Chapter V: Introduction (4)

When we call the roll of the defendants before us today who acted in and were principally responsible for the large part which the Ministry of Justice played in the Nacht und Nebel program, we find there the names of Schlegelberger, von Ammon, Mettgenberg, Lautz, Engert, and Joel, in addition to others who played less conspicuous, if not less important, roles. If we were to select one of these men who above all others should have known the criminal nature of the Nacht und Nebel program, such a man might very well have been the defendant von Ammon who was the Ministry of Justice’s specialist in international law. Yet the fact is that the name, von Ammon, together with that of Mettgenberg recur again and again as the principal negotiators with the OKW in matters concerning the application of law and the administration of the Nacht und Nebel program.

The Reich Minister of Justice, in a letter to the public prosecutors charged with trying Nacht und Nebel cases, outlined in detail the measures which were to be taken to assure complete secrecy of the trials. This letter, from which we quote extensively as follows was endorsed, among others, by von Ammon (_NG-269, Pros. Ex. 319_):

“With regard to criminal procedures on account of punishable
offenses against the Reich or against the occupying forces in
the occupied territories, I request observance of the following
directives, in order not to endanger the necessary top secrecy
of the procedure, particularly regarding the execution of death
sentences and other cases of death among prisoners:

“1. The cards used for investigations for the Reich criminal
statistics need not be filled in. Likewise, notification of the
penal records office will be discontinued until further notice.
However, sentences will have to be registered in lists or on a
card index in order to make possible an entry into the penal
records in due course.

“2. In cases of death, especially in cases of execution of NN
prisoners, as well as in cases of female NN prisoners giving
birth to a child, the registrar must be notified as prescribed
by law. However, the following remark has to be added:

“‘By order of the Reich Minister of the Interior, the entry into
the death (birth) registry must bear an endorsement, saying that
examination of the papers, furnishing of information and of
certified copies of death or birth certificates is admissible
only with the consent of the Reich Minister of Justice.’

“3. In case an NN prisoner sentenced to death desires to draw
up a public will, the judge or notary public and, if necessary,
other persons whose presence is required will have access to
the prisoner. Only officials of the Ministry of Justice may be
called as witnesses. The persons who assist the drawing up of
the will are, if necessary, to be sworn to secrecy. The will has
to be taken into official custody according to article 2 of the
Testaments Law. The disposition receipt has to be kept by the
prosecution until further notice.

“4. Farewell letters by NN prisoners as well as other letters
must not be mailed. They have to be forwarded to the prosecution
who will keep them until further notice.

“5. If an NN prisoner who has been sentenced to death and
informed of the forthcoming execution of the death sentence
desires spiritual assistance by the prison padre, this will be
granted. If necessary, the padre must be sworn to secrecy.

“6. The relatives will not be informed of the death, especially
of the execution of an NN prisoner. The press will not be
informed of the execution of a death sentence, nor must the
execution of a death sentence be publicly announced by posters.

“7. The bodies of executed NN prisoners or prisoners who died
from other causes have to be turned over to the State police for
burial. Reference must be made to the existing regulations on
secrecy. It must be pointed out especially that the graves of NN
prisoners must not be marked with the names of the deceased.

“The bodies must not be used for teaching or research purposes.

“8. Legacies of NN prisoners who have been executed or died from
other causes must be kept at the prison where the sentence was
served.”

It is not our purpose here to review all of the gruesome details of carrying out the spirit of the Nacht und Nebel program which became the daily routine of these defendants. As the Court will see, all of the stipulations regarding the secrecy of the original decree and indeed the addition of other unbelievably harsh and inhuman provisions were systematically executed and improved upon by these men. If, to take one example, the Wehrmacht erroneously arrested in the occupied countries individuals who were patently innocent of any resistance to the Nazis, these victims, in order to preserve the secrecy of the program, had to be treated in exactly the same way as other individuals who managed to escape with a prison sentence. Never did the families and friends of the convicted or innocent know their fate. In the alleged trials before the Special Courts none of the accused was, at any time, ever able to introduce evidence from his own country as to his innocence and, in no case, were the accused permitted to choose legal counsel other than that assigned to them by the court.

Again the defendants flagrantly violated rights secured by the Hague Convention of citizens of countries occupied by the German armed forces--the right of family honor, the lives of persons, and the right to be judged under their own laws.

c. Illegal Transfer of Prison Inmates to Concentration Camps

MR. WOOLEYHAN: A Ministry of Justice policy of extermination through calculated denial of all judicial and penal process, in close collaboration with the Gestapo and SS, characterizes the second substantive group of crimes previously mentioned. By 1939, inspections of Reich penitentiaries operated by the Ministry of Justice disclosed that large numbers of political prisoners in security detention were engaged in paid labor on projects incompatible with the rearmament effort which then was at a climax. At Hitler’s order these prison inmates were transferred to concentration camps where their work could be both unpaid and of more use to munition requirements. Thus was initiated a program which was to eventually erase any practical difference between the fates of those victims who were put through the shams of criminal court procedure, and those who were thrown by the police into concentration camps without the formality of a hearing.

Apparently noting that transfers from Reich prisons to concentration camps aroused no immediate public clamor or official opposition, judges saw therein an outlet for increasingly burdensome numbers of criminal cases, particularly political cases, as the defendant Engert has stated (_NG-471, Pros. Ex. 276_):

“In 1940 or 1941 I wrote to Himmler suggesting that he take me
into the Gestapo. My idea was to get in closer touch with the
Gestapo in order to get an insight into the activities of the
Gestapo, and then to reach a better relationship between the
Gestapo and the People’s Court. * * * I also wanted to prevent
the possibility of insignificant cases being brought up in the
People’s Court, which could be better handed over to the Gestapo
for a short term internment in a concentration camp.”

