This remains in the province of the Court and should be permitted the attorneys for the prosecution and the defense counsel in their pleas through which they make suggestions to the high court. Therefore, I consider it the chief purpose of my defense to object to certain charges which have been raised by witnesses and have been made in the affidavits with respect to individual penal cases handled by Oeschey, or regarding certain incidents insofar as this has not already been done during the cross examination of the witnesses, especially of those who had made affidavits; these witnesses have already provided important additions to their affidavits, which are of great importance for the decision of the Court. The original affidavits considered only the incriminating circumstances and thus gave necessarily for this reason alone, a distorted picture. In the presentation of my evidence, I intend to proceed along lines which are different from those of the prosecution. I consider the documents as the most valuable evidence. These documents, for the most part, are available in the court files. Only when the documents require a clarification I shall introduce witnesses, among them the defendant as well, for evidence. In this manner, I hope to be able to reconstruct the facts of the case, upon which the case is contingent, in such fashion that errors in the judging of the evidence may be precluded. As a result of its extensive practice, the Court is certainly aware of the value or lack of value of the testimonies of witnesses. Therefore, I need not enter into a long discussion in that regard. The problematic value of the testimony of the witnesses plays an important part in the case of my client where it is a question of revitalizing legal procedures in which many times one word, a formality, a particular motion, or the use or non-use of a provision of the law, are important.
Through this presentation of evidence, I shall furnish proof that in none of the cases under discussion here does there exist a defeating of the aims of the law, either in the procedure or in the passing of judgment.
However, in doing so, I am aware that the problems inherent in this trial are not exhausted. I do not wish to state, though, that they are only just beginning at this point; on the contrary, I an convinced that with this proof, the vindication of my client is assured.
Here I have to interrupt one moment in order to correct a mistake in the translation. In the English copy the word "essential" has been left out; it should really read " the essential vindication of my client is assured."
In spite of this fact, however, the treatment of the basic problem of the judicial responsibility can not be avoided, and here, in my opini opinion, arises one of the most difficult questions which must be decided by the Court, namely:
Can a judge in any way be held responsible when he correctly administers the laws as decreed by the recognized authorities? This question may always be answered in the negative. The theory of German Constitutional Law, as well as the legal interpretation of the highest German court, has always denied the German judge the right to submit any properly promulgated law to an examination of its moral content. The English Jurists are of the same opinion, as far as I have had the opportunity to inform myself in this connection (e.g. Salmond, Jurisprudence, 8th Edition, London 1930, p. 185/86.) Therefore, the judge must administer the law regardless, whether it pleases him or not. This may well apply to the German as well as the Anglo-Saxon interpretation.
Now is there a limit which even the legislator may not transgress, and must the judge heed this limit?
In post-war Germany much has been written on the subject as to whether a judge can be held criminally responsible for administering laws which transgress the moral law, which, therefore, represent injustice in the form of a law. Scholars of high standing have attempted to find a solution to this difficult problem, and, so far as I can ascertain, have always arrived at the conclusion that the judge is not punishable.
It will be the task of the general defense to deal with this problem and to decide whether the formulation of the problem is correct at all and whether it is relevant for this trial. I should like to point merely to two points of view, which are of more practical importance:
"To begin with, it is extremely difficult to set a limit where a law ceases to be a just law. Everyone questioned on this subject would probably answer in a different way, in a concrete case. Moreover, obviously even the Military Government itself did not consider the legislation of the so-called Third Reich as null and as non-existent on account of immorality. For the law No. 10, issued by the Military Government, orders expressly a 'nullification' of Nazi Laws and also during the following periods individual laws were always 'nullified' by the Control Council, a procedure which would not have been necessary or not in this form if the laws as such would have been void. Thus, the Military Government itself took the position of a positive, which was always also for the German judge , due to his training and education, the decisive point of view.
