The German Way
For some reason not ascertained, Braun could not undertake the defense, and it was turned over to Mr. Kirschen, a Rumanian, practising law in Brussels. Mr. de Leval thereupon wrote to Mr. Kirschen, as he stated in his narrative later:
“I put myself in communication with Mr. Kirschen, who told me that Miss Cavell was prosecuted for having helped soldiers to cross the frontier. I asked him whether he had seen Miss Cavell and whether she had made any statement to him, and to my surprise found that the lawyers defending prisoners before the German Military Court were not allowed to see their clients before the trial, and were not shown any document of the prosecution. This, Mr. Kirschen said, was in accordance with the German military rules. He added that the hearing of the trial of such cases was carried out very carefully, and that in his opinion, although it was not possible to see the client before the trial, in fact the trial itself developed so carefully and so slowly, that it was generally possible to have a fair knowledge of all the facts and to present a good defense for the prisoner. This would especially be the case for Miss Cavell, because the trial would be rather long, as she was prosecuted with thirty-four other prisoners.
“I informed Mr. Kirschen of my intention to be present at the trial so as to watch the case. He immediately dissuaded me from taking such attitude, which he said would cause a great prejudice to the prisoner, because the German judges would resent it and feel it almost as an affront if I was appearing to exercise a kind of supervision on the trial. He thought that if the Germans would admit my presence, which was very doubtful, it would in any case cause prejudice to Miss Cavell.
“Mr. Kirschen assured me over and over again that the Military Court of Brussels was always perfectly fair, and that there was not the slightest danger of any miscarriage of justice. He promised that he would keep me posted on all the developments which the case would take and would report to me the exact charges that were brought against Miss Cavell and the facts concerning her that would be disclosed at the trial, so as to allow me to judge by myself about the merits of the case. He insisted that, of course, he would do all that was humanly possible to defend Miss Cavell to the best of his ability.”
The trial began Thursday, Oct. 7. Some opinion of the value of Mr. Kirschen’s assurance made “over and over again that the military court of Brussels was always perfectly fair,” etc., may be formed from the facts that Miss Cavell was not allowed to have a defender of her friends’ choosing, that she had no record of the evidence, oral or documentary, to study in preparation for her defense, that she was kept in solitary confinement for over nine weeks without opportunity to consult even with her legal advisers, during which time she was subjected to repeated cross examinations, and statements said to have been made by her confessing guilt were transmitted by the German authorities to the lawyer who subsequently was to defend her.
The trial was conducted in German, a language she did not understand and which had to be interpreted to her. As a commentator said, “It obviously was impossible to place any adequate scheme of defense with a lawyer whom she saw for the first time when the trial began, a lawyer who had had no opportunity of studying the documents of the prosecution. That Mr. Kirschen did the best he could under the conditions is possible, though his subsequent conduct did not give assurance of the devotion and profound interest to be expected of a conscientious lawyer charged with an obligation that appealed at once to his humanity and his chivalry.”