-A-BK-24-8-Gaylord (Int. Steuer) the war The war is the basis of these crimes.
It must be pointed out, therefore, that according to the deposition of Lord Mayor Dr. Menge whom Dr. Goerdeier had named as his deputy, the supreme SACommand was against the war. He said that in August 1939 Lutze had spoken out very forcefully against war with Poland in a conference with Hitler, when the latter and Dr. Goebbels had advocated it, (Petersen Exhibit 119). It is in line with this attitude, when Max Juettner states in Petersen Exhibit 117: "That among other things is the reason, why Lutze was regarded as defeatist in wide Party circles, no less knows was his hostile attitude toward the Gestapo state. It is from this angle that Petersen's appointment as lay judge of the People's Court is to be viewed. As far as I am informed, Petersen was a vehement opponent of Himmler. At the request of the judiciary SA leaders were nominated by the Chief of Staff of the SA for the office of lay judge at the People's Court. The decision in regard to the nominees rested with the Chief of Staff himself. The latter, as a master of principle, always selected unblemished, respectable, experienced and sedate SA leaders from the higher and medium ranks band of fairly advanced age. Petersen was nominated in the first place because he was a man with the best of reputation. He had a large store of experience. Petersen was an extremely fair-minded man, inclined to reconciliation and leniency. In cases of dispute he always strove for a reconciliation and patience with human weaknesses. Frequently Petersen reported to me about the unpleasant things going on at the People's Court owing to the ever-increasing severity of wartime legislations. He repeatedly wanted to resign, but I pointed out to him that he, as an advocate of humaneness and justice in all situations of life, was the very man to stand for and vindicate the principles of humaneness before the People's Court". A statement to the same effect is made by Oskar Milberg in his affidavit who points out how dissatisfied Petersen was, both with the harshness of the legislation and the attitude of a part of the members of the People's Court in l6 0ct.
-A-BK-24-9-Gaylord (Int. Steuer) applying a more regorous interpretation of the law.
He staled, literally: "At times he carried his indignation to the point of odiously contemplating retirement from this office. If in spite of all that it never came as far as that, it was because he wanted to avoid eliminating his moderating influence, and moreover, to do his share on his own initiative towards the prevention of harshness and to see to it that leniency was shown in a great variety of causes. I think I can remember that also SA Obergruppenfuehrer Juettner, who saw eye to eye with Petersen again and again, dissuaded him from resigning from his office as lay judge at the People's Court in order to secure his influence so that clemency and humaneness might prevail in the judgment." (Petersen Exhibit 121).
The affidavits of Maria Weichel (Petersen Exhibit 122) and Mathilde Lindner show the same tenor. The last proof for Petersen's attitude was furnished by the witness Dechant who stated: "It was Petersen, who as Chief of the Personnel Main Office of the Supreme SA Command, was responsible for bringing about a decision of the Chief of Staff according to which no full-time SA leader could be delegated to the office of lay judge at the People's Court any longer after July 1944. or thereabouts. At the same time the Chief of Staff promised to effect the withdrawal of the full-time SA leaders employed, as lay judges by consulting with the Reich Minister of Justice." (End of quotation).
Could Petersen adopt any other altitude? This Court aill surely remember the heated clash between Petersen and Gauleiter Jordan. Unfortunately, owing to the attitude of the Soviet occupation authorities, I have only circumstantial evidence to offer in this trial. The affidavits of Erich Morgenroth, Dr. Karl Ludwig Wolters, Dr. Hoffmann and Gerda, Moench (Petersen Exhibit 113 through ll6) disclose the complete picture of Petersen's fight against the all-powerful party hierarchy. He fought relentlessly against the ascendancy of the Party over the State administration. Because he could not prevail, he ostentatiously tendered his resignation as Councillor of State. This 16 0ct.
-A-Bk-24-10-Gaylord (Int. Steuer) man could not change his nature.
Petersen could not possibly harbor ( any intentions aiming at the extermination of political opponents. In. this connection it is wrong to point to his own affidavit. It has been clarified how it came about.
The witness Dochant gave us a description of in what state he found Petersen: "Physically broken, suffering from chronic heart trouble. Petersen was a sick man, hardly able to keep down his food. In spite of that, he was taken to Nuernberg alone in an ambulance." (End of quotation).
