JOEL, who discussed this suggestion of GOERING's with the generals of the Luftwaffe concerned, in spite of the fact that WESTPHAL was the appropriate expert, was able to conclude from the way this affair was handled that such suggestions of GOERING's were not carried out and were not even envisaged as reprisals for similar actions on the part of the Russians. Incidentally, in the GOERING trial, the document was already regarded as not involved. The picture we get of JOEL is completed by the fact that since May 1942 he was regarded as unreliable by the SD and was removed from Berlin when THIERACK took office, and that he, like many others, became a victim of his open and manly defense of internationally acknowledged principles of justice.
"It is unavoidable that an expert in a ministry will be given additional tasks, especially in war time, which he does not like to deal with but which he, as a civil servant, cannot refuse to accept. He has, however, solved these tasks, given to him in addition to the task of prosecuting violations of War Economy Decrees, according to the law and the rules of humane behaviour. He, who never had the right to decide buy only the right to report and to make suggestions, cannot be blamed for his activities as an expert, just as the approximately 200 experts of the Reich Ministry of Justice have not been blamed. Not even the intimate friend of THIERACK's and his clique, who was inclinded to see defeatism, worthy of capital punishment, in every anxious word, and who thus earned the special praise of his chief, has been accused but is indeed a witness for the prosecution.
"As I said before: When JOEL entered the Ministry in August 1933; he was the youngest expert and Assistant Judge. He remained an auxiliary worker until 1941 and last held the rank of Chief Prosecutor. Exports of the same age had become Ministerialrat already in 1939 because of their Party membership, JOEL, however, did not become Ministerialrat until 1941. He was one of the 22 or more Referants in the Criminal Department of the Reich Ministry of Justice, one of the at least 64 civil servants concerned with criminal cases compare NG 767, Exhibit NO.
376, Document Volume V D, page 342. JOEL was one of the General Public Prosecutors who as the only one of the 32 taking part in and of the 7 concerned with NN cases never experienced a conference in the Reich Ministry of Justice in Berlin and the only one who had been loosely connected with work on NN matters in his district for only five months.
"JOEL was, as all the jurists of Berlin and many professional colleagues in the country know, the one official in the Criminal Department of the Reich Ministry of Justice who by personal intervention publicly opposed Party despotism as well as unjustified measures of the state police who also always showed himself ready to help the politically persecuted and used his official connections with the Secret State Police in their interest, because the way to Prinz Albrecht Strasse was barred to us lawyers.
"When JOEL, in 1943, was removed from the Reich Ministry of Justice by Minister THIERACK nobody who knew JOEL was surprised. THIERACK, the stooge of the Party and the police who sold Justice down the river to BORMANN and HIMMLER, who buried the independence of German Jurisdiction which had been maintained with the greatest efforts under GUERTNER and SCHLEGELBERGER and who himself took measures which had nothing to do any more with justice, this THIERACK could not tolerate a man in his house who saw but one task: to preserve the independence of the administration of justice.
"Is this mam, the defendant JOEL, really to be punished for laws he did not creat, for indictments he did not file, for judgments he did not pass and for decisions of the ministry which he did not make and could not have made?"
DR. ASCHENAUER: Rudolf Aschenauer for Petersen, May it please the Court:
"The peculiarity of the PETERSEN case consists in the fact that PETERSEN is being indicted as sole "non-jurist" in a decidedly "Jurists' trial". Reviewing this trial in the larger frame work of war crime trials, the task of which is the collection of evidence and punishment of the war criminals, we are dealing here with determining the responsibility of the jurists in authority.
"The Prosecution charges the latter with offenses against international legal principles and agreements. It asserts that the use of German laws which violate these International rules represents a crime. This contention, if it should be justified, can only be directed against jurists, who in view of their legal training, experience and employment in key positions ought to have recognized the illegality of the laws.
"However, this viewpoint is not to be considered at all as far as PETERSEN is concerned. PETERSEN was neither a jurist nor had he a leading political position, by which he could have gained influence on the making of the laws or their application. Merely in his capacity as honorary assistant judge of the People's Court (VGH) he had attended about ten sessions. Being a layman, he had to rely on the judgement of the professional judges where legal questions were concerned.
