Amicus Curiae Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NANCY BETH CRUZAN,by her parents and co-

guardians,LESTER L.and JOYCE CRUZAN

Petitioners ‘

Vs.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH.

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

Respondents

vs.

THAD C. McCANSE, Guardian ad litem,

Respondent

On Writ of Certiorari to the Missouri

Supreme Court

MOTTON-FOR LCEAVE-fO-FitE BRIEF IN

BEHALF OF RESPONDENTS BY AMICI CURIAE

FAMILIES FOR LIFE, SONS OF MARY, WARREN

GODDARD AND FRANCES WATSON

ROBERT L. MAURO*

351 Broadway

Long Branch, N.J.

07740

Counsel of (201-229-7700)

Record* Attorney for Amici

October 12,1989 Curiae \

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-1503

NANCY BETH CRUZAN,by her parents and co-

guardians,LESTER L. and JOYCE CRUZAN

Petitioners,

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

Respondents

Vv.

THAD C. McCANSE,Guardian ad litem,

Respondent

On Writ of Certiorari to the

Missouri Supreme Court

Amici move for leave to file this

brief supporting respondents.All parties

have verbally consented to this brief,

but written consents are still awaited.

Amici Curiae Families for Life, Sons

of Mary, Warren Goddard and Frances

a aN gah waa

*- rh 4 J - ” 1 -

Watson are groups and individuals act-

ively opposing euthanasia.

Their brief cites a precedent not

cited in other briefs, the case of Dr.

Karl Brandt.He was tried by American

prosecutors and convicted by American

judges of various crimes committed dur-

ing the Nazi era. One of these crimes

was euthanasia. Amici contend this

precedent binds the U.S. courts. Karl

Brandt v. United States, 333 U.S.836

(1948)

The brief of Amici also argues that

a Missouri statute barring the execu-

tion of a mentally defective person

who has committed a crime should also

protect the life of a mentally incom-

petent person such as Nancy Beth Cruzan

who has committed no crime Mo.Stat.552.060.

Respectfully,

ROBERT L.MAURO

Attorney for Amici Curiae

TABLE OF CONTENTS

Interest Of Amici... ccccccccccccccccces l

Summary Of Argument... ccccccccccccccces 3

ATBUMENE.cccccccccccccccccccccceccccees 4

CONCLUSION. ccoccccccccesessccccecccees 39

TABLE OF AUTHORITIES

Karl Brandt v. United States, 333 U.S.

3 et errr rrr TTT Tre TT eT Te 34

Caritativo v. California, 357 U.S. 549

CU9SS) wccccvcvesccvcccccccsccsceess 38

Jackson v. Indiana, 406 U.S. 715

Solesbee v. Balkcom, 339 U.S. 9 (1950)39

CONSTITUTIONAL PROVISIONS

United States Constitution

Fourteenth Amendment............ 38,39

STATUTES

Mo. Ann. Stat. (Vernon)

LO Se er ee ee 38

MISCELLANEOUS

American Journal of International

Law, Vol. 49, 1 January(1955)...... 37

(i)

SS ee

(ii)

MISCELLANEOUS -Continued

R. Conot, Justice at Nuremberg,

ERD ss Se CURE Ee SERN G GASES os cceeee 18n

R. Lifton, The Nazi Doctors

q. fT errr rT Tr Tere se 7n,8n

lin,1l3n

21n,24n

25n,26n

The New York Times,October l,

CAGES) cc cccncseccesccescvcecs 37

Trials Of Major War Criminals,

Pees Bb CEPT Ph cadeecnscseceseeaces 36n

Trials of War Criminais Before

The nuernberg Tribunals

Vol 1 (October 1940-1949).. 27n,28n

29n, 30n

31n,32n

33n,35n

W. Harris, Tyranny On Trial,

Bt rr rrr errr yr rr 4,19,23

ces nw ee

<0 te te ee eee,

0 ee ee

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-1503

NANCY BETH CRUZAN, by her parents and co-

guardians, LESTER L. and JOYCE CRUZAN,

~. Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

- Respondents,

THAD C. McCANSE,Guardian ad litem,

Respondent.

On Writ of Certiorari to

The Missouri Supreme Court

BRIEF OF FAMILIES FOR LIFE, SONS OF MARY,

WARREN GODDARD AND FRANCES WATSON AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amicus Families for Life is a group

opposed to euthanasia and abortion which

conducts educational and other efforts

1

2

to alert the public to the dangers of euth-

anasia and abortion, Its address is 7l

Fifth Avenue, Ronkonkoma,New York.Its

President is John Mawn.

