by Leon B. Poullada
I will discuss first of all the general nature and the problems incident
to the operation of any concentration camp such as Dora. Secondly, I will
discuss the organization and background of Dora itself and of Mittelwerke,
without appreciation of which it is not possible for this court to arrive
at a just decision. Thirdly I will discuss those factors affecting the credibility
of the prosecution witnesses. In the fourth instance I will discuss the
errors of presentation made by the prosecution, which the court should consider
in arriving at a decision in this case. Lastly I would very briefly like
to touch upon the principles of law and justice which must concern this
court as they cover the immediate case involved.
Coming then first to the topic of the nature and the problems of the operation of a concentration camp such as Dora, I believe it is pertinent to discuss briefly some basic misconceptions which War Crimes courts have indulged in the past in considering these concentration camp cases. There seems to be something abhorrent about the term "concentration camp" in the connotation which this term has acquired for all of us which somehow is translated into the conception that a concentration camp, or the operation of a concentration camp, in and of itself, is illegal per se. Now, this is not the case. International law recognized fully the right of a sovereign state to intern those persons whom, in the opinion of the authorities of this state, are inimical to its purpose and threaten its welfare. We have done so in the case of the Japanese on the west coast when we removed them in large numbers into so-called relocation centers -- a more euphemistic title perhaps -- but nevertheless, a concentration camp. We did so without giving them any trial, we confined them and we restrained their liberty. We did not consider that to have been an illegal act. It was a perfectly legal thing to do because our safety and our welfare were threatened by their presence on the Pacific coast.
Many states in the union keep prison labor camps. These prisoners are farmed out to industrial firms and they work for industrial firms and these firms in turn repay the state for the work of these prisoners. It is not the operation of a concentration camp or a relocation camp or whatever name we call it that is illegal, but it is the manner in which it is performed that may become illegal, and it is important to keep that distinction in mind.
The same type of misconception arises in connection with the term "executions."
As my associate, Mr. Brook, has gone into this in some detail, I will cover
it only briefly. However, it must be evident that each sovereign state has
a right during the period of its sovereignty to set up its own constitution
and its own laws, and executions which are prescribed pursuant to such constitution
and such laws are perfectly valid and legal. The mere fact that their system
does not accord or is abhorrent to our particular morals or principles or
standards of conduct does not make the punishment which was ordered administratively
illegal per se.
Perhaps I could illustrate that by an example. If we were at some time to occupy a country in which polygamy was lawful it would be a very, very strange thing indeed if we should declare that all marriages in that country were illegal because they conflicted with our Christian ideas and standards of morals. The legal expert, Dr. Pinder, has testified before this court that punishments ordered by the Reich Security Main Office through the administrative determination of guilt were perfectly valid under the German codes of justice and the constitution as they existed at that time. Now an execution may be illegal if it is conducted without color of right, in that case it may be extremely illegal, but that is a distinction which the prosecution has failed to make in this case. This is intimately connected with the question of the defense of superior orders. The worthy prosecutor defended a case involving superior orders so that I am sure that he is fully conversant with the law in this connection, that even under our strict interpretation of the defense of superior orders it is not correct to say that superior orders is never a defense and always only mitigation. Superior orders is mitigation when the order which was to be executed was flagrantly illegal in itself, but superior orders is a complete defense when the order given has the color of right and appeared to a reasonable person to have been a reasonable order.
For example, in the case of the six or seven Italians, these accused were subject to military control and were ordered to perform an execution which in all its appearances and trappings had the obvious flavor of a perfectly legal military execution. Superior orders in that case under our own law is a complete defense. Unless by some means those involved were put upon a warning that the execution flavored of illegality superior orders must be a complete defense to this case. Now if the camp commander had come to one of the accused and said, "I am giving you an order to strangle a prisoner tonight in the dark when he comes around the corner of this house," and if that accused had executed the prisoner in this manner, superior orders would not be a defense to that type of execution because, by its very nature, by its very essence, it is not clothed with any color of right or with any semblance of that right. Those distinctions are important. The prosecution has accused us of making fine distinctions and, in our opinion, they are very important distinctions, and that is something which the prosecution does not do, and it is one of the fatal errors of their presentation, that they did not make distinctions but threw everything together in one pot and tried to come out with a total answer for everyone. If the court please, it is not possible to administer justice in that way.
Now as to whether or not the executions which were ordered for Dora were legal or not legal it is not difficult for us to say. We can say that the burden is on the prosecution to prove that they were not legal. Since they were colored with every vestige of that right and were trapped with all the panoply of that right, the burden is on the prosecution to show that they are illegal. There certainly was ample justification for them, if the court pleases.
The evidence before this court is clear that there was an armed and violent resistance movement at Dora. There is no question in anyone's mind on that. The people possessed weapons and possessed explosives and they intended to use them.
A question came up which I should like to discuss. That is whether an execution is justified when the sabotage is a mere plot and threat but is not actually committed. It must be evident to the court that in a top secret project such as the V-weapon plant, plotted sabotage, whether actually committed or not, was a severe offense. It is more than ample justification for a death sentence.
I would like to call this court's attention to a case which occurred in the United States with the avowed intention of committing sabotage of our war plants. These people never got any further than the beach before they were arrested. They did possess papers which showed their avowed aims and it was possible to prove that they intended to sabotage the war effort in America. The court will recall that by the fair and complete judicial process of the United States these people were tried and sentenced to death and they were executed. They never committed an act of sabotage and they never got as far as inside or near a top secret project. I dare say that if they ever did get near the atomic bomb plant with their plans they would have also been executed promptly.
Now in connection with the executions we should consider the subject of the mercy shot. It is an accepted, established military procedure and has never been considered or construed as an act of crime. It is what the name implies, an act of mercy to someone who has been tried, sentenced and executed but who, for some reason, has not been completely killed, perhaps, by the act of execution. The only question then is whether the execution was legal in the first place. If the execution was legal then the act of mercy must also be legal, so we come back in a circle to the question of the legality of those executions and, if the court please, in view of the evidence, in view of the fact that the sentence was already read, in view of the fact that the witnesses were always present, a doctor was always present, an interpreter was always present, and they had all of the semblance of a legal execution, the burden of proof is upon the prosecution to show that those sentences under execution were illegal and that the accused knew of it or had reason to know. As to the extra rations which were issued in connection with those executions, about which so much fuss was made, I believe the court has heard sufficient evidence to know that those were normal rations issued in the Wehrmacht as a matter of general custom and tradition to all persons who participated in the executions for the alleged reason to be able to counteract after a shot. It was not a war crime by any means but a custom and tradition.
Now a similar misconception arises on the subject of beatings and corporal
punishment. The defense readily admits that beatings and corporal punishment
is abhorrent to our Anglo-American system of justice, although England used
flogging to a very recent time as a method of punishment and still does
so in the armed forces for some offenses. Some of our own southern states
recognize corporal punishment as a proper means of discipline even at this
date. Nevertheless, there can be no doubt that in the overall picture the
AngloAmerican system abhors this subject of capital punishment. This naturally
creates a prejudice in our minds against any such act. However, we must
come back to the subject, which is similar to the one of executions, that
the Europeans have and have had a different attitude towards corporal punishment.
There is a distinction, a very definite distinction, that we want to make
between beatings and beatings.
