What guarantee, however, was there under the then prevailing circumstances that such a notification actually reached the individual offices of the court, One air-raid alarm followed the other, the Courthouse had suffered serious damages, the telephone service was not operating, there was no mail service and no street-car traffic. This, obviously , affected also the zeal and eagerness for work on the part of the intermediate officials who were making out the summons and ascertained the parties involved in the trial. It is therefore absolutely conceivable that the summons could not be served to the Attorney who had been bombed out, and I must energetically reject that in this respect any fact was evident for the malicious intent of the persons, in particular Oeschey, who were concerned with the summons of the defense counsel. Besides, the prevailing legal provisions dealing with the necessary defense were already rescinded by the 4th simplification decree, dated December 1944 and Count Montgelas had not objected to the absence of his defense counsel during the trial.
If it is a fact that Count Montgelas was only given a period of 24 hours for the last preparation of his defense, this may seem to be a short period today to one who observes the facts after the event. However, one must realize that the time of notice given to appear at trials of the Special Courts had already been reduced to 24 hours as a result of the competency decree dated 21 February 1940 (Par. 23 II). In addition to that one must realize that Count Montgelas, owing to his repeated examinations by the police and the Examining Magistrate who certainly did not exert any influence on Montgelas description of the facts, was familiar with the subject of the indictment and, through discussions with his defense counsel, would have had the opportunity for preparing his defense. Consequently one can by no moans assert that he had been sentenced by a summary procedure; for since his arrest he had 16 0ct-A-FL-18-4-Goldberg (Int.
Hahn) a period of almost two months at his disposal for preparing the defense.
Count Montgelas had evidently recognized the seriousness of the situation for a long time, therefore he has made a manly admission of his guilt and accepted the sentence allotted to him by law. Count Montgelas, in view of the undisputable facts, would have been able to make his defense with a certain prospect of success only if he had named the woman with whom he had conversed, or at least would have given her name. This, however, he failed to do in spite of the fact that he was asked to do so by the Court, evidently in order to protect this lady; at this time we are no longer in a position to determine the motive for his acting, whether Count Montgelas refrained from doing so for personal or political reasons, In any case, the very fact that the Count refused to disclose the lady's name - not only the defendant Oeschey has confirmed this fact in his testimony but also the witness Huemmer (Prot.S. 3980) - could not but convince the Court that this lady was not a Gestapo agent, but a personal acquaintance of the Count.
No proof has been established for the assertion that Ocschey was conspiracing with political authorities for the purpose of liquidating Count Montgelas shortly before the collapse. The contrary has been proven through the testimony of the Prosecution witness Mueller (Prot. page 3772) - Of just as little proof is the malicious remark allegedly made by Oeschey in an air-raid shelter which is merely attested in an unsworn statement (Prosecution Exh. 150, page 39), as it also has been established according to the Huemmer statement that Oeschey was not present at the execution of the Count.
The reason that of all the other cases tried by the Civil Court Martial I only emphasize the political cases is, because I assume that the conviction of a spoliator or a criminal against the war economy could involve any problems not yet dealt with. The cases Wahlrab, Rupp and Gottfried were of political nature.
There is no material available pertaining to these cases except the rather scanty statements of the witnesses Huemmer and Filbig.
Any fundamental divergencies between these statements and Oeschey's testimony are not in evidence. Consequently there is no cause given why the trustworthy and consistent testimony of Oeschey should not be followed. According to this testimony Oeschey was outvoted in the case of Wahlrab whose statements of seditious undermining of the defense spirit cannot be ascertained any more at this time. Rupp, however, deserved the death sentence according to the then prevailing legal provisions; Rupp had urged several soldiers to throw away their arms.
A somewhat clear picture can be obtained in the case Gottfried through the testimony of the witnesses Filbig, Huemmer and Oeschey, who wore interrogated in this matter. Gottfried, at that time, has prevented the defense measures ordered by the Wehrmacht and has given a statement regarding these defense measures to the american troops. For such an act he would have been sentenced to death by any Court and the fact that both co-defendants of Gottfried were acquitted in broad realization of the then prevailing situation, proves in my opinion the independence and courage shown by the members of the Summary Court Martial Gottfried was tried in a regular proceeding, there was no lightings trial. Oeschey was not present when he was executed.
