Without his agreement, final discontinuation of proceedings could not be decided on.
It was known to my client that a diary of the kind produced by the prosecution was kept in the Reich Ministry of Justice. This was done by the first adjutant of Minister GUERTNER, Herr von DOHNANY mentioned in this trial several times -- in 1938 transferred to the Supreme Court for reasons of his descent and who later became a victim of the 20 July. If there ever was a man who took a serious view of those incidents when screening them, it was von DOHNANY.
As I said before, the document produced by the prosecution contains short excerpts from the files only, not sufficient to establish any details. However, one point can be established. No cases of the kind mentioned in the document FRANZ and Dr. KATZ happened during my client's tenure of office. Dr. BARNICKEL feels that this was caused by a change of the personnel in the camp headquarters. Some time before my client took over his office, the first camp commander was relieved because of the conditions in the camp for which he was responsible. I may mention that among tho extracts produced there is a case in which the dead body of a detainee showed traces of violence and ill treatment. It was impossible to ascertain the perpetrator. It must not be overlooked, though, that the inmates did not consist of political detainees only, but also of a number of previously convicted criminals, so that serious brawls occurred among the detainees themselves.
The decisive point for the evaluation of the document, however, is the fact that the extracts do not contain any material on tho activities of Dr. BARNICKEL. As far as he nay have played a part, his decision was screened by the Reich Minister of Justice.
This document, too, can, therefore, not be used for the purpose of forming an opinion of his personal character. This may suffice for clarification of those documents. With regard to my client's personal attitude toward the Political Police, I would like to refer to an incident contained in Ms diary.
In the beginning of December 1934, the Political Police submitted to him a number of files which concerned a Gestapo official. Soon afterwards, the Political Police requested Mm to return those files, in order to deal with the proceedings themselves. Dr. BARNICKEL refused to return the files and noted in Ms diary, that he was still reserving the right to have an opinion of his own. In this connection, he describes the objections caused in his mind by Himmler's organization. He states that he cannot imagine that all this will work out well in the long run, because the German people doesn't tolerate a Tcheka. Finally, he expresses the hope that the Wehrmacht would not allow another armed force to be established permanently. Unfortunately this hope was frustrated. But if the prosecution was under the impression that Dr. BARNICKEL started on and filled Ms new post as Senior Public Prosecutor in Muenchen as a willing tool of the political factors, this is absolutely wrong.
With regard to the further behavior of my client while he held the office of a Senior Public Prosecutor, I shall only broach it in a few words, His factotum at that time, Max HUBER, who was closest to Dr. BARNICKEL among all the officials, describes Ms character in BARNICKEL Exhibit Nr. 5. He calls him the most just bosshe had during his 35 years of service. He further tells us that there were only two other members of the department with whom Dr. BARNICKEL had very acrimonious disputes in the long vow both holders of the golden emblem of the NSDAP, for political reasons only. Dr. BARNICKEL fully asserted himself in his relations with these two people.
May I further refer to the conflict Dr. BARNICKEL had with the Muenchen police in 1938. It never found a solution. It was terminated only by Dr. BARNICKEL's being transferred to Berlin. In this respect I refer to the BARNICKEL-Exh. Nr. 25.
Now it happened that my client was transferred as Reich Public Prosecutor to Berlin was described in detail by him when on the stand. It is sufficient hero to point out that he did not apply for this position, but that it was his aim to return from the career of a Public Prosecutor to the jurisdiction in civilian matters. The reasons which frustrated his endeavor in this direction are deposited in the BARNICKEL-Exhibit Nr. 6. Thus he came to Berlin as Reich Public Prosecutor to the office of the Reich Public Prosecution at the People's Court on 1 December 1938.
It was only a short while before that the Muenchen conference of September 1938 had taken place. Dr. BARNICKEL had witnessed himself the exulting homages done to the representatives cf the Western Democracies in Muenchen. Hitler had scarcely experienced such a jubilation in Muenchen. Even the coldest sceptic could hope for a long peace at that time. This was the hope alive in my client when he entered on his duty in Berlin.
The office of the Prosecution submitted in this case the material from the time of his activity as Reich Public Prosecutor at the People's Court, from which material it deduces the reproaches cf the accusation against Dr. BARNICKEL.
