilty of having killed Talaat Pasha with premeditation.
PRESIDING JUSTICE — Would the interpreter please inform the defendant that the District Attorney has asked the jury to find the defendant guilty of premeditated homicide?
Defense Attorney Adolf von Gordon (privy legal counselor, Berlin).
Gentlemen, the District Attorney mentioned that if you declare the defendant Tehliryan guilty of premeditated murder and thus lay the foundation for the implementation of the death penalty, it would not be a serious matter since the President of our Republic will undoubtedly grant him a pardon.
I do not consider this a permissible way to influence you. If you find the defendant guilty, he will be sentenced to death and none of us is in a position to tell what decision the President of our Republic will take with regard to a pardon. What we should do here is consider the evidence, not speculate whether or not the defendant will be pardoned.
I was glad to welcome, in the person of the District Attorney — in a way a colleague — a supporter; but a supporter, not of Tehlirian but of Talaat Pasha, reporting on what this person or that one had told him. Gentlemen, I will not follow him in that direction. I reject that procedure deliberately.
I have a whole arsenal of telegrams with me and indeed there is a witness sitting in this Courtroom who says, Those telegrams are authentic. I got hold of them. I already made this point during the trial. I made a proposal and then withdrew it because it is essential for us to determine, not whether Talaat was guilty of killing the Armenians but rather whether the defendant and other Armenians were convinced that Talaat was the guilty party.
You have demonstrated that you believe the defendant in this regard. And if, during the trial, there were any doubts, they were eliminated by the testimony of Bishop Balakian, who said, My professor and I, having been exiled together, went to the Vali (district-governor) of Changere. We asked him to help us. He showed us a telegram in which Talaat asked, How many of the deportees are alive and how many are dead? We all understood the meaning of this. This was the only instance when the question of Talaat’s guilt was brought before you. We refrained from presenting any other evidence on this point. Suffice it to say that within a few months, of the 1,800,000 Armenians living in Turkey, 1,400,000 were deported and 1,000,000 of the latter were killed. I will let you decide whether or not this massive and systematic deportation was possible without directives from the top. Was the Turkish government really too powerless to take any type of preventive measures? Do you believe that? I certainly cannot.
As a third preliminary observation, the District Attorney mentioned, with some hesitation and anxiety, the statement attributed to the defendant made the day following the incident in question. These statements purportedly proved that the defendant had premeditated this killing — that the defendant had decided to kill Talaat right after the massacres when he saw his parents home in ruins.
Gentlemen, we should not consider insubstantial evidence. Seated before you is the gentleman who served as an interpreter during the first interrogation of the defendant. The interpreter considered him a great man and he himself was so enraptured by what happened as to consider it a great event. You heard him testify that he found the defendant in a state of emotional shock. He was suffering from fever, he was wounded, beaten, and exhausted to the extent that he answered every question in the affirmative. "Yes, just leave me alone. I know what I have done and what I have done is good. Now I don't want you to bother me anymore." The interpreter further testified that he was asked to translate these statements of the defendant. He told them, "If you had asked him questions in the negative, he still would have answered by saying yes." When the interpreter was then asked to sign the defendants statement, he said, "I shall not sign this because it is not perfectly accurate." Thus, we should only consider evidence presented in this courtroom as the Presiding Justice has already instructed you to do.
The defendant was born in Pakarij and came to Erzinga when he was four years old. This city, one of the largest in the region, is 100 to 150 kilometers west of Garin, on one of the two branches of the Euphrates River which extends nearly as far as Erzerum. There is along, wide valley here which is the way southward, in the direction of the Middle Euphrates and toward the desert, to which Armenians were to be exiled.
In Erzinga, there were some 20,000 Armenians and approximately 25,000-30,000 Turks. The defendants parents were middle-class. His father was a fairly successful merchant. His parents had accumulated modest savings. They were a large and peaceful family. They had suffered somewhat from the war but, until June 1915, everything was quiet and orderly.
Then the disastrous news came from Constantinople that the Armenians were being deported. An announcement was made: You should get together everything that you can carry within a few days, as you will be deported. On June 10th, the deportation began. First the rich and the well-to-do, who had horses and carriages, were deported. This was the first group. The defendant and his parents were in the second group. The defendant is not in a position to testify as to how large that group was. There were many other groups that followed these. Outside the city limits they were joined by the Armenians rounded up from the neighboring villages. The defendant was unable to see the end of the caravan; he walked in the middle of the caravan with his fifteen year-old sister. I believe his sixteen year-old sister was with him as well. His twenty-six year-old sister and her child were there too. In addition there were his two brothers, who were twenty-two and twenty-four years old respectively, and finally his mother and father, who were fifty and fifty-five years old respectively. Thus the whole family walked with their oxcart.
They had not gone very far before they were attacked. Who attacked them? The gendarmes did — General Liman von Sanders described them as they were then — as well as mobs of Kurds, Turks, and others. First they took any weapons the Armenians had, even to the point of taking their umbrellas; they then took their money, gold, and food. They took the most precious possession of the women to satisfy their bestial passions. Young girls, among whom were the defendants fifteen and sixteen year-old sisters, were dragged into the bushes. Their parents and the defendant who were in a ditch heard their shrieks and realized what was happening to them. They never saw the girls again. The defendant was able to see the corpse of one of his sisters when he regained consciousness. What about his brother? His twenty-two year old brothers head — and this was the most shocking sight — was split in two by a gleaming axe. Even to this date, the defendant sees this horrifying image when he loses emotional control. Before his eyes he saw his mother fall, probably hit by a bullet. The others disappeared without trace, even though the defendant constantly tried to determine their whereabouts by means of missing persons advertisements.
The defendant was unable to see more than this as he too was hit from behind on the head by a blunt object. Doctors, even now, can establish the existence of the resulting wound. This horrible blow is the only thing he still remembers. He fell to the ground unconscious and it was evening when he regained consciousness. Surrounded by thousands of corpses, he discovered he had been struck by a bullet in his arm and by a sword in his knee. The scars of those wounds are still visible. In the semi-darkness he was able to determine where he was and even tried to find the bodies of his parents, brothers, and sisters. There was not a single survivor of the massacre in his vicinity. He tried to find sanctuary by escaping from that place. He went to the mountains, which he knew quite well. A kind Kurdish woman gave him shelter until his wounds healed. He then continued his escape until finally, after a months wandering, he reached the borders of Russia. He was apprehended by the border patrol and then released. He was hospitably received by the Russian Armenians, who helped him get to Persia where he was able to find employment with a merchant and earn his livelihood.
Gentlemen, this horrible massacre is so incredible that at first we had doubts as to whether or not the gentlemen of the jury would believe the defendants testimony. And actually a few days ago, opponents published a sensational booklet, entitled The Secret of the Murder of Talaat Pasha, that was tasteless. There is, of course, no secret here since the issue is all together simple and nothing there merits credibility. The young Armenian, the booklet states, had assumed the responsibility to kill Talaat Pasha (it implies that there was a major Power behind the event). The booklet also states, It has been a tool of the barbaric fanaticism which characterizes its race who acted without thinking and without knowing what he was doing. His moving story as to how Turks carried away his parents obviously aims at getting the sympathy of the judges. Had the author of that booklet been in this room yesterday and listened to the testimony given by Mrs. Terzibashian, he certainly would have gone away with a strongly felt need to take back his words.
We would like to introduce here even more extensive evidence. Present in the courtroom are two German Sisters of Mercy who were in Erzinga at that same moment and who sent reports to our Foreign Ministry on the events taking place there. I refrained from questioning those witnesses since it was sufficient that three weeks after those events, our witness, Mrs. Terzibashian, coming from Garin, meaning the east, passed through Erzinga in an equally large caravan and went through the gorge of Kemakh. I would not wish to repeat any of the words she used to describe those horrible events. She already told us about the corpses of the caravans that passed before her. She told us how men and children were thrown into the river. All of this substantial evidence corresponds exactly to the testimony of Tehlirian and that is why I am mentioning this here. What Tehlirian told us here is the truth and not a sensational story.
In 1917 the Russian Revolution occurred. Having captured Garin (in the province of Erzerum), the Russians advanced as far as Erzinga. The defendant, who was living and working in Persia at the time, heard of the advance of the Russians and decided to return to Erzinga to see if any members of his family were alive and generally to check out the situation there. He arrived in Erzinga and saw his parents home in ruins, but still there was sufficient evidence to remind him of the loved ones with whom he had lived and spent his youth. He remembered his happy home as it used to be and when he looked at the ruins, he recalled the events of the massacre and fell unconscious.
There, for the first time, he suffered what later were diagnosed as epileptic convulsions. These fits came on with more frequency later, accompanied by the stench from the corpses, mental images of the massacres, emotional upheavals, nervous weakness, and fainting spells.
What did he see when he came to Erzinga? Out of 20,000 Armenians, three families were left, who were saved only because they had become Mohammedans, plus a few individuals scattered here and there.
Altogether, there were some twenty Armenian survivors.
Gentlemen of the jury, these are impressions that one can never forget. The defendant then remembered that his parents had hidden their hard earned savings. He began to search for whatever was left. Everything in their home was stolen or broken, but over 4,000 gold pieces were still there, buried. He took the money for himself and his family in the hope that one or more members would be found, and gave it to one of his relatives in Serbia for safekeeping. That relative is here; we had asked him to come to testify about the defendants family. However, we no longer need to interrogate him. After a month, the defendant went from Erzinga to Tiflis with the Russian Army, which was withdrawing to the border. There he again engaged in commerce and it was there that he bought his pistol, in 1918.
As was already mentioned, the defendant went back to Erzinga in 1917; that is, two years after the massacres. He remained in Tiflis until 1919. Then, the situation in Turkey having changed, he went to Salonika and from there to Serbia, not to see his relatives or for pleasure, but to find suitable work for himself. He then returned to Salonika and, in the early part of 1920, he went to Paris to learn French, as this was the official commercial language in Turkey. He remained in Paris for ten months and studied very diligently. He was able to read French papers and converse in French very well, considering the short period of time he had studied it. He then decided that a commercial career, with all the traveling, did not suit him and he felt it would be better if he were to go to Berlin and learn to become a machinist. He wanted to go directly from Paris to Berlin, but he was told that it was very difficult to obtain a visa. An elderly Armenian told him that it would be easier if he went to Geneva, where he had a home and by pretending to be a Swiss resident, he would be able to obtain a visa from the German Consulate to travel to Germany.
Tehlirian thus went to Geneva and from there to Berlin on an eight-day visa. The visa was extended in Berlin, as he was told it would be when he was in Geneva.
He had with him the address of the Armenian Consulate in Berlin as well as other addresses. It was recommended to him to stay at the Tiergarten Hotel, which he did for a few weeks. Tehlerian then visited his friend from Paris, Mr. Eftian, who is present here as a witness. He met Mr. Eftian's sister, Mrs. Terzibashian and her husband Mr. Terzibashian, the tobacconist. They looked for a room for the defendant and introduced him to Mr. Apelian who lived on Augsburgerstrasse. Apelian was happy to see that a countryman of his was renting a room in the same building and because the defendant did not speak German, Apelian assumed the responsibility of helping him. Mrs. Stellbaum, Mr. Apelian's landlady, rented a room to Tehlirian until the month of May. The defendant moved in and lived a normal life, like any young man.
He concentrated on studying German and eventually began to meet other Armenians. He seemed to be preoccupied and grieved; so his friends tried to amuse him and, at the same time, provide him with a suitable opportunity to learn German. The three of them then began to take dancing lessons. Tehlirian did not wish to meet any girls; on the contrary, you heard testimony about how naively and simply he spoke with women, apparently to practice German, even then showing a certain timidness.