About the time that Engert, then vice president of the People’s Court, made this overture to Himmler, he began to complain officially that it was incompatible with the respect, dignity, and tasks of the People’s Court to try minor political cases. He opined that such cases could be settled more quickly and effectively by transferring the culprit to a concentration camp. Thierack, then president of the People’s Court, in heartily endorsing Engert’s attitude, wrote to the Minister of Justice in 1940 in part as follows:

“However right it is to exterminate harshly and uproot all the
seeds of insurrection, as for example we see them in Bohemia
and Moravia, _it is wrong for every follower_, even the
smallest, _to be given the honor of appearing_ for trial
and being judged for high treason _before the People’s Court,
or_ failing that, _before an appellate court_. In order
to deal with these small cases and even with the smallest,
the culprits should surely be shown that German sovereignty
will not put up with their behavior and will take action
accordingly. That can be done in a different way and I think
in a more advantageous one, than through the tedious and also
very expensive and ponderous channels of court procedure. I have
therefore no objection whatsoever, if all the small hangers-on
who are somehow connected with the high treason plans which have
been woven and abetted and plotted by others are brought to
their senses by being transferred to a concentration camp for
some time.”

These opinions and desires of Engert and Thierack found eager and sympathetic audience with the Gestapo and SS, resulting in working agreements between these agencies and the Ministry of Justice whereby such illegal transfers could be accomplished outside the law. As the International Military Tribunal in its judgment has found--

“An agreement made with the Ministry of Justice on 18 September
1942 provided that antisocial elements who had finished prison
sentences were to be delivered to the SS to be worked to
death.”[52]

This agreement, it will be noted, expanded the initial ideas of Engert and Thierack far beyond any more hastening of minor political court cases or exploitation of prison labor. The agreement introduced the ideas of exterminating the so-called “asocials,” i.e., persons who for either racial, political, or personality reasons were deemed unfit to live. Within a month after this agreement had been worked out and put into practice, it was expanded further to include not only those “asocial” elements who had finished their prison sentences, but also all Jews, gypsies, Russians, and Ukrainians who were detained under arrest or imprisonment in any Reich penitentiary or work house, as well as all Poles who were sentenced to more than 3 years.

Now, since the intentional design was to literally work these people to death once they were transferred to concentration camps, this expanded illegal agreement actually rendered any court sentence for any crime tantamount to a death sentence.

In some cases the death awaiting these unfortunates was not long in coming. For example, a situation report in 1942 from the Attorney General of the Court of Appeals in Berlin to the defendant Schlegelberger, while the latter was Acting Minister of Justice, revealed the following episode:

“In this connection I think I ought to point out that only
recently perpetrators have been repeatedly handed over to the
Gestapo. Also, there was no sufficient cause therefore, to be
found in my opinion, in the conduct of the justice authorities.
I am referring to criminal procedures against Skibbe and others
* * *.”

Then follows the citation of the case in the German files:

“ * * * in which 4 defendants--26, 22, 20, and 18 years of age,
respectively--accused of committing 23, 19, 15, and 12 completed
or attempted robberies, respectively, by taking advantage of
air raid protection measures, were sentenced by the Special
Court of Berlin to 7, 6, and 5½ years of penal servitude and
loss of civil rights for 10 years’ each. Although 3 of the
perpetrators had not been convicted previously and the fourth
one only of 2 comparatively minor crimes, in addition to all
of them still being comparatively young and, at least in my
opinion, the pronounced penalties being not inadequate, these
perpetrators were handed over to the Gestapo. They were shot, as
could be seen from the newspaper reports ‘because they offered
resistance.’ May I remark that it is hardly unknown to the
public any longer that these shootings ‘because of resistance
offered’ are actually caused by other considerations.”

Still operating completely beyond any existing law, decree or regulation, this same cabal of justice officials, SS and Gestapo extended this policy of extermination through the Occupied Eastern Territories. As the SS and SD offices throughout those eastern countries were instructed in November 1942--

“The Reich Leader SS has come to an agreement with the Reich
Minister of Justice Thierack that the courts will forego the
carrying out of regular criminal procedures against Poles
and members of the eastern peoples. These people of foreign
extraction henceforth shall be turned over to the police. Jews
and gypsies are to be treated likewise. This agreement was
approved by the Fuehrer.”

These instructions to the SS and SD in the East continue:

“Those considerations which may be right for the punishment
of an offense committed by a German are wrong with regard
to the punishment of an offense committed by a person of
foreign extraction. The personal motives of the offender are
to be disregarded completely. Important only is that this
offense endangers the order of the German community, and that,
therefore, measures must be taken to prevent further dangers.
In other words, the offense committed by a person of foreign
extraction is not to be judged from the point of view of legal
retribution by way of justice, but from the point of view of
preventing danger through police action. From this follows that
the criminal procedure against persons of foreign extraction
must be transferred from the courts to the police.”