The consequences of this ailing condition were inevitable. The affidavit only reflects the symptoms of his illness. The physician of the prison, Dr. Pfluecker said, and rightly so (Petersen Exhibit 36): " When it was explained to me that Petersen is 6l years old, that he is 24 kilos underweight and that he was fairly low as early as in the summer of 1946, I think it possible that Petersen would not have signed the affidavit of 3 December 1946, drafted by the interrogator, had he been in a normal condition". (End of quotation).
Furthermore, a study of Petersen Exhibit 37 and 38 also shows up the basic misunderstanding in regard to the meaning of the word "to exterminate" .
It can only be called an irony of fate if one imputes to Petersen the intention of exterminating political opponents, as the Prosecuting authority appears to do, not having bothered to prove what attitude Petersen took and how he voted in the individual cases which have been presented.
There is no need for me to waste many words; permit me to tell this Court just two episodes which took place when it became known that Petersen had been indicted.
It was not so much Petersen's defense which endeavored to obtain affidavits. K.Z. prisoners whom Petersen got out of the concentration camps although he did not know conditions there in detail, in other words political opponents or their relatives, were the persons who brought their affidavits right to Mr, Petersen's house.
So it happened that I had to return these affidavits "because they were not drawn up in due form. I merely presented a certain number. I remember the affidavits Schneider, Mueller., Pfau, Steiner, Heiseler, Pink, Sckocnin, Boeck, (Petersen Exhibit 127, 128, 129, 130, 131, 132, 133, 135).
The second episode, which the witness Erfurth would have reported, had he not been prevented from coming to Dessau, is as follows: "The citizens of Dessau wanted to make a list and a description of Petersen's attitude and to submit it to the Tribunal, in order to bring about his acquittal. Petersen's main qualities are eagerness to help, regardless of Party-membership, respect for personal convictions of others and hatred of any violent measures on account of differences in political opinion (Petersen Exhibit 126).
It thus happened in the case of Gertrud Dantzer (Petersen Exhibit 136) who like other women whose husbands were kept in protective custody, applied to Petersen, that he devoted himself wholeheartedly to the task of having those kept in custody released, because he did not consider it justifiable that somebody was taken into protective custody because of his political convictions. Therefore Petersen also was loyal to the Wilhelm Leuschener family (the latter belonged, to the conspirators' circle of 20 July 1944 and was condemned to death by the People's Court). (Petersen Exhibit 134). Along the same lines Petersen supported deported persons (Petersen Exhibit 137). From 1933 to 1945 Petersen remained ad ways the same. Petersen never made a secret of being an old. Party-member. Petersen Exhibit 113 is exactly in keeping with his character. It reads as follows: "Chief of Staff Lutze complained about the general political development, especially from that point of view, that in his opinion a difference had crystallized between National Socialism proper, as it was 10 0ct.
-A-BK-24-l2-Gaylord (Int. Steuer) represented during the time of the struggle and the system of today, which he called "Nasism". As the most conspicuous characteristic of the latter he considered the supporession of every individuality and of every honest utterance of opinion.
The National Socialist People's State, they had aimed at was turned into an intolerant police-state. He spoke of a total standardization of individuals not only by out and appearance but also in spirit. The world would have put up with the old decent "National Socialism"; the "Nazism.", however, ressulted in rousing the hatred of everybody". (End of quotation).
The chapter "Legality and Recognition Abroad" will be skipped by me. I would also have to present the final chapter "Violation of International Law". If the Tribunal so wishes, I can do so immediately.
TEE PRESIDENT: You may proceed.
Legality Recognition Abroad.
The witness Behl's standpoint was that the so-called coming-intopower never took place legally hut was an illegal usurpation. On the other hand the witness Jahrreis states that Hitler's appointment to the chancellorship took place completely legally. There also could be no doubts about the legality of the development, which started with the acceptance of the Reich Law of 24 March 1933. For they were the foreign countries, which recognized Hitler without limitations. It could be pointed out how much friendship with the Reich was sought. On being interviewed for the French Press on 3 November Lord Rothermere of the London "Daily Mail"' thought very much in the same line with Mr. Gerard when he stated: "I believe that one should not miss any opportunity to hold out one's hand in a spirit of friendshin to Germany. One cannot but admire the present government". (End of quotation) .