Other than this, during his free time, he preoccupied himself with music. He played the mandolin and sang sad Armenian songs. In other words, there is no hint of his having had any other purpose than to improve his German in order to be able to pursue college-level studies. His teacher has already been cross-examined here. According to her, Tehlirian seemed to be an extremely diligent and somewhat timid young man. During the last few lessons, however, he began to lose control and could not concentrate on his studies. He had gone to Professor Cassirer, a psychiatrist, because he was having relapses of epileptic attacks. The professor had prescribed medication which had a soporific effect on him. Nevertheless, he continued his studies until February 26th, after which he studied on his own from a German book every morning. In short he steadfastly pursued his goal of obtaining a higher education in Germany.
It is interesting to note, as was stated by all witnesses, that he was extremely taciturn and reserved when it came to expressing his deepest personal sufferings. Whoever has suffered a really deep tragedy invariably does not talk about it with pleasure. Thus, Tehlirian hardly ever spoke about the tragedy to Apelian or Terzibashian. Whenever he was obliged to speak about it, as, for example, with Professor Cassirer, he would only touch upon the subject. He had also mentioned it another time to his teacher when they came across the word birthplace in a translation exercise, whereupon the defendant said, I no longer have a birthplace. My whole family was wiped out. As a rule, however, he would speak freely on the subject only to his one female friend, Mrs. Terzibashian, who had lived through the same horrors and fully understood him.
Thus you see a certain ever-present reserve. Once, when he saw Dr. Lepsius book in Apelian’s hands, he grabbed it from him, saying, Leave old wounds alone. Lets go out.
Gentlemen of the jury, you do not see before you a man who has tried to cling to the memory of those horrors. On the contrary, he has tried to escape them by speaking as little as possible about such matters. As a result, he has suffered, of course, twice as much internally.
During this period, an incident occurred which pierced the tranquility like a bolt of lightning. This was the defendants encounter with three Turkish-speaking individuals on Hardenbergstrasse. Two of them called the third, who was walking between them, Pasha. Tehlirian's attention was drawn to this individual; he looked at him more closely. He compared him to the picture he had seen of him and came to the conclusion that this must be Talaat Pasha. He saw one of the two other gentlemen enter the house at No. 4 Hardenbergstrasse with Talaat Pasha, while the third reverentially took leave of them. Tehlirian concluded that Talaat lived there. This happened in the middle of January of this year.
It is interesting to note that Tehlirian did flat speak to anyone about this
incident. He did not want to become emotionally agitated and did not feel
the need to speak to anyone on the subject.
This encounter did not make him decide to kill Talaat. That is why he did not do anything further. The deep feelings he experienced then passed. He remained calm, and thoughts of vengeance did not occur to him.
He carried on as before until five to six weeks later, when he saw a dream, materially almost like a vision. His mothers corpse arose before him. He told her, I saw Talaat. His mother answered, You saw Talaat and you did not avenge your mothers, fathers, brothers, and sisters murders? You are no longer my son.
This is the moment when the defendant thought, "I have to do something. I want to be my mothers son again. She cannot turn me away when I go to be with her in heaven. I want her to clasp me to her bosom like before." As the doctors explained, the dream ended when he woke up.
It is quite evident that such visions play an altogether different role in the lives of spirited Easterners than they do in the lives of us Westerners, who look upon such things from a philosophical and medical point of view. I remind you of the passage from the Holy Bible which reads: "And the angel appeared to him in his dream." A similar apparition or corporeal vision is what had the decisive effect on Tehlirian. The very next morning he goes to work without mentioning a thing to his countryman Apelian. He finds the President of the Armenian Students' Association, who speaks fluent German, and with his help goes to Hardenbergstrasse deliberately, not, as the District Attorney put it, because he was "drawn like a magnet" — to rent a room from which he can keep an eye on Talaat. He finds such a room on the ground floor of 37 Hardenbergstrasse.
In this connection, we also have to consider his illness which necessitated his procuring a sunlit room with electricity rather than gas. Since the room at 37 Hardenbergstrasse satisfied all these conditions, he rented it on March 3rd, the day after he had the vision of his mother. But since the apartment would not be vacated until March 5th, the defendant was obliged to stay for the intervening two- to three-day period in his old room. Thus, after renting the new apartment, the defendant went to Apelian and told him, "Listen, on Saturday, I am moving to my new apartment." He sacrificed the one months rent which he had paid in advance for his old apartment. He made that sacrifice in order to obtain a new apartment. His thoughts were, "I have decided to kill Talaat, so I have to be near him." At that moment, the defendant wanted to kill Talaat.
Here I differ substantially from the District Attorney with regard to the following. You heard the Presiding Justice repeat a question to the defendant after the latter said something. The defendant did not understand the question the first time. Tehlirian replied, saying that after he had already moved into his new apartment, it occurred to him that he was a Christian — incidentally, the Armenians are among the earliest Christian peoples — and that there existed a commandment against killing. Having realized this, he became totally disinclined to commit a violent act and he abandoned the decision reached a little earlier. He then had the doubt which he described so eloquently: "When I felt ill and pictured the terrible massacres, I would resolve to kill Talaat. But when I felt better and was able to control my emotions, it was clear to me that I must not kill him." All the doctors agreed that there was nothing incredulous in what the defendant said. They said, "It was difficult to get anything out of this man." We, the three defense attorneys, can confirm that. When he is unable to say something with a clear conscience, he will not say it. It is very difficult to penetrate his inner self and obtain information, especially information favorable to him. Therefore, one should believe whatever he says.
There are, however, external circumstances which corroborate Tehlirian's testimony that when he moved into the new apartment, he no longer held to his original notion of killing Talaat. All the time he was there he did nothing in that direction. For example, he never asked the guard at which times Talaat used to leave the house. He did not even inquire if Talaat actually lived in the house. In short, Tehlirian continued to live and work at an ordinary pace — he improved his German, he played his musical instrument. The medication prescribed by Professor Cassirer had weakened him, so he was obliged to discontinue his classes. He called his instructress telling her that he hoped to resume his lessons within a few days. During that initial ten-day period, one cannot speak of any preparatory work against Talaat.
We now come to the day in question, March 5th. his landlady testified that, on the same morning, he drank his tea with a little more cognac than usual. The bottle of cognac had been purchased the day before. The amount in it on March 5th should be taken into consideration. The maid testified that one-fourth or one-third of the bottle had been drunk and not one-third of a liter. This, as was finally determined, is true. The testimony of the expert witness Dr. Störmer that the defendant had been drinking in order to get up courage is totally in error. He drank cognac with his tea because he had an upset stomach. He poured the cognac into a shot glass to measure the proper amount and then mixed it with his tea. He was only taking care of his health.
The idea that the defendant was drinking cognac at nine o'clock the same morning to get up courage does not stand up under scrutiny. Really, how could Tehlirian know that Talaat would appear on the balcony and then go into the street that morning, when he had not seen Talaat for the past ten days? How could he foresee that? No connection can be established here.
Well then, at eleven o'clock, Tehlirian saw Talaat standing in the sunlight on the balcony. He too opened his window. He walked back and forth across the room reading and translating from his German textbook. At that instant, seeing what appeared to be a happy man calmly enjoying the sun's rays on the balcony, the blood surely rushed to his head. But even then, Tehleryan rejected the notion of killing Talaat.
Talaat went back to his room from the balcony and, for all practical purposes, the matter was over for the day.
But then, all of a sudden, a quarter of an hour later, Talaat left his house. Tehlirian was standing at the window and saw him leave. All the horrors of the massacres came over him. He recalled his parents, rushed over to his trunk, took out his revolver, threw on his coat, grabbed his hat, rushed down to the street, darted toward Talaat, and fired.
As to whether he fired from the front or the back, that does not concern me.
Gentlemen, according to the District Attorney, all this proves premeditation. In my opinion, at that instant, an emotional storm overcame that man.
Subsequently, he did not throw away his revolver, as the District Attorney stated, like a man who does not want to look at all suspicious; rather, he let the revolver drop from his hand, like a man who says, Now I have paid my debt. Naturally, he fled to get away from the passersby but was quickly apprehended.
Five seconds after the incident, Tehlirian said, “This does not concern the Germans. He is a foreigner and I am a foreigner”. He repeated this. I am not inclined to find anything premeditated in this entire occurrence.
Gentlemen, this is the incident. This is what happened prior to the incident. This is the man. Now, I in turn shall give my legal opinion on the question, How is the act to be judged?
I want to put aside, for the time being, the principal question: "Is he responsible for his act or not?" Then naturally, I have to ask the next logical question: "Was the incident committed with premeditation?" Certainly there is no question that the act was committed knowingly.
Gentlemen, there is a point which the District Attorney did not sufficiently emphasize. Briefly, the wording used by the District Attorney — "He who willingly kills..." — is not correct. The proper legal question to ask is, "Did the defendant commit the homicide with premeditation?"
The highest court of this country — as the Presiding Justice will certainly tell you later on, when he gives instructions to the jury — has rendered a decision, discussed in the eighth volume, wherein it is very clearly pointed out that there is a distinct difference between our present law and its predecessor, Prussian Law. Under Prussian Law, the pertinent question was whether the decision to commit a crime came about as a result of deliberation.
Thus, under this prior law, when the decision to commit a crime was reached fourteen days before the crime was committed, then, without any qualification, it was considered a premeditated crime.
This is not the case today. In fact, the present law is exactly the opposite of the previous law. The highest court categorically considers the time of the commission of the crime to be decisive.
Therefore, it is not important to know when the decision to commit a crime was reached. To judge whether there was premeditation, all we have to weigh and determine is whether, at the time of the commission of the act, there was premeditation or whether the defendant was acting out of passion and under the influence of strong emotional and mental stress.
I do not want even to attempt to answer this. In my opinion, the answer lies in the very essence of the act. I do, however, want to emphasize that the highest court of this land has very explicitly explained the difference between deliberation and emotion (v. 42, p. 261).
Gentlemen, in all good conscience, I was obliged to discuss the matter of premeditation. Yet, I am opposed to the idea to a certain extent because we, the defense attorneys, shall ask you, with a clear conscience and strong conviction, to give a negative reply to the question: Is the defendant guilty of committing the act of homicide?
You know — and the Presiding Justice will tell you — that the first question starts with the following words: "Is he guilty of ...?" Separate questions wilt not be put to you as to whether he committed the act while deranged, etc. The emphasis is on the word "guilty". Your answer to the question of "guilt" will also be your answer to the question of whether the defendant was responsible for his actions at the time he committed the act.
We heard a whole series of opinions from the psychiatrists with regard to the question of responsibility.
The disruption in the normal functioning of ones emotions is discussed in the law in terms of the absence of free will. Really, gentlemen, it was extremely interesting to see how the psychiatrists developed their theories before our very eyes, with the noticeable exception of Dr. Störmer, the private consultant to the Court who, prior to coming to testify, had already come to a final conclusion and put it in writing. Apart from him, all the others were facing the question for the first time in Court and were even debating with themselves. You certainly must have had the same impression.
Dr. Störmer, our very experienced court doctor, but nevertheless not a psychiatrist, had come to the conclusion that what we had here was a case of simple physical epilepsy. He based his testimony on this Conviction.
You all know that epilepsy, to a limited degree, affects emotional stability. And yet Dr. Störmer asks the following question: Is this the type of epilepsy that affects emotional stability to the extent that free will is completely lost? His answer is as follows: "Free will is diminished but not completely lost."
Subsequently, Professor Liepmann expertly presented a different point of view; namely, that the epilepsy in this case is not physical. The epilepsy did not result in the malfunctioning of the central muscular system and was not a disease of individual nerves. Rather, it was the result of a strong psychic impression which caused the present condition similar to physical epilepsy.
To a certain extent, the impressions left on him by prior incidents, especially the one when he returned to his family's home, made the defendant physically ill. Professor Liepmann states that the defendant was, to an extent, enslaved by this image, his memories, and whatever emanated from those memories. He was further bound by the appearance of his mother and the instructions she gave him.
Professor Liepmann states that Tehlirian lived under constant pressure. He would feel sick whenever the mental images in his memory were revived and the stench of the corpses became real to him. In addition he was under great pressure, a very compelling force. He was an emotionally sick person with a minimal sense of responsibility.