With the Jews, Poles, gypsies, Ukrainians and other so-called “asocial” persons throughout the occupied east relegated to a carefully prepared death, this same unholy alliance returned its attention to the Reich and the Protectorate of Bohemia and Moravia. There, by the infamous decree of 1 July 1943,[53] signed among others by Thierack, all of the foregoing perversions of judicial and penal process were tardily “legalized” by officially denying to all Jews any recourse to the criminal courts and committed any Jews accused of an undefined “criminal action” to the police.

With grim humor the following article of that statute ordered the confiscation by the Reich of a Jew’s property after his death.

This decree completed the absolute disfranchisement and expropriation of property of Jews in the Third Reich and Bohemia and Moravia who had not already, by that time, been deported or slain.

Prison inmates not transferred to concentration camps, pursuant to the foregoing program, were hardly better off in Reich prisons under the hospitality of the Minister of Justice. The defendant Joel had a working agreement with a deputy of Himmler’s whereby he turned over to the SS, for shooting, those defendants whose sentences by the courts were deemed insufficient by Hitler who followed published decisions in the newspapers. A number of charts tabulating the shootings of such defendants, many of whom had received only minor sentences, attest to Joel’s zealous activity on this score. Schlegelberger, too, studiously concocted what was deemed a “legal basis” for these shootings of prison inmates serving minor sentences.

d. Judicial Murders in Violation of International Law

Victims of the People’s Court, Special Courts, and civil courts martial were judicially murdered by certain of the defendants using a variety of legalistic artifices, all of which had the obvious common denominator of a zealous desire to exterminate even trifling activity not even deemed misdemeanors by the community of civilized nations. One such artifice frequently employed was a subjective, conclusive assumption by the judges and prosecutors of proof of the very issues tried. For example, after the Nazi importation of forced labor from the occupied East had collected large numbers of foreign workers within the Reich at various war jobs against their will, escape efforts by such workers across Reich frontiers to their homeland or elsewhere became frequent. These escapees, when apprehended by border officials, were normally handed over to the People’s Court for trial for preparation of high treason, which bore a mandatory sentence of death. The applicable section of the German criminal code defined high treason in this context “as an attempt to incorporate by violence or by threat of violence the German territory in its entirety or in part into a foreign State or to detach from the Reich territory belonging to the Reich.” The escapees were indicted, inconceivable as it may be, for the violation of this provision.

In grasping for some legal straw upon which to base a conviction on these grounds, the courts created a whole-cloth assumption that such escapees were heading through Switzerland, or wherever they might have been picked up, in an effort to join some military legion hostile to the Reich. The Reich prosecutors were drawn into this scheme. Walter Brem, a former assistant to the chief Reich prosecutor at the People’s Court, described the situation thus (_NG-316, Pros. Ex. 79_):

“The majority of these cases concerned foreign laborers who
wanted to look for a job in Switzerland because of inadequate
salaries and insufficient food rations in the Reich. The
prosecution, however, claimed that foreign legions were being
established in Switzerland and that every foreigner wanting to
cross the border illegally did so in order to join up with such
legions. I was ordered by the prosecutor of the People’s Court
to connect the defendants somehow with the foreign legions.
I have never received a positive answer about those alleged
organizations, and the whole concept was known to the foreigners
only as a rumor. Individual proof of any acts of high treason
could not be established; however, the prosecution based its
claims on the assumption that such foreign laborers would behave
in a hostile manner against Germany once given the opportunity.”

This contention was acceptable to judges of the People’s Court. On 12 August 1942, three Polish defendants, Mazur, Kubisz, and Nowakowski, pursuant to an indictment signed by the defendant Lautz, were sentenced to death by the People’s Court for preparation of high treason and attempting to separate a portion of the Reich by force. They had left their factory in Thuringia and proceeded across the Swiss border, where they were apprehended by Swiss officials and returned to the Reich. As reasons for their escape the defendants cited the hard working conditions to which they had been exposed. Kubisz testified that the meals consisted only of soup. Mazur stated that his work in the quarry was so hard that he feared he would not survive the winter. The defendants stated they had hoped to find better working conditions in Switzerland. They denied having had any knowledge of the existence of a Polish Legion in Switzerland. The prosecution offered no evidence to impeach these statements in any way.

Nevertheless, the People’s Court found that the defendants’ statements were mere excuses, that the existence of a Polish Legion in Switzerland was “generally known,” and that the defendants intended to join this legion. This judicial assumption was buttressed by a physician’s certificate which showed all three defendants to be in excellent health and qualified for active service. Therefore, the court “was convinced” that the defendants had discussed the fate of Poland and her people with their camp mates in the factory barracks and had decided to join the Polish Legion in Switzerland. The court said that it knew of a pact with Russia that the Polish government in exile had formed, and that this fact had been broadcast by the British radio. The court knew, furthermore, that in the past Polish workers had repeatedly fled to Switzerland where they were recruited for the Polish Legion, and I quote a portion of the court’s decision:

“These circumstances force the court to the conclusion that the
defendants intended to join the Polish Legion in Switzerland.”

With regard to verbal remarks deemed seditious or deleterious to the “German people’s defensive strength,” People’s Courts sentences were not only outrageously unjustified, but reached the climax of judicial caprice. The Austrian taxicab driver, Rudolf Kozian, pursuant to an indictment signed by Lautz, was sentenced to death on 26 June 1944 for making certain uncomplimentary remarks concerning Hitler and the progress of the war. In the course of conversation while driving a female customer, who later denounced him to the Gestapo, he made remarks typified by the following:

“To us Viennese it’s all the same from whom we receive our bread
whether his name is Stalin, Churchill, or Hitler. What matters
is that we can live. When I quarrel with someone and see that
I can no longer carry on, then I stop and do not continue the
fight until everything is destroyed. The Fuehrer in his speech
said that he would destroy us all. The Fuehrer has said that
this war will be fought until one side will be annihilated.
Every child knows that we are that side, unless the Fuehrer will
come to his senses before then and offers peace to the enemy.”