The records of the Court Martial show that, in spite of the harsh laws, out of a total of 12 defendants, three were acquitted, three were committed to the regular Courts and 6, that is half of the defendants were sentenced to death, the only admissible penalty. Further proceedings against 25 members of the Volkssturm were not intentionally carried through by Ocshey and Schroeder because the competence of the civil Court Martial was extremely doubtful for proceedings of that kind. This is not a justice based on terror or bloodshed. The fact that the Civil Court Martial did not judge according to Nazi-political views either is shown on the one hand by the death sentence against Rupp who was a political leader, on the other hand by the acquittal of the shoemaker Dirscherl who was an open and declared opponent of National Socialism.
Even if it may seem tragic to us today that at that time, in other words at a moment when the war was objectively lost for a long time, people were still subjected to trial before this Court and eventually were executed, one must nevertheless be on guard not to attach a legal significance to this argument; for every German who has contributed in any way to the conduct of this fatal war - and that was the case directly or indirectly with all active Germans - could eventually be held responsible on the basis of the same argument. It is not decisive whether Judge Oeschey has continued to fulfil the duty, conferred upon him, up to the first or to 15th of April 1945 but whether in carrying out his duties he acted in accordance with the provisions of the law, as an objective and humane judge.
May it please the Court, these are my statements to counts II and III of the indictment which, after count I has been settled through the decision of the Tribunal on conspiracy, contains the main charges of the indictment. Oeschey is accused of a particular responsibility in counts 11 and 23 of the indictment while counts 9 and 21 in general object to the activities of the so-called extraordinary Special Courts.
Counts 9 and 11 refer to war crimes, that is, crimes committed on foreigners and Jews. To be particular, count 9 refers to "Suppression of the political opponents of the Nazi regime", and count 11 to the classification of "passive defeatism, minor offences and insignificant remarks as high treason". This leads to the conclusion that only the eventual participation of Oeschey in convicting non German persons for political offences can fall under these counts of the indictment.
However, it has not been proved that Oeschey pronounced any death sentences for political crimes by foreigners or Jews.
To be sure, the Prosecution has attempted to give a political coloration to the case of the "Freikorps Plaerrer" and the case where foreigners circulated ration cards that had been dropped from airplanes. However, it has been proved beyond any doubt that both were cases involving a general, genuine criminality. And so Count II of the Indictment seems to me refuted for this reason alone. And even if one should give a broader interpretation to Count II and also include general criminality in it, then nevertheless, according to what has already been brought out, there has not been a single case where any objection could be raised against Oeschey on account of his conduct or his administration of justice with respect to foreigners and Jews within the meaning of the indictment. I therefore come to the conclusion that Oeschey is not guilty under Count II of the Indictment.
In Count III of the Indictment - crimes against humanity - I already mentioned Figures 21 and 23 as relevant. 21 refers against to the "suppression of the political opposition". Figure 23, to be sure, does not contain an express reference of this kind to political crimes; however, through its reference to Figure II it indicates that the charge is to be exclusively or chiefly that of participating in political trials, in this case also trials against German citizens. Oeschey's participation in trials of a political nature is very slight. With the exception of the Civil Court Martial cases of Count Montgelas, Rupp, Wahlrab and Gottfried, at the most only the Strobel and Therese Mueller cases during the time of the Cavil Court Martial can be considered political cases which ended in a death sentence. These cases have been thoroughly discussed and clarified as much as possible. He conduct of Oeschey which could be considered as a crime against humanity is apparent. Neither the trial nor the verdicts show any deviation from law, and the same holds true for the cases of general criminality, of which a large number were discussed.
If the Prosecution raises the charge of murder against Oeschey, then it must be made clear that any act of killing could only be found in connection with Oeschey's judicial activity, that is in applying the laws of his country. By its very nature, then, this judicial activity can only be criminal if it constitutes, in a concrete case, a perversion of justice, that is, a deliberate and voluntary abuse of the law established by the State. However, no case of the perversion of justice could be proved against Oeschey; on the contrary, all the witnesses examined on this point have unanimously declared that Oeschey never committed a perversion of justice. That refers to his application of both procedural law and substantive law. Every defendant received a trial by due process of law, with regard to both fact and law, in every instance the facts of the case were exhaustively clarified, the law was applied to it in a responsible and conscientious way, and he deliberated to the best of his ability on what punishmmnt was deserved according to the requirements of the law, A judicial endeavor of this kind is free from the stain of any criminal action and criminal intent, even if subject to the imperfections of all human effort.