But this elderly, cautious doctor comes to the conclusion that there was not a total lack of free will. At the least, he says, at the least, speaking for myself, I have to say that I cannot come to any other conclusion.
Therefore, as a doctor, he is obliged to take positive factors into account. He cannot say, I take into account extremely unlikely possibilities. He has to have positive medical proof on which to base his diagnosis. Thus, as a psychiatrist, he cannot come to any other conclusion. However, in a cautious manner he adds: On my part, I cannot conclude differently; however, there is only a hairs breadth separating the defendants condition from the total lack of free will.
Professor Cassirer, in essence, came to the same conclusion.
The remaining psychiatrists also rejected Dr. Störmer's view that in this case we are dealing with epilepsy, and that the epilepsy had an effect on the defendants emotional stability. They all came to the conclusion that emotion, emotional turbulence, was the root cause of his condition.
Professor Cassirer spoke about a "delusive distortion of reality." He pointed out that every time the defendant feels sick, he relives his memories with increasing intensity; he concluded that, as a result, there is a basic factor of illness which comes close to bringing Article 51 in play (this is the article which speaks about a total lack of free will). The difference between the provisions of the article and what is medically diagnosed in the defendant's case is minimal from a psychiatrist's point of view. Professor Cassirer then added that, as a psychiatrist, he did not want to say anything more than that, because then he would be overstepping the bounds of his profession and entering into the realm of a judge or, in this case, that of the jury.
In answering a question put to him by my colleague Werthauer, Professor Cassirer stated, "I cannot give a medical answer to that." He added, "Generally speaking, one can only guess as to the condition of the defendant at the time of the commission of the crime."
We now come to the younger generation and this is interesting, psychologically speaking. Professor Forster, an eminent psychiatrist, begins by agreeing with the opinions expressed by Professor Liepmann and Professor Cassirer. But later, as a result of experiences during the war and bearing in mind the emotional illnesses caused by the war and similar phenomena, Professor Forster expresses skepticism. As was known to me previously, he belongs to that group of physicians who find it difficult to accept the application of Article 51. "In this case a very serious illness has played its role," he states. "For a psychiatrist it is very difficult to answer these last few questions because, as scientists, we psychiatrists generally cannot admit to the existence of free will," he adds.
But it is precisely here that a slight variation in the meaning of words plays a very important role. It is a difficult matter when the question of free will is raised and an affirmative or negative answer must be given. Please pay attention particularly to these last words. I will soon reflect on them.
We then heard Dr. Haake, an expert in muscular diseases, who had examined the defendant on February 4, 1921. He was generally in agreement with the diagnosis of the three previous psychiatrists. However, in his concluding statement he stated, "I go further still. This is a case of someone who was overcome by an emotional seizure and the homicide was committed under pressure of his mental images. I find that he was not at all responsible for his actions."
The District Attorney, indeed, has clearly admitted that what I have described to you above, in terms of the testimony of the expert witnesses, is absolutely correct.
As I have already mentioned - and as you can see for yourselves - the younger generation (even though Professor Forster is already 42 years old) is willing to go a step further while the older generation is more cautious. "It is a very difficult matter. We are all frightened to say more than we are in a position to say as responsible physicians. Nevertheless, we do not want to be cut-and-dry either. There can be doubts." The older psychiatrists also say this.
With this in mind, the whole responsibility falls on your shoulders and rightfully so. Gentlemen, I can generally state to you that the role of expert medical witnesses and, for that matter, of all expert witnesses, is only to provide assistance to the judge. They help us come to a decision but it is the judge who has the last word.
Nevertheless, we have progressed another step. Another High Court, the Military Tribunal, has rendered two very interesting decisions concerning this matter. In the fourteenth volume of their decisions, the following is stated:
With reference to Article 51 of the Penal Code, the role of medical expert witnesses ends when they have presented and analyzed their opinions as far as they concern mental illness. It is not for them to decide whether, because of the mental illness, there is a lack of free will or, which amounts to the same thing, whether the defendant is responsible for his actions and should or should not be convicted. The decision on this matter is the sole responsibility of the court.
A decision in the same vein can be found in the seventeenth volume, which states:
The medical expert witnesses will make investigations to find out whether
the mental condition of the defendant at the time of the commission of the
act was disturbed or not. Whether or not the defendant was responsible for
his actions is a legal question and it is for the judge to decide.
But really we do not have to come to any such decisions because, as I have already mentioned, you are basically free to make up your own minds. Even where mental illness is concerned, we are not at all bound by the opinion of the expert witnesses.
On the question of free will, which is an issue in this case, we have a new twist, in that the expert medical witnesses cannot provide us with an answer. Professor Forster pointed out that medical science generally does not recognize the existence of free will.
The question of free will, as is well known, is one of those which has been debated the most, not only by philosophers but by theologians as well. Naturally our penal code does not admit any reference to this matter, concerning which it is impossible to conduct any experiments. The concept of free will is accepted as a fundamental principle of that code based upon the observation of practical everyday life. The law makes the assumption — and it must do so for the stability of society — that a mature and mentally sound individual should have enough will power to resist the impulse to commit an act that is punishable according to our jurisprudence and that he should act according to a general concept of right and wrong.
I now turn to the matter I had referred to earlier and asked you to bear in mind. Professor Forster, having given his personal opinion and having gone farther than the others, said, In any event, there is the existing of essential doubt. I strongly emphasize that the highest court in our nation has stated in numerous decisions what is self-explanatory, that the issue can never be presented as follows: Might there possibly have been such a disturbance inhibiting the free exercise of will power? Rather, one should come to an affirmative answer from the opposite direction; namely, that the individual is completely responsible for his actions.
Even the slightest doubt as to whether free will really existed at the time of the commission of the homicide should be sufficient to justify a verdict of not guilty. If the reasons for the verdict were demanded, it would not be sufficient to make the negative assertion that circumstances had not been brought out that would cast doubt on the existence of free will. Thus, it would be absolutely necessary to prove the opposite; namely, This man was responsible for his actions.
It would seem to me, gentlemen, that the Highest Court has given us direction concerning another essential issue as well: When is there lack of free will? Such direction has been given very clearly, more precisely than the physicians have indicated, since the medical profession does not generally recognize the existence of free will.
I quote, word for word, one of the decisions of the Highest Court: "There is lack of free will when, as a result of derangement from illness, certain afterimages or sensations of foreign influences prevail upon the free will so strongly that a rational, prudent decision becomes impossible to make. Therefore, only when the totality of mental forces, the entire ego, is the author of the decision to commit an act is it possible to find the ego responsible for the act, in terms of that totality."
Again, "Where a compulsive precept is the totally dominant force on an individual such that it is solely responsible for the act, while other influences remain in the background, then it is not the whole ego that is directing the action but a diseased portion of it."
Assuming that you agree with this point of view, tell me, can you categorically insist that the defendant, the moment he saw Talaat leave the house and the moment he made his decision, took the revolver from the trunk, darted out to the street, and attacked him, can you insist that at that moment he was perfectly capable of controlling his psychic drives to render a decision, or was it merely images of his deceased mother and the memories of his persecuted people churning in his mind that were responsible for putting the revolver in his hand? I consider it out of the question to categorically insist on the opposite view.
The physicians leave you in a difficult situation. They leave you with the responsibility of giving an answer. Two of the physicians stated: "No, it is not possible to state precisely that he was responsible for his act."
I believe what I have stated is sufficient for you to decide the path you have to follow, faced with this infinitely difficult problem.
Ordinarily, I know that it is possible to state the following: Here we have a regrettable and tragic incident; an individual is a guest in our country, Germany, and lo and behold, he is killed.
In the present times, there is fighting going on in every corner of the world. The fighting between the Turks and the Armenians continues to this day, with blood flowing everywhere. The District Attorney has already mentioned this point. Under these circumstances, it is easier to accept the act that took place in Germany.
Every person should be of the conviction that during Talaat’s government a sea of blood was spilled, that of at least ore million Armenians — children, women, the elderly, healthy and brave males. If, on Hardenbergstrasse, one more drop of blood was added, we have to console ourselves by saying that it is our destiny to live in these awesome times.
I am far from making a final judgment on the man — Talaat. I have already stated what was possible to state objectively. However, I do want to add one other thing. Certainly, Talaat, like his friends, yearned for the extermination of the Armenian people in order to establish a solely Turkish Empire. Of course, in order to achieve this end, he used means which seem intolerable to us Europeans. Perhaps it is unfair to say that in Asia where human life has a lesser value, such atrocities are comprehensible.
Is it not, after all, in Asia that we find representatives of different world views and where, first and foremost, the Buddhists, with special love, spare human and even animal life? But, nevertheless, I would personally not hold Talaat responsible, because I have to take into account a higher point of view. This is a theory expounded by two prominent Frenchmen, Gustave Lebon and Henri Barbusse, on the atrocities of the World War.
The theory is as follows: Behind the individual perpetrators are certain spirits or demons which push them on. They implement concepts which might be just or unjust as well as mass impulses which move people around as if they were pawns. Those perpetrators feel that they are taking these actions according to their own volition but, in reality, they are doing so under pressure.
No matter how extreme the action might be, as is the case here, we must not be narrow-minded and place the responsibility on one unfortunate individual.
A really horrible fate has befallen us and a small part of that fate is the incident that took place on Hardenbergstrasse. But it would be far more atrocious if a German court worsened that fate by using our calm and deliberate judicial process against this man who has already been subjected to unparalleled sufferings.
It is my hope, gentlemen of the jury, that his concept will be deeply implanted in your hearts, to help you come to the infinitely difficult decision, which is now left to your conscience.
Our job as defense attorneys is a modest one, that of a midwife, to help you in the formulation of your decision.
Defense Attorney Johannes Werthauer (privy legal counselor, Berlin).
Gentlemen of the jury, you will be given instructions wherein you will find the question pertaining to the homicide. Will your answer be "Yes" or "No"? That is the point to be decided on here.
Since I am confident that your answer to the question of premeditation will be in the negative, I consider it unnecessary to speak further on this. Thus I shall only address the question pertaining to the homicide.
The way the question is worded provides the basis for a negative answer. The question does not ask whether or not the defendant killed Talaat Pasha; rather, it asks whether the defendant is guilty of killing Talaat Pasha. This difference is paramount; when you retire to the jury chamber and when you return from there, that should be apparent in your answer. The difference should be foremost in your mind during each stage of your deliberation. That corresponds with German law.
The German law pertaining to this particular point is an old law. It was formulated more than fifty years ago, but it is still good law. If any criticism is made of criminal trials in Germany, it is not a criticism of the law which, in itself, is good, but of its application.
I do not think there is any need to change that law and, in my opinion, the changes the District Attorney mentioned will not improve the application of our laws in the final analysis. The present law is adequate if everyone will just perform his duty.
There is a general consensus that the defendant will be set free. The difficulty is that some of you might think as follows: the defendant has killed someone; does not the law demand that he be sentenced for his act? We are judges of German law. We have sworn to see to it that justice prevails. Therefore, according to the law, we must not set murderers free.
I will tell you that such a conclusion would be wrong and I say that from the point of view of the law itself.
According to our German law, the defendant has to be set free. This is the consensus and, incidentally, this is what the law demands in this case. It remains for me to explain this to you in simple terms.
The defense has no intention of obtaining an unfair decision and thus tarnishing German justice, of which you, as well as we, are representatives.
The whole world is watching us, and the decision that you wilt render will be such that perhaps thousands of years from now it will still be regarded as a wise and just decision.
Therefore, even the function of the defense counsel has to give way before the responsibility to humanity, which is not to confuse you so that you can render a just decision.
But when you have an inner conviction that the defendant should be set free and when the lawyer is here to tell you that this feeling is in complete compliance with even the strictest interpretation of the law, then I as defense attorney have the obligation to explain these things to you in order to eliminate the apparent difficulties before you.
I already mentioned that the jury instructions ask: "Is the defendant guilty?", and I repeat that involved in the word "guilty" is a whole set of circumstances that run the whole gamut of the penal code.
