Defense lawyer speaks
Defense lawyer speaks of “investigative mishaps”
It is one of the most sensational criminal cases beyond the borders of Tyrol. Little Leon (6) drowned in the Kitzbüheler Ache in August 2022, his father (39) became the focus of the investigation and has been in custody since February 2023. Now, almost a year to the day after his arrest, his defense has filed a motion for his release from prison - based on a number of points. The Innsbruck public prosecutor's office has also spoken out.
Leon was affectionately called "sunshine" by his family - because of his unmistakable smile. He suffered from syngap syndrome, an incurable genetic defect, and woke up several times during the night, so night-time walks were not uncommon.
Everything changed from August 28, 2022
The accident happened during one of these walks. It was Sunday, August 28, 2022, when the then six-year-old boy drowned in the Kitzbüheler Ache near St. Johann in Tirol at around 4 a.m. A stranger is said to have pulled a bottle over the head of the father, who was taking a walk with his son, and he is said to have slumped unconscious. At 5.20 a.m., a passer-by is said to have found the still unconscious man and raised the alarm. Leon is said to have crawled out of the baby carriage on his own and plunged into the water.
Arrest of Leon's dad
On February 27, then the turning point! The police arrested Leon's father - on strong suspicion of the crime of murder and the offense of faking a crime. The Innsbruck public prosecutor's office argued: "He is accused of having killed his son and thrown him into the Ache to relieve him of his suffering." A few days later, he was remanded in custody. Since then, the 39-year-old has been in Innsbruck prison. He vehemently denies all accusations and is presumed innocent.
Application for release from prison on February 26, 2024
Now, one year later, another bombshell! His defense lawyer Albert Heiss filed an application for release from prison and - together with Mathias Kapferer, legal counsel for Leon's mother - presented his reasons at a press conference at the AC Hotel in the middle of Innsbruck on Thursday morning. The two spoke of "a whole series of arguments, facts and questionable conclusions drawn by the investigating authorities" - even of "investigative mishaps".
Inadequate securing and evaluation of evidence
"The evaluation of the evidence at the crime scene remained grossly inadequate and in some cases went against the state of the art. Evidence is therefore no longer usable", emphasizes Heiss. He continues: "Not even half of the shards that may have come from the bottle were secured. Some of the shards were found by private individuals days after the incident and handed in to the police. Video recordings also show that several days after the incident, shards were disposed of at the scene by a street cleaning employee. The bottle is regarded by the police as an instrument with which the accused would have injured himself."
Violation of the principles of objectivity
According to the two lawyers, investigating officers "demonstrably and on record" made an anticipatory assessment of the evidence - which is inadmissible under the Code of Criminal Procedure. Evidence such as video recordings were not seized "despite the corresponding possibilities".
Analysis of the cell phone data
"When analyzing the accused's cell phone data, the officers of the State Office of Criminal Investigation used software that contains significant errors. The police's accusation that the step recordings on the cell phone constitute evidence is therefore untenable - as external expert reports also prove," says Heiss. The claim that the accused googled the term "fainting" in preparation for a faked robbery is equally untenable.
Glass bottle as instrument of crime?
Due to this "faulty preservation of evidence", it is not possible to assess what the actual instrument of the crime was, especially not the glass bottle. "Contrary to what the police say, from a medical point of view it is more likely that the victim was injured by someone else than by himself. The DNA analysis of glass shards did not provide any evidence that these shards came into contact with the accused. Expert reports confirm that another weapon - such as a baton - is also possible. In addition, DNA traces of an unknown male person were found on the shards of glass," the lawyers emphasize.
Where is the motive?
"The police's assumption that the accused or his family were in a desperate situation can be clearly refuted by numerous witnesses, video recordings, written confirmations and, last but not least, an expert opinion from the field of communication sciences," says Heiss. The following facts speak against this: "Leon's health situation had improved significantly. Videos show that the boy was a happy and mobile child despite his impairment.
Clarifications had already been made regarding kindergarten and later school attendance. On the day before the assault, the accused made efforts to improve the situation in the kitchen of the family home. Numerous video recordings from a longer period of time prove that there was an excellent and emphatically loving relationship between father and son," the defense lawyers explain.
In summary, according to Heiss and Kapferer, the following can be said: "From the point of view of the defense, the strong suspicion is not tenable. There is considerable evidence for the accuracy of the defendant's statements. The motives were completely misjudged by the authorities."
Tomorrow, Friday, a judge at the Innsbruck Regional Court will decide whether the 39-year-old will remain in custody.
"Our task is to assess everything objectively and factually"
Immediately before the start of the press conference, the Innsbruck public prosecutor's office responded with a media release. Spokesman Hansjörg Mayr clarified: "It is the task of the defense to do everything that could help the defendant's position. The task of the public prosecutor's office, on the other hand, is to assess everything objectively and factually while safeguarding the rights of all parties involved in the proceedings and also the presumption of innocence." The public prosecutor's office is not guided by "extraneous, personal motives", but is exclusively bound by the law and is guided by the available facts. This is regularly examined by the court - in this specific case also by the Supreme Court, which confirmed the legality of the pre-trial detention.
If the defense is now publicly interpreting the results of the investigation in its own way, then it is clearly already trying to influence the future judges - presumably jurors.
Hansjörg Mayr, Sprecher der Staatsanwaltschaft Innsbruck
Bild: Christof Birbaumer
"During the ongoing investigation proceedings, the public prosecutor's office will not comment publicly on the results of the evidence or on the motions and submissions of the defense. This is reserved for the court hearing. The aim of the public prosecutor's office is to ensure that the court's decision is as unbiased and uninfluenced as possible. If the defense now publicly interprets the results of the investigation in its own way, then it is pursuing the opposite: the aim is obviously to influence the future judges - presumably jurors - at this stage. The court, not the public, will have to decide on the application for release. The application must be submitted and substantiated there," Mayr explains.
"We had to examine extensive requests for evidence from the defense."
Irrespective of this, the public prosecutor's office will endeavor to "conclude the investigation proceedings quickly" so that a decision on guilt or innocence can be made as soon as possible in the event of an indictment. "Until then, the presumption of innocence applies. Most recently, the public prosecutor's office has been busy, among other things, examining further extensive requests for evidence from the defence and then granting them if they could have an impact on the further proceedings and the question of guilt, even if this means a further delay in the investigation," emphasizes the spokesperson.
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