Chapter XLIV: Part VI: Final Regulations (7)

PRESIDING JUDGE BRAND: Mr. Klemm, I think you fully explained the reasons why you desired to have uniformity. Now this particular exhibit indicates that in this particular instance you complained of sentences being too mild. You have explained the reasons which underlay your theory in the matter, and I think you have covered it sufficiently. We must avoid such continuous repetition, Mr. Schilf.

DR. SCHILF: Mr. Klemm, therefore let us go concretely to the contents of these two letters. How did it happen that these two letters as such were written? I believe it will be necessary to bore the Tribunal with that still because your name is under this letter.

PRESIDING JUDGE BRAND: Counsel, you are not boring the Tribunal, nor is the witness. But we have the substance before us at this moment of these letters and you need not ask the witness what the substance of those letters were. We are here to try the case fairly and we don’t want counsel to worry about boring us, but we do want counsel to worry about undue explanations and too long explanations. Ask your next question.

DR. SCHILF: Please state the practical cause how these letters happened to be written. Due to the decision of the court, you do not have to discuss the contents any more.

DEFENDANT KLEMM: The method for writing such letters had already been established long before I entered the Ministry of Justice. If cases accumulated in one district, the president of the district court of appeal who was concerned received a letter so that in future cases a general just sentencing, as it happened in the entire Reich, would take place.

PRESIDING JUDGE BRAND: Why did you write this particular letter? Just ask him why he wrote the particular letter shown in Exhibit 178.

DEFENDANT KLEMM: These cases had been collected in the Referat--in the Department--and then they were reported to the minister and the minister determined whether such a guidance letter was supposed to be written. In these two cases of Stuttgart and Hamburg, Franke and Vollmer, the department chief, reported to the minister about the jurisdiction exercised by these district courts of appeal and suggested to compile the most extreme cases and to call them to the attention of the presidents of the district courts of appeal. The minister approved of this suggestion and in addition to that determined that I had to sign these letters. That in these letters, the first person singular “I” was always used, is the accepted official style. To that extent I may refer to Exhibits 48, 94, 95, 96, and 99 in which simply Referenten and associates also write in the first person singular, although the letter bears the letterhead of the Reich Minister of Justice, and they sign it personally.

DR. SCHILF: Mr. Klemm, in regard to the two guidance letters to Hamburg and Stuttgart, were the judges who pronounced these sentences and who had aroused the disfavor of Thierack supposed to be called to account personally, or were measures supposed to be taken against them?

DEFENDANT KLEMM: That was not supposed to be done in any case. It would have been neither in accordance with the intentions of the Ministry nor was it the meaning of such a guidance. The president of the district court of appeals in Hamburg, who was requested at the end of the guidance letter to speak to the judges in the appropriate manner, that was what it says literally in the letter, could handle it directly. As the official superior, he did not use this letter at all; but within the framework of a community of work within the NS lawyers league, that is, on a purely comradeship basis and not as a superior, he spoke about these matters. Even less could the president of the district court of appeals in Stuttgart issue measures to the individual judges personally, or reproach them, because this letter was expressly addressed to him. At the end it says that “you, Mr. president of the district court of appeal should call direct and special attention to these problems.” There is also a circular letter by the Ministry of Justice which is known and which emphasizes again and again that the independence of the judges should not be touched.

Q. But in the Stuttgart case the names of the participating judges were listed. What was the purpose of that?

A. Of the twelve sentences which are mentioned in the Stuttgart letter, nine had been pronounced when different members were sitting in the court. For that very reason the names were listed to show that the issue was not the failure of one individual judge, but that the general jurisdiction of the district court of appeals of Stuttgart in matters of undermining military efficiency was not in accordance with the wishes of the Reich level and the needs of the time.

Q. In that connection the name of the codefendant Cuhorst is mentioned. Did you know at the time the then President Cuhorst?

A. No, his name did not mean anything to me.

Q. Did you know that the then Senate President Cuhorst was also president of the Special Court of Stuttgart; and, were the guidance letters supposed to criticize the jurisdiction of the Special Court at Stuttgart?

A. I did not know the jurisdiction of the Special Court of Stuttgart at all. That the same person was presiding judge of the Special Court and president of the senate of the district court of appeal was not known to me at the time.

* * * * *

Q. One final question in that context. In the two so-called guidance letters, especially in the one to Stuttgart, mention is made of the fact that an extraordinary objection was supposed to be raised. Do you know anything about whether that was done?

A. The sentences were not sent to the Oberreichsanwalt with a request to raise the extraordinary objection, but with the instruction to examine whether it would be worthwhile to raise an extraordinary objection. In neither of those cases, neither in the guidance letter to Hamburg or to Stuttgart, the problem was the changing of prison sentences to death sentences, but the questions were merely prison terms and whether they should be increased but still remain prison sentences. Thus, the Oberreichsanwalt was not instructed to raise an extraordinary objection. As far as I know, at the time, the Oberreichsanwalt in the cases which were sent to him for examination refused to register an extraordinary objection; and, as far as I know, the minister was satisfied with those results of the examination.