The court found the defendant guilty of having attempted to undermine the German morale to such an extent that he was deemed to come within the special Emergency Decree authorizing death for impairing German defensive strength.

Contrast the foregoing case of the Austrian taxi driver, resident of a country occupied and annexed by illegal aggressive acts, with that of Mrs. von Brincken, a German Nazi, who was indicted in August 1944 for having made similar statements in a conversation with friends at the seashore. When the man who had rented her a beach chair became angry about the careless way in which his chair was treated, Mrs. von Brincken was alleged to have said: “Well, don’t worry, the Russian commissars will be sitting in them next year.” She was also vocally indignant to her neighbors because her 17-year-old daughter had just been drafted for labor assignment in the country, and said: “It would do the farmers no good; they would only get more work and more worry since the girl could not do anything but eat.” Due to the intercession of both her husband, a colonel, and a notorious SS general who was a friend of the family, she was released with an admonition.

Such judicial discrimination with death as the forfeit, is explained by the defendant Petersen, a lay judge at the People’s Court from 1941 until the end of the war (_NG-396, Pros. Ex. 176_).

“The sentences of the People’s Court can be understood only if
one keeps in mind the intent underlying the penalties. This
was not primarily that of imposing punishment in accordance
with normal ‘bourgeois’ conceptions of crime and punishment,
but rather of annihilating an opposition which could become
detrimental to the German aims.”

DR. ASCHENAUER (defense counsel for defendant Petersen): By my motion of 21 February 1947 I objected to the submission of the affidavit of the defendant Petersen. On 27 February 1947, I specified the motion. It says: “The defense is not permitted to introduce the affidavit and the interrogations under oath of the defendant Petersen into the proceedings.” On 21 February 1947 I gave the reasons for the motion which are as follows: From 12 June until the end of 1946, the defendant Petersen was in the Langwasser camp. As a patient, he was moved to the Regensburg camp where his medical treatment was continued. Already at Langwasser, Petersen was pronounced unfit for transport. In spite of medical treatment, he was moved to Nuernberg. As he collapsed in Regensburg, medical treatment for circulation disturbance was continued at the court prison here; the circulation disturbance improved only at Christmas 1946. Accommodation in a cell in which half a window was missing, was naturally very detrimental to the state of health of the 61-year-old defendant Petersen. Therefore--

PRESIDING JUDGE MARSHALL: Counsel for the defendant is advised that the statement of counsel is not evidence in this case. It is merely a statement of what later will be introduced in evidence. If this statement is introduced in evidence, you can make your objection and it will then be ruled upon. For the moment, the prosecution will continue its statement.

DR. ASCHENAUER: I should only like to point out that this is the same affidavit which is being presented here and that this affidavit is due to the psychological condition of the witness.

PRESIDING JUDGE MARSHALL: I repeat. This is not evidence. This is merely a statement of what will later be introduced in evidence. At that time, if you have an objection, it will be considered. At this time, you may not interrupt the statement of the prosecution.

DR. ASCHENAUER: I will raise my objection at a later time.

MR. WOOLEYHAN: To get the proper context, I will begin at the beginning of the excerpt included in the opening statement (_NG-396, Pros. Ex. 176_).

“The sentences of the People’s Court can be understood only if
one keeps in mind the intent underlying the penalties. This
was not primarily that of imposing punishment in accordance
with normal ‘bourgeois’ conceptions of crime and punishment,
but rather of annihilating an opposition which could become
detrimental to the German aims. This was our duty. Hence, after
a defendant had been brought before the People’s Court because
of some act or utterance, his actual deed was of no particular
importance in the determination of the punishment within the
framework of the law. The important thing was whether the man
had to be exterminated from the community of the people as a
‘public enemy’ because of his personal attitudes and his social
or antisocial tendencies.”

The further artifice of “punishment by analogy,” previously mentioned generally, was as tyrannical in practice as it seems in theory. Revolting examples of this procedure in action are legion. A particularly notorious case that turned on this ground was that of Lehmann Katzenberger, 68-year-old former chairman of the Nuernberg Jewish congregation. Katzenberger was indicted before the Nuernberg district court for so-called “racial pollution,” having been accused of sexual relations with one Irene Seiler, an Aryan woman. The police tried desperately without success to secure the necessary conclusive evidence, but Katzenberger and Seiler, both well-known figures of some prestige in the community, denied under oath any illicit relationship. There were no witnesses to or other evidence of the accused act. Since an acquittal of the Jew was unthinkable, particularly in Nuernberg which was the hearthstone of the Jew-baiter Streicher, and whose newspaper “Der Stuermer” widely publicized the story, Katzenberger was remanded to the Nuernberg Special Court, tried as a “public enemy,” sentenced to death, and executed. Seiler was indicted for perjury and was joined with Katzenberger as codefendant; her sentence of two years’ imprisonment was later suspended.