The second point of view is the following:
The evidence submitted by the prosecution up to now has already demonstrated that the extremely severe sentences passed by the Special Courts were based upon some laws decreed in wartime; this is certainly true in the case of the defendant Oeschey. These laws do not provide for penalties for actions which in normal times or according to the laws of other nations are not punishable. They merely provide for more severe punalties under certain conditions which are due to the extraordinary circumstances during the war. They thus led to an application of the death penalty to an extent which would have been formerly incomprehensible. But as far as the verdicts of the Special Courts are concerned, almost always heavy crimes committed mostly by habitual criminals were handled there. I do not want to speak in favor of the National Socialist Penal Laws, but I think it goes too far to designate these laws - I am speaking in this regard principally of laws which have to do with the general but not with the political criminality - as obviously immoral ones.
The reasons, which were given for these laws, - that nobody in the homeland is permitted to enrich himself or to commit crimes which show an especially base attitude or are committed in an especially base way while at the same time the soldier in the frontline sacrifices his life without any reservation - do not lack a moral basis. Crimes which are committed by taking advantage of the conditions created by the war (which conditions were endured patiently by the people in spite of all sufferings) must be punished with extraordinary severeness. The plunderer in a war-area - and also the hinterland became a war-area due to the air-raids - deserves death according to the law of all civilized nations. The crimes which were handled by the Special Courts were in themselves serious violations of the law. In addition, criminality was on one hand favored by the war, on the other hand it had to he suppressed with special energy during the war, should the war effort and its success not be endangered. These considerations led, in other countries too, to more severe criminal laws and to more severe sentences. It is therefore not possible to simply condemn the Military Penal Legislation of the Third Reich and to regard it, absolutely and without any reservation, as immoral.
Here I should like to explain one mistake: Kriegsstrafgesetzgebung was translated as Military Penal Legislation, the correct translation would be Penal Legislation during Wartime; it being not a Military Legislation but a Legislation that came out during the war.
The Penal Lavs, especially those decreed in wartime, gave the judge a large margin for the just award of punishment. This margin very often ranged from imprisonment to the most severe penalty, capital punishment. As far as the legislator authorizes the judge, to determine the penalty within a certain range, it is at the discretion of the judge, which kind of punishment he wishes to choose.
But even in this decision he is not free wish to finish that paragraph?
THE PRESIDENT: Do you wish to finish that paragraph?
By fixing the range of punishment - even if this range is a wide one - the legislator somehow evaluated the crime in general in advance and the judge is bound to this evaluation; he therefore can not pursue a criminal policy which deviates from the intentions of the legislator. In meting out the punishment in the individual case within the range prescribed by the law he has to observe this point of view and its more detailed interpretation through the highest courts. The punishment has to be in relation to the criminal character of the act and to the kind of the crime. Under certain conditions he has, therefore also to pronounce the capital punishment. When awarding punishment, the defendant Oeschey did not deviate from these points of view and I shall prove that in no case he can be charged with having misused his discretion as a judge.
THE PRESIDENT: We will resume at 2:30 hours. We now take the recess.
(The recess was taken at 12:15 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 24 June 1947.)
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
DR. SCHUBERG: May I continue? I had discussed questions of punishment award and I am now continuing on page 7 of the German text; that is page 8 of the English text:
Besides, OESCHEY did not pass his sentences alone, but together with two associate-judges. As presiding judge he was not more than a "primus inter pares;" he did not have more than one vote and had in this respect just the same rights as his association judges. It is a generally observed phenomenon that a strong personality tries to put his opinion across, especially if he is convinced that his opinion is just. I cannot see anything extraordinary in the fact that OESCHEY, when conferring with his associate-judges, defended his opinion and tried to convince them accordingly. It has not been proved that by doing so he possibly employed means which were not permissible, and if an associate-judge states as witness today that he succumbed to the hypnotic power of OESCHEY' one must say that this belongs to the realm of phantasy. In this case the witness was either of dissenting opinion ....: I ask your pardon if I interrupt here; the expresssion here, in my opinion" has been mistranslated. I would ask you to change "of dissenting opinion" to "outvoted". In this case the witness was either outvoted - in order to pass a sentence OESCHEY needed the vote of at least one associate-judge - or he does not possess today the civil courage to stand for his conviction at that time if it should deviate from his today's conviction.
