Thank you.
MISS ARBUTHNOT: I believe the record shows that that exhibit was received, does it not?
THE PRESIDENT: Yes, the exhibit has been received.
MISS ARBUTHNOT: Thank you.
BY MISS ARBUTHNOT:
Q. In 1943, Dr. Barnickel, there was a case in Munich, the Scholl case against students, in which students were sentenced to death for throwing propaganda leaflets. Freisler and a member of the prosecution flew down to Munich for that trial. Were you the prosecutor in that case?
A. No, I was not.
Q. Do you know who was?
A. You mean whether I was the prosecutor who was in the session, the representative of the prosecution in the trial?
Q. Yes; or, was that handled by your division, your department?
A. Division III handled it.
Q. Do you know who went down to Munich on that?
A. In that case if I am not mist ken Reich Public Prosecutor Weyersberg who was in charge of Division III went to Munich; and in addition a first public prosecutor Bischoff.
Q. Thank you. In cases which were originally handled by your department, Dr. Barnickel, and on which extraordinary appeals were taken, your department continued to handle those through extraordinary appeals; did it not?
A. If we handled those originally, then it must have been like that.
Q. Yesterday in your Exhibit 18, your help to the defendant or to the prisoner Umrath was described. Did your division, your department, originally handle that case; was the indictment filed by your department; and was the case tried by your department?
A. From the document which was submitted here I have gathered that the case was handled by my division.
Q. Do you remember the sentence you recommended in that case?
A. I saw that in the document here, too. I think Umrath got five years in the penitentiary; that was in 1938; of course, it is quite impossible to say today whether this matter was discussed with me before the session and what kind of a penalty I suggested.
Q. In connection with your own affidavit which was submitted and which sets out the orders on secrecy, you say that you could know nothing more than what was absolutely necessary in your work, but you did know in connection with your work, both as a department chief and during the times when you acted as deputy for the Chief Reich Prosecutor, that the prosecution office cooperated with the Gestapo; that there were concentration camps; and that treason had been extended to include foreign nationals and such as that; did you not?
THE PRESIDENT: What is the answer?
A. Yes, I knew all of that.
Q. Could you tell me, Dr. Barnickel, what honors or medals you received from the party or party organizations?
A. From the party or from affiliated organizations of the party I never received any awards or decorations.
Q. Did the defendant Lautz ever reproach you concerning your leniency in handling defeatist cases?
A. I already made some statement about this yesterday to the effect that from my Leipzig personnel file I obtained information that the course I followed in regard to defeatist cases was not approved.
Q. Didn't the defendant Lautz ever come to you personally and reproach you on handling of any of the cases within your department; or, the manner in which they were handled; or, the work done, the methods used in your department?
A. We had differences of opinion not infrequently and also clashes but usually this went as follows: The chief of the office disapproved my formal manner of handling business, whereas I myself was really interested in the substantive part of the case.
Q. Could you tell us something about your relations with the defendant Lautz. Were they good or bad?
A. My relationships during the first years were quite good; later, they deteriorated; and during the last period they were bad.
Q. Could you tell us why you were transferred from the People's Court to the Supreme Court Prosecution?
A. I personally prefer to be of the opinion that this was in connection with what I said before --- about the course I followed in regard to defeatist cases which was not approved; and I have answered that question already by saying that.
MISS ARBUTHNOT: I have here the original and the English translation of excerpts from Document 3757-PS. We have not yet been able to have this document processed completely, but I would like to have the defendant read some of the excerpts in the original; and as soon as we have been able to have photostats made, we will submit the document in evidence and supply copies to the defense.
THE PRESIDENT: Suppose you have it marked for identification now so that there will be no question as to the identity of the document.
MISS ARBUTHNOT: It is excerpts from Document 3757-PS, being a diary of the Reich Ministry of Justice, and I would like to have it marked for identification as Prosecution Exhibit 564.
THE PRESIDENT: Let it be marked Exhibit 564 for identification.
Q. You have stated I believe, Dr. Barnickel, that you did know something about concentration camps and conditions in these camps generally. Did you have any specific information on the camp Dachau?
A. I knew of that Dachau camp. But what I did know of the Dachau camp was the outside picture of the camp, not internal events, that is to say not the manner in which the prisoners were treated and the like. I knew where the Dachau camp was because it was within my district. When I was senior public prosecutor in Munich, too-
JUDGE HARDING: Just a question. Whose diary is this supposed to be; who kept it?
MISS ARBUTHNOT: It is the official diary of the Reich Ministry of Justice, kept in Berlin; and entries made from correspondence and re ports received from offices in other districts.
Q. While you were in Munich as prosecutor there, with the district court, did you send periodic reports to Berlin in connection with deaths, investigations, and other events in Dachau; did you not?
A. Yes. I can't believe that they were periodical reports, but it must have been like that.
Q. From time to time then.
A. When it was noticed in Dachau that certain events, incidents, has happened, then reports were made to Berlin.
Q. As a few examples I wonder if you would turn to the reverse side of page 83; and perhaps I should explain to you, Dr. Barnickel, that the page numbers are small numbers directly below the document indentification.