There are beatings which were made for official reasons, for punishment prescribed by the Reich Security Main Office. The court has heard evidence that there were even forms which were made out and had to be signed by the physician. Now we certainly cannot quarrel with that system of punishment. We may not like it, we may not want to adopt it, but we cannot call it illegal just because we do not like it. If it was legal during the time it was perpetrated then it was legal. Further, there are differences between beating a person with a weapon and merely beating with the hand. There are very distinct differences which we make in our law between assault with a deadly weapon and assault and battery and simple assault and battery. Those are important distinctions and we do not want to make them.
Thus we saw, for example, that the beatings which the accused, Buehring, admitted administering to those prisoners during the course of these interrogations were authorized by Berlin as a means of breaking up this resistance movement and they were perfectly legal at the time, and the fact that we do not like them doesn't make a war crime out of it by any means. Furthermore, we must remember that these beatings were made under superior orders so that the accused Buehring, for example, had the double defense of the legality of the punishment he was administering and the fact that it was administered by superior orders and directly under the supervision of his superior, who was physically present or in the vicinity at all times. There has been evidence that in administering those punishments there were strict orders that no fatal injury should be inflicted and it was only natural in the course of these interrogations, as a dead witness was not a good witness. It is only natural that they should want him to live and not to injure him to the point of causing his death. The evidence has proved that the deaths which occurred in the bunker such as the death of Skinter and the four Russians, which were admitted by everyone in this case, were definitely proved to be committed by other people, and without the authority and consent of Sander, and in no way involved any of those accused in this case.
We have some curious quirks in our minds about this subject of beatings in connection with these war crimes. In war crimes courts in the past, the ability to show that an accused had been carrying a club at all times or at some time was equivalent to a conviction. If the court would care to cast its eyes around this room they will see at least two guards, American guards, with clubs in their hands. I dare say if these prisoners became unruly our American guards would use those clubs to keep them in line. So it is not, again, the carrying of a club which is wrong in any way, it is not equivalent to a conviction to show that a man carried a club. The question is, how did he use that club and on what occasions did he use that club, and that must be proved by individual acts and by witnesses testifying to individual acts and not by simply making a sweeping accusation because a person carries a club, therefore he is a beater and he should be convicted.
Also, an interesting thing in connection with these cases has to do with the developing of testimony in this case. In the early cases, when the courts were giving very severe sentences for beatings, witnesses would get on the stand and testify as to beatings. The courts began to get weary about this type of testimony, and they usually demanded, an order to give a severe sentence, that the element of death be involved as a result of such beatings. Immediately the testimony changed. The witnesses would get up on the stand and they would always have been witnesses to a beating which was so severe that they resulted in a person being carried to the dispensary and he was never seen again. The testimony always followed whenever the courts required it to get a conviction. Now we must remember, if the court please, that the penalty for even an aggravated battery with a deadly weapon in our own American courts would hardly ever merit more than a 10-year sentence.
The same type of misconception develops with the subject of cremation. Cremation always seems to be connected with something abhorrent and horrible. The prosecution has made a great case against the accused Maischein because he was supposedly present at cremations. Nothing is the matter with a cremation, if the court please. The finest cemeteries in America use cremations as a perfectly legal means of disposing of the remains of deceased individuals. Whether it is secret or whether it is public what difference does that make, if the court please. If the person is dead and he is cremated it is not a crime. It can be no war crime to cremate anyone. The question must be, how did that person die, not how he was cremated. If any of the accused had something to do with the illegal death of an individual then he may be guilty of a war crime, but participation and attendance at a cremation in and of itself can certainly be no war crime or a crime of any kind. As we say, these distinctions are important.
We have also been of the opinion at some time or another in the course
of our lives that in concentration camps all prisoners were victims and
martyrs and that all SS men spent all of their time swinging clubs beating
prisoners brutally like sadists and that all of the prisoners were innocent
victims. Well, the prosecution has made some statements about the fact that
some of the guilty participants, in our opinion, are prominent prisoners.
We do not wish to shift any of the blame which any of the accused may have
over to the prominent prisoners, but we do believe it is important to the
court in arriving at a just decision in this case, to realize that not all
is just the way it appears on the surface, but that there were feuds between
the greens and the reds, that these resulted in secret murders and resulted
in secret courts which these prisoners themselves had, that everything became
a racket in these concentration camps, that there was favoritism and bribery
at every hand, that many prisoners lived at the expense of other prisoners,
that the favored prisoners were assigned to cushy jobs such as in labor
statistics and the dispensary, and that as a result a very vast black market
arose in these camps.
Now perhaps it could be said that the SS are responsible for the system. That is true. We do not deny that. The persons who made the policies of these camps are certainly responsible. Pohl and others who made the policies of these camps are certainly responsible. Pohl and others who made the policies for these camps and were tried at Nuremberg are undoubtedly responsible for a policy which would throw into the same camp individuals of varying nationalities and backgrounds, habitual criminals and political prisoners. It is obvious that under such a system a terrible situation would develop, but to say that and to say that these individual accused, the highest ranking of whom is a first lieutenant, are responsible for this system and are responsible for the conditions which arose as a result of this system that, if the court please, is an entirely different matter. These people had very limited authorities. They could certainly not abolish the system. They could not say, "From now on the green prisoners will be in one camp and the red prisoners in another, and we will segregate these people." They could not stop the black market any more than we could stop the black market in Germany with the entire resources of our occupation army behind us. We cannot stop it. Those things arise as a result of conditions and once they arise the people in it cannot put a stop to it. They can try, and so these accused did try, but they certainly cannot be made to bear the entire brunt of the system as it existed.
We will leave the subject of the misconceptions which have arisen and I believe are important for the court to bear in mind. We must realize, just to summarize briefly, that the operation of a concentration camp or an internment camp, is not illegal per se, that executions which were not illegal according to the laws and the constitution of the country at the time they were perpetrated could not become illegal by subsequent occupation of that country, and lastly that a large proportion of the unsavory picture of a concentration camp was brought about by the acts of prisoners themselves. If the court would keep these things in mind in arriving at their decisions they would have gone a long way towards eliminating the common misconceptions.
Let us consider, if the court please, the organization of Dora and Mittelwerke,
and what the V-weapon program meant to Germany. It was the last hope of
Germany. Goering's Luftwaffe had failed in its proud boast that not one
bomb would fall upon German soil. The German armies were in full retreat
in Africa and Russia. This resulted in a struggle for power between the
high ranking officials in the German government, among them Speer and Himmler.
It was obvious that if the war was won by means of this secret weapon, this
V-weapon, the individual who could hold himself as responsible for successfully
bringing this weapon to bear would have earned the undying gratitude of
the German people and would have assured himself of a position as successor
to Hitler. This resulted in a struggle for power over this weapon. There
is no question about that. Officially the V-weapons belong to Speer, the
Minister of Armaments, but Himmler had an ace up his sleeve in connection
with this program. He had at his command a source of cheap labor, and cheap
labor in the then German Reich, which had already scraped the bottom of
its manpower barrel, was at a premium, so, using this cheap labor as a wedge,
Himmler was also to get a stranglehold on the production of the V-weapons,
and, although not officially, nevertheless through the means of men like
Kammler and Sawatzki he was able to get a dominant position in the V-weapon
production. The Speer minister, [Rt]who appointed Rickhey, very definitely
was being pushed into the background and into second place. It was Himmler's
men who really pulled the strings and called the pace.
