The second phase was the phase of consolidating and preparing the German economy for aggressive war. This phase is marked in the field of substantive law by the law of 1 December 1936 against economic sabotage, and the Decree of 17 August 1938 for a special criminal law in war time which prohibited, among other things, "the paralyzing" of the "defensive" power to bear arms not only of Germany but of a "nationallied" to her. In the field of procedural law, we did not introduce any similar counterpart, but the Decree of 14 April 1939. extending German jurisdiction into the Protectorate and denying jurisdiction to the Czechoslovakian courts is a forerunner of the policies carried out in the third and fourth phases.
The third phase is the phase of the preparing both substantive and procedural laws which are calculated to implement the war which IMT has Judicially found to have been aggressive and therefore, felonious. This phase in the substantive field with the Decree of 1 September 1939 concerning extraordinary measures with regard to radio; the bar Economy Decrees of b September 1939, the Decree of 3 September 1939 defining public enemies; the Decree of 3 December 1939 concerning violent criminals and the decree of 25 November 1939 providing additional penal provisions for the protection of the armed forces. In the procedural field, we have the procedural provisions of the Decree of 5 September 1939 against public enemies; the Decree of 15 September 1939 amending the Code of Criminal Procedure and introducing, among other things, that instrumentality of judicial criminality, the "extraordinary appeal"; and finally, the decree of 17 October 1939 granting to Himmler and his Empire, special jurisdiction over the activities of the SS and "police units for special purpose".The fourth period is the period of victory-flushed arrogance with its accompanying brutality towards all other races, including an openly declared policy for the extermination of Jews and gypsies, the enslavement of Poles, the killing of Russians and the terroristic oppression of Norwegians and the civilian populations of all the other overrun Western territories.
This phase begins in the field of substantive law with the Decree of 6 May 1940 extending German law in Poland; the law of 4 September 1941 further amending the criminal code and dealing with the subject of the habitual criminal) the 11th amendment to the German Citizenship law of 25 November 1941 depriving Jews abroad of citizenship and forfeiting their property) the notorious unlawful and criminal Decree against Poles and Jews of 4 December 1941; the Decree of 2 November 1942 which deprived Jews of citizenship in the Protectorate and provided for the forfeiture of their property; the not so notorious, but even more vicious 13th amendment to the German Citizenship Law, dated 1 July 1943, which removed all subterfuge and formally legalized Himmler's SS, Gestapo and police justice for Jews) and finally, the Decree of 10 November 1943 wherein the Nazis reached out for juveniles and made them for the first time subject to the death penalty. In the field of procedure, we find the Decree of 21 February 1940 extending the jurisdiction of the People's Court, the Special Courts and providing the second barrel to the weapon of judicial criminality, the nullity plea, to match the first barrel, the Extraordinary Appeal. We have also the procedural provisions of the Decree of 4 December 1941 against Poles and Jews) the Decree of 21 March 1942 simplifying the administration of justice so that extermination could move at a swifter pace; the decree of 15 July 1942 extending to the Czechs the benevolent jurisdiction of Himmler's SS and police courts; and the Decree of 13 August 1942 for further simplification of the criminal procedure in order that we can have a yet faster pace to extermination.
177 The fifth and final phase in the saga of Nazi domination typifies the conduct of all bullies and cowards.
This is the phase beginning after the break through at Carentan and the increasing victories of the Russians in the East. This phase is marked by whing and increased sadistic persecution of the German people because they had failed to provide enough bodies to successfully stoke the furnace of war for conquest, denying thereby to the Nazis the opportunity to match, with German blood, the blood of non-Germans consumed by the incinerators of Auschwitz, Dachau, Mauthausen and other Nazi extermination enterprises.
In the substantive field, we have here the Decree of 25 August 1944 for safeguarding total mobilization,178 and making negligence, which might adversely affect the war effort, a crime punishable by death. It is not without significance in this case that the defendant Herbert Klemm signed this decree.