A. I think I can find it here. That is it.
Q. Yes A. 83, yes.
Q. Is there entry No. 4?
A. Yes.
Q. You made such a report to the Ministry of Justice on that case, did you not?
A. Yes; I have to make preliminary remark. I can't see the date. Did this all happen during the same year?
Q. All of these were during the year 1938.
A. 1938; on the 29th of July I was quite without doubt senior public prosecutor in Munich too; that is quite clear. But, of course, I am not in a position from a file not without signature, without any mention of the person who made the report, to see whether the report originated with me.
Q. It no doubt originated in your office, did it noe, Dr. Barnickel?
A. According to what it says -- Chief Public Prosecutor, Munich that, of course, is quite without doubt.
Q. Courl you refer as an example to Page 119, No.1
A. Would you please repeat the page again?
Q. Page 119.
A. I have read it.
Q. This entry states that an employee, a Jew, and prisoner under protective custody, had been indicted for assault because of the fatal results to another prosoner in protective custody, brought on by an assault by the Jew Weil. In that case investigation was made by your office and proceedings brought by your office against him in Dachau; was it not?
A. Yes. Your first statement is correct. The latter one is not quite correct. However, I gather from this not that the chief public Prosecutor, Minich, too, on the 29th of July, 1938 reported that a prisoner who was a Jew and who at the same time was a supervisor in the camp, by a kick unjured another prisoner, who also was a Jew, so seriously that the second prisoner died. Such proceedings, however, did not start in such a way by our initiating the proceeding. I have to make a general remark on that topic. The camps were in 1938 still under the gen eral courts, and this is bow it happened that if a punishable offense had been committed there, all agencies became active which otherwise were concerned with prosecution, but in Dachau matters were as follow:
Dachau had its own police office; moreover, there was a court in Dachau, with investigation judge; and these two offices, that is to day the police and the investigation judge were usually or always those who became active first when a punishable offense had occurred. Then it proceeded, as in every criminal proceedings; records were submitted to the senior public prosecutor, there the senior public Prosecutor then took over the further prosecution and if he thought that the case had been clarified, he could either stop the proceedings discontinue the proceedings; or he filed an indictment. In this case an indictment was filed. I believe that I don't have to say anything more about it; I don't have any personal recollection of this case. According to the notation here, it is quite without doubt that it was done by my agency.
THE PRESIDENT: Dr. Barnickel, you spoke of an investigating judge at Dachau, if I understood you right.
A. An investigating judge, your Honor.
THE PRESIDENT: Yes, Well, he was connected with the Reich Ministry of Justice, was he not?
A. Your Honor-
THE PRESIDENT: He was under the Ministry, I mean.
A. Your Honor as in the case of all courts, at local courts, in Dachau there was a local court and at this local court one of its judge had the task to work as investigating judge.
THE PRESIDENT: Yes.
A. He was under the same official supervision as every other judge
THE PRESIDENT: Yes. I understand. Thank you.
BY MISS ARBUTHNOT:
Q. I wonder if you would turn to page 275, No. 11
A. That is a notation by the chief public prosecutor at Munich of the 2nd April, 1938, I assume. This is apparently the proceedings because of the suicide of the Tailor Wagner from Nurnberg, and in parenthesis signed Barnickel.
Q. You notice, do you not, that this suicide of Wagner was performed by hanging in a lying position. I wonder if it was customary to stop proceedings in a case of a suicide of that kind?
A. I haven't finished reading it; may I just read it quickly. Apparently this was a man who already had twenty years of prison and penitentiary behind him. On the 30th of March, 1938 he was found hanging in a steam pipe system. He hanged himself with a rope on a pipe, ans was found in a lying position. He left a farewell letter. Through the court inspection and the post mortem examination these facts were confirmed According to the expert opinion of, the local district court physician, death occurred through hanging in a lying position. No trace of any force exerted by a third person could be found. I can only make a supplementary remark that from what I have just read, it is apparent that the investigating judge, who I mentioned, came soon and gave an eye witness report to the court. I addition the district court physician had been consulted and he confirmed that death occurred through hanging in a lying position.
A. May I add something?
Q. Yes.
A. Of course, that is only a briefly summarized description of the facts in the case. From the files themselves details would have had appeared. According to what I am reading here there is not doubt in my mind even today that the case was quite proper. Of course, I do not imagine the case like this, namely, that the man from the very beginning was lying on the flooe entirely.
Q. Is there anything further you intend to say there, Dr. Barnickel?
A. No, I only want to say, he was hanging so low on a steel pipe that he was almost lying. For me there is no doubt that the matters were quite in order. But, of course, a physician could perhaps make some more extensive statements about this and at that time I also had the extensive expert opinion by the physician.
Q. You do note, however, in this entry, Dr. Barnickel, that the prisoner Wagner was found hanged on the 