Creative Justice: Conviction Without Accusation - The Case
of Schoepp and Gretsch
By Carlos Porter
In war crimes trials, "conspiracy",
"design", and "plan", are used sometimes synonymously, and sometimes
not. The doctrine of conspiracy was borrowed from American state
and lower Federal Court decisions, particularly Marino vs. US,
91 Fed. 2d. 691, Circuit Court of Appeals. The rest of the world,
of course, was not placed on notice to obey these decisions.
In 1945, conspiracy was a concept unknown to international law.
An example of the unfairness of this doctrine in practice is
provided by the case of Schoepp and Gretsch, in the Trial of
Martin Gottfried Weiss, Dachau, Nov. 15 Dec. 13, 1945, M1175
National Archives, beginning on microfilm page 000691.
DEFENSE: I would like to make a statement to the court relative
to the defendants of Schoepp and Gretsch. There has been no
evidence against either of these men, either by the prosecution
or by any witness for the defense. Therefore, they have nothing
that they have to defend. But they ask me to say to the court
that they throw themselves on the court, if there are any questions
that any member of the court would like to ask them. They have
nothing to hide, and it would be up to the court to ask them
any questions they might have.
PROSECUTION: May it please
the court... whether or not there is any evidence before the
court as to the criminality and culpability with respect to
Schoepp and Gretsch, it is a matter which this court has already
decided, in their rulings on the motion for a directed verdict
of not guilty. It may be the position of the defense counsel
that there is no evidence, but I think it is grossly improper
to put the court into the position of asking the accused to
be put on the stand. I think it is highly improper for the defense
counsel to ask the court to reveal their attitude by putting
them in the position of asking the accused Schoepp and Gretsch
to take the stand. I think that that is an election which should
be made by the accused themselves, after they have conferred
with counsel, and it is certainly improper to ask this court
whether or not they have any questions that they want to ask
the accused at this time.
DEFENSE: May it please the
court, that isn't the point at all. These men have nothing to
say on the stand, but they don't want the court to get the impression
that they are refusing to take the stand, or refusing to answer
any questions. They are merely throwing themselves on the court,
with these words: "I have nothing to hide". There is no point
in their taking the stand. I wouldn't know what to ask them.
The prosecution has not brought one thing out against them.
There is nothing for them to defend. But they don't want the
court to get the idea they are hiding anything, and for that
reason they open themselves to the request of the court. There
is nothing improper about that. The burden of proof is on the
prosecution to prove that these men are guilty of what they
are charged with. There has been no evidence brought out against
them. The prosecution takes the position that the burden is
on them to prove that they are innocent.
PROSECUTION:
The answer to that is that these men are charged with acting
in pursuance of a common design to subject these prisoners to
killings, beatings, tortures, starvation, abuses, and indignities.
We have shown by our case that these men were guards, and as
such they acted in pursuance of a common design to subject these
people to the beatings, killings, starvation, and so forth,
as charged in the particulars. I again say that it is entirely
up to the accused, with the advice of their counsel, to either
take the stand or remain silent, as they see fit, but to try
to put this court into the position of making an election, or
even attempting to disclose their opinion as to their guilt
or innocence at this time, is grossly improper.
PRESIDENT:
The defense will proceed with their case.
DEFENSE: Do
I understand, Sir, that the court desires them to take the stand?
PRESIDENT: The court is not going to express itself
one way or the other. We have already passed on your motion
for a directed verdict of not guilty, at the conclusion of the
prosecution's case. You can proceed with your case in any way
you think best.
ALBIN
GRETSCH, one of the accused, was then called to the stand by
the defense as a witness in his own behalf, and testified through
the interpreter as follows:
DIRECT EXAMINATION:Questions
by the defense:
Q: What is your name?
A. Albin
Gretsch.
Q: How old are you?
A: Forty six years.
Q: Where were you born?
A: Augsburg.
Q: Did you ever participate in a common design to murder
or to mistreat any prisoners, or any persons?
A: No.
DEFENSE: No further questions (!)