In the procedural field, the final phase of this period of whining and sadism, is marked by the Decree of 15 February 1944 providing for civilian courts martial since even the speeded up Special Court procedure could not flog, with sufficient severity, the German people into sacrificing their blood uselessly in the Goetterdaemmerung of little men who had toyed with the idea of becoming twentieth century Wotans.
The defendant Klemm, and particularly the defendant Oeschey, distinguished themselves by the criminal executions they approved and performed with this judicial weapon.179 177.
This was one of the defendant Schlegelberger's last official acts.
178. Klemm, Exhibit 58, Book 7, page 16.
179. Pros. Ex. 499, NG 1395, the affidavit of Gen. Warlomont on the subject of German military disintegration after Stalingrad, corroborates our division into phases of the ebb and fall of the Nazi blood bath of Europe.
It is therefore the position of the Prosecution that it is established beyond a reasonable doubt that each of those defendants in this dock who was a prosecutor or judge of the People's Court, or a judge of a Special Court, or a judge of a Criminal Senate of the Court of Appeals, willingly sought or accepted, filled and held his position throughout his term, with full knowledge of the existence of a governmentally sponsored plan and enterprise, design, intent and purpose, to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals on racial, political and religious grounds, and with full knowledge of the existence of a governmentally sponsored plan and enterprise, design, intent and purpose to create, operate and administer a legal and judicial system intended to be used to support, carry out, aid and assist the aforesaid governmentally sponsored plan and enterprise, design, intent and purpose to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals on racial, political and religious grounds.
From these primary facts so established, the Prosecution further maintains that it is proven beyond a reasonable doubt, as the only logical and reasonable inference to be drawn from the established primary facts, that each of the defendants Lautz, Barnickle, Peterson, Nebelung, Rothaug, Oeschey and Cuhorst sought, accepted, filled and held his position, as prosecutor or judge respectively, with criminal intent to act in his official capacity as a principal or an accessory or to aid and abet, or to take a consenting part in, or to be connected with a governmentally sponsored plan or enterprise to murder, exterminate, enslave, imprison and persecute human beings, including German residents, civilians and nationals, on racial, political or religious grounds.
In order to establish the guilt of any of the foregoing defendants of a Crime against Humanity, it is only necessary to establish by the evidence beyond a reasonable doubt, one further ultimate fact; namely, that on one occasion, the defendant acted as a principal, or an accessory or aided or abetted a murder, an act of extermination, an enslavement an imprisonment or an act of persecution on racial, political or religious grounds or that the defendant, on one occasion, took a consenting part in or was connected with a plan or enterprise which resulted in a murder, an act of extermination, an enslavement, an imprisonment or an act of persecution on racial, political or religious grounds.
The issue to be determined in each case is whether the defendant involved acted judicially or whether under the guise of so acting, he used his power and authority as a prosecutor or judge to commit a murder, an act of extermination, imprisonment, or persecution on racial, political or religious grounds.
At the threshold of our discussion of this issue, we point out that the fact that a defendant had sought, accepted, filled and held a position of prosecutor or judge with knowledge of the Nazi purpose and Nazi legislation which we have previously reviewed, is of itself evidence that he acted with criminal intent while holding the position of prosecutor or judge.
We ask the court to further take into consideration evidence in this record of the following character, to wit:
Evidence which shows that one of the a forenamed defendants, given two or more statutes under which to indict or base a decision, chose that one which afforded or made mandatory the more severe penalty or asked for the application of or applied the severer penalty available in any one statute, which statute contained a range of penalties. If in such instances a defendant relies on the twin statutory devices of oppression, namely, "guilt by analogy" or punishment "according to the common sense of the people", or either of them, to justify his choice, we point out that the test of good faith of this defense is to be found in the rational or irrational thinking involved in applying the chosen statute to the facts presented at the time the choice was made.
Where the application of a statute to the fact is logically incomprehensible, this is evidence of strong probative value that the aforesaid devices were used for a criminal rather than a legal or judicial purpose. Extreme examples of this sort of thing are those cases where the evidence shows that even the devices of "guilt by analogy" is not sufficiently broad to justify the rationalization inherent in the judgment of the prosecutor or judge.180 180.