Sons of Mary is a national group of

Catholic priests and other religious

actively defending human life from the

threats of abortion and euthanasia. Its

Director is Father Robert Pearson,

PO Box 111, West Long Branch, NJ 07764.

Warren Goddard is a Trustee of New

Hampshire Right to Life, which opposes

euthanasia and abortien at various levels.

Mr. Goddard resides at 8 Wilson, Ports-

mouth, New Hampshire.

Frances Watson is an activist opposing

abortion and euthanasia. She is Vice

Chairman of New York ‘'s Right to Life

Party and a member of Celebrate Life, N.Y.

She lives at 53 Cold Springs Rd.,Hunting-

ton, New York

3

SUMMARY OF ARGUMENT

The United States tried various

Nazis for War Crimes and Crimes Against

Humanity after World War II. Acts of

euthanasia by the Nazis in which the

incurably ill, the retarded and others

were deliberately killed by starvation,

gassing and other means were treated as

both war crimes and crimes against human-

ity. These precedents are binding on U.S.

courts:they cannot now approve what

was treated as a crime against humanity

previously.

It is well established that a person

who is not competent cannot be given the

death penalty for a crime. This same

principle of not deliberately killing an

incompetent snould also apply to Nancy

Beth Cruzan, an incompetent who has

committed no crime.

ee

4

1.THE UNITED STATES

CONVICTED NAZIS WHO

COMMITTED EUTHANASIA

OF CRIMES AGAINST HUMAN-

ITY AFTER WORLD WAR II.

THE UNITED STATES IS BOUND

BY THIS PRECEDENT IN

EUTHANASIA CASES.

"The victorious powers of

World War II tried and convicted

the leaders of Germany of crimes

against peace, and the laws of war,

and the principles of humanity

itself. What they charged to others,

they cannot deny as binding upon

themselves. It has become a test

of faith that the victors now live

by the rules of law they used to

punish the leaders of Hitler's

Germany.." 1

Prof.Whitney Harris

Member of U.S.

Prosecution Staff

Nuremberg Trials

Stripping away the euphemisms, this

case is one in which the U.S. Supreme

Court is being asked to authorize the

starvation/dehydration death of Nancy Beth

1.W.Harris,Tyranny on Trial,560 (1954)

en ey Ore ae

—

Cruzan, a young woman in a coma. The und-

erlying thrust of the petition is that

Nancy Beth Cruzan has a life whose qual-

ity is so poor that it is not worthy of

of being lived. If she was conscious,

it is said, she would deem her life not

worthy of being lived, and would want

to end it.

The Supreme Court is asked here to

rule that there are lives so wretched,

so devoid of hope, that they are un-

worthy of being lived, and that such

lives may be ended by starvation/de-

hydration.

Euthanasia:

20th Century

Germany

The permission being sought in this

case to end the life of Nancy Beth Cru-

zan does not mark the first time

a

et oe

cot TI 8 ce _—

ee

— ee ee

6

in the twentieth century that a nation

has considered granting permission to end

life regarded as unworthy of being lived.

In 1920, in the democratic Weimar Repub-

lic of Germany, a similar course was

recommended. The critical work which led

Germany towards euthanasia was published.

The title of this book was The Per-

ee, D Life U ' € Life.

(Die Freigabe der Vernichtung lebensunwer-

2

ten leben.) Two eminent professors, one

a medical scholar, the other a legal sch-

olar, were the authors: professor of

psychiatry Alfred Hoche, and the jurist,

Karl Binding.

Professors Binding and Hoche included

among "life unworthy of life" the incur-

ably ill, the feebleminded,the retarded,

and deformed children. The professors

Be Another translation: of the German

which has been used is The Release of the

Destruction of Life Devoid of Value.

ee ee ee

‘deemed destroying or ending such life

"a healing work" and a "healing treat-

ment."

Professor Binding said the physician

a legal responsibility in “death assist-

ance ," in the killing of the consenting

participant, and in the killing of incur-

able idiots unable to consent. ;

Professor Hoche said such a policy of

killing was compassionate and consistent

with medical ethics. He developed a con-

cept of “mental death" which he found to

exist in the psychiatrically disturbed,

the brain damaged, and the retarded.These

people were human "ballast" and empty

shells of human beings. Ending the

lives of such people, Professor Hoche

argued, is not like other killing, but

5

rather is "an allowable,useful act."