Our penal code has both general and specific sections. The latter pertain to types of crimes: homicide, fraud, larceny, etc. An article in this section states: "He who intentionally kills a human being ... is to be found guilty of homicide." But there is a general provision of the law which occurs before the specific section dealing with separate crimes and which applies to all items in the specific section; therefore it is not repeated each time.
The second article of that general section states that no one can be punished for a crime when no punishment has previously been designated for such a crime. The punishment for designated separate offenses appears in both the general and the specific sections. The general section contains only a few articles essential to our purposes today and, as you have already learned from the discussions, they constitute the separate and debatable points which are subject to your consideration.
Article 51 of the general section specifies that, under certain circumstances, there is no punishable action, even if an individual has committed one or another of the offenses enumerated under the specific section of the law, such as larceny, murder, etc. That is the article that pertains to the mental condition of the author of the crime.
Two articles later occurs another article that explains imperative self-defense. Imperative self-defense we understand to mean defending oneself against an attack. However, the third paragraph of that article goes on to explain that, even if there is an absence of the circumstances for imperative self-defense, yet because of the experiences of terror and panic suffered by the defendant, he might have crossed into the realm delimited by the concept of self-defense. Under these circumstances, he should also be set free.
Later on, I will come back to these two articles, as they are the only ones which will bear directly on your decision.
As was already pointed out, the first sentence of Article 51 states that
no punishable crime has been committed if the author of an act was in an unconscious
state during its commission, or, as the second sentence of the same article
adds, if he committed the act at a time of mental turmoil.
Therefore, in the same article we have two different concepts fused — a serious loss of consciousness and impairment of ones mental capacity. Certainly, there are instances when both factors are present. That is probable in our case. What I mean to say is that the two factors mentioned in Article 51 are so clearly evident in the present case that the defendant can justifiably be set free not just on one, but on two grounds.
As was already mentioned, doubts can arise concerning such matters. To the
question: Has an incident really taken place which is already in the past
and which no one personally saw or experienced? Each of you can give an affirmative
or a negative answer. But the answer could also
be the following: "I do not know."
For example, if one asked whether such and such had ever been invented, one
could answer: "Yes, I am certain of it." Another could emphatically
state: "There is no such thing." A third may, in turn, confess:
"I do not know. I am not interested in that sort of thing." The
very same could apply in our case.
We should always keep in mind that jurisprudence is not witchcraft, but rather the application of mans rational mind. To go beyond this real boundary is to embark on the wrong path.
The simpler and clearer our approach to the case, the easier it will be to come to a decision. This young man's act took place on March 15, 1921. Does Article 51 come into play in this case? Was there a lack of consciousness or was there an impairment of his mental faculties at the time?
The defendant has already testified. So have the witnesses. The expert witnesses have already expressed their opinions. You have heard everything of significance that pertains to this case. You now have to make your decision.
It is possible that you will say: "The defendant was totally sane." It is also possible that some of you might say: "He was not sane. His mind was deranged." But it is also possible that some of you may conclude: "We do not know. That remains doubtful in our mind."
A decision of our High Court concerning a similar case was already cited here. The High Court, of course, renders correct as well as incorrect decisions. But if one of its decisions is correct in its essence, then it would be possible to include that decision here not because the High Court is an authority — generally speaking, in the realm of law there are no other authorities beyond the authority of that which is right. However, if a decision rendered by the High Court is correct and if our rational human judgment tells us that it is so and that the decision is objectively correct, then we can utilize such a decision as a basic condition, without any qualms.
The decision of the High Court is as follows:
If the absence of responsibility has definitely been accepted as a foundation
that would abrogate any punishment, then, according to Article 266 of our
Code of Penal Proceedings, it would not be sufficient to make a determination
that the act was done intentionally, without giving an explicative argument.
Thus it would be essential to determine that none of the conditions specified
in Article 51 applied to the author of the act.
It is not enough to determine that the litigation has not provided us with any basis to admit a condition of irresponsibility. On the contrary, however, it has to be positively determined that the author of the crime, during the commission of the act, did not fall under the categories of Article 51.
Therefore it would be necessary to establish positively that the disturbing influence did not exist at the time the crime was committed. But if there is any doubt whatsoever that such influences might have existed, then the defendant must be set free.
That is the direction given to us by the High Court, to which no serious challenges have been made as of yet, because the decision is truly in accordance with sound human judgment.
Therefore, on the basis of this litigation, if you should have no doubts that on March 15, 1921 at 11:00 o'clock, when the defendant fired the bullet he was totally in possession of his free will — that he did not lack free will as a result of impairment of his consciousness or deranged mental capacity — then you will have to say: "We do not have any doubts." But if you should have any doubts at all on that score, then you have to set the defendant free.
If there are some among you who feel "It is absolutely certain that the defendant must not have been in complete control of his mental capacity" and if others among you feel "We have doubts whether or not he was in control of his essential mental capacity", then you are both of the same mind and that will be sufficient to have the defendant acquitted.
An affirmative answer can be given only by those of you who have no difficulty in stating: "We declare that, at the time of the commission of the act he was in complete control of his mental capacity, as stated in Article 51. His free will was in no way interfered with, either by serious impairment to his mental capacity or because he was in an unconscious state."
With your permission and in order to facilitate your decision-making process, I would like to fill certain gaps in the expert medical witnesses testimony.
It is important to analyze the psychological feelings of Tehlirian at the instant he fired the shot. It is also important, for a few minutes, to explain to you the very essence of this action, motivated psychologically by external factors and committed physically by the given person. In other words, in reality, at what point did unconsciousness and impairment to his mental capacity set in?
The expert medical witnesses should have explained to you that, according to the theory prevailing at present, the activities depending on the will stem from the impressions that are present in ones head. These impressions are transmitted from the cerebrum via paths to the spinal marrow, which commands the arm to rise, the eye to see and focus, and the hand to squeeze. This is the normal function of the brain. But if the normal functioning of the will is disturbed as a result of any unhealthy phenomenon, or if consciousness ceases in the cerebrum for an instant, then, under these circumstances, free will no longer exists. Unconsciousness and derangement of the mental capacity have eliminated free will.
Even though my colleague von Gordon has already read it to you, I would like again to cite an important passage:
According to Article 51, free will is understood to be the ability of man
to organize his will in a new, singular and perfectly distinct manner, concisely
and finally, on the basis of various motives constituting the progress of
the will and the forms of impressions or feelings that oppose or assist that
progress. In other words, a "decision" which is the expression of
the authority or reign of ones entire personality with regard to the particular
aspect of progress of the spirit.
That capacity must not be simply limited or diminished, but totally missing, because it is not possible to subject separate emotions, accentuated by means of feeling and impressions, to the authority of the whole and make them the general will of the Ego without difficulty.
Self-determination is tacking in the absence of the capacity to concentrate all the energies of the spirit so as to embrace separate motives and to mold them creatively into a singular volition with a new content. Nevertheless, a decision of the will is not made simply by virtue of the fact that the Ego governs the different motives and unites them; rather one or another of the motives becomes dominant and a decision is produced which controls the Ego.
The technique of shaping the will here is, of course, the same as it is in the process of self-determination except for one difference, i.e., no longer is the Ego, as the total of all the mental abilities, in control nor does it determine the will. Rather, one of the separate elements of the will constitutes the deciding factor.
Free will is lacking if, as a result of pathological impairment, certain impressions or feelings exert such strong control over the will that a free, rational determination of the will becomes impossible. Only if the entirety of mental abilities, the whole Ego, is the maker of the decision, is it possible to attribute the act stemming from that decision to the Ego.
With this quotation, I have revived one of the most difficult legal and medical issues. However, I am convinced that it is possible to go over this issue in such a way that anyone with a healthy judgment will understand and agree with the reasoning involved.
You saw that our jurisprudence is entirely in accord with the finding that if, in the cortex or in the central nervous system, there is some part which has become diseased or there are senseless alien images in the cortex which adversely influence the normal process of the operation of the will power, then that individual no longer can exercise his free will. In that case, there are pressing images which, to a certain extent, absolve the accused of responsibility for his actions.
After these legal explanations, you will be able, quite straightforwardly, to make an assessment of the present case.
Let me add something that has been so often repeated that its part of our daily language: "He is having dizzy spells". What this means is that, at a particular moment, an individuals free consciousness is disturbed. In that condition, a man will do something which he would not otherwise.
Allow me to remind you of another decision of our High Court. A man with a contrary disposition goes to church. The priest gives a sermon which runs counter to the convictions of the individual. He listens more and more intently and finally he becomes irritated to the point where, unable to control himself any longer, he shouts out, "Be quiet! What you are saying is a lie." That individual is taken to court for having disrupted the sermon. However, he is set free because, as a result of what the priest was saying, his consciousness had been disturbed and the blood had gushed to his brain in such a way that at that particular moment he was no longer in control of his wilt power.
Now, all that has been stated during the trial concerning the defendant can be reduced to a few essential points. It can serve as the fulcrum for your decision as to whether he was in control of his free will on March 15th at 11:00 o'clock.
The disagreement among the expert witnesses does not concern you, because your decision must be based on your own conclusions and not those of the various physicians.
If you wish to make an objective judgment on the disposition of the defendant's will and his inner feelings at the time of the act, then you should consider the fact that he belongs to a Southern race. The Southern races, as is evident, are more easily excitable than the unemotional ones of the North. Besides that, you should also take into consideration what the District Attorney has already mentioned, that Armenia has a bloody history.
It is well known that wherever the Turks have set foot, they have carried a bloody flag with them. In 1683 the Turks even reached the gates of Vienna. If they had come to Germany, there would not be much left in this country either. There is a history of bloodshed among these Southern peoples, not only in the case of the Turks but also in that of the Armenians.
Then you heard that the defendant had suffered from typhoid. You know that if someone has contracted typhoid or malaria, often such a person cannot be considered normal for several years.
We also heard that the defendant drank more cognac than was customary for him on account of a stomach ailment or for some other reason. Consequently, in this regard too, his mental balance was not completely normal.
Objectively it can be added, as was stated in this courtroom, that at the time of the incident the Armenians and the Turks were in an officially declared state of war. Whenever these two nations encountered one another, they confronted each other as enemies and, to a certain degree, looked upon it as their right to treat each other as warring parties. When the defendant said, "He is a foreigner. I am a foreigner. This does not concern Germany", he should have merely added the following: "We are in a state of war with one another."
You also heard that a sentence of death had been brought against Talaat. A decision of a court is either recognized or not recognized. If we do not wish to recognize a decision of another court, then we can not demand that other courts recognize our decisions. The decision of the death penalty for Talaat was rendered by a court-martial. I am personally opposed to military tribunals and court-martials. It is my personal feeling that if a proper court is convened, then it is no longer necessary to have special courts set up. Nevertheless, wherever we have military tribunals and court-martials, we undoubtedly also have honest judges who render just decisions. I do not have the slightest doubt that those high-level and educated judges, who meticulously examined and tried the criminals of Constantinople, rendered just decisions.
Moreover, it is certainly inexcusable to state that the decision was rendered under pressure from British warships. I have never heard of British judges being influenced in such a manner. One can speak either for or against the British, but we must not forget that British justice has served as an example to be followed for all time and in numerous countries. Therefore, it would be erroneous to state that the court-martial in Constantinople rendered its decision under pressure from British warships.
It would be more correct to examine the basis of that decision. It would then be quite evident that, as one of the witnesses here proved, the charge concerning the massacre of the Armenians and the four other charges were brought forth and, on the basis of these five points, the defendants were convicted and given the death penalty.
One of these defendants was in Constantinople at the time of the trial. He was apprehended and executed. I am as opposed to the death penalty as I am opposed to murder. And I do not believe the problem of murder wilt be solved as long as we have the death penalty. I am of the general opinion that killing should not be permitted under any circumstances.
Subsequent to that trial, Talaat was forced to escape and hide under an assumed name so that the death penalty handed down against him would not be executed.