As Hans Groben, Nuernberg district court judge for preliminary investigations, describes the case (_NG-554, Pros. Ex. 153_)--

“As I had no reason to doubt the truth of Seiler’s sworn
statement it was clear to me that I could not keep Katzenberger
in custody any longer. Therefore I informed his counsel, Dr.
Herz, about the result of this interrogation and gave him to
understand that this was the right time to act against the
warrant of arrest. Dr. Herz naturally understood this hint,
and at once he filed a complaint against the warrant of
arrest. According to the regulation (section 33 of the Code
of Criminal Procedure) I put the complaint before the public
prosecution, adding in my report that I had the intention to
comply with this complaint (section 306, paragraph 2, Code of
Criminal procedure), i.e., to set Katzenberger free. I thus
clearly expressed with this additional remark that I believed
Katzenberger to be innocent * * *. As was later explained to
me, the indictment already filed with the penal chamber of the
district court was thereupon withdrawn and replaced by one filed
with the Special Court.

* * * * * * *

“I was shocked when I heard the result of the trial. The fact
that Rothaug combined the trial against Seiler, a case of
perjury, with the trial against Katzenberger, shows clearly that
he took over the case of Katzenberger with definite prejudice
and that he was determined to exclude Seiler as a witness for
the defendant. For, according to normal procedure, Seiler
should have been a _witness_ in Katzenberger’s trial
and should have testified for him stating that the charges
against Katzenberger were not true. This normally should have
led to the acquittal of Katzenberger, as otherwise there was
nothing decisive against him. Rothaug’s verdict, in my opinion,
was based solely on blind hatred of Jews. While there were
no reasons for Katzenberger’s condemnation on the ground of
so-called race defilement, there was still less reason to apply
section 4 of the ‘Decree against Public Enemies,’ because if it
was altogether impossible to ascertain when or if Katzenberger
and Seiler had the alleged sexual intercourse, it was still less
possible to explain that this had happened ‘in exploitation of
war conditions.’ To arrive at Katzenberger’s condemnation on the
grounds of so-called race defilement in connection with section
4 of the ‘Decree against Public Enemies,’ it was necessary to
violate all the facts of the case. It has always depressed me
that such a verdict, which cannot be designated as anything but
judicial murder, was pronounced by Rothaug.”

One further sampling of the prosecution’s evidence will serve to reveal how the protection against double jeopardy, keystone of criminal procedure the world over, was abrogated and used for the murder of civilians of occupied countries.

The Nuernberg Special Court, under the leadership of the defendants Rothaug and Oeschey, used this fiendish practice in the case of Jan Lopata, a Polish youth brought during the war to work on a German farm. The accused was sentenced in 1940 to 2 years’ imprisonment by the Neumarkt local court for indecent assault on his employer’s wife. A plea of nullity against the decision was filed by the prosecution on the grounds that the sentence was too lenient and the case was reviewed by the Reich Supreme Court with the result that it was referred to the Nuernberg Special Court for retrial. In the court’s verdict sentencing Lopata to death, the presiding judge (the defendant Rothaug) observed (_NG-337, Pros. Ex. 186_)--

“The total inferiority of the accused lies in his character and
is obviously based on the fact that he belongs to the Polish
subhuman race.”[54]

In reliance upon the decrees “legalizing” nullification and retrial of criminal cases at the prosecution’s behest, defendants were deprived of any assurance that a sentence of less than death was their final fate. Ministry of Justice officials, working through the prosecution, joined in this infliction of double jeopardy. For example, in a case involving a non-German, the defendant Klemm wrote to the president and attorney general of the Stuttgart District Court of Appeals on 5 July 1944 and directed the following (_NG-676, Pros. Ex. 178_):

“For some time now, the jurisdiction of the penal senate of
the district court of appeals in Stuttgart has given me cause
for grave thoughts with regard to matters of defeatism. In the
majority of cases, the sentences are considered too mild * * *
and are in an incompatible disproportion to the sentences which
are in similar cases passed by the People’s Court and by other
district courts of appeal. I refer especially to the following
sentences which lately attracted my attention:

“1. Criminal case against Friedrich Linder, sentence of the
Second Penal Senate of 7 January 1944 (President of the Senate,
Dr. Kiefer) * * *. You made a report under date 28 April 1944
on this case regarding the sentence. In view of the danger and
of the frequency of the statements made by the defendant, I
must maintain the interpretation already expressed in my decree
of 15 March 1944, IV Secret I 5045B/44 that the defendant, a
foreigner, deserved a serious sentence of penal servitude. I
have therefore directed the files to the chief Reich prosecutor
at the People’s Court to examine the question whether the
extraordinary appeal should not be applied against the sentence
* * *.”[55]

It is technically true that an extraordinary appeal or plea of nullity could, on the face of the enabling decrees, operate to a defendant’s benefit as well as to his detriment; but this possibility was illusory in practice. Dr. Josef Grueb, former judge of the Nuernberg District Court of Appeals, says (_NG-672, Pros. Ex. 179_):

“It was obvious that the Ministry of Justice only admitted a
petition for nullity when it was unfavorable to the defendant.
Cases in which the Ministry ordered a nullity plea unfavorable
to the defendant were, at any rate, much more numerous than
cases where the petition for nullity was demanded for the
benefit of the defendant on the Ministry’s own initiative.
* * * It was mainly a means employed by the State to cancel
sentences which seemed inadequate in the light of the political
conceptions of those times.”

A terrifying glimpse of the actual extent to which double jeopardy was exploited during the Third Reich’s last years, is furnished by the defendant Nebelung (_NG-333, Pros. Ex. 177_).

