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.”