On 23 December 1934 Lloyd Goerge followed the same line with his speech in the House of Commons, where he gave his opinion about Nazi Germany as follows:
"Germany is situated right in the heart of Europe, and if its resistance against Communism breaks down... Europe will follow. Don't let us condemn Germany too quickly, we want to greet Germany as our friend." (End of quotation) . On 3 June 1937 in a report of the New York Times the English Ambassador in Berlin, Sir Neville Henderson, stated as follows: "In England far too many people have a completely wrong idea of what the National-Socialist government stands for, otherwise they would put less stress on the Nazi dictatorship but on the other hand attach greater importance to the great social experiment, which is being carried out in their country". (End of quotation).
It was stated from another English source:
"It must be admitted that in the course of history there has never been a revolution of that grandeur, as was produced by the Third Reich and which treated those elements in the state, Which for one or the other reasons were not of the opinion of the majority with so little harshness. As far as the continuous criticism is concerned which maintains, that Nazism is of a cruel harshness, forced upon the others by an oligarchical government - then one must state that such a criticism is unwarranted and uninformed." (Petersen exhibit 40). Then: "I had many discussions with Hitler. I believe that everybody who really came in touch with that eminent man, will agree in one point, no matter how much we may differ in other points - and that is the fact that he is absolutely trustworthy, sincere and unselfish. All agree in this point, also those who consider his politics per se as wrong. (Petersen Exhibit 49).
That was her foreign countries judged Hitler. How could the individual German judge differently about the legality of the government, since also German representatives were invited by other states at the regular international congresses and conferences. Even when the German troops marched into Bohemia and Moravia, the diolomatic relations with the Reich were not broken off.
In this connection may I point to Petersen Exhibit 53, which reads: "The British Prime Minster Neville Chamberlain delivered a speech in the House of Commons on the situation created by the declaration of independence of Slovakia and by the marching into Moravia and Bohemia of German troops. He stated at the same time that the declaration of guarantee for Czechoslovakia proclaimed by Sir Thomas Inskip on 4 0ct.l938 ceased to exist by the independence of Slovakia. What happened had happened with consent cf the Slovakian government..." (End of quotation). The British Ambassador in Berlin, Sir Neville Henderson, who was recalled after the occupation of Bohemia, and Moravia, went back to Berlin (Petersen Exhibit 54). So the individual German could have no doubt that the action in regard to Bohemia and Moravia had been recognized abroad, all the more that Dr. Hacha and Chvalkovsky signed a treaty in which it says: "At the meeting the serious situation created by the events of the last weeks on the former Czechoslovakian state territory was examined quite frankly. On both sides the conviction was unanimously expressed that the aim of all endeavors must be the maintenance of quiet, order and peace in this part of Central Europe.
The Czechoslovakian state president declared that, in order to serve this aim and to reach a final pacification in full confidence he places the fate of the Czechoslovakian people and country into the hands of the Fuehrer of the German Reich. The Fuehrer accepted this declaration and expressed his decision that he will put the Czechoslovakian people under the protection of the German Reich and will guarantee the autonomous development of her racial life in accordance with her own characteristics.
He rejected rumors which stated that Dr. Hacha had been forced to ride back to Berlin. He expressively states:That the Prague govern ment rather on its own made inquiries in Berlin, whether the President of the State and the foreign Minister Chvalkovsky would like to come to Berlin in order to negotiate about the future relationship between the German Reich and Bohemia-Moravia.
. In no case had a ready-made document been submitted to the gentlemen in Berlin.
Only after these negotiations were completed had the text of this well-known document been recorded by concerted action and signed by both parties. Before signing this document he deemed it necessary to turn to the Prague Government with a further inquiry, prior notification of the Government itself he did not feel he could make up his r.ind to sign the document. The Prague Government then had deliberated about the matter that same night and approved the attitude of the President on the basis of his telephone inquiry. The President of the State expressed his pleasure several times during the conversation that he had succeeded in acquiring the confidence of the Fuehrer. In addition, in particular the report by the foreign correspondent of the "Daily Telegraph" which asserted that Hacha, had been forced by threats to sign the agreements which were purported to have been all ready for Hacha before his arrival" . (Petersen Exhibit 52).
Thus we must credit every judge, who had sat on a court dealing with Czech cases, with acting in good faith, in particular as the question concerning representation of authority by the lawful government of a country is not a legal query in the sense of the present principles of International Law, but a political query. (Petersen Exhibit 55) .