THE PRESIDENT: Before we take our recess, I want to bring up one matter. The Secretary General informs us that he has not received proper copies of all the arguments of Defense Counsel. They are requested to hand over to the Secretary General two copies each of the English and two of the German text of their arguments one being for the record and one for the archives. And now we will take our recess.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DR. SCHUBERT: I now come to an interpolation, Your Honors.
In Appendix III to the final plea the Prosecution arrives at a conclusion which is altogether correct, that in Article 21-B the Control Council Law 10, and the same is true of Article 21-C, requires for one of the incriminating offenses a definition under penal law according to the standards that apply within the state, and that offense is murder; but if the Prosecution then proceeds to draw the conclusion that the authors of the Control Council Law had been having in mind the common law definition of murder as they did not think it necessary to give a express definition, then one can say with the same justification that the authors were having in mind the French or the Russian definitions, as among the authors of Control Council Law there were French and Russian delegates with the same rights. Therefore, one does not arrive at a solution of the problem by that argumentation. It is difficult to understand why the Prosecution who in their Appendix III quoted Article 43 of the Hague Land Warfare Convention, charging the defendants in this trial with the point that they had not treated the inhabitants of the occupied countries that were occupied by Germany at the time according to their own laws while they don't grant to the inhabitants of the German Reich now under occupation the same benefits, that is to say the benefits of Article 43 of the Hague Land Warfare ConventionI think that two standards have been applied here. Therefore I arrive at the only possible conclusion if the authors of Control Council Law No. 10 did not draw a more closely defined definition of murders, by that reference they wanted to leave the interpreation of murder to the German law which under Article 43 of the Hague Land Warfare Convention is to be applied unless there is an obvious obstacle in their way, and that the Land Warfare Convention, the IMT says has described as being valid international law. In 1939, however, the rules laid down in the Convention had been recognized by all civilized nations and were being regarded a compilation of the laws and the customs of war to which Article 6-G of the statute refers.
Schwarze the commentator of the Penal Code in Note 2-C , ad paragraph 211, says in the case of murder intention is necessary. It consists in the knowledge and the will to kill a human being illegally. Olshausen in his note 9 ad Article 211 states the same. Under Note No. 2-B, add Article 211, Schwarze says the act of killing must be illegal, an act in virtue of an official or professional duty renders the person free of punishment. That applies to official or professional duty renders the person free of punishment. That applies to the killing of a person in the case of an execution. From that it results that the intention in the case of murder must refer note solely to the act of killing, but also to the illegality of the act of killing, but such an intention must of necessity be absent in the case of the judge when he passes a death sentence without defining the purposes of the law. Such a judge, therefore, cannot commit murder. The question of defining the provision of the law is connected with the further question as to what law the German judge was allowed to apply. Concerning that question the Prosecution does not take up a clear point of view. In Appendix III for their final plea the Prosecution refers to Article 21-C of the Control Council Law, from the last sentence of which persecution for political, racial or religious reasons without regard to the fact whether the national law of the country in which the act was committed was violated. The Prosecution concludes that obedience to national laws must be excluded as defense, but referring back to the case of the judge, it would mean that the application of a German law perhaps in a political case might be illegal and therefore may constitute a crime against humanity, and that leads to the conclusion which Professor Jahrreis ip his examination and under cross examination described as follows with the concise words: He may do as he likes; he always does wrong.