This statement would be incomplete if it would limit itself to the facts. The intent has also to be discussed. This was also recognized by the prosecution which quoted in its-opening statement (page 89 of the German Transcript) the formulation which judge Stephen gave with regard to the intent of the perpetrator in connection with a crime of manslaughter.
This formulation seems to be the same as the German conception which requires as prerequisites that the perpetrator wants the result and that he knows that his act was illegal. In our case the perpetrator would also have to know that in spite of the fact that he is acting in accordance with a law issued by the legislator, he is violating - at the same time - a superior law - the law of nature or moral code. When the defense presents its case, the Court will, as I hope, recognize to what extent the German People was exposed to an unscrupulous propaganda during the National Socialist Regime. Quite a number of witnesses declared frankly when I talked to them in person during the interrogations: "Under the influence of the conditions of the war and of the official publications we thought at that time that it was correct to pass these severe sentences." Should just the defendant 0LSCHEY have succeeded in remaining uninfluenced by this propaganda, should just he be made subjectively responsible for these severe sentences? Like innumerable other people he could not remain uninfluenced by this propaganda which told the German People only what it considered would serve its purpose, in order to withhold from the German People any report about the committed inhuman acts and in order to make it therefore impossible to form a true and just opinion. Surely, he was convinced that his sentences were just, a fact, which I shall prove during the defense by numerous examples.
The above statements apply as well to the substantive criminal law as to the law of criminal procedure. Those provisions which form in criminal procedure a guarantee for the defendant were considerably limited during the war due to the necessities of war time.
Within these limitations, however, a conscientious judge could so manage the individual trial that the essential requirements of an orderly trial, namely the according of a fair hearing to the defendant, the comprehensive and exhaustive explanation of the facts of the case suitable facilities for the defense, were obtained. I shall prove - so far as such proof has not resulted from cross-examination of the witnesses for the prosecution - that the defendant OESCHEY granted this fundamental requirement, allowed to every defendant in criminal proceedings held in due form, even in the Summary Court (Standgericht). The formal deficiencies of some trials conducted by OESCHEY which have been observed by the witnesses, and which consisted in misplaced treatment of those concerned in the proceedings, particularly of the defendant, originated in OESCHEY's somewhat unhappy temperament and has himself sincerely regretted them.
They have made no difference to the scrupulous finding of the facts of the case, as many witnesses have already confirmed, and many more will also confirm; they therefore do not constitute in themselves a violation of the law and do not prove lack of humanity, but are merely signs of clumsiness or lack of taste, as one witness put it.
The indictment has not however limited itself to charging the defendant OESCHEY with his own actions in the broadest sense but also accuses him of taking part in possible crimes committed by other people and includes in this accusation without consideration all the forms of participation given in Article II No. 2 of the Control Commission Law. This regulation comprises in part forms of participation which are known to German law and have also been developed and discussed by the German jurispurdence and jurisdiction, and in part such forms which are quite strange to our legal conceptions. It will therefore be necessary to examine the legal aspect of the forms of participation of No. 2, b, c and d, which require theoretical consideration in this case classify them under certain general headings. The broadest idea is undoubtedly "the being connected with the planning of a crime", being a. purely intellectual participation in preparatory measures (No. d). Not much less broad is the participation in "an organization or association which had a connection with the commission of a crime" (No. e), while the other forms of participation (Nos.
b, c and the rest of d) are better known ideas and obviously require that there must be some causality between the act of the participator and a specific criminal result.
