That is to say, he could no longer act as a physician. One can say that this is equal to an abrogation of civil rights. That was the hardest sentence that a Physicians' Court could impose. According to the opinion, that sentence had been pronounced because Dr. Lapp had failed to revels in making official statements that he was a half Jew. His father had been Jewish. My senate had to decide on the appeal. In this senate I acted as the presiding judge. From Page 34 we can see that on 29 April 1942 we annulled the sentence which I have mentioned and sentenced the defendant only to a reprimand and a fine of 10,000 marks. Therefore he could continue to work as a physician. I want to state also that the fine was high, to be sure, but according the circumstances of physicians at that time it was quite bearable.
Q. May I also ask you to please tell the Tribunal who was informed about a verdict of that kind.
A. These judgments went to various places. According to a certificate on Page 41-A it was also sent to the Reich Ministry of the Interior.
Q. What was your personal attitude in that case, witness?
A. That, I think, will best be manifested by the diary entry which enabled me to find that case, to recall that case again. It is of 3 May 1942. I quote:
".On the following day we had the case against the half Jew Dr. Lapp before us, who had made misleading statements about his descent. He had participated in the first World War and had lost his right leg in combat. We deliberated for about two hours and could not arrive at a decision. Krueger and Georgi were in favor of maintaining the deprivation of the right to practice and they thought that the fact that he was a veteran should only be taken into consideration in the clemency question.
Finally we decided for a fine of 10,000 marks. The whole case is not very pleasant and seen from the political point of view the sentence was certainly two lenient. But I do not care, in spite of the speech of last Sunday.
Q. Concerning that entry, two brief questions. First, what was the speech you were referring to?
A. May I repeat that sentence was passed on the 29 April 1942. On the 26th April, Hitler had made his infamous speech, and everyone was still under the impression of that speech. That resulted in certain difficulties which arose in the deliberation, and that is what my remark refers to in the entry--that the whole matter had not been very pleasant.
Q. Witness, you have not stated yet how many members there were of that senate, and that seems important.
A. The senate was composed of five judges including the presiding judge.
Q. But in your entry, you state that only two judges were in favor of upholding the sentence. Why did it take two hours then? The other three judges, that is, yourself and the other two associates, could have been in favor of annulment of the first sentence.
A. That is not correct. The facts were very simple, and no deliberation was necessary as far as that was concerned. It was only a question of the extent of punishment. Now from the outset, two members were in favor of the first sentence; two were undecided; and if I had taken a vote too soon, the danger would have existed that the first sentence would have been maintained. But it took almost two hours.
THE PRESIDENT: I think the time it took to arrive at an agreement is not important.
BY DR. TIPP:
Q. One more question concerning the case Lapp. Witness, as a judge there, did you have to expect any disagreeable consequences of a decision of that kind?
A. One could never know in advance who would find out about a sentence of that kind. I was particularly exposed because my main occupation was that of a prosecutor for the People's Court.
Q. Witness, from that activity of yours as a judge, could you quote another example which would show your principal attitude?
A. Yes. There was a case against a Dr. Hartmann, which I would like to refer to because it shows my attitude to the Nurnberg laws.
Q. Witness, I submit to you the original file of the Physician's Court in the case of Dr. Peter Hartmann from Eger, and I am asking you to describe here also the facts, only to the extent as they are of importance to elucidate on that fundamental question.
(Witness is offered the document)
A. By the first sentence--the sentence of the lower court--Dr. Hartmann had also been found unworthy to continue to carry out his medical profession. The facts were that Dr. Hartmann, who had lived in the Sudetengau, several years ago before the incorporation of the Sudetengau into the German Reich, in a number of cases had carried out abortions. Therefore, he was found unworthy of carrying out his profession. The case came before my Senate. On the 20 January 1943, we annulled the sentence by the Physician's Local Court in the Sudeten Land--the District Court of Sudeten Land--and suspended proceedings.
Q. Witness, from the statements you have made up to now, it has not become quite clear to what extent that case shows what your attitude was to retroactive laws. Will you please explain that to us briefly?
