The Day After

This is a new. Absolute new and in many ways questionable. I am not done yet, considering the consequences.

On German national TV, simultaneously on Austrian and Swiss TV, maybe even elsewhere, a film was aired yesterday, depicting a courtcase, putting forward a legal and moral question. So far, so old. BUT: the ending was not shown until a public voting from the viewers, who were put in the position of a jury, was cast by phone or on the internet. The end of the film was aired according to the public verdict. They had two different outcomes filmed, one for a possible guilty and not guilty verdict, respectively. Maybe even one for a tie, but I suspect, in law there is no such thing as a tie.

I will give a brief summary of the case in question. The case is set in Germany. A civil airplane with 164 passengers gets highjacked by a terrorist. It is steered toward a sport stadium filled with 70.000 watching a game. A military fighter jet pilot, after trying everything else in the end shoots the plane down, killing all 164 passengers on board along with the crew, in a desperate attempt to divert danger and possible (in his eyes certain) death from the 70.000, at least a big portion of them. He received no order to do so from command center, it was made clear to him, that his orders were to  try and push the highjacked plane from its course, later to give off a warning shot. Nothing more, that was it, from ground control.

The accused clearly admitted to making a concious and informed decision to shoot the plane, thus killing all passengers, in order to save the many in the stadium.

Against his case stood a joint plaintiff, the widow of one of the passengers, telling her story, when put on stand. How all she had left from her husband was his left shoe. How she had to explain to her daughter, why they bury an empty coffin with not even a body left to mourn. How she received a text message from her husband from the plane, informing her of the highjack and that he and other passengers were trying to get into the cockpit and save the situation, somehow.

The other witness to the case was the commander of the ground control in charge of the fighter jets, giving exact details to the events unfolding. How the fighter squad was – after consulting with the chief commander – in Germany this is the Minister of Defence – NOT given an order to shoot down the airplane. However, he had no answer to the brilliant questions put forward by the prosecutor. Why didn’t he or anybody else order to evacuate the stadium? There was plenty of time left for it. Was it true, that the airforce only ever accepted pilots, that they knew would shoot under such circumstances? Both questions remained unanswered.

The accused only left one single question unanswered. Would you also have shot down the plane, if your own wife and daughter had been on the plane? He could not say.

The prosecutor then made her plea. Formulating the real problem very clearly. The Constitution forbids to weigh one live against the other. It starts with “Human dignity is inviolable.” This is the core understanding, Germany has come to, after its atrocious history. The Constitutional Court in Karlsruhe has ruled out to make a compromise on that under any circumstances. The State can not take one persons life, nor shorten it, not even to save another or many others.

Against that one argument of the accused stood out . He said, as a soldier he is sworn to give his own life in order to defend country and society. So the government does trade his life, as well as every soldiers life, for the greater good. Or doesn’t it?

Defense pleaded for not guilty, needless to say. Stressing, that the accused is to be viewed as a hero. That everybody in their right mind would – given the circumstances – decide to try and save the many. At a time, it was already clear, that neither the passengers on board nor the visitors in the stadium would have a chance to survive. With the highjacked plane already descending on the stadium and impact to take place in less than 15 minutes, it was the only decent thing left to do.

Side note: It was also made clear in the course of the movie, that there are circumstances, under which murder or man-slaughter may be excused under the law. But all of those do not apply to this particular case.

Then some time was given for the public to respond. In all three countries a vast majority voted for Not Guilty. Germany 86,9%, Austria 86,9%, Switzerland 84%.

According to this, the film ended. The movie is based on a play by Ferdinand von Schirach, a German defence attorney and author. In theaters they had the same setting, letting the public vote for a verdict and ending the play accordingly.

To quote a favourite line of mine, from yet another court drama, A few good men,: These are the facts of the case and they are undisputed.

I personally was very quick with my own decision, and very clear about it. Guilty as charged, no question about it.  The only thing I was pondering on, was the degree of penalty for the accused in question. In this particular case, I’d have let him off the hook, alltogether. Just take his military honours away, take a note on his record for murder in 164 cases and send him home to live with it. But this was not put up for discussion.

Did I phone in to vote? You bet.

But there is always the Day After. Am I myself guilty in engaging in something very unethical? I fear so, come to think of it. Apart from the outcome, there are many things about this entire thing, that really upset me. Don’t get me wrong: I think, the film is brilliantly made. I had me hooked in an instant, but I am prone to court dramas of every kind.

But this is beside the point. Should there even be a format like this? I don’t know why images of public stonings come to mind. The entire procedure can not leave legislature bodies and legal workers unimpressed. With a landslide result as happened, it will influence the staff we employ to independently come to their own informed decisions of rightful and wrongful, solely based on the Constitution and according legislature. And now we as a whole, I personally included, let this happen.

Many questions arise. Millions of legally uninformed jury members like me produce a verdict that clearly is unlawful and trampling the Constitution. It doesn’t really help to have been part of the minority being against it. Where is the transparency of procedures? I got an engaged signal all three times I rang. I could live with a drama finding it’s own conclusion, raising the questions after THE END and credits. Or with a form, where both endings are aired and the public is questioned afterwards.

Of course I understand the moral questions behind the setting, and there is nothing wrong with discussing them. We all know, that human decision making often is based on bias and wrong thinking by instinct, despite good will being the main intention. Anyone ever pondering over various theoretical moral dilemmatas knows of the near impossibilty to solve any of them satisfactorily. And anyone ever following Daniel Kahnemanns splendid explanations about the inner workings of human thinking and decision-making understands, how wrong a good deed can be. And nobody, myself included, can predict for sure, what exactly one would do in a situation as put forward here. Not until it presents itself, which I hope, will never happen to me. And anyone else, if possible.

The question remains: is this event in itself not presenting a similar problem? Is the entire procedure of the author, the media and the participating public not a moral, ethical, even legal question to be discussed in-depth?




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