The Katzenberger case decided by Rothaug; the Schaps case, Pros. Ex. 631, NG 2286; where seven instances of Rassensohande involving not a scintilla of evidence of rape; resulted in the application of the dangerous criminal statute for the purpose of reaching a death penalty. This case was handled and approved by Joel while in the RJM.
We also contend that where the evidence shows that a trial was held in a non-judicious manner, even in a hippodrome style; that statements or confessions obtained by Gestapo or police opressive methods, known to the prosecutor or judge, were accepted and used in evidence against a defendant without any investigation on the part of the prosecutor or judge of the truthfulness of the statement or confession, or of their involuntary character; that cases were arbitrarily set for trial such a short time before trial as to seriously affect the ability of defense counsel to adequately prepare for trial; that the defendant, his counsel or his witnesses were brow beaten or coerced during the actual conduct of the trial; that there was a pre-trial conference and agreement between prosecutor and judge on the issues of guilt and the extent of the sentence; that there is such a disparity between the minor character of the offense and the severity of the penalty that it shocks the reason and the conscience, are each and all of them evidence of criminal intent.
Furthermore, if the evidence shows that one of the aforenamed defendants in the Dock has made a statement that his own action as a judge, or the purpose and function of the court on which he served was to exterminate asocial persons or groups in the community; if the evidence shows a long association with the Naxi Party and an acceptance of and belief in its purposes and aims, including specifically, those on the subject of race and territorial expansion; evidence of facts alleged in an indictment or statements or reasons given in a judgment from which it can be reasonably inferred that racial, political or religious grounds were used and considered as of evidentiary value in the indictment, or of evidentiary value in arriving at a decision in the case, all of these also are of probative value pointing to the guilt of the defendant.
The above review of the evidence is a comprehensive, but not all inclusive. Evidence of one or more of the facts above set out is present in all of the cases introduced into evidence by the Prosecution involving Crimes against Humanity, but additional evidence of probative value on the subject of guilt not included in the above review is also present in individual cases and will be called to the attention of the court when the cases of individual defendants are presented.
Finally, when the evidence discloses that the defendants in this case was a Jew, a gypsy, a Poly, a non-German, particularly a nonGerman from the East, or where the evidence discloses that the defendant was a German national who was a non-member of the Nazi Party; or a German national who was an alleged communist; or a German national who was rational enough to oppose the further hopeless prosecution of the war; or a German national who was critical of Hitler, the party, its local, Gau or national leaders; or a German national who was old and feeble or physically or mentally infirm; or a member of the Bible Believers; or a Protestant or Catholic who dared to oppose Hitler or the Party, or its local Gau or national leaders or their policies, and the evidence further discloses that one or more or all of the facts surrounding the trial of the case which we have here in above wet out in our comprehensive review were present, and that in that case there was a death sentence or an imprisonment rendered against the defendant than on trial, then, and in such case, the Prosecution in this case contends that the guilt of any of the aforenamed defendants of the commission of a Crime against Humanity is established beyond a reasonable doubt by the evidence in this record.
Heretofore we have discussed the substance of the crime defined in Control Council Law 10 and the sufficiency of the evidence to prove its commission. Where the same law established the jurisdiction to try the crime, it would seem that neither the court nor the prosecution should find it necessary to examine the question of the court's jurisdiction over the person and the subject matter. Likewise, where four powers join in enacting legislation, which any one of them could have enacted under the then prevailing status of international law 181and, also, 181 "The making of the Charter was the exercise of the sovereign legis lative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.
The Charter is not an arbitary exercise of power on the pert of the victorious nations, but in the view of the Tribunal, there is no constitutional international government against which to measure the constitutional validity of the criminal legislations so enacted, it would seem idle, if not improper, to question the propriety or validity of the legislation so enacted.
The Prosecution has stated its position on this issue in U. S. v. Flick.183 Here we desire only to quote from the argument there made and to supplement it by pointing out, in language other than that there used, the validity of the fundamental position there taken.
