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.
He repeatedly pointed out to his colleagues that they should propose the punishment which they considered correct when they had the impression that the court wanted to exceed the terms of the proposal. It has already been mentioned that all cases, where it was a question cf the death sentence, had to be submitted to the Senior Reich Public Prosecutor. My client was of course powerless against instructions which his expert received from above. But he tried again and again, when he found a sentence of the People's Court too severe, to achieve at least a modification for the future by discussing the matter with the President of the Chamber. Here I may refer to the BARNICKEL-Exhibit No. 8, 10, 12 and 29. With the opinion on the aim and extent cf a punishment of which Dr. BARNICKEL spoke in the witness stand, he would be able to hold his own before every forum of the civilized states.
Special attention is still to be drawn to the fact that he never suggested the voicing of a special protestation. He kept statistics on the jurisdiction of the Appellate Court. He was often aware that these sentences - perhaps even from a moderate point of view -- were very mild. But he never did anything to oppose it. But he certainly opposed the extraordinary objection, not infrequently with success, when an order came from the Ministry to examine the sentence. Here I may refer to the affidavit; BARNICKEL-Exhibit No. 9, Question 10.
Dr. BARNICKEL did not take up a different attitude towards aliens, on the contrary, more than once he pointed out to his experts that the significance of words of aliens should not be estimated too strictly. For himself he declined the Polish Ordinance which seemed to him too harsh. Where he had anything at all to do with Poles, it was not his fault if Jurisdiction and penal measures fell into the well-known tracks. If he had had the material of his department at his disposal, his attitude could be freely established. The majority of the not very numerous non-Germans who went through his department were certainly very much indebted to him.
Here I make reference to the statements of his colleagues MEIER, BAXMANN, BRUCHHAUS and SPAHR. Here too his eldest colleague Karl Spahr best strikes the root of the matter when he says every form of racial hatred or even only prejudice was completely foreign to Dr. BARNICKEL's nature. He did not get to know many people who even in the time of the severest pressure from outside were as thoroughly balanced in this respect as he was.
I may mention here another subject, which of course lies outside the professional activity of my client. More than once he made an effort to liberate persons from protective custody when he was applied to for help. It would be a mistake to imagine that this was easy for him. He had no connections and always intervened for people who had been taken into custody as enemies of the State, which always put him into a difficult position. This became particularly noticeable for him when in one of there cases a complaint which was very unpleasant for him was handed into the Senior Reich Public Prosecutor by the Gestapo.
Here I may make reference to the statements of Dr. Messerer - Exhibit No. 2, Dr. Fritz FULL- Exhibit No. 3, Dr. STIEGLER - Exhibit No. 38. From Dr. FULL'S statement it is seen at the same time that Dr. BARNICKEL knew no more about the number of Concentration Camps existing in Germany than the average German. Even the big camp at Neuengamme was unknown to him.
He knew as little about the catastrophe of the annihilation programs in the camps ..... these events occurred only when the war was quite far advanced and Dr. BARNICKEL had not had a sight of a camp since his Munich period.
Here I have outlined the spirit in which Dr. BARNICKEL did his work.
The documents which I submitted show that his colleagues in all the years made the same observations in him with amazing unanimity.
If one has heard the quotations from Dr. BARNICKEL's diaries one is not surprised at this spirit in his department. At the most the fact is surprising that it was possible to any extent to enforce it.
The work which arose from this spirit has already been stated in the direct interrogation of Dr. BARNICKEL. I must again make a compressed summary of some of it.
My client showed his aversion to e very racial theory above all by his treatment of Half-Jews. I recall the half-Jew UMRATH, who was sentenced to penal servitude for high treason, and to whom Dr. BARNICKEL gave leave of absence from prison because of illness; he even made it possible for him to stay in the Bavarian Alps. Here I may refer to the BARNICKEL-Exhibit No. 16. Another example is the proceedings against the half-Jewish Physician Dr. LAPP which my client had to conduct as President of the Chamber of the German Tribunal for Physicians in Munich. Dr. LAPP was in the first instance declared unworthy by the Court for Physicians to be a doctor on account cf false statements about his descent. Dr. BARNICKEL tried to quash the sentence and to restore to Dr. LAPP his profession. This was 3 days after HITLER'S speech of 26 April 1942.