I do not want to enter into the details cf the service as Public Prosecutor at this place, They are made clear to the High Court by the taking of evidence. That the German office cf the Public prosecution was an office which was tied to its instructions is as well known to the High Court as the fact that the office of the Public prosecution was under the principle of the legality, that it had therefore to prosecute every punishable act, independent of the wishes of the Public prosecutor concerned in regard to the prosecution. The Court knows as well that the Public Prosecutor was not entitled according to German law to omit the application of a law because he thought it too severe. All this was sufficiently discussed. Only the kind of his position should be sketched in short once more.
For this I may point to the BARNICKEL-Exhibit Nr. 43, the affidavit of the well known specialist on criminal procedure Dr. Emil NIETHAMMER, Tuebingen, who was Reich Public Prosecutor at the Reich Supreme Court for long years himself. He states in his expert opinion that a Public Prosecutor was not a governing official. The Reich Public Prosecutor was nobody's superior, he had no inferiors, neither at the Reich Supreme Court nor at the People's Court. Superior of all officials was alone the Reich-Senior Public Prosecutor. Only he had the right issue instructions to the officials of the higher service and the offices which were attached to the Reich Public Prosecutor in order to assist him. Only the Reich Senior Public Prosecutor had also the duty of supervising the services of these officials. Of details concerning this complex I only would like to mention the fact that the service at the office of the Reich Public Prosecution was regulated by instructions in every direction. Every law for instance and every executive order issued by the Ministry to a law was still separately introduced at the office of the Reich Public Prosecution of the People's Court by a service instruction of the office manager.
The Reich public prosecutor as department chief could not give definite instructions to his sub-department chiefs. Only the chief of office (Behoerdenleiter) was authorized to do this. He could even give instructions to the sub-department chief over the heads of the Reich public prosecutor and often made use of this possibility. All orders of decisive importance, that is indictments and dismissals of a charge, as well as remissions of sentences had to be signed by the chief of office, if he was present. The authority of a Reich public prosecutor was therefore more restricted than the authority of a public prosecutor in a District Court. Motions had to be submitted to the Senior Reich Public Prosecutor, whenever there was even a remote possibility of a death sentence. He alone decided in such cases.
Besides several minor subjects, the Reich Public Prosecutor had a certain freedom of action only in reference to one matter, This was the transfer of the proceedings to the General Public Prosecutors at the Courts of Appeal.
These principles, which are of decisive importance in judging the activity of my client, have been completely clarified by the evidence proceedings. In reference to this, may I just briefly point to BARNICKEL Exhibits Nos. 8, 9, 10, 11, 12.
One word more, perhaps, on the question of deputizing for the chief of office. Only the Reich public Prosecutor who had been appointed by the Minister of Justice as permanent representative could deputize for the Senior Reich Public Prosecutor generally and to full extent. This was the oldest in office, Reich Public Prosecutor PARRISIUS, not Dr. BARNICKEL.
I interpolate: Contrary to the view voiced in the final plea of the Prosecution, Dr. Barnickel therefore was not the deputy of the Senior Reich Public Prosecutor. As I have just stated, the person who held that position was the senior in office, Reich Public Prosecutor Parrisius. Only if the chief of office and Reich Public Prosecutor Parrisius were absent at the same time Dr. Barnickel was the deputy for the chief of office.
That happened infrequently and even then only for a short period of time, as I was able to ascertain from a report which was passed by the Senior Public Prosecutor to the Reich Ministry of Justice.
I continue: When my client deputized for chief of office in the case of simultaneous absence of the Senior Reich Public Prosecutor and of his permanent representatives, his authority was limited. He was bound to follow the general directives of the office as proscribed by the Senior Reich Public Prosecutor and by the ministry.
Instructions which may have been given by the chief of office to other employees before his departure, were, of course, not binding for Dr. BARNICKEL.
In order to complete my statements, I have to mention that since November 1943 my client was no longer requested, to deputize for the chief of office, because of increasing disagreements. In reference to these questions, I may point to BARNICKEL Exhibits No. 27, 28, 29 and to the already mentioned BARNICKEL Exhibit No. 9.
This position in the office, with all its restructions, has to be considered, if the activity of my client during the years at the People's Court is to be judged rightly, because only with this background in view can his activities be fully understood. Only in view of these facts, the material presented by the prosecution against BARNICKEL can also be judged rightly.