I have no doubt as to the justness of the decision. That decision holds Talaat responsible for his misdeeds. But that decision also has an effect on the Armenians. Even a reasonable Armenian will say to himself: "This man has been condemned to death. Therefore, he is the author of the crime and deserves the death penalty."
Then, we also have to consider the concept of self-defense. Those individuals, Enver and Talaat, lived in Germany under assumed names. It was stated in this court that they were the "guests" of Germany. I shall categorically reject that statement. I do not believe that the German government would allow such criminals who have fled from and abandoned their country to be "guests", to hide here under assumed names.
Is it not true that one of those individuals just recently fled from Germany too? According to the papers, Enver has again gone to Russia to forge new projects with the Bolsheviks, one of whose aims is to wage war against the Armenians and annihilate them. If Talaat, as he of course wished, had followed Enver, most probably new atrocities would be committed against the Armenians within a few weeks.
If an individual, as a liberator of his people, kills a man who engages in dangerous and criminal activity against that people, certainly this is how he would reflect on it: "This man is an enemy to the Armenian people. If he leaves Germany and, like Enver, joins the Bolsheviks, our women and children shall be massacred again." In this sense, we find that the concept of imperative self-defense is relevant to the defendants act. Though unacceptable in terms of our jurisprudence, nevertheless the concept of imperative self-defense exists here in the broad sense of the word. In any event, the defendant certainly felt fear upon confronting Talaat again.
Having explained this objectively, let us now examine the testimony of the expert witnesses. You heard the debate among the expert witnesses on the question of epilepsy. The expert witnesses are assistants to the judge; they should state only that which, based on their expertise, can aid in the pursuit of justice.
If, as a result of the collapse of a house, an individual is killed, it could be said that the architect was responsible for the death of the individual. But I would never leave it up to the expert to determine whether the architect was responsible for the individuals death. That is not his job. He can only say whether the house was constructed property or improperly. After all, other factors could be responsible for the collapse of the house. Similarly, the expert medical witnesses cannot say whether or not Article 51 is applicable in this case, because it is the psychologist who must answer the question of unconsciousness at the time of the killing and not the expert medical witness.
The job of the physician is to explain the causes of disease and not its influence on the individual. When the matter concerns illness, I have to ask the physician and then he can tell me all that he knows of his field. However, he does not have the right to interfere in the realm of the jurist. Does Article 51 come into play in this case? This is a question which, in my opinion, does not concern the expert medical witness at all.
I have to confess that, for practical reasons, we, the defense attorneys, often ask the physicians during judicial proceedings whether their opinion pertains only to the defendants illness or to the influence that the illness has had on his will as well. In this connection, they are often asked whether or not Article 51 is applicable.
I personally would never ask the latter question. If the Minister of Justice, upon assuming his new post, were to ask me what would be his first act, I would reply: "Prohibit the practice of asking medical experts whether or not Article 51 must or can be applied in a particular case and forbid the medical expert to answer that question." The responsibility of the physician, given his abundant store of medical knowledge, is to examine and describe, in the minutest detail, the physical condition of the individual. He has nothing to say about the question we are deciding here.
You heard the expert medical witnesses, with the exception of Dr. Störmer, state that they do not readily discuss that question because physicians have different views about will, its limitation, etc., than lawyers. Nevertheless, each of them did give an answer to the question without taking any responsibility for the judicial answer. Some of them answered no to the question; others, yes. Only the first witness positively stated that it was impossible to apply Article 51. I do not wish to demean Dr. Störmer. I have a great deal of respect and admiration for him. But his opinion is not practical, as I am sure you also noted.
Dr. Störmer's diagnosis of epilepsy was wrong. He diagnosed a physical epilepsy, while all the other physicians and, I think, all of us, do not doubt that the defendant suffered from psychological epilepsy. The first expert witness did not completely research the causes of psychological epilepsy and, as a result, made an inaccurate diagnosis. I accept that his opinion was carefully and exactly thought out, but that does not stop me from saying that it is incorrect. One can present a detailed analysis but arrive at a very wrong conclusion, while another can give the right diagnosis on the basis of a half-hour examination.
Dr. Störmer's colleagues explained why his opinion was incorrect, doing so in a most proper fashion. These expert witnesses tell us that the defendant suffered from psychological epilepsy; that is as a result of psychological disturbances, he suffered physically from epileptic attacks.
It was already stressed quite precisely that we do not know whether the defendant suffered from an epileptic attack the night before the killing or even that very morning. Such attacks can come and go without the patient knowing whether he has had an attack, and it is only after the attack that the patient feels weakened or some such thing. In answer to my question "Can you state whether or not the defendant suffered an attack the night before the incident?" Dr. Störmer answered plainly, "No, I cannot determine that. The defendant did not say whether he had an attack. I do not know if he had one or not, but it is possible, of course, that he could have."
Therefore, what one of the associate justices wished to add to the medical testimony is extremely important; namely, that such attacks can take place without the defendant being aware of them. In that case, the mental reaction to such an attack can last for a long time, for days even. Therefore, it is not essential that such an attack have taken place right before the killing, the night before, or the very morning of the incident.
We heard about an actor who experienced epileptic attacks. One day he just did not go to the theater; he left town and disappeared, and no one knew where he had gone. He was in a condition to buy a train ticket, travel somewhere, and go to a hotel, yet did not know what was transpiring on account of his epileptic state. He lacked a whole set of mental and psychic prerequisites for having such knowledge, obviously because of serious impairment of his consciousness.
The Associate Justice asked Dr. Störmer: "Do you know perhaps if an epileptic attack took place prior to the killing or not?" That question contains the most essential point of the case. And when Dr. Störmer responded by saying, "No, I do not know", he had fully stated his opinion as far as I am concerned.
The other expert witnesses looked at the problem in a much broader tight, not any more diligently but, rather, scientifically.
In any case, you know that the defendant had received a serious blow on the head, and that on the morning of the killing, because he was not feeling well, he drank cognac.
According to the physicians, the defendant was suffering from psychological epilepsy and had experienced nervous breakdowns. Such esoteric explanations, in themselves, cannot impress anyone, but what the physicians wish to convey by them is intrinsically correct.
The expert witnesses explained that during the 1915 massacre, which claimed his family among its victims, the defendant regained consciousness after receiving the blow to the head and smelled the stench of the corpses. Later on, whenever he remembered those incidents, he always smelled the same stench. This, according to the physicians, was a sign that the defendant was suffering from inner turmoil, so that whenever the scenes of the massacre were revived in his memory, he no longer had control over himself.
If I am in complete control of myself, I do not get the sensation of smelling a corpse by smelling an inkstand. But if I know that the ink stand was used to kill an individual and if, when smelting the inkstand, I think I am really smelling a corpse, then I am no longer in control over my free will.
As you know, there are such things as "attacks of dizzy spells" and there are individuals who feel that they are prone to having "dizzy spells". When they climb a mountain, they have to hold on to something, even though they are in no actual danger of falling. In the same sense, there are certain fantasies which cannot be repelled. For example, a person looks out a window and constantly thinks he has to jump out. In that case, it is best for him to close the window and get away from it. Who can really say that the individual, if he is psychologically disturbed, will not jump? Psychological impulses cannot be resisted. The expert witnesses nicely explained this to us; we can take their word for it.
Now, each one of you is asking himself: "What happened in the psyche of the defendant? What constraining images took possession of him?" The defendant himself gave the best explanation — seeing Talaat. When the defendant came to Berlin, he was not thinking of killing Talaat. He was not thinking of Talaat even after he had stayed here for a month. But then, one day, as he was crossing Hardenbergstrasse, he saw three Turks and noticed how one of them bowed to the other and called him "Pasha". Comparing the man in front of him with pictures he had seen in newspapers, he recognized that the "Pasha" was Talaat. At that instant, Talaat became for him what is called a "red flag".
He saw the same man the morning of the incident. Talaat came to the street. What images were crossing the defendants mind as he picked up the revolver, went down to the street, and fired the bullet? These were surely linked with the person of Talaat.
It was not my intention to bring politics into this courtroom, but I have to point out that it was the District Attorney who broached the subject by saying certain things about Talaat. If the District Attorney had refrained from doing so, then I would not feel obligated to give my own opinion of Talaat.
It was mentioned that this was a killing of an "ally" of Germany. That is not correct. Talaat and his Committee were the allies of our previous Prussian-German military government. The Young Turks have never been the allies of the German people. However, because it was stated in this courtroom that Talaat was the ally of Germany, I cannot let the opportunity pass and, indeed, feel it is my personal obligation to stress that those Young Turks were never the allies of the German people.
It is true they overthrew the old Turkish government and were in control of the government for some ten years, at the cost of untold human lives. It is also true that the previous German government had allied itself with them. But the German government had also allied itself with Lenin and Trotsky and had helped them cross over from Germany to Russia to start a revolution. That same government had asked Haze if he knew of a few revolutionaries or anarchists in our country whom it would be possible to instigate to bring about a revolution. But to say that Talaat was an ally of the German people is totally unacceptable to me under any circumstances.
It is possible that Talaat, as an individual, was a decent fellow. But he was a member of a militarist cabinet. A militarist is a person who is opposed to justice. The militarist is not an individual who is a member of the military by calling. It is possible to be an officer or a soldier, wear a uniform, use weapons and, at the same time, not be a militarist. The officer or soldier himself can uphold the principles of right and justice and perform his duties as a member of the military at the same time. On the other hand, there are countless militarists who have never put on a uniform. They sit at a desk, write articles, and fiercely defend the flag of brute force. The militarist is a man who believes in brute force, not a man who believes in justice. The latter places justice above everything else in the world. If he is a believer, right after God comes justice and next in line for him is man. If he is not a religious person, then man, as a saint, takes first priority in his eyes.
The militarist thinks differently. He is a man who believes in force and justice has meaning for him only to the extent that it is possible to "accommodate" it, as expressed in the common phrase, "to military exigencies".
You will find militarists all over the world. They are not unique to any one nation or country. They form a caste, a united and homogenous class, consisting of those who believe in the right of force, as opposed to the ranks who believe in justice.
At the present, we ourselves are also suffering frightfully from the militarists who are bound to a decided influence across the Rhine. Who knows how much we will endure at the hands of these people who believe in the use of force? We too have had our share of militarists. We sent certain persons to Turkey to give the Turks military training, which we had no business doing. We saw militarists in Russia and now it is the Bolsheviks, the real militarists, who are running the government.
We find militarists everywhere. They look like human beings. They have brains, but the part of their brain that represents justice is missing. Just as there are well-trained animals that wilt never be able to have human feelings, so too there are militarists who stand ready to oppose all nations. They believe in war and force. It is these believers in brute force, and not the Turkish people, who annihilated the Armenians.
The order to deport a whole nation is the most monstrous act the militarist mind could conceive. If, as was emphasized in this courtroom, the Committee of Young Turks believed that the regular gendarmes were at the front fighting and that only the irregulars were left as gendarmes, then it had no right whatsoever to give the order for the mass deportation. And if, nevertheless, the Committee gave the order and entrusted the task of deportation to such persons, then it is responsible for the consequences. I would put the matter the other way around. Certainly the gendarmes were guilty of the crimes they committed on the roads, but they were not as guilty as the man sitting in Constantinople who charged such untrustworthy persons with the responsibility of carrying out the deportation.
I believe in the idea that the private individual never has the choice of deciding whether he wants to go to war or not. Once war has been declared, that individual is obliged to go to war whether he likes it or not. When the fortunes of war turn against his people and he is taken prisoner, the enemy must bear in mind that it is not the prisoner who brought about the war; rather he has acted as the representative of his people according to his obligation. Every prisoner is a saint because he is a representative of his people who has been forced to go to war in defense of his home and his fatherland and now, because of the misfortunes of war, has been taken prisoner.
He who swears at a prisoner or raises a hand against him, in my opinion, no longer has a place in the society of decent human beings. In each prisoner I respect the representative of his people, who has been fighting for his fatherland and has had the misfortune of becoming a prisoner. The government of Constantinople should have borne this in mind.
