In paragraphs 13 and 25 of the indictment which deal with NN matters exclusively, the Reich Ministry of Justice is accused to have participated in carrying out of the Nacht and Nabel Decree. The persons who are considered particularly responsible are consequently without exception employees of the Ministry: but Lautz is not mentioned. When the prosecution in its Opening Statement of March 3, 1947 took position to the NN action, it enumerated the defendants who "participated in and were principally responsible for the important part which the Reich Ministry of Justice played in the Nacht and Nabel Action."
Here, during the oral proceedings, the Prosecution mentioned defendant Lautz for the first time along with the employees of the Ministry, although this accusation still was directed only against the Reich Ministry of Justice. I should like to point out that something similar happened an Case I, i.e. the Doctors' Trial where defendant Rose was not accused in the indictment but only later, in the course of the oral proceedings to have participated in the Malaria experiments. Tribunal I, however, stated in its verdict that it would consider it an outspoken injustice toward the defendant if it would find him guilty of a crime of which he was not accused, as it clearly follows from the indictment. I leave it to the decision of the Tribunal whether or not this principle is to be applied also in the case of Lautz in regard to the accusation that he participated in the NN Action to a special extent.
But I am convinced too, that Lautz cannot be considered responsible quite aside from these formal grounds. The Circular Decree of the Reich Minister of Justice of 2 June 1942, Prosecution Exhibit 308 (NG 232, CI, 18) proves that when the civilian judiciary administration adopted the NN procedure, the jurisdiction in these matters was trans ferred by the Reich Minister of Justice to the following four Special Courts:
Cologne; Dortmund; Kiel and Berlin. Tho People's Court and consequently also the Reich Prosecution at tho People's Court did not participate at that time. Therefore, neither the various documents of the prosecution - which relate to the participation of the general judiciary in the NN procedures -- nor the testimonies of the witnesses which were made in connection with this matter - as e.g. Dr. Lehmann's give an indication that Lautz had anything to do with the participation of the judiciary administration or with the compiling of decrees, directions etc.
Defendant Lautz stated as a witness on 25 June 1947 (Tr. 5923) that the existence of the NN procedure was not known to him until October 1942; when he was officially acquainted with it for the first time. Not until 14 October 1942, did the Reich Minister of Justice order the transfer of a relatively small part of NN cases approximately 9% of all NN cases - to the People's Court, viz. those cases which to begin with fell under the jurisdiction of the people's Court, e.g espionage giving aid and comfort to the enemy etc. This follows from Prosecution Exhibit 313 (NC -226 VI 51). This action was based upon a decision of Thierack, as stated in the remark of Ammon of 26 September 1942 in Exhibit 312 (NG- 228-VI 47). Here too there is no proof that Lautz had participated in making this decision. On the contrary, Lautz stated at his hearing on 25 July 1947 (Tr. 5923/24) that Thierack's decree of 14 October 1942; confronted him with a completed fact, without even having been consulted. Neither did he participate in any later decrees of the Ministry of Justice, His task was limited to the office of the Prosecutor and as such did not differ from the activities of the other prosecutors who had to make indictments in NN cases before the Special Courts.
The People's Court and consequently the Reich Prosecution participated in NN procedures by order of the Minister of Justice only at a time where majority of NN Prisoners already had been brough to Germany and when the basic decrees of the Reich Minister of Justice already had been practiced for several months.
The Prosecution accuses the Criminal Courts which dealt with NN cases and apparently also accuses the prosecutors at these Courts consequently Lautz too, of conducting these trials in spite of the fact that the defendants had no opportunity to obtain a proper defense, because they had been brought to the Reich and because of their strict isolation from the outside. In addition to th at it apparently wants to establish that Public Prosecutors and Judges approved of the NN program by consent and that they continued the proceedings, even after they gained knowledge of the more stringent measures by Thierack, for example the release of exonerated persons to the Gestapo?
The first reproach would be justified, if the special circumstances which prevailed when the NN decrees had to be executed by the courts had led to materially incorrect and thus unjust sentences. Particularly in this point the prosecution has not produced proof. Even its own witness Roemer has confined the contrary without any doubt. He has examined a large number of sentences of the People's Court in NN matters and this was done in a very critical way. (Tr. 2654). In spite of this he reached the conviction, that the sentenced persons had committed that which had been set down in the sentence as incriminating them. (Tr. 2669) This conviction was strengthened by the fact that in the last letters of the persons sentenced to death he always read, that they did not feel innocent at all (Tr. 2669/70) Roemer considered individual verdicts extremely stringent, but he added, that according to his information they corresponded to the valid Law of Warfare, that all circumstances which were in favor or not in favor of the defendant had been considered and that in none of the trials the defendants were left without consel (Germ. Tr. 2639, 2641, 2652/53).
