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?"
was probably always put whenever there came a split in the body politic through internal or external confusion. Literature offers many examples. I have but just now cited Talleyrand and one of the most famous Americans, Benjamin Franklin, also seems to have dealt with this problem. He says in his autobiography that he made it a rule never to ask for a public office, never to decline one and never to resign from one.
Perhaps the question might also be answered by a counter-question "What do you do, if you notice that the ship threatens to sink? Do you as a member of the crew get at once into the life-boat or do you rush to the pump in order to do all you possibly can to prevent the ship from sinking?" In order, now, however to answer the question for my client in a concrete fashion: Already in the year 1939 he declared himself ready to ask for his dismissal from his office with the Chief Public Prosecutor of the Reich, in case the conflict already mentioned with Himmler and Heydrich should end with the defeat of the Chief Public Prosecutor of the Reich. Unfortunately, however, the conflict was not fought out.
In the Summer of 1942 he asked to be transferred back to the position of a General Prosecutor (Generalstaatsanwalt), as he wished to free himself from the political administration of justice which was weighing increasingly on him and from the strained relations with the Reich Public Prosecutors which were becoming increasingly oppressive to him. In this connection I may refer to the depositions of the witness Miethsam on 7 July 1947, p. 4874 of the English protocol. Dr. Miethsam, at that time sub-department chief of personnel (Personalreferent) in the Reich Ministry of Justice declared that Dr. Barnickel went to see him repeatedly on this account and wrote him several letters, that he appeared to him to be very much depressed and that he was willing to waive all claims accruing from the more highly paid office of the Reich Public Prosecutor.
This request of my client was refused, when Thierack became Reich Minister of Justice.
Dr. Barnickel had no claim to dismissal, promotion or superannuation It is sufficiently proved by documents and witnesses that already in the first year of the war it was made practically impossible by a decree for officials to resign and there were not the conditions of health laid down in the Civil Service Law to warrant superannuation in the case of Dr. Barnickel.
Consequently it was impossible for my client to leave the Reich Public Prosecuting Authority and so he made up his mind to hold out as long as possible in order to prevent a radicalization of his sphere of activity, which would necessarily had been bound up with each new appointment at that time.
In the Summer of 1943 he spoke about this with the present Bavarian Prime Minister (Minister-president) Dr. Ehard. He knew him, since Dr. Ehard had worked in the same room of the Public Prosecuting Authority in Munich in the year 1924 on the prosecution against Hitler. He had remained in touch with him. Dr. Ehard says in Barnickel Exhibit No. 45 concerning Dr. Barnickel:" I know that he saw the dangers of the NS regime throughout with open eyes, but thought he might yet mitigate these dangers substantially, if he could not avert them, by appropriate co-operation in the party or perhaps in the framework of professional possibilities. From his general attitude he did not give me the impression that he wished to identify himself with the regime. In the second half of the year 1943, maybe, he talked with me about the development of political administration of justice. In doing so, he expressed his concern about its further development, and especially viewed the growing influence of Thierack and Freisler with apprehension Dr. Barnickel said repeatedly that he was seriously thinking of withdrawing from the Reich Public Prosecuting Authority in Berlin, but that after mature reflection, ho considered it right after all to endure to the end, for if he were to withdraw a successor would only be appointed who would show himself more amenable to the National Socialist endeavors.
At the end of 1943 Dr. Barnickel changed his point of view. Friction at the office increased rapidly. The cases of seditious undermining of the defense spirit were handed over to another department. Likewise the cases of high treason which had hitherto been worked on in his department. His co-workers, likewise, went into other departments when this happened. He made up his mind that his time had come. He had suffered so much in health that an application for superannuation might perhaps succeed and so he made plans in this direction.
His attitude to his profession generally cannot be put more clearly than in the words which ho wrote in his diary on 8 February 1947:" It is a misfortune that just I entered on this course. Even if one is willing to adopt the attitude that everything is foreedained, I cannot possibly understand in any case how I have deserved this."