It is important to remember that the Nazi Government deliberately chose to commit suicide in an act of spite and revenge against the German people. As the Prosecution pointed out, in U.S.v. Flick, 183 the very Crimes against Humanity against German non-Nazi leaders and thinkers, which we punish here and which also preceded the Nazi governmental suicide, created the governmental vacumn which existed con-currently with the complete and final success of the Allied Powers arms and their occupation of the geographic area which had been governed for twelve previous years by the Nazi Government. Therefore the Declaration by the Allied Powers of 5 June 1945 accurately recited the factual situation when it stated:
"There is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers."
181 (Continued) 181 (Continued) as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
"The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations from the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court all that the defendants are entitled to ask is to receive a fair trial on the facts and law."
Mimoegraphed copy of IMT Decision, pp. 16871.
Countrol Council Law No. 10 originated from the same 4 Power action, Opening Statement (Tr. pp. 70-76) 182 U.S. v. Flick, Case V, Tribunal IV (Tr. pp.
98-118). 183 U.S. v. Flick, Case V, Tribunal IV (Tr. pp. 99).
It is factually true, therefore, that the organization of order and the creation of courts was not only authorized by international law, but required by the Nazi created and imposed situation that confronted the victorious Allied Powers.
The issue of retroactivity or expost facto applications goes not to the power to define the crime or to try the defendants. It is addressed solely to the question of whether the defendants did in fact commit a crime when they did the acts charged. It docs not justify the doing of the acts charged. Therefore, an issue of fact is presented not as an issue of law.
We quote from the opening statement in U.S.v. Flick:184 "To begin with, a great many of the acts covered by the definition were crimes at the time they were committed, under the law of Germany even of Nazi Germany, The Third Reich never legalized murder, torture, and other inhumane acts, although the government did openly instigate and support many such crimes."
He also point out on this issue that the fact that German Courts, construing Law 10, have found that the Crimes Against Humanity therein defined were crimes when committed is of strong probative value upon this factual issue, if not controlling.185 We conclude that this court is competent to try the defendants for Crimes against Humanity as defined by Control Council Law 10 and charged in the Indictment and that the crimes so defined and alleged are valid and binding upon this Tribunal.
184-U.S. v. Flick, Case V, Tribunal IV (Tr. pp. 107-108).
185-The German District Court of Constance, on 20 Feb. 1947, tried and sentenced one Tillesen to 15 years, under law 10, for murdering Matthias Ersberger, in 1922. Deutsche Rechts Zeitung 1947, p. 267. The Court in the above case cited and followed the ruling of the highest French Court in Germany, the Supreme Military Court at Rastatt, made on 6 Jan. 1947, that under Law 10 crimes committed by Germans against Germans, even before 1933 may be Crimes against Humanity.
See also ruling under Law 10 by German Court at Aurich, in British Zone, sentencing a German to six years penal servitude for brutal assult against Jewish population of Leer during the 1938 pogroms.
In discussing Crimes against Humanity, we stated earlier that we would treat the crimes in two categories - those arising subsequent to 1 September 1939 as charged in Count III of the Indictment, and those occuring prior to 1 September 1939 which are charged in Count I of the Indictment. We do not predicate this division into categories on any other reasons than those found in the indictment itself.186 It is our position that Count III alleges the factual evidence of substantive crimes which are Crimes against Humanity under Law 10.
Count I of the Indictment, particularly Par. 2 thereof, sufficiently alleges the crime when read in connection with Pars.
4, 5, 6 and 7 in Count I of time Indictment. We construe the Courts ruling denying the existence of a substantive crime of conspiracy as a ruling which left intact all allegations in Count I sufficient in law to allege the commission of the substance of the Crime against Humanity. This being true, when we refer to Pars. 2, 4, 5, 6, and 7 of Count I, we refer only to those provisions which allege the commission of a Crime against Humanity and the guilty relationship of the defendants to the crime which are found in Par. 2 of Article II of Law 10 and which the court has left intact.
It is further our position that the date of September 1, 1939 charged in Count III of the Indictment is only a limitation upon the period of time within which proof of Crimes against Humanity may be made. It is not a limitation upon the substance of the crime as indeed 186- Since we don't find the words "in connection with any crime within the jurisdiction of the Tribunal", which were in the Charter contained in the definition of Crimes against Humanity, set out in law 10, it follows that the construction placed upon those words by IMT is no longer controlling.