My client was an express opposer of all retrospective laws. He always took the point of view that a retrospective law was a contradiction of the elementary ideas of the law. Never in his whole career did he use retrospective laws of his own free will. Here I may refer to the BARNICKEL -Exhibit No. 27 and 28.
In his direct interrogation Dr. BARNICKEL spoke about the proceedings against the former Czech physician Dr. HARTMANN, who, in the application of retrospective regulations, had been declared unworthy to practice his profession. Dr. BARNICKEL who considered it wrong to a particularly great extent, to punish a. man for an act which was not an offense in his former fatherland, here too set himself to quash the sentence and thereby gave a worthy person back his profession.
Here I may refer to the statement of Dr. DEDERRA, Exhibit No. 33, who discusses with particular appreciation the judicial activities of my client and the way in which he conducted proceedings.
In respect to aliens Dr. BARNICKEL's department never had any regional competence outside of the Reich borders of 1 January 1939. Insofar as aliens happened to be involved I have already pointed out above the principles he applied to them. I mentioned already that he had no sympathy for the policy towards Poles and the jurisdiction concerning Poles.
It is a pity that he has no concrete examples to show on this subject. I may, however; bring back to mind the case mentioned by Dr. BARNICKEL in his examination. This is characteristic of the way Dr. BARNICKEL used to treat foreigners.
In 1942 information had reached him about a young Dutchman having made preparations for high treason. Dr. BARNICKEL turned proceedings over to the General Public Prosecutor at Stuttgart. The Criminal Chamber of the District Court of Appeals Stuttgart sentenced the Dutchman for gross misdemeanor. In 1944 the files of the case were returned to BARNICKEL via the Ministry to consider whether extraordinary objection was to be declared. In his report Dr. BARNICKEL advised against this and; in spite of difficulties, succeeded in having opposure set aside.
I have already expounded the principles of my client concerning the measure of punishment, when speaking about his attitude. That this was not only a matter of theory was proven when the IInd Chamber of the People's Court, at a session at Frankfurt in 1943, pronounced death sentences to a.n extent strongly disapproved by Dr. BARNICKEL. He thereupon saw to it that arraignment was made before the IInd Chamber only if the death sentence seemed to be unavoidable. The other proceedings were handed to the General Public Prosecutors. Here it must be said, however, that this was not possible with all delinquencies.
Dr. BARNICKEL extremely liberal minded practice of relinquishing cases with the purpose to give the accused the benefit of the more lenient procedure at the Appellate Courts was thoroughly gone into during the examination of the defendant before the Court. He has stated that this practice was , to a great extent, applied in 1943 in connect ion with seditions undermining of the defense spirit and that he issued no directives whatsoever when relinquishing a case. Out of the extraordinary large number of these proceedings not even 5% were arraigned before the People's Court, and even of these only a fraction wound up with a death sentence, as my client has convincingly proven from Prosecution Exhibit No. 124, when interrogated by the Court. On this point, I refer to the statements made by my client when examined by the Court, and in addition to the BARNICKEL Exhibit No. 8, 9, 10, 28, 29, 30 and to the affidavit made by the Church Councillor KLINGER - BARNICKEL Exh. No. 36, and also to the affidavit ROSENBROOK - BARNICKEL Exh. No. 37. That Dr. BARNICKEL was not in a position to give up all proceedings needs no explanation. As mentioned before, a number of cases from the procedure against seditions undermining of the defense spirit had to be reported at rather long intervals to the Office Chief. At these conferences, to which later on, Dr. BARNICKEL was no longer invited, the Senior Reich Public Prosecutor made arrangements as to what was to be handed on, and what was to be arraigned before the People's Court. With these cases, cf course, Dr. BARNICKEL did not have a free hand.