“3, R. Lifton, The Nazi Doctors,47(1986)

4. Ibid.

5. Ibid.

8

Hoche said these people having such mean-

ingless lives, were already dead.

Hoche emphasized the tremendous eco-

nomic burden placed on German society by

those who had lives "unworthy of life." 3

Particularly costly, he said, were those

who were young and who would require a

lifetime of institutionalization. Hoche

said the single less valuable members of

of society have to be abandoned and

pushed out.

Hoche predicted that a new age was

coming in which society "will no longer

heed the demands of an inflated concept

of humanity and an overestimation of the

value of life as such." ’

During the Weimar years from 1920 to

1933 the Hoche-Binding thesis that life

6 .R. Lifton, The Nazi Doctors, 47,

(1986).

7 .Ilbid.

OO eebes ee

which is unworthy of life should be

destroyed gained increasing acceptance

in legal and medical circles in Germany.

On January 30,1933, Adolf Hitler was

appointed Chancellor of Germany by Presi-

dent von Hindenburg. Hitler and most of

his Nazi associates accepted the Hoche-

Binding thesis that life unworthy of

life should be destroyed. The Nazi

government began to implement’ the ideas

of Binding and Hoche.

Earlyin its administration, the

Nazi regime introduced a sterilization

program.In August 1933, Bavarian (German)

Professor Walter Schultze,a Commissioner

of Health, stated that the sterilization

program was inadequate. Psychopaths, the

mentally retarded and other inferior per-

sons must be isolated and killed, he said.

10

Mental hospitals were encouraged to

neglect their patients. Funds for the

care of mental patients were reduced.

T e Nazis arranged orchestrated tours of

mental hospitals for the press and other

opinion makers, designed to show mental

patients exhibiting their most unpleas-

ant behavior.

The Nazi regime also used propaganda

films to condition the German population

in general and the medical profession in

particular to the idea of killing life

unworthy of life. Dr. Karl Brandt, Hit-

ler's personal physician, suggested that

a film be made of a pro-euthanasia novel

written by another physician, Dr Helmut

Unger. The film showed a physician

giving a fatal injection to his incurably

il

ill wife who had begged him to end her

pain. The film was shown throughout

Germany, and Nazi research showed it

played a significant part in gaining

acceptance among the general public and

the medical community for euthanasia.

Professor Robert Lifton, commenting

on the film, "I tema. aieeabeetl it was

a distortion of Nazi policy. The Nazis

called for killing mental patients

against their will; the film showed

a patient requesting euthanasia.

The actual beginning of the Nazi

euthanasia program occurred in 1933 with

the child euthanasia segment of the pro-

gram. The Nazis had subtly encouraged

parents with children who had defects

to ask for euthanasia. A petition was.

received for the killing of a child named

3. R. Lifton, The Nazi Doctors,49,

(1986).

12

Knauer. The child was blind, was missing

one leg and part of an arm. The child was

apparently not of sound mind.

Dr. Karl Brandt arranged to examine

the child at the University of Leipzig.

Dr. Brandt said if the facts as to the

child were correctly reported, Hitler

would allow the child to be killed. Any

criminal charges against the doctors who

killed the child would be personally

be stopped by Hitler, Dr. Brandt indica-

ted.

Dr. Brandt, after reviewing the

child's condition, reported that the phy-

Ssicians in charge saw no reason to keep

the child alive. The death of the child

was regarded as a medical matter. It was

regarded not as murder, but rather a

putting to sleep of the child.

ae

Lt en mts

13

The actual decree establishing the

euthanasia program in Germany was issued

by Hitler in a secret letter in October,

1939, backdated to September 1, 1939, the

date of the German invasion of Poland.

The decree said a "mercy death" could be

granted to patients "considered incura-

ble.”

The decree read as follows:

"Reich Leader Bouler and Dr.

Brandt are charged with respon-

sibility for expanding the auth-

ority of physicians,to be desig-

nated by name, to the end that

patients considered incurable

according to the best available

judgment of their state of health

can be granted a mercy death." 19

To implement the decree, Hitler

needed to establish,through Bouler and Dr,

Brandt, an administration.This was done.