Q. With that we have concluded the question of the Guidance Letters.

* * * * * * *

c. Lawyers’ Letter Written by Thierack

PARTIAL TRANSLATION OF DOCUMENT NG-260[295]
PROSECUTION EXHIBIT 87

EXTRACTS FROM LAWYERS’ LETTER NO. 1 SIGNED BY REICH
MINISTER OF JUSTICE THIERACK, 1 OCTOBER 1944

Lawyers’ Letters

Information of the Reich Minister of Justice

Confidential

_Number 1, dated 1 October 1944_

_LAWYERS OF GERMANY_

The German people, on the threshold of the sixth year of war, face tremendous war tasks.

The Fuehrer has ordered that all resources of the armed forces and armament industry be used to the utmost in order to master these problems.

In pursuance of these measures dictated by total war, the administration of law will also be curtailed and simplified to a great extent. The further mobilization of German lawyers into the armed forces and armament industry cannot be balanced only by curtailment and simplification. Above all it necessitates the utmost concentration of those elements which will have to carry on with our future administration of justice. Every lawyer who in the future will still be entrusted with his office must always be aware that the administration of German justice has, now more than ever, the direct duty of securing the frontiers and the waging of war, especially in view of the new tasks, which will arise through the increasing totalization of the war. Thus, the German lawyers have become the rear guard of the fighting forces. The complete concentration of all resources which this involves and which is expected especially from the senior members who take the place of their younger colleagues, presupposes unified direction and rigid execution of the work of all lawyers regardless whether they are judges, public prosecutors or attorneys.

In the hour, when our people have entered upon the decisive battle for its right to live, each lawyer must concentrate all his attention solely on this battle for freedom. Everything that does not directly serve this battle must now be put aside and everything that serves this struggle must be done with the least possible expenditure of time and work and in the simplest fashion. When the life of our people is at stake, all other individual interests must be pushed aside. For some time now there has no longer been any room for petty quarrels. Things which yesterday had some importance are perhaps quite unimportant today. Legal affairs not immediately connected with the war, must also be dealt with in the shortest and most economical way. The only aim of judges, public prosecutors, and lawyers is to preserve the life of our people.

The lawyer who is very often the first to deal with troubles and needs of his fellow countrymen is today entrusted with a particularly responsible task. Affairs which are not absolutely important in waging war, he must keep away from the law courts; however, legal cases of importance in respect to the war are to be dealt with quickly but not less conscientiously as the need of the hour demands. This task cannot be accomplished with good intentions only. Above all he must be thoroughly acquainted with the various plans and intentions of the administration of justice in the various branches of law.

I know that the lawyers are waiting for such a reorganization of their work and that such a regulation of the administration of justice will be welcomed especially by the conscientious members. Therefore, I have decided to introduce in these fateful hours, at a time of total war, a new chapter in our administration of justice by publishing the Lawyers’ Letters which are to supplement the Judges’ Letters, published two years ago.

These Lawyers’ Letters serve a double purpose. They are to inform lawyers of the aims of the administration of justice by means of publication of the verdicts of law courts in various branches of law, which are of importance in conducting the war, and they are to demonstrate the policy of the court in order to save unnecessary work in regard to remonstrances, complaints, or legal remedies of all kinds, for which there is no longer any room today. On the other hand they are to regulate the general relations of lawyers toward each other in their own profession, and also toward the judges and public prosecutors in order to develop close collaboration among all administrators of justice, and thus avoid future friction, complaints, or quarrels on this subject as far as possible in order to mobilize all forces for the actual legal work. The harder the times and the more stringent the restrictions, the closer cooperation should be among all administrators of justice in their common task.

Therefore, the Lawyers’ Letters, just as Judges’ Letters are to be a close link between the administrators of justice and its personnel; and thus, judges, public prosecutors, and lawyers are to be more closely connected by a general reorganization of their work. These are not orders, but signposts to help master the great tasks which lie ahead of us.

I expect that no German lawyer fails to recognize the seriousness of the hour and the magnitude of the task. I expect the complete mobilization of all resources for tasks that war puts before us, including our people’s struggle for freedom. I know that we shall win this battle, if we work together and fight like one man.

With this in mind, I hope these Lawyers’ Letters are a means of unifying and strengthening the fighting spirit of German lawyers.

The letters are not to remain mere words but should take shape in actions!

[Signed] DR. THIERACK

Berlin, 1 October 1944

Conduct of Lawyers in Penal Cases

1. The defense counsel selected by a citizen of the Protectorate who was sentenced to 12 years’ penal servitude and 10 years’ loss of civil rights directed a letter to his client in the penitentiary, wherein he held out the prospect of obtaining a mitigation of the sentence by means of a request for clemency. Among other things the letter states:

“Today I have a personal request. Of your own accord, you
offered to recommend me to other well known Czech families, in
which some members met with a similar fate. You also informed
your wife of this offer at the last discussion we had together
with her. Therefore, I wrote to Prague, but received the answer
several times that likely clients needing defense counsel are
not known. Had I been acquainted with this fact, I would have
asked you during our many conferences to give me the addresses *
* *.

“During the proceedings I was able to prove by many documents,
that you are not at all hostile toward Germany but definitely
pro-German. I also believe that you will find the right attitude
toward the new Greater Germany after this difficult experience
and wish you the best for the future.

