Chapter 21

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 atonce 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 awitnessin 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.”

*******

“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 awitnessin 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 indecentassault 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]

“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 theNuernberg 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 competencyof 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.”

“(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 otheracts 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]

“(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 wellas 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 whichthe 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, knownas 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 NaziParty, 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).

The constitution of the BNSDJ dates from 4 May 1933. It declares as its program the realization of the National Socialist program in the legal field. According to Hitler’s order of 30 May 1933, the BNSDJ was the sole representative of the German Law Front and the exclusive professional organization of all lawyers. The seat of the BNSDJ was Munich, its leader Hans Frank, and its executive secretary Dr. Wilhelm Heuber. Regionally, it was divided into 26 regions (Gaue). Leader of the Gaue “Hanseatic Cities” was the defendant Rothenberger. At the end of 1934, the Nazi organization of jurists had approximately 80,000 individual members and its executive secretary could boast that it was the biggest lawyers’ organization in the world. In 1936, the name was changed to “Nationalsozialistischer Rechtswahrerbund” (NSRB). Through the disciplinary boards of this organization, the legal chieftains of the Nazis held the lawyers under close political surveillance.

c. Under the Third Reich

Within a short time after the advent of the Nazis, the editorship of all legal journals was taken over by newly appointed Nazieditors, such as Hans Frank and his accomplices of the BNSDJ. A number of the scientific legal journals whose editors were known as anti-Nazis, such as “Die Justiz,” were suppressed. The new editors perverted the legal journals by turning them into mere propaganda instruments of the Nazi government. In these journals, the jurists were informed that they were to be nothing but the legal soldiers of the Fuehrer. The legal journals were flooded with such material. The Deutsche Justiz, the mouthpiece of the Ministry of Justice, frequently printed directives of which the following by the late Under Secretary Freisler is typical:

“But we will march as an army corps of the Fuehrer, and as such, no one shall outdo us in the willingness to self-sacrifice! We are alone responsible to the Fuehrer and that is our wish.”[64]

While, on the one hand, the legal thinking of the older generation of jurists was perverted, on the other hand the future Nazi jurists received a thorough indoctrination at the law schools of the universities where they were instructed by Nazi lawyers or by opportunists who had sold their legal reputation for promotion within the Nazi hierarchy. Respected professors, who were suspected of so-called “Roman-Jewish individualistic” legal ideas were discharged, and references to such ideas were eliminated from the textbooks. The standard of legal education was considerably lowered. The students had to spend a considerable part of the time which was once devoted to the study of law, on compulsory labor and military service and exercises in the student cadres of the SA Storm Troopers and the SS Elite Guards. During the period of their law clerkship, Nazi indoctrination and exercises in military formation were substituted for the once thorough legal training. Eventually, no young lawyer was admitted to the bar whom the examination board did not consider a reliable legal soldier of the Nazi Fuehrer. In analyzing the new Nazi examination decree for lawyers, Freisler stated:

“The experience of the candidate within the (Nazi) movement and its evaluation (by the Nazi movement) is fundamental in any evaluation of the candidate’s qualifications. If such experience does not exist, he will be disqualified.”[65]

In the early stages of this prostitution of German legal education, the Prussian Ministry of Justice took a leading part. The Prussian Minister of Justice was a Nazi zealot named Hanns Kerrl, a budget clerk without legal education who attained this high position under the Nazis, and who became the Reich Minister for Churches after the Prussian Ministry of Justice was absorbed by the Reich government. In April 1933 Kerrl issued a decree concerning the selection of candidates for positions as judges,public prosecutors, and attorneys in the State of Prussia, which provided in part that—

“The applicant for appointment as a junior judge (assessor), admission as attorney, or appointment as notary public will in future have to prove in a special hearing that his consciousness of being a member of the national community, his social understanding, and his understanding of the entire race development of the German people in the present and future constitute the basis of his personality. * * * for this purpose applicants will have to undergo a special post-examination which has the aim to convey an impression of his being rooted in the national community (Volksverbundenheit).“The result of this post-examination will be evaluated in my decision about the appointment or qualifications of the candidate equally with the other statutory requirements.”[66]

“The result of this post-examination will be evaluated in my decision about the appointment or qualifications of the candidate equally with the other statutory requirements.”[66]

Two months later, Kerrl issued another decree which required that all candidates for the final State legal examination had to attend a special “Community Camp” for 6 weeks before they would be admitted to the final examination. This Prussian decree provided, in part, as follows:

“The National Socialist State must know above all that the man whom the State, as a sovereign, intends to entrust with the execution of the most important tasks of judge or prosecutor, must have character and be a typical German.“One cannot get an idea of this from an examination as it has been conducted up to now, * * *.“I therefore decree that:“1. In the course of the final legal State examination, each candidate, during the period following the written and preceding the oral examination, that is for about 6 weeks, is to live together with other candidates under the direction of civil servants of the Prussian Administration of Justice, appointed by me * * *.”[67]

“One cannot get an idea of this from an examination as it has been conducted up to now, * * *.

