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4 Under the Lights THE TRIAL THAT began on May 16, 1946, was officially designated U.S. vs. Valentin Bersin, et al., the twenty-five-year-old former tank commander ’s name appearing first on the alphabetically arranged list of defendants on the charge sheet. Neither Everett nor Ellis had had experience in criminal court procedure in the United States, but that was not as disadvantageous as it might appear, for the trial procedure employed by military government courts of the U.S. Army was different in important respects from that which an American lawyer would have experienced in a civilian court in the United States. In outward appearance the court was similar to a U.S. Army court martial. Evidence would be heard and judgment rendered by a panel of officers appointed for that purpose by higher authority, in the case of the Malmedy trial by Headquarters, U.S. Third Army. One officer, the “law member,” was to be in possession of formal legal training; he would have responsibility for interpreting the law and for rendering procedural decisions. In effect , therefore, the officers detailed to hear a case served both as judge and jury, in a manner not dissimilar to continental European practice.1 Some procedural elements lent to the Dachau courts a summary character. A two-thirds majority of the presiding panel of officers was sufficient for both conviction and sentencing, including the imposition of the death penalty. This stood in contrast to court martial practice, which required unanimity in the application of capital punishment. Secrecy surrounded the numerical division of the judges in arriving at verdicts and in imposing sentences, as well as the reasoning behind their decisions; this, too, was a feature of continental procedure. Likely to be most alien to American attorneys were the rules of evidence. In effect , there were none in the Dachau courts. Hearsay and opinion, in most cases excluded from normal United States courts (including courts martial), were admissible, as well as all else that might, in the minds of the judges, have a bearing on matters before the court. These 49 rules were adopted in large part to reduce the likelihood that defendants guilty of horrendous crimes would escape justice on legal “technicalities ” and did not necessarily preclude fair trials, but adopting procedures for the trials of enemy personnel that were expressly rejected in the trials of U.S. citizens (“Hearsay is not evidence,” says the Manual for Courts Martial, U.S. Army) enhanced the trials’ vulnerability to later censure.2 Eight officers had been appointed to hear the case. Highest in rank and the president of the court was Brigadier General Josiah T. Dalbey, then serving with the Third Infantry Division. The remaining members of the judicial panel were full colonels, most of infantry or field artillery. Colonel Abraham H. Rosenfeld, the law member, was the dominant figure on the bench. In addition to the judicial power he wielded, he had impressive, perhaps intimidating, credentials. A graduate of Yale Law School, Rosenfeld, like Everett, had combined the peacetime practice of law with service as an officer in the Army Reserves, but he had gained considerable courtroom experience before being called to active duty in 1940. While serving at Fort Dix, New Jersey, he had acted as either prosecutor or defense counsel in approximately two hundred cases tried by court martial. Unlike Everett (and Ellis), he had acquired battle experience as commander of a combat team in North Africa; although brief, this phase of his career entitled him to wear the Combat Infantry Badge over the left breast pocket of his tunic. Everett may have encountered Rosenfeld’s name while still in Atlanta. One of the many publications in the files of the Fourth Service Command’s Security and Intelligence Division files is a pamphlet, entitled Hitler’s Typhoid Marys, that refutes the common anti-Semitic charge that Jews shirked military service. In it, Rosenfeld is cited as having led the first American unit to land at Algiers . When the unit was dissolved after about a month, Rosenfeld was assigned to a variety of administrative and judicial duties for the remainder of the war before being sent to Dachau in March 1946 for service in the trial of the former masters of Mauthausen concentration camp, where approximately forty thousand human beings had died.3 The first Nuremberg trial excited controversy, in part because of the novelty of the offenses with which the...

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