Crime and Punishment
GOTCHA! -- These Lilliputian swarms, Pottersman's people, these international midgets with their buckets and ladders and threads, must have thought that they had finally got me strung down.
I was in Austria's oldest prison, the Josefstadt in Vienna, built in 1839 and expected to hold around eight hundred criminals awaiting trial. It currently held 1,400 or more. I was the only Englishman. Until 1966 all Austria's condemned men had been transferred here to meet their hangman. Dr Herbert Schaller, who would later act for me, had narrowly avoided the duty of witnessing one 1949 execution, though he could not duck his duties as court reporter the day before, when the three men -- senior army und SA-officers who had formed a court martial sentencing deserters in Vienna in April 1945 -- were informed that their appeal had been rejected.
Execution here was not by hanging as we British know it, with a six-foot drop that instantly breaks the neck; the Vienna hangman stood behind his hooded victim, ready to slip on the noose; the man was pushed off a low block, and the hangman bore down on his shoulders with crossed arms until he was dead by strangulation, a fearsome end for any man or woman.
During the four months before the trial, Lawyer Dr Elmar Kresbach several times applied for bail, although I advised against: he seemed obsessed with the idea; he pleaded with me to get wealthy American friends to transfer, say, fifty thousand dollars to his account, and said it made "tactical sense". I would have to surrender my passport of course.
I bowed to his legal expertise, but pointed out that if bail were allowed, those dollars would have to be converted to Euros, and back again to dollars at the end, which would see me ten thousand dollars out of pocket in exchange-rate losses; that I would have to live in a Vienna hotel for the months before the trial, and find money for food and expenses as well. It made no sense at all.
I could not understand why Kresbach kept pressing for the money, and I made no attempt to raise the bail; as the Public Prosecutor, Michael Klackl, objected there would be little to stop me returning to England, from where, as a purely political offender, they could not extradite me.
Kresbach meanwhile lined up the German and Austrian media to his own liking; perhaps they were paying him, I don't know. He informed me that scores of photographers would cover the actual trial, which rather baffled me, as cameras are strictly forbidden in all British courts, and I wondered what effect this pandemonium would have on a jury.
Vienna's Grand Courtroom had been chosen for the trial because it was the largest in Austria and would hold two hundred spectators. Besides, it was part of the same jailhouse complex. I would not have far to walk from Cell 19. The presiding judge would be Mag. Peter Liebetreu.
Since the government now realised, too late, that it had made an international spectacle of itself by my arrest -- I called it kidnapping -- it would have to find room for over sixty journalists; it also decided to allow in newspaper and television cameras for the first time in twenty years.
Later, I saw a letter written by Judge Liebetreu to the secret police authorities (now renamed Regional Agency for the Protection of the Constitution and Combating Terrorism -- Landesamt für Verfassungsschutz und Terrorismusbekämpfung), displaying real panic about the mounting international interest.
Dated February 2, 2006, eighteen days before the trial, the letter requested the "prompt introduction and application of appropriate security measures" for guarding the courtroom and securing the criminal trial itself:
Media interest in this trial is already enormously large. Countless television teams and journalists, mainly foreign, in fact from around the entire world, have announced their coming, mainly via the Internet.
So the letters arriving were entirely in favour, "fan mail". Shut away in my cell with no access to radio, television, or newspapers, and receiving no mail at all, I was unaware of all this media interest.
Kresbach informed me that Judge Liebetreu had indicated that if I "played along" I would be given a sentence which would result in my immediate release. I believed him. My friends contacted the major television programmes in London. The biggest, BBC's Newsnight -- hosted by tough commentator Jeremy Paxman -- offered to fly me back to London first-class straight after my release that afternoon, in return for an exclusive live broadcast.
Kresbach informed me that I would be handcuffed outside the courtroom and ritually led in -- rather like what the Americans call the "perp. walk." He offered to speak to "his friend," the judge, about whether the manacles were really necessary, but I demurred. What had been good for Canada in 1992 -- the pen-and-handcuffs image -- would make the point here too. I had already extracted a copy of my flagship work, Hitler's War, from my sealed property three weeks before.