Now, this was a very important program. The policies for this program were not made by people such as these but were made by the top men in the German Reich. To say that for a program of this kind a technical sergeant was going to be made responsible for all labor allocation is ridiculous, if the court please. Or the same is true of construction: to say that a master sergeant like Jacobi was to be placed in responsibility for all construction in a project of this kind is completely ridiculous. The evidence has shown that there were frequently inspections from Berlin, medical inspections, all types of inspections. Kammler came over often. Everything that came off in this camp as far as policy making was concerned was of the utmost interest to the top men in the German Reich. These people here were small fry. They were all placed in the position where they had to carry into effect these policies, and that is always an unenviable position for anyone. To say that a man like Detmers, who was a first lieutenant, had the power to declare executions and punish and discipline the prisoners, is like saying that some little security officer in the atom bomb plant would be given the authority to punish violators of security rules at his discretion.
Now these policies which were made at top levels resulted in some very
bad conditions. The defense has willingly admitted that. We have never claimed
Dora to be a sanitorium, no question about it. It was a high priority project.
German resources were pushed to the utmost to get this program started and
as a result of that there was constant rush, they were in a hurry, and these
bad conditions resulted, especially at the inception, because of the rush
and hurry. But it is another thing to say that these bad conditions existed
and another thing to say that because a certain individual was placed in
the midst of these bad conditions he is responsible for them. Another lack
of distinction. It is a very nice technique to make such a lack of distinction,
no question about it. Prove bad conditions, that is the thing to do. Show
that things are in a terrible state, then find a scapegoat for it and say,
"He was there, therefore he was responsible." The court is expected
to make the necessary logical connection between the two things, but is
the connection there? That is the question which the court must ask itself.
It is a funny technique. Hitler used it. That was exactly Hitler's technique
to show that the Jews after the last war were responsible for all the evils
which befell Germany. There were very bad conditions in Germany. The Jews
were present. They made a good scapegoat. You keep hammering away at that
subject long enough and eventually the listeners will make the necessary
connections. The Jews will be responsible. We say the prosecution has not
met that burden of proof. It is not only necessary to place two things together
and to assume that there is a connection; the connection must be proved.
A very insidious note crept into the prosecution's case in this connection,
in my opinion. It was stated and the court was led to believe that it was
not only a matter for this court what the accused did or did not do, but
what they should have done. That is the thing, the prosecution said, which
condemns these people what they should have done. Well, if the court please,
that is a rather noble approach to any judicial problem. Unfortunately the
principles of American criminal law do not support such a contention by
the prosecution. A person is not guilty of a crime merely because his conduct
is reprehensible or because he fails to act. He must have a duty to act,
a very clear and definite duty to act. If he fails to act he may be a normal
heel, but he is not a criminal. That is the law; it is very clear. I can
see a beggar in the street in the most desperate condition of hunger and
I can pass by without giving him a second look. Clearly, morality would
demand that I help him, but I am not a criminal because I fail to do so.
Some of the so accused did do a great deal towards helping prisoners, but
if any of them had failed to do any of that, they certainly would not have
been war criminals because of it. It so happens that a man like Fuchsloch
followed his moral inclinations and did try to help. But he is not under
absolute duty to do so by any means. The fact that he did do so is more
to his credit, but so long as he would act within his proper sphere of duty
and so long as he would refrain from a criminal act, that should be the
determining factor before this court as far as any of these accused are
concerned. They are under no legal duty to go out of their way and become
proclaimers of the welfare of the human race. The law does not demand that
of you, it does not demand that of me, and we should not demand that of
Now, the prosecution tried desperately to show that Dora was an extermination camp. Well, unfortunately the evidence just does not hold up. There are no gas chambers at Dora as in an extermination camp. We did not hear any evidence of medical experiments, such as have been put forth in all the concentration camps practically so far. There were no wholesale executions at Dora such as Commando 99. The executions which took place at Dora were a result of this resistance movement and were not merely an attempt to exterminate in any way. Well, the reason is obvious, if the court please. I think Rickhey put it better than I could possibly do when he said it would be impossible to produce the weapons and destroy the workers. This was an important program. I do not say that it was not an extermination camp out of the good heart of the people who were making the concentration camp policies. It was a selfish thing of course, but it was not an extermination camp. It is true that in its inception bad conditions existed. There is no doubt about that. We are willing to concede that at any point in our argument, at any point in the case we are willing to concede that in the inception conditions were very bad, but I believe we should try to understand the normal point of view at that time. This project was a matter of vital military necessity. Under the guise of military necessity, a commander does not hesitate to send his own men to death if necessary. When it becomes a question of national survival we do not stop to ask fine questions. The prisoners were asked to make sacrifices, definitely.
They were put into a place where the work was hard. It was mining work, work which is hard even under the best situations of freedom. If the court would care to examine the insurance risk rates for miners, underground workers, it would realize that it is always hazardous work, and I am not here to defend the morality or legality of demanding sacrifices from these prisoners. That is beside the point and not an issue in this case. I am simply trying to show the court why these bad conditions existed, and I do say that showing these bad conditions in itself is not enough, nor is showing why they existed enough. These accused did not make the policies which created these bad conditions. It is furthermore extremely necessary for the court to distinguish another distinction, between the period of early construction of prisoner work and the latter period when production got under way. The two things are very dissimilar and more and more different in more than one respect. The prosecution, of course, has attempted to show that it is all the same thing, but it is not.
So, if the court please, before passing on the next subject we have seen that certain misconceptions were prevalent as to the operation of all concentration camps in general, and I have tried to give the court a brief background of the operation of Dora, of the importance of the V-weapon project, and the reasons which caused the German state to embark upon such a project, and I have attempted to distinguish between the periods of time in the operation of this project, which the court should keep in mind.
Now, I would like to discuss briefly, if the court please, the questions
of the factors which affect the credibility of the prosecution witnesses.
That question, of course, in the last analysis is the function of the court,
but what criterion, what yardstick should the court use? Well, certainly
a careful review of the testimony of the witnesses is called for, and examination
of the motives of their testimony is certainly called for, and I believe
we should consider briefly the principles of scientific criminology dealing
with the unreliability of the human memory when testifying as to events
which took place in the distant past.
Let us consider first the motives. That the witnesses for the most part were prejudiced I assume the court takes for granted. Is it possible for former prisoners to testify against their former jailers and not be prejudiced? Of course we can sympathize with them. I would be prejudiced myself. I am sure every member of the court would be prejudiced. But, if the court please, we must not let that affect the justice of the case. We must sympathize with them, yes, but the court must look upon this through the eyes of justice, not through the eyes of sympathy.
There is another element which is quite important in this case and quite evident, that is, the element of nationalities. Even under the best of conditions it is very difficult for a European of one nationality to testify against a European of another nationality and maintain a balanced attitude. It is difficult for us to realize the prejudice which existed in these countries national hatred, biases, suspicions. We in America do not know anything about that. It is difficult in coming into a situation like this to understand the power behind such prejudice and bias. However, these war crimes courts must ask themselves: Are we instruments of justice or are we instruments of national discriminations? Now in these concentration camps, these national hatreds were fomented. Prisoners from all countries in Europe were thrown in together in a dog-eat-dog situation and, unfortunately, these hatreds which grew up during the period of these concentration camps have not been allowed to subside, but former concentration camp inmates have formed themselves into organizations which, under the guise of being societies for mutual aid, actually have as their avowed purpose the preservation of these hatreds, this rancor which grew up before these concentration camps and during these concentration camps. These societies have a quasi-official status in a good many of these countries. Their officials hold key positions in the government of some of these countries, such as France and Czechoslovakia. We have seen some examples of these societies exercising pressure upon their members in testifying before courts where their former jailers are involved. They bring personal pressure, economic pressure and political pressure to bear on these witnesses. In America we would call that intimidation. In Europe it is realism. We saw during the trial the example of one witness who was intimidated to the point where he would not even testify before this court. I had asked this same witness to come back and had requested his presence through proper channels when we thought we would put on a rebuttal in this case. I received a letter from him of which I have a certified translation here. It is addressed to me, and he says:
When I left Dachau on 20 November 1947, I was handed a written information by the defense reading that I was to report back as a witness to Dachau on 7 December 1947.