The prosecution charged that he, as all other defendants, had committed crimes in the name of the Law. The Chief Prosecutor stated on 5 March 1947 in this Court-room that the defendants, as leaders of the German Administration of Justice, consciously and intentionally suppressed the Court, disguised tyranny infamously as justice, and transformed the German system of justice into a machinery of despotism, conquest, plunder and massacre.
It was to be expected that the prosecution would not also prove with a great amount of irrefutable evidence these most serious charges which it had made against all defendants. I myself have only to examine, to which extent the evidence, submitted against my client BARNICKEL, bears out this most serious charge. Here I can state that not even the assertion that my client belonger to the leading officials is correct, not to speak of all the rest.
Of many hundreds of documents, which the prosecution submitted in this trial to the court for examination, a total of 12 apply to my client. These documents, however, do not justify in the least the charges made against him by the prosecution.
I believe that I may also be brief in the discussion of the prosecution material. The few documents, which concern my client were discussed by him exhaustively on the witness stand. Besides, they have been clarified and reduced to their true value as evidence, among others also by the witness for the prosecution Dr. HECKER.
I can collect into a group the first documents which were submitted against my client. They are exhibit No. 133 - Document NG 642, Exhibit No. 134 - document NG 497 - Exhibit No. 137 Document NG 596 Exhibit No. 140 Document NG 377. All these documents concern judgments or indictments which had been circulated at the department chiefs and sub-department chiefs. The name of my client is among many others on the included notes of circulation. The significance of such a circulation is evident. The person who signs a note of circulation assumes no responsibility whatsoever for the circulated document. Whether or not ho approves of the decision in question, whether or not he knows of its contents, from technical reasons he has to sign the note of circulation. Because of the great number of indictments and judgments, which Md been circulated during the years of war, nobody was requested to read all this circulated matter. But even in the case that a circular Md to be read no factual or legal connection to the document was established by this.
I believe I may assume that similar habits exist everywhere. No connection to the circulated documents in the sense of the Control Council Law No. 10 can be deducted from tho notes of circulation. These documents are therefore in no way suited to serve in support of the charges of the prosecution against Dr. BARNICKEL.
Furthermore, the prosecution submitted exhibit No. 493, document NG 925 against Dr. BARNICKEL. This document concerns tho proceedings against the German citizen Erich DEIBEL, because of treason. The prosecution did not claim that Dr. Barnickel had himself any connection with these proceedings. It only presented this document against him, because he was charged with the execution.
As Dr. Barnickel stated in the witness stand, he was by the Senior Reich Public prosecutor appointed to be present at the execution, interchanging with the other Reich Public Prosecutors. Besides, this presence was prescribed by the law. I do not have to emphasize that a Public Prosecutor who for these reasons assists at an execution does not carry any material responsibility, neither for the judgment nor for the execution. It is not within his authority to prevent the execution of a legally valid judgment, ordered by the duly appointed offices. It does not matter if he approves of the judgment or not. I can, therefore, not consider this incident as a fact of the case designated by Law No. 10 as a form of participation.
The next document presented, prosecution exhibit No. 136 -document NG 595 concerns the proceedings against BRATEK because of assistance to the enemy. The indictment is, also in this case, not sir nod by Dr. Barnickel. The investigation files merely contain several letters by him.
Only part of it carries his original signature. In reference to these letters it is to be stated that they served generally to call witnesses for the interrogation who had been requested by the accused himself.
My client has testified in the witness stand with reference to these proceedings that he and his department had nothing to do with the pronouncement of the judgment because this manner of proceedings had been transferred to another department at the latest at the end of April 1943, while the judgment was only passed on 20 May 1943. The file notes were not changed at a change of department.
I interpolate. It has been established that Dr. Barnickel only participated in the investigations of this case, but in connection with the investigations the application of the law against Poles played no part whatsoever. If at a later passage the Prosecution claims that the defendant had wrongfully been charged with high treason by Barnicle, we must point out first of all that indictment or the work on it was not Barnickel's field. Quite apart from that, however, the view of the Prosecution is erroneous, for the concept of a duty of allegiance played no part in the case of high treason, but in the evaluation in terms of criminal law.