Two days before the trial, I began practicing in front of the cracked mirror in my wet-room -- as the toilet space was called -- on how to manipulate the heavy volume and open fountain pen in my manacled hands, so that my fingers did not obscure either the title or the late Fuhrer's likeness. It was more difficult than it sounds.
ON the morning of the trial, February 20, 2005, I put on the blazer Bente had posted to me some weeks earlier, polished my Church's shoes on a prison towel and waited.
An escort squad fetched me from the cell to a room where I was body-searched and handcuffed. The Mont Blanc pen was handed back to me, and Hitler's War too when I explained it was "evidence". A phone card was confiscated. Dumped in the holding tank just before the courtroom, I re-read a story by P G Wodehouse.
I could hear an immense hubbub coming through the closed doors of the courtroom. The police guards had courteously left the cell door open. I had enough wriggle-room to smooth down my four-month growth of hair and to force my handcuffed hands into the blazer pocket and to extract and open the pen.
As they fetched me out, the towering escort-squad commander noticed the glint of the pen's Gold nib and challenged, "What's that?"
"My trademark," I said. "I'm a writer."
He let it go. Through a slit between the double doors I could see the frenzied television and press photographers gathering on the other side, facing the door: row upon row, tier upon tier, like a school group photograph in reverse, jostling and jockeying, standing on chairs and stools, waiting for their target to emerge.
I held up book and pen, checked my fingers, shook my blazer sleeves back so that the manacles were fully exposed and stepped through the door carrying the book at shoulder height. There was an epileptic blizzard of flashes. The strange photo-opportunity went on for twenty or twenty-five minutes, while I answered questions fired at me by the newsmen. I struggled to maintain hands, book, and face in one nice compact picture, delivering one message: Austria jails historians for expressing illegal views about Hitler's war seventeen years earlier. The picture went around the world, as I had intended. Stay in control.
(At the appeal hearing a year later I was specifically forbidden by the escort to carry any books, and had to put the pen away.)
Dr Elmar Kresbach, the defense attorney watches (top left) as police remove the manacles from writer David Irving
AT nine-thirty a.m. the trial itself began. It lasted ten hours, during which I received no food or water. The courtroom was perhaps two hundred feet long, one hundred feet wide, and three stories high, like a marble cathedral, with a high vaulted ceiling lit by upward-pointing arc lamps. There was Gold-leaf and marble everywhere, the statues, columns, and walls.
The end wall behind the semi-circular plinth where the three Judges sat was semi-cylindrical, concave, focused on the small oaken bench and chair for the prisoner, like a one-man church pew, spaced some thirty feet in front of the judges. It sat in the centre of an otherwise empty arena facing them. The press and public sat behind me; prosecution and defence counsel to my left, the jury to my right -- to my fury I saw that seven of the eight were stolid, slab-featured, middle-aged Viennese Hausfrau-Lipstadt type women, with a bus-stopping range-coefficient of perhaps a hundred yards.
It was not an encouraging spectacle. No matter, Liebetreu, the presiding judge, was on my side, or so Dr Kresbach had said.
When he began to speak I realized at once to my dismay that -- unless it was a display of mock severity -- this was less than true.
On the other hand, I found that what Kresbach had warned me about this courtroom's acoustics was only too accurate. I could make out little of what was said to me. Besides, Liebetreu spoke in an impenetrable Viennese dialect -- although by law all legal actions in Austria are supposed to be tried in High German, Hochdeutsch. I spoke into a good microphone, and nobody missed the few words that I spoke; but the judge was wholly unintelligible. I found myself trying to lip-read, then asking him two or even three times to repeat.
THE prosecutor, Dr Michael Klackl, left, was -- I have to admit -- truly excellent. He spoke forcefully and audibly, enunciating every word.
He was a short, fierce, balding, dark-haired attorney with beady eyes; he reminded me of C.C. Aronsfeld, the director of the Wiener Library in London, my antagonist back in the early 1960s; or even more oddly of Adolf Eichmann, on trial in Jerusalem at the same time. Klackl had the same kind of lean, merciless, penetrating features.
I found myself recalling the Berlin People's Court after the July 20, 1944 Bomb Plot, where one defence lawyer began his opening submission with the words, "Having listened to the opening remarks of my colleague the Public Prosecutor about the disgraceful behaviour of my client, I find that I can only wholeheartedly endorse them. . ." Klackl was good.