Exactly a week later he lost his home was injured in the fire and thus his activity came to an end for some time.
In the early Summer of 1944 it was suggested to him that he should retire. After some time there came a summons to appear before Thierack who threatened him with a disciplinary transfer to a judgeship of a local court - the lowest judicial position in the administration of the law - or compulsory superannuation.
Since the fight was not on the place of legal policy but was taken on to another plane Dr. Barnickel remonstrated. After a further consideration at the end of 3 months the Minister transferred him as a Reich Public Prosecutor to the Supreme Court of the Reich.
I interpolate: The Prosecution has broached the question as to the reasons for which Dr. Barnickel was transferred to Leipzig. The Prosecution's contention that the transfer occurred on account of insufficient severity is untrustworthy in view of the statement made by the co-defendant Lautz.
The documents I have introduced show that between Dr. Barnickel and the Chief of Office there had been difficulties over a period of many years. It would have taken too much time to deal with these questions here. It is a fact though that Dr. Barnickel wished to deal with this question in detail but he gave way, and finally mentioned the view that that was the resulting point from this procedure or rather that that was in compliance with the exigencies of this procedure. My client stated on the witness stand that the struggle was a division on one side on the formal side of business, whereas on his side the struggle was on the legal political side and occurred more than once. He posed the question to the Senior Reich Public Prosecutor as to whether his course was not right. More particularly he put this question as to defeatism to the Senior Public Prosecutor but he never gave him an open reply. But Dr. Barnickel in his personnel file in Berlin found a remark setting forth a lack of severity in dealing with defeatism and that he should therefore be removed from his position.
The defendant Lautz, in his final plea yesterday, disputed that statement made by my client after defense counsel stated the reason as to why Dr. Barnickel was relieved from his position, and that it played no part at all. Thus he tried to shake Dr. Barnickel's credibility on a decisive point. Much to my regret, I therefore find it necessary once again to clear up this decisive point for him, and I am very pleased to say all I can. By presenting clear documentary evidence I am in a position to clear up the matter. I have a photostatic copy of the extract from the personnel file of the office of the Reich Public Prosecutor, Dr. Barnickel, with the People's Court. From that file the defendant Lautz has already submitted extracts. This file contains a letter from the Senior Public Prosecutor, dated 14 Sept. 1944 and signed with the initials of the defendant Lautz.
On page 7 of this report it says, and I quote: "Towards the end of 1943 his cases were in arrears; and since there were not quite 200 cases at that time I thought a considerable number of arrears was due to the difficulties which had arisen on account of the fire in the People's Court, but after many weeks I had made up my mind to make some changes on the 1st of January 1944 in these matters. Reich Public Prosecutor; Dr. Barnickel, in my view lacked the necessary energy to push on and also he lacked the necessary severity in judging these cases and because of that I did not take any steps immediately."
This shows quite clearly that not a.s Herr Lautz submitted in his plea yesterday, the amount of arrears in Dr. Barnickel's department brought about a change but it was exclusively Dr. Barnickel's lack of severity.
The other reasons which are submitted are reasons of a similar nature and were of less importance although the Senior Public Reich Prosecutor had made both reasons for his report to the Minister of Justice and Dr. Barnickel in his discussion with Ministerial Director Letz, which took place after the Senior Public Prosecutor had examined the material; was told by Dr. Letz that the Minister had decide not to take into consideration the reproaches made by the Former Senior Public Prosecutor in the field of formal business. It is a matter of course that Dr. Barnickel would never have been sent to the Reich Supreme Court if the Minister or head of the personnel department had not thought he had the qualifications or reliability.
It is a different matter when we come to the charge of lack of severity. My client on the witness stand described Dr. Letz at that time, and told him he would much rather have that job than to be a Prosecutor with the People's Court. That shows Dr. Letz had a very reasonable and moderate point of view and in the course of this trial that has been confirmed by many persons.