May I here, in order to avoid mistakes, clear up two points? Dr. BARNICKEL's department had nothing to do with the so-called speedy trials which had been introduced since August 1943 for dispatching certain categories of proceedings concern ng seditions undermining of the defense spirit and wherein FREISLER pronounced many of his heavy sentences.
In cases of defeatism the Department of my client worked with the IVth Chamber. During cross-examination a judgment by the IVth Chamber for seditions undermining of the fighting spirit was laid before the court, but in this case indictment had originally been made for high treason. Dr. BARNICKEL mentions that in his department proceedings for high treason were also worked out; indictments were then passed on to the IVth Chamber.
Without going into further details, I may point out yet that the less serious case of article 5 of the Extraordinary War Penal Law is not identical with the case of lesser significance often mentioned when speaking on the practice of relinquishing cases.
What a blessing Dr. BARNICKEL's practice of relinquishing cases proved to be, can be seen from the affidavit of Dr. Stegelmann BARNICKEL -Exh. No. 30 which I refer to. The co-operation with several other Appellate Courts proved to be a similar blessing. It is no exaggeration to speak here of a silent agreement which saved many an accused from extreme judgment.
In closing this paragraph I may point out that; in a number of cases, my client brought about a judicial review in favor of the sentenced persons. During interrogation the typical procedure in favor of the student SEILER who had been sentenced to death and the striking success thereof were thoroughly gone into. In connection with this I refer to the affidavit BRUCHHAUS - BARNICKEL Exh. No. 34.
In summing up I may also mention that the Department Chief could grant certain alleviations of sentence to convicted persons in the manner of the already-mentioned case UMRATH. In this field Dr. BARNICKEL went to the furthest possible limit -- even with aliens. Otherwise he also granted alleviations to prisoners whenever this was possible. In this connection I refer to the statements by BRUCHHAUS, JANDER and SPAHR.
The endeavors of my client to defend the last remaining field of justice did not rest, however, with the work cf his department.
I may here mention the cases of his resistance to the Gestapo mentioned by my client in the witness-box. I refer to his attempt of having the Reich Public Prosecutor's Office fight out the conflict, by eliminating the Senior Reich Public Prosecutor in the investigation of the plot against HITLER in November 1939. I bring back to mind that he was ready to resign his Office for this occasion.
Furthermore I may refer to the action of all Department Chiefs of the Reich Public Prosecutor's Office during the fall of 1944 in connection with the case ELIAS and mention that FREISLER called this action of protest by the Reich Public Prosecutor a mutiny.
In both cases my client was not acting under compulsion. He was neither Office Chief nor Deputy Chief, nor had he any personal hand in these occurrences.
Finally I may point out that in the summer of 1943 my client protested against the unrestrained administration of justice by FREISLER and that before that he already made the attempt to win over other Department Chiefs to a common action against FREISLER, but without any success.
I refer, concerning these 3 courses of action, to the affidavit SPAHR - BARNICKEL Exh. Nr. 9, question 7.
HITLER'S speech cf 26 April 1942 has already often been mentioned here. Dr. BARNICKEL has told , in the witness-box of his reactions to this. I want to refer briefly again to this subject.
My client came to the conclusion soon after the speech that it was high time to act forthwith. The plan which he drew up aimed at the removal of a number cf men from HITLER'S entourage whom he considered to exert the most disastrous influence on his policy. Among this circle he deemed BORMANN, HIMMLER and HEYDRICH to be the most important. The aim was that HITLER should be placed under a kind of guardianship, and that his regime as well as the war should be gradually brought to an end The only organization which could be considered for such an operation was naturally the Wehrmacht.
DR. BARNICKEL, who had no wide-spread connections, found only one high officer among his circle of acquaintances to whom he could apply, and who seemed a suitable person for proposing this idea to the Wehrmacht. Then this officer came to Berlin, shortly after Hitler's speech, Dr. BARNICKEL laid his plan before him. It was a great disappointment to him when he was confronted with arguments based on the military situation of that time against which he could not prevail. He made an attempt, but the arguments put forward by his partner in the conversation could not be disregarded. Thus his plan came to nothing.