As to what, to begin with, participation in planning moans, it will be enough in this connection, to raw attention to the fact that OESCHEY, as presiding judge of the Special Court had to make decisions on criminal cases brought before him through the raising of an indictment on the part of the office of the Public Prosecutor. He had no influence on the selection of such cases, as I shall prove by submitting evidence. There can therefore be no question of planning. The so-called directive discussions and the communications maintained between judge and public prosecutor are similarly - since they only affect single cases - not planning. They have, moreover, as I shall prove, never led to any unjust prejudice against a defendant.
Nor did OESCHEY ever belong to an organization or association which was connected with the commission of crime. Such an organization or association could only have been, in accordance with the extremely wide terms of the indictment at this point, the entire German judicial machine. In this judicial machine the judge occupied an exceptional position. In spite of all the measures which were taken, especially after Thierach took office in August 1942, there is no doubt that judicial independence was preserved to the extent that no instructions were or could be given to the judge as regards any individual case. In taking a decision on any one criminal case brought before the judge by the public prosecutor's office, he was, accordingly, and remained, solely subordinate to the law and in the application of such law responsible only to his own judicial conscience. This fact blocks the operation of any conceivable chain of cause and effect subsisting between the activity of a criminal association or organization - the existence of which I hereby absolutely decline to admit - and the judge taking a decision in anyone case.
It also, therefore, forbids the imputation of any participation or membership of the judge in any such association or organization.
The same consideration leads to the denial of any other form of participation. At this stage a further point calls for reflection. The participator must have in himself the consciousness of affording and the will to afford support to another's act. Such subjective conditions have never been present in the mind of the defendant OESCHEY. If he, as a judge, as presiding judge of a bench, pronounced sentences in common with his associate judges, he intended the result of the trial to be a declaration by his own Court, a responsible decision by himself and his duly appointed associate judges and not support given to the policy of a Ministry far removed from him in its operations or to that of a superior tribunal, let alone to that of a public prosecutor's office.
All these explanations apply equally to the defendant OESCHEY in his capacity as presiding judge of the Summary Court (Standgericht). They apply in exactly the same way to Germans as to foreigners, who were judged in principle under the same regulations as Germans and who in certain classes of offences, such as malice, were liable to a milder penalty. Polish cases were handled by OESCHEY as presiding judge only to a very small extent, as, during the time he acted as permanent presiding judge of the Special Court, viz, from 1 October 1943, these cases were no longer brought before the Courts at all. He is not charged with any verdicts against Jews.
As to IV of the Indictment the last count of the indictment is the defendant OESCHEY's membership in so-called criminal organizations.
OESCHEY joined the NSDAP at an early date, namely, in 1931. His entry into the Party can only be attributed to conviction, as at that time he could not expect to derive any advantages from it. Up to the year 1940 OESCHEY held no Party office, nor did he obtain any professional gain from the Party, as I shall prove. It was only the need for personnel caused by the war and the special circumstances in the Franconian Gau called into being by the discreditable departure of Streicher and his gang which brought OESCHEY to legal office in the Gau (Gaurechtsamt) and to leadership of the National Jurists' League (Rechtswahrerbund). The latter is not a criminal organization and may be eliminated from the following consideration.
The judgment of the IMT did not declare the entire body of political leaders of the NSDAP criminal but, as regards the staff organizations, only those "office managers" who were managers of offices on the staff of the Reich, Gau, and Kreis managements. I shall prove that OESCHEY was not an office manager as defined by the IMT judgment's formula. I shall, however, also try to prove in event that OESCHEY had no knowledge of the criminal dealings by the corps of political leaders which were referred to in the IMT judgment, let alone participated in such dealings. For the rest, his professional and personal political influence was remarkably slight.
It is my opinion that the prosecution overestimated the position and influence of the defendant OESCHEY when it brought him to trial before this Tribunal.
DR. ORTH (Counsel for the defendant Altstoetter):
Mr. President, Your Honors:
If this trial should result in a sentence, forming a precedent for the future, the proceedings must constitute a trial directed against human beings, a trial of persons, not of documents and papers.
