In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER 12 Fair and Intelligent Review in 1946 Congress had to revise the Laws of War. According to the Vanderbilt Committee report, “the command frequently dominated the courts.” Defenders “were often ineffective” for lack of knowledge and “a vigorous defense attitude.” sentences were often “excessively severe and sometimes fantastically so.” Pretrial investigations “were frequently inefficient or inadequate .” After the trial, the prosecution still exerted such control that “a fair and intelligent review” was impossible.1 Nor were there any provisions for judicial appeal. To be sure, maj. Walsh had not found Lt. Baldwin’s pretrial investigation “inadequate” for his purposes, nor maj. Taylor too inexperienced, although the latter’s “defense attitude” had been just vigorous enough to place inconvenient material in the trial record. The Ninth service Command’s JA staff benefited from the fact that the first reviewing power was the very commander for whom they had investigated the crime, convened the court, and prosecuted the case; nonetheless, the review that the staff would now compose and present to Gen. mcCoach for his signature would not be an easy task. The command’s staff Judge Advocate, Col. Thomas J. White, not only had to justify the seven death sentences well enough to win approval with the Judge Advocate General’s office in Washington, which automatically reconsidered all General Court-martial sentences. He also had to deal with a new judicial ruling that made nonsense of the Papago Park case. Furthermore, before the review was complete, Ninth service Command would have a new reviewing power which favored mercy. in June 1944 the Bulletin of the Judge Advocate General of the Army had digested a case in the european Theater in which a soldier named mcDon140 FAIR AND INTELLIGENT REVIEW 141 ald had been bullied into confessing a theft. A week later, he had confessed again to a pretrial investigator. The reviewers had rejected both confessions and overturned his sentence on the ground that mcDonald had never been told that involuntary confessions were inadmissible in court. in confessing anew, he “may well have thought that he could not make his case worse than he already had made it.” in effect, “the influence of the prior improper inducement ” had tainted both confessions.2 The mcDonald case decision was very unpopular. Field commanders had no use for legal niceties that interfered with a court-martial’s primary purpose , discipline; and military lawyers always resisted constitutional limits.3 Therefore, when Col. White read the mcDonald trial transcript, he recognized a fine political opportunity. The reviewers in utah calculated that the reviewers in Washington could be led to confirm the Papago Park sentences as a means of preventing mcDonald from becoming a legal precedent.4 Col. White gave three assistants six days to write the review.5 They began with a vivid description of Drechsler’s corpse. They explained that his killers called him a traitor because he had “interviewed” them “at a previous station under an assumed name for the purpose of obtaining information for the detaining power.” The reviewers fairly paraphrased, without comment, the three unsworn statements, including Fischer’s charge that he had not been advised of his rights before his ordeal and Wizuy’s charge that Capt. schmidt had told him “his condition would not change until he talked.”6 They also noted that sgt. Held had mentioned seeing stengel in an overcoat and Capt. schmidt had referred to a gas mask with onion in it. Then the reviewers emphasized how carefully the investigating board had explained to each defendant his AW 24 right not to incriminate himself. Furthermore, each one had signed, without protest, “certificates” stating that they had not been coerced. each one had “in effect confessed anew” to the pretrial investigator. major Zabel had testified that he knew nothing of any coercion, and Col. Church that “he had no personal knowledge of any coercion being used on any of the accused, but that he had been informed as to its use outside of his presence in the case of accused otto stengel.” The reviewers then said they found “no errors, omissions or irregularities” in the trial procedure “injuriously affecting the substantial rights of the accused .”7 Though there had been “instances of the interpreter being improperly requested to make explanations to, or ask questions of, the accused,” this was apparently a result of the court’s “abundance of caution to assure that each accused understood his rights”; and since the defendants had “an interpreter [18.224.0.25...

Share