“If the Chief Reich Prosecutor, Dr. Lautz, was not satisfied
with the sentence, he could file an extraordinary appeal against
it. This was done, in my opinion, mainly as a result of orders
by Reich Minister Thierack. After 1943, extraordinary appeals
became frequent. All cases in which an extraordinary appeal had
been filed were tried again before the special senate of the
People’s Court. This special senate concerned itself exclusively
with extraordinary appeals. Of all senates of the People’s
Court, this special senate pronounced the largest percentage of
death sentences. According to statistics which I saw myself, 70
percent of all sentences passed by the special senate during
1944 were, as I recall, death sentences.”

By the foregoing samples from actual case records and comments thereon by German jurists involved, the prosecution has sought to typify rather than specify the war crimes and crimes against humanity committed by the defendants. Detailed accounts are unnecessary at the moment to exemplify the judicial murders and legalistic perversions for which these defendants have been indicted; that will be fully developed by the evidence.

e. Evidentiary Considerations

MR. LAFOLLETTE: We believe it will expedite the trial of this case and be of assistance to the Court and evidence a proper attitude of fairness toward the attorneys for these defendants if we discuss now some of the theories of evidence and of the relevancy and materiality of evidence under which we shall present the proof in this case.

Law No. 10, which is the inter-power act from which this Court springs, contains some matter relevant to the issue, while Ordinance No. 7, of necessity, treats the matter very fully. Between them they deal adequately with the matter of the competency of proof, intelligently relaxing the rules of the necessities of presenting proof in a country which has not only been physically destroyed, but which has had its government disintegrate and also suffered the demoralization which follows the defeat of a vicious ideology which has permeated the thinking of far too many of its people.

But relevancy and materiality--the relationship of primary facts to the ultimate fact--involves a cerebral process, the method of finding the existence of an ultimate fact by logical processes from objective proof.

These latter standards lie within the consciousness and the conscience of man. Thus, they are not affected by the external considerations which justify the relaxation of the rules regulating the competency of proof. They should not have been and they were not relaxed. We endorse the decision to retain them and welcome the opportunity to work under them.

Article II, paragraphs 4(_a_) and (_b_) of Law No. 10, are the same in substance, although differing slightly in the use of language to express the substance as articles 7 and 8 of the Charter, respectively.

These paragraphs of article II of Law No. 10 read as follows:

“4. (_a_) The official position of any person, whether as
Head of State or as the responsible official in a Government
Department, does not free him from responsibility for a crime or
entitle him to mitigation of punishment.

“(_b_) The fact that any person acted pursuant to the
order of his Government or of a superior does not free him from
responsibility for a crime, but may be considered in mitigation.”

Paragraph 4 (_a_) is a sound rule and applies to most, if not all, of these defendants. Paragraph 4 (_b_) is likewise sound. We point out, however, that these defendants are lawyers who are charged fundamentally with perverting or converting a system of justice into an instrument for committing crimes under international law. Since this paragraph affords them the right to offer evidence in mitigation and to plead for mitigation from that evidence, the prosecution is entitled to answer that plea by two arguments. First, that a lawyer has special knowledge of the perverting effect upon the dispensation of justice not only of his own acts, but of the acts of others of which he has knowledge--knowledge as an ultimate fact. Second, that a lawyer entrusted by his very calling with a sacred duty must of necessity offer strong proof indeed in mitigation of the prostitution of that duty.

We shall introduce proof on this issue from which knowledge, as an ultimate fact will arise, and also proof from which the plea of mitigation will be shown to be fanciful and hypocritical.

Again upon the subject of relevancy and materiality--probative value--we shall offer evidence of other acts of these defendants and also acts of persons other than these defendants, knowledge of which as an ultimate fact can be inferred to the defendants. These acts shall include those which constitute evidence of other crimes committed both by these defendants and by others. We are convinced that this evidence is relevant and material, and therefore admissible under accepted rules of evidence supported by Wigmore, an acknowledged authority.

Certainly, a brief exposition of our position will expedite the trial by enabling the Court to rule expeditiously, but at the same time judiciously, and it is also our hope that by furnishing defense counsel with an understanding of the legality of the rules under which this evidence will be offered, they will not find it necessary to resort too frequently to empty objections.

We can afford to be candid with Court and counsel. It is only the lazy, the uninformed, or inherently dishonest and therefore unethical lawyer who seeks recourse to silence or obtusion. We refuse to follow a course of conduct from which either of the foregoing can be charged to the prosecution of cases before this Tribunal and its sister Tribunals.

Evidence of acts, including other crimes not only of the defendants but of others, is permissible and most often offered to show knowledge, intent or design. They are also relevant upon the issue of motive. Because of the nature of the crimes charged in this indictment, each of the foregoing, knowledge, intent, or design and motive, is an essential ultimate element or ingredient of those crimes. Therefore, the rules which authorize the introduction of such proof are of concern to this Court.

Before treating the subject affirmatively, we shall prepare the way by eliminating the supposed objection of unfair surprise. We offer the following quote:

“Of the other objections (other than undue prejudice) from
the point of view of that auxiliary policy which creates the
character rule, the objection of unfair surprise is the only one
that could be supposed to be here applicable. But it has never
been treated by the courts as of consequence. * * * Evidence
tending to show, not the defendant’s entire career, but his
specific knowledge, motive, design, and the other immediate
matters leading up to and succeeding the crime, is of a class
always to be anticipated and is in such given instance rarely
a surprise; moreover, the kernel of the objection of unfair
surprise, namely, the impossibility of exposing fabricated
evidence, is wanting where the evidence deals with matters
so closely connected with a crime as design, motive, and the
like.”[56]

The above quote referred to the further objection of undue prejudice. That objection does not arise here. This is a trial by the court--by judges. It is a trial by judges who by training and character rely only upon objective standards in determining guilt or innocence. The rule was never considered in America as a necessary protection to a defendant in trials by court.

