TBR History Article - The Dachau Trial: A Gross Miscarriage of JusticeFraudulent evidence and testimony and absurd legal standards led to quick convictions
By John Wear
The
Dachau trial began on November 15, 1945, and ended four weeks later on
December 13. All 40 of the defendants were convicted, with 36 being
sentenced to death by hanging.i This article will examine whether the
defendants at the Dachau trial received a fair hearing.
UNFAIRNESS OF DACHAU TRIAL
The
Dachau tribunal was composed of eight senior U.S. military officers
with the rank of at least full colonel. The president of the court,
Brig. Gen. John M. Lentz, was the former commanding general of the 3rd
Army’s 87th Infantry Division.ii These U.S. military officers with no
formal legal training were not qualified to objectively review the
evidence presented in the trial. William Denson, the chief prosecuting
attorney, used the legal concept of common design for establishing that
camp personnel at Dachau were guilty of violating the laws and usages of
war. The Dachau tribunal accepted Denson’s legal concept of common
design. In common design, Denson had discovered a legal concept wide
enough to apply to everyone who had worked in Dachau.iii In essence, the
Dachau defendants were all assumed to be guilty unless proven innocent.
The rules of evidence used at the Dachau trial were also extremely lax.
For example, hearsay evidence presented by the prosecution was
routinely allowed by the judges. Such testimony was permitted at the
Dachau trial if it seemed “relevant to a reasonable man.” This departure
from normal Anglo-Saxon law was intended to compensate for the fact
that some eyewitnesses had died in the camp.iv False witnesses were used
at most of the American-run war-crimes trials at Dachau. Joseph Halow, a
young U.S. court reporter at the Dachau trials in 1947, described some
of the false witnesses at the Dachau trials:
[T]he major portion
of the witnesses for the prosecution in the concentration-camp cases
were what came to be known as “professional witnesses,” and everyone
working at Dachau regarded them as such. “Professional,” since they were
paid for each day they testified. In addition, they were provided free
housing and food, at a time when these were often difficult to come by
in Germany. Some of them stayed in Dachau for months, testifying in
every one of the concentration-camp cases. In other words, these
witnesses made their living testifying for the prosecution. Usually,
they were former inmates from the camps, and their strong hatred of the
Germans should, at the very least, have called their testimony into
question.v
Stephen F. Pinter, who served as a U.S. Army
prosecuting attorney at the American-run trials of Germans at Dachau,
confirmed Halow’s statement. In a 1960 affidavit Pinter said that
“notoriously perjured witnesses” were used to charge Germans with false
and unfounded crimes. “Unfortunately, as a result of these miscarriages
of justice, many innocent persons were convicted and some were
executed,” Pinter stated.vi The use of false witnesses has also been
acknowledged by Johann Neuhäusler, who was an ecclesiastical resistance
fighter interned in two German concentration camps from 1941 to 1945.
Neuhäusler stated that in some of the American-run trials “many of the
witnesses, perhaps 90%, were paid professional witnesses with criminal
records ranging from robbery to homosexuality.”vii
Lt. Col.
Douglas T. Bates, the chief defense attorney, was also not permitted to
fully cross-examine all the prosecution witnesses. For example,
prosecution witness Arthur Haulot, a 32-year-old journalist and former
lieutenant in the Belgian army, threatened to leave the trial after
being aggressively cross-examined by Bates. An hour later, Bates and the
other defense lawyers met with Haulot outside of the courtroom. Bates
put a friendly arm around Haulot’s shoulder and said: “We just want to
thank you. By speaking up, you got us properly scolded. We were doing
what we had to do, and frankly it disgusted us. You won’t be bothered
like that again.”viii Such a change of tactics by the defense counsel
would never have occurred if the trial had taken place in an American
courtroom. However, at Dachau the defense attorneys were soldiers who
took seriously reprimands from their superior officers who were judges
in the trial.ix Signed confessions by the defendants were often used to
obtain convictions at the Dachau trial. Evidence was presented that many
of the defendants in the Dachau trial made their confessions after
being tortured. For example, defendant Johann Kick testified:
I
was under arrest here in Dachau from sixth to 15th of May. During this
time I was beaten all day and night. I had to stand at attention for
hours. I had to kneel down on pointed objects. I had to stand under a
lamp for hours and look into the light, at which time I was also beaten
and kicked. As a result of this treatment my arm was paralyzed for about
10 weeks.x
Kick testified that as a result of these beatings, he
signed the confession presented to him by U.S. Lt. Paul Guth.xi Kick’s
testimony regarding his torture, however, made no difference to the
eight U.S. military officers who presided as judges in the trial.