Dr. Letz did therefore interpret the lack of severity in the transfer to the Reich Supreme Court as essen tially responsible for the transfer, and possibly the Minister too subsequently considered it a mistake that in 1942 that they had refused Dr. Barnickel's request to transfer him away from the People's Court although from this request alone showed he wanted to get away from the People's Court at any rate. Obviously, they now intended to make good that mistake by sending Dr. Barnickel to the Reich Supreme Court for which he had been suggested ever since 1932. One must also bear in mind that Dr. Barnickel was transferred as Reich Public Prosecutor, but that at the Reich Public Prosecution there was also a department for civil matters, and, therefore, it would have been only a question of a short period of time, to appoint him as a Judge for the Civil Senate.
The fact that Dr. Barnickel did not leave of his own accord at the first attack has nothing at all to do with the fact that he did not wish to give up his position. He would have preferred to go to-day, rather than to-morrow. But what concerned him was the kind of reproaches leveled against him.
On 1 December 1944 my client entered upon his duties with the Reich Public Prosecuting Authority in Leipzig. There he had a completely unpolitical position, and was happy about it, but unfortunately the collapse was soon to follow.
I must go back somewhat for one moment more for shortly before the transfer of my client he was involved in Berlin in the consequences of the events of 20 July 1944 and in this he let his attitude be quite specially soon.
Dr. Barnickel had nothing to do with the incidents themselves nor with the proceedings before the People's Court. But his advice and help were asked for by different individual who were closely connected with the men of 20 July 1944 and who knew what his attitude was. I refer in this connection to the deposition of Baroness Guttenberg.
Barnickel Exhibit No. 20, to the deposition of Dr. Fritz Full - Barnickel - Exhibit No. 3, further to the deposition of Frau Lilo v. Kramer - Barnickel Exhibit No. 32. The last paragraph of Baroness Schmidt's deposition - Barnickel Exhibit No. 21 is also of interest here. I will only deal shortly with the case of Baroness Guttenberg. She stresses the fact that she will never forget Dr. Barnickel's puright and energetic attitude. She says, too, that he opposed the sort of justice administered by the Nazi regime in the clearest words.
When one learns that Baroness Guttenberg, a relative of the would be murdered of Hitler, Graf (Count) Stauffenberg was also as early as 1934 one of the persons suspected by the Gestapo, one does not need to waste many words in pointing out to what dangers my client exposed himself at that time in order to be of assistance to her. Nothing was more obvious than that Baroness Guttenberg was being watched, for the official enquiries about the conspirators of the 20th July were still far from finished, Dr. Barnickel, who was fully aware of these dangers through his profession, did not let himself be deterred from granting her his support in the way described in the deposition.
If the High Court remembers the way in which Graf (Count) Montgelas in Nuernberg fell into the hands of the Gestapo, I have no need to say anything further about these things. Dr. Barnickel exposed himself with open eyes to the same dangers, because he wished to remain loyal to his convictions.
My client's attitude to the events of the 20th July will show in the clearest possible way whether he really was the blind adherent of the Hitler regime which the prosecution tries to make him out to be, or whether he was an adherent of the old civilization and a friend of individual freedom and tolerance.
I ought perhaps to speak also, on this occasion, of the dangers 16 0ct-M-FL-5&6-10-Cook (Int.
Hahn) to which my client exposed, himself through his special attitude, during the whole time in which he practised his profession in Berlin, but I assume that I do not need to toll the Court this any more expressly.
I come to the end.
National-Socialism was always designated by its leaders as a philosphy of life, that is to say, it was to be for the German the source from which he shaped his whole inner and outer life. Dr. Barnickel realized always that this was a mistake and he also touched this problem in his diaries. Since 1920 he spent his spare time studying the important religions and the big philosophers of all nations. Thus, for instance, he spent years, studying Buddhism, and there is hardly a book or even a small publication published on this subject in Germany missing in his library. Not a long time prior to the taking ever of power he participated for 10 days in a camp in Holland in order to listen to what the young Indian philosopher Krishna-Murthi had to tell the 3000 people assembled there from all countries of the globe about his conception of life. This is also evident from the affidavit SchenkOBarnickel, Exh.