“With the kindest regards and Heil Hitler!

“yours,
“signature”

2. An attorney defended a woman, who together with her sister was accused of keeping contact with prisoners of war which was forbidden. Both women were accused of having received French prisoners of war in their home, of having entertained them and exchanged caresses with them.

Among other things the defense counsel said in his final statement:

“We too, would be glad if kindness were shown to our German
prisoners of war in foreign countries, and we do not consider
those foreigners, who are kind to our German prisoners, liable
to punishment.”

3. Several Czech businessmen had to vindicate themselves before a Special Court because of offenses against the penal order for protecting the rationing of consumer goods (receiving butter they were not entitled to). Their counsel said in his final plea,

“I feel impressed by these defendants who like true German men
and good family fathers shouldered a responsibility which was
really one for their wives.”

In order to show the pro-German attitude of a defendant, the defense counsel read parts of a speech which one of the defendants made on some occasion with regard to the aims of national socialism. He interrupted the reading and cried, “I could almost believe I hear my Fuehrer speak.”

4. A factory owner had obtained a great deal of food for the canteen of his factory from the black market and had used part of it for himself. Therefore, he was sentenced to 2½ years of penal servitude for violating regulations for war economy. In his plea the defense counsel pointed to the fact that the food was of benefit to the workers, and thus also armament and the armed forces. He finished his speech with the words--“And now, then, condemn the defendant!”

In answer to the reproach of the presiding judge he declared that he could formulate his plea in other words and demanded the acquittal of the defendant.

5. Counsel took charge of the defense of a woman shopkeeper, who had in several cases sold new bicycle tires and high tension batteries to customers without purchase certificates in exchange for butter, meat, sausage, and bacon. She was sentenced to 2 years’ imprisonment and a fine of 1,000 reichsmarks because of continued offenses against the penal order protecting the rationing of consumer goods and the prohibition of bartering.

The defense counsel said in his final speech:

“The defendant is not to be blamed for getting additional food
in an illegal way. She is very corpulent and therefore surely
needs more than other people. One need only look at that body
to see that it needs a considerable amount of food. The food
is insufficient even for normal persons. Reich Minister of
Health Dr. Conti himself declared, that the food rations are not
sufficient.”

The lawyer has repeatedly given cause for measures of controlling him because of his professional conduct. To date, 16 statements of objection and disapproval have been made against him because of insulting expressions to the court, to colleagues and parties, and because of charging of inadmissible special fees, etc.

6. A mother and her daughter were indicted by a Special Court because of offenses against paragraph 4 of the decree dealing with people violating the national emergency orders. The daughter as the head clerk of a firm had stolen a large number of food ration coupons and clothing cards and had given them to her mother. The latter loosened the coupons from the paper and kept them for future use. The food bought with those tickets was often served at their home parties.

In his final speech the defense counsel expressed himself somewhat in the following manner:

“The indicted daughter was the brain of the firm. The rooms
expanded, the house expanded. According to that quotation it
is but natural that the daughter has given parties and invited
guests. The mother is a busy modest housewife, and both are
ladies of good family. The fact that the mother loosened the
coupons so neatly and guarded them so carefully shows her to be
a good and orderly housewife, who proved her orderliness even in
this work.”

The defense counsel came to the conclusion, that both women had earned the sympathy of the court and a reward for having confessed. Neither defendant, he finally said, did wrong; there is no criminal guilt.

7. A basket maker who was defended by a counsel was sentenced to 3 weeks’ imprisonment and 14 days’ detention for resistance against the police and for insulting and gross misconduct. In a drunken state he had tried to cross a train track at a point where it was forbidden to cross and was offensive toward railway officials who tried to prevent him from doing so. In town he had molested pedestrians and resisted arrest by the police. The court had sentenced him to imprisonment because the defendant had previously been punished at 4 different times for attacking superiors, and because prior to that he was sentenced to imprisonment for absence without leave while in the army.

His defense counsel petitioned for clemency, asking that the prison sentence be changed into a fine, and in so doing he pointed out that the defendant, who makes deliveries with his own team would be badly affected economically by the prison term; that he was released from the army because of imbecility and that, therefore, his offense was not so bad. He lodged a complaint against the refusal of the public prosecutor and in his argument he said, among other things, the following:

“The case was taken much too tragically. Under prevailing
circumstances incidents which were punished with minor fines
in peacetime are now often looked upon as capital offenses.
This is due to the general nervousness by which the courts are
undoubtedly influenced. However, this is only temporary just as
the immense number of private charges. There is a lack of humor,
preventing us to see these things at their true value.”

8. A woman was charged with insulting another woman. She had called out to the other woman who had shortly before lost one of her sons at the front: “They shot one of your boys, we hope they shoot the others, too.”

In his appeal the defense counsel said:

“Without intending to minimize the heinousness of her words,
as they are stated in the indictment, the question of whether
the expression is an insult must be examined. The expression
contains--so it goes on to state--a malediction, a curse, and is
certainly wounding to the feelings of a relative, particularly
of a mother, very gravely, but thereby it does not amount to
defamation. It is not an expression slighting a person, and
therefore it is not an insult.”

The defense counsel adhered to this contention in his final speech although the president had pointed out to him that his standpoint about the punishable nature of the expression was not tenable.