A. These acts had been committed before the incorporation of the Sudetengau into the German Reich. In Czechoslovakia, abortions had been punishable; however, that article of the law was hardly ever applied. There were several reasons, which are not interesting here, but which prevailed in the case of Hartmann for the assumption that there was no violation of legal provisions. After the incorporation of the Sudeten Gau, German legal provisions were introduced with retroactive force. I, however, considered that one could not justify that a man be punished for acts, which in his former country had not been considered punishable at the time when these acts were committed.
That was the reason why I was in favor of an annulment of the first sentence. One has to add to that the excellent impression that Dr. Hartmann made as a man and a physician, and the excellent reputation he enjoyed.
Q. Concerning this case Dr. Hartmann, I will submit from Barnickel Document Book II, page 44, the Barnickel Document No. 33. That is an affidavit by Dr. Erich Tederra of the 30 July 1947. I may also point out that Dr. Tederra voluntarily approached me, after he had read in the newspaper about the case against Dr. Barnickel.
Witness, did you more frequently have an opportunity to act in this field in a similar way?
A. Yes, quite frequently. Shortly after the case Hartmann, we made the same decision on a very similar case; but about the rest of my practice in that sphere, I could not make any statements from memory.
BY THE PRESIDENT:
Q. A question, please. Could you give us the citation to the law which extended German law to the Sudeten land with retroactive force?
A. I may be able to find it in the judgment. Mr. President, I cannot find it in the first sentence, I am sorry to say, and as for our verdict, that did not have a detailed opinion.
Q. We should like to have the citation if counsel for either side can furnish it.
DR. TIPP: I shall find it out, Mr. President, and I will bring the citation.
BY DR. TIPP:
Q. Witness, may I continue? As for your activity as a judge at that time, would you like to comment on that any further?
A. Mr. President, I think that there was a mistake on my part. I can find it in the file now. The Reich Physician's Law was in force since the first of April 1939, also in the Sudeten area. That was based on a decree of 27 March 1939, and it can be found in the Reichsgesetzblatt-
the Reich legal Gazette--on page 582.
THE PRESIDENT: For 1939?
THE WITNESS: For 1939, your Honor. Something has to he added though; that is Article 17, Section 1 of the second carrying out decree of the 8 May 1937, Reich Legal Gazette, page 585 of 1937. I suppose that these are all the legal provisions referring to the question mentioned by the presiding judge.
THE PRESIDENT: Thank you.
BY DR. TIPP:
Q. Witness.
A. Yes, counsel.
Q. Would you like to make any further comment concerning that activity of yours as a judge, or can we consider that chapter concluded?
A. Maybe I can say quite briefly that in this field, I also stated my opinion in favor of maintaining the independence of the judge. The then Reich Physicians Leader and Under-Secretary of the Reich Ministry for the Interior, Dr. Conti, in 1942 issued a circular letter to the Physicians' Courts directing that in the future in every case of abortion, they should sentence the doctor of the privation of all of his professional rights regardless of the circumstances of the case. I did not know Under-Secretary Dr. Conti at that time, but I went to him and told him that such directives were incompatable with the principle of the independence of the judge and that I saw myself compelled to put my job as the President of the Senate at his disposal if that directive should be maintained. Dr. Conti understood that, and cancelled his instructions. That is all I have to say in that connection.
Q. Now, after this discussion, we may return to your activity with the Reich Prosecution, and I would like you to comment on a legal remedy which so far has not been discussed by you. I mean, the re-opening of a case, and here, of course, we are primarily concerned with the re-opening of a case in favor of the defendant. Did your department frequently have an opportunity to apply that remedy, and who was it who had to decide about it's institution and to sign the application for the re-opening of a case?
A. Such cases occurred frequently, some times with success, other times without. About the initiation, the department chief could decide on his own, he also could sign the application.