Therefore, Petersen acted in good faith in the cases against Czech Nationals cited by the Prosecution. Naturally he must have been conscious of the lawfulness of his actions as the Reich Court had also pronounced the following in its verdicts: "The Protectorate which at the time that the act was committed was still a foreign 16 0ct.
-A-BK-24-16-Gaylord (Int. Steuer) country in regard, to the German foreign exchange regulations, has now become part of the Greater German Reich.
Therefore, offenses committed, in the area mentioned., are subject in general to German jurisdiction, so that any German Military Court properly composed. with respect to both members of the Court and its locality, is entitled to sit in judgment." (Lautz Exhibit 2l4) . Furthermore: "The accused is a member of the Protectorate of Bohemia and Moravia.. In the sense of these regulations, only persons protected by a foreign government fall into the category of foreign nationals. The members of the Protectorate of Bohemia and Moravia are not included in the above category of persons (Lautz Exhibit 215) .
Violation of International Law.
The requirements of the subjective side for a punishment of judges in cases where a breach of international law is involved, could, anyway, only be assumed, if international law would be a uniform entity. Only if the world did present a uniform legal aspect could it be said that the judges should have known that in the questions of international law under discussion, no conformity of German law to International Law existed. However, this is not the case, instead, of talking of a general Law of Nations, a rift exists not only in International Law but also in customary International Law.
I would like to give detailed reasons:
According to its own convictions, the Soviet Union cannot be a loyal member of any community of Nations respecting International Law. Their securely set aims of revolutionizing the world are firmly opposed to this. All the same it is possible that the Soviet Union might consider the rules of International Law as a modus vivendi - which they accept with reluctance, but do accept as a modus vivendi - between themselves and the capitalistic states. The official Soviet opinion, however, is not content with this. On the contrary it aims at regardding International Law and its accepted rules as a weapon to be used against the non-communistic surrounding world. A detailed description 16 0ct.
-A-BK-24-17-Gaylord (Int. Steuer) of the development and the conceptions of Soviet International Jurisprudence would be going too far.
In the following statements, we merely must draw the most important useful conclusions, from those speculations on International Law. In doing so we follow the official Soviet statements of the leading man who is considered the mouthpiece of the Kremlin, Prof. Korowin, who in his textbook on international law, which he published under the title of "International Law of a transitory Period" declared: "The Soviet Union represents the world of tomorrow, it does not fit into a yesterday. (German Prot. 4256/57).
The Soviet Union is the advocate in principle of the idea, of unlimited sovereignty. As the Soviet Union, inspite of a world revolution, is still isolated, it cannot permit its sovereignty to be bound by conventional fetters, for reasons of self-preservation. The justification of the right to exercise the Veto in the Security Council of the UN is a logical conclusion, so is above all the consideration extended to treaty rights; the clausula rebus sic stantibus finds far reaching application in the Soviet doctrine.
In his work, on page 115, Korowin writes as follows: "On the one hand we know better than anyone else, that obligations contracted in general and with Socialist states in particular, are not honored by the signature of a bourgeois government or not through motives of formal scholasticism. The relative value of this practice cannot be denied even with respect to Russia, but with the unavoidable correction relative to the social revolution which takes the form of the "clausula, rebus sic stantibus". (End of quote) .
It is an exaggeration to state that the extension of the jurisdiction of National Law over other Nations is generally speaking considered a. crime in the world. This may be the case in Great Britain and the United States; it is lawful in the Soviet Union, hay I remind you, that the Soviet Union, as soon as it had assumed power in Poland and 16 0ct.
-A-BK-24-18-Gaylord (Int. Steuer) in the Baltic States, introduced Soviet Criminal Law and Soviet Civil Law, into these countries, in particular the law of obligations, commercial law, law of property, family law and law of succession, and decreed then the only valid laws (Petersen Exh.
71) and the German Government did merely re-introduce Civil Law valid before the Soviet Regime (Petersen Exhibit 72).
