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?
A. When the American troops marched in. Later I was for five months under the Russian occupation. Then I returned to my home in Bavaria.
DR. TIPP: Mr. President, for the time being I have no further questions to Dr. Barnickel.
THE PRESIDENT: The Tribunal will recess for fifteen minutes.
(A recess was taken.)
Court No. III, Case No. III.
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal will be in recess for just a moment, please.
(Very short recess taken)
THE PRESIDENT: Does any other defense counsel desire to examine the witness as his own?
DR. DOETZER: For my colleague Dr. Koessl and the defendant Rothaug, may I address a few brief questions to the witness?
BY DR. DOETZER:
Q. Witness, you commented on the practice of transfers of the Reich Prosecution, and, as far as I remember, you stated that you transferred cases to all General Public Prosecutors. Therefore, merely for the purpose of clarification, I am asking you whether this instruction-
A. (Interposing) Counsel, I do not believe that they were transferred to all General Public Prosecutors, because this is how it was. Not all District Courts of Appeal in the Reich were concerned with political penal cases, but only about one-half of the District Courts of Appeal. Therefore, we only turned cases over to those General Public Prosecutors at those District Courts of Appeal. If I should once have used the expression "to all General Public Prosecutors", from my point of view, of course, only those were meant who had things to do with political Senats.
Q. Was there such a political Senat at the District Court of Appeal at Nurnberg?
A. No. In Bavaria there was only one District Court of Apical that had a political Senate, and that was the District Court of Appeals at Munich.
Q. Thus, this was transferred to the General Public Prosecutor in Munich?
A. Yes, counsel, that is correct.
Q. If this General Public Prosecutor in Munich handed the matter on further to the Public Prosecutor in Nurnberg, was he the letter's superior?
A. Well, he was, without doubt, not his official superior, because the Senior Public Prosecutor in Nurnberg belinged to a different sphere.
DR. DOETZER: Thank you, witness.
DR. BRIEGER (Counsel for the defendant Cuhorst): Your Honor, may I address a few questions to the witness which refer to my client Cuhorst?
BY DR. BRIEGER:
Q. Witness, curing your examination yesterday afternoon you mentioned a case in Stuttgart, and you said that my client Cuhorst had decided the case very leniently, because he assumed it was misdemeanor instead of high treason. You have also mentioned that the defendant was a Dutchman.
A. That is correct.
Q. Thank you. May I now ask you this? What was the scope of penalty, on the one hand, in the case of a misdemeanor, and, on the other hand, in the case of high treason?
A. In the case of serious misdemeanor the highest penalty was six weeks of imprisonment, and in the case of high treason the highest penitentiary sentence was 50 years, and, dependent upon the circumstances -- which in this instance, I guess, was not the case - the death sentence.
Q. Do you recall that Cuhorst merely pronounced a prison term of six weeks?
A. I recall that in the case of which I spoke yesterday, the president of the District Court of Appeal of Stuttgart pronounced a prison sentence of six weeks in that case.
Q. Do you mean to say, if I understood you correctly, witness, the Senate in Stuttgart under the Presidency of Cuhorst?
A. The Stuttgart Senate, under the Presidency of Cuhorst, as I said yesterday.
Q. Witness, do you remember other cases in which German courts, in the case of foreigners, on the basis of the indictment, because of high treason, only decided upon a sentence for serious misdemeanor?
A. I can remember no such case, and I doubt that any such other case occurred, to my knowledge.
Q. If I understand you correctly, witness, the Cuhorst sentence was unusual, and in favor of a foreigner. Is that correct?
A. The Cuhorst sentence was noticeable. I can still recall that at the time when I saw the sentence, I looked up, in my personnel calendar of the administration of Justice, who this Cuhorst really was. I was especially interested in how old he was, and I still recall that with certainty. That is evidence to the effect that I noticed that case especially, and of course to the good side, within the meaning that I put to it.