Doctors were chosen as leaders who had

9 . R. Lifton,The Nazi Doctors, 63 (1986)

10.. Ibid.

14

known sympathies for euthanasia.

In the euthanasia program, the

‘Hoche-Binding term "life unworthy of life"

was repeatedly used.

The Nazis developed an adult euth-

anasia program in addition to the child

euthanasia program. The adult program

was known as T-4, an abbreviation for the

address 4 Tiergarten Strasse of the Berlin

Chancéllery office from which the program

was directed.

The euthanasia program for children

who were mentally defective was expanded

to include children who were not mentally

ill, namely, Jewish children. The pre-

ferred method (although not the only

method) was starvation. Dr. Herman Pfan-

nmmuller favored starvation because he

did not want to waste medication.

15

The method of starvation of children

was a gradual decrease of rations rather

then sudden withdrawl of all nourishment.

The child euthanasia program, like the

adult program, T 4, was kept a secret,

even though a propaganda program through

films and other media promoted the accep-

tance of euthanasia throughout Germany.

The preferred method of killing adults

“unworthy of life" in the adult euthana-

nasia program was gassing, with the use

of carbon monoxide gas. Adults adjudged

to have lives “unworthy of life" were ta-

ken quietly from hospitals, nursing homes,

and insane asylums to six main killing

centers in Germany at Sonnenstein,Harth-

heim, Grafeneck, Bernburg,Brandenburg,

and Hadamar. Medical personnel were

ee eee

16

assigned to these killing centers to pre-~

serve a medical aura, although Dr. Karl

Brandt originally opposed killing life

unworthy of life by poison gas. He felt

such killings, outside of the hospital,

nursing home, or insane asylum-medical

settings- detracted from the image

of euthanasia as a solely medical matter

As the Nazi forces moved eastward into

Poland and other countries, the insane,

and ill in hospitais in these occupied

nations were likewise killed as "life

unworthy of life." People who were not

in the hospitals or asylums when the

Nazis invaded but who were deemed "un-

worthy of life” were taken to these _

facilities to be killed, preserving a

medical aura for the killings.

17

In July, 1940, Bishop Wurm, head of

the Lutheran Church in Wuerttemberg, Ger-

many, protested killings at the Grafeneck

killing center in Germany in a letter to

Nazi Minister Wilhelm Frick:

"For some months past, insane,

feeble minded, and epileptic patients

have been transferred on the orders of

the Reich Defense Counsel.Their relat-

ives are informed a few weeks later

that the patient concerned has died

of an illness, and that, owing to the

danger of infection, the body has had

to be cremated.Several hundred patients

rrom institutions in Wurttemberg alone

must have met their death in this way,

among them war wounded of the Great

War.

The manner of the action,particular-

ly of deceptions that occur,is already

sharply criticized. Everybody is con-

vinced that the causes of deaths which

are officially published are selected

at random. When, to crown everything,

regret is expressed in the obituary

notice that all endeavors to preserve

the patient's life were in vain,this

is felt to be a mockery. The air of

mystery gives rise to the thought that

something is happening that is contrary

18

to justice and ethics and cannot

therefore be defended by the gov-

ernment. It also appears very

little care was taken in the sele-

ction of the patients destined for

annihilation. The selections were

not limited to insane persons, but

included also persons capable of

work, especially epileptics.

What conclusions will the youn-

ger generation draw when it reali-

zes that human life is no longer

sacred to the state? Cannot every

outrage be excused on the grounds

that the elimination of another was

of advantage to the person concer-

ned? There can be no stopping once

one starts down this decline. God

does not permit people to mock

Him. Either the National Socialist

State must recognize the limits

God has laid down, or it will

favor a moral,decline and carry

the state down with it." 1!

No response was made to this letter.

On September 5,1940,Bishop Wurm again

wrote Minister Frick:

"On the 19th of July, I sent you

a letter about the systematic

extermination of lunatics, feeble-

minded and epileptic persons.Since

then this practice has reached

ll. R. Conot, Justice at Nuremberg,208

(1983)

19

tremendous proportions;recently

the inmates of old age homes have

also been included. The basis for

this practice seems to be the opin-

ion that in an efficient nation

there should be no room for weak

and frail people. It is evident

from the many reports which we are

receiving that the people's feel-

ings are being badly hurt by the

measures ordered and that a feel-

ing of legal insecurity is spread-

ing which is regrettable from the

point of view of national and

state interests. If the leadership

of the state is convinced that

it is question of an inevitable

war measure, why does it not issue

a decree with legal force,

which would at least have this good

good point that official quarters

would not have to seek refuge in

lies? But if-as can be assumed

with certainty-Germany is ina

position to feed these members

of the nation as well, why then

these rigorous steps? Is it

necessary that the German nation

should be the first civilized

nation to return, in the treat-

ment of weak people, to the hab-

its of primitive races? Does the

Fuehrer know about this matter?