In fact, the very contrast between the system and standards of judicial conduct by which these defendants are being tried and the subjective personality yard sticks which they, particularly the judicial defendants, will be proved to have acted under and used, it is to be hoped, will have some effect in serving the declared purpose of Potsdam, “to prepare for the eventual reconstruction of a German political life on a democratic basis * * *.”

In treating the subject under discussion, we must refrain, because of time limitation, from presenting Wigmore’s excellent philosophical discussion of the basic principles which govern the proof of knowledge, intent, and design. Therefore we limit ourselves, from necessity, to an exposition of those statements which are applicable to the crime which most, if not all, of these defendants have committed--murder.

We shall offer the type of evidence under discussion, first under the knowledge principle:

“The knowledge principle has practically little application
here, though it would be available to show a knowledge of the
nature and injurious effect of a lethal weapon.”[57]

We point out that in this case “knowledge of the nature and injurious effect of a lethal weapon” is of first importance. The defendants had full knowledge of the character of this lethal weapon--a judicial system deliberately fashioned into a headman’s axe. In fact, most of them directly and actively fashioned it. Consequently, under each of the categories of the substantive law of murder, which we have heretofore expounded, and particularly under the second, proof of prior acts, including crimes of those defendants and of others of which they had knowledge, are clearly relevant.

The same type of evidence shall be offered under the following rule relating to the intent principle:

“The intent principle receives constant application; for the
intent to kill is in homicide practically always in issue, and
is to be proved by the prosecution, and the recurrence of other
acts of the sort tends to negative inadvertence, defensive
purpose, or any other form of innocent intent. For this purpose,
therefore, the evidence is receivable irrespective of whether
the act charged is itself conceded or not * * *.”[58]

Also the rule of anonymous intent authorizes the introduction of proof of such other crimes and of the crimes of others.

“The principle of anonymous intent finds occasional application,
particularly in poisoning cases. Other instances of death
by poison under somewhat similar circumstances serve to
negative the supposition of inadvertent taking or of mistaken
administration, even though the person responsible for the
other poisonings is not identified; and thus, a criminal intent
having been shown for the act charged, by whomsoever done, the
defendant may be then shown to be its doer.”[59]

This Court shall be called upon to determine whether a so-called judicial execution was a true judicial decision or poison handed the defendant in a disguised chalice having the exterior appearance of judicial purity. When we produce innumerable cases of such acts, can a defendant be heard to say he did not know his monstrous chalice was lethal and intended it so to be?

Also the principle of design or system is applicable for identical reasons.

“The principle of design or system finds here frequent
application. It supposes that a design or plan in the defendant
is to be shown, as making it probable that the defendant carried
out the design or plan and committed the act; and it receives
former similar acts so far as through common features they
naturally indicate the existence of such a plan, design, or
system, of which they are the partial fulfillment, or means.
This principle is fully recognized in the precedents * * *.”[60]

And finally prior acts of violence, including crimes, are evidence of motive as well as of design:

“(3) Prior acts of violence by the defendant against the same
persons, besides evidencing intent, may also evidence emotion
or motive, i.e., a hostility showing him likely to do further
violence; * * *.

“(4) Threats of violence are in themselves expressions of a
design to injure, and are accordingly dealt with elsewhere * *
*.”[61]

Certainly, when we shall offer so many cases of death of Poles and Jews, no one of these defendants will have the temerity to say we cannot show proof of their own prior utterances, as well as those of others of which they had knowledge, as a clearly inferred ultimate fact, demanding death to Poles and Jews, and also that haste and more haste must be made to turn the Nazi judicial system into a headman’s axe, for the purpose of showing their motive when they killed Poles and Jews with their so-called “judicial” system and processes.

It would be a strange law, indeed, which would say that if a man killed the Pole or one Jew, his prior threats to and assaults upon that Pole or Jew were relevant evidence of the motive with which he acted, but would deny the same proof, when the same man, or in this case men, killed millions of Poles and Jews.

Of course, the law is neither so blind nor so callous.

The accepted rules of proof in an objective system of law justify every offer of proof of prior statements, acts, and crimes of these defendants, and of those others of which they had knowledge, as an ultimate fact, which we should make in this case.

We need not, nor shall we attempt to, evade or circumvent those salutary rules.

These defendants can and should be convicted, but only under law. Because we believe that, we have not been afraid to predeclare our understanding both of the substantive law and the rules of evidence under which just convictions shall be asked, and which we believe will be rightfully rendered under the proof adduced.

Although the matter is not related to the theories under which evidence will be offered by the prosecution, there is one other matter relating to the evidence which the prosecution feels it is entitled to discuss at the opening of this case.

During the introduction of the evidence, certain names of important officials recur--Thierack, Freisler, Vollmer, Westphal, Crohne, Laemmle, Haffner, and others. Since these men are not in the defendants’ dock, the Court is entitled to know why. Thierack committed suicide on 26 October 1946. Freisler was killed in an air raid which demolished the People’s Court building in Berlin, early in 1945. Vollmer forsook the Ministry of Justice for the Luftwaffe (air force) during the last days of the battle for Berlin in 1945, and was reported to have died in action. Westphal committed suicide in the Nuernberg prison following service of the present indictment upon him. Crohne, Laemmle, and Haffner cannot be located, despite all efforts.