I do not leave to go into details, concerning the problems resulting from the application of German law against Poles. They have already been clarified by my colleagues. In this reference I point to their statements.
I can state in reference to these documents that in my opinion the participation of Dr. Barnickel in these proceedings does not represent an action which can be considered as facts in a case to be evaluated in terms of criminal law.
At Dr. Barnickel's cross-examination the Prosecution presented documents Exhibit No. 562, Document NG-926 and Exhibit No. 563, Document NG-875. They concern the proceedings against Birk and Dress because of treason and seditious undermining of the defense spirit.
In both cases, the proceedings concern German citizens. The indictments are not signed by Dr. Barnickel, his name can only be found under several unimportant investigation letters. Here, as also with all other documents, no real connection exists.
Further, Exhibit No. 266, Document NG-598 was submitted against Barnickel. It concerns the proceedings against Franz Szopa.
The letter submitted here by the Prosecution does not carry Dr. Barnickel's original signature in the photostat. His name is only written on it with the typewriter. My client has explained on the witness stand, from which reasons it often occurred at the Reich Public Prosecution that file copies carry other signatures than the originals. For these reasons it is not proven that Dr. Barnickel signed the letter, submitted by the Prosecution, at all, the document has therefore no value as evidence.
As to its contents, this letter of S March 1943 concerns merely the measure of the sentence of the Polish prisoners. The Public Prosecution claimed indeed in its adducing of evidence that Dr. Barnickel had requested the commandant of the prison camp to transfer prisoners to the Gestapo. The incorrectness of this interpretation however, is already evident from the contents of the document which in this respect speaks for itself. The letter merely proposes to postpone the pronouncement of the measure oi the sentence until the end of the war, in the case of prisoners who, on instructions by the Reich Minister of Justice were to be transferred to the Gestapo. This is a. clear proof for the fact that the transfer of these prisoners has not been ordered by Dr. Barnickel, but directly by the Reich Ministry of Justice and also for the fact that these prisoners were certainly to be returned into the custody of the legal administration. This is, however, proven by the fact that the Reich Public Prosecution know nothing about the extermination program against these prisoners, as charged by the Prosecution. May I emphasize that the Prosecution witness Dr. Hecker in his interrogation of 7 July 1947, page 4856 of the English transcript, has given the sane explanation for this document.
According to my opinion, this document can indeed not be considered as evidence against Dr. Barnickel in the sense of the indictment, besides it lacks of value as evidence, for formal, reasons.
The next document submitted was Prosecution Exhibit No. 267Document NG-614. It contains four documents from the proceedings against Kubiak. In this reference the Prosecution changed that Dr. Barnickel had ordered to transfer Kubiak and four others to aggravated prison camp. This conception too does not comply with the facts, as shown by the document. It was not Dr. Barnickel who ordered the change of the sentences from, each, 6 years in penitentiary to aggravated prison camp. This change was rather a rule, enforced by the Criminal Law Execution Order concerning Poles, as of 7 January 1942. In number 7 of this order it is stated that sentences of more then 3 years of penitentiary, pronounced before the issue of the order had to be changed into aggravated prison camp sentences. Dr. Barnickel merely instructed the prison of this legal fact, and this only upon a request of the prison. May I also remind of the statements of the witness Dr. Hecker who said that there existed indeed no difference between the execution of a penitentiary sentence and the aggravated prison camp. He also stated why in spite of this the official change of name was necessary.
It results from all this that also in this case Dr, Barnickel did not act upon his own initiative. On this document, too, Dr. Barnickel's original signature is missing, so that from the above-mentioned reasons it cannot even be considered as proven that he really did sigh this instruction. Perhaps may I additionally point out, in order to clarify matters, that my client acted here, as always, only as representative of the chief of office.
The other letters of this document, however, carry no signature of Dr. Barnickel. In reference to this he stated on the witness stand that those other letters were submitted only to his branch and were taken care of by its chief in his capacity as administrator of law. The correctness of this statement is proven by the photostats submitted by the Prosecution which contain no evidence that the letters were ever submitted to Dr. Barnickel. The correctness of this statement is furthermore illustrated by the testimony of the expert witness Dr. Hecker, page 4850 of the English transcript and the Barnickel Exhibit No. 7 end 44. The persons who made both statements, Justizinspektor Tiedemann and Amtsrat Jander, were employed at the Reich Public Prosecution as sub-department Chief, resp. Director of a branch, and out of their special knowledge they testified in reference to these documents to the same effect as Dr. Barnickel. This Prosecution document too does therefore not represent evidence in the sense of the indictment.