Has he approved it? I beg you not

to leave me without a reply in 12

this tremendously serious matter.

12. W. Harris, Tyranny On Trial,323-324,

(1954)

20

In July, 1941, a pastoral letter from

Germany's Catholic Bishops was read at all

Catholic churches in Germany, stressing

the obligation to oppose the taking of

innocent lives,even if such opposition

resulted in German Catholics losing their

own lives.

Four weeks later, on August 3,1941,

a sermon was given which stopped the Nazi

euthanasia program, at least for a time.

The sermon was given by the Catholic

Bishop of Munster, Clemens Count von

Galen. He said in part:

"It is said of these patients:

They are like an old machine which

no longer runs, like an old horse

which is hopelessly paralyzed, like

a cow which no longer gives milk.

What do we do with a machine

of this kind? We put it in the

junkyard. What do we do with a

paralyzed horse? No, I do not wish

to push the comparison to the end..

21

We are not talking here about

a machine, a horse, nor a cow...

No, we are talking about men and

women, our compatriots, our bro-

thers and sisters. Poor unproduc-

tive people, if you wish, but does

this mean they have lost their

right to live?"

—_

(If the principle was estab-

lished that all which is unpro-

ductive is to be destroyed or

discarded) "then think of the

horrible state we shall all be

in when we are weak and sick!..

invalids...brave soldiers, when

they come home sericusly woun-

ded...mone of us will be certdin

of his life..."

"We wish to withdraw ourselves

from their influence (the authori-

ties) so that we may not be con-

taminated by their thinking and

their ungodly behavior so that

we may not participate and share

with them in the punishment

which a just God should and will

pronounce upon all those who-like

ungrateful Jerusalem-do not wish

what God wishes."

Bishop von Galen's sermon was repro-

and distributed throughout Germany. The

Allies planned to and did. drop copies

from airplanes flying over German troops.

13.R. Lifton, The Nazi Doctors,93-94 (1986)

22

As the distribution of the sermon spread

through the civilian and military popula-

tion of Germany, anti euthanasia sentiment

reached its heights. It probably triggered

protests by other cleraynen.” Maetin Bor-

man, Hitler's aide, said Bishop Von Galen

deserved the death penalty.

14.Ten days after Bishop von Galen's sermon,the

Bishop of Limburg wrote a letter protesting the

euthanasia center at Hadamar:

"...Several times a week buses arrive in

Hadamar with a considerable number of such

victims. School children of the vicinity know

this vehicle and say: ‘There comes the murder

bOx again.' After the arrival of the vehicle,

the citizens of Hadamar watch the smoke

rise out of the chimney and are tortured with

the ever present thought of the miserable vic-

tims, especially when repulsive odors annoy

them, depending on the direction of the wind.

The effect of the principles at work

here are: Children call each other names and

say.' You're crazy;you'll be sent to the baking

oven at Hadamar.'....You hear old foks say,

"Don't send me to a state hospital! After

the feeble-minded have been finished off,

23

Approximately three weeks after

Bishop von Galen's sermon, Hitler appa-

rently ordered Dr. Karl Brandt to halt

or delay temporarily the euthanasia prog-

ram (on August 24,1941). But the halt

was only temporary.

Soon after the widely distributed and

publicized sermon of Bishop von Galen,

six Nazi gas chambers in Germany ceased

the next useless eaters whose turn

wil} come are the old people.' "

All God fearing men consider this des-

truction of helpless beiugs as crass injus-

tice. And it anybody says Germany cannot

win the war, if there is yet a just God,

these expressions are not the result of

a lack of a love of fatherland but of a

deep concern for our people.The popula-

tion cannot grasp that systematic actions

are carried out which in accordance with

Par. 211 of the German criminal code are

punishable with death.High moral authority

as a moral concept has suffered a severe

shock as a result of these happenings...