This statement of the witness Roemer, who is beyond suspicion, is completely in line with the assertions of the defendant Lautz (Tr. 5926, 5929) who had stated, that the Reich Prosecuting Authorities and the People's Court had treated just the NN-proceedings with particular care, that not infrequently additional evidence had been collected in the occupied territories and that no defendant ever had been left without a counsel (Tr. 5926/27, 5828). One can hardly assail the administration of justice as such in view of the fact that the defendant Lautz had declared in addition that he only had brought serious cases before the People's Court, the prosecution of which was said to be in compliance with the usages of war, that he had in no way insisted on a rigorous treatment, that furthermore his report of 15 May 1944 Exhibit 469 - did not advocate such treatment.
However, it is quite true that the prosecuting authorities charged with NN matters consequently also the defendant Lautz - had been informed of a number of measures handed down by the Ministry of Justice which are considered by the prosecuting authorities to be of a criminal nature. Here I have in mind Pros. Exh. 315,317,322 and 328. However, it has not been proved so far that the defendant Lautz had participated in the execution of these measures. This applies particularly to isolating the inmates from the outside world and to placing them under the control of the Gestapo, Lautz had stated in this respect that the execution of these measures had been assured by the Ministry of Justice issuing corresponding orders directly to the penal institutions (Tr. 5924, 5931).
This is also confirmed by the witness Hacker (Tr. 4835). To be sure, the prosecution maintains that it is clearly evident in the case of Law - Exh. 309 - that "Lautz's office" had requested the prison officials to carry out measures of isolating prisoners. It is to be said in this respect, however, that the order on page 18 of the document had not been addressed to a prison but to the police and that it concerned the transport of defendants to Berlin for the trial and that it was made to make certain "that under any circumstances the defendants could be prevented from communicating by letter or otherwise with the outside world during the transport."
These were precautionany measures also customary in other cases. However, I shall not omit to point out that it can be seen from the document that the entire case had been handled by the Reich Public Prosecutor Parrisius and his assistant, the Chief Public Prosecutor Volk, while substituting for the defendant Lautz, th at is, because the latter was absent. Measures applied in that case can therefore not be charged automatically to Lautz.
Furthermore, Lautz had in no way adopted a more passive attitude concerning the special measures an regard to NN-prisoners, for which measures he was not responsible. This can be seen from the following: Dr. Lehmann, who had been called as a witness in this matter, had stated in his affidavit - my Exh. 221 (L-124, IV A 23) - that Lautz had summed up his opinion of Thierack as follows: "This man has no heart at all, he is just a solid chunk of ice, any human sentiments rebound from him as from an armour." Any attempt to influence such a man for the purpose of mitigating the fate of the NN-prisoners would have been to no avail. Lautz had just as little opportunity to do something for the NN-prisoners even if he had requested the institutions of the administration of justice to relax the isolating measures; for he had no competence to issue orders to them. Therefore, he applied to the Wehrmacht, as this procedure held the only promise of success. As Lautz had stated in his examination on 25 July 1947 (Tr. 5924), he had on several occasions visited the witness Dr. Lehmann, who had hold the position of a Ministerial Director in the OKW, and also Dr. Sack, tho Chief of Military Jurisdiction who, as it is known, had been on friendly terms with Lautz and who had seen arrested by the Gestapo for having participated in the conspiracy of 20 July 1944 against Hitler and who subsequently was shot in Flossenbuerg. He shewed them letters written by NN-prisonors and asked them several times to make an appeal to Hitler via the Wehrmacht for the purpose of bringing about a less stringent application of isolating measures in regard to NN-prisoners.
In addition, Lautz did the following: When it had become evident that in some cases the indictments had not been translated for the NN-prisoners in time, he again took the initiative in favor of the NNpeople and he proposed to the Reich Minister of Justice that in future the NN-prisoners should be provided with a copy of the indictment, written in their native tongue. The foregoing can be seen from Exh. 323(NG-281, VI 94). Lautz had no official responsibility in this respect insofar as it was the court's concern and not his to serve the indictments, as may be seen in para. 201 of the Code of Criminal Procedure - my Exh. 57 (L-219; II A 44). The motive for this step is to be looked for in his humane attitude and in his intention not to render the defense of the NN-people more difficult.