When the insulted mother was questioned as a witness during the proceedings, she started to cry when the president asked her about her son, and took out two pictures of her son in uniform and showed them to the judge; whereupon the defense counsel declared that she was obviously hysterical. After being sharply rebuked by the president, the defense counsel answered in the same sharp way that he quite understood the grief of the woman, but he doubted the credibility of her words. The word “over-excited” was also used.

* * * * * * *

Opinion of the Reich Minister of Justice

The problematic nature of the position of the attorney at law which rests upon the premise that the lawyer acts, on the one hand, on principle as the representative of an individual citizen who appoints and remunerates him, on the other hand, as an agent of administration of justice and lawyer of the community which has assigned him to and entrusts him with his function, has long been especially apparent in criminal jurisdiction. The evolution of civil right from the purely “private right” of the past--when the individual pursued his right more or less for his own sake--to the civic right of our time in which the citizen also administers his “private rights” as trustee of the community has indeed also changed and reformed the task and position of the lawyer. This modification did not, however, become so obvious because in their widest sense the pursuit of justice and the administration of justice in the domain of civil right still command, at least outwardly and notwithstanding the sway of the community’s influence, a form which does not make the dual position of the lawyer with its inward conflict of duties so conspicuously prominent as has always been the case in the domain of criminal jurisdiction. A penal suit according to our present idea of penal law is no longer a matter of two parties contending for their rights. Here, it is not a “private citizen,” threatened in his freedom, who disputes against a “juridical person” called the State opposed to him on a level of equality or against the State attorney before an independent judge for the rectification of a claim raised against him by the State, but a citizen who vindicates his conduct before the community and its leadership to which he owes loyalty and consideration, against the suspicion of breach of loyalty or of contempt. Here it is not rights of freedom which are fought for but social obligations which are assessed. Here it is not mere compliance with the law that is examined; it is the honest collaboration, the loyalty, and the worthiness or unworthiness of the personality of the individual citizen which are weighed and determined for the community. Here it is not so much a matter of the rights of the community with regard to the individual as they have been given it by the voice of the citizen, but rather that the individual has as many rights and obligations as the community has conferred and imposed upon him.

It is evident that such a viewpoint must involve far-reaching effects on the position and task of the lawyer as the criminal defense counsel, even if outwardly criminal procedure does not essentially differ in its form from the former criminal trial. As defense counsel, the lawyer has shifted closer to the State and community. He is incorporated into the community of the administrators of justice and has lost his former position as unilateral representative of the interests of the defendant. Whoever is not ready to accept this clearly and absolutely and is not prepared and able consistently to act accordingly ought not to don the robe of a German lawyer nor take a place at the defense counsel’s bench. Not only would he be at disagreement with himself, not only would he fall from one conflict into another, but he would also though often unconsciously do harm rather than service to the administration of justice and last but not least also compromise the reputation of those of his colleagues who think and act differently. It is obvious that as defense counsel the lawyer has found it so much more difficult than the judge and the public prosecutor to achieve this mental change. However, this must never convey the delusion that merely the thorough and successful striving to acquire this professional frame of mind and a thorough devotion to this professional aspiration clears the way to the fulfillment of the difficult as well as responsible and gratifying office of defense counsel. What the issues involved in the individual sphere by this altered role of the criminal defense counsel are, will often be discussed in these Judges’ Letters in the future. The fact remains, at all events, that the qualification of the lawyer as criminal defense counsel, for which the bar has now been fighting for over 10 years with varying success, will ultimately depend upon whether and to what extent it succeeds in its attempt to attain this new role not only ostensibly but also in a really moral sense and to unite nonetheless, this enhanced position of obligations towards the community with the obligations towards the individual citizens in such a way that the community gets its right while the individual citizen who entrusts himself to a lawyer is not abandoned or perhaps even betrayed.

That this struggle of the bar is to this day by no means ended is daily shown anew by incidents of professional routine, apart from the cases mentioned.

I know full well that many lawyers shrink before this struggle for their new adjustment which calls at the same time for an honest pledge, because they deem it to be disloyal to their clients and therefore keep aloof from penal cases.

My appeal is not meant for them. For whoever shuns moral obligations or does not have the strength to see the fight through could never indeed perform useful work as a criminal defense counsel.

However, the motives which have formerly induced and are still inducing many others to shun criminal cases are very diverse. There is no question here of those lawyers who from inclination or calling handle civil cases only, and who in this and other spheres as lawyers in economic cases, for instance, mostly in an exclusively advising and managing capacity perform the most valuable legal work without this ever becoming known to the courts or the public. Of these I do not wish to make criminal counsel for it would be entirely amiss to take them away from their important tasks and give them another one for which they feel no moral calling. Aside from this there is, however, quite a number of lawyers who decline to work on a criminal case because they generally consider criminal cases of secondary order because they are “less juristic.” One ought not to put questions of hierarchy of this sort between criminal law and civil law at all. The opinion that criminal jurisdiction and thereby also counsel for criminal cases are of secondary importance--which is occasionally expressed even today--can only be upheld by someone who interprets the concept “juristic” by abstract constructions and logic reasoning thus trying to maintain a concept “juristic” which has long been given up in civil law also.