I interpolate. The document reveals further that the transfer of Kubiak to Auschwitz was ordered directly by the Reich Ministry of Justice and not by the Reich Public Prosecutor, the Reich Prosecution; certainly not by my client. Apart from that fact nothing proves that it was because of the Reich Prosecution, from the moment that Kubiak was handed over, that he could not take any responsibility for his fate, but as the Prosecution has pointed out that they did so, unfortunately that is correct, but one must also point out for the sake of truth that Dr. Barnickel does not bear any responsibility for that deed.
The last document to be discussed is Prosecution Exhibit No. 159Document NG-381. It is the trial against Beck because of seditious undermining of the defense spirit. To this document the following has to be stated: Beck was, according to the submitted files, Viennese, therefore citizen of the Reich, after the incorporation of Austria in March 1938.
The Public Prosecution was here of the opinion that the incorporation of Austria into the German Reich occurred in the course of the war of aggression and that Austria can therefore not be considered as a part of the German sphere of jurisdiction.
This conception, however, does not comply with the legal situation, as it must be submitted to the Court for judgment.
It is not necessary to examine here whether Austria was indeed incorporated into the German Reich in the course of the war of aggression. In any case it is a fact that this incorporation was accepted without contradiction by the legal community of nations and has therefore been recognized by International and Constitutional Law. All nations, among them the USA, have continued diplomatic relations also after the incorporation of Austria with the Greater German Reich which was thus created. Until the respective declarations of war, the Ambassadors of the Allied Nations remained in Berlin. International treaties, for instance the treaty of Munich, of October 1938, were concluded with the Greater German Reich. Austria's position, according to Constitutional and International Law, and therefore the position of the Greater German Reich, cannot be proven any clearer, according to my opinion.
The defendants had, however, also to start from this generally recognized situation, and from this viewpoint Austria had to be considered as a part of the German Reich, where German Law could and had to be applied.
I can, therefore, not consider the application of German Law against an Austrian, that means after 1938 a German, as an offense against principles of International Law.
In order to be short, I cannot go into details concerning the consequences which result from these facts for our case. I can only emphasize that any error, not representing a criminal action, excludes the guilt of a perpetrator and that an error about the legal struc ture of a nation does absolutely represent such a non-criminal error.
All these facts force us to conclude that the proceedings against Beck can under no condition meet the fact of ah offense against the Rules of War or against Humanity.
It has been explained clearly in the evidence proceedings that the emphasis on Beck* s racial background is based on a general rule, according to which at every indictment this fact must be mentioned. As to the contents of the documents it has to be said, furthermore, that every evidence is lacking to prove that Dr. Barnickel considered the death sentence at the signing of the indictment. On the contrary, the reference to the decree against malicious attacks, with its maximum sentence of 5 years prison contained in the document, shows that Dr. Barnickel did not count on a death sentence. Any further evidence to bear out that the representative of the Reich Public Prosecution proposed the death sentence in Court, for which he could indeed also have had instructions by the Chief of Office, is lacking; and finally there is no evidence that the death sentence against Beck has been really carried out.
I interpolate. It came as a complete surprise when the Prosecution for the first time in its final plea incriminated Dr. Barnickel with the responsibility for the penal proceedings, and two other person's exhibits, Exhibit 129, Document NG-352; the Prosecution claims that Dr. Barnickel's guilt is revealed from the Lautz Exhibit 199. I have to point out that contrary to the assertion by the Prosecution this document shows that the indictment of the 9th of March, 1942, page 21 of this document, is signed by Reich Public Prosecutor Parrisius and a not by Dr. Barnickel. We find his name only on a list concerning the indictment, without a note indicating whether he ever received the indictment, but if he obtained knowledge only subsequently, that would not have meant that he had been under an obligation. There are no other signatures of his contained in the files from which points the Prosecution wishes to deduce Dr. Barnickel's responsibility, and his responsibility, therefore, remains incomprehensible.