In that event personality will have to take the center of the stage. I shall therefore, as defense counsel of the accused Altstoetter, try, in my demonstration of the case, to place Altstoetter, as a man, at its central point and from this point to conduct my defense in the four directions of the indictment and enter further upon them.
Altstoetter as a man, in his inmost being, is characterized by genuine piety. This feeling is the center of his understanding life and world-outlook. He acknowledged it without fear and timidity even during the anti-religious period of National Socialism. It was from this central standpoint - sub specie aeternitatis - that he regarded matters, including political matters.
This way of thinking determined his activities and dealings; it was the basis for the work on behalf of his people whom he was capable and desirous of serving at a difficult time. Altstoetter's religiously determined ethical views were, however, the source, also, for the very high appreciation of human cultural values, human dignity and human rights, which he indeed always upheld and represented.
I.
In the first count of the indictment Herr Altstoetter, like all the other accused, is charged with conspiracy.
As to the question whether this term can be legally used in this connection and the question whether conspiracy constitutes a criminal act according to existing definitions, these matters will be discussed by one of the associated defense counsel. The questions will be answered in the negative.
The indictment declares from the point of view of actual fact, that Altstoetter plotted with other persons to commit crimes against humanity and the laws of war. No proof cf these statements was given by the prosecution. No document has been produced proving the participation of Altstoetter in any crime and no witness has been heard who has stated that Altstoetter took part in any wrongful act or that he in any way deserted the standard of justice to which he was bound in virtue of his office. The defendant Altstoetter and I myself paid particularly close attention to the production of documents and the whole argument of the prosecution, for we could not at all imagine what charges relative to conspiracy could possibly have been brought. The negative result of the case made out by the prosecution in this respect was expected by us.
Altstoetter was not a conspirator, unless, indeed a man may be a conspirator who, as we shall prove, set himself in opposition to all measures and laws containing any element of injustice.
In the document PS-654, Exhibit 39, which contains the record of the discussion between Thierack and the Rcichsfuehrer SS, the aliens Law (Gemeinschaftsfremdengesetz) is mentioned in No. 7. This law, which had already been put into shape at the time of Altstoetter's arrival at the Ministry of Justice, and of which he only hoard by accident, he cancelled the last minute. That is not the act of a conspirator.
The Party Liability Decree (Parteiraftungsvorordnung) had also already been put into shape at the time of Altstoetter's arrival at the ministry. It transpires from document NG-889, Exhibit 436 (Document Book I, Supplementary Volume) that he also put that decree to the debate once more on the grounds of its injustice and finally, in collaboration with the defendant Klemm, prevented its being passed.
This was not the act of a conspirator.
The Prosecution in its argument, reproached the Ministry of Justice with having instituted the Special Courts and the Reorganization of the German Legal Constitution, Altstoetter extracted from Thierack, the Minister, the promise that these Courts should be abolished at the end of the war. And I must repeat that this was not the act of a conspirator.
I shall prove in a number of other cases in this connection that altstoetter set himself in opposition to all inroads against justice and that he contested every act of injustice wherever he came across it.
Above all, however, I shall prove in my argument that Altstoetter, in his handling of personal questions, never allowed himself to be influenced by any Party points of view in politics. Had he been a conspirator, it would have been unintelligible for him to have appointed as his permanent representative a man known to have been an opponent of National Socialism, and it would have been unintelligible for him to have employed in his department a large number of experts and "referents" (sub-department chiefs) who are once more today filling the highest positions of the German authorities of Justice, and for him to have thrown himself heart and soul, for example, into getting a man appointed as President of the Senate at the National Hereditary Farm Court, who, on account of his having been Public Prosecutor at the trial of Hitler in 1924, was one of the most hated men in the Third Reich.
By means of these and other facts I shall give the most cogent proofs that Altstoetter was not a conspirator.