COMMON DESIGN
The
prosecution used the legal concept of common design to establish that
camp personnel at Dachau were guilty of violating the laws and usages of
war. Defense attorney Douglas Bates in his closing statement challenged
the court’s use of the legal concept of common design. Bates said:
The
most talked-of phrase has been “common design.” Let us be honest and
admit that common design found its way into the judgment for the simple
expedient of trying 40 defendants in one mass trial instead of having to
try one each in 40 trials. Where is the common design? Conspicuous by
its absence, established for the purpose of trapping some defendants
against whom there was a shortage of proof—by arguing, for example, that
if Schoep was a guard in the camp, then he was equally responsible for
everything that went on. There are guards at each gate of this American
post today. Is it not far-fetched to say they are responsible for crimes
that may be committed within the confines of this large area? If every
one of the defendants is guilty of participating in that large common
design, then it becomes necessary to hold responsible every member of
the Nazi Party and every citizen of Germany who contributed to the
waging of total war—and I submit that can’t be done. I read this in Life
magazine today: “Justice cannot be measured quantitatively. If the
whole of Germany is guilty of murder, no doubt it would be just to
exterminate the German people. The real problem is to know who is guilty
of what.”
Perhaps the prosecution has arrived at a solution as
to how an entire people can be indicted as an acting part of a mythical
common design. And a new definition of murder has been introduced along
with common design. This new principle of law says, “I am given food and
told to feed these people. The food is inadequate. I feed them with it,
and they die of starvation. I am guilty of murder.” Germany was
fighting a war she had lost six months before. All internal business had
completely broken down. I presume people like Filleboeck and Wetzel
should have reenacted the miracle at Galilee, where five loaves and
fishes fed a multitude. There has been a lot of impressive law read by
the chief counsel, and it is good law—Miller, Wharton. The sad thing is
that little of it is applicable to the facts in this case. Perhaps we
have not been diligent enough in seeking applicable law.
Some
think the prosecution has found applicable law in the Rules of Land
Warfare on the doctrine of superior orders. We have no intention of
arguing that executions by the German Reich were due process.
Nevertheless, we contend that executions were the result of law of the
then recognized regime in Germany and that members of the firing squad
were simple soldiers acting in the same capacity as in any military
organization in the world… If law cloaks a bloodbath in Germany, the
idea of law will be the real victim. Lynch law, of which we have known a
good deal in America, often gets the right man. But its aftermath is a
contempt for the law, a contempt that breeds more criminals. It is far,
far better that some guilty men escape than that the idea of law be
endangered. In the long run, the idea of law is our best defense against
Nazism in all its forms In closing, I ask permission to paraphrase a
great statesman. Never in the history of judicial procedure has so much
punishment been asked against so many on so little proof.xii
Despite
its unfairness, William Denson refused to acknowledge that the legal
concept of common design should not apply in this case. Denson stated:
“I do not want the court to feel that it is necessary to establish
individual acts of misconduct to show guilt or innocence. If he
participated in this common design, as evidence has shown, it is
sufficient to establish his guilt.”xiii
DR. KLAUS KARL SCHILLING
The
unfairness and hypocrisy of the Dachau trials can be illustrated by the
case of Dr. Klaus Karl Schilling. Malaria experiments at Dachau were
performed by Dr. Schilling, who was an internationally famous
parasitologist. Dr. Schilling was ordered by Heinrich Himmler in 1936 to
conduct medical research at Dachau for the purpose of specifically
immunizing individuals against malaria. The medical supervisor at Dachau
would select the people to be inoculated and then send this list of
people to Berlin to be approved by a higher authority. Those who were
chosen were then turned over to Dr. Schilling to conduct the medical
experimentation.xiv Dr. Schilling acknowledged in court that he had
performed malaria experiments on inmates in Dachau. When asked why these
experiments had not been performed on animals, Dr. Schilling replied:
I
have been asked hundreds of times why I do not work with animals. The
simple answer is that malaria of the human being cannot be transmitted
to animals. Even highly developed apes and chimpanzees are not receivers
of malaria. That is a recognized principle of malaria experiments.xv
William
Denson stated that Dr. Schilling was “nothing more than a common
murderer” whose medical experimentation could not be compared to that
performed in the United States.xvi However, evidence in the later
Doctors’ trial in Nuremberg showed that doctors in the United States
performed medical experiments on prison inmates and conscientious
objectors during the war. The evidence showed that large-scale malaria
experiments were performed on 800 American prisoners, many of them
black, from federal penitentiaries in Atlanta and state penitentiaries
in Illinois and New Jersey. U.S. doctors conducted human experiments
with malaria tropica, one of the most dangerous of the malaria strains,
to aid the U.S. war effort in Southeast Asia.xvii Although Dr.
