Preparing for Trial

Benjamin B. Ferencz

One of the first steps taken in preparing for the Einsatzgruppen tribunal was to safeguard the looseleaf binders containing the secret daily reports of the murders committed on the Eastern front by the SS extermination squads. The files were locked in a U.S. Postal sack and placed under guard at the Berlin Document Center commanded by U.S. Lt. Col. Helms. It may be recalled that Helms’s brother was an SS officer, but that posed no risk since he was already safely in the bag as a Prisoner of War. The next step was to match the evidence of the crimes with the known perpetrators who were in custody. To have one without the other would lead to more frustrations than convictions.

There were about 3,000 members of the Einsatzgruppen who spent practically every day on the Eastern front murdering innocent men, women, and children. Since the days when merchant vessels first crossed the seven seas, it has been established law that he who sails on a pirate ship, knowing the purpose of the voyage, shall, when apprehended, walk the plank or be hanged from a yardarm. As tempting as the idea might be, there was no way the U.S. Navy could sail into landlocked Nuremberg with planks from which 3,000 men could be shoved gently into the sea. Who of these 3,000 would be selected for the honor of being tried in a Nuremberg court of law depended upon other considerations, which, to most rational people, might appear slightly stupid.

We were able to put together a fairly complete roster of EG officers. The lists were sent around to all Allied POW camps with requests to extradite the suspects to the Nuremberg prison. Those SS leaders who were already held in the Nuremberg jail as potential witnesses would be given priority as defendants. As their hosts, we owed them that measure of hospitality. The total number of mass killers to be tried depended upon finances and furniture. No Nuremberg tribunal could try more than 24 defendants in the same trial. The reason was that there were only 24 seats in the dock. Historians may not believe it, but it’s true. It really wouldn’t look nice to have to jam killers together or to have some of them sitting around on the floor during the trial. It was unfortunately inevitable that some fish, including big ones, might escape the net completely. Justice is always imperfect. Nuremberg never sought to try more than a small sampling of major offenders. We did not use a lottery to select the chosen 24, though it might have been almost as good. We had to select from those whose names appeared prominently in the captured documents and who were already imprisoned and competent to stand trial.

Having been a former combat sergeant, I decided that no enlisted man would be prosecuted. The traditional U.S. military practice, and probably the same is true for all militaries, is to exonerate the higher-ups and stick it to those at the bottom. I believed then, and now, that responsibility starts at the top. Our primary targets for prosecution were the highest ranking officers and the most educated killers we could lay our hands on. They were given a legal presumption of innocence, even though, given the evidence, such a presumption was rather absurd. As the Chief Prosecutor, I accepted the challenge to prove beyond doubt that every one of the 24 SS officers chosen for prosecution was guilty beyond doubt of the crimes charged.

I do not wish to imply that I handled the trial completely by myself. All Chief Prosecutors were aided by an array of lawyers, translators, researchers, interrogators, secretaries, and administrative assistants. General Taylor, as Chief of Counsel, was an outstanding jurist of impeccable character, eloquence, and skill. One of his Deputies, James McHaney of Little Rock, Arkansas, was in charge of other cases against high- ranking officers of the SS. I gladly consulted with both of them on all policy matters and benefited from their advice. We became fast friends. Our friendships were further bonded, as you can imagine, as the three of us and our wives, had to parachute out of a plane falling over the ruins of Berlin. But that was another story.

It was clear that if I was to convict 24 defendants I would need additional legal help. Every individual accused was entitled to a fair trial on the merits and his personal guilt had to be established beyond reasonable doubt. When he gave me the assignment, Taylor had stipulated that no new staff could be hired, and time was of the essence. I canvassed the other trial teams that were busy prosecuting industrialists, Foreign Ministers, doctors, lawyers, and leading SS functionaries and some of the other Chief Prosecutors were eager to be of assistance—it was easier to assign someone to a new trial than it was to fire him. I thus managed to assemble four lawyers from other trials: Arnost Horlik-Hochwald, a Czech, Peter Walton from Georgia, John Glancy from New York, and James Heath from Virginia. Heath was older than most of us, and spoke with a soft drawl reflecting his southern upbringing. He was a handsome gentleman who, despite his mature age, had served as an enlisted man in the war. He was also an alcoholic who had difficulty focusing on any assigned task. For Heath’s non-performance on other cases, Taylor felt he should be fired. Heath and I had shared the same quarters when we first arrived in Nuremberg and he had become my pal. I persuaded Taylor to let me try my luck with him. It sometimes pays to give a man a break when he is down; it’s always worth the effort.