On the subject of criminal law already in respect of basic principles, the conceptions of East and West differ. We understood by the term "crime" an unlawful and culpable act which is subject to punishment by the state. According to the Russian Penal Code, however, crime is synonymus with anti-social acts, no matter whether the offense has been committed by a responsible person or by one who is insane, or whether it is a punishable offense or not. According to the Penal Code each act or omission directed against the Soviet Constitution, or which violates the legal codes fixed, by the Peasant's and Workers' Government, is considered anti-social. In the Western states the jus puniendi became, subjectively, a Magna Charta of the individual The political opponent whose activities against the existing forms of state have centered outside of tangible delictual acts, as well as the ordinary individual who does not commit anti-social acts in a political sense, claim the right of the state to inflict punishment as the guaranteed rights of the individual, by referring to: "Nullum crimen, nulla poena sine lege." There is no roomm for this axiom in Soviet Law. This follows from paragraph 1, 6, 45 of the Penal Code of the Russian Socialistic Federalistic Soviet Repuglics.
I do not quote these articles in detail, and will continue on page 44 Section I: It is the task of the Penal Code of the USSR to safeguard the Socialistic State formed by the workers and peasants and the laws valid therein, against any actions calculated to endanger public safety applying the provisions for the protection of public welfare contained in these laws to the perpetrators.
Art. 6: The term endangering public safety means any act or commission directed against the Soviet system of government. (Petersen Exhibit 79).
Article 4b: In determining the protective measure of a legally corrective type (e.g. penalties) the court is guided.....
3.) By a socialistic sense of justice based on the evaluation of the degree to which the criminal might endanger society, by the circumstances of the deed and by the personality of the criminal (Petersen Exhibit 88).
Article 23: Declaring a man to be an enemy of the workers with the ensuring consequences, loss of liberty with solitary confinement, loss of liberty without solitary confinement and forced labor without loss of liberty are considered to be the main measures of a legally corrective type for the protection of society (Petersen Exhibit 79).
Since the prosecution considers the principles of the independence of the judges to be the general legal horm, it must be pointed out that Soviet law substitutes for this independence the guiding thought that the decisions of the judges, no matter in which domain they may move, must primarily correspond to the interest of the state. This socialistic sense of justice is a revolutionary sense based on class consciousness, as it is expressed in various Russian textbooks. Considering this point of view there was introduced into the penal la.w of the Soviet Union the concept of analogy which has been discussed here so frequently. Section lb of the Russian penal code reads as follows: "If there is no direct provision in this legal code for this or that act endangering common welfare, the reason and extent of responsibility for it are defined by these articles of this legal, code which provide for crimes which are most similar in their nature. (Petersen Exhibit 100).
Therefore it is a strange state of affairs when the Prosecution indicts as a crime that which is legal with a power which has signed the Control Council Law - which is the basis of the Indictment.
It is still more paradoxical in the conflict of two legal concepts existing in the world today, to want to hold especially a layman responsible in complicated legal questions, who all his life in all his actions has been guided only by the principles of law, decency and tolerance.
Therefore, I ask that the defendant Petersen be acquitted.
THE PRESIDENT: The Tribunal will recess until tomorrow morning at the usual hour.
(The Tribunal adjourned until 0930 hours, 17 October 1947).
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 17 October 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Mr. LaFollette.
MR. LAFOLLETTE: Yes, Your Honor.
THE PRESIDENT: Was the arrangement which you suggested with reference to the brief unsworn statements by the individual defendants, that those statements should be made before or after the final rebuttal argument of the Prosecution?
MR. LAFOLLETTE: My distinct recollection was that it was the desire of the defendants that that should follow the rebuttal statements of the Prosecution; that was my understanding. As far as the Prosecution is concerned, we will conform with the wishes of the defendants, but I have assumed that they would rather make their statements after the Prosecution is finished.
THE PRESIDENT: Very well. Then apparently some special arrangement must be made previous to that time and the Tribunal would be pleased to know, if it is possible for them to know, whether we will reach the point of the final statements of the defendants tomorrow afternoon. Can you -you can't answer that.
MR. LA FOLLETTE: That of course rests with the defendants' attornies.
THE PRESIDENT: Thank you.
DR. SCHILF: Your Honors, I can answer to that that a certain survey is possible now. Defense counsel will probably conclude tomorrow noon, certainly in the afternoon their final please.
I therefore think that already tomorrow morning we may possibly be finished. The Prosecution then would have its one and one-half hours available for rebuttal, and the final statements of the defendants themselves could be held in the afternoon.
THE PRESIDENT: Thank you very much. You may proceed with your argument.