The last conclusion from that would he that the German judge in that conflict would have had to make the sacrifice, the very sacrifice which the Prosecution does not expect him to make. That reflection alone leads us to the point that the interpretation which the Prosecution has attempted to give the Article 21-C cannot be correct. He arrive at the same conclusion when we discuss the text of the law. Article 21-C says no more and no less than that to establish whether a crime against humanity has been committed; it does not matter where the crime was committed, violated or not, that is to say, whether the perpetrator of a crime against humanity at the same time has violated a law which prohibits such an act or whether such an act is not covered by any legal prohibition, or finally whether the law which prohibits the act has been rendered invalid by special regulations for the case in point. Interesting for this case is the Euthanaisa or the case of a police official who orders the execution of a Jew, but Article 21-C says noting about it that the civil servant whose task it is to apply the law to certain facts of a case, that is to say that the judge, the public prosecutor, the Justice officials should be prohibited from invoking the proper application of the law. It is an entirely basically different thing whether an act does not violate a law -- and only that case interests us here -- or, whether an act consists in the very application of the law. The Control Council Law was having in mind only the first, that is the negative case, not the second, the positive case, the case of the proper application of the law. The Prosecution continues to argue that a national law which covers prosecution for racial, political or religious reasons covers it or orders it cannot be used for defense. That is an assertion about which in truth one may argue, but for the moment I will assume that it be correct. What conclusion is to be draw from that? The fact that the Control Council Law speaks of persecution indicates that particular importantance it attaches to this word, it cannot refer to any prosecutions. I think every state allows prosecution for high treason or for treason, and that is to say for political reasons, or for instance for sacrilege or for religious reasons.
The limitation which is absolutely necessary results from the word "persecution." That indicates that a special treatment and exceptional treatment is to be applied. The racial or religious reasons lead to persecution within the meaning of the Control Council Law if they are being used to subject the person concerned to a treatment which either has not been deserved at all or which he has not deserved on that scale, and which differs from the treatment which is customary in such a case, and a treatment such as is accorded to all other persons concerned and which is to the disfavor of this particularperson concerned, that is to say for example: If a foreigner who renders himself liable to punishment is sentenced with severity only because of the fact that he is a foreigner. The Prosecution has charged Oeschey with such cases but it has failed to prove them. That is a bad selection, and I would like to characterize it in brief. Now I refer to the case Kamminska, the violent criminal; Strobel who was convicted on large-scale food thefts, Giani and Sala who committed one burglary after another. Klein and Eisenberger the burgulars; Jancovitch the looter, and Manchube the robber. In every single one of these cases one would have been a parallel case committed by a German national, nor does the case of Strobel constitute a case of political exceptional treatment. If one wanted to consider him a political case at all, I would refer you to treatment. If one wanted to consider him a political case at all, I would refer you to the case of Koein and Eisenberger which were dealt with by Schroder under his cross examination and the practice of the Reich Supreme Court on which Oeschey testified as a witness.
Therefore, I cannot perceive any guilt on Oeschey's part under Count III, just as under Count II of the indictment.
Oeschey is also charged with membership in criminal organizations. Under Figure 33 of the Indictment he is designated as a member of the Leadership Corps of the National Socialist Party of the Gauleiter's level.
However, this description does not correspond with the phrasing of the verdict of the International Military Tribunal on page 16939 of the transcript. The English text of the reasons for the verdict expressly used the German word "Amtsleiter" and still further restricts the extent of the group of "Amtsleiter" in a subsequent clause. Above all, only such Amtsleiters are to be considered participants in a criminal organization as "were chiefs of offices on the staffs of the Reichsleiter, Gauleiter, or Kreisleiter level."
Neither of these definitions applies to the defendant Oeschey. Oeschey was not an Amtsleiter. He was never formally appointed to this position. However, in order to convict him on this count of the Indictment it would first be necessary to establish that he had been appointed Chief of the Gau Legal Department by the party agency which was duly authorized to make appointments as Amtsleiter. Now, in my Document Book II I have submitted as Exhibit No. 30 an excerpt from the Organizational Book of the NSDAP, issued in 1940, which lists the agencies authorized to name and appoint Political Leaders. I have selected the 1940 edition because Oeschey entered his Gau office in 1940. A distinction must be drawn between the "Berufung" (provisional appointment) and the final "Ernennung" (appointment). Only the latter is of any authority to show whether the person appointed actually became the holder of an office. In Table B on page 5 of the above-mentioned document a chart is included in which it can be seen under "Gau" that the appointment of Gau officials with the rank of Amtsleiter and up is made by the Fuehrer, and that the Fuehrer's Deputy, the subsequent Party Chancellery, has to sign the appointment. However, Oeschey was never appointed Chief of a Gau Legal Department by the Fuehrer or the Fuehrer's Deputy; he was merely temporarily entrusted with the management of the legal office of Gau Frankenoma by an order of the Reich Legal Office of the NSDAP of 30.7.1940, an order which the Reich Legal Office, as I have previously explained, was not at all authorized to issue.