Ad Count II of the Indictment:
The prosecution has not given any proof against the defendant Altstoetter bearing on the second count of the Indictment. It has neither produced any documents for which he is. responsible nor has it examined witnesses in this direction. No proof has been given that Altstoetter intentionally and knowingly committed war crimes as defined in Control Commission Law (Kontrollratsgesetz) No. 10. He has neither committed any such crimes himself nor instigated or promoted them.
The name of the defendant Altstoetter is only mentioned in the indictment with reference to its second count, at No. 13 and No. 17 (Crimes against Jews).
The defendant Altstoetter had nothing to do with the Decree. He only heard of this decree, and its execution by the Ministry of Justice, after the end of the war. I shall prove that Department VI of the Ministry of Justice only once came into contact with the idea of NN matters as an incidental reference during its dealings with questions of civil rights, without however either itself or in particular the defendant Altstoetter being informed of the nature of the NN Decree and its object or of its being put into effect.
The defendant Altstoetter was not concerned with a single decree depriving the Jews in Bohemia and Moravia of their citizenship and in particular he is also not in any way connected with the decree of the 13th order for execution of the Reich Citizenship Law of July 1, 1943 (NG- 715 - Exhibit 112). His responsibility, therefore, for the reversion of Jewish capital to the Reich is also nil.
The prosecution has indeed produced a few other documents in which , the name of Altstoetter appears. But these documents contain no indication whatever of any criminal activities and can easily be disposed of. I shall be able, therefore, to restrict my argument with regard to the second count of the indictment.
The third point in the indictment contains, so far as Altstoetter is concerned, the same charges as are made against him under Count 2.
In the indictment and bill of indictment no specific charge is made against the defendant Altstoetter arising out of the arrangements made by the Hereditary Health Court. The prosecution has, however, submitted a document relating to the Hereditary Health Court, which bears the signature of the defendant Altstoetter. I must therefore emphasize the fact that Altstoetter had nothing to do with the establishment of the Hereditary Health Court. The whole business of Hereditary Health was the affair of the Ministry of Interior. It was only the organization of the Court that was administered, as well by the Ministry of the Interior as by the Ministry of Justice and by Department VI of that ministry. I shall, however, prove, by producing orders issued during Altstoetter's period of office and by means of affidavits, that the work of the Hereditary Health Court was almost completely suspended during Altstoetter's period of office. Furthermore, the indictment has in fact not cited a single case occurring during the time Altstoetter was at the Ministry of Justice which permits the inference of any unjust or actually criminal manipulation of the regulation already laid down at an earlier date; that, for the rest, these instructions were not criminal and were not used in any criminal manner will be proved by Undersecretary Schlegelberger.
In relation to Nos. 25 and 29 of the third count of the indictment the same considerations apply as I have referred to above in connection with paragraphs 13 and 17 of the bill of indictment.
The defendant had in no sense or manner to concern himself with the crimes which almost exclusively composed and still compose the object of this trial. He was only active in the sphere of civil affairs. The letters produced as Document NG-702, Exhibit 481, and Document 783-NG, Exhibit 484, will also be explained in this sense.
Finally, the defendant Altstoetter is reproached with being a member of the SS, which has been declared criminal by the International Military Tribunal.
In opposition to that I will state that Altstoetter was only Ehrenfuehrer (honorary leader) of the General SS, and so, contrary to the claim of the military court, was no ordinary member, that he rendered no service of any kind and that according to his attitude of which I spoke at the beginning, his attitude was anything but in accordance with the SS. If in the indictment it has been maintained that Altstoetter was a favorite of Himmler, I will also oppose these assertions in showing how Altstoetter came to the SS and what opinion Himmler held about Altstoetter. The letters submitted by the prosecution do not prove the assertions of the charge. They are easy to explain and will be rendered easily understandable to any unbiased person by the evidence documents which I shall submit.
The International Military Tribunal has expressly declared in the general statements concerning the question of declaring the organizations criminal:
"Since, as was already stressed, the declaration concerning the organizations and groups will determine the criminal character of their members, then this declaration should exclude those who had no knowledge of the criminal aims or acts of the organizations...