On cross,the prosecution showed
that he was a guard, that he had a gun, and that there were
bullets in that gun. On redirect, the defense showed that he
never fired a shot. Gretsch was convicted of "aiding and abetting
in a common design".
JOHANN SCHOEPP, one of the accused,
was called to the stand by the defense as a witness in his own
behalf, and testified through the interpreter as follows:
DIRECT EXAMINATION:Questions by the defense:
Q: What is your name?
A: Johann Schoepp.
Q:
How old are you?
A. Thirty four and half years.
Q: Where were you born?
A: In Alcen, Rumania.
Q: Are you a Rumanian citizen?
A: Yes.
DEFENSE: No further questions (!)
On cross, the prosecution showed
that he was a reserve guard on a transport. On redirect, the
defense showed he had no gun, no orders, nothing to do, and
was a conscript assigned to the German Army from the Rumanian
Army. He was convicted of "aiding and abetting in a common design".
EXCERPTS FROM PROSECUTION SUMMATION, beginning on microfilm
page 000857)
PROSECUTION (Lt. Col. Denson)...The case
has been long. This court has heard the oral testimony of over
170 witnesses...I would like to call the court's attention and
wish to emphasize the fact that the offense with which these
40 men stand charged is not killing, beating, and torturing
these prisoners but the offense is aiding, abetting, encouraging
and participating in a common design to kill, to beat, to torture,
and to subject these persons to starvation.
Note that there is no mention
of a gas chamber. That accusation was dropped before trial,
but reintroduced into evidence at Nuremberg, even though it
was known to be false.
It may be, because of
the testimony submitted here, that this court may be inclined
to determine the guilt or innocence of these forty men by the
number of men they killed, or by the number of men they beat,
or the number they tortured. That is not the test that is to
be applied in this case... We are not trying these men for specific
acts of misconduct. We are trying these men for participation
in this common design... as a matter of fact, this case could
have been established without showing that a single man over
in that dock at any time killed a man. It would be sufficient,
may it please the court, to show that there was in fact a common
design, and that these individuals participated in it, and that
the purpose of this common design was the killings, the beatings,
and the tortures and the subjection to starvation... The evidence
before this court demonstrates beyond all peradventure of a
doubt the existence of this common design. It is not contended,
nor is it necessary to sustain, the charges that this common
design had its origin in Dachau, nor was it first conceived
in January 1942...
Note
that the word "conspiracy" is avoided at all times, apparently
to give the prosecution more leeway than allowed in conspiracy
cases. It was never revealed where the "design" originated,
who made it, when and where, whether it was in writing or oral,
or who was present.
EXCERPTS FROM JUDGMENT: 13
December 1945
PRESIDENT: The evidence presented to this
court convinced it beyond any doubt that the Dachau Concentration
Camp subjected its inmates to killings, beatings, tortures,
indignities, and starvation to an extent and to a degree that
necessitates the indictment of everyone, high and low, who had
anything to do with the conduct and the operation of the camp.
This court reiterates that, although appointed by a conquering
nation as a military government court in a conquered land, it
sits in judgment under international law and under such laws
of humanity and customs of human behavior that is recognized
by civilized people. Many of the acts committed at Camp Dachau
had clearly the sanction of the high officials of the then customs
of the German government itself. It is the view of this court
that when a sovereign state sets itself up above reasonably
recognized and constituted law or is willing to transcend readily
recognizeable constituted customs of human and decent treatment
of persons, the individuals effecting such policies of their
state must be held responsible for their part in the violation
of international law and the customs and laws of humanity.
Note that no references are
given to any provisions of any laws constituting the legality
of the court, the trial, or the crimes of the defendants.
The accused and counsel will stand. The accused will present
themselves individually in the order in which they are numbered
before the bench.
Thirty
six of the forty defendants were sentenced to be hanged, two
to life imprisonment, and Schoepp and Gretsch to ten years.
Appeal was permitted as to sentence, but not as to the merits
of the case. Twenty eight of the defendants were actually hanged.
Most of the rest were released in the 1950s.
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