The affidavits submitted by me (my Exhibits 10 and 14) show that Oeschey was never more than provisional chief of a Main Gau Office, namely the Main Gau Office for Legal Counsel in the Gau Legal Department. This is further shown by Exhibit 584 submitted by the Prosecution, dated 10 August 1942, and signed by Oeschey with the official title "Provisional Chief of the Main Gau Office" ("kommissarischer Gauhauptstellenleiter"). This Prosecution document provides valuable support for the statements in my Daenzl affidavits (my Exhibit 10), according to which Oeschey had been duly appointed Provisional Chief of the Main Gau Office by Kreisleiter Aimmermann, who was entrusted with the conduct of business in the Gau, and signed all documents with this official title.
In this connection it must not be overlooked that from August 1940 until its final dissolution in August 1942 the so-called Gau Legal Department existed only on paper. As a result of tho restrictions made necessary by the war all of the 5 Main Offices of the Gau Legal Department that had been originally planned wore shut down with the exception of a single one, namely the Main Office for Legal Counsel. Accordingly, it is no accident that Oeschey was not appointed Chief of the Gau Legal Department. The Gauleiter's Office, indeed, saw that as a practical matter the Gau Legal Department no longer existed and logically transferred to Oeschey only the provisional direction of the one section of the Gau Legal Department which was still left, the Main Office for Legal Counsel. Oeschey was, therefore, not an Autsleiter within the meaning of the IMT verdict. He belongs to the persons who were excluded by the verdict from tho declaration of membership in a criminal organization.
Neither was he a department head in the Gauleiter's Office. If the IMT verdict so expressly emphasizes this condition, then one must realize that they were laying particular stress on the fact that not all Autsletier are to be considered members in a criminal organization, but rather only those who were themselves chiefs of a staff of some importance. However, as likewise appears from my Exhibit 10, Oeschey had only one, or at the most two, woman typists at his disposal; he did not have one male assistant with the rank of a Political Leader who could have been subordinate to him, nor any other employees, but above all he had no sphere of tasks which required him to work on his own initiative and would have permitted him to act independently.
I shall also refer to the following, only by way of precaution:
The IMT verdict requires that those persons who are to be regarded as members of criminal organizations must have acquired or retained their membership although they know that the organizations were being used for the commission of crimes according to Figure I, 1 of the Charter of the Control Council.
Concerning the question as to what this knowledge signifies within the meaning of the IMT verdict my colleague, Dr. Maensel, has submitted a Trial Brief to the Court in which the problem is exhaustively discussed. We come to the conclusion that mere knowledge alone is not enough, but that the members must have also voluntarily adopted the aims of the criminal organizations. The burden of proof regarding knowledge lies on the Prosecution, as this has been explained in more detail under VI of the Trial Brief. The Prosecution has apparently recognized that this burden of proof is incumbent on it and attempts to prove through a number of witnesses and documents that the Knowledge of the criminal aims was a general one. This proof, however, is not convincing, nor does it agree with the findings of the IMT verdict, which, for example, in discussing the Corps of Political Leaders of the NSDAP, defines exactly the sources of special information which are to be taken as a reason for presupposing knowledge on the part of Party office holders in individual cases. This knowledge, therefore, was not a general one, but was based on special information which was not accessible to everybody, and which in particular the defendant Oeschey did not possess, either, as he himself has credibly stated on the witness stand without refutation. If the Prosecution, on the other hand, has introduced a witness with pictures and documents concerning the evacuation of Jews in Wuerzburg from which it is apparent that certain employers had knowledge of the evacuation of their Jewish employees which was then imminent or already begun, then this is no proof that Oeschey knew that the Corps of Political Leaders participated, as was charged by the IMT verdict, in preventing German public opinion from rebelling against the enslavement of the Jews. In this connection one must just stop and consider what Oeschey actually had to do in his Party office and how he carried out the duties of this office. From the affidavits which have been submitted by me, especially my Exhibits 3,5,8,10 and 14, it appears that Oeschey's essential task in the Main Gau Office for Legal Counsel consisted of providing material and advisory assistance to persons seeking justice.
