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The general position of the defense is that the evidence
introduced by the prosecution is, from a legal point of view, insufficient to
bear out the alleged responsibility of the defendants for the entire acts
covered by the indictment. Therefore the defense have considered the
possibility to file this motion with regard to all counts of the indictment.
The defense, however, feel that such a motion embracing all counts of the
indictment possibly would involve for the Tribunal a lengthy examination of the
vast amount of evidence introduced by the prosecution, and therefore a proper
consideration by the Tribunal of a motion pertaining to all counts of the
indictment would require a major delay in the progress of the trial.
The defense therefore have decided to limit their motion to such points
only which, as we respectfully submit, in our opinion, do not involve a lengthy
examination of the evidence produced by the prosecution, as the irrelevancy of
this evidence is derived from legal grounds which clearly appear from the IMT
judgment.
For these reasons the defense will confine their motion to
counts one and five of the indictment (pars. 1-85 and pars. 146 and
147), and to the alleged cases of spoliation in Austria and
Sudetenland-Czechoslovakia (pars. 90-96 of the indictment).
After careful consideration, the defense have come to the conclusion
that the aforementioned evidence is irrelevant. Therefore we herewith file the
following motion:
The undersigned defense counsel respectfully move at
this time that the Tribunal make a finding of not guilty as to the charges and
all the particulars under counts one and five and also as to the charges and
particulars under count two, so far as concerns the alleged spoliation in
Austria and Czechoslovakia (Pars. 90-96 of the indictment). The ground
for this motion is that there is not sufficient evidence to support a finding
of guilty as to these particulars and charges.
This motion is in
compliance with the established rules and practice of the United States and
British courts permitting the defense to make such motion before the opening of
their case. Especially has it been confirmed that such motions are permitted in
war crimes cases heard by military tribunals.
Reference is made to the
Muehldorf case heard by the Military Tribunal at Dachau, Germany, on 13 May
1947, Case No. 000/ 50/136 Dachau, Germany.
Reference is furthermore
made to the Manual for Courts Martial, U.S. Army [1928] (XIII, par. 71
d, page 56).
As to Ordinance No. 7, there is no express
provision forbidding such a motion. On the contrary, as a motion of this kind
aims at a speeding up of the trial, it serves the general idea |
474 |
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