And yet a third point; Hitler did not permit the execution of death sentences in the case of women from the occupied Western territories; however, a final decision concerning a possible act of pardon should be made only after the war had come to an end, Hitler, however, also had decreed that it was not permitted to inform the women concerning the postponement of the death sentence; therefore they had to reckon that the execution might take place at any time. It was impossible for Lautz to put up with this inhuman decree of Hitler. As can be seen from Exh. 325 (NG-247, VI 105) and from the examination of Lautz on 25 July 1947 (Tr. 5935/36) and from Ammon's examination of 4 August 1947 (Tr. 6195) it was Lautz who had pointed out the severity of Hitler's decree to the Reich Justice Ministry and who had proposed that the truth should be told to those women concerning their fate.
I believe, these few examples clearly illustrate Lautz's reactions to the "NN-Aktion". A man who - without considering questions of competency - revolts against the rigours inherent in NN-proceedings, cannot have taken part in a decisive way in this action nor could he have approved it.
When, on orders of the Minister of Justice, he had to take over the prosecution of a small number of the NN-cases, he found himself face to face with the following situation:
The Military Court operating in the occupied territories had transferred their jurisdiction in these cases to the Civil Courts, to which they were entitled in accordance with para. 3 of the decree concerning military jurisdiction during war. The prisoners had been brought into the Reich without Lautz having had a hand in it and the People's Court was competent for the cases transferred to it with regard to the locality and the matter involved. Lautz, therefore, could not very well doubt his duty of instituting proceedings in the presence of a well-founded suspicion.
He was not permitted to take exception to the fact that these offenses were made the subject of a penal action by the counts insice of Germany. For regulations for such a possibility had been explicitely provided in the German Military Penal Code and it was justified in doing so far by the Convention the Rules for Land Warfare in no way limited the right of the occupying power to proceedings within the occupation zone. Lautz also said so in his testimony (Tr. 6042/43). He had also put stress on the fact that it could be seen from the prisoner's petitions to the Reich Public Prosecutor and to the Senates of the People's Court that the prisoners also did not consider it unfair to be sentenced by a court within the Reich, but that they complained above all about restricting their mail with their home lands. That the Minister of Justice introduced measures quite independent from the criminal procedure which he justified by reason of requirements of military necessity did not give the defendant Lautz the right to refuse penal prosecution, even less so in view of the fact that this matter had been going on for months before he had to to take part in it for the first time.
When the "NN-Aktion" came to a conclusion in September 1944 as far as the administration of justice was concerned - a matter discussed in Hecker's affidavit - Exhibit 416 (NG-737, VI 156) - the time of the defendant Lautz was occupied to such a degree as a result of the events of 20 July 1944 that he was obliged to lot Parrisius, the Reich Public Prosecutor, take care of his remaining official duties.
He, therefore, had not been active at all in connection with the conclusion of this "Aktion", but he had also not heard at a later time that any transfers to the Gestapo had taken place from among the few NNproceedings still pending at the Reich Public Prosecutor's office.
Thus, Lautz described this phase of the NE-proceedings as witness and his statements were not refuted; (Tr. 5933) his testimony is supported by the statements of defendant v. Ammon. He confirmed that, with reference to the NW-cases of the Reich Public Prosecutor in the fall of 1944, he had negotiated exclusively with Reich Public Prosecutor Parrisius and not with Lautz.
"The criminal proceedings I have just described concerned very definite criminal actions, that is to say, the acts of resistance expressed in many ways, which occurred in the territories incorporated into or occupied by the Reich. These acts consisted of espionage, sabotage, and the preparation of armed rebellion which was to be carried across the borders of the old Reich in the case of its success. This is the reason why the governmental report of the Czech republic, submitted by the Prosecution as Exhibit 378, does not at all deny that there was agitation against the Reich within the territory of Bohemia and Moravia. The report only criticizes the reaction which followed these occurrences and maintains that the administration of justice was carried too far in punishing insignificant crimes with exemplary severity. The Prosecution adopted this point of view, and has minimized the case Charvat et al. in Exhibit 509 to the extent of stating that they were people without previous convictions who had spread leaflets which only protested against the occupation. However, the Prosecution overlooked that the defendants were Communists, that they had built up an extremely active illegal organization, with the aim of overthrowing the state and substituting a Soviet republic, and also that the leaflets contained a challenge towards sabotage and resistance. The ruling power could not possibly be expected to stand by all this quietly, whereby it was irrelevant whether this power based its rights on "government" or merely on "occupation". Also in other places -- and not only in time of war --- there are examples for the fact that the spreading of leaflets is severely punished, even if their contents remains limited to the slogans of the Communist Manifesto.