Officials of the secret police, it is

said, are trying te suppress discussion

of the Hadamar occurrences by ..threats..

I beg you...to prevent further trans-.

gressions of the Fifth Commandment of God."

W.Harris,Tyranny on Trial, 325-326 (1954)

24

for the most part to function.They would

be reassembled to the East, at various

sites, a number of them in Poland. The

euthanasia killings, however, continued,

in more isolated settings, such as concen-

tration camps. "Wild euthanasia," in which

doctors decided on their own initiative

who was “unworthy of life" took the place

of the structured guidelines which previ-

ously existed in the T-4 program.

"Patients were now killed not by

gas but by starvation and drugs, the latter

method rendering the killing still ‘more

medical.’™" The children's program was not

included under the hait in the T-4 adult

euthanasia program brought about by Bishop

von Galen's sermon. Killings of children

7

had been by drugs and starvation, not gas

——-—— <> ee FO rn... cans

15. R. Lifton, The Nazi Doctors 96 (1986)

25

from the beginning, and this continued,

"Special diets" were instituted, in

which patients would not be fed equally.

In 1943, Dr. Pfannmuller established

Hungerhauser ("Starvation houses") for

an older population. "In many places,

mentally ill patients had already been

fed insufficiently; and the idea of not

nourishing them was in the air." ”

Dr. Pfannmuller and his Nazi medical

associates were given complete latitude

on whom to choose for starvation. This

"pseudo nourishment" was recognized a

a> a method of killing ...that in the

classic sense is no killing; no one time

action with a recognizable cause or con-

clusion." /°

Another physician, Dr. Valentin Falt~

hauser of the Kaufbeuren mental asylum,

16. R. Lifton,The Nazi Doctors, 98 (1986)

17. Ibid.

18. Ibid., 99.

206

devised the Kaufbeuren menu, which was

totally fat free. The effect of such a

menu, he said, "should be slow death,

which should ensue in about three

months." 19

At Eglfing-Haarr mental hospital,

the motto was, "We give them no fat,

then they go on their own." ”

Commenting on the role of the

Nazi doctors in the euthanasia program

in his recent book, Professor Robert

Lifton observed that there was:

"...a powerful Nazi impusle,

sometimes conscious, sometimes

not, to bring the greatest

degrees of legitimization to 95)

the widest range of killing."

"...The Nazi message for vic-

tims, for possible observers,

and mostly for themselves was:

all our killing is nedical,medi-

cally indicated,and carried out

by doctors." 22

19.R.Lifton,The Nazi Doctors 98 (1986,

20 Ibid. 99

21.Ibid. 138

22.Ibid. 139

es ~

27

THE NUREMBERG TRIALS:

EUTHANASIA

During World War II, the Allied Powers

on several occasions warned the Nazis that

criminal acts they committed would be

tried and punished after the war. An Int-

ernational Military Tribunal (IMT) did

conduct trials pursuant to these warnings

after the war. Prosecutions were also heard

by Tribunals in the various zones estab-

lished in Germany after the War (e.g. the

U.S. Zone, The British Zone.)

In the U.S. Zone of Germany, U.S.

Military Tribunal t was established Octo-

ber 25,1946 under General Order 68 by

Command of the Military Government for

the trial of offenses recognized by Law 23

No. 10 of the Control Council of Germany.

The Military Governor of the American

23. Trials of War Criminals Before the Nuernberg

Tribunals, Volume I, xvii (October 1946-1949),

U.S. Government Printing Office.

28

Zone in Germany appointed as Judges: Pre-

siding Judge Walter Beals, Chief Justice

for the Supreme Court of Washington, Judge

Harold L. Sebring, Associate Justice of

the Supreme Court of Florida, Judge John-

son T. Crawford, formerly Judge of a Dis-

trict Court of Oklahoma, and Judge Victor

C. Swearingen, Alternate Member, formerly

Special Assistant to the Attorney General

of the United States. -

The decision on whom to indict and

for what offenses rested with Brigadier

General Telford Taylor, U.S. Army. General

Taylor had previously served during the

International Military Tribunal under

United States Chief Counsel Mr. Justice

Robert H. Jackson. he

On October 26,1946, Chief Counsel

Telford Taylor filed various indictments

24. Trials of War Criminals Before the Nuernberg

Tribunals,Vol.I, 5, (October 1946-1949).