“I therefore decree that:

“1. In the course of the final legal State examination, each candidate, during the period following the written and preceding the oral examination, that is for about 6 weeks, is to live together with other candidates under the direction of civil servants of the Prussian Administration of Justice, appointed by me * * *.”[67]

This preposterous institution for the perversion of young lawyers was established, and given the name “Gemeinschaftslager Hanns Kerrl,” after its creator. It was located at Jueterbog, near Berlin. An illustrated pamphlet describing the activities in this lawyers’ madhouse will be introduced in evidence. According to the basic statute of the camp, the inmates were to become familiar with the leadership principle and would “experience the ideas of the Fuehrer.” The commandant of the camp was a lawyer named Spieler, who had become favorably known to the Nazis through his activities as defense counsel in their behalf. He was an oldParty member and a colonel in the Storm Troopers (SA). He was assisted in supervision of the young lawyers by a motley group of storm troopers and army officers. The extracts from this pamphlet will bear quotation:

“A further training and examination of the candidate is accomplished through ideological indoctrination. The camp directors are aware, of course, that national socialism can neither be learned nor taught. National socialism must completely determine an individual’s attitude; when this is not the case, the individual can never become a real National Socialist. There are many people, however, who in their social relations or in their way of living have not become acquainted with national socialism or were even opposed to it, yet in these people there exists an unconscious National Socialist sentiment which only needs stimulation to develop. The appropriate method for this is the ideological indoctrination. The latter is therefore particularly used in the camp, not only for this purpose but also for training purposes, to strengthen and develop the National Socialist ideology.*******“The day of Horst Wessel’s death was also a remarkable day. This day was commemorated in a particular manner. At 4 o’clock a trumpeter blew reveille. At 4:07 all the camp inmates were already assembled in the courtyard. A brief order, ‘column right, forward march.’ Then the various platoons of the school took different routes across the drilling field and marched on into the country.”

*******

“The day of Horst Wessel’s death was also a remarkable day. This day was commemorated in a particular manner. At 4 o’clock a trumpeter blew reveille. At 4:07 all the camp inmates were already assembled in the courtyard. A brief order, ‘column right, forward march.’ Then the various platoons of the school took different routes across the drilling field and marched on into the country.”

After the dissolution of the Prussian Ministry of Justice in 1934, the Gemeinschaftslager Hanns Kerrl was brought under the supervision of the Reich Ministry of Justice. The illustrated pamphlet to which I have just referred contains photographs of Reich Minister Guertner, Under Secretary Freisler, and others visiting the camp. The photographs also show a gallows from which was suspended a symbol of German statutory law, the sign for the paragraphing of legal codes. Guertner and Kerrl are both photographed standing under the gallows. It would be hard to conceive a more appropriate symbol for the degradation of the legal profession under the Third Reich.

COUNT FOUR

MEMBERSHIP IN CRIMINAL ORGANIZATIONS

General Taylor: The fourth and final count in the indictment contains the charge that seven of the defendants are guilty ofmembership in organizations declared to be criminal in the judgment of the International Military Tribunal. Four of the defendants, Altstoetter, Cuhorst, Engert, and Joel are accused of membership in the SS. The defendant Joel is also accused of membership in the Sicherheitsdienst (commonly known as the SD). The defendant Cuhorst is also accused, together with three others, Oeschey, Nebelung, and Rothaug, of membership in the Leadership Corps of the Nazi Party. All three of these organizations were declared criminal in the judgment of the International Military Tribunal.

The legal basis of the charges in count four is quite distinct from that of the first three counts in the indictment. The charge derives from article 9 of the Charter of the International Military Tribunal, which authorized that Tribunal, under specified circumstances, to declare that certain “groups” or “organizations” were “criminal organizations.” The prosecution before the International Military Tribunal sought such declarations in the case of each of the three organizations involved in count four of this indictment, and the International Military Tribunal rendered such declarations. In the meantime, it had been provided in article II of Control Council Law No. 10 that “membership in categories of a criminal group or organization declared criminal by the International Military Tribunal” should be “recognized as a crime.” Paragraph 3 of article II of Control Council Law No. 10 specifies the punishments which may be imposed for membership in such organizations.

In its decision, the International Military Tribunal set forth certain limitations upon the scope of its declaration that these organizations were criminal.[68]Under these limitations, in order to render membership criminal, two things, in addition to membership, must be shown—

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