Q. Can you give us an example for that, too, witness?
A. Yes. A student by the name of Seiler was sentenced to death by the People's Court for high treason and treason. It was alleged that he had betrayed a military secret of state. In cases of that kind, the Reich Prosecution had to obtain an expert opinion from the High Command of the Armed Forces because the question of whether a so-called substantial secret of the state was concerned could only be decided by a military authority. In the case of Seiler the OKW confirmed that this was the case, and the Senate therefore had to make the decision of the death sentence according to the demand by the prosecution. The prosecutor at the session, Dr. Buchholzer, had misgivings afterwards and told me about then. I shared his views and achieved after a conference with the representatives of the OKW that the expert opinion was re-examined with a favorable result for the defendant. Then, I ordered that the defendant be examined once more by a well-know Berlin psychiatrist, although the expert opinion by a psychiatrist had been obtained before the first trial. The result was that then on the basis of the motion for the application for re-opening the trial, a second trial took place with the result that the proceedings were suspended.
Q. And that application for re-opening was signed by you independently?
A. Yes, I signed it.
DR. TIPP: Concerning this case, I can also submit a document from Barnickel Document Book 2. It is Barnickel Document 34 to be found on page 117.
THE PRESIDENT: May I ask a question. I would like to understand just what you meant by saying that after the second trial, the case was suspended.
Do you mean that the defendant was acquitted?
A. Yes, Mr. President. I did not use the term "acquitted." I did not apply the term "acquitted" because the case on the basis of the expert opinion of the psychiatrist was suspended. In the practical consequences, it worked the same way as an acquittal. He was released.
BY DR. TIPP:
Q. Witness, you worked with the Reich Prosecution, and outside of what we have discussed now in its outlines, before we cone to the last group of questions, nay I put one question to you. That is, whether you liked it with the Reich Prosecution?
A. This again I should like to answer by quoting what I have expressed before, that is to say, on 8 February 1944. I made the following entry in my diary. "It is a misfortune that it was I who had entered into that career. If one wants to assume the position that everything is destiny, then I certainly fail to understand how I have deserved this." I was never happy with the Reich Prosecution and. in accordance with the truth. I can state that wasn't even so on the very first day. From the outset, I did not like that atmosphere which was quite strange to me. The work itself at the beginning was passable because those were times of peace. My main work was in the field of high treason, and it has been stated here once before that in 1938, the year when I came to the Reich Prosecution, there was only one sentence pronounced for high treason; but just owing to the fact that in the beginning of my work I had to deputize for the Chief Reich Prosecutor, I gained an insight into the entire field of work rather quickly; and I knew that I would never be satisfied by doing that work. Those expectations cane true in later years so that during the war cane increasing tensions, par ticularly from August 1942 on.
When Thierack had become Minister, the pressure from above increased.
Q. I believe, witness, that this is sufficient. I only want to ask you the following. You said that you did not really like the work and that the increasing tensions, particularly, the pressure from above was felt by you and you suffered therefrom. As you know, you were transferred to the Reich Supreme Court in 1944, but didn't you have in main before that time to leave that office by either a transfer or retirement?
A. I can answer that question in the affirmative, but to get away from that office even in times of peace wouldn't have been quite so simile, at any rate, not during the first two or three years after taking office. During the war one can say it was quite impossible. We have heard that frequently here. That I was not holding onto the job, I think is explained by my attitude concerning the conflict with Heydrich.
Q. Witness, when was it then, according to your recollection, that you took the first stems to bring about a change?
A. Before I answer that question, I should like to say something else. I believe that I can say that I never identified myself with the regime, but I always tried to find my own way. Later on I was merely intending to hold out on a lost position. Therefore, these superficial characteristics as to when I undertook such stops are not decisive as far as my personal memory is concerned, but I can tell from my memory that my first considerations in that direction occurred. as early as 1941. The first recognizable step was taken by me in the summer of 1942. A t that time a vacancy had. occurred owing to the death of the General Public Prosecutor in Munich. The professional tension and the work which I had come to dislike more and more de pressed me so much that I used that opportunity in order to attempt get way from the Reich Prosecution.
Therefore, I got in touch with Dr. Miethsam who has been heard here as a witness.
