. NMT05-T1234
Volume V · Page 1234
| of sentence was repeated. Since the former
presentation is the longer one and covers practically everything mentioned in
the latter, the Tribunal will take up from the petition the various matters
advanced by defense counsel as error. Defense counsel is of the impression, or at least so argues, that preference was given to the prosecution over the defense in the matter of consideration of arguments respectively submitted. At the termination of the trial, defense counsel submitted a written argument of 33 single-spaced typewritten pages which covered most thoroughly and ably the case of Karl Mummenthey. The prosecution, in its closing summation of 73 pages against all the defendants, devoted less than 2 pages to the case of Karl Mummenthey. To supplement this meager treatment of Mummenthey's case, a trial brief which analyzed the evidence as it applied particularly to Mummenthey, was submitted by the prosecution. In both his petition and his memorandum, defense counsel makes much of the fact that five sentences or phrases taken from the judgment bear some resemblance to phraseology in the prosecution's trial brief. Since the material used by both the prosecution and the Tribunal, as well as the defendant, was necessarily all the same material, it is not so extraordinary that the Tribunal's findings should in some instances parallel the contentions of one or the other of the litigants. It is not contended by defense counsel that anywhere in these five fragments of similarity, the statements made by the Tribunal are not supported by the evidence. In one instance, a sentence taken from the judgment uses almost identically the same language employed by the defendant himself on the witness stand. In speaking of the defendant's efforts to ascertain whether inmates were paid, the Tribunal said that the defendant said: "He tried to find out but never got a satisfactory answer." The defendant's actual words in Court were: "I tried to find out * * * but I was never given a satisfactory reply." (Tr. p. 5605.) In view of the Court order of 13 October defense counsel were entitled either to file replies to the prosecution briefs or the prosecution briefs should be disregarded. However, any use of the prosecution briefs prior to the order of 13 October could not in any way prejudice the defendant's cause since, as heretofore pointed out, the briefs could only speak of evidence already within the knowledge of the defendant as much as it was within the cognizance of the prosecution. Nonetheless, since some ambiguity did result about the entire matter of filing trial briefs, the Tribunal resolved to reconsider its whole judgment so that no defendant could by any chance suffer through the lack of having filed every argument he desired |