The whole thing was only the conception of a plan; all further details would have had to be worked out. The fact that even at that time there were plans in existence which had progressed much further was unknown to Dr, BARNICKEL. The idea of my client seems very simple to-day, just because it remained nothing but an idea. For himself it was much less simple at the time. He was resolved to sacrifice everything to this idea. If Dr. BARNICKEL had been successful at that time, he would have given up all control of his personal destiny, because he naturally could not know what would become of him in the course of further developments. I need not go into that any further. The fact alone of this conversation constituted an act of high treason.
Dr. Barnickel had realized this, and also the fact that if this plan should become known he would have forfeited his life.
Thus, when the Prosecution counts my client among those men who were prepared to suppress any opposition against the National-Socialist Germany, exactly the opposite is correct. May I refer to the Barnickel Exhibit No. 40 with regard to this incident.
One may perhaps ask oneself how it was possible for a man whose attitude was so wholly alien to National-Socialism to retain for such a long period an office connected with political jurisdiction. This question, your Honors, is quite justified.
They were years of struggle for Dr. Barnickel. The fights were mostly carried out on two different levels. In my client's opinion the centre of gravity in these fights lay on the level of political jurisdiction. His opponents, however, transferred it to the level of legal formalities and of formalities of procedure. My client consciously refrained from going into these matters in the witness box. They don't fit into the framework of this trial. I only want to say in this respect that there were far reaching differences of opinion between my client and the chiefs of the office. In this connection my client stated in his direct examination that he had gathered from his personal data file that he was being accused with a lack of harshness in his judgments in the field of defeatism. In reality, however, this was not only the case in that field alone. As far as the judicial harshness, as required by National-Socialism, was concerned, he had not fitted into the general framework during all those years. His colleague, Dr. Bruchhaus, states in the Barnickel Exhibit No. 28 that already when joining the Reich Public Prosecutor's Office, in autumn 1939, Dr. Barnickel was known to the authorities for his lenient attitude, and that the members of the Public Prosecutor's office who took a more severe view often had occasion to make deprecatory remarks about him. Dr. Heider - see Barnickel Exhibit No. 27 - who worked in Dr. Barnickel's department during 1942, states that it was generally known in the office that my client was regarded as "too soft" by the chief of the office.
If his attitude in connection with the question of defeatism in particular was commented on in his personal data file, this was due to the fact that this policy became particularly conspicuous in this kind of field. It is interesting that the prosecution accuses my client of having pursued an extermination policy in this same field. While he was able to prove in his direct examination with the help of Prosecution Exhibit No. 124 that just in the field of seditious undermining of the defense spirit an incredibly small number of death sentences were pronounced, the prosecution reproaches him with the fact that death sentences on account of defeatism had been a common place matter for him.
The continuous difficulties which Dr. Barnickel encountered because he pursued his own personal policy constituted a heavy burden for him. And they did not pass without leaving their traces, either.
He looked upon his official duty as a hard yoke. Even the afore mentioned Hamburg Prosecutor, Dr. Stegemann, had this impression, though he did not meet my client very often. "He always seemed to me to be weighed down by a heavy burden," Hermann Heider states in the Barnickel Exhibit No. 27, and a member of other witnesses have testified to the same effect, such as Dr. Unterholzer - Exhibit No. 26, Frau Wrede - Exhibit No. 31, and v. Besserer - Exhibit No. 40, as well as Wilhelm Vorwerk - Exhibit No. 19.
During these proceedings the question has been frequently raised, and also in connection with my client, "Why didn't you go?". Incidentally the prosecutor also asked a witness "Could you not be transferred?" or "Were you able to exercise a mitigating influence better by remaining or by resigning?"
All these questions are easily answered for my client. The question "Why did you not leave?"