He had spent days if not weeks mastering the details of the case and threw at the jury facts and quotations from right across my writing career, many twisted to unrecognisability in the malign way that critics have.
The seven grim ladies hung on every word; I looked at my defence attorney, Kresbach. He had languidly picked up a felt pen and scribbled one large word diagonally across a yellow American-style legal pad.
His speech notes? Was that all? It might as well have been a shopping reminder. When Klackl finished, Kresbach levered himself up, tossed a lick of hair off his forehead, and began to speak in a rambling, drawling Viennese that was more conversational than forceful, ignoring every point that Klackl had made.
He ignored too the long list of arguments in mitigation of a possible sentence that I had prepared -- for example that if sentenced to prison I could not be visited by Bente, as she was seriously ill, nor could I be exchanged to a prison in London, as this facility was available only for offences with identical laws in England. The Banning Law was unique to Austria.
He lectured the ladies about the differences between Sections 3(g) and 3(h) of that law. One yawned, the others closed their eyes.
I was not pleased by his performance and told him so the next day. I delivered to him then two short and forceful lessons on How to Speak in Public: stand up, speak up, and shut up; and, say what you're going to say, say it, and then say what you've said.
He seemed incapable of public speaking; perhaps he was out of his depth in the vast hall, or overawed by the omnipresent media and the size of the audience.
Too late it began to dawn on me that between him and Dr Schaller -- who was sitting, squirming, agonized, in the public benches -- I had made a very bad choice. Kresbach was turning out to be what veteran lawyers call "ein Schwimmer"; a swimmer -- a flounderer, more like.
I sat in frozen, expressionless grief, looking for even the smallest sign that the jury was getting his drift. He relied on Viennese charm and dialect -- on arm-swinging gesticulations and boyish enthusiasm. The ladies had wanted to hear our reply to Klackl's charges, but did not get it. My lawyer was trying to wing it; but this was not the Battle of Britain, this was Zitadelle, the Battle of Kursk, and waffle was no match for the massed artillery of the enemy.
ALL the while the Judge sat on his high podium, pink cheeked and puffy faced, oddly reminiscent of Judge Gray in the Lipstadt libel trial.
Given that Kresbach claimed that he had reached an understanding with him, Mag. Liebetreu's questions to me seemed odd, unfocused, and off-the-wall.
Would I accept the invitation that the President of Iran had now extended to me? I replied that I had neither newspaper nor radio nor television in my cell, and few visitors, and this was the first I knew of any invitation. But would I accept, pressed Liebetreu? (Three times I had to ask him to repeat because of the bad acoustics).
I would prefer an invitation to receive a Nobel Peace Prize, I countered; he sniffed, shuffled his papers, and moved on.
He asked me to set out the process by which I had updated my views on Auschwitz, since 1989. I said it would take three or four minutes, and explained the first two stages -- finding the Adolf Eichmann papers, and finding Hans Aumeier's Aufzeichnungen (he was deputy commandant of Auschwitz). After thirty seconds, Liebetreu wearily interrupted and that was that.
After this evidence phase, Prosecutor Klackl again rose to his feet and began reading out extracts from my writings since 1989, and he referred to my hundreds of lectures around the world as compounding my felony.
Dr Schaller, seated in his public benches, expected Kresbach to leap to his feet and shout, "Is the evidence phase finished or is it not?" and, "What concern does this court have with Mr Irving's utterances in other countries around the world where they are not against the law?" Perhaps Kresbach's mind was elsewhere; he did not stir.
The hours ground on. I had assumed that we would be finished by early afternoon, as Kresbach had indicated, and I could take a plane back to London that afternoon at BBC expense. Once or twice I looked up at the clock at the back of the hall. It was already five p.m.
The jury retired, I was escorted into a holding cell. Like any Anglo-Saxon jury, the eight jurors now deliberated on my guilt. Since Kresbach had advised a guilty plea, it was a formality, but they could still have found me not guilty, and if they had known all the facts they might well have -- for instance, that the police had agreed with us in advance in 1989 on what I was permitted to say, and had stated afterwards that I had remained within those guidelines. That was in the court documents.