Even if the Armenians had allied themselves with another country and even if a misguided leader of the Armenians had joined the Russians and thus committed treason, nevertheless the Young Turks knew that there were thousands of innocent women and children who knew nothing of such occurrences. Furthermore, the first condition of the order for the mass deportation should have been rigorous arrangement for the care of women, children, and those men who had nothing to do with their leaders.
If I were not generally opposed to capital punishment, I would consider the
death penalty fair under any circumstances for the individual who, for military
exigencies, gives an order without shouldering the responsibilities for its
repercussions on the innocent
I consider it simply nonsensical when, outside this courtroom, it is said that the reason for the deportation was that the Armenians had become allies of the Russians and that military exigencies required such action.
If you look at a map of the Caucasus and the Ararat region, you will see vast expanses larger than Germany. An unfortunate people has lived there for over 2,000 years. South of it, on one side, stretches a vast fertile plain which has always excited the appetite of conquering nations and, on the other side, is a horrid desert. Above that area are the mountain passes which have always been under the control of others. Whoever has control over these mountain passes also has control over the whole region. The Armenian peasants who living in this area have been booty for those invading from either the east or west.
For over 500 years, Armenia has been divided into three segments. One race after the other has dashed across Armenia. The same races that laid waste to Asia proper and Hungary and advanced as far as the Rhine River — marauders like Attila, who continue to live in our childhood memories — also invaded Armenia in a most horrid manner to annihilate its people.
It was a population consisting largely of artisans and farmers that the Young Turk government attacked. When we speak of the Young Turk, we mean the old Turk; the latter means one who believes in brute force, a militarist.
The reasons for the Armenian massacres were not only religious, but political as well. We have already heard testimony concerning the political motivations. On August 1, 1914, when the World War broke out, the members of the Young Turk Committee thought they could now settle their accounts with the Armenians, since none of the Great Powers could help them any longer. We heard from Dr. Lepsius how, on prior occasions, one or the other of the Great Powers had always helped the Armenians. International treaties had been concluded to improve the lot of the Armenians and guarantee their rights so as to allow them to become a full-fledged nation. But, lo and behold, the World War broke out and the Young Turks had an opportunity to solve the Armenian problem once and for all. But this was not the only motivation for the massacre. We heard testimony concerning two Armenian families who, having been spared from deportation and massacre, remained in Erzinga and had to convert to Mohammedanism to stay alive. This indirectly provides the answer to a question from one of the jurors. There was also religious hatred and fanaticism. They wanted to massacre the Christians, they wanted to have only Moslem Armenians left because they hoped that, according to the teachings of the Koran, it would facilitate the implementation of the old Turkish concept of the use of brute force.
The old Ottoman Empire, with all its conquests, rested on the concept of military power and this concept is irreconcilable with the teachings of the Old and New Testament and probably even with the correct interpretation of the Koran. Above all, in terms of its content, it is irreconcilable with the principle of "love thy neighbor as thyself".
Thus, the Young Turks took advantage of the opportunity to annihilate the only Christian people living within the Empire, close to one of its distant borders. They did not dare do this to the Armenians in Constantinople. However, they did it to those in the interior by means of orders sent to the governors of those provinces. We have, right here in our hands, the copies of the orders the Young Turks gave to wipe out the Armenian nation. They further gave orders that those governors who were friendly to the Armenians were to be sent elsewhere and, if that was not effective, were to be dismissed from office.
Thus, we have before us the killing of an entire nation, the responsibility for which falls on the Committee of the Young Turks and particularly on their most influential minister, Talaat Pasha.
At 11:00 o'clock on March 15, 1921, the defendant was weighing the numerous atrocities suffered by his people for more than a thousand years. The defendant was well acquainted with the story of his people. In addition, in 1915, he was personally involved in persecutions in which all the Armenians of his city were massacred a half hours distance beyond the city limits. The shocking experience of this massacre had had a significant influence on the defendants inner self. All that he had experienced appeared before his eyes on the morning of March 15th.
Think of the story of William Tell. Gessler makes fun of and jeers at the people. He erects the sign of slavery. He forces Tell to shoot an arrow at an apple placed on his sons head. The project is of the same type as the one executed by the old Turks, those who believe in force. What passes through William Tells mind passes through Tehlirian's as well. Of all the juries in the world, which one would have condemned Tell if he had shot his arrow at Gessler? I ask you, is there a more humanitarian act than that which has been described in this courtroom?
Tehlirian is the avenger of his people, of the one million Armenians who were killed. He is the one who is standing up to the author of those massacres; he is facing the man who was responsible for the annihilation of his people. Is this not an irresistible impulse? Do we need the image of his mother in order to have medically acceptable coercive images? Now we do have that image as well. The defendant is also the representative of his family, his mother. His mother tells him: "You are no longer my son."
All these impressions fill the defendants head as he picks up the revolver and descends to the street. He descends as the representative of justice versus brute force. He descends as the representative of humanity versus inhumanity, of justice versus injustice. He steps forward as the representative of the oppressed against the collective representative of the oppressors; for the one million killed against the one who, along with others, is to blame for those crimes. He stands as the representative of his parents, his sisters, his brothers, his brother-in-law, and, finally, as the representative of his sisters two-and-a-half year old child.
The Armenian nation, from thousands of years ago down to its youngest child, stands behind Tehlirian.
Tehlirian carries with him in his thoughts the flag of justice, the flag of humanity, and the flag of vengeance to uphold the honor of his sisters and relatives. With all these thoughts in mind he confronts the one person who violated his family's honor, destroyed the well-being and happiness of millions of people, and physically annihilated a whole nation. The defendant became a psychologically disturbed person. You, gentlemen of the jury, have to decide what went on in his mind at the time of the killing and whether he was in control of his will.
Gentlemen, I am firmly convinced that, even before I uttered a word, you had already come to the conclusion: "It has not been proven that he was in control of his will." If my humble words have added anything, it is to give the legal basis so that you would know how to judge this case juridically.
Please observe, gentlemen, that humanity is attentively awaiting your decision. Simply decide the following: "He is not guilty. The rest does not concern us."
Defense Attorney Kurt Niemeyer (privy legal counselor and professor at Joel University Law School).
Gentlemen of the jury, there is just one question which we must answer, because it is the one and only question facing us. That question is as follows: Is Soghomon Tehlirian guilty of having committed murder? Must he be beheaded to pay for the incident of March 15th? Each of you personally has to solve two problems.
First, you have to reconstruct what is real in itself, corresponding as much as possible to the truth, and that has to be done in terms of the provisions of our Penal Code. Second, you have to calculate what meaning your judicial activity has. The latter is of two kinds.
The Penal Code consists of many articles other than the few mentioned previously.
The articles are composed of paragraphs. The paragraphs are composed of sentences;
the sentences, of phrases; the phrases, of words; and the words, of syllables.
Before and after each article and within it are an endless multitude of things
which we call "legal strings".
There is no perception or interpretation of judicial codes or articles of laws which logically cannot be defended. If the issue were merely that, then I would not have the honor of being here, I would not have the confidence of my colleagues and of the friends of the defendant who are relying on me to defend Soghomon Tehlirian.
My duty is to explain, as a teacher, the essence of a jury trial. It is the purpose of the law to recognize interrelationships between and impart living meaning to dead articles. For the most part, we can do that in a way that corresponds to the philosophy of life, the philosophy of government, the philosophy of the community, and the universal well-being of mankind.
Trial by jury is one of the oldest methods of trial. The Germans, the Romans, and the British started their judicial systems with the jury trial. The Roman judge and the German "Schoffe" were jurors, ordinary men without any expertise in the law. The lawyer was only the administrator of the trial.
Even though correct understanding of the logic underlying strict, definite, two-edged legal concepts and articles is necessary for technique, interpretation, preparation, and instruction, it cannot be the final and definitive factor in the pursuit of justice. This is the raison d'etre of a jury trial — to look at both sides of a question. That is, on the one hand, to evaluate the essence of the incident through ones own free contemplative powers, independently of the rules of formal proof; and, on the other hand, to evaluate the meaning of the disposition of the law.
Now I shall speak briefly about individual technical matters and only to the extent I consider absolutely necessary. I shall speak on the relationship of the act. I shall not address the question of whether the act was premeditated or not. I shall not speak about extenuating circumstances. I shall say next to nothing about a pardon which would correct the injustice we could commit here. I have no doubt in my mind that, at the instant the incident took place — this is the only object of concern — no deliberation occurred even if before that minute deliberations had taken place.
In my opinion, the question of whether the defendant is capable of giving an accounting of himself has already been touched on. I say this for two reasons. One is that the medical expert witnesses, especially Dr. Störmer, who spoke the most unfavorably concerning the defendant, categorically stated: "As to his psychological state at the time of the commission of the act, that I do not know. No one can know that." Professor Cassirer stated the same. If no one knows that, then no one should decide the matter as he would if he did know.
The second reason is that the defendant committed his act without any play. It would have been so much more understandable if the defendant had pursued Talaat longer. He might have found better opportunities to kill Talaat than the one which presented itself to him on Hardenbergstrasse. However, I do not want to get into any more details on this. In my opinion, it has already been established that, at that instant, there was no premeditation and that the defendant was not in control of his free will.
I will put the greatest emphasis on the following article of the law, on which you will base your decision: He who intentionally and with premeditation kills a human being will be punishable by death.
Assume for a moment that you answer the question in the affirmative. Assume that Tehlirian's head fell under the executioner's axe and finally assume that, under different circumstances, someone filed a lawsuit against the executioner for having killed with premeditation. After all the article says: "He who intentionally and with premeditation kills a human being will be punishable by death."
Gentlemen of the jury, you must find the executioner guilty of the crime, stating in your decision, "Yes, he is responsible for the death". Forty years ago there was a professor of law, here in Berlin, who seriously insisted that this is what the law required.
There is, however, a small matter that has to be taken into consideration. Our Penal Code does not state categorically, in many of the articles, that punishability is dependent on illegality and the cognizance of illegality.
Add the word illegal to the aforementioned article so that it reads: "He who illegally and intentionally..." Now we have the correct wording of the article. There is perfect agreement that, in order for an act to be punishable, it has to be an illegal act. Furthermore, there has to be cognizance of illegality. That the defendant acted objectively, not according to the law but contrary to it — and therefore illegally — may seem indubitable at first glance; yet it is not indubitable.
Indeed, when the incident took place, the Turks and the Armenians were at war, and the two nations, from the standpoint of international law, were enemies. Therefore, is it not beyond a doubt that Article 4 of the German Constitution should be taken into consideration in this instance? According to that article, the basic canons of international justice constitute part of German law. Those basic canons of international law pertaining only to particular governments can likewise count among the basic, generally-recognized canons of international law. However, I do not need to dwelt on this at length. What can be discussed in this case are the factors limiting the defendants cognizance of illegality — factors conditioned by his nationality.
The people of the East have a different approach than we do to the question of the legality or illegality of an action. In delving into Tehlirian's soul, particularly to determine cognizance of illegality, we would have to understand that, for the Eastern peoples, including the Armenians (even though the latter have been Christians since roughly 300 AD), law, religion, and morals are one and the same.
Each Turkish sect has a different religion. The Persian Shiites have a Shiite system of justice because, for them, only the Koran is valid without the Sunna tradition (just like the Protestants, who feel that only the New Testament is valid without the Old). The Haneffi Turks accept the Koran as well as the Sunna. Hence, their concept of law is different because they have a different creed, a different religion.
This is also true of the Eastern Christians. Religion — and this is both cause and effect of the essence of the present case — has become for them truth and reality of life in a much different sense than what we find in Europe.
Islam is much more strongly and practically a quality of life; it is much more truth and reality than Christianity has ever been anywhere, at any time, with the exception of those segregated religious communities in which religion and life are one and the same thing.