DR. TIPP: The Court will remember the statements made by the witness Miethsam. Dr. Miethsam testified here on the 7th July '47, page 4809 in the German transcript, 4,874 of the English transcript. Dr. Miethsam confirmed here that Dr. Barnickel at that time approached him on the matters of trying to get transferred to Munich, and that Dr. Barnickel seemed depressed.
BY DR. TIPP:
Q. Dr. Barnickel, can I assume that the position of the General Public Prosecutor in Munich, as far as the rank was concerned, was below your position of Reich Prosecutor, is that correct?
A. Yes, that is correct.
Q. What was the attitude of the chief of your office concerning that step?
A. I had my application submitted to the Minister through the Chief Reich Prosecutor, and the Chief Reich Prosecutor supported it. Here again may I be permitted to quote a short passage from my diary from the 7th August 1942. "At noon I returned home with Lautz. He told me again that tomorrow he would discuss with Freisler my interest for the position of General Public Prosecutor in Munich before Freisler would find cut through Schlegelberger before Monday as the great news It seems to be something of a sensation that somebody tries to get away from such a high court in order to assume some what subordinate position."
Q. Can you describe the further development, witness?
A. It worked very well. I had broken to the Regerent in the Ministry of Justice, also to the Chief of the Personnel Department. Of course, one was surprised because a voluntary demotion was a rare thing, that everybody was clear about what I wanted. One could recognize that easily because I had renounced any claims which has been confirmed to me by the witness Miethsam.
But then the great misfortune occurred, that was the appointment of Thierack to the position of Minister. A few days later I approached Miethsam again who could only point o t to me that the situation had completely changed. A short time afterwards the chief of the Personnel Department, Director Nadler, was sent to retirement.
There are only a few lines in my diary of the 9th September '42. "I heard that Nadler left and a vice-president from Hamburg became his successor, a Dr. Letz. The question is whether Thierack won't represent an obstacle. That man's name will always have a disagreeable sound in my ears."
Q. Therefore you were afraid, witness, that Minister Thierack would not approve your request; were those worried and fears confirmed?
A. Yes. After a long period of waiting, Thierack informed me that he refused to approve my request for transfer. It was clear to me that he did not want to let me go from my job. At that time, I was of the view that his unfriendly attitude was in connection with the stops that the Reich Prosecutors had undertaken in the fall of '4l, upon my initiative, in connection with the events in Prague.
Q. Were you very much concerned to get that position as General Public Prosecutor, Dr. Barnickel?
A. Not so much about the position because for quite a number of years I wanted to leave the service as a prosecutor, but I had come to see that it was almost impossible to become a judge. Thus, I wanted to get away from the People's Court first of all. In addition to that, I would have returned to the conditions of the Bavarian Administration of Justice with which I was familiar.
Q. Your transfer therefore had been refused, witness, and it seemed useless to make another application; but did you undertake any steps in the direction of retirement?
A. I did not have any legal reason to ask to be pensioned. Because of Thierack's attitude toward me, I would have considered that quite useless. Apart from that, however, on the basis of my attitude to the regime, I had an opinion of my own concerning that question.
Q. Witness, I believe you have to elucidate a little further as far as that opinion was concerned.
A. On that point of view, I want to base myself on the entry of my diary on the 6th of September 1942. I quote: "In this connection, I remember that the other day in Munich, I met the former Vice-President Brunner of the Reich Supreme Court who for the last two years lives in Munich in retirement. I discussed the times with him, and he remarked, 'One has to go along as long as it is comparable with one's conscience. Then one goes and leaves.'.. and then I continue...."That is the usual manner of speaking, but there is not much sense to that. If one thinks of leaving, one has to ask oneself whether his successor would do a better job."
THE PRESIDENT : The question was whether you made any efforts to retire. Did you make any effort to entire. I gather that you did not form your general answer?
A. As I have just said, Mr. President, at that time I did not make any efforts in that direction. May I finish the brief quotation? I am concluding with the words...."to leave simply, that only has a meaning if one is in such a prominent position that leaving is somewhat of a signal, but that would not be the case in my position. I am only a figure-head". End of quotation.