DR. SCHILF: May I say in advance that I will not present in reading all the quotations of my final plea, but I would ask that they be incorporated into the record.
Mr. President, Your Honors:
THE PRESIDENT: Just a minute. We forgot to ascertain whether all defendants are present. The Secretary General informs me that they are so the record may show that all defendants are present, Please, continue.
In opposition to intentions deducible from the indictment, the Prosecution has renounced the exhibition of evidence against my client METTGENSBERG in connection with charges 10 and 22, 11 and 23, as well as 12 and 24. There have been maintained part only of the charges made against Dr. METTGENBERG's activity in Section IV of the Reich Ministry of Justice. Relevant to charges 14 and 26 of the indictment, the erroneous conceptions, by the Prosecution, with regard to the documents introduced in this connection, have been wholly refuted.
My client occupies a special position in this trial in as much as he never belonged to the NSDAP nor to any affiliated organizations of the Party. He who, at the time, exposed himself to the disadvantages incurred by not belonging to the Party would suffer injustice should his attitude be interpreted in any way as having been influenced by Partypolitics. As is clearly shown by the evidence submitted by me, nothing was farther from his intention than to approve of such measures or even to further them. He always understood how to make his actions accord with his sense of justice and his ethical conceptions.
Affidavits by Paul METTGENBERG (METTGENBERG Exhibit 9) and by Frau MEGWITZ (METTGENBERG Exhibit 41) have also refuted the Prosecution's assertion that my client had been in favor of the so-called racial legislation. We never had any share in it. Whatever the Prosecution thought it could deduce from Exhibit 540 has proved erroneous.
The only reason why METTGENBERG took a personal interest in the legal development anticipated at that time was because he hoped to assist Jewish friends of his by gaining an insight into official documents. (Compare statement METTGENBERG, English translation page 6321. German page 6131). Whoever takes the trouble to try to become acquainted with my client's personality can see for himself that he was an official of long standing and of the old school, educated and trained in accordance with the highest traditions. Witnesses HUPPERSCHWILLER (METTGENBERG Exhibit 37), PREISER (METTGENBERG Exhibit 37) and RICHTER (METTGENBERG Exhibit 44) have been able to prove that my client never even attempted to exceed ethical limits. He must pass for an experienced, that is to say scientific and practical expert on international penal law. He worked continuously for 23 years in the Reich Ministry of Justice and has been able to contribute his part in establishing the good reputation which, even in the opinion of the Prosecution in its opening statement, was enjoyed by the Ministry prior to the year 1933. The Court can also gain information from my evidence METTGENBERG exhibits 3 to 8 and 38 with regard to my client's standing and performance. For more than one and a half decades Dr. METTGENBERG has been advisor to the Ministry, finally being made Sub-Department Chief (Unterabteilungsleiter). He remained, therefore, in a modest position, far below the group of lending officials in the Ministry. At no time was he authorized to make fundamental or important decisions. Finally, Dr. METTGENBERG was entitled to sign letters or orders by the Ministry only in cases, where insignificant matters were concerned, namely such of a purely executive nature. Whenever, to avoid delays, he signed declarations, deputizing for the absent Department Chief, their contents and wording had previously been established by the Department Chief (compare statement METTGENBERG, English transcript page 6252, German page 6071, and of Frau Felder.)
May I interpolate. For example, the special case Zinser, raised by the Prosecution, in Exhibit 140, Footnotes 80 and 81 of the final plea of the Prosecution involves a case for which Mettgenberg had no jurisdiction whatsoever. Here too he only signed a finished document drawn up in a hurry. Moreover, in this case the convicted person was not, as is asserted a Pole, but beyond a doubt a German national. Dr. Grube has already emphasized this for the defendant Lautz. Further more it is incorrect what was stated in Footnote 89 of the Prosecution's plea about the distribution of business in Exhibit 310. Certainly changes were made in details occasionally, but Mettgenberg was always only authorized to deputize for the department chief for a certain sphere of work. Beside him there were and other sub-department chiefs who were likewise authorized to deputize for their chief for their field of work and actually did so. In reference to this I wish to refer to my opening statement for Mettgenberg and to his testimony which clarified everything fully. Furthermore, it is erroneous to refer as Prosecution has done in its Footnote 72 to Prosecution Exhibit 339. Mettgenberg had nothing whatsoever to do with negotiations which led to the intervention of the Gauleiters into clemency practice. The Prosecution is attempting to identify Department IV with Mettgenberg. This is incorrect as above statements reveal. Moreover, the Exhibit of the Prosecution No. 539, Klemm Exhibits 40 and 76 further prove beyond doubt that the intervention of the Gauleiters decreed by Hitler himself and did not by any means have the effect which the Prosecution believes. In Footnote 72 the mere assertions of Altmayer, as per Exhibit 411, altogether have been refuted beyond doubt. It is also incomprehensible how the Prosecution believes to be able to assert that Hettgenberg had in advance been in possession of secret official information to the effect that Germany was undertaking to wage war.