The Armenians are a particularly religious people. Their rites, their firm reliance on religion, even to their daily customs are to a certain extent similar to the Islamic washing and daily prayers. The Armenians live entirely by religious directives, and I cannot refrain from saying that there are some nasty anecdotes about the Armenians which are circulated around like cheap money and have given the Armenians a bad reputation. For example, "One Greek can sell three Jews. One Armenian can sell three Greeks" and other similar comments exist.
There is a Persian anecdote (the Persians know the Armenians the best) which says, "Get your bread from a Kurd but sleep in an Armenian home". What this means is that the Persian, being a Muslim, cannot take bread from a Christian Armenian so he takes it from his coreligionist, the Kurd. But he will not accept the hospitality of his coreligionists because the Armenian will not steal. Security of ownership and scrupulous respect for the possessions of others are nowhere else as evident as among the Armenians.
In reply to the question of the Presiding Justice as to whether or not he felt guilty, the defendant said, "No". When he was asked "Why don't you feel guilty?", the defendant answered, "My conscience is clear." For the defendant, judicial and moral right are one and the same. He cannot even think that what could be morally right might be judicially wrong. He cannot conceive that what is morally correct can make him eligible for the death penalty.
I am thoroughly convinced, and I think all of you should be too, that the "clear conscience" that the defendant unquestionably has, despite his admission that he committed the act, protects him from all the consequences. Judicially, this clear conscience means the rock-firm knowledge that he has acted in the right, in no way contrary to the "true", "real" right, which is the only thing that has value for him.
The defendant's psychological make-up, the major impact the massacres had upon him, and then the complete devastation that they wrought on his psyche — this inner self of his — are closely related to the close family ties that exist among Armenians.
The Armenian family relationship is a particularly warm one. The defendants uncles son, who came yesterday and was going to be interrogated today, unfortunately cannot testify about that. But you do not need to doubt it; the expert witnesses here can attest to the fact that the Armenians have a wholesome family life. I am sure you remember the defendants expression when he replied to a question put to him as to whether or not his relationship with his parents and his family was good. I do not know. You may or may not remember a characteristic jolt that showed up on his face. The interpreter did not say any more. I believe that expression indicated, in a frightfully sad way, the special relationship he had with his martyred family.
With this we come to the relationship of the defendant to his people who, for him, are a continuation of his family. The Armenians are a large family. They were a great power. Subsequently, within the Turkish Empire, they have always been a large and patient family. When nationalities began separating from the Empire — in 1820 the Greeks became independent with the help of all the European nations; in 1840 the Egyptians; later the principalities of the Danube; the Bulgarians, the Rumanians; the Serbs; the Black Mountain people, and the Albanians — the Armenians remained quiet and patient. The Sublime Porte could not and did not have any complaint with regard to them. And because the Armenians were such a law-abiding and constructive element, they were given a National Constitution as early as 1860, which was quite significant in terms of the coincidence of religion, politics, and nationality in the East. When the Balkan nations were everywhere breaking their chains, the Armenians remained patient because they hoped that reforms would be carried out later on their behalf: their property and security would be guaranteed and they would be granted a degree of self-rule. Thus, they remained quiet and peaceful.
The situation changed only after the Berlin Conference of 1878, when alt the other nationalities received something and the partition of European Turkey was already a reality. Turkey began to grow apprehensive that the Armenians, being the only nationality left within its borders, would turn out to be a danger to the security of Turkey.
Without any provocation from the Armenians, the Turkish government organized the first horrid persecutions and massacres. The Armenians had given them no reason. It was after these massacres that the Armenians began to organize. They established Committees in Paris and Geneva in order to bring about reforms that were promised them in Article 61 of the Treaty of Berlin.
Then it all began. I do not want to pursue the course of events in great detail. In 1899 I was in Constantinople on two occasions and I was terribly shaken up at what I heard from eyewitnesses about the massacres that had taken place in August 1896. When, on March 16th, I read of the incident that took place on Hardenbergstrasse, three different images came to mind and, for a long time, I was unable to erase those impressions. I had seen none of these scenes with my own eyes, but they were right before me as if I had witnessed those scenes myself.
On August 26, 1896, when the Armenians had prepared a plan for revolt about which the Turkish police had informed the government, Sultan Abdul Hamid did nothing to quench the revolt, which would have been a very easy thing to do. On the contrary, he was glad to hear of such a revolt. The government organized goon squads which received orders to kill all the Armenians they found in the streets starting at noon on August 26. German women and children described the killings to me. The most typical scene was that of the goon squads — bare-chested, wearing their loose trousers, and accompanied by a police officer — attacking the Armenians. The latter fell on their knees, extended their hands hopefully to heaven with their heads bowed and allowed them to kill. Ninety percent of those killed received head wounds.
The second picture is related to the way Talaat Pasha came to power in 1909. Talaat and a few of his political friends had come to see the Grand Vizir, who was waiting for them. With his hands in his pockets and a lighted cigarette dangling from his mouth, the Sultan looked at Talaat and said, "What is this you are doing? You know of course that we do not like it." At that instant, there was the sound of a shot, and the one who wanted to get rid of Talaat fell dead with a bullet wound in his neck.
We come now to the third scene, which took place on March 15, 1921. We all know about the incident. We can be opposed to it, but this is not like an ordinary trial. It takes us beyond the confines of this courtroom and obliges us to widen our horizons. Try to understand other nationalities, other peoples, other circumstances, and be fair to them.
We of the Third District Court and this jury are obliged to maintain a broad
view of this case and to render a well thought out decision which will be
recognized for its justice and humanitarian quality.
With this in mind, I do not believe you will condemn Soghomon Tehlirian to death. If you condemn him to death, we know what will happen. He will declare steadfastly with a clear conscience and noble conviction: "If this is what you want, I am ready to die." He will put his martyred head on the scaffold, his mother will appear to him and aid him, and he will have an enviable death. One might even wish him such a death. If he were to be set free, that would not revive his parents, his sisters, and his brothers. It would not make him well again; he will never be normal like other people.
In conclusion, I would like to repeat the words of Defense Attorney von Gordon. You cannot hold Tehlirian responsible for his actions. He did what he had to do. He did that which he could not avoid doing. Whether the compulsion that drove Tehlirian should be called a diabolic or a moral force, whether it emerged out of a healthy or diseased mind, is a matter which you will have to determine.
When you take all factors into consideration, it will be essential for you to consider the interrelation between the various aspects of the case presented in this courtroom and to ask yourself the following questions: What will be the result of my decision? What will be its consequences, not from a political or other such point of view, but with respect to supreme justice or to charity, which is what we live for and which makes life worth living?
District Attorney Gollnick
Gentlemen of the jury, there was one thing the defense attorneys did not tell you; namely, that the judge is obliged to render a judgment according to the provisions of the law. The judge has to come forth with a well reasoned decision. He simply has to verify that the judgment complies with the law and that the punishment is justified according to the rule of law. The judge cannot say, "Yes, the judgment complies with the law, but I do not want... the penalty." He cannot say that because the law is supreme. Certainly it is possible to have a case about which an individual can say, "The law is not all encompassing. There is a rigidity in it that is hidden."
I am in complete agreement with the first defense attorney that, at the time of the killing, there must have been deliberation. It is also true that a killing, no matter how carefully planned out, no matter with what deliberation and premeditation, cannot be considered premeditated if, at the time of the killing, it was not done with deliberation.
In light of the opinions expressed by the expert witnesses, I also agree that the defendant was quite possibly suffering from a disease which affected his psychological equilibrium, and seeing the supposed author of his misfortunes severely agitated him. If you are of this opinion, then you have to give an affirmative answer regarding the unpremeditated nature of the killing.
The second defense attorney told you a number of things. I am in agreement with some of them, but not with all. Of course, you are acquainted with the great poet Heinrich Heine. At every opportunity, Heine would revolt against certain principles inimical to life which he ascribed to the Christian dogmas. In contrast, he praised Greek Hedonism. Now one of the poets famous critics said that as Heine grew older and more radical he began to divide the world into two groups: the lean Nazarenes and the fat Greeks.
I could not help thinking about this comparison when I was listening to the remarks of the second defense attorney about militarists and militarism. It would seem that the second defense attorney divides all of humanity into militarists, from whose brains a devil had removed those portions containing justice, compassion, and humanity and the rest of the human race, which still retains all these qualities.
In my opinion, this analysis is indeed somewhat radical and very one-sided and artificial; diversity of life does not allow for such a cut-and-dry division. In any event, I will permit the defense attorney to maintain his view on this point; however, I must resolutely oppose him on another point.
He did not like it when I labeled the deceased the faithful ally of the German people. I have to repeat that the Turkish people fought side-by-side with the German people and that they unquestionably can be classified as an ally of the Germans. I do not think it is honorable to deny the past after a certain point, whatever ones political leanings. I have to object in the strongest terms to the defense attorneys classifying the two representatives of this Turkish policy, Talaat Pasha and Enver Pasha, as criminals who abandoned their fatherland.
I am happy, however, to state that I agree with the defense attorney on another point; namely, that what is essential in our jurisprudence is sound human judgment. It is my hope, gentlemen of the jury and I have no doubt that, in spite of the bewildering array of scientific, technical, legal, and medical testimony that was presented to you, this consideration has remained uppermost in your minds. As long as you put sound human judgment above all else, you will be able to discover the truth.
Defense Attorney von Gordon
Gentlemen of the jury, just a few words. The District Attorney has reproved us for not having told you one thing; namely, that the judge has to pass sentence in accordance with the law. Certainly, gentlemen of the jury, I would be ashamed to state that which is totally self-explanatory.
(Commotion in the courtroom)
Then the District Attorney stated that the punishment to be rendered, which is the death penalty in this case, should not be named. That point of view is absolutely false. Given that our laws demand the death penalty for certain types of crimes, it is essential that you look to see what type of a crime is committed so that the punishment will correspond to the crime. What the District Attorney has said would be a misapplication of the law, already rejected by our Supreme Court in time of war.
Prior to the war, the Supreme Court reassessed thousands of concepts relating to penal and civil law and, in the light of this reassessment, revised the Penal Code with great care. The advent of the war forced these laws to be set aside. Again the Supreme Court had to analyze these ideas and, in the process, it forged some new concepts. I can read for you a decision wherein our Supreme Court, with bold sincerity, admits that previously even it had viewed various concepts in narrower terms and that even it had learned quite a lot from environmental circumstances, historical events, and life in general.
You too, gentlemen of the jury, have to be constantly aware that you cannot render a decision which is intellectually honest but contrary to your conscience, because it is not possible for us that injustice be justice. No conceptual game must ever produce a result, a decision which all sound thinking people feel is objectively unjust.
Now let us go on to a third matter which the District Attorney touched upon. I will leave the essence of this argument to my distinguished colleague; I merely wish to present briefly my point of view regarding it.
You, the District Attorney, spoke of bow we should not deny the past and should remember how the Turkish forces fought side-by-side with us. I am in complete agreement with you on this point. However the Turkish people are not guilty for the atrocious massacres; they too condemned them as any rightful-thinking person would.
The systematic extermination of the Armenians was not owing to a zealous outburst on the part of the Turkish people. On the contrary, it was a carefully deliberated and carefully planned political-administrative decision of the ruling circles which was carried out by rogues, that is to say, the Turkish gendarmes, of whom a sufficiently revealing portrait was presented in this courtroom.
The Turkish people are above all that and we shall faithfully remember what they were to us and what we were to them in the most difficult of times. But, that is not the issue before us.
Defense Attorney Werthauer
According to Article 190 of the Penal Code, when information disseminated about an individual concerns his punishable act, the truth of the statements or rumors is considered verified if the culprit has been officially condemned for the action. And, on the contrary, the truth is not considered verified if the targeted individual had been set free before the rumors about him began to circulate.
On June 10, 1335 (according to the Turkish calendar), a Court-martial, made up of the most distinguished judges, condemned Talaat Pasha and Enver Pasha, along with Jemal and Nazim, as the authors of an ignoble crime; namely, the extermination of the Armenians and the punishing of the innocent. This verdict is legal. And it is incorrect and contrary to German jurisprudence to say that I am guilty of slander identifying these persons as criminals. In fact, they have been legally condemned for having committed the basest of crimes.