25 Ibid. ,xxi.

29

charging various crimes against Dr. Karl

Brandt and others. These crimes included

but were not limited to War Crimes and

Crimes Against Humanity as they were de-

fined by Article II ef Control Council

Law No. 10, duly enacted by the Allied

Control Council on December 20,1945.

Article II of Control Council Law No.

10 stated in part:

"l.Each of the following is recog-

nized as a crime:

(a) Crimes Against Peace...

(b) War Crimes. Atrocities or off-

enses againt person or property

constituting violations of the laws

or customs of war, including but

not limited to murcer,ill treat- .

ment or deportation to slave labour

or for any other purpose, of civil-

ian population from occupied terri-

tory, murder or ill treatment of

prisoners of war or persons on the

seas, killing of hostages,plunder

of public or private property,wan-

ton destruction of cities,towns,or

villages,or devastation not justif-

ied by military necessity.

26Trials cf War Criminals Before the Nuern-

berg Tribunals, Vol. I, xvii (October 1946-1949)

30

(c) Crimes Against Humanity. Atro-

cities and offenses, including but

not limited to murder, exterminat-

ion, enslavement,deportation, impr-

isonment, torture, rape, or other

inhumane acts committed against

any civilian population,or perse-

cutions on political, racial or

religious grounds whether or not

in violation of the domestic laws 27

of the country where perpetrated.”

The Second Count of the indictment,

War Crimes, charged Dr. Karl Brandt with

involvement in the "euthanasia program"

as follows:

"9, Between September 1939 and

April 1945 the defendants Karl

Brandt , Blome, Brack and Hoven

unlawfully,willfully, and knowing-

ly committed war crimes, as defin-

ed by Article II of Control Coun-

cil Law No. 10,in that they were

v“urincipals in,accessories to,

ordered, abetted,took a consenting

part in, and were connected with

plans and enterprises involving

the execution of the so-called

"euthanasia" program of the German

Reich in the course of which the

defendants herein murdered hundreds

of thousands of human beings,

27.Trials of War Criminals Before the Nuernberg

Tribunals, Vol. I, xvii (October 1946-1949)

~

31

including nationals of German-

occupied countries.This program

involved the systematic and sec-

ret execution of the aged,insane,

incurably ill, of deformed child-

ren, and other persons, by gas,

lethal injections, and diverse

other means in nursing homes,

hospitals, and asylums. Such

persons were regarded as ‘use-

less eaters' and a burden to the

German war machine.The relatives

of these victims were informed

that they died from natural caus-

es, such as heart failure. German

doctors involved in the ‘euthana-

sia' program were also sent to

Eastern occupied countries to

assist in the mass extermination

of Jews." 28

The Third Count of the indictment,

Crimes Against Humanity, charged Dr. Karl

Brandt with involvement in the "“euthana-

sia" program in language almost identi-

cal to that in the War Crimes charge:

"14. Between September 1939 and_

April 1945, the defendants Karl

Brandt,Blome,Brack and Hoven un-

lawfully,willfully, and knowingly

committed crimes against humanity,

as defined by Article II of Control

28 Trials of War Criminals Before the Nuernberg

Tribunals, Vol. I, 15 (October 1946-1949)

32

Council Law No. 10, in that

they were principals in,access-

ories to, ordered, abetted, took

a consenting part in, and were

connected with plans and enter-

prises involving the execution of

the so-called ‘euthanasia’ pro-

gram of the German Reich, in the

course of which the defendants

herein murdered hundreds of thou-

sands of human beings, including

German civilians of other nations.

The particulars concerning such

murders are set forth in paragra-

ph 9 of count two of this indict-

ment and are incorporated herein

by reference." 29

Both Count Two as to War Crimes and

Count Three as to Crimes Against Humanity

contained a concluding charge stating

that the charges preceding were also

violations of international conventions,

certain Hague Regulations of 1907, the

laws and customs of war, the general

principles of criminal law as derived

from the criminal laws of all civilized

nations, the internal penal laws of

countries in which such crimes

29 Trials of War Criminals Before the Nuernberg

Tribunals, Vol. I, 16-17 (October 1946-1949)

33

were committed and of Article II of

Control Council Law No. 10.

Dr. Karl Brandt was represented by

legal counsel at his trial, and partici-

pated in his defense. He was found guilty

of War Crimes and Crimes Against Humanity,

including participation in the euthanasia

30

program.

