WAR CRIMES
TRIALS

Background:

Since so much of the Hoess testimony was derived for a court of law or became part of the legal record, it is only fair that the proper legal implications of his torture, which included threats to his direct family members, be reviewed.

THREATS TO HOESS’ FAMILY

Point 1: “In 1884, the Court reviewed a federal criminal conviction in Hopt v. People of Territory of Utah, 110 US 574. It explicitly recognized that there was a common law rule prohibiting the use of confessions obtained by inducements, promises and threats. Because of their inherent unreliability, such confessions were not admitted into evidence….Protection against confessions obtained by inducements, promises and threats subsequently was enlarged so that protection against all involuntary confessions was provided. (See: Ziang Sung Wan v. United States, 266 US, 1 (1924)

Hoess beaten by his Captors-a flashlight shoved down his throat

Point 2: In Brown vs. Mississippi, 297 US 278 (1936) :

“Summarily reversing convictions obtained in the state court, the Supreme Court found that severe whippings, used to procure confession from helpless defendants, made the confessions involuntary and violated basic due process rights. In reaching its decision, the Court emphasized the unreliability of confessions extracted by torture and, referred to the confessions in Brown as “spurious.”

HOESS DEPRIVED OF SLEEP AND HARASSED

Point 3: In considering circumstances of physical deprivation or mistreatment, the Court not only disapproved of severe brutality like that found in Brown, supra, but also of the denial of food, Payne, supra, (accused was given no food for 24 hours), or sleep, Aschcraft v Tennessee, 322 US 143 (1944) defendant was not permitted to sleep for 36 hours.

HOESS SUBJECTED TO PSYCHOLOGICAL TORMENT BY G.M. GILBERT ET AL

Point 4: A third fact, psychological influence, was also accorded great weight by the Court. Although the Court stated that a voluntary statement need not be volunteered, it refused to hold that only physical brutality was impermissible. In Watts vs Indiana, 338 US 49, 53 (1949), the Court said that:

“if the confession is the product of sustained pressure by the police it does not issue of free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary.

HOESS ET AL DENIED THE RIGHT TO CONSULT WITH FAMILY, FRIENDS AND COUNSEL

Point 5: In Watts, as in Haley v. Ohio, 332 US 596 (1948), and numerous other cases, the Court paid special attention to whether the accused was denied the aid of family, friends, or counsel. Incommunicado confinement consistently was viewed as coercive. Another form of psychological influence was trickery. NOTE: See generally White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581 (1979).

Furthermore:

THREATS TO DEPORT THE FAMILY OF HOESS TO THE USSR ILLEGAL

“The Court also recognized the pressure inherent in such psychological techniques as sustained interrogation, Ashcraft, supra, and the threat of mob violence. (In Hoess’ case, the threat of handing his family over to the Russians would qualify) Payne, supra, (defendant was told that 30 or 40 people would be waiting to get him unless he confessed). The Court was also concerned about rewards and inducements to confess, which had been condemned in Hopt, supra. New techniques as well as old were carefully scrutinized. For example, in Leyra v Denno, 347 US 556 (1954), the Court took exception to the use of a trained psychiatrist to extract a confession through skillful and suggestive question. (RE: HOESS: see: Gustav Gilbert, et al., etc.)

DENIAL OF COUNSEL OF HIS CHOICE BEFORE AND DURING INTERROGATION

Point 6: Hoess was interrogated without benefit of counsel. “the Court considered whether the accused (Leyra v Denno) was aware or had been appraised of his …right to counsel, as well as his right to remain silent.

THE CASE OF HOESS ET AL SUBJECT TO REVERSAL

Point 7: In reviewing confession cases, the Court made it clear that it would overturn a finding that a confession was voluntary if there was undisputed contrary evidence in the record. Chambers v Florida 309 US 227, 228, (1940)

Point 8: “the voluntariness standard required a case by case scrutiny of the circumstances surrounding a particular confession to determine if the methods by which it was obtained comported with due process. The Court considered both the police conduct in procuring the confession and the defendant’s ability to withstand coercion: therefore, the “totality of the circumstances” test that was set forth in Fikes v Alabama, 352, US 191 (1957) was determinative of the voluntariness of the confession.