May I perhaps, as conclusion of the discussion of Prosecution documents, state in reference to the activity of a Public Prosecutor, that in my opinion the activity of a Public Prosecutor can never been considered as causative for a passed judgment, much less for an execution.
The Tribunal knows that according to German Law the Court could make its decision independently from a motion by the Public Prosecution, many times also deviating from the contents of the indictment. The Tribunal knows furthermore that at the Court of Appeal new decisions on the executions of sentences have been made, independent from a motion of the Public Prosecution. The inter-dependency of cause and effect has therefore been at least twice interrupted.
Law No. 10, also however, requires, in my opinion, in all its forms of activity and participation an interdependency of cause and effect.
But with these documents all the material which the Prosecution submitted against Dr. Barnickel is exhausted. That is all that the Prosecuting Authorities could submit against my client after investigations lasting for years and a trial of more than 7 months' duration, although the entire German files and all the particulars were at their disposal.
It is my conception that the evidence submitted by the Prosecuting Authorities, purely objectively, cannot be considered sufficient to judge him guilty of a war-crime or of a crime against the law of humanity.
But still less can the documents of the Prosecution prove the subjective prerequisites for an offense against Control Council Law No. 10. How far are these documents supposed to show that my client intended to exterminate all opposters of the National Socialist Regime irrespective of nationality or race, to kill the Jews or members of occupied countries or to take part in the oppression of people of any nationality?
But this train of mind according to the wording of the prerequisite of the Prosecution, would he for a sentence in points 7, 11 and 23 of the indictment, with which Dr. Barnickel is charged.
I believe my evidence showed that he tried to do just the contrary.
May I be allowed to give you an example from history, which will show you in what direction my client's efforts were turned. I make no comparison between persons or spheres of duties, but a problem can well be the same on a small scale just a on a large scale. An historical example has the advantage of showing that people in all ages in similar positions were obliged to seek similar ways.
May I be allowed to discuss a few sentences from a book by the former English Foreign Secretary Duff Cooper on Talleyrand, the well-known minister of Napoleon the First:
"Talleyrand's conviction that peace, and in particular peace between France and England , is useful and desirable, has never changed. He is not afraid of Napoleon, he did not succumb to the influence of his personality as did the other ministers, he was quite clear as to which policy would best serve France, he saw clearly in what direction Napoleon was being driven by his ambition, and all contemporary witnesses testify unanimously that he exerted his influence to avert another war. Success was denied him. Now it is easy to say that he would really have to resign from office after his failure......... Such a resignation would have been completely senseless and useless. Less skilled hands and a less independent brain would have bungled about with Talleyrand's work, and the young autocrat would have lost his most capable counsellor, what's more the only one who was really suitable to serve as a brake to his tempestuous pace."
It seams to me unnecessary to apply the quotation to the case of my client. The court knows without that what I want to express. My client too saw the dangers of the Fuehrer of the Third Reich. In his limited sphere of influence he tried to do what was possible and above all he tried on his responsibility to divert the current or justice in his territory which was becoming more and more radical, at least into somewhat calmer channels. How clearly he saw the dangers of the Regime and what attitude he took towards it, he explained to you in his diaries. I need repeat nothing of that. That he did not stop at fruitless considerations, however, but that my clients convictions had their external effect, I will show by the substantiation of the evidence submitted by me.
The court knows how difficult it was for us to produce proof. For records we are almost entirely dependent on those that were submitted by the Prosecution. For witnesses we could only seek out a small proportion of my client's colleagues, just the most important ones are not available. The High Court will however for a correct picture of the whole from these parts.
It is no exaggeration when I say that Dr. BARNICKEL's Department, from the beginning to the end of his activity, was governed by the spirit of moderation. The examination of documents introduced by me shows that he was consistent in this throughout all the years and that everyone who came into contact with Dr. BARNICKEL in the Department had the same experiences.