The Defense Counsel arrayed against us was formidable. Each defendant was entitled to be represented by a lawyer of his choice, plus one assistant counsel. After the trial, in 1948, I wrote an article in the Journal of Criminal Law and Criminology on “Nuremberg Trial Procedure and the Rights of the Accused.” I pointed out the complete fairness of the proceedings. In fact, as the trial was about to open, I thought it was quite unfair—to the prosecution! The 24 defendants could be supported by 48 German lawyers, almost all of whom had been members of the Nazi Party and who knew the facts much better than the five War Department recruits representing the prosecution. The German lawyers were given special rations, and their pay came from occupation funds. At least 30 days before trial, they received copies of every document the prosecution intended to use in evidence. They had ample time to prepare for trial.

I was frequently asked, after the trial started, whether as a totally inexperienced young lawyer, I was nervous about facing Germany’s mass killers, including six SS Generals, who would have shot me on sight. No, I was not nervous. They were nervous. I didn’t murder anyone. They did. And I would prove it. I would convict the accused on their own official records.

There were three judges assigned to hear the “Einsatzgruppen Case,” as it was officially called. Judge Richard S. Dixon had been a Judge of the Superior Court of the State of North Carolina. Judge John J. Speight was a prominent member of the Alabama bar. The Presiding Judge was Michael A. Musmanno, who had been with the Court of Common Pleas in Pennsylvania. He had been a Captain in the U.S. Navy during the war, and proudly wore his naval uniform beneath his black judicial robes. It was Musmanno who dominated the whole trial. The other two judges were the silent type. I don’t recall that they said anything during the trial or, if they did, that it was worth remembering. When the defendants were arraigned on September 15, 1947, to enter their pleas of guilty or not guilty, Judge Musmanno asked each one to confirm that he had received and understood the indictment and that he was represented by Counsel. When he called the name of Emil Hausmann, I rose to explain that the defendant died subsequent to the filing of the indictment. Two days after receiving the indictment, Hausmann had committed suicide. The case against him was dropped. That left 23 to go.

Some defendants created special problems. As I was reading the indictment, one defendant, Eduard Strauch, suddenly stood up in the dock and then disappeared from my view. The military guards jumped forward with their clubs raised as he lay writhing on the floor. It appeared that he was having an epileptic fit. He was removed from the room and my reading of the charges continued.

Strauch was arraigned a few days later with Otto Rasch, who had been temporarily excused by the Court when his Counsel stated that he was too ill to understand the pleadings. I vividly recall when Rasch’s German lawyer, Dr. Hans Surholt came to my office with a request that the case against his client be dropped because of illness. When I asked what ailed his client, he replied that it was Parkinson’s disease, which caused Rasch’s s body to tremble. I stated that if I had killed as many people as he had, I too would be shaking. “Is he breathing?” I asked his Nazi lawyer. “If so, I am going to indict the son-of-a-bitch.”

Rasch, who held two doctorate degrees, had been the commander of an Einsatz unit that boasted it had slaughtered 33,771 Jews in “Babi Yar,” a ravine near Kiev. The two-day massacre began on September 29, 1941, a day when Jews assembled to celebrate their holiest religious holiday, Rosh Hashona. The genocide, which was immortalized in a poem by the famous Soviet poet Yevtushenko, may have set a world record for deliberately concentrated mass murder. I was not going to drop a case that was provable by the defendant’s own top-secret reports. When Dr. Rasch, General of the SS, was brought in on a stretcher, he acknowledged that he understood the proceedings and pleaded alike with the others, “Not guilty!” A two-week recess was declared. On September 29, 1947, the Prosecution was ready to proceed with the presentation of its case against 23 defendants. It was the fifth anniversary of the infamous Babi Yar massacre.