NW Lawyer - September 2013

tions, and to act as clerks, to gather documentary evidence. They wrote histories of the camp. They also helped compile lists of the SS for arrest. Using these lists, the Po W camps were scoured for prisoners who could be identified as part of the Mauthausen staff; they were selected out of the Po Ws and all brought to Dachau.

Robin Lindley: How did they choose the final 61 defendants?

Dr. Tomaz Jardim: The problem was
that the army was short-staffed during
the investigation stage and they depend-
ed on survivors. They literally wound up
with 15,000 war crime suspects [from all
camps] in their custody. How long would
it take to try 15,000 people?

They realized they needed to come up with a very efficient strategy for trying these people. They couldn’t try 200 war crimes suspects from Mauthausen for individual acts of murder and atrocity.

It would take them forever. Rather, they
put the camp itself on trial. They hoped
to have the military judges declare Mau-
thausen a criminal institution, and to de-
clare everybody who was there and who
contributed to the upkeep of the system
guilty, no matter their role.

They first had to show in court that Mauthausen was a criminal enterprise. They selected defendants who represented every aspect of the functioning of the camp, and ended up with the specific 61 who were selected for trial.

They painted a broad picture of complicity and asked the court to declare Mauthausen a criminal enterprise and then to declare all of these people guilty because they helped maintain this criminal enterprise. They asked the court to take “judicial notice” of the criminality of Mauthausen, so in future proceedings they wouldn’t need to prove that again. Then all of the remaining suspects in custody could be whisked through these rapid proceedings. They basically just judged whether the subsequent defendants were there or not, [and] whether they could be connected to this criminal enterprise and handed a sentence. These trials often lasted only a matter of hours.

Robin Lindley: Didn’t criticism of the proceedings arise because the “ common design” theory worked to the detriment of individual defenses?

Dr. Tomaz Jardim: Absolutely. The
defense correctly raises alarms about
this because you’re basically saying that
if they were there, they were guilty. If you
were at Mauthausen, whether you were
the cook or the hangman, you were seen
as contributing to the criminality of this
camp in your own little way and therefore
you were guilty. The chief prosecutor,
William Denson, even said to the court,
“I’m going to present evidence of atroc-
ity, but I don’t need to show that anybody
in the dock committed any specific act
of atrocity. All I need to show is that they
were present at Mauthausen and that
they helped keep up the system.” The
defense responded, “What can we say
to get our defendants off the hook if the
prosecution says they don’t need to show
that any of the defendants participated in
any specific act of atrocity?”
The prosecution was criticized and
there was justification to the defense
claim that it was hard to give the defen-
dants a full and fair trial according to the
charges.

The other major criticism of the trial that combined with the charges to make the proceedings unfair were the rules of evidence, particularly the admission of hearsay evidence.

Robin Lindley: The testimony of the American Mauthausen survivor, Lt.

The Literary Lawyer

SMITH GOODFRIEND, P.S.
CIVIL APPEALS

Available for referral or association in complex tort appeals

Moratti ex rel. Tarutis v. Farmers Ins. Co., 162 Wn. App. 495 (2011), rev. denied, 173 Wn.2d 1022, cert. denied, 133 S.Ct. 198 (2012).

Singh v. Edwards Lifesciences Corp., 151 Wn. App. 137 (2009).

Rufer v. Abbott Laboratories, 154 Wn.2d 530 (2005).

Kuntz v. Lamar Corp., 385 F.3d 1177 (9th Cir. 2004).

contact Howard Goodfriend or Catherine Smith at:

Washington’s Appellate Law Firm
www.washingtonappeals.com 206-624-0974

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