As is shown by a number of proven examples, he did this without personal profit and without regard to party membership or to whatever may have been the political opinions of the person concerned, and he gained a good reputation for himself in Nuernberg from this work. The people know that there was a man in the Gau office to whom they could turn in questions of legal difficulties and from whom they could receive assistance. This assistance also extended to political matters, that is, cases where political offices were opponents or had an interest in a specific solution of the case. Cosehey was not called in at all for work of a really legal-political nature. Besides legal counsel, he was merely given complaints which were mostly directed against judicial measures. For him, as a member of the Court, working on these complaints was a painful task, which, however, he undertook with great tact, so that the interests of justice were not injured or even once distrubed. Contrary to the instruction which he received as a party official, he did not forward complaints of this kind to the Party Chancellery, as was prescribed according to Klemmis's testimony (transcript, p. 5087), but saw to it by direct contact with President Doebig of the Obewlandesgericht that nothing ever happened to the disadvantage of the person concerned. Considering the influence which certain Party circles could exercise at that time and the energy with which such complaints were followed up, as we now from experience, this was certainly no easy task. It would be superfluous to go into individual cases. I should only like to emphasize that even the complaints in the case of Doebig, to whom, judging from the length of the Prosecution speech, more importance was attached than was really his due in view of the more personal nature of this dispute between Rothaug and Doebig, did not make his situation any worse, but merely -- and probably not least through Oescheg's intervention -- led to his transfer to another office.
Oeschey did not derive any personal advantages whatsoever from his party work. In the last analysis he had only his professional qualifications to thank for his promotion and he did not receive any further promotion in spite of the warm recommendation of Gauleiter Holz; this fact might also serve as a proof that in the final analysis professional ability and seniority were the decisive factors in the majority of cases of promotion even in the Nazi state, and that the suggestions of Party offices were nothing more than suggestions which could be regarded or disregarded by the competant authorities. Oeschey's attitude and activity in the Party, therefore, in no way indicates a criminal intention which could be considered knowledge of the incriminating actions of the NSDAP within the meaning of the IMT verdict.
Oeschey's sphere of tasks in the Party was also not one which was likely to furnish him any knowledge of criminal actions of the Party. Thus, the germanization of non-German areas, the persecution of the Jews, the carrying out of the slave labor program, the mistreatment of prisoners of war, including the lynching of Allied airmen, had no point of contact with his Party tasks. He had to deal with foreign workers only in his work as a judge; however, no foreigner ever complained in court about illegal measures taken by German offices. Oeschey twice came into contact with Jews in his capacity as a judge. One case was an offence involving foreign currency committed by a Jewess, the other a malicious attack on State and Party committed by a Jew. Neither case was one which was likely to give him any knowledge of the participation of Political Leaders in the persecution of the Jews. As a judge he was not able to acquire any knowledge of what happened to the Jews during or after their term of punishment, since he had nothing to do with the execution of sentences and penal administration. The germanization of nonGerman areas and the mistreatment of prisoners of war are completely remote from Oeschey's sphere of activity in the Party and as a judge.
Now, one more interpolation. There are seven points which are incorrect in the plea of the Prosecution. Concerning these points which need correcting, are:
One. Oeschey is supposed to have described himself as a convinced Nazi, and I too am supposed to have described him as such in opening speech. Both are incorrect. It was merely testified that Oeschey joined the NSDAP for conviction.
Two. In No. 3, 4, and 5 Oeschey is called a liar because he testified that before 1940 he never acted as an expert for the Nazi party, although on the 27th of Sept. 1935, he gave a lecture to the jurists league. Those two points are not contradictory for that lecture was merely a professional lecture about the law, concerning the unity of the party state, and it was held before a small audience in the jurists league, that is to say, it did not constitute any work as export for tho Nazi Party. Oeschey, who is well familiar with Prosecution Exhibit 409 did not think it necessary to make express references. Other witnesses have established the fact that there is no contradiction here.
Three. In the Prosecution plea it says in August 1942 all Gaurechtsaemter in the Reich were dissolved, which is correct, and I think that what the Prosecution meant to say was that the Gauhau pt rechtsameter were dissolved and as far as they still existed they were incorporated into the Gaul Staff Office.