"PETERSEN has been charged with participation in five cases. It will be the task of my defense to show with the help of available files that we are dealing with lawful procedures, that the guilt of the persons sentenced was sufficiently substantiated and that the sentence passed was within the usual legal bounds. If however, the prosecution has submitted matters of the People's Court which had nothing to do with Petersen, the defense will have to stress the difference in the individual procedures and in the attitude taken by the judges in the People's Court. Even the prosecution does not maintain that the People's Court is to be regarded as a collective entity.
"Many witnesses of the prosecution admit and further witnesses will admit that the procedure before the various senates was essentially different and depended upon the person in charge of the proceedings or the reporters.
"Going a step further, I intend to show that political pressure. for instance by the Gestapo, the SD, the political leaders, or the SS, was not brought upon the judges of the People's Courts. The lay judges received no special instructions from their Offices. They did not even receive the Richterbriefe periodic letters for the judges from the Reich Ministry of Justice. Besides they could not, as the prosecution asserts, out-vote the professional, judges.
"The procedure before the People's Courts followed in general the code. Only the admission of the defense counsel was subject to authorization for reasons of general security which have to be considered in cases of treason and high treason.
"I shall consider it my special task to prove to the court on the basis of documents how, as seen from Germany, the constitutional and political developments up to 1939 was reflected abroad in official statements. Particularly in regard to the Protectorate I shall show what significance the official reaction abroad to the Hitler-regime had
1) in regard to matters of constitutional law objectively speaking
2) subjectively speaking for the confidence in the international validity and legality of the laws issued, particularly of those who could not see behind the curtains of Hitler's decisions.
"I shall further try to prove that the knowledge of the atrocities in the concentration camps was confined to smallest circles in such a way that even persons in highest positions were not able to know and actually did not know much about it. During the war Germany was hermetically closed to news from abroad. If anything was ever said about it in smaller circles of resistance, or even in larger circles by way of rumors, the latter did not seem worthy of belief ns they were officially denied, and moreover the whispering campaigns and propaganda concerning atrocities frequently seemed to be too transparent to be authentic.
The sentence of the International Military Tribunal has not expressed itself directly about this as it was concerned with the major war criminals only. Indirectly, however, it may be seen from the reasons given for the acquittal of Hans FRITZSCHE that even FRITZSCHE himself, the head of the domestic German Press and Broadcasting Department of the Ministry of Propaganda did not have any knowledge of the extermination going on in the East. (Page 183 German edition of the Nuernberg verdict.)
"The evidence will show that a positive knowledge of the conditions in the concentration camps could not have existed. Both subjective criteria, i.e. the confidence in the attitude of the official circles abroad towards the Hitler regime and the ignorance of the horrors perpetrated in the concentration camps, will prove, particularly in regard to lay-judge PETERSEN that, whatever he did or whichever actions he took, he could not have been aware at any time of doing anything wrong. That PETERSEN is not the person to participate in any illegal doings is shown by the fact that he interfered whenever he saw anything wrong -- that is, of course, when he had the power to do so -- and that otherwise he tried to help the person concerned. PETERSEN was not afraid of acting against the political leadership when he saw that by single measures a system of force was to be established upon the people. I shall submit the proofs for this fact.
"In the course of the defense I shall present a documentary comparison of German law with foreign law. It is evident in this very courtroom what diverse influence, for instance, the conduct of the trial by the presiding judge as to interrogation of the defendant and examination of witnesses, the free evaluation of evidence in contrast to fixed rules governing evidence, can have on the rights of the defendant.
"The prosecution has asserted that officially, to be sure, it has made its charges in the name of the government of the United States of America, in reality, however, in the name of tall the nations of the world.