Now the jury retired again to decide the proper sentence, and to my surprise the judges went in with them too, to supervise.
After they filed back into the courtroom, the forewoman read out the sentences. The acoustics were so bad that when she said on each count "acht Ja, null Nein" all I could hear was the words "acht Jahre", eight years, and my mind froze over. I would never see Bente and little Jessica again.
Liebetreu took the jury record, leaned back, far from the microphone, and gabbled through it, for twenty minutes; and his voice, never powerful, had shriveled during the ten hours. Sentence pronounced, he asked at the end if I had understood, and I replied that I had not (and I heard murmurs of assent from the public benches).
Eight years, that was all I could think. "Churchill's War", vol. iii: "The Sundered Dream", already nearly complete, would never be published. Like William Manchester's, my three-volume Churchill biography, a thirty-five year project, choked to death after the first two volumes.
Liebetreu mumbled through the lines again in truncated form for my benefit, but the result was the same.
"With the utmost respect, your Honour, " I replied finally as politely as I could, "I have again understood less than five percent of what you just said. I will ask my attorney what the sentence is, on the way out."
This little closing pas de deux was characteristic of the whole farce. Justice was not only not being seen to be done, it could not be heard either. Slapping me sympathetically on the shoulder as I was escorted away, because he had noticed the television lights come on again, Kresbach told me that the jury had sentenced me to three years' jail, and that unconditionally, unbedingt; i.e. without remission. ("More than I would have considered appropriate," he later confided to a newspaper. "I would have considered two years correct.")
As the police escort of five men in black uniforms struggled to drag me through the pack of newsmen and out of the courtroom. I noticed that the hands of three of them had sprouted drawn and loaded Glocks, issued to them by an officer from a polished steel attaché case. In faraway London, watching the scene live on BBC television, Bente burst into tears, as she told newspapers later.
"I am shocked," I said clearly into the microphones, in several languages: shocked, not so much by the sentence, as by the whole grotesque farce, and by the total failure of Dr Kresbach to prevent it.
It was long past seven p.m., cold, and pitch dark outside. I was unbearably thirsty and hungry too. The armed escort took me back to my cell by an odd backstairs route, down spiral staircases and across remote floodlit courtyards of the Justice building. They were fearing either an assassination or a rescue attempt, one told me later.
Dr Kresbach told me later that the "jury had gone out of control" when they retired. Something had happened in the jury room, he said, and Mag. Liebetreu had lost his grip. The judge (and the justice ministry) had planned to steer the trial toward a two- or three-year suspended sentence, so I would be released that day. This was the comfortable prognosis he had given me all along, and I had quoted it in my letters to friends and family (which Liebetreu will of course have read, as prison censor).
For a few days I believed it, because he had spent, he said, many hours before and after the trial closeted with the Judge and with his associates. A month later, when we read the actual transcript, we saw for the first time -- it was now Dr Schaller and I -- that Liebetreu had concealed a profound malice in his heart, and had held out for the stiffest possible sentence against me during the jury discussion.
THE British embassy had insisted I should get a cell to myself, which might be called solitary confinement, I suppose, but it suited me. The cell's living space was two meters wide and two point five meters long, with a WC in the wet room and a two-tier cot; the cot had an inch-thick foam mattress on wooden boards. There were two iron chairs and a two-foot square table with a torn surface, a narrow cupboard and that was all.
I had a lot of writing to do. I was now given the hundreds of letters that had already arrived, as Liebetreu had remarked during the trial -- the first I knew of their arrival. In the months after the trial, I eventually received over two thousand letters. Nearly every one backed me and gave me encouragement; only two were hostile -- one was a mean-spirited card from England which wished me "Many Happy Returns -- to prison" (my sixty-eighth birthday came soon after).
I formed a mental image of this midget correspondent, standing on a wind-blown cardboard box, trying to reach the mail-slot to post this witty epistle which must have cost him so much mental effort.
Other letters were simply addressed to "David Irving, The Gulag, Vienna" and to "Mr Irving, Austria." The Post Office delivered them as promptly as the rest.
Gradually the press hullabaloo quietened down. The Associated Press reported that I told their man, who visited a few days after the trial, "Now I have regained my peace and I am writing again."
© Copyright David Irving and Focal Point, 2007