The Prosecution Exhibit 102, mentioned in Footnote 76, refers to a decree of the Supreme Commander in Chief of the army concerning the executive power to be exercised in operational areas and various districts of the district courts of appeal wore designated as operational area; of these Mettgenberg may have heard by way of the circular decree, but only after the outbreak of war. The final conclusion drawn by the Prosecution there this, therefore, is impossible. The further Footnotes 71 to 83, rather the Exhibit mentioned in Footnotes 71 to 83 have already been dealt with in detail by Hettgenberg on the witness stand.
Documents METTGENBERG exhibits 1 to 4, submitted by me, prove in detail what was the general sphere of work assigned to my client within Department IV in contrast to his work in the legislative Department III. In my opening speech I have given a detailed account of the import of this work and the status of my client. These assertions have also been confirmed on all points by the evidence. As no administration of justice can omit the regulating of specific procedures, for instance how a death-penalty is to be carried out, so METTGENBERG, in his activity, did nothing in excess of his duties. (Compare, in this connection, statement METTGENBERG relevant to the question of the death-penalty - English transcript page 6252 and following, German page 6072 and following and of the general measures for execution - English transcript page 6261 and following, German page 6078 and following).
As for METTGENBERG's activity with regard to the exercise of pardon - there also he acted only occasionally, when the Department Chief was otherwise engaged -- I can refer to the statements made by me in the Final Plea for my client KLEMM, also with a view to the legal aspect. METTGENBERG's vote did not carry any weight at all with Minister THIERACK (compare statement METTGENBERG, English transcript page 6260, German page 6078). The additional exhibit 625 introduced by the Prosecution as rebuttal--evidence is of no importance.
The points discussed in this document were occasioned by the outbreak of the war. They remained in the stage of drafts.
As Dr. Kubuschok already stated in behalf of the defendant, Schlegelberger, in connection with this point the application of this clemency question was in effect only for a few weeks during the Polish campaign.
Mettgenberg's collaboration in the deliberation of other offices at this time cannot be ascertained from this document. But since they never attained the point of becoming laws, nobody can have been affected hereby either favorably or detrimentally. Moreover, inasmuch as Dr. Mettgenberg acted in lieu of his Department Chief on the occasion of the unfortunate events at the Ploetzensee prison, no evidence has proved a causative assistance nor, over and above this, any real guilt. During his examination in the witness-stand, Dr. Mettgenberg has been enabled to give his opinion on all details (English transcript, page 6257, German, page 6075, and English transcript, 6325, and following, German 6134 and following;) all possibly remaining questions of doubt having been clarified by the witness, Hartmann (English transcript, page 9013, German, page 8634.). Also how far Mettgenberg had participated in the measures for the control of jurisdiction - again in each single case only in place of the Department Chief - the facts have clearly been proved that no illegality was either intended or attained Here, too, in alluding to exhibits 541 and 542, I can refer to Mettgenberg's statements (English transcript, page 6328 and following, German 6138 and following and English transcript, 6357, German page 6166) and to the relevant arguments in my final plea for my client, Klemm.
I need not refer here to further details dealing with this activity of Mettgenberg. He, personally, had an opportunity, in the witness-stand, of expressing an exhaustive opinion on each document in question. Only one point I must stress here, that being the question whether the credibility of Dr. Mettgenberg's testimony as a whole can possibly have suffered as a result of the statement made by the witness, Suchomel, in his exhibit 543. Suchomel said he had received a report by Mettgenberg on a journey made to Mauthausen with his department chief. Mettgenberg has affirmed under oath that he was never in the concentration camp, Mauthausen.