"Mere membership is not sufficient to be affected by such declarations."
And in the case of the declaration on the SS it says again expressly:
"The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the proceeding paragraph who became or remained members of the organizations with knowledge that they were being used for the commission of acts declared criminal by Article 6 of the Charter..."
The International Military Tribunal has therefore stressed twice that knowledge of criminal actions of the SS is the basis of the judgment. Evidence of this knowledge must be brought by the prosecution. In the case of Altstoetter it has not been brought. In the opening speech the prosecution declared to believe that it was encumbent upon the defendant to produce the evidence that he had no knowledge of the criminal acts of the organizations. The prosecuting authorities themselves took as the basis of the judgment:
1. membership after 1 September 1939 2. knowledge of the criminal acts.
On what grounds they believe that they are obliged to prove only the first supposition is just as inexplicable as their viewpoint that the problems of the weight of evidence are purely academic. They are not, at least with respect to the defendant Altstoetter, for he has committed no criminal acts himself and he also had no information about the criminal acts of the SS before 1939 and in particular since 1 September 1939 - and it is a question only of this organization and the criminal acts committed by it since 1 September 1939 since the beginning of the war. If the prosecution put forward as evidence of knowledge of the crime the fact that Himmler had tried hard to ensure that the German justice was fully informed of the ideology of the SS and of its criminal aims, then this is a completely false conception of the case and an entirely mistaken idea of Himmler's personality.
I shall prove that Himmler expertly succeeded in keeping secret the crimes committed by the SS and that also in his speech which he delivered in July 1944 before the Presidents of the District Courts of Appeal and the General Public Prosecutors at Kochem he did not say one word about these crimes or even about the criminal aims of the SS.
If Altstoetter had known about the crimes committed by the SS, then without doubt he would have acted accordingly and would have withdrawn from his unofficial membership in the General SS. Furthermore, he would have refused any cooperation in such a state, for a man like Altstoetter, who always and with a very rare energy acted as mouthpiece for the idea of the law-abiding state (Rechtsstaat) and who, as I shall prove, resisted the unjust claims raised by the SS, is not two-faced (zwiespaeltig). He cannot fight against injustice fully employing the weight of his personality on the one side while idly looking upon the same injustice on the other side. The conception of justice as it was represented by Altstoetter has not got two sides. In its innermost pre-supposition it is a mental demand, which is not of a worldly nature and which therefore according to the conviction of the defendant Altstoetter cannot dispense with a firm and lasting bond with the world of eternity.
It is my intention to draw a faithful picture of Altstoetter before the Court. This picture will not be a criminal one, but will be the picture of a man who was filled with an ardent desire to serve justice.
THE PRESIDENT: Are we to understand that this completes the making of the opening statements except for that of Engert?
DR. SCHILF: Yes. Mr. President, may it please the Court, for all the defense counsel I have undertaken to examine Professor Jahreis, professor of law, as an expert. If the Tribunal expects that now, immediately following upon the opening statements, the expert is to be examined, I should like to say the following. Professor Jahreis will, above all, deal with German constitutional law. Professor Jahreis attaches importance to the fact so that he can clear up everything for the Tribunal, that he should read his statements based on a chart. I have a copy of the chart here. The charts themselves are to be enlarged on the model of this chart and will be hung up here in the courtroom. During the past few days I have made every effort to have the charts ready by today, but this morning I was told that the charts will only be ready by this evening.
In case the Tribunal wishes to hear Professor Jahreis immediately following upon the opening statements, I would have to ask the Tribunal to call Professor Jahreiss at the beginning of tomorrow morning's session. But I should like to make the following statement. Two of my colleagues, in their opening statements, have put forward provisional motions, Mr. Haensel on behalf of all defense counsel in respect to Count I to have the indictment declared insufficient by the Tribunal.