"The defendants, therefore are entitled to point to the legislation and procedures of other nations and regimes with the object of showing that the same principles were, and are valid there as in the national-socialistic state, and that these are not considered criminal. This is important above all for the subjective side of the case of lay-judge PETERSEN. For this reason I shall undertake a comparison as to legal aspects with the Russian cultural sphere in particular which comprises l/6 of the surface of the earth and l/8 of mankind ... In this connection one must not forget that Control Council Law No.10 was also signed by the Russians. It will be seen that the individual nations have provided for themselves a regulation of legal guarantees which corresponds to their own state of culture and their own national (not racial) peculiarity. Whereas the most highly developed form of basic human rights has probably been realized by the Anglo-Saxon conception of law, this is, to such an extent, the case not at all with other countries. This will result, therefore, in a different evaluation of the basic rights on the one hand, and of the safeguards for measures and intervention on the part of the State, on the other hand. The problem of independence of the judge, the principle nullum crimen sine lege, the judgment of national danger and of illegality will appear in a different light."
BY DR. DOETZER (For the defendant Nebelung):
"May it please the Tribunal.
"The prosecution conducts this trial in the name of world community and finds its foundation in a longed-for, but not even nearly realized idea.
In the opinion of the prosecution, this trial is intended to impose upon the peoples of the world the obligation of recognizing the criteria used in this trial as a standard, that is to say an obligation which, as the wording makes clear, has so far neither been generally accepted as legally binding nor does it actually exist. In his indictment Telford Taylor has expressed the opinion that the true purpose of this trial goes beyond the mere exacting of vengeance on a few. In it he also makes the defendant Nebelung, whom I represent, responsible for the deluge of death and misery which the Third Reich brought on Germany and the world and accuses him of having desecrated, by judicial murder and through atrocities on thousands of people, the German temple of justice which this trial is to help consecrate once again. It would be more than interesting to investigate which peoples of this world ever erected and consecrated a temple of justice as an embodiment of their expression of their faith, and at the same time to show why, for example, the most cultured people of ancient times, the Greeks, did not do this. The way I understand it, we are dealing here indeed with a problem which also in the opinion of General MacArthur, on the occasion of the signing of the Japanese surrender document on the battleship 'Missouri' on 2 September 1945, is fundamentally a theological one.
"If this trial appeals to the moral concepts of the civilized world and wants to derive therefrom the punishment of a judge, then it must also be stated clearly and distinctly that moral values in themselves never constitute a basis for demanding punishment.
The correctness of this point of view was convincingly proved by the German Max Scheler in his works 'Formalism in Ethics' and 'Ethics of material Values', page 374 and following pages. Natural law does not even demand the punishment of those who do not make use of of the right, permitted to them by natural law, to resist laws which among others violate the moral values of justice, loyalty and reliability. The punishment of such action is merely a measure of expediency, for otherwise the principle 'nulla poena sine lege' would logically be incompatible with natural law. This principle requires, namely, that the law giver does not require punishment for an inmoral action which at the time of the deed does not run counter any established standards of punishment, and even if a new law is created not to make the deed subject to punishment subsequently. The statement of the prosecution that the diabolical novelty, the mass proportions, and the ruthlessness of the offenses were apt to obscure and dull the thinking of jurists and laymen, leads inevitably to the question whether human beings are at all meant to find the truth. Here Here the realization of the German Lessing is appropriate. 'If God would keep all truth locked in his right hand and in his left the only ever active impulse for truth, but with the stipulation that I always and eternally err, and would say, choose!. I would humbly take his left and say: Lord, give me this, for truth after all is only for you alone.' This realization of his own inadequacy, which is taken for granted by the genuine jurist, leads him to voluntary selfrestriction, to think legally and to consider the evidence and the laws, which Justice Holmes once designated to be the task of a judge. We are familiar with the statement of Kant, the wise philosopher from Koenigsberg: 'Nothing in this world, or even outside it, can possibly be imagined which could be considered good without qualification, except good will alone. Good will is not good will alone because of what it brings about or accomplishes, because of its usefulness in accomplishing a certain purpose, but because of its willingness, which is good in itself.
' "The prosecution accuses Nebelung of having violated Control Council Law No. 10 in the years 1933-1945, although that law was not issued until 22 December 1945.