Whoever realizes that law is of vast significance to the life of the community, conscious of the problem facing a lawyer in the serving of his nation and its ways of life, recognizing the high ethical value of such legal work, and measuring the importance of each individual case for the community, will not underestimate the defense of the life and freedom of a fellow citizen in a criminal case; but rather consider it more vital and important than the contesting of property rights or other legal questions which perhaps are of secondary concern to the community. And whoever has come to realize that a serious and responsible defense cannot be conducted nowadays, with the knowledge of a few sections of the penal code or even with rhetoric swing and an elegant appearance, but that in addition to this a profound knowledge of modern criminal law and the entire legal sphere is essential not to overlook criminal biology in its widest sense to which belongs above all an extensive understanding of politics, and intuition will agree that, nowadays, the defense counsel in his own “juridical value” does not occupy a secondary rank any more than the judge or prosecutor. On the contrary the best lawyers are barely good enough to be defense counsels or judges particularly when taking into consideration the vital importance of criminal law in wartime. Just as I fill the judges’ seats only with the best today--the same principle applies to civilian law as far as the judges in the divorce courts are concerned who similarly decide the fate of human beings--so only the best lawyers should be admitted as defense counsel.

The measures required for the mobilization of all forces for total war which must lead to further curtailment in the administration of justice will automatically cause some lawyers, hitherto engaged on civil cases only, now and again to occupy themselves with criminal cases, insofar as personnel shortage necessitates this. For these lawyers, more than for their colleagues (who up till now have been for the greater part, or exclusively working on penal cases), it is necessary that they approach their new work from the very beginning with a clear inner attitude and professional conscience which will also give them the necessary assurance in their appearance and work which is a primary asset for successful legal work.

They need not fear to be called upon to do legal work of a secondary nature. He who takes the job of a defense counsel in penal cases of importance to the war, also contributes to the war effort. This means today, however, that he is expected to make a considerable war effort. In cases where the State permits the use of defense counsel, it does not want to see court statisticians but sincere and responsible fighters of the law who seek justice side by side with the judge and the prosecutor. Penal cases have always demanded particularly exacting work, due to the fact that the long sessions involve both physical and mental strain, and require in every case a higher personal effort than the most difficult civil cases, in which the main work can be completed in the office and at the desk.

One of the main objections raised today by lawyers, and by no means by the worst ones, concerning taking the job of defense counsel which can only be approached with complete frankness can be found in results of the guidance of practicing law. The defense counsel, they say, only seldom has the opportunity to succeed, in getting through his deviating opinion due to the close collaboration of judge and prosecutor, for instance, in the introduction of evidence, or to find sufficient attention in his final plea so that sometimes it may appear that the verdict has already been pronounced prior to the main proceedings. The lawyer’s success in any case is often rather minor, and the lawyer very easily attains a secondary position compared to the judge and the prosecutor.

This contains both truth and untruth.

He who is seeking “success” as defense counsel in penal cases must first ascertain what is understood by it. It should go without saying that a conscientious lawyer does not only see success where he manages to reduce the sentence proposed by the prosecutor, to find loopholes in the law for his client following the old tradition, or where he otherwise succeeds in exploiting the case to his client’s advantage. He who only has this conception of the entire affair, not only misunderstands the tasks of a defense counsel, and not only lives in penal conceptions of the past which have been overcome by the introduction of paragraph 2 of the Reich Penal Code and by the law itself, but he also lowers the value of his own work. The success of a defense must already be apparent in the consciousness of having done everything possible as a coresponsible lawyer in order to lead justice to a successful conclusion.

More than that the defendant could not demand and if he did--which is humanly understandable since he cannot be arbiter on his own behalf--then the defense counsel should not support him.

As far as the secondary position compared to that of the judge and the prosecutor is concerned which might be feared by quite a few, I can only answer: Everyone achieves a rank in his life and profession which he works and fights for through his accomplishments and personality. The duty of a defense counsel is not limited to his activity in the main proceedings as many believe. His chief task begins much earlier while cooperating at the elucidation of the state of the case, the production of evidence to be introduced in court, and numerous interviews prior to the trial.

* * * * * * *

The defense counsel as a result of his dual position as a defense counsel of one person on the one hand and as an administrator of justice for a community on the other hand will repeatedly face the danger of the fact that the accused whom he is defending depends upon him, making him forget that he is not the mouthpiece of his client but an independent administrator of justice. If, for instance, a defense counsel submits applications only upon request of the defendant, or if he proposes the hearing of character witnesses though he himself does not doubt the credibility of the hitherto heard witnesses, if he adds more lengthy letters of the defendant to his brief as appendices only to comply with the defendant’s wish, this indicates either a lack of the required self-criticism or of the necessary energy toward his client in carrying out his office as defense counsel.

* * * * * * *

The cases mentioned in this first Lawyers’ Letters, some of which have led to reprimands and disciplinary measures are only a small part of the vast material at my disposal. They really speak for themselves. At the same time they show how much work remains to be done, if we are to solve the tasks which the increased totalizing of war puts to us. If we succeeded in releasing only part of the manpower--represented by lawyers at present engaged in examinations and court of honor proceedings--for really important and war essential legal work, a considerable contribution would have been made. To attain this is not only the goal of the judicial administration. Lawyers themselves should collaborate in this with self-discipline, which I particularly expect from now on.