- The United States Judges sitting on

U.S. Military Tribunal sentenced Dr. Karl

Brandt to death by hanging.

Dr. Karl Brandt, through his legal

Counsel, petitioned for clemency’ to the

Military Governor of the United States

Zone of Occupation in accordance with

Article XVII of Ordinance No. 7 of the

Military Government for Germany (uU.s.).°*

Thereafter he petitioned the Secret-

ary of War of the United States. Finally,

. « Trials of War Criminals Before the Nuernberg

Tribunals, Vol. II, 198 (October 1946-1949).

3i. thid.p.302

34

as a last resort, Dr. Karl Brandt and

other defendants petitioned the U.S.

Supreme Court for a writ of habeas

corpus and for a writ of prohibition

against the proceeding or an order

nullifying the trial.

On February 16,1948, the Motions

for leave to file petitions for writs

of habeas corpus and prohibition were

denied by the U.S. Supreme Court. Mr.

Justice Black, Mr. Justice Murphy, and

Mr. Justice Rutledge were of the

Opinion that the petitions should

be set for hearing on the question

of the jurisdiction of the Court.

Mr. Justice Jackson took no part in

the consideration or decision of

these applications. Cf. Karl Brandt

v. United States, 333 U.S.836(1948).

35

In June, 1948, Dr. Karl Brandt was exe-

cuted by hanging in Germany, all appeals

to reverse his conviction an_ sentence

having failed.

Amici contend that the proceedings

in which Dr. Karl Brandt was indicted,

tried, convicted, sentenced andhis

various appeals were solely American

proceedings, and that these proceedings

constitute a binding precedent on the

American system of justice. One of

reasons Dr. Karl Brandt was executed

was that he was adjudged to have parti-

cipated in the euthanasia program in

which various persons, including in-

| curably ill persons were executed by

various means, including starvation.

The United States, having said that

Dr. Karl Brandt committed a crime

32. Dr. Karl Brandt was executed by hanging on

June 2,1948. Trials of War Criminals Before the

Nuernberg Tribunals, Vol. I, 3,(October 1946-1949).

- 36

against humanity, a war crime, and a

violation of international law in

executing incurably ill persons, is

honor bound to disallow any attempt to

deliberately end the life of an incur-

ably ill person such as Nancy Beth

Cruzan by depriving her of the nutri-

tion and hydration indispensable to

every human being, and without which

a human being will starve to death.

Even if the United States had not

tried and convicted Dr. Karl Brandt for

euthanasia, among other charges, tne

deliberate ending of the lives of the

incurably ill has, in international law,

| been established as a crime against human-

|

ity.>>This law has evolved "by the case

method...it advances at the expense of

those who wrongly guessed the law and

33. Dr. Wilhelm Frick, Nazi Minister of

the interior, was found guilty of allowing

euthanasia in nursing homes and asylums by

The International Military Tribunal.Trials of

Major War Criminals, Vol 1,247,301 (1947)

Bt ote ee Oe

37

THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMEND-

MENT, MORAL PRINCIPLE,

AND LAW PROHIBIT THE

KILLING OF AN INSANE

PERSON OR AN INCOMPE-

TENT PERSON SUCH AS

NANCY .BETH CRUZAN

It is clear that an insane or

incompetent person cannot be legally

killed in the United States.The right

of the incompetent not to be execu-

ted. is one "based on moral princi-

ples deeply imbedded in the traditions

and feelings of our people and itself

protected by the Due Process Clause

of the Fourteenth Amendment.." Carita-

tivo v. California, 357 U.S. 549,547

(1958 ).

594

"Not a state in the union supports

the notion that an insane man under

sentence of death could legally be

34.Missouri Revised Statute§ 552.060

states in part: “No person condemned to

death shall be executed..if he lacks

capacity to understand..the punishment

about to be imposed..."

38

executed." Solesbee v. Balkcom, 339 U.S.

9,20 (1950).

It would be a dentei of equal protec-

tion of law under the Fourteenth Amend-

ment if an incompetent person sentenced

to death for a crime is protected from

death by the Due Process Clause, moral

principle and state laws, and an incom-

petent person not facing the death pen-

alty could be legally killed by society

Or at the request of others. Jackson

v. Indiana, 406 U.S. 715 (1972).

CONCLUSION

The judgment of the Supreme Court

of Missouri should be affirmed. Respect-

fully submitted.

October 12,1989 Robert L..Mauro _