This law has designated certain facts as crimes against international law, has determined the responsibility of single individuals, and established the competence of the Tribunal. It was issued as an expression of the power of the conquerors over the conquered, and thus intends to serve the political and moral purpose of all law, the judge having to overcome the constant tension implicit in this double purpose.
"Nebelung is, accordingly, entitled to claim that, factually and legally, he be given a just trial. This includes, according to the general ideas of criminal law now prevailing, the examination of the legal validity of the law and the establishment of the objective and subjective facts of the crime.
"Two points of doubt exist regarding the legal validity of Control Council Law No. 10.
"In the first place, it may contain a violation of the principle 'nulla poena sine lege' insofar as it includes crimes which were not punishable in Germany nor anywhere else in the civilized world before this law was issued, that is in the time prior or subsequent to 1933. The IMT-verdict, too, has not been able to dispel these doubts since, according to continental legal ideas, 'lex' does not at all at all mean law but rather the established penal norm promulgated in due order, Secondly, Control Council Law No. 10 establishes the principle of inequality since the facts established therein refer only to nationals of the defeated powers, and since the four victorious powers did not introduce in their own countries identical constellations of facts constituting a crime and subject to punishment. This will be proved in the course of the exposition of the Defense.
"From the Control Council Law No. 10 can not he concluded that the judgment of the criminal guilt of a defendant is going to he modified. As the defendant represented by me is a German, one might conclude on the basis of the generally recognized rules of international law that the criminal guilt is judged according to traditional German principles. According to these principles the offender must know the implications of the offense and must he fully aware of its illegality. From the point of view of a material concept of guilt, it would he unjust according to German opinion to punish a person in spite of the fact that he considered his action lawful. Ignorance and mistake as well as involuntariness of action exclude an international criminal guilt. Consequently the offender must know at the time of his offense, that his act was contrary to a legal norm and that it was unlawful and forbidden. Therefore, a defendant can only he punished if he was aware of the illegality of his action.
TEE PRESIDENT: We have reached the time for the morning recess for fifteen minutes.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. DOETZER: May it please the Tribunal, I ask to be permitted to continue:
The moral order of the world, the conscience of justice, and the generally recognized rules of international law which stand above every national idea of right and wrong fund, according to law, the foundation of the obligations of the state. But according to general opinion the judge had to apply national laws even when contrary to international law. The German Professor of international Law Priepel in his book "International and National Law" (Pages 263, Leipzig 1899) has demonstrated convincingly that this is not only a German or a continental point of view, but that Anglo-American jurisprudence holds the same view.
Add to this, furthermore, the fact that the German judge is under the strict obligation to act according to the law proclaimed by the state. German and European traditions required him not to question the legitimacy of the laws. He thus followed the perception that no man by his own reason ought to think himself wiser than the law, which is the consummation of reason. Due to education, of tradition , and due to the fact that the doctrines legal positivism prevailed in jurisprudence and judicial practice, the possibility of rebelling against a law was closed to him. He could not even undertake that kind of examination of which Bentham once said, "I would rebel whenever the probable bad results of rebellion appeared to me smaller than the probable bad results of submission."
This will be proved through reference to literature and judicial practice.
3) The Prosecution charges the Senate President Nebelung with:
a) participation in a conspiracy,
b) war crimes,
c) crimes against humanity committed during the war, and
d) membership of an organization which has been declared criminal.
a) The Conspiracy.
Control Councel Law No. 10, in my opinion, makes liable, to punishment only conspiracy for the purpose of committing crimes against the peace with which the defendant is not charged. I refer in this connection to the legal explanations of my colleague Dr. Haensel and therefore consider this charge unfounded.
b) and c) Crimes against Humanity during the War and War Crimes.
The prosecution, in its presentation of evidence, has introduced parts of the personal files and three affidavits of the defendant (Prosecution Exhibit Nos. 409, 13, 175, 177) as well as an affidavit of the attorney Dr. Gruenwald (Prosecution Exhibit 283), in which the activity of Nebelung as Senate President of the People's Court is mentioned. All other documents and statements by witnesses in regard to the People's Court have no bearing upon the Senate, headed by him since 1 July 1944, and his legal decisions. With a few exceptions, they date from a time when he was not yet with the People's Court, but was still at the front as a soldier. Moreover, the Prosecution Exhibits Nos. 146, 147, and 301, show plainly that the People's Court cannot be regarded as a unit of the "blood thirsty terror judges". On the contrary, in my cross-examination of the prosecution witness Gruenwald, the latter quite clearly praised Nebelung's activities as a judge.