I cannot appear as a witness for the following reasons:
My passport was valid until the end of November 1947only, for this reason I had to apply to the "Commission for the Investigation of War Crimes" at this place in order to obtain a recommendation for the Prague passport department to issue me a new passport valid until the end of December 1947.
The "Commission for the Investigation of War Crimes" of this place, however, found out that I intended to go to Dachau as a defense witness. Since the above-mentioned commission is not in the least interested in these witnesses who go there to testify for the defense, it took a negative point of view as of the issue of my passport and did not give me the recommendation.
Consequently, the passport department did not issue me that passport without this recommendation.
For the above reasons I cannot come, and ask you to kindly arrange for the issue of my passport with our governmental agencies.
Hoping you will be so kind as to comply with my request, I remain
Very truly yours,
There we have an example of these national prejudices and how they have
been used. It is only natural, I suppose, that these things would be as
they are but nevertheless we must consider them. The prosecution witnesses
have no such difficulty in appearing before this court. Two important things
in my mind, if the court please, is that these societies condemn the accused
not for their individual crimes but simply for the reasons of being Germans
and having belonged to a certain class, the class who were their jailers.
That to my mind is the insidious thing about them, not that they are prejudiced
against individuals, that is only a natural thing when an individual has
been guilty of some act of barbarism against you, but simply that they make
these sweeping decisions that all of the people who belong to that class,
regardless of innocence or guilt, fall within that prescribed category.
Now, of course, these sweeping prejudices against people because of belonging
to a class is one of the abhorrent principles of Hitlerism.
People like Cespiva and other officials of these societies do not know anything about sportsmanship. Hitler didn't invent this theory of condemning entire classes by reason of nationality or by reason of race or creed. He applied what was already a favorite European position. In addition to these national rancors, which resulted in matters such as the one I brought before this court, there is also this certain enmity that grew up in these camps as a result of membership in certain cliques in these camps. You either play ball or else you are an enemy. Thus we see that some prisoners who played along with them were placed in easier jobs, such as in labor statistics or in the dispensary.
Let us take Helbig for example. He was a fine man, Cespiva said when testifying against him, "He helped one of my friends," he testified. On the other hand Dr. Kahr testified against Jacobi viciously because Jacobi hadn't played ball when Dr. Kahr wanted to furnish himself with a swanky apartment and Jacobi didn't want to let him have the materials. These things are retained in their minds, and petty minds bear petty grudges for a long time.
In addition to the prejudices which I have already named, that is the
prejudice of former prisoners of their jailers, the national hatred and
these prejudices which arise by reason of membership in societies destined
to foment national hatreds, and membership in camp cliques, we must realize
that very little credibility can be given to the prosecution witnesses by
reason of the fact that all the events that they testified to happened a
very long time ago. The fragility of the human memory has almost been commented
upon by the prosecution when the prosecutor admitted that five minutes after
an incident had occurred it would hardly be remembered afterwards, and with
him all psychological criminologists are in complete agreement.
I am sure this court is familiar with the classroom experiment, the classical experiment in which the professor is droning away, lecturing to the class and suddenly two men burst into the room. One flashes a gun, another has a knife. There is a great commotion. The two men leap out of the window. The professor is knocked down on the floor. Then immediately thereafter he arises and explains to the class that this was all prearranged, and then a set of questions is asked of the class as to just what happened. "Describe the men. Describe what they did." Well, I have seen the results of such an experiment myself and I know that these members of the court who have seen the results of such an experiment would remember the amazing results, the amazing discrepancies. Some people will answer that there were three women involved, and others will say the professor was the one who drew the knife. Completely unbelievable answers. The reason for that is very simple.
I should like to read just briefly to the court volume 29 of The Journal of Criminal Law and Criminology, page 371.There is a report of a carefully controlled experiment in which a crime is staged and a large number of witnesses were immediately divided into a smaller number of groups. Each group is asked that they make a report which consisted of answering questions similar to the ones they would have to answer if they would appear in court to testify. Each group, however, was questioned at different intervals of time. The purpose was to test the effect of the passage of time on the powers of observation and memory. Among the scientific conclusions quoted in this journal are the following, and I quote:
The number of correct answers to all types of questions was decidedly low, irrespective of the time elapsed between the event and the reporting thereof. However, testimony given seven weeks after the event was much more variable than that given one week after. Of the factors tested, the ability to recollect who the participants in the crime were and to describe them was the least reliable and the most likely to be effaced by the passage of time.
If justice in our courts is to depend upon the testimony of witnesses, that testimony must be brought in early and even then accepted with wide allowance for error explainable in terms of faulty sense perception and memory. In our present system, days, and even months sometimes intervene between an accident or crime and the witnesses' appearance in court.
End of quote.
To which, if the court will permit, I would like to add, too, the events about which the prosecution witnesses testified did not happen days, weeks or months, but years ago, and yet we have had prosecution witnesses sit in this chair behind me, and they have identified accurately individuals whom they have seen only once, and they describe everything in detail, exactly what he did, what he said.
Well, the legal authorities, the psychological scientists, the sociologists all have given their earnest effort and study to this problem, the unreliability of witnesses' testimony after the passage of time. I could cite authority to this court for hours on end and all of them would be unanimous in saying to this court: "Beware the testimony of witnesses who purport to remember with any degree of accuracy events which happened two or three years ago."
Here is an extract from volume 28 of the American Sociological Society Publications, page 45, and I quote:
Nearly all studies indicate that memory loss is greatest within the first few hours after observation, and that two-fifths of the personal experiences are totally lost in a two week period.
Robert M. Hutchins and Donald Slesinger, writing in the law review of the Law School which our worthy prosecutor attended, in an article entitled "Some Observations on the Law of Evidence," 41 Harvard Law Review, 860, stated their conclusion at page 864 as follows:
Turning now to past recollection recorded and the psychological theory of the fallibility of memory on which it rests, we discover the psychologists, like the judges, emphasizing the importance of the time between an experience and its report both agree that as time goes on an experience is forgotten until little remains in most cases but conjectures and surmisals.
Now, doesn't that describe the testimony of the prosecution witnesses
conjectures and surmisals?
The distinguished psychologist William H. Roberts, writing on the subject of memory, says, and I quote:
When we try to recall past experiences our images are limited in most of us to items to which we have given definite attention. That is one reason why testimony in court is so often inaccurate. The witness has rarely had any warning that something important was about to happen. He has not been instructed for what he should watch; so very often he fails to observe the crucial point. No determination to tell the truth (very often he fails to observe the crucial point), no agonized going over the scene again and again can recover the essential point that the witness simply cannot recall because of faulty observation and faulty recollection.