"The Prosecution furthermore attempted to prove that within the Reich itself German penal law was abused towards a terroristic suppression of political opposition by additions, extensions and distortions. Obviously, the prosecution finds these additions, etc. -- in so far as the administration of justice by the People's Court is concerned - in the new version of the provisions concerning the preparation of an act of high treason dated 24 April 1934, and in the penal provisions concerning the disintegration of the Military potential dated 17 August 1938.
"I shall permit myself the following general preliminary remarks in connection with this point?
"The new version of the provisions concerning the preparation of an act of high treason was made by using almost verbatim the draft of a bill which had been worked out already in the years before 1933 by the Reichstag of the Weimar Republic. This draft contained those legal principles which, as is shown by my Exhibit 246, were developed by the Supreme State Tribunal (Staatsgerichtshof) for the protection of the Republic, and by the Reich Supreme Court in its decisions concerning the question of preparation for an act of high treason. Therefore, the new version of the law of 1934 corresponded to a legal point of view which was generally accepted already before 1933.
"We are now turning to the individual cases of internal high treason in Germany. In connection with this, the Prosecution submitted Exhibits 48, 145, 240, 490, 492, and 493. They are concerned with the cases: Sievers, Schmidt, Havemann, Freidrichs, Gehrmann, Deibel. It must be said that only Exhibit 490 contains an indictment which is signed by Lautz; and this also is only a segment of the indictment as it was actually filed, and does not, therefore, give a comprehensive survey about the actual facts.
"In the course of his interrogation I discussed all these cases with the defendant Lautz (Tr. 5859/85).
"The result was the following:
"The Case Schmidt in Exhibit 145 was tried before Lautz's appointment, and he is therefore not connected with it. The cases Deibel and Gehrmann were concerned with dangerous and very active Communist attempts at disintegration, while Sievers and Friedrichs worked by using definitely serious means towards the overthrow of governmental leadership, first from within Germany and then from without. They were both German-born. Finally, Havemann in the course of his interrogation could not deny that he had worked towards the overthrow of the government during the war, and that he had also contacted aliens and agents of enemy nations to further his purpose.
"According to the law then in force, it was defendant Lautz's duty to file an indictment charging the above-mentioned crimes. In so far as he did so - which is proved only in the cases Friedrichs and Havemann - this happened without any distortions of the unequivocal facts.
"We shall now turn to the cases tried under the provisions concerning disintegration of the military potential: they are exclusively concerned With Reich Germans and were submitted to the People's Court only after the decree of 29 January 1943. Lautz had had no connection with the writing of this decree. The numerous ordinances issued by the Minister of Justice during the subsequent period of time, especially the ordinance of 13 August 1943 in my exhibit 186 (L-288, IV B 54) show that Thierack in his capacity as Minister was bent on an increasingly severe course. This was just the reason that Lautz considered it necessary that the cases tried under the provisions concerning undermining of military strength were examined with punctilious exactness, even though they occurred in great numbers, and that suitable (Tr. 5889), that is, in which either capital punishment seemed actually justified, or in which other reasons made it seem advisable to have a decision by the People's Court irrespective of the possible punishment expected (Tr. 5889, 5892).
"Apart from this, his foremost endeavor war to transfer as many cases as possible to the District Courts of Appeal with the motivation that they were of minor importance or by denying that the constituting facts of undermining military morale were existent, thus leaving the further prosecution of the case to the Chief Public Prosecutor at the Special Courts as a violation of the Malicious Acts Law. Lautz did this disregarding frequent criticism on the part of Thierack, in order to prevent, if possible - an increase in the severity of the jurisdiction (Tr. 5892/93).