Furthermore, the prosecution has not proven that Nebelung, as judge of the People's Court, had any connection with the Gestapo or other criminal organizations. It also has not been proven that he applied German laws or individual legal decrees which the prosecution, claims are of a criminal character. The prosecution, according to its own argumentation, will not wish to maintain that, from the mere fact of Nebelung's appointment on 1 July 1944 as Senate President of the People's Court and from his membership in the NSDAP it could be concluded that Nebelung by his acceptance had participated in violating article II, No. 1, b and c or been connected with the planning and execution thereof. Incidentally, it should be mentioned that Nebelung's appointment represented a demotion compared to his former position as president of the district Court of Appeal.
d) Membership in Criminal Organizations.
My client was Ortsgruppenleiter of the NSDAP in Eschershausen and Seesen. According to the verdict of the IMT the prosecution must prove that he was still as Ortsgruppenleiter after 1 September 1939 and that he knew of the criminal character of this organization, Up to the present this has not been done. As a matter of fact, the opposite is shown by the sworn statements of the defendant in the affidavit (Prosecution Exhibit No. 13).
'In view of this state of affairs the defense is placed before the decision as to whether it should present to the Tribunal evidence exenerating Nebelung. The acknowledgement gained by experience of the validity of the slogan "qui S'excuse, s'ascuse" cannot simply be over looked. A petition to the Tribunal seems worth being advocated, and it is hereby being made, even if its formal admissibility is doubtful according to Ordinance No. 7 Art.
XI, that the defendant Nebelung be released from Prosecution. Should the Tribunal consider this not admissible, I shall allow myself to be guided in my presentation of evidence by an experience in the life of Sir Edward Coke (1552-1635). "Never," he said, "never will you find anyone who has distinguished himself in the knowledge of the law who did not reap from the heart of this divine knowledge honestly, earnestness, and integrity. So far I have never seen a man leading a dissipated and disorderly life attain a sound and complete knowledge of these laws; on the other hand I never saw a man distinguished by excellent power of judgment in law who was not honorable, productive, and virtuous."
I intend to manifest the judicial and political activities of my client through affidavits, witnesses, and through examination of my client. This will result in the picture of an extremely capable man, a German idealist dedicated to a simple, moral and humane way of life, whose relationships to his fellow-men were guided by the humanistic conception that the man is good. His course of life cannot be separated from the fate of the German nation in the last 40 years. He was bound to it and no general nor personal, no material nor spiritual distress was spared him, When in the period after World War I two fronts emerged from the political battle of everyone against everyone with ever increasing and ever more embittered contrasts, he felt that the insurmountable contrast between the nationalists who were not socialistically minded, and the socialists who were internationally minded, could only be overcome by a party which claimed that it wanted to unite both in order to form a new Germany. He accepted it as a jurist, as it demanded a German common law arising out of German legal thinking and promised justice for every German.
He believed in the good, and when the dictatorship became a reality, he hoped that, following Plato's train of thought, the tyrant would be converted into a philosopher. With anxiety he saw the power of the police institutions become stronger and stronger. Throwing into the fight the full force of his personality he fought, as President of the District Court of Appeals in Brunswick (Braunschweig) against the interference with the independence of the courts and thus against the Gestapo and all other agencies. He protected his judges against attacks of the party and the SS. His life was governed by the demands for right, and justice. When the German army was victorious he declared that he did not wish to live in any country where justice did not prevail. During the war he was a soldier among soldiers. When, in the course of the war, he was promoted to Lieutenant he had a fatherly relationship to his men; when in enemy territory he did not allow his men to commit the slightest offense. Very ill with malaria, he returned to his job as President of the District Court of Appeals in 1943. From there he followed his call to the People's Court in the same way as a soldier would obey an order. He said good-bye to his judges in Braunschweig with these words: "I do not know if things will turn out all right". He acted here in the same spirit and in the same manner as in Braunschweig.