If there are any difficulties, doubts, wishes, and troubles, every lawyer may report these to me either himself or through his chamber so that these questions may be discussed and cleared as far as possible in these Lawyers’ Letters.

As for the cases reported to me this is briefly to be said:

(1) The letter of the defense counsel to a traitor in a penitentiary speaks for itself. Not only is the unconcealed wooing of clients repulsive, but especially the inconceivable lack of dignity and the servility with which this German lawyer addresses a declared marked enemy of the state, calling him “Dear Sir,” wishing him “all the best for the future,” and after mentioning “his esteemed wife” closes with “best regards and Heil Hitler, yours.”

Surely it cannot be expressed more clearly that one is unqualified for the legal profession.

(2) The lawyer, whose plea was that “we would be glad if our German prisoners of war would be shown a kindness” shows a total lack of understanding of the seriousness and significance of this offense. It is not the business of German women “to show kindness” to prisoners of war, but they should behave as German women. Decency and honor should bar the least contact with prisoners of war who are still our enemies. What should women who have resisted the temptation to which the defendant fell say if they hear a lawyer express such views?

(3) As for the defense counsel, who was “impressed” by the attitude of the Czech industrialists who had bought butter without ration tickets because the defendants “like real German men they took the blame for their wives who were really responsible,” all that can be said is that he knows very little about the tasks of a German lawyer. Here again the lack of tact and understanding was not that he tried to minimize the offense. He obviously knows nothing about the situation of ethnic Germans in the Protectorate and about the interests of the German people. To mention a speech by one of the Czech defendants in one breath with a speech by the Fuehrer was--no matter how it was meant--outrageous. Such a thing cannot be excused as an “awkward mistake.” Lack of instinct is a feature of one’s character.

(4) The lawyer who pleaded for a factory owner, accused of an offense against wartime economy, was it is true right in pointing out that the defendant also thought of his workers when he acquired food illegally. As far as this was a fact he even had to point it out. But in disregarding the fact, that the defendant as the sentence of 2½ years penal servitude shows bought considerably for his own benefit, he has violated his duty as defense counsel. Furthermore, in trying to influence and mislead the court by saying “and now condemn the accused” thus demanding the acquittal of the defendant, he went far beyond the limits of a possible and legitimate defense. This suggestion had to give everybody and not least the defendant, too--to whom he should have explained his offense--the impression that the sentence was unfair and as such contrary to the interest of the people. This type of plea does not serve, but damage the administration of law.

(5) The next two cases also show that some defense counsel have not yet, in the fifth year of war, recognized the importance of criminal proceedings to war economy. To excuse black market activities with the obesity of the accused can scarcely have been meant seriously and can, of course, not meet with success--except for the bad impression counsel makes. This again cannot excuse the temporary lapse, because counsel has, by saying incorrectly and tactlessly later on that the Reich health leader himself describes the food rations as insufficient, revealed that he himself disagrees with our laws and government. The 16 objections and reprimands brought up against him so far confirm the picture, which he has given of himself in this case.

(6) To defend parties and dinners given by the two “better class women” with the help of stolen ration cards by saying that business, so to speak, required such parties is just as stupid as it is to expect the court to find the defendants not guilty of an offense. Such statements not only show considerable lack of understanding of the importance of criminal cases in the field of the law of war economy, but they should never be made at all in a court of law.

(7) Humor should certainly not be suppressed especially in difficult times, but only where it is appropriate. But it is inconceivable for a defense counsel to reproach a court or the prosecution for their lack of humor, because a defendant who indulges in a drunken brawl annoys people and resists the police received a well earned punishment. The defense counsel would have done better to consider that in the fifth year of war one should not burden judges and prosecutors with uncalled for petitions for mercy and complaints; about the latter there is still much to be said. He would have done better to make it clear to his client who had already repeatedly made himself unfavorably conspicuous, how to conduct himself in these times instead of backing him up by his false statements.

(8) If in this case the defense counsel raises legal doubts against the assumption of an insult to the mother, he can thus only intend to obtain an acquittal. Therefore as a representative of the law he takes the view that in such cases according to our law there is no protection of the honor of soldiers killed in action and their relatives. This attitude and his subsequent conduct at the trial, in which he called the gravely afflicted mother of the dead soldier “hysterical and highly strung,” when facing the judge she naturally re-experienced her pain and sorrow, revealed, even had the mother been very excited, a rare absence of any feeling for the community and human compassion. He who tries to cover such a criminal deed, particularly as a representative of the law, puts himself ideologically on a level with the defendant.

* * * * * * *

d. The Withholding of Criminal Proceedings against Persons
Participating in “Lynch Justice” against allied Fliers

TRANSLATION OF KLEMM DOCUMENT 68a
KLEMM DEFENSE EXHIBIT 68a

DECREE OF HIMMLER TO ALL HIGHER SS AND POLICE LEADERS, 10 AUGUST 1943, CONCERNING “CONTROVERSIES BETWEEN GERMAN CITIZENS AND PARACHUTED ENGLISH AND AMERICAN TERROR FLIERS”

Personal Staff Diary Nr. 48/16/42 g Bra/Bn To: All Higher SS and Police Leaders

[Stamp]
Personal Staff Reich Leader SS
Archive SECRET
File Nr. Secret/121/21

By order of the Reich Leader SS I am sending you enclosed a decree with the request to bring it to the attention of all commanders of the police and Security Police who are to inform orally all their subordinate agencies of its contents.