"The documents of the prosecution, namely prosecution exhibits 178, 474, 541 and 542 show 48 verdicts pronounced by district courts of appeal in cases of undermining military moral, which had been criticized by the Minister of Justice, because of their leniency and with regard to which it was intended to examine whether an extraordinary objection should be raised. This could not have happened if Lautz had lodged indictments against the cases submitted to him, at the People's Court to the extent expected by the Minister in spite of Thierack's criticism of those sentences, Lautz did not propose to him to order the extraordinary objection. For those 48 cases at any rate, no proof has been shown in this direction. Exhibit 541 rather reveals that in tho case of Bollow he objected to having the extraordinary objection raised. If he were the strict Public Prosecutor, whom the prosecution wants to depict here, he would certainly have advocated tho extraordinary objection in all those cases. The statement of the witness Gruenwald who told about his favorable experiences, especially with regard to Lautz' referring cases involving the undermining of the morality of the Wehrmacht as cases of minor importance, also are a proof for the fact that Lautz did not share that attitude.
"The prosecution presented in the cases of Riedel, Dress and Birck in exhibit 144, 562 and 563 indictments which Lautz had signed for such cases, whereas the indictment in the case of Beck; exhibit 159 was signed by the defendant Barnickel as his deputy.
"In the cases of Zinser, Kotzian and Bonness of exhibits 140, 158 and 181, only the sentences were submitted. In the cases of Panchen, v. Brincken and Solf finally other documents were brought in as evidence. With the exception of the Birch and Dress cases which were only introduced during the cross examination of the defendant Barnickel, I have discussed all the relevant facts with the defendant Lautz at his interrogation. I therefore rever to his statements made then with regard to each individual case (Tr. 5893 ff.). I would like to add only the following:
The prosecution seems to assume that in the Beck case the fact that the accused" -- and may I interpolate here that this was the only document concerning an indictment against a non-Aryan which was produced by the prosecution -- "was a half-Jew was the reason for bringing his case before the People's Court. This assumption -- not to mention other circumstances -- has also been refuted in Exhibit 541. The correspondence contained in this document concerning the Tietz case namely reveals that the Reich Chief Public Prosecutor had transferred it as a case of minor importance to the Court of Appeals of Hamburg in spite of the fact that Tietz was a half Jew and in spite of his previous convictions and his political past."
May I interpolate here? The reference to the half-Jew capacity of Birck was made pursuant only the decree of the Reich Ministry of Justice presented by me as Exhibit 263 in connection herewith.
"However Lautz not only endeavored to keep the number of cases of seditious undermining of the defense spirit as low as possible before the People's Court by classifying them liberally as cases of minor importance; he also saw to it that this decision was reached quickly, if only for the purpose of roducing the detention pending trial in the interest of the accused to a tolerable degree.
"Lautz therefore had to take steps when the number of new cases -- at the close of 1943 there were, as shown in exhibit 220 (NG-671) already 700-800 cases a month - increased so much that in Department IV where the preliminary work for those cases was to be handled, several hundred records piled up for weeks, yes even months.
He saw no other way out of it except to assign the cases of undermining of military strength to a department newly to be established. Lautz selected the defendant Rothaug for this because it was the easiest for him to turn over his small and rather less important department to a Chief Public Prosecutor and because as junior Reich Public Prosecutor had had to accept this task which was generally looked upon asnot enviable (Tr. 5890). The differences between the defendant Barnickel and Lautz which were mentioned by the former in his interrogation did not enter into this decision which was to become effective on 1 January 1944. The reasons for these lay elsewhere. They may be seen from my exhibit 262 (L-305, VI 9). Otherwise it would be impossible to understand why it was exactly Thierack who ordered the transfer of Barnickel - although only 11 months later - to the at least equally high post of a Reich Public Prosecutor at a Supreme Court.
"The Prosecution however does not stop at the charges of illegal Penal Proceedings. It also makes the assertion of criminal abuse of the Criminal Proceedings. One of the weightiest accusations brought against Lautz in this connection is that he made excessive use of the reformatio in pejus, namely the extraordinary appeal whenever he did not agree with a sentence. The purpose of re-opening a case as a rule was to have been the death penalty and the extraordinary appeal was supposed to have been used always to the disadvantage of the accused.
"The incorrectness of this charge, and that in every point, has been established today. I do not have to repeat here what I have stated in Part II of my written pleadings. Only this is to be emphasized once more: The Reich Chief Public Prosecutor of the People's Court, here Lautz, had nothing whatsoever to do with the nullification plea. And the Government (Staatsfuehrung) alone could decide upon lodging the extraordinary appeal, but not the Reich Chief Public Prosecutor. The two Reich Chief Public Prosecutors, each in his sphere of jurisdiction, were merely instrumental to pass on the declarations - by order of superior authority - that proceedings were to be started, which declarations according to German Law Procedure were final.