REVERSAL EVEN IF ACCUSATIONS TRUE

Point 9: “It soon became the rule that even if sufficient evidence existed from sources independent of the confession that the accused committed the crime as charged, the dent of the confession that the accused committed the crime charged, the conviction was still to be reversed if a coerced confession had been admitted at trial.” (Hoess’ first confession was not admitted at his trial in Poland, but another confession which had been obtained by similar methods used by his communist interrogators—NOTE: However, such confessions were admitted during the Malmedy trial-a clear violation of human rights and due process). On these issues see: Payne v Arkansas, 356 US 560, 568 (1958)

USE OF TORTURE DESCRIBED AS BARBARIC

Point 10: “The use of torture and other barbaric practices to elicit confessions was not confined to American police stations. European police were known to employ tactics that were as offensive to human dignity as those used in America. Thus, following world war II, (This point is important because it confirms that an accused right’s were violated prior to this date ( as well as afterward). “it was not surprising that France, Germany and Italy adopted exclusionary rules to cover evidence obtained by due process violations. SEE generally Pakter, Exclusionary Rules in France, Germany and Italy, 9 Hastings Int’l & Compar. L. Rev. 1, 7 (1985).

HOESS WAS DENIED COUNSEL at the time his confession was taken

SPANO v NEW YORK

“Four concurring judges expressed greater concern about the fact that the defendant Spano had been indicted and was refused permission to see his attorney than about the voluntariness of the confession under the totality of the circumstances.

FEDERAL STANDARDS THE SAME

Finally, it must be noted that during the period that the state confession cases were decided under the voluntariness approach, federal cases were governed by an identical standard. A coerced confession that violated the due process clause of the 14th Amendment also violated the due process clause of the 5th amendment. But in Federal Court, a confession might even be rejected even without a finding of coercion!

Conclusion: The legal and human rights of Rudolf Hoess and other accused German defendants were denied, as was due process. The IMT had been specifically formed de post facto according to principles which contravened all conventional rights and other accepted rules relating to due process during the course of the trials held in Germany, Russia, Poland, et al., in the period 1945-1965, which were a perversion of justice and a betrayal of the legal process.

According to British historian Bradley F. Smith, The Road to Nuremberg, Basic Books, NY, 1981, p. 56:

“(General Cramer, Judge Advocate General), “recommended that the normal trial procedures and evidentiary systems used in military courts, which were already highly favorable to the prosecution, should be tipped even further in that direction. In “war crimes trials” (quotations mine) “all evidence which has probative force in the minds of reasonable men” should be made admissible, and defendants would lose the right of appeal. All sentences, including death sentences, were to be “executed within 24 hours.”

Also, according to the same source cited above, when Colonel R. Ammi Cutter, an attorney temporarily on duty in the war department, examined the trial procedures which were recommended by another young attorney of Jewish descent (Murray C Bernays) who was related to Supreme Court Justice Felix Frankfurter,-- he at first described the proposals as “ingenious,” but he was troubled by the “fairly radical departures from existing legal theories” that it embodied.”

Nevertheless, Bernay’s “Conspiracy” theory was eventually adopted by the allied governments. Furthermore, other groups had taken an interest in the trials. According to Smith:

“On 5 October, Bernays took the opportunity at a routine conference with Green Hackworth, the State Department Legal Chief, to put before him the essential features of his plan. Hackworth, who had been holding to a rigidly conservative definition of what constituted a war crime, had recently come under heavy pressure to find a more elastic interpretation which would meet the demands of groups such as the American Jewish Conference and the War Refugee Board.” P. 57

Note: The WRB was accused of being a communist front organization and had been formed by Henry Morgenthau junior, who was also of Jewish descent and a close advisor to President Roosevelt.

In fact, every right which we today hold as inalienable was suppressed by the allies when the issue involved the prosecution of accused Germans. Again, according to Smith,

(Department) G-1 …recommended amending the provisions of the American Rules of Land Warfare (FM 27-10), relating to an appeal to superior orders as a covering defense against conviction in military courts…Since the British had already amended their Manual of Military Law in this sense (This grotesque act was approved just prior to the end of the war, in order to deny accused Germans a legal basis from which to conduct their defense when arrested and charged by the allies) the JAG officer thought it only reasonable that the Americans do the same so “that we should not furnish the “war criminals” with ammunition.” (!)

In other words, strip away all pretenses to human rights and judicial process and deny the accused the opportunity to conduct a proper defense against monstrous charges and accusations which would take more than the “Dream Team” to successfully contest. Much like tying a boxer’s hands behind his back before sending him into the ring. Justice?

NOTE: All legal quotes cited in this post are from: American Criminal Procedure, Cases and Commentary, Stephen A. Saltzburg, 3rd edition, American Casebook Series, 1988 pp. 447-451.