Four. Tho Prosecution has no doubt that Oeschey was a member of the inner circle and an intimate friend and advisor of the Gauleiter. As no evidence has been submitted to substantiate this assertion, for the tribute made to Oeschey's work and abilities in a letter from the Gauleiter means no more than an evaluation given by a superior in office. I can only assume that the statement in the Prosecution plea represents only the personal unfounded opinion of the Prosecution. My Exhibits 2, 3, 4, 8, and 14 shows that to the contrary.
Five. According to the Prosecution Exhibit 561, Oeschey is supposed to have had knowledge of the transfer of Jewish real estate.
However, the Prosecution itself has taken the view that the contents of the document contained in Exhibit 561 did not originate with Oeschey but with Rothaug, Oeschey, therefo re, could obtain knowledge of the matter only in December, 1942, that is long after it was settled. The same is true of the deportation of Jews. Exhibit 561, for the rest, says nothing about the participation of political leaders of the Nazi Party in the persecution of Jews.
Six. Prosecution Exhibit 584, a letter from Oeschey to Doebig, dated 10th August, 1942, is supposed to be proof for his criminal interference with the administration of penal law. If one reads that letter one sees that it is worded in an altogether polite and moderate terms. It is addressed to the president of the district court of appeal.
16 0ct-A-FL-22&23-1-Cook (Int. Steuer) If one reads through the letter one sees it is worded in an all together polite and moderate term.
It is addressed to the President of the District Court of Appeals and contains observations of the District Court of Appeals concerning obvious legal mistakes which occurred in the practices adopted by the Juvenile Chamber. It does not constitute an influence on pending cases. No criticism can be exercised on the letter concerning the formal and contents.
7. Concerning Prosecution Exhibit 561, the letter which Holtz wrote dated 18 March, I do not think there is any need for me to voice my opinion.
Therefore, I also come to the conclusion in Count IV of the indictment that Oeschey is not guilty, because he did not belong to the group of Political Leaders who have been declared members of a criminal organization by the INT, necessarily so because he lacked any knowledte of the criminal aims and actions of the Party and did not participate in them,
DR. SCHILF: For the defendant Mettenberg.
THE PRESIDENT: Are there English translations?
DR. SCHILF: Yes, Your Honors, I believe it is available.
THE PRESIDENT: We have not received them. Do you have the argument for Mettgenberg?
DR. SCHILF: Yes, Your Honor.
THE PRESIDENT: They have not yet been received as of the recess and it may be they have been delivered since. Do you know when they were delivered?
DR. SCHILF: The translation was delivered, I believe, Monday morning. It must be available, because as far as I know the Translator had it available and apparently it is just a few missing copies.
If your Honor approve, I would propose that Dr. Aschenauer for the defendant Peterson read his final plea. That seems to be available in 16 0ct-A-FL-22&23-2-Cook (Int.
Stouer) sufficient number of copies of the translation.
THE PRESIDENT: Very well. The same difficulty appears in this case. (Document are produced) We will hear the argument in behalf of the defendant Peterson:
DR. ASCHENAUER: Your Honors, May I start my final plea? With the approval of Your Honors I will read only excerpts of my final plea but I would ask nevertheless the entire final plea be included and accepted into the record as submitted to the Tribunal.
THE PRESIDENT: That will be ordered as in the other cases. The Secretary General will advise the necessary departments to incorporate in the daily transcript the entire transcript as written and any interpolations which you may add.
DR. ASCHENAUER: Your Honors:
May it please the Tribunal General Taylor believed to be able to indict the members of the Reich Ministry of Justice, the Reich Public Prosecutors and the Judges in the name of the civilized people of the world.
He believed that a new standard of right and wrong had arisen, caused by the jurisdiction in the years from 1933 until 1945.
General Taylor overlooks the historical facts. At all times the possibility existed of a conflict between law and justice, between the letter of the law and the ideal of justice. Just because he thought to be bound to the higher law instead of to the law in force in the City State, it was Sokrates' fate that he had to drink the cup of hemlock. Antigone, too, died, because she did not observe the orders of the king "because of a binding force, and no human being came over come the unwritten, everlasting law of heaven."
The conflict between the codified law and the higher law which arose during the trial is not the result of the National Socialist revolution but that of a development which took centuries. During the first half of the 19th century the natural law was subject to an extensive undermining.