In addition, the Reich Leader SS requests that the competent Gauleiter be orally informed of this decree.

[Signed] BRANDT
SS Obersturmbannfuehrer

1 Enclosure

Der Reich Leader SS Rf/Bn 48/16/42 g

[Stamp]
Personal Staff Reich Leader SS
Archive
File Nr. Secret/121/21
Field Command Post, 10 August 1943

Secret

It is not the task of the police to interfere in controversies between German citizens and parachuted English and American terror fliers.

[Signed] H. HIMMLER

PARTIAL TRANSLATION OF DOCUMENT NG-149
PROSECUTION EXHIBIT 110

VARIOUS MEMORANDUMS FROM THE FILES OF THE HIGH COMMAND OF THE ARMED FORCES, 6 JUNE–5 JULY 1944, CONCERNING THE TREATMENT OF “TERROR FLIERS”

1. Memorandum of General Warlimont, 6 June 1944[296]

Matter for Chiefs!--(only through officers)

Deputy Chief of the Operations Staff of the Armed Forces,
No. 771793/44 Top Secret Chief matter

Field Headquarters, 6 June 1944

Top Secret

3 copies--1st copy

Subject: Treatment of enemy terrorist airmen

_Notes on a report_

1. In the afternoon of 6 June, SS Obergruppenfuehrer Kaltenbrunner[297] informed the Deputy Chief of the Operations Staff of the Armed Forces, in Klessheim, that this question had been discussed a short time previously between the Reich Marshal, the Reich Minister for Foreign Affairs, and the Reich Leader SS. In the course of this conference, and in opposition to the original suggestion of the Reich Minister for Foreign Affairs, who wanted to include any kind of terror attack against our own civilian population--thus bomb attacks on cities too--an agreement was reached, according to which _only machine-gun attacks directly_ aimed at the civilian population and its property, should be considered as constituting criminal acts in this sense. _Lynch_ justice should be considered as being _the rule_. Sentencing by court martial and transfer to the police, on the contrary, had not been discussed.

2. The Deputy Chief of Armed Forces Operations Staff set forth--

_a._ In pursuance of the broad outlines sketched by Reich Minister Dr. Goebbels and various press reports which point in the same direction the main task now consists in _making public_ a case of this kind which has been unexceptionally confirmed stating the name and the unit of the concerned airman, the place where it happened, and other details in order to establish accordingly the seriousness of the German intentions in the face of incredulous enemy propaganda, and above all in order to achieve the desired deterrent from further assassinations of our own civilian population. Accordingly, the question is to be put whether such a case is in the files of the SD, or whether the necessary facts are at hand in order to fabricate such a case with the necessary details.

Obergruppenfuehrer Kaltenbrunner answered both questions _in the negative_.

_b._ Deputy Chief Operations Staff of Armed Forces points out that besides lynch justice the procedure too of a segregation of any such enemy airmen who are suspected of having committed criminal acts of this nature, their admission into the airmen reception camp Oberursel, and upon confirmation of suspicion their transfer to the SD for special treatment should be prepared.

In this connection, the Operations Staff of the Armed Forces is in contact with the High Command of the Air Force, in order to establish the directives with which, in such cases, the commander of Oberursel camp would have to comply.

SS Obergruppenfuehrer Kaltenbrunner declares that he agrees absolutely with his suggestion and with the _taking over of the segregated individuals by the SD_.

_c._ Concerning the _publicity_ question, an agreement is reached that until further notice an agreement between High Command of the Armed Forces/Operations Staff of the Armed Forces, High Command of the Air Force, and the Reich Leader SS should be arrived at in any case in order to _establish_ the _form_ of publication.

The cooperation of the Foreign Office is to be secured through the Operations Staff of the Armed Forces.

3. In the course of a conference with Colonel von Brauchitsch (of the High Command of the Air Force) held on 6 June, it was established that the following acts are to be considered as terrorist acts justifying lynching:

_a._ Low level machine-gun attacks on civilian population, on single individuals as well as on gatherings;

_b._ Attacks on own (German) airplane crews dropping by parachute;

_c._ Machine-gun attacks on passenger trains of the regular public service;

_d._ Machine-gun attacks on hospitals, field hospitals, and hospital trains clearly marked with the Red Cross sign.

The facts listed under 3 are to be communicated to the commander of the airmen reception camp at Oberursel. If any such facts are proved by interrogation, the prisoners are to be delivered to the SD.

Colonel von Brauchitsch said that another report about these matters to the Reich Marshal was not necessary.