Then Mr. Roberts quotes Mr. Wigmore. Mr.Wigmore is perhaps the world's greatest authority on evidence. He wrote the evidence section in our Manual for Courts Martial. He says:
In the last analysis, as Mr. Wigmore so often says, the reliability of the testimony of a witness depends on two factors: "Does the witness want to tell the truth, and can he tell the truth?" The first depends on the bias, interest and prejudices of the witness, the latter depends on psychological laws of observation which are entirely beyond the control of the witness. Memories play strange tricks on witnesses. Details are both lost and added. Sometimes they honestly remember things that never happened. Honest witnesses before trial often say "I do not know whether I actually remember this, or only think I do, because I have been told about it so often." Interesting stories frequently grow with successive tellings, though witnesses have no intention to embellish them.
And I close the quote.
Now, I take the liberty of putting this question to the court: Taking into consideration the elements which I have discussed, the obvious and which are set forth before the court after a long interval of time from the events about which the testimony deals with.
Well, as if these factors were not enough to make this testimony unreliable,
we here in War Crimes have opened the door wide to the greatest perverters
of justice our friends here say "evidence."
In ordinary trials before American or English courts the dangers of fabrication and invention and perjured testimony are to some extent restrained by making a witness testify only what he personally knows. Centuries of trial have shown the wisdom of these courts. It has been said that this hearsay rule has been relaxed in administrative cases in America, and therefore, it should be perfectly proper to relax it in this case. If the court please, that could not deal with criminal matters, in the first place; and in the second place, lives of men are now at stake. Every civilized country in the world requires in a murder case that at least the death be proved by first-hand official evidence. This is the so-called and much misused phrase corpus delicti. You must show that a death occurred, and hearsay evidence in every civilized country in the world is not admissible to show the death.
In these courts prejudice, bias, passage of time, hearsay, are combined to encourage a witness to rationalize, to invent testimony. The way that rationalization works is very simple. Just assume for a minute that I am a Polish witness and I am called upon to stand and testify against Jacobi, let's say. Now I don't remember Jacobi. I only saw him once, but I do remember something about the construction details of Camp Dora. There were such details. I remember that beatings occurred. I remember that somewhere along the line two or three of my friends had been beaten in the course of his detail. Naturally, I am prejudiced. Centuries of national hatred are in me, and with some reason. I don't like Germans in general, and I don't like SS men in particular; so it is a very simple matter to rationalize. I know that Jacobi was in charge of these construction details. He must have beaten somebody. I can sit on this stand and say "Yep, definitely, Jacobi beat one of my friends." Well, of course, I have to make the story good, so, "He beat them so they fell down. He was taken to the dispensary, and I never heard of him again." Oh, my conscience may bother me a little at nights, that I testified against an individual who perhaps was innocent, but after all, he is an SS man, he is a German. Maybe if he didn't do that he may have done something else which was just as bad.
Now, that is the way people rationalize this these things. Is there any doubt that many of these stories have been concocted just that way? And unfortunately, I have not only heard witnesses talking that way, but I have heard American officers talking exactly the same way. That may be mass-scale revenge. It is not justice the individual innocence or guilt of one of these accused.
Now, in any trial which was conducted before an American court, the rules of evidence which pertain in the AngloAmerican system, this story could be checked. It wouldn't stand up for the simple reason that they couldn't prove that the death ever occurred. But in War Crimes trials our Polish witness, whom I used for my example, is perfectly in the safe. He can spin his yarn with complete impunity. Does he have to describe with exactitude the cause of the death? No. Is it necessary for him to even have seen the body? No, certainly not. Does he even have to know the name of the victim? Oh, no, just his nationality, and he knows that because he is a Pole. The gates are wide open and prejudice and faulty memory can run rampant. You can chalk up one more hanging in the game of hate and revenge. It has been suggested that it would not be possible to get convictions without admitting this type of evidence. I say to the court "Do we seek convictions or do we seek justice? Must we sell our birthright? Must we emasculate our legal system in order to convict a few men and obtain revenge?" This choice, this choice, if the court please, with convictions at any price, "are they worth dispensing without judicial safeguards?," is as old as the history of tyranny.
Every policeman who has ever aspired to become a dictator has urged that criminals will escape if the safeguards are not swept away. It is exactly the same thing which the Gestapo and the GPU and the NKVD urged and continue to urge today. It is the very thing that these war crimes trials were set up to condemn. Now, this court can't change the ground rules upon which these courts are held, I realize that, but it can exercise its God-given right to recognize the insidiousness of such hearsay proof, and to reject the evidence based upon them as worthless. I say you not only can, you should, you must refuse to become the instruments of revenge, and maintain your integrity as instruments of justice. If there are any lengthy doubts in the mind of any member of this court as to the worthlessness of this type of hearsay evidence, we can dispel them by saying in this trial, "where it was possible to test this hearsay evidence, we did." We had such cases in this very trial. I will mention only a few.
Zwiener said that he had heard from Finkenzeller that Rickhey had given capos orders to beat prisoners.It was possible for the defense in this case to bring Finkenzeller on the stand. Did Finkenzeller remember any such thing? No. Bouda said that he heard from Kurzke that Kurzke was the doctor who had treated the two men who died as a result of a shot from Helbig. Kurzke got on the stand and didn't remember saying anything like that to Bouda. He never treated anybody who died. Why he saw Helbig at Belsen, but completely failed to substantiate Bouda's testimony. There are many other cases, but I won't burden the court with them at this time; but in every single case in which it was possible during this trial to pin down the sources of hearsay evidence, it failed to pass the test completely. Is there any doubt, if the court please, that fabrications based on these elements, national prejudice, faulty memory, and supported by hearsay evidence should be thrown out of this court, as they should be thrown out of any court in the land which pretends to dispense justice.
There is one thing about this testimony that is doubly dangerous. It is not like pure fiction, it is more like a historical novel, because it has a certain foundation in fact, and thereby it gets a certain amount of credibility attached to itself. These witnesses do know the conditions, general conditions, they do know the place, they know the time, they can give, in general, evidence which sounds credible, so it isn't pure fiction it is a historical novel. That terminates my discussion of the factors which affect the credibility of the prosecution witnesses.
This consideration, however, of these factors enables us to classify
these witnesses, as the prosecution attempted to classify the defense witnesses,
drawing those contrasts which the prosecution attempted to draw. First of
all, in classifying the prosecution witnesses, I would say that we would
have to come to the deliberate liars, of whom there were some.
Maubert "There were no beds in the TB block." A conscious, deliberate lie for the purpose of revenge.
Rozin Heinrich was supposed to have beaten people to death. Of course he made two mistakes. He mistakenly coupled that testimony with the fact that the air-raid shelter was under construction, and it was possible to prove that the air-raid shelter had been built for several months; and also, he made an important mistake. He forgot the nationality of these people, he said they were Hungarian Jews. Well, if the court please, the law on the question of the nationality of these victims is quite clear. In the review of the parent Dachau case, the reviewing authorities said the following: "Be it noted that this testimony is general, and we are only concerned with cases where Allied or co-belligerant nations were subjected to offenses against the laws of war."
Here it must be said that an error was definitely committed by the court in taking judicial notice of the fact that Hungary and also the Gypsies were at war with Germany. Furthermore, the question of whether given victims were subject of Allied or cobelligerant powers was not properly considered by the court on many occasions, since it took notice of the war between Germany and other powers, some of which, such as Austria and Czechoslovakia, had disappeared as sovereign states.
So our witness Rozin didn't get the right nationality because Hungarian Jews, if the court please, cannot be considered as proper victims in these war crimes cases. They are outside the jurisdiction of the court because they still mention their Hungarian nationality; because Hungary was an Ally of Germany, and not a cobelligerant or an Ally of the United States.