Thus, to make such reproachful remarks to me indicates a lack of knowledge of our German jurisprudence.
These criminals have abandoned their country. They have lived here under assumed names. I do not know whether they enjoyed the protection of one or another militarist government. I cannot say anything at all on the matter because, contrary to what the District Attorney said, I do not want to inject politics into this case.
Subsequently, the District Attorney stated that the Turkish people stood beside the German people as loyal allies. This is true and no one has stated anything to the contrary. The Turks are also brave soldiers. The Turkish people, however, are not to be blamed for the war any more than the German people are to be blamed for it.
According to the treaties between the Germans and the Turks, the peoples of these countries had no say whatsoever in the declaration of war, which was fought without regard to the peoples wilt. The people only had a duty to perform.
Individuals like Talaat Pasha, Enver Pasha, and others are the issue here not because of the declaration of war, but because they implemented a deportation, which resulted in the commission of crimes against the Armenians, the likes of which cannot be found in human history.
Gentlemen of the jury, I have already told you that, as a result of the ignominious massacres, your decision may be remembered thousands of years from now.
I am personally unable to comprehend how politics can be mingled into this case. All politics stop when we are faced with the basest of human crimes, and I fail to understand how anyone can utter a word in support of the orders for the deportation. After all, the German people also are being unjustly accused of having issued similar deportation orders. Only an outright and categorical denial of these principles, an unreserved condemnation of such criminal orders, can secure us the respect which, in my opinion, we rightly deserve.
I was not stating something new when I said that militarists, those men who believe in brute force, who certainly should not be confused with individuals in the military, can be found in every nation on earth. I am amazed that the District Attorney finds anything new in my comments.
Those who suffer from the vicious acts of militarists, as the German people have suffered, will agree that the sole responsibility for such acts ties with the militarists. And those who hate the militarists and wish to uproot them from our society are acting justly. However, we are not talking about annihilating or uprooting people, rather it is the direction, the principles, and the concepts of the militarists that concern us here.
Human beings, created in the image of God, are holy; the militarists, devoted to brute force, use these individuals to commit cruel and brutal actions. The militarists are not part of the people. They do not have any country, they do not belong to any nation, and they do not have any human feelings. They only understand brute force and the ultimate aim of their use of force is to suppress justice.
We saw this force come into play in the case before you, in which proponents of the opposing views met face to face. On the one hand, there was the representative of brute force, and, on the other, the representative of the oppressed who sought justice.
Gentlemen of the jury, this is the picture I wanted you to have before your eyes. Indeed, when the representative of justice found himself face to face with the representative of brute force, the former lost control of himself and no longer knew what he was doing. The Court has to render a just verdict. The defendant deserves justice. As we, the defense attorneys, have mentioned, we are neither begging for mercy nor asking for an emotional judgment; rather, we want what the Penal Code prescribes for the act the defendant committed.
Under the present circumstances, the Penal Code prescribes a negative answer to the question that is presented to you, because at the instant the defendant descended to the street and pointed his revolver at the victim, he was not guilty. And he was not guilty because his will was not free and sound; rather, it was under a certain influence.
As I have already told you, it was not the defendant who descended to the street but the centuries and the millions who were killed. It is indeed possible to state that the defendant was carrying the banner of the honor of his entire people, the banner of the tortured innocent victims, and the banner of his massacred family.
How often you are forced to pass judgment on a husband who, upon returning home, finds his wife committing adultery and kills her! Who would even imagine condemning such a man?
But the defendants case does not regard marital infidelity. His sisters were raped, his brothers and family were killed, his whole family was exterminated. The defendant raised the banner against the one criminal guilty of all those vile crimes, a man who was caught in the act and condemned. The defendant saw the murderer, lost control of his rational mind, took aim, pulled the trigger, and another human life, unfortunately, was taken.
This is what you have to examine carefully, bearing in mind the medical testimony, bearing in mind the requirement of justice, but, above all, bearing in mind that a well thought-out decision is expected of you.
We, the defense attorneys, have only one wish and, on this point, I think we can come to an agreement with the District Attorney. Let your feelings be your guide without any reservation, making sure that the justice you render is based on our jurisprudence. With that in mind, we all yield to your best judgment, whether your decision be in the negative or the affirmative. There is one danger which I want to point out. We would not want you to think that because a human being has been killed, the defendant has to be found guilty. If you were to come to such a conclusion, you would be disregarding the whole general section of the Penal Code, which has been constructed, indeed, with perfect fairness.
The example of Heinrich Heine, which the District Attorney mentioned, does not affect me at all, primarily, I guess, because the District Attorney is a better poet than I.
(Commotion in the courtroom)
The policies of our government, the government that signed the treaty with Talaat Pasha and Enver Pasha, do not concern me either because, prior to the signing of that treaty, no one asked for my opinion and, for that matter, no one asked for the opinion of the German people. All this belongs to the past.
The one thing that would affect me is if you were to confuse right and wrong. For example, if you were to ask, "Did the defendant kill...?" rather than the question which the law requires, "Is the defendant guilty of killing...?" After all, what the District Attorney wants is for you to answer the former question, while what we want is for you to answer the latter question.
We would respectfully urge that you follow our request rather than that of the District Attorney.
Defense Attorney Niemeyer
I want to draw your attention to and touch on the political aspects of this case, which the District Attorney already alluded to.
Our Presiding Justice indicated on the first day of the trial that this case should not be treated differently from any other case. Thus, this case should not be analyzed differently from any other case. In other words, this should not be looked upon as a political trial.
I hope that you bear witness to the fact that the defense attorneys have tried to do everything within their power not to turn this into a political trial. I use the word political trial in its common vulgar sense. If we had behaved differently, the course of events would have been different. But this would not have served justice and would not have corresponded to the essence of German life.
If you only knew the type of evidence that we could have brought to this trial, you would have commended us for our restraint. However, I am obliged to make a comment in response to what the District Attorney said.
During the war, German military and other establishments, both in this country and beyond its borders, passed over in silence and then tried to cover up the atrocities committed against the Armenians. This was done in such a manner as to imply that our German government actually condoned these atrocities.
Certainly, up to a point, individual Germans tried to put an end to the atrocities, but to the Turks the implications were clear. They thought, It is impossible for these events to take place without the consent of the Germans. After all, we are their allies and they are so much stronger than us.
Therefore, in the East and all over the world, we Germans have been held responsible with the Turks for the crimes committed against the Armenians. There is a wealth of literature in the United States, Great Britain, and France whose purpose is to show that the Germans were really the Talaat's in Turkey.
If a German court were to find Soghomon Tehlirian not guilty, this would put an end to the misconception that the world has of us. The world would welcome such a decision as one serving the highest principles of justice.
PRESIDING JUSTICE (to the interpreter) — Indicate to the defendant that his three defense attorneys have asked that he be set free. Ask the defendant if he has anything to say on his own behalf.
DEFENDANT — I did not understand what the defense attorneys said. But I am convinced that whatever they have said suffices. I have nothing to add.
Instructions to Jury
PRESIDING JUSTICE — Gentlemen of the jury, it is now left to me to
instruct you with the essential judicial counsel, and I would like to perform
that duty of mine with a few short comments.
It is the essence of our Penal Code that a normal person is in possession of his free will. Article 51 states that there is no punishable crime if the author of an act, at the time of commission of the act, was in an unconscious state, or if his mental capacity was temporarily impaired, depriving him of free will.
Free will exists when an individual is capable of logically using his mental faculties to regulate his actions, his instincts, his abilities, his inner drives. If such a capability is impaired or is absent, then there is a lack of free will. The law thus requires that you confirm the existence of a condition in which the formation of free will has not only been made difficult but, in fact, has been rendered impossible.
Therefore, you have to ask yourselves whether the defendants epilepsy and the other factors mentioned in the testimony of the expert medical witnesses created circumstances that deprived the defendant of the full use of his mental faculties when, on March 15, 1921, he committed the homicide.
If you are convinced that a significant portion of his consciousness or certain segments of his mental capacity were impaired to the extent that he was no longer able to formulate his free will, then you are obliged, under Article 51, to reject penal-legal accountability and set him free.
This is the first matter that you have to examine, since the question that is put to you starts with the words, "Is the defendant guilty?"
If you find that the circumstances were such that he was not responsible for the consequences of his acts, or if you find that the psychological turmoil he suffered did not mitigate total responsibility for the act, but that these events were such that they diminished his mental capacity, then you have the responsibility to continue your deliberations to find out whether or not there is evidence of an intentional act.
It is not essential for me to speak at length on this point.
You have to ask yourself whether or not the defendant wanted to kill Talaat Pasha. Did the defendant know that he was killing a human being? The fact that he committed the act is unimportant. If you find that the defendant wanted to kill and that he knew what he was doing, then you have to find him guilty, that is, of course, if you do not consider Article 51 to be decisive.
Deliberation, which obliges you to give an affirmative answer to the question of premeditated killing, is not the same thing as an intentional killing. Premeditation has a broader meaning. Subsequently, you have to be convinced that, at the instant of the homicide when the bullet reached the victim, the defendant was performing the act with deliberation. You can come to this conclusion if you can tell yourself, He was not suffering from internal turmoil. He was still able to weigh the pros and cons. But if you accept that internal turmoil existed, eliminating the possibility of calm deliberation, then you have to give a negative answer to the question of premeditation.
There is another matter that has been raised in this case, and that is that the defendant was not cognizant of the illegality of his act. Gentlemen of the jury, in my opinion, you do not have to deal with that question. The awareness of the illegality of an act is one of the essential ingredients of an intentional killing. That has nothing to do with the concept of the intentionality of the act. What you have to examine is whether or not the defendant knew that he was killing an individual and that he wanted to kill him.
I now draw your attention to the fact that the death penalty is applicable only to a premeditated killing, whereas, in the case of an unpremeditated killing with mitigating circumstances, the minimum penalty is six months imprisonment.
I ask you to go to work and decide the answers to the questions that have been presented to you.
You have to choose from among you a foreman who will be responsible for your orderly deliberation and voting.
You know, of course, that the law requires a two-thirds majority for a "Guilty" decision. The law also requires that the decision be declared in the following manner: "Yes, with more than seven votes". Therefore, at least eight of you have to vote "Yes" in the present case in order to find that there was legal-penal accountability and that Article 51 is inapplicable.
If you give an affirmative answer to the question of intentionality, then you have to answer, "Yes, with more than seven votes." You have to give the same answer to the question of deliberation, saying, "Yes, with more than seven votes."
If you find that there are mitigating circumstances, then the law only requires a simply majority vote, and it would suffice for you to answer, "Yes, with more than six votes" or simply "Yes".
I now affix my signature to the question sheet.
The members of the jury then retire to deliberate.
After an hour's deliberation, the members of the jury return and the foreman of the jury declares:
I avow with honor and clear conscience to the verdict of the jury:
Is the defendant, Soghomon Tehlirian, guilty of having intentionally killed a man, Talaat Pasha, on March 15, 1921, in Charlottenburg?
Signed: Otto Reinecke, Foreman of the jury.
(There is a great deal of commotion and applause in the courtroom)
PRESIDING JUSTICE — I now sign the verdict and I ask the clerk to do the same and read the verdict out loud.
(The secretary reads the verdict and it is translated for the defendant)
PRESIDING JUSTICE — Therefore, the following sentence is issued:
"The defendant is acquitted at the expense of the state treasury. (Renewed commotion and applause) In accordance with the decision of the jury, the defendant is not guilty of the punishable act with which he has been charged."
Then the following decision is announced:
"The order of imprisonment as regards the defendant is hereby annulled."
(The defendant is congratulated by his defense attorneys, his compatriots, and the public in attendance.)
"The case of Soghomon Tehlirian" by A.R.F. Varantian Gomideh.
Translated from German by Vartkes Yeghiyan
Special thanks to Mr. Arman Galstyan for historical consultations
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