First, there need be no connection with any other crime, particularly Crimes Against Peace, but also since this language is no longer contained in Law 10, the date of September 1, 1939 is of no legal significance.
Factually, the evidence shows that Crimes against Humanity in this case were connected with the prosecution of an aggressive war, but this fact is not urged as proof of an essential element of the crime, but is presented as evidence of strong probative value on an intent to commit the crime.
The Prosecution's position is that the substantive crime defined in Law 10 is subject to no limitation.
it could not be. Law 10 defines the crime and fixes its substance. It follows that in pleading a crime under Law 10 in Count III, the Prosecution does not limit the substance of the crimes alleged therein by alleging the date of 1 September 1939, but merely places a self-imposed time limitation upon the facts which it can present under Count III of the indictment.
From the foregoing reasoning, it follows that when Count I alleges that the defendants, subsequent to January 1933 committed Crimes against Humanity as charged in Count III, they fully and sufficiently advised the defendants of the substance of the crimes with which they were charged. The effect of Count I is to put the defendants on notice that if they did acts which constitute Crimes against Humanity, as those crimes are alleged in Count III; between January 1933 and September 1, 1939; they are charged with committing Crimes against Humanity which are defined in Law 10 as specifically charged in Count III.
CRIMES AGAINST HUMANITY - Schlegelberger As we pointed out in discussing the law controlling Crimes against Humanity, the plan and enterprise in this case is governmentally sponsored and under the evidence here, national in scope.
It is to murder, exterminate, enslave, imprison and persecute individuals on racial, political and religious grounds only. This means, as the evidence proves, that the plan and purpose of the Nazi State was to exterminate Jews, members of other European races which were inferior to Germanic stock according to the Nazis, and those who were opposed to Nazi purposes, including those opposed to the prosecution of aggressive war.
In this context, we find that the defendant Schlegelberger testified: "The Jewish problem was the central problem of the Nationalist Socialist State and the entire life of Germany was to be placed in line with that." (Tr.4409). He also testified that he personally had no anti-Jewish feeling, He stated correctly the laws of living in which decent people believed, namely, that all men are created by the same God, and that it is wrong for any race of people to set themselves above any other as a race. (Tr.4408-9) This is the same Dr. Schlegelberger who on the 29 October 1941 reported to his Fuehrer that he had turned the Jew, Marcus Luftgas, who had been convicted and sentenced for a term of two years, over to the Gestapo for execution.
187 This is the same Dr. Schlegelberger who cooperated with the Ministry of the Interior, the Reich Chancellory, the Ministry of Churches and the Foreign Office on proposing to go beyond the express provisions of the Nurnberg laws to prevent children of Jews, mixed Jews or unrelated blood from obtaining citizenship.
188 This is the same Dr. Schlegelberger who, with knowledge obtained in November 1941 that of the 20,000 Jews then in Berlin, 7,000 had been deported and that all of the Jewish lawyers had received deportation 187 - Pros.
Exh. 88, NG-287, I c l.
188 - Pros.Exh. 460, NG-891, V sup. 27.
orders,189proposed to Dr. Lammers at the Reich Chancellory that half Jews be sterilized as an alternative to going to the East.
This is the same Dr. Schlegelberger who on April 3, 1941 removed three judges who passed too light a sentence on a Pole for alleged rape of a German woman at Hitler's request.
The defendant Schlegelberger also testified that he was never fooled by Hitler (Tr. 4380),and that in 1939 he came to the conclusion that Hitler was a dictator (Tr. 4534).
But this is also the same Schlegelberger who on March 10, 1941 promised Hitler that he would correct sentences which were too light.
This is the same Dr. Schlegelberger who ordered, on three separate occasions, beginning in 1938, investigations into the record of three notaries who were not "politically right." 190 This is the same Dr. Schlegelberger who, on 24 July 1941, urged severe sentences against Poles and noted that "in five cases out of 9" where there were lenient sentences, the prisoners had been "shot while escaping arrest."
