Date and Time: Wednesday, November 15 2017 at 5:30 pm

Location: Simpson Thacher & Bartlett, LLP 425 Lexington Avenue New York, NY 10017 

In 1978, an East German hijacked a plane behind the Iron Curtain and forced it to land in West Berlin. The recently negotiated Hague Anti-Hijacking Convention called for the hijacker to be prosecuted where the plane landed. West Germany did not want to put a German on trial for escaping tyranny. But the United States wanted a prosecution, in order to preserve the anti-hijacking treaty and protect American aviation. Berlin was still officially under Allied occupation, and the airport was in the American zone. Therefore, the United States decided to prosecute the hijacker in a tribunal that had been created on paper in the 1950s but had never previously sat (and never would again) - the United States Court for Berlin. The trial that followed raised many unusual question. Was a German citizen on trial in an American court in Germany entitled to the protections of the United States Constitution - such as an independent judge, a trial by jury, and the privilege against self-incrimination? Could the defendant assert a defense under German law that he acted under the pressure of seeking freedom for himself and his friends, so that his actions were justified? Were the prosecution witnesses, who testified that were in fear for their lives during the hijacking, more credible than the defense witnesses who pointed out that the hijacker used a toy gun and that no one suffered any harm? In the event of a conviction, what would be a fair sentence, under the extraordinary circumstances of this case? This Historical Trial program will depict highlights from the arguments and testimony at this unique historical trial. The program will also include a discussion and question-and-answer session with the Honorable Herbert J. Stern, retired District Judge of the U.S. District Court for the District of New Jersey and currently a partner in Stern & Kilcullen in Roseland, N.J. Judge Stern was the judge of the U.S. Court for Berlin and presided over this trial in 1979. He is the author of a book about the trial, Judgment in Berlin, as well as his memoir Diary of a DA and several books on trial practice. Topics for discussion will include judicial independence and the rule of law, and whether the Berlin trial before an "Article II court" can provide lessons about the use of other non-Article III tribunals such as military commissions today.

Program Materials:

Boumediene v. Bush, 553 U.S. 723 (2008)

Ex Parte Milligan, 71 U.S. 2 (1866)

Ex Parte Quinn, 317 U.S. 1 (1942)

Maryellen Fullerton, Hijacking Trials Overseas:The Need for an Article III Court, 28 Wm. & Mary L. Rev. 1 (1986)

Madsen v. Kinsella, 343 U.S. 341 (1952)

C.M.A. McCauliff,  Reach of the Constitution: American Peace-Time Court in West Berlin, 55 Notre Dame L. Rev. 682 (1980) 

United States v. Tiede, 86 F.R.D. 227 (1979)