THE GERMAN LEGAL PROFESSION UNDER THE THIRD REICH

We have sketched the steps by which the judicial organization of Germany was turned into a mere agent of the criminal policies of the Third Reich, and have outlined some of the crimes which the defendants committed by means of the perverted judicial machinery. Before taking up the fourth and final count of the indictment, which rests upon a somewhat different footing than the first three counts, it is appropriate to examine very briefly the German legal profession and its degradation under the Third Reich. This brief survey, we think, will help to explain why these atrocities came to pass.

a. Before 1933

During the pre-Hitler decades, the professional life of German jurists flourished. Independent societies were formed which published law reviews of high caliber and participated in international conferences of jurists and in international legal institutions, such as the International Arbitration Courts.

Originally, the judges of the various German States had separate professional organizations, but in 1908 these were combined into the Association of German Judges (Deutscher Richterbund). This organization sponsored lectures on new legal problems, on comparative law, on modernizing penal law, and similar subjects. The association edited the “German Judges’ Times” (Deutsche Richterzeitung), which published court decisions and articles by learned jurists. Another organization of German judges was the Association of Republican Judges (Republikanischer Richterbund), founded in 1926. Its members were primarily interested in the reformation of the German court system and in bringing German legal institutions into line with the democratic principles of the new Weimar constitution. They published the periodical “German Justice” (Deutsche Justiz).

Most practicing German attorneys at law belonged to the Association of German Attorneys at law (Deutscher Anwaltsverein), the largest professional organization of jurists. This association, founded in 1871, comprised about 15,000 members in 1933. It published the “Juridical Weekly” (Juristische Wochenschrift), which had thousands of subscribers inside Germany and abroad.

Before the Nazis came to power, all organizations of jurists consisted of members of all political parties and creeds. Their officers were eminent scholars or jurists, and many of them had a high international reputation. Their yearly meetings acted according to democratic principles without interference from the executive branch of the government.

Legal education and training in Germany maintained high standards. After studying law for 3 or 4 years at a law school of one of the State universities, the candidate served a law apprenticeship, lasting another 3 or 4 years, at various courts and law firms. Only then was he admitted to the Great State Examination, known as the Assessor Examination, which might be compared with our bar examination. The successful completion of this examination was the legal prerequisite for any appointment as judge, public prosecutor, or higher civil servant, or for admittance to the bar. The men and women who had passed this examination were highly respected by the German populace.

b. The Impact of Nazism

In the years immediately preceding the establishment of the Third Reich, the National Socialist Party started a nationwide campaign directed against the legal profession. The Nazi leadership realized that they could not gain absolute dictatorship by the seizure of the government alone, but that they must also completely subjugate German legal life. As an affiliate of the Nazi Party, a National Socialist German Jurists’ League (Bund Nationalsozialistischer Deutschen Juristen) known as the BNSDJ, was formed in 1928 by the late Hans Frank. In 1931, the members of this organization, then about 600 in number, or less than 1 percent of all German jurists, were instructed to report on the political attitude and behavior of judges and lawyers. The general attitude of the Nazi Party toward independent judges was reflected in the statement--

“One day, we will forget the independence of the judges which
has no significance in itself.”[62]

There were many other occasions when Hitler and his henchmen expressed their distaste for law and the legal profession.

Immediately after the Nazis came to power, they started to pervert German legal life and to develop it as a tool of the totalitarian machine. This was accomplished in part by measures which have already been described, such as the dismissal of judges, prosecutors, and Ministry officials considered politically unreliable, and by depriving judges of the guaranties of independence and immunity from removal from office.

But these measures were not confined to the governmental judicial organization. It extended into all branches of the legal profession. The first step was the subjugation, and later the complete elimination, of the old professional associations, such as the Deutscher Richterbund, the Republikanischer Richterbund, and the Deutscher Anwaltsverein. Their destruction was accomplished by the same sort of maneuvers that effected the dissolution of the pre-Nazi medical and other professional societies at about the same time.

In the early spring of 1933, the former officers were ousted under duress, and new officers, all of them members of the Nazi Party, were appointed according to the newly proclaimed leadership principle (Fuehrer-prinzip). This procedure also became known under the term “coordination” (Gleichschaltung). At the same time, the membership of well-known anti-Nazi or Jewish jurists was canceled in all these professional organizations. Many of them were threatened and forced to emigrate.

Shortly afterward, in May 1933, the old organizations were completely dissolved. All organizational and professional activity was centered in the National Socialist German Jurists’ League, which became one of the most important tools in the Nazi penal program.

Hans Frank reported to Hitler in May 1933 that all existing professional organizations and associations of lawyers had joined the BNSDJ.[63]

The cooperative entry of these organizations into the BNSDJ did not, however, imply individual membership of its members in the BNSDJ. This required an individual application. Actually by the end of 1934 there was hardly a lawyer left who had not joined the BNSDJ. Those very few who had the courage to stay out laid themselves open as opponents of the regime with the grave risks which this implied. One of the conditions of membership in the BNSDJ was membership in the Nazi Party, but non-Party members could be admitted as so-called “supporting members” (Foerdernde Mitglieder).