Q. You mean to say in favor of the person concerned, if I understood you correctly?
A. Yes, in favor of the defendant.
DR. BRIEGER: Thank you witness, that is sufficient.
THE PRESIDENT: It appears that there arc no further direct examinations. The prosecution may cross-examine.
CROSS EXAMINATION BY MISS ARBUTHNOT:
Q Dr. Barnickel, I believe that in your testimony you stated that before joining the Party, and, in fact, before 1933, you had listened to speeches by Hitler. Is that correct?
A That is correct.
Q Then at that time you knew something of the Nazi Party aims, did you not?
AAt that time, in any case, I knew that Hitler had said in his speeches.
Q In those speeches, did he speak of the Party aims and what was to be done by the Party when it came into power?
A I must say quite honestly that the contents of these speeches I do not recall in the least any more toady. I beg yon to consider that after 1933 there was such a superabundance of speeches which we had to submit to that it is really no longer possible to remember speeches which Hitler made before the political change. Of course, because that is a matter of course, I can answer your question affirmatively in general, but details arc impossible for mo to state.
Q Thank you. Yesterday you stated, I believe, reading from your diary concerning an entry shortly, after Hindenburg's death, that Hitler's entire system of government was based on lies, violence, terror, and a dangerous gamble with the masses. You further called the government a dictatorship. Your diary went on to state, on the 1st of August, 1934, that: "A relatively small number of people, supported by a splended machine, arc ruling over the Party, and, in so doing, over the State. All the other people have nothing to say, but there arc still individuals among us who do not want to understand that we have a dictatorship. Nobody is in a position any longer to state his opinions, apart from a very small band.
What else could that be but a dictatorship, and where will that end?"
How do you reconcile these statements, that it is a dictatorship and that only a very few people within the Party have any influence, and that statement that others can do nothing, with your statements that you stayed in the Party feeling that only by staying in the Party could you hope to influence it?
A First I would like to say that if, in that entry in my diary, I spoke of a few people in the Party who had influence, I thereby did not mean all of the Party members. However, by saying these few people, I meant the very small circle of old Party members and of old fanatics. But by that, again, I do not want to say that everybody who had entered the Party before 1930 was a fanatic. I don't believe I have to explain that in detail.
Before I made that particular entry in my diary, I had already written that I considered it necessary -- that is, I am not repeating the words of what I wrote at the time, but the meaning -- that in this new movement, so to speak, a wing of sense is being formed, and it is also connected with this idea. At another place I wrote that at that time I was of the opinion that it would be best for the judges to enter the Party as a closed group so that by this action they would give weight to the Administration of Justice.
I have also mentioned that, due to the course that matters took at that time, I saw outside of the Party, really, only a vacuum; and if I look back today, I can honestly not see what some people outside the Party could accomplish during these years at all. Of course, by saying this I do not want to say that nobody outside of the Party accomplished anything, but at the moment I cannot recall having seen something that exerted a decisive influence on the development. That is my line of thought in general.
Q Could you see what influence was exerted within the Party for good?
A Yes, I certainly saw that, and if it is not immodest I may perhaps refer you, after all, to what I was able to achieve under very difficult circumstances. In doing so, of course, it is quite clear to me that in the final analysis it was very little, but perhaps it was, after all, more than nothing.
Q How do you explain, and for what reasons would you explain, your membership in the SA? Was that for the good or the influence that you would have also?
A I certainly did that too, even though I played a role in the SA only because I was an important personality and not because I had a leading position in the SA. If, however, during the course of the later years, I would have declared that I was leaving the Party or the SA, I would have withdrawn from that very small possibility of influencing which I had at all.
Perhaps I may remind you of what I have written, that somewhere sometime, I would like to leave the Party and the SA, However, that would be as if a soldier would go from the trenches to the rear echelon.
I don't believe I need to elucidate that comparison any further because it is understandable.