[Signed] Warlimont

Distribution:

Chief High Command Armed Forces copy 1
through Chief Operations Staff Armed Forces
Deputy Chief Operations Staff Armed Forces
Ktb. copy 2
Qu. (draft) copy 3

* * * * * * *

2. Letter from Field Marshal Keitel to the German Foreign Office,
14 June 1944

Fuehrer Headquarters, 14 June 1944

Top Secret

The Chief of the High Command of the Armed Forces Operations Staff Armed Forces/Qu. (Adm. 1) Nr. 771793/44 top secret Chief matter

3 copies--2d copy
Chief matter: only through officer.

To the Foreign Office, c/o Ambassador Ritter[298] Salzburg

In connection with home and foreign press reports concerning the treatment of terrorist airmen who are falling into the hands of the population an unambiguous fixation is needed of the concept of what facts constitute a criminal act in this sense. At the same time the procedure should be established as to the _publication_ of such cases which have led either to a lynching by the population or--in case of apprehension of terrorist airmen by armed forces or police--to a special treatment by the SD.

In agreement with the Commander in Chief of the Air Force [Goering], I intend to write the communication a draft of which is attached which should be an instruction to the commander of the airmen reception camp at Oberursel. It concerns such cases in which, according to an investigation made in this camp, it is found suitable to segregate the culprit, owing to confirmation of suspicion, and to transfer him to the SD.

Previous to any publicity in the press, by radio, etc., it must be insured that name, unit, place of crime, and other detailed circumstances present a perfectly clear picture which publication may effect the intended result of deterring from further murders. In this connection, the formulating of publication should make allowance for the circumstance that enemy protests of all kinds are to be expected. Therefore, and in agreement with the chief of the Security Police and the SD and with the director of censorship, it is intended that prior to any publication and until further notice an agreement is to be reached between the High Command of the Air Force, the Operations Staff of the Armed Forces, the Foreign Office, and the SD, in order to settle facts, date and form of publication.

You are requested to confirm, if possible not later than 18th instant, that you agree with the above principles as well as with the procedure intended for publications.

1 enclosure

3. Letter from Goering’s Office to Keitel, 19 June 1944

The Reich Marshal of Greater Germany Adjutant’s Office Adj. Off. No. 7605/44 secret Command matter

Berlin WC, the
Leipziger Str. No. 9
Tel. 420044
Headquarters, June 19th, 1944

Subject: Treatment of enemy terrorist airmen

Reference: Your letter No. 771793/44 top secret chief matter II,
Ang. Operations Staff Armed Forces/Qu. (Admin. 1)
of June 15th, 1944

2 copies--copy No. 1

To the Chief of the High Command of the Armed Forces, Field Marshal Keitel

The Reich Marshal [Goering] has noted with reference to the above-mentioned letter:

“The reactions on the side of the population are not in our
hands anyhow. However, it should be prevented as far as possible
that the population takes steps against other enemy airmen to
which above facts do not apply. In my opinion, above-mentioned
facts always can be _dealt with by a tribunal_, as in this
case _acts of murder_ are concerned, which the enemy has
prohibited his airmen from committing.”

Acting:
[Signed] TESKE
Lieutenant Colonel, GSC

4. Draft Letter from the German Foreign Office to Field Marshal Keitel,
20 June 1944

Ambassador Ritter No. 444

Carbon Copy

Secret Reich Matter
Salzburg, 20 June 1944

[Handwritten] _Draft_

To the Chief of the High Command of the Armed Forces Your letter of 15 June 1944 No. Operations Staff Armed Forces/Qu. No. 772991/44.....II.ed.

Subject: Treatment of enemy terrorist airmen.

The Foreign Office agrees to the intended measures as a whole, notwithstanding the clearly palpable objections from the viewpoint of foreign policy and international law.

Examination in detail should differentiate between cases of lynching and cases of special treatment by the SD.

I. In cases of lynching, a sharply defined establishment of criminal facts according to paragraphs 2–4 of the letter of June is not very important. First, a German authority is not directly responsible; death has already taken place before some German authority deals with the matter. Further, the circumstances will be such, as a rule, that it will not be difficult to represent the case in a suitable manner on publication. Accordingly, in cases of lynching, the principal aim will be to _deal suitably with the individual case on publication_.

[Handwritten marginal note] only this was the aim of our letter.

II. The procedure suggested for _special treatment_ by the SD[299] with subsequent publication, would only be defensible if Germany would openly repudiate at the same time, and in this connection, the obligations under international law which are in force now and which Germany still recognizes. When an enemy airman has been apprehended by the armed forces or by the police and been transferred to the airmen reception camp Oberursel, his legal status has become _eo ipso_ that of a prisoner of war. Concerning the criminal prosecution and sentencing of prisoners of war and the carrying-out of death sentences against prisoners of war, definite rules have been established by the Prisoners-of-War Convention of 27 July 1929, such as, e.g., article 66, which provides that a death sentence may be carried out no sooner than 3 months after notification of the death sentence to the protecting power; in article 63: sentencing of a prisoner of war only by the same courts and according to the same procedure as applicable to members of the German Armed Forces. These regulations are so precisely worded that it would be hopeless to try to _veil any infraction thereof by a clever form of publication of individual cases_. On the other hand, the Foreign Office cannot recommend a formal renunciation of the prisoner of war convention on this occasion.

[Handwritten marginal note] this is already being prevented by the intended segregation.

[Handwritten marginal note] No--owing to segregation and the special treatment immediately following.