So our witness Rozin didn't get the right nationality because Hungarian Jews, if the court please, cannot be considered as proper victims in these war crimes cases. They are outside the jurisdiction of the court because they still maintain their Hungarian nationality; because Hungary was an ally of Germany, and not a cobelligerant or an ally of the United States.
And then we come to the third deliberate liar, Drung. After the man had been proved a perjurer, the prosecution still maintains that he was their star witness, the man who sat here and mocked the justice of this court by telling deliberate lies under oath. The prosecution says that this man who sat here for three days and whose every answer was "Ja, aber " gave very clear and succinct answers, a deliberate liar without a shadow of doubt.
Doctor Kehr, another deliberate liar. Of course his motivation was slightly different. He said that he had never interrogated witnesses. We confronted him with a record of his interrogation of an accused. He, of course, was buying his life and he had to do it with lies. He knew that he and Doctor Kurzke personally had selected thousands of people on these transports, and it was only by reason of the fact that he had purchased his liberty that he was not sitting in the dock.
Doctor Kurzke, of course, deliberately lied about some points, but this particular witness was not malicious. He was just afraid, testified from fear.
Doctor Cespiva, the deliberate liar. We must classify him as such. That witness feels a compulsion to destroy any witness who was present at the times he betrayed his Russian comrades. His position in Czechoslovakia demands this. He can't afford to have witnesses alive who knew he was guilty of betrayal of those Russians. He showed his true color when he tried to intimidate and interfere with the defense witnesses. He went a little too far.
I am not going to attempt to list all these witnesses by class, but just give outstanding examples.
The second class I call "the exaggerators." Not deliberate liars, they are just dramatists. They dramatize their concentration camp experiences. They were martyrs, heroes. All their accounts are surrounded by an aureola and glamor of fiction, and to a large extent that is what it is, too, fiction.
Jay, the Englishman. He was dying of thirst. He had to drink urine. For the first six months nobody had anything to drink. No one could take a bath. All this matter is completely contradicted by the prosecution witnesses at a later time.
Ackermann, the pseudo-doctor. He had performed thousands of autopsies, Ackermann had. He could tell by looking at the cell tissues whether a man died of exhaustion or not, a feat which even the finest histologist with all the resources, with all the resources of a well-equipped laboratory would find difficult to do.
Michel, a man of iron. He was beat over the head with clubs by two men, kicked in the genitals, his spine was broken, lay a cripple, beaten until he was bloody, when he walked by himself without any help for over 500 meters, which is about half a kilometer into the tunnels.
To this class also belongs Kassimatis, the Greek. He went everybody a little better. Not only weren't there any trials at these executions, there weren't even any interrogations, nothing. A man was caught with a piece of wire on his shoe laces and he himself saw two SS men string them up from a beam which does not exist in the ceiling.
Cespiva himself falls into this class of exaggerators and dramatists. He was attacked by this ferocious dog Ajax, which turns out to be a puppy who went around pulling people's cuffs.
There is another example of these exaggerators and dramatists, and that is my worthy co-religionist, Brother Birin. This man, cloaking his hatred, his national hatred, under a hypocritical air of Christian charity, indulged in the wildest speculation, in flights of fancy, that it has ever been my privilege to hear. He gave accurate testimony of the death rates for the first six months of Dora. Of course, he arrived in March 1944, by his own testimony. We present him with a copy of the prosecution's exhibit on death rates, and he promptly pronounced it false.
Of course, minor inconsistencies never trouble the mind of a man who is intent on producing, not inconsistent facts, but fiction. I would like to read to you just a brief excerpt from this little book written by friend Birin. It is called Sixteen Months of Imprisonment. It is widely circulated in France. It is in French. It tells about his experiences in Dora. The part that I have selected is the part in which he describes roll calls at Dora. He says:
During roll calls, the wives of the SS also selected their victims and they did so with even more cynicism than their husbands. They sought beautiful human skins artistically tattooed. In order to please them, a special roll call was often held on the roll call square at which all prisoners had to be present, dressed like Adam. Then these ladies passed in review through the ranks making their selections as in a fashion show. One could hear their titters, their exclamation, their small laughter of satisfaction. They would murmur, "Das ist sch on," and they would point their fingers at the object of their choice.
The prisoners thus selected had to leave the ranks and soon thereafter
their skins were adorning the living rooms of these ladies or were added
to the camp collection.
Now that is a verbatim translation.This book was written by friend Birin, that exaggerator and dramatizer. Now, we have heard voluminous testimony in this case. Certainly if any such a thing would have happened in Dora it would have been presented to this court. Most of us recognize the Ilsa Koch incident at Buchenwald, and he passes it on as Gospel truth in France, and they read this book and they have it on the same level as the Gospel of St. Mark.
I ask the court what credibility can be given to the testimony of such witnesses who put such stuff like that out as fact? It shows what a clever dramatizer can do. This is just an example of the dishonest testimony of this witness. The book is full of them, and it is recommended reading for this court.
The next class that I would like to mention are the guilty ones. These people who were so guilty themselves that they felt compelled to come before this court and accuse the people in this dock in order to satisfy their own sense of guilt. We come to some of them, Drung, Cespiva very definitely in an attempt to pass off their guilt on to these accused. Mittermüller, who had to be dragged out of the Dachau jail in order to testify before this court. Müller, known as the Tiger of Eschnapur, given 25 years by another war crimes court, Wyglondaz, known in Dora as Aunt Johanna, notorious spy for Sander.
And Doctor Kehr again, very definitely trying to hide his guilt by assisting the prosecution in obtaining convictions. We just have to look at one testimony of Doctor Kahr to see the extent to which he will go. That was the testimony in regard to the conditions of the transports which were sent from Buchenwald to Dora. In the Buchenwald case, where he was still trying to buy his liberty, it was Buchenwald's fault; ninety percent of the people who were sent to Dora were so far beyond recovery they were destined, doomed to die. It was well known that Buchenwald was the principal source of prisoners for Dora. If that was so, then the death rate of Dora is completely exonerated. These accused can't be held responsible for a death rate in a camp where ninety percent of the people who were sent to them were already dying. The Dora case is entirely different. These people arrived in fine condition from Buchenwald. Only subjected to the torturous hours and the hard work at Dora is why they developed a high death rate and died. It was the work in the tunnels that killed them. You see, gentlemen, it just depends on which case you testify for a witness like that.
The next class of witnesses for the prosecution is the ignorant, the confused, little man who had no sense of perspective, no background, no education. Ordinarily we would speak of them as having a worm's eye view, but in the case of the prosecution it was more a snake's eye view.
These people are not deliberate liars. They just can't tell the difference between truth and falsehood. You just can't blame them for not testifying accurately, but I certainly blame an intelligent and enlightened prosecution for encouraging such types to appear before a court and give testimony as to matters entirely beyond their possible knowledge. Look at their names: Seidel admitted, punch-drunk -- admitted he was confused in three languages. Bloch and Stern, two nice Jewish boys, cooked up their story on the train coming down. Bernhardt, he was certain that Brinkmann was the official hangman. That was the point he had. No other witness ever saw Brinkmann acting as official hangman during the time he was at Ellrich. Junk, from his exalted position in the kitchen, testified as to all the inner workings of the Mittelwerke, all of the secret work that went on in the Gestapo office, knew exactly what Rickhey was doing every period of the day. This type of witness can testify with great authority about all the secret works, the exact details of administrative channels as high as Berlin, thus demonstrating their ignorance.