Q You also stated from your diary that if, in 1938, you Could have anticipated war, no power could have made you go to Berlin. That is correct, is it not? That is a correct quotation?
A Yes, but I beg your pardon. I believe, however, that that was not an entry from my diary because I don't have the diaries covering all those years. However, it was something that I said yesterday during the examination.
Q It is true, is it not, Dr. Barnickel, that you could have left Berlin, perhaps not by transfer, but at least by resignation? Is that not true?
A Through being pensioned? That is what you mean? I have stated that, so to speak, I did want to leave Berlin in 1942, at any cost, and the course which I took in order to leave the political Administration of Justice I considered considerably more successful than if I had made an application at that time to be pensioned.
Q. You are speaking of retirement, I believe, Dr. Barnickel. was speaking of resignation, as such. Was that not always up to you?
A. You mean, if I understand you correctly, I could have simply resigned from my office, without consideration to the consequenceS, to the question of retirement pay, and salary, and all these things?
Q. Yes.
A. Well, about that, I may say that as far as I know that would not have been possible either, for if I am informed correctly in the course of 1939 to 1940 a decree was issued which forbade all civil servants to leave their office in that way. However, to my great regret, I am not able to tell you where you can find this decree; but regardless of that, for the moment, I must say, of course, that for me as the provider of a family, the provider of three sons, it would have been a very difficult question if I had simply given up my office, if I may express myself that way,"put it on the table". But I have to add something. For me there was a much more important point of view yet, and in that regard I may refer to an entry in my diary; however, I could cite this entry in an incomplete form, however, and that is in August 1942, I expressed Quite clearly that it is very easy to say if one does not want to go along anymore, one simply quits; and I furthermore said that an a man who has conscienceness of duty, first one has to examine what becomes of the office if I quit, and I then stated if I find out that the office -- end I now express myself differently -- would only become a subject of further radicalization if I leave it, then in the interest of everything, not of the Party only, I have the duty to remain in that office. I described that, I believe, this afternoon as fighting for a lost cause, and my defense counsel also submitted a document in support of this.
THE PRESIDENT: I think you have made your position clear on that position. Let us have another Question, please.
BY MISS ARBUTHNOT:
Q. Yesterday in discussing the Enabling Law of the 24th of March 1933 you said that "what was decisive for me as a jurist was that from m on the Reich Chancellor could sign laws and that the new laws could deviate from the constitution.
As for the legality of the Enabling Act in itself, and as for the legality of the laws which were issued on the basis of the Enabling Act, one could have no doubts about that." Just what did you mean by that statement? What were the doubts?
A. I meant the following. The so-called Enabling Act was, in the opinion which I had at that time, still legally an order issued by the Reichstag; therefore, the laws and those measures which were later based on this Enabling Act were in order.
Q. You stated that your appointment as prosecutor at the People's Court was not a political appointment; however, I wonder if you could tell me whether the usual procedure was not followed in making that appointment in that it was necessary to have recommendations concerning your political reliability and reports on your willingness to cooperate with the Party?
A. A so-called political rating was obtained regarding every civil servant at that time, every civil servant who wanted or who was to he promoted, or who was merely transferred to another office regarding his political opinion. I, however, did not do the slightest thing, and I never saw it either. I only assume that as a matter of course that such a political opinion was obtained.
Q. You stated that in your position at the People's Court, you were merely a figure-head and had no authority. I wonder if you couldn't alter that statement to a certain extent, at least insofar as the first two months you were there when there was no Chief Reich Prosecutor and the first deputy was in the hospital; and you acted as deputy in charge for the first two months you were in the People's Court, did you not?
A. Yes, of course, at that time I had more authority because I was deputy for the Chief of the office; but I did not carry more weight because of that as a civil servant, for I was not the Senior Reich Public Prosecutor, but I was Reich Public Prosecutor and only had to deputise for the Chief Reich Public Prosecutor.