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.
|