Lautz also proceeded accordingly. Never did he arbitrarily lodge the extraordinary appeal (Tr. 5938). The attempt of the Prosecution, in the absence of other evidence to the contrary, to refute this in the cross examination of the defendant Lautz, failed completely (Tr. 6016 ff.). The Prosecution also would not be justified in limiting its assertion to the extent that Lautz, although he never had lodged the extraordinary appeal, had through suitable proposals on his part suggested it to the Minister of Justice. The opposite of this has also been established:
"Lautz stated at his interrogation that he had only very rarely, as result of his own decision, suggested that an extraordinary appeal should be lodged, and that the cases in which such had occurred in favor of the person sentenced, corresponded in number to those cases in which a sentence was demanded which was less favorable for the person sentenced (Tr. 5939 et. sep.)" THE PRESIDENT:
We will take our recess at this time. The film is exhausted for the moment.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May I continue, please? I had come to a halt at the statement that Lautz only very rarely suggested, that extraordinary objection should be made and I will continue:
This statement is supported by the deposition of the defendants Rothaug and Barnickel, especially also in the latter's affidavit in Prosecution - Exhibit 174, in which they testified that they had in matters of their department never lodged an extraordinary appeal.
Moreover, the defendant Lautz has emphasized that also in cases in which the Minister of Justice asked him to report, he had generally voiced his opinion as being against the extraordinary appeal (Tr. 5940). This statement is confirmed by the declaration of the defendant Klemm referring to Exhibits 178 and 474, according to which in all cases mentioned therein, the defendant Lautz had in the report that was requested of him, expressed himself against the extraordinary appeal. This is also supported by a letter of the Reich Prosecutor's Office, dated 13 October 1943, in Exhibit 541, in which "in spite of considerable hesitation", it is suggested, to the Minister that the order concerning the extraordinary appeal should be set aside. With this state of affairs it is understandable that it was impossible for the prosecution to submit even a single document which contained a suggestion of the defendant Lautz for the lodging of an extraordinary appeal.
And now a few words as to the number of the extraordinary appeals and their results:
The Prosecution has submitted two documents referring to proceedings before the Special Senate of the People's Court after the extraordinary appeal had been lodged, namely Exhibit 512 and 513. Exhibit 152 concerns time case Zelzny which was heard, on 4 August 1943. If bears the reference number B.S. 7/43, which means the 7th case of the Special Senate of the People's Court in the year 1943. Exhibit 1943 deals with the case Chlupa.
This case was heard before the Special Senate on 21 September 1944, and it was, as shown by the reference number B.S. 45/44, the 45th case of the year 1944. In taking as a basis that the proportional numbers for the years 1943 and 1944 remained the same, this would mean a total number of 72 extraordinary pleas for the two years together. If one takes into consideration that the People's Court alone - i.e. without the, Court of Appeal -passed 1312 sentences during 1943, this number can hardly be expressed to be terrifically "large". Exhibits 512 and 513 prove besides that the result of the extraordinary appeal remained here restricted to a sentence of imprisonment. In the case of Will, who is mentioned in Exhibit 495, the extraordinary appeal was undoubtedly lodged in favor of the person sentenced, even if it remained unsuccessful.
Another accusation by the Prosecution - in so far as they refer to the procedure applied in individual cases - is that the defendants were refused any trace of regular proceedings. Regarding the proceedings before the People's Court itself I have defined my attitude to this accusation for the entire Defense in Part I of my Brief.
I may refer to it. But in so far as the charge is directed against the Reich Public Prosecution and thus against Lautz, it was made without grounds. The evidence has produced convincing material to this effect.
Lautz, who had completed his training as a jurist in Germany at the time of the Kaiser and who had climbed the first step in his career in the days of the Weimar Republic was, as one would say, a jurist of the old school, As such it was for him a matter of course that also in that part of criminal proceedings entrusted to the Public Prosecutor, the so-called preliminary proceedings, justice demands that every charge be verified with the greatest case and especially that the defense evidence brought by the accused be conscientiously examined. It was also just this correct view of the Defendant Lautz, of which I may remind you once more in this connection, which led to the fact that in September 1941 when martial law was declared in Bohemia and Moravia, he was taken out of the criminal proceedings Elias and Klapka and that, furthermore, it was intended to withdraw all criminal proceedings from him in this area and transfer them to the summary court.