It is the tragedy of his life that, in spite of all resistance in his own field, he as an old national socialist, was unable to prevent the degeneration of a system with all its terrible consequences for Germany and the whole world. Although he is indicted as a war criminal today, his judges remember him as a man of good intentions and an idealist shamelessly deceived.
DR. BRIEGER: Your Honors, before I take the liberty to begin ay opening speech I should like to clarify whether my revised text copies have been submitted to every one of the judges, prosecutors, and also the other gentlemen and the ladies, that is whether all have received a copy which has written on it "Revised Text." I assume that that has been done, and may I ask to be permitted to begin my opening statement.
THE PRESIDENT: We have your revised text.
DR. BRIEGER: Your Honors!
With regard to the personality of my client, Hermann Cuhorst, I wish to point out that his personal particulars were stated incorrectly in the indictment. The English version speaks of a " Chief Justice" while he was merely a "Presiding Judge" , as "Senatepresident" he was the presiding judge at the first criminal chamber of the District Court of Appeal in Stuttgart, while in another subsidiary function he was presiding judge at the Special Court for the district of the District Court of Appeal at the District Court (Landesgericht) Stuttgart.
In Count 4 of the indictment it is stated that my client was a member of the SS while in the rubric of the indictment he has been quite rightly called merely a contributing member of the SS.
My client is the descendant of a family of which 10 generations have been serving in the Wuerttemberg church and state service, the five last generations as lawyers, judges and public prosecutors. It would not be correct to assume that only the happenings of the year 1933 were responsible for the leading social position which he held. Because of his descent he always felt that it was his special call and duty to uphold justice and thereby serve the interest of the state.
Soon after the state upheaval of 1933 the former judge was called into the Wuerttemberg Ministry of Justice, where he was repeatedly active in a moderating way to preserve the fruits of valuable Wuerttemberg tradition.
When the administration of the law was taken over by the Reich which involved the transfer of all high ministerial departments to Berlin, Cuhorst was appointed Senatepresident at the District Court of Appeal of his native city. He did not want to turn his back on his homeland and was content with the position of president of a Civil Chamber (Zivilsenat). He only left this position, which was in no way connected with the administration of criminal law, when his superior, the Supreme Judge of Wuerttemberg urged him to take over the Criminal Chamber and particularly the Special Court, in order to prevent at the very last minute the Reich Ministry of Justice from calling a Prussian Judge to Stuttgart who would not oppose the request for more severe punishment.
Unlike others who usually let their appointment to a responsible position turn their heads, my client never became a man who attached the slightest importance to personal comfort. Even his worst enemies will agree that Cuhorst has always behaved correctly in the administration of his duty and in his entire mode of life.
His peculiarity and possibly his weakness is his obstinacy which is an old inherent characteristic of the Swabian race. He is a clearly outlined personality. Such men always have enemies. The Prosecution profited by this for the moment. But even his most outspoken enemies can not accuse him of ignoble motives, least of all of seeking personal gain. The people who for many years have been his closest collaborators must know him best and they will all describe him as a man with a great sense of duty and responsibility, a man who lived under a great strain due to his strenuous work but by no means a brutal and hearless cad.
At this point I should like to make a correction in the English text. In my opinion, the English text should read "A man who lived under a great strain due to his enervating work, but by no means a brutal or heartless scoundrel."
The entire internal and external position of the Gasman people is so different from that of the United States of North America that it is very difficult to understand these completely different conditions for somebody coming from there. This fundamental difference demands almost superhuman understanding from the critic.
Especially during the last war, which had immediate effect on the hinterland, the people and its criminal judges maintained the opinion that while every day precious German people were killed at the front and at hone, the asocial criminal should not be left alive. It is easy today to reproach the judges of those years and say that they should have recognized the almost inhuman severity of those laws; whoever makes this accusation must always bear in mind that the last war itself was not less severe.