Another class of witnesses, those which were compelled by just pure national hatred such as Bouda, a Czech who was known as "Lucy" in Dora, showed that he was prompted by hate and malice. The same is true for the French witnesses. Rozin, Maubert, and Chamaillard, the latter being the witness who was so blinded by hate that he definitely identified the accused Ulbricht as being one of the perpetrators of the Gardelegen affair, though, fortunately, we were able to prove to the contrary. That is not always possible with this type of witness. We can't always do that. In this particular case we were able to bring documents and witnesses to show how completely wrong he was. If it hadn't been for that, I am sure he would have had Ulbricht as being at this Gardelegen massacre. It shows the danger of accepting the statements of any of these witnesses at their face value.
Well, there they are, if the court please, the witnesses for the prosecution on parade, the deliberate liars, the exaggerators, the stupid, the ignorant, the guilty ones who are trying to hide their own guilt, these who are blinded by national hate. It is not a very pretty picture. "Let he who is without sin throw the first stone." But candor compels and justice does require that we recognize a small residue of the prosecution witnesses. They are at the rear of the parade. They are not very glamorous. They have the exotic virtue of trying to tell the truth. These men showed themselves to be men of balance by their attitude, by the positions which they have acquired after they have been released from the concentration camp. They are not out for revenge. This residue is insignificant, it is true, in numbers; but by contrast, it emphasized the worthlessness of the rest of the prosecution witnesses. I will refer to just a few. Colonel Leschi, who is now chief of the radio communications for all of France. The Polish witness Vincent Hein, the Polish reparations commissioner, Dr. Groenveld, the Mennonite. The religious steadfastness of this man compelled him to tell the truth as far as he knew it.
Dr. Groenveld even accused himself as being responsible for selecting prisoners to go on transports, which he did. He also accused himself of keeping his friend Ives in the hospital for the major part of his time in Dora when only other people who were really dying were kept out, because of friendship. This witness was making an attempt to tell the truth.
The interpreter Patzer, now at the University of London, this man confirmed that not one single death occurred as a result of interrogations in the bunker.
Now I implore the court to review carefully the testimony of that type of witness for the prosecution they at least made attempts to present a balanced and sane picture. Of course they were mistaken in many cases. We have already seen what the frailties of human memory will do. We must conclude, if the court please, that except for a small residue of prosecution witnesses, this court should reject as mistruth the testimony of the remainder because of the fact that they were prejudiced, because of the fact of faulty memory and of the time which has elapsed, because most of the testimony was based on hearsay, most of them either deliberate liars, exaggerators, guilty themselves and covering up, guilty and confused, or blinded by national hate. All of these above factors in connection with the incredibility of prosecution witnesses should be considered.
But there is even more. There are fatal errors in the manner in which
the prosecution presented its case, which must throw very great doubts on
the testimony presented. In the first place, it is evident that the prosecution
was overzealous in presenting its case, to say the least. I think, as Buehring
so aptly put it, the prosecution was interested in hearing accusations,
not the truth. I won't review for this court the ways in which the statements
were obtained from these accused. The court heard enough about that from
Buehring during the trial, the witnesses who were permitted to, who were
interrogated, and explanations which were omitted.
Now the prosecution also withheld favorable evidence when it is the duty of the prosecutor to present all of the evidence in order to give a clear picture. Of this there can be no doubt. On several occasions when due to our objections the prosecution inadvertently was forced to present a subject as the Gardelegen report, it presented to the court an entirely different picture from what the prosecution was trying to make. It showed where the real responsibility for the Gardelagen incident lay. It showed that Brauny certainly could not be held as the principle character for that incident, if at all.
In the case of Brauny, of course, it is a case of "Damned if you do, and damned if you don't." If he stayed with the transport and massacred them you were guilty, then you couldn't win. If you left them, then you are a coward. You shouldn't have left them. That is a position in which I hope no member of this court or I want to be put.
That the prosecution indulged in over-exaggerations, is, of course, evident to everyone. He maintained this position during the entire case and maintained this position yesterday in his argument. According to the prosecution every single one of those accused is a mass murderer, every one of them, without any qualification, for one reason or another.
If the court please, that weakens any case when a man makes up his mind to hang every individual, then he is going to fall into some fatal errors in his presentation, and the prosecution did just that. The prosecution took the attitude that they should make no attempt to differentiate between places and names, in order to use casual words like "tunnels" to include construction sites, the "Mittelwerke factory" every place where prisoners worked were "the tunnels," they made no attempt to distinguish between dates.
Even yesterday in its final argument it was said that Rickhey's witnesses were complaining about the long roll calls, and therefore that showed that Koenig was guilty.
The court knows very well that Koenig was in the motor pool at the time Rickhey came to the Mittlewerke. Rickhey came to the Mittlewerke in May, and at that time Koenig had been in the motor pool for four months.
No attempt to distinguish Jews, and an attempt to show up a smoke screen of accusations this constant repetition of an error. That is a theory constantly repeat an error and eventually that makes it true. That was Goebbels' technique. Keep piling up accusations no matter whether they are true or false. Eventually they will be believed.
Now, accusations are easy to make. They are very difficult to disprove. Just keep calling the accused a murderer over and over again. That is the way to do it. This shows how easy it is to make sweeping accusations, if the court please. The same thing is true with the way they couple prejudicial matter which is entirely irrelevant. The horror picture of the bombing victims of the Boelke Kaserne; deliberately introduced to build up a prejudice against the accused Schmidt, in the hope that somehow the accused Schmidt would be found to have some participation in these deaths, which were actually the result of our own bombings.
It is this desire, if the court please, this desire to exaggerate, at all costs, to present evidence at all costs, no matter how worthless it is, that led witnesses such as Zwiener to appear before this court and testify invented testimony.
Now, the prosecution, of course, claims that they had no connection with the testimony which Zwiener invented, that they had nothing to do with his inventing that testimony, but I believe an interesting parallel can be drawn here. Very briefly, I would like to draw this parallel. The prosecution says, "We are completely innocent of having participated in inventing testimony." I do believe it. I know the court believes it. But we must recognize that a much stronger case could be made against the prosecution to prove that they did assist in inventing this testimony than any case that they have prosecuted against any single one of those accused, and that shows the danger of just making accusations and it should show the prosecution the danger and how easy it is, by hearsay testimony and by appearances, to show that a guilt exists.
Let us look at the facts. The facts are as admitted before this court. The prosecution and Zwiener were in contact through Mr. Aalmans that is admitted. Zwiener told another member of the accused of his inventions, of what he intended to do and if the Big Four didn't hang, that then, the little prisoners would hang. Zwiener did, in fact, manufacture the testimony. He passed it actually that is admitted by the prosecution through Captain Ryan. Zwiener made other attempts to pass this information to the prosecution. Then, when the prosecution brought this testimony forth in open court through the accused, Zwiener, by means of a very clear and smooth presentation on direct examination that the prosecution made of Zwiener, in cross examination it was very evident to every member of this court.
There it is a much stronger case than anything that has been presented by the prosecution against any of these accused. If the prosecution is innocent, as I am sure it is, one may well judge how easy it is for a miscarriage of justice to occur and how easy it is to be thought guilty on evidence based upon accusations of prejudiced witnesses, which is buttressed by hearsay. All the elements are there and admitted, just as the prosecutor said yesterday before this court, that all the elements in Helbig's case were admitted because he was present at Belsen, because he had a pistol in his hand, because he was seen by Dr. Kurzke every single element is present.