Q. Witness, did you change that point of view later?
A. Well, that point of view of mine, counsel, and that is just a sentence I think I left out here, was to the effect that I found that if one is not sure that the successor will do a better job, one had to continue to do one's duty on that basis and with that personal effort which is still possible. That, counsel, was my point of view until the fall of '43. Then, my circumstances changed considerably.
Q. Concerning that point of view, witness, I shall submit an affidavit later by a prominent Bavarian minister.
Witness, could you also tell us what brought about changes in your point of view?.
A. Ac I have mentioned, the building of the People's Court burned down in November '43. My department was then transferred to Potsdam. At that time my professional circumstances changed to such an extent that it became clear to me that that situation was no longer tolerable. Therefore, at that time, I started to concern myself with the question of whether that was not the time to obtain my retirement and to start something else. Toward the end of the war I spoke to a friend of mine who was a professor at a technical college in Berlin and discussed that subject. He made the best efforts in that direction, but a few weeks later he told me that he had not found anything suitable for me. Several months later, I tried to find a job in industry. These plans were under consideration for quite some time, but they finally failed.
Court No. III, Case No. III.
DR. TIPP: In connection with this may I offer from Barnickel Document Book No. I, on page 68, Barnickel Document No. 20, and affidavit by the present president of the chamber of commerce of industry of Wuppertal Wilhelm Vorwerk, of the 16th July, 1947. The witness confirms here that Barnickel approached him for a job in industry but that these attempts failed. I offer this document as Barnickel Exhibit No. 19.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. Witness, please describe further developments.
A. The middle of February, 1944, my apartment burned down. On account of injuries which I had incurred at that occasion, my physical condition got worse and I was limited in my activity. At any rate, in February 1944 I returned to Miethsam with the request for a discussion, because I wanted to discuss the matter of my retirement with him, out he wrote to me that his department had been transferred from Berlin and that he got to Berlin only on rare occasions. In the spring of 1944 the chief Reich Prosecutor approached me and suggested that I put in an application for retirement. I do not presume that the details are of interest here. Somehow it seamed to me that at that time already the minister had something to do with it, too. I however preferred to leave the decision to the minister. On the 7th of August, 1945 I was received by Thienck in a very unfriendly manner, and he told me that I might be transferred to the post of a local court judge or be retired forcibly. The position of the local court judge is, as is well known, the lowest position in the service of judges.
Q. And did it cone to any proceedings -- disciplinary proceedings against you, witness?
A. Two months Inter I was balled to the chief of the personnel office, Ministerialdirector Dr. Letz. He told me that the minister had decided to have me transferred as a Reich Prosecutor to the Reich Supreme Court.
Q. Any substantial objections, therefore, had not been raised against you, witness, apparently otherwise you would not have been transferred to the Reich Supreme Court; but did you find out as a result of your interview with Dr. Letz anything about the was your attitude was evaluated toward the legal political side?
A. No, only indirectly. Letz talked to me quite frankly, and among other things, he stated that he also would rather be a road worker than a prosecutor before the People's Court and that remark gave me the right impression. Only considerably later I found out from my personnel file from Leipzig that "I had failed to apply the necessary severity in fighting defeatism."
Q. Witness, What was the outcome of that matter, that matter of your transfer. Was it finished by that interview with Dr. Letz?
A. Essentially yes. On the 1st of December, 1944 I was transferred as Reich Prosecutor to the Reich Supreme Courts
Q. Witness, that brings us to the end of your activities as Reich Prosecutor before the People's Court. At the beginning of your examination you discussed your attitude toward the Third Reich and quoted from your diary to confirm this. In retrospect, can you say that you maintained that point of view also during the time when you were in Berlin?
A. I should like to say yes, until the very last day; but, of course, not infrequently there was a difference between the points of view and actions. There was about the same situation as if a small ship gets into a typhoon; it cannot follow it's compass out it has to follow time hurricane.