Schilling’s malaria experiments were no more dangerous or illegal than
the malaria experiments performed by U.S. doctors, Dr. Schilling had to
pay for his malaria experiments by being hanged to death while his wife
watched.xviii The U.S. doctors who performed malaria experiments on
humans were never charged with a crime.
THE VERDICT
It
took the Dachau tribunal only 90 minutes to convict all 40 defendants.
Joshua Greene writes: “Even if history looked back and judged his work
charitably, Denson might have imagined one hour and 30 minutes to be a
shockingly short time in which to determine the fate of 40 men.”xix
William Denson had no doubt that the U.S. Army tribunal would find the
German defendants guilty of war crimes.xx The 90 minutes it took to
convict the 40 defendants was also probably not a surprise to Denson. In
fact, in the later Mauthausen trial in which Denson was the lead
prosecutor, the American military tribunal took only 90 minutes to find
all 61 defendants guilty.xxi Historian Tomaz Jardim writes concerning
these verdicts: “Given the brevity of deliberations, it is clear that
the judges spent no significant amount of time reviewing the evidence,
examining legal precedent, or evaluating the issues surrounding the
common-design charge that defense counsel had raised. In all likelihood,
the judges had begun deliberations with their minds made up.”xxii
CONCLUSION
Benjamin Ferencz acknowledges the unfairness of the Dachau trials:
I
was there for the liberation, as a sergeant in the Third Army, General
Patton’s Army, and my task was to collect camp records and witness
testimony, which became the basis for prosecutions… But the Dachau
trials were utterly contemptible. There was nothing resembling the rule
of law. More like court-martials… It was not my idea of a judicial
process. I mean, I was a young, idealistic Harvard law graduate.xxiii
Ferencz
states that nobody including himself protested against such procedures
in the Dachau trials.xxiv The defendants did not receive a fair and
impartial hearing in the Dachau trial. The use of interrogation methods
designed to produce false confessions, lax rules of evidence and
procedure, the presumption that the defendants were guilty unless proven
innocent, American military judges with little or no legal training,
unreliable eyewitness testimony, the nonexistence of an appellate
process, and the inability of defense counsel to aggressively
cross-examine some of the prosecution witnesses ensured the conviction
of all the defendants in the Dachau trial.
ENDNOTES1 Jaworski, Leon, Confession and Avoidance: A Memoir, Garden City, NY: Anchor Press/Doubleday, 1979, p. 115. 2 Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, p. 41. 3 Ibid., pp. 42-43. 4 Ibid., pp. 47-48. 5 Halow, Joseph, Innocent at Dachau, Newport Beach, CA: Institute for Historical Review, 1992, p. 61. 6
Sworn and notarized statement by Stephen F. Pinter, Feb. 9, 1960.
Facsimile in Erich Kern, ed., Verheimlichte Dokumente, Munich: 1988, p.
429. 7 Frei, Norbert, Adenauer’s Germany and the Nazi Past: The
Politics of Amnesty and Integration, New York: Columbia University
Press, 2002, pp. 110-111. 8 Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, pp. 55-57. 9 Ibid., p. 57. 10 Ibid., p. 77. 11 Ibid. 12 Ibid. pp. 113-115. 13 Ibid., p. 112. 14 McCallum, John Dennis, Crime Doctor, Mercer Island, WA: The Writing Works, Inc., 1978, pp. 64-65. 15 Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, p. 88. 16 Ibid., p. 112. 17 Schmidt, Ulf, Karl Brandt: The Nazi Doctor, New York: Continuum Books, 2007, p. 376. 18 McCallum, John Dennis, Crime Doctor, Mercer Island, Wash.: The Writing Works, Inc., 1978, pp. 66-67. 19 Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, p. 115. 20 Ibid., p. 116. 21 Ibid., p. 221. 22 Jardim, Tomaz, The Mauthausen Trial, Cambridge, MA: Harvard University Press, 2012, pp. 180-181. 23 Stuart,
Heikelina Verrijn and Simons, Marlise, The Prosecutor and the Judge,
Amsterdam: Amsterdam University Press, 2009, p. 17. 24 Ibid.
http://mail.americanfreepress.net/news/latest/index.php/campaigns/am52934x38f67/forward-friend/yn0776kcnf312
Remember:
10% off retail price for TBR subscribers. Use coupon code TBRSub10 if
you are an active subscriber to claim your discount on books and other
great products, excluding subscriptions.
Order online from the
TBR Store using the links above or call 202-547-5586 or toll free
877-773-9077 Mon.-Thu. 9-5 ET with questions or to order by phone.
Know someone who might be interested in our books?
Forward this email to your friend by clicking here. |
No comments:
Post a Comment