I would like to close now, if the court please, with a sincere plan for
the court to give those accused justice in this case. I do not want to make
a plea for mercy because justice metes out the punishment that is deserved,
no more, no less. The defense is not so naive and has not been so naive
during this entire case as to claim that all of these people were completely
innocent. We do not so claim now. Many of them have been guilty of criminal
acts. Many of them have admitted it before this court, such as beatings,
but they are not all murderers. Some of them are completely innocent and
we respectfully request this court to take into consideration in bringing
in their verdict these exaggerations that have been presented against these
people against these people who have not received a fair trial.
Now, I do not want to be misunderstood.I am proud to say that every one of these accused has had a fair hearing before a court which has been scrupulously fair, but in our Anglo-American system, a fair hearing before a fair court is not an entirely fair trial. It is only part of a fair trial. What goes on before the trial is just as important as a fair hearing before a fair court. We cannot speak of a fair trial, when accused are denied the elementary rights pretrial rights I am speaking of which any gangster or any common criminal would enjoy before an American court. What takes place before the trial and the type of evidence admissible at the trial are just as important as a fair-minded court. The argument that if the positions were reversed and that if we were being tried by them, we wouldn't get as fair a trial as they did, is cowardly as an answer. Two wrongs have never made a right. It is just the pot calling the kettle black. Regardless of what they would have done, it is not justified of us to do likewise. How can we demand, if the court please, the strictest standard of conduct and morality which the prosecution has said we must use in judging these men? How can we demand these standards which we have inherited from our free laws and our free institutions and at the same time deny them the fundamental rights which our free laws and our free constitution give to people who must live by these strict standards? These people didn't learn their standards of conduct in baseball fields or cricket fields or the football fields of free countries. They learned them in an atmosphere of terror. We refuse to take this into consideration and if we do so, we then are consciously lowering our standards of justice in order to get a transitory revenge on a few suspected criminals.
In these War Crimes trials, this being the last one, we are writing history.
We forget this it is easy to forget in the daily grind, the routine, the
heat of the case it is easy to forget that we are writing international
law and history in these trials. I ask this court to rise above the daily
grind, to separate themselves from this particular trial and the day-after-day
hearing of this evidence and to see itself in the position and the perspective
which history gives to it. The precedents that we set in this court will
outlive every member of this court. The lives and the fortunes of those
accused are unimportant. The great cases in the law which have assured our
great rights have always involved little people, little people who have
long since departed from our field of view. The right of redress against
a sovereign state was laid down in the Winslow Case, the case of a small
boy who was accused of stealing some postage stamps from another boy; the
case which upheld the freedom of the press was the case of an obscure publisher
in the colonies of a magazine which has long since ceased even to be read
in the United States. The freedom of religion was upheld in a case in which
an obscure sect was involved, whose name is no longer even known.
I dare to utter a prophecy to this court. The decision to try these War Criminals under rules which offered them less protection than those which we extend to our own citizens when accused of crime, established a precedent in international law which will live to haunt the world.
The argument is made on the basis of expediency. It is said that those people could not be tried if we did not deprive them of these safeguards. To this, the wise men of the law have always answered that expediency is not a substitute for justice. Expediency is always the first stop on the road to totalitarianism. This philosophy that the ends justify the means that is the philosophy of Machiavelli and of Hitler.
I am most grateful for the opportunity to be able to stand before this court and repudiate this philosophy as abhorrent to our free institutions, which have been nurtured by our Anglo-American tradition and our American system. I do not believe in one law for our friends and a different law for our enemies. I hold no personal grief for these men. They were my enemies for a short while ago. What their fate is, is entirely immaterial to me, but historically such distinction results inevitably in invasions of our most precious liberties. The law means the same for all. We must extend the same protection to the criminal, to the innocent, to the citizen, to the alien, to the Christian, to the Jew. A denial of these basic rights to any group on whatever grounds, expediency or otherwise, in order to produce quick results, destroys the foundations of the law and its strength. I say I am happy to have the opportunity to repudiate this theory before this court because I know that as surely as we deprive this group today of the basic safeguards which we grant our own citizens, tomorrow we will deprive it from the Jew or from the Catholic, as I am, and I oppose it with all my strength.
Historically the law did not become a shield or sword for freedom until it became a way which was common to all men, to the prince, to the pauper, to the Jew, to the Christian, until it became known as "The Common Law," without distinction as to race or creed or the fact that they were former enemies.
These small perversions which are introduced and which have been introduced into these War Crimes Trial cases may seem unimportant. Suppression of liberty always brings with it small invasions of basic rights. The Nazi whom we are trying in Germany today began in that way, by invading a few basic rights to a very insignificant extent, as any German can now tell you before they knew it, their entire system had snowballed into a murderous avalanche which buried freedom. I report, when we consciously abandon our strong moral position as a democracy by laws in order to assure a few convictions, then we, and not the accused, are on trial, are the real betrayers of our system and our ideals. I report, I don't care what happens to those accused. I have no personal grief[Rt] for them of any kind but I, you and everyone here do have very high stakes in the birthrights which this court is here to guard and to preserve and to enforce. I feel inadequate to impress upon this court the importance of these principles. I wish that I could summon up the wise men of the law who have preceded me. Coke and Allenborough and Marshall and Holmes, and have them appear before you and say these things to you in a way far superior to anything which I can utter. I wish that I could summon the conscience of the American people, the voice of their conscience, to speak through me to tell you these things.
The defense is often accused of flag-waving. I am not a flagwaver. A flagwaver uses hypocritical patriotism to cloud the real issue. Here the real issue is not clouded. It is clear, it is expediency or justice. The strength of our democracy lies in the very fact that I, an American, am called upon to defend, through no personal desire of mine, these Germans, my former enemies, and that I can criticize the case which has been presented against them. But it also lies, if the court please, in the ability of each court member to follow the dictates of its own conscience. This court cannot give these men a fair trial. I have made that plain. But they can give them and I know they will give them a fair decision. Your duty is very simple. It may seem complicated but it is simple. Just ask yourself would you be willing to be placed on trial for your life and would you be willing to stake your life upon the type of evidence that has been presented by the prosecution before this court? Would you be willing to have your citizens, citizens of your own country, appear before a court martial or before an American court, and subjected to the kind of prejudice and perjured evidence which has been presented against these accused? Do you consider that the evidence produced by the prosecution against each of these accused would find them guilty beyond reasonable doubt before an American court, using the system and the principles of our Anglo-American free system of laws? Using that criterion, if the court please, it is clear that nearly all the accusations of the prosecution must fall below such standards of proof.
Historically the law did not become a shield or sword for freedom until it became a way which was common to all men, to the prince, to the pauper, to the Jew, to the Christian, until it became known as "The Common Law," without distinction as to race or creed or the fact that they were former enemies.
Major Poullada's final plea in the Nordhausen-Dora trial (U.S. vs. Kurt Andrae, et al. File number 000-50-37) is on record in the National Records Center, Suitland, Md. Record Group (RG) 338, Vol. 86, (Dec. 23, 1947), pp. 7723-7769. It is also on microfilm at the National Archives, Washington, DC. RG 338, Roll 11, 1079/ 7723-7769.
Source: Reprinted from The Journal of Historical Review, vol. 11, no. 1, pp. 81-119.
Published with permission of and courtesy to the Institute for Historical Review (IHR).
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