I was a prosecutor who was bound by legal provisions, as well as by the directives from his superior. Thus, one was always tied between compulsion, laws, conflicts ---- just like between millstones; and very frequently one could not do what one wanted to do, but I believe I can say that I followed my convictions as far as that was humanly possible for me. Conflicts of that nature ore nothing new, as Sir Edward Grey wrote: "In public life one has to do much against which one has a great deal of animosity." Far be it for me to compare myself with Grey, but conflicts in difficult situations in the civil service have remained the some at all times; I believe that sufficiently covers the question.
BY THE PRESIDENT: May I ask a question. Merely to make clear the position which you took, I am not sure that it has been fully explained to us what the hierarchy of the prosecutor was before the Reich Supreme Court. Were you the head of the prosecution before Reich Supreme Court after your appointment?
A. No, Mr. President.
Q. And who was your immediate superior -- Chief Reich Prosecutor of the Reich Supreme Court?
A. That was Chief Reich Prosecutor Brettle; that was my immediate superior.
Q. And you were next under the Chief Reich Prosecutor of the Reich Supreme Court; is that it?
A. No, Mr. President. I could not state that because there was a number of Reich Prosecutors --
Q. Yes, who may have had seniority over you.
A. Yes, to answer the question precisely, to my surprise I found myself transferred into the same rank at the Reich Supreme Court.
THE PRESIDENT: I see. Thank you.
BY DR. TIPP:
Q. Witness, did you went to say anything more concerning that point?
A. Yes, may be I should explain. The result which I have just described was very surprising for me after the reception with Thierack had been so exceedingly unfriendly. I attributed that only to the influence of Dr. Letz who apparently was of the opinion that a man even though he had failed with the People's Court could serve the administration of justice well in a non-political position.
Q. Before we discontinue discussions about your activity in Berlin, another group of questions: During the last weeks while you were there, the cases concerning the 20th of July were pending. Did you have anything to do with these proceedings officially?
A. No, my Apartment had nothing to do with it.
Q. What was your attitude in connection with these events, witness?
A. My attitude was quite in accordance with my general attitude toward that regime. At this time a number of people turned to me to have me intervene in favor of members of the group of conspirators, or for dependents of these conspirators. I could do little in that direction, but I helped wherever it was possible.
DR. TIPP: May I offer in this connection Barnickel Document No. 19 from Barnickel Document Book No. 1, on page 64. It is an affidavit by Freifrau von Guttenberg of the 23rd June, 1947. Freifrau von Guttenberg was a relative of Count Stauffenberg, who, as is well known carried out the attempt against Hitler. Her entire family in connection with that attempt had bean arrested. She turned to Dr. Barnickel for help and information and, testifies as to how Dr. Barnickel had helped her.
May I ask that this Exhibit be received as Exhibit No. 20.
THE PRESIDENT: The exhibit is received.
DR. TIPP: Further more, I offer from Barnickel Document Bock No. I, on page 71, Barnickel Document No. 21. It is an affidavit by Frau von Schmidt of the 17th July, 1947. That statement also deals with the events of 20th July and the attitude of Dr. Barnickel concerning these events. I offer this document as Barnickel Exhibit No. 21.
THE PRESIDENT: The exhibit is received.
DR. TIPP: Further more, may I refer in this connection to Barnickel document No. 18 which T have already offered as Barnickel Exhibit No. 3, and which has been received. It is the affidavit by Dr. Full, from Barnickel Document Book No. I, on page 61. Here also Dr. Barnickel intervened for one of the conspirators of the 20th of July.
Q. Witness, two more short questions concerning your work in Leipzig. What did you have to do with political penal cases?
A. Nothing al all. One time only there was an extraordinary objection which had a certain political coloring.
Q. Could you briefly explain the case, witness?
A. A physician in East Prussia in the opinion of his Kreisleiter had shirked his responsibility to take part in public digging work and had been sentenced to a three year penitentiary term by a Special Court. I considered the point of view of the Kreisleiter wrong and also the sentence by the Special Court, and in a number of conferences intervened for the annulment of that sentence. The military defelopments in the East, however, occurred so fast that a decision could no longer be made.
Q. Then, the last question, witness. When did you end your work with the Reich Supreme Court?