As this Tribunal knows, this record is replete with similar testimony. Dr. Schlegelberger knew that the national program, plan and central motivating force of the Nazi state was morally wrong and illegal under the laws of all civilized nations.
Dr. Schlegelberger Knew as early as 1939 that Hitler was opposed to any state in which order and development under law would be an accepted premise and that Hitler's regime was a dictatorship. But in the fact of all of this, he continued to act until he left his office; to support the racial policies and the dictatorial policies of the Hitler regime.
Furthermore, this record evidences the fact that Schlegelberger knew of the nationalistic program, and the program for expansion through aggressive war if necessary at the expense of every neighboring state which had any territory which the Reich coveted, and coveting, was de 189 - Pros.
Exh. 527, NG-839, p. 3 of exhibit.
190 - Pros.Exh. 436, NG-901, I Sup. 38 termined to take by force.
191In fact, there is not a word of his own testimony in which he repudiates the foreign policy of the Reich under Hitler. At most, he professes to be concerned about internal policy.
We should also measure properly his concern about internal policy. Time and again he expressed the thought that he objected to actions by Himmler, or Bormann or Goebberls, not because it was basically wrong, but because it intruded upon the authority of the Reich Ministry of Justice. He was more jealous of the prerogative of the Ministry of Justice, which under normal conditions is a commendable thing, than he was with opposing or taking any action against the advancement of Hitler's racial policy, the tightening of the grip of dictatorship, or the overrunning of neighboring countries. With the exception of the legislation set out in Groups 4 and 5 above in our discussion of the law of Crimes against Humanity, all of the legislation which was clearly designed to enable Hitler and those in authority in Germany to use the courts and the normal legal processes as a weapon for their racial policy and policy of domestic dictatorship, and their foreign policy of enslaving neighboring nations, was passed while he was Under-Secretary or acting Minister.
"We must conclude, therefore, that in addition to the specific crime against humanity which he committed in the Luftgas case, that he took a consenting part in and was connected with the government-sponsored plan to murder, exterminate, imprison, enslave and persecute individuals on racial, political and religious grounds which he professed to despise and which in his inner conscience he knew was wrong.
There was a duty imposed upon Schlegelberger to produce some evidence before this Court of real probative value that he was obliged to take the steps he took if he expects to present evidence mitigating his offenses. We do not believe under all of the evidence in this case that 191 -His speech at Rostock, Ex. 27, 075, Ib 1, approves the taking overof the Saar, and the Nurnberg Laws, among other things, and Pros.
Exh. 339, NG-420, VA 27, shows that he was fully supporting the taking by force of the Sudentenland and Exh.
522, NG-1513; Cross-exam,shows that he was apprised of the mobilization for war and was preparing a simplification. of legal procedures to go hand in hand with the aggresive war effort.
the Court can say that the evidence which he produced raises a reasonable doubt in the Court's mind. His defense substantially falls into two categories which are recognized the world over. One of them is the "this is a good boy who fell into bad company" defense, and the other amounts to this. If he had not worked out methods by which only five people could be killed, Hitler, Himmler, Bormann and Coebbels would have killed twenty-five.
The Prosecution believes that Schlegelberger had a conscience. It also believes that that conscience must still bother him because taking human life as so serious that a man can hardly be found to take a consenting part in and be connected with a plan, to kill 20% as many people as some other group proposes to kill, and believe that he is guiltless in the eyes of humanity and under the laws which human beings assembled in civilized society, enact for their protection and their moral advancement.
There is also one other story in the Schlegelberger myth that should be exploded, and that is that "after Hitler's April 26th speech, even I could not take it any longer and resigned in protest under the excesses which I was asked to participate in."
We wish to call to the court's attention two exhibits on this issue which will lay this myth to rest permanently. One is the famous Ex 75, 192(Pros Exhibit 75) which is the series of letters beginning on May 6th, running through to May 12, 1942, which Schlegelberger wrote to Lammers for transmission to Hitler. In the letter of May 6, with apparent dignity, the defendant addressed Dr. Lammers ad "Dear Sir' and stated that he had certain measures which he proposed to transmit to the Fuehrer for rejecting sentences which were not severe enough. He attemtps to retain his dignity, but even in this letter, the closing paragraph reads as follows:
"In view of the general situation, I would be particularly thankful to you for accelerating the matter.