No. 41 submitted by me.
Dr. Barnickel always tried to look at the world from a distant point of view. Considering the distance which he kept from the affairs, he could identify himself neither with Nazism nor with its policy. But he was also a member of his nation and he did not want to withdraw from the duties which resulted from this fact.
During his interrogation he quoted the words of an ancient Chinese philosopher in order to show his position relative to the political conflict at the time of the taking over of power. The Chinese philospher of a later epoch, known throughout the world Kung Tse, who in Germary is generally called Confucius, compressed the wisdom of his predecessors into the following words: If it is proper to leave, then leave immediately. It it is proper to weather it through, then weather it through. The deeper sense of both quotations is the same.
If it is proper, means for Confucius: After consulting the conscience. My client consulted his conscience and acted accordingly. He already stated it: If one is not at liberty one cannot act according to one's will, but can only try to maintain one's own course whereever possible. There exists a limit after which courage becomes a completely senseless sacrifice; and to do more than Dr. Barnickel did would have been nothing else than suicide.
It was easy to work during the regime in a quite position away from politics and the political justice and not to get into difficulties on account of this work. But it was not easy to oppose the political jurisdiction of the Third Reich without being confronted with numerous conflicts which could not be solved by an individual person. My client already stated that sometimes he felt as if he had been put between millstones, but he followed his conscience whereover possible.
Whatever he could do at that time and in his position, namely: to help, to mitigate and to maintain his personal course, which was based on decades of intellectual work, whereover possible, he did indeed.
The Prosecution has stated in a Trial Brief that the defendants applied voluntarily the "Nazi laws" issued, but the submitting of evidence proved in favor of my client that this is not correct.
In the Trial Brief it is also stated that the judges did not make use of their discretionary power. The prosecution sees thus the guilt in not applying a discretionary power which actually pould be applied by the judges. My client feels that in this respect too, he is innocent.
He tried also during the regime of the Third Reich to serve justice, because he had not forgotten that justice and wisdom are the fundaments of the State.
My client trusts that the Tribunal will see his conviction and his actions in the correct light.
THE MARSHAL: The Tribunal is again in session.
DR. ORTH: Dr. Orth for the defendant Altstoetter. Your Honor, I shall here present only part of my final plea and those pages which are not orally presented here I request that they be incorporated as part of the record.
THE RESIDENT: That will be the order of the Tribunal that the entire address as presented to us shall be incorporated in the record. I trust that proper information of these orders with reference to the incorporation in the record will go to the proper departments through the Secretary General.
DR. ORTH: Your Honors.
When being questioned before the Tribunal, the specialist witness Professor Dr. Jahrreiss called the German lawyers' position truly tragic. This aptly describes also the position in which the men on trial here found themselves; for none of the defendants here can be called a criminal by nature or inclination. If any of their actions, decisions and verdicts should now have to be regarded as crimes against humanity, then their guilt was brought about the by combination of powers and forces to which they were subjected by fate. This trial has given us a deep and convincing insight into the tragic and often so dramatic position of these men, who were destined by their career as highly placed officials of our state to carry out Hitler's orders and the state laws.
The defendants were not, and are not, the only Germans, who bound up with the political life and fate of their nation - find themselves faced with this tragic situation. The entire German nation was led by its responsible government, either against its inner wish, or with its abused consent, on an unjustifiable path, which not only exposed it to complete ruin as a nation, but also the dreadful and damning reproach of collective guilt. Now the dice of fate have decided that the men accused here stand before the forum of this Military Tribunal. Their fate has made them conspicuous as exponents of historical events which became the political and moral catastrophe of our society, a catastrophe such as has befallen the nations of this world time and again, the white man and the black, the yellow and the red, and whose motive power was as much spiritual and philosophical delusion as criminal madness, and also trust and faith, and patriotism and a sense of duty.