The spirit of subordination which permeated the entire Authorities like a cold breath did not prevail with him; he did not teach blind obedience, but according to the good tradition of the democratic spirit of South Germany he wanted his colleagues to disagree with him if they were of another opinion. Free expression of opinion was the highest principle of the Department. Everyone could speak openly. Also Dr. BARNICKEL never held back if it was a case of criticizing abuses in the State and Party. There principles are demonstrated in the BARNICKEL Exhibit No. 9 - Spahr, 8- Baxmann, 10 - Meier, 12Bach, 4 - Koalik, 26 - Unterholzner. The High Court will know that such principles were not exactly the rule in the Third Reich and least of all at the high political court.
Justice JACKSON said in his speech to the IMT that no-one could have participated in the work of the Nazis without agreeing to the most shocking item on their program, the persecution of the Jews. How little Dr. BARNICKEL agreed to it is shown first of all in his statements which he made to his colleagues. To quote only a few examples: he bitterly condemned the Jew-legislation and likewise the anti semetic campaign of November 1938. He called it a scandal, he described the Jew-baiting of the assailant as shameful for Germany. Thus us also shown from the already mentioned affidavits of his witnesses.
But this attitude did not merely remain theoretical.
From the statement of the witness Hans Baumen - BARNICKELExhibit No. 4 -- it is seen that in spite of his exposed position, he took a Jewess , and later her sister-in-law as well, into a house under his direction, when she was driven from her home. The two women lived in peace in this house until they were able to emigrate to Paris.
An example too from the work of his Department, when, in the first years of the war, proceedings were pending in his department on account of economic sabotage against a Jew, and the expert wanted to take racial and political motives into consideration, Dr. BARNICKEL reproached him for not keeping to the point and charged him strictly to work according to a purely legal standpoint. In this connection I refer to the affidavit of BRUCHHAUS, Exhibit No. 35.
My client took up a similar attitude also in other standard questions. He condemned the harsh attitude of the Government towards Poles, repeatedly warned HIMMLER about it and also absolutely refused to share the attitude of the Party to the Church question. Here I refer in particular to the BARNICKEL - Exhibit No. 17, the affidavit of Dr. Lorenz and the already mentioned Exhibit No. 8 and 28.
He made efforts, even if unsuccessfully, to make it possible to transfer colleagues of his if he noticed what they were suffering particularly severely under the political jurisdiction. May I here refer to affidavits 8, 11 and 28. One cf his colleagues, who had worked under him for many years, says that Dr. BARNICKEL had stood in opposition to the required line in maintaining his humane attitude, but that in spite of the many difficulties which arose thereby no changes in his attitude occurred.
All his colleagues knew that he kept at a distance from the political powers, particularly from the Gestapo. It was known that he had no relations with the lay-judges and that he was only very seldom to be seen in the circle of officials equal in rank to himself. He was isolated and ranked as an outsider.
It was known in his Department that he did not identify himself with the Regime. His colleagues knew that he inwardly independently opposed the policy and justice of the Third Reich. That he followed the harsh regulations which came to him from above only after resistance and only then if he saw no other way. He always strove to keep alive in his colleagues the idea of the constitutional state. Here I may refer to almost all the affidavits which I handed in. Thus particularly to BARNICKEL-Exhibit No. 9. 27, 26 and 30.
Dr. BARNICKEL kept up personal contact to a particular extent with the Public Prosecuting Authority at the Appellate Court in Hamburg. He handed over to them innumerable cases since he know the moderate attitude of this court. The political expert of this Authority, Dr. Stegemann, not infrequently looked him up in Berlin. Dr. Stegemann called special attention to his noble humaneness which was free of bureaucracy. He described it expressly as a good fortune that in Dr. BARNICKEL, the Reich Public Prosecutor's Office had a person whose efforts were directed towards avoiding harshness and cruelty whereever possible. I make reference to BARNICKEL - Exhibit No. 30.
Dr. BARNICKEL never put the person above the matter; he always endeavored independent of political tendencies, to give judgment according to justice. He had neither professional nor political ambition. His oldest colleague says it was absolutely characteristic for him to put up with conflicts when it was a question of enforcing opinions which were generally accepted as correct. Neither did friction with his superiors dissuade him from his independent attitude. Here I make reference to the BARNICKEL -Exhibit No. 9, 10, 14 and 28.
The attitude he took towards the measure of penalty seems to me important. All his colleagues agree that he never contributed towards making a punishment more severe, that on this point he was previously more lenient than the expert. He never gave an instruction but let things work out in the course cf the proceedings.