"Heil Hitler!
"Yours respectfully "Dr. SCHLEGELBERGER."
192 - NG-102, Bk I C 43.
Prosecution Exhibit 525, NG-670, introduced in the cross-examination of Dr. Schlegelberger shows that on the 29th of May, Schlegelberger wrote to Goering saying:
"I am deeply indebted to you for your letter of the 8th instant. I will continue to keep for a year under lock and key the files of the deceased attorney at--law von Birckhahn in connection with the criminal proceedings and various civil law suits against Pieper and then have them destroyed after the removal of any deeds of execution and documents which may be among them.
"Assuring you of my special devotion "Heil Hitler!"Yours respectfully "Dr. Schlegelberger" This exhibit, the court will recall, contained a copy of a proposed indictment and papers involving Goering's brother with embezzlement from the Nazi Winter Relief Funds in 1934 and 1935.
Then returning to Exhibit 75, we find the Schlegelberger letter of May 12, 1942. This is addressed to Dr. Lammers, and in this, Schlegelberger refers to a visit to Goering at Karinhall, and to the support of Goering for Schlegelberger's plan of meeting Hitler's requirements for severe sentences. The letter closes with this paragraph:
"I would be specially grateful to you, dear Reich Minister Dr. Lammers, if you would present the matter to the Fuehrer main. I have the hope therewith that if the Fuehrer rejects the present handling of criminal justice and on the strength of your argument knows that the confirmatory proceeding is the only and safe remedy, he will not withhold this remedy from the Reich Minister of Justice.
"With best wishes and "Heil Hitler!"Yours very sincerely "Dr. Schlegelberger" We have here a man seeking Goering's support, paying a price for it by agreeing to hide evidence of unsavory transactions of Goering's own brother, and then asking "Dear Dr. Lammers" to see the Fuehrer again.
This is hardly the conduct of a man who is so disgusted by a speech made on the 26th of April 1942 that he no longer cared to have anything to do with the Administration of Justice in Germany. The truth of the matter is that Schlegelberger did not resign in disgust; Schlegelberger did all that he could to keep office. He paid for the support of Goering and he begged for the support of Lammers.
The Prosecution also claims that the defendant Schlegelberger is guilty of the Crime against Humanity, consisting of the persecution of Jews by his conduct with reference to the aryanization of Jewish properties in Nurnberg during the Program of 1938. Evidence submitted during the cross-examination of the witness Joel clearly establishes that more than 98% of the properties taken never were returned to their Jewish owner. It is true, only, that Gauleiter Holz was required to disgorge his personal gain and give it to the Gesstapo. During the height of this activity, the witness Doebig, who was then Oberlandesgericht president at Nurnberg went to Berlin and saw Schlegelberger, who was the Under-Secretary in charge of all civil matters and requested that the Ministry of Justice take action to stop this proceeding. Doebig pointed out that the officials taking acknowledgment of transfers of land knew that the transferors were being coerced. Schlegelberger defends this by saying that there was nothing he could do, that he could not issue a ministerial order and that new legislation was out of the question.
We ask the court to measure this defense in the light of Schlegelberger's removal of three judges who gave too light a sentence against a Pole and in investigating and obtaining the removal of three notary publics who politically were not acceptable to the Nazis.
The evidence discloses that Schlegelberger had the power to act. He didn't act. Certainly, having the power and the duty to act he must be held to have taken a consenting part in this program. It is equally certain that the depriving of people of their property because of their race, is evidence of a persecution on the ground of race.
The record in this case reveals a weak man who knew better, but he committed crimes knowingly, willingly and without coercion. As a matter of fact the Court also knows that Schlegelberger received RM 100,000 when he left and that in late 1944 Hitler agreed to make him a special dispensation and permitted him to buy a farm, even though food conditions in the Reich were such that under the regulations then prevailing, only export agriculturists were supposed to own land.