This intention was later frustrated by the Defendant Joel.
If the cases in the hands of the Reich Public Prosecution were to be handled with the conscientiousness which for Lautz was a matter of course, then this would presuppose the utmost exertion in view of the large amount of work. Lautz never considered himself in this respect; however, he demanded the same of his section chiefs and public prosecutors. Not all his subordinates made the required effort. There was thus no lack of criticism and differences of opinion. Chief Public Prosecutor Spahr, who was a section chief, also describes these conditions in the affidavit in my Exhibit 206 (L-296, IV. C 52).
The first principle in the preparation of an indictment was in Lautz's opinion, that no denunciation can be the basis for any decisive measure until it has been carefully reviewed, whether this denunciation emanate from the police, from some other office or from a private individual. In his view this applied, however, equally to the results of investigations carried out by the police by virtue of the duties assigned to them by Article 163 of the Code of Criminal Law. He always considered it necessary that his public prosecutors should carry out their own inquiries and interrogations should be made by the investigators in order to check the results of the police investigations. In this he attached particular importance to the fact that the question of whether it was necessary to detain the accused should be clarified as quickly as possible by the decision of the judge and that the accused should be given the opportunity of producing all the objections which he has to make against the charge.
Numerous proofs confirm this. First of all, it may be seen clearly from the indictments and judgments submitted by the Prosecution that such judicial decisions regarding the question of detention have been issued and that the accused have already been examined by the judge in the preliminary trial. Moreover the witness Bren described during his questioning in cross-examination on the 22 May 1947 how this work carried out by the investigator completely free and independent of any influences whatever. And the Czech Hlavec also bore witness in cross-examination on the 30 April 1947 to the fact that during his interrogation by the investigator he was able to express himself freely. And finally Lautz has described here how he repeatedly exerted a personal influence on the conduct of the investigations and in doing so was not afraid of clashes with the Gestapo. In this connection I may refer to the English transcript pages 5813-19. and to the cases Najork, Borngaesser, Both, Erbe, Rauh, Brouwer, Jungdeutscher Orden in my Exhibits 233 to 239. Lautz knew how to secure for himself complete independence in his decisions towards the measures of the police, in that he never entered into any official or extra-official connection with the men in authority in the RSHA. He never once spoke to Himmler and only met Heydrich and Kaltenbrunner once at a conference called by the Minister of Justice (Transcript page 5971).
In accordance with these views he had immediately, after his entry into office as General Public Prosecutor in Karlsruhe, discontinued the communal use of the same prison by the judiciary and the police - in spite of opposition from the Gestapo -- which practice had hitherto been customary in Karlsruhe, introduced a sharp distinction and allowed the police to interrogate prisoners in judiciary custody only if the interrogation took place in the Justice detention house. This is shown by the affidavit by Lautz' former colleague, Chief Public Prosecutor Weiss, which affidavit I have submitted as Exhibit 220.
It is well known that Hitler had allowed the police to use methods of force in their interrogations in certain especially difficult cases, but only within their own sphere of competency. The Minister of Justice had been informed of this accordingly. To Lautz it was a matter of course to give his special attention to these cases. He was of the stern point of view - and the Senates of the People's Courts adopted the principle - that a record which had come into being in such a way could not in any account be used to the disadvantage of that person who was incriminated by the statement.
During his interrogation he proved this through various examples. I am referring to the cases of v. Bismarck and Goerdeler, which are to be found, on pages 5879, 5881/82 and 5967/69 of the English transcript.
Lautz, however, was not satisfied with seeing to it that officially everything was done in order to obtain a true picture of the situation. within his official area of activities he gave orders that the accused as well as the counsels for the defense, as far as they started with their work before the indictment was lodged, should be given every permissible opportunity for the conduct of their defense. For this reason he restricted correspondence and visits to the persons detained for inquiry only to the extent absolutely necessary in keeping with the directives of the Minister of Justice shown in Exhibit 457. The counsels for the defense were likewise given every possible assistance. As shown in my Exhibits 63 to 65, according to the order of trials valid since 1879 they had no right to study the documents until the indictment was lodged.
In the Office headed by Lautz, it was, however, customary that nevertheless the counsels for the defense were allowed to study within certain limits the documents before the indictment was lodged, that, at least the Prosecution would give them those data from the files which they needed in order to prepare the defense for the accused, whom, by the way, they had a right to see at any time.