Here I should like to suggest a deletion in the English text. The English text reads: "It is easy today to reproach the judges of those years and say that they should have recognized the almost inhuman severity of those laws," and so forth. In this connection I ask to delete "almost inhuman."
The German judge without exception was bound to abide by the existing law. This has not only been so since 1933, but for centuries. The German judge therefore was bound by his oath of office to administer laws which were most severe and which to some extent even contained absolute threats of the death penalty.
Another thing which must seem strange to every American judge is the fact that the prestige of justice and of judges in particular has been very low in Germany since 1918 and that was most pronounced in that unfortunate Hitler speech of 1942. Since then everybody in Germany must have realized that the respected position which the judge still enjoyed at the turn of the century no longer existed and was never to return.
My client is mainly accused of having administered laws which do not conform to the fundamental laws of an unwritten higher justice, that he has administered laws in a way contrary to the laws of humanity, that his administration of justice has been one-sided and arbitrary and that this was done during the proceedings and in such a manner as rendered an orderly procedure impossible, especially with regard to an adequate possibility of defense for the defendant.
In judging the deeds of my client it will have to be considered whether he was a willing tool of this despotism or whether he did not do everything in his power to uphold and maintain the principles of justice, also in the sense of a higher justice, against the methods enforced by the state.
Before commenting briefly on the individual counts of the indictment, I wish to mention a few aims of my adduction of evidence.
Here I should like to have the English text changed again. It should be: "I wish to anticipate a few aims of my adduction of evidence."
It is my task and my aim to prove through witnesses, experts and expert opinion that these accusations against my client are unjustified. With regard to the accusation that he conducted proceedings merely on the basis of the indictment, fixed the dates for the proceedings at too short notice, refused to let the defense counsel examine the records and curtailed their rights during the trials, I wish to point out that the Procedures at the Special Courts in general, and especially when presided over by my client, did not greatly differ from those of other courts, that as a rule the legally requested speeding up of the procedure did not result in any curtailment of the defense nor otherwise in any disadvantage for the defendant, and that if this happened in an exceptional case this had by no means been intended by my client. I shall also prove that the trial of foreigners was strictly conducted according to law and that when determining the severity of the sentence the same aspects were taken into consideration as either aggravating or extenuating circumstances, as was done in the case of Germans.
I am going to prove to the Tribunal that those of the laws which were applied while my client was in office and which today are in part considered characteristic of a reign of terror, were used by my client to counteract criminal elements and not in order to contribute to a reign of terror. I furthermore am going to prove that it was not easy for my client to make these decisions.
My client claims that he as president of the court of colleagues (Kollegialgerichts) was always only primus inter pares, that he could not force his will on the other judges who were quite pronounced, mostly even, self-willed and powerful personalities, even if he had tried. Moreover the court of colleagues is precisely for the purpose of levelling out the human differences of the 3 or 5 Judges in order to get the greatest possible deliberation in the pronouncing of sentence. Here again I should like to correct the English text. It should read -- in order to obtain the most carefully weighed opinion.
My client claims that in the finding of the sentence he made it a principle not to allow inequalities to arise between the foreigner and the citizen before the law and especially to avoid all persecution outside the sphere of justice.
The submitting of evidence will show that there is no reason at all to accuse my client of favoring members of the party in power in a manner alien to the duties of a judge and most of all it will be proved that my client always and with all the energy he could muster opposed wishes of departments not connected with justice with regard to the course a trial was to take. All sentences of the Criminal Chamber and the Special Court Stuttgart which also bear the name of my client will demonstrate everything which I have to prove here.
My argument is rendered especially difficult by the fact, that, through no fault of my client, nearly all files of the Palace of Justice in Stuttgart were destroyed by air-raids. For the purpose of clarification of the circumstances nothing would please my client more than the submitting of all files of the 6-70000 defendants whose cases he handled between the years 1937-1944, The few original sentences which are still available are therefore especially valuable documents because they are, without any changes or alterations, the only documents which talk to us in the sober language of jurists and which exclude any errors about any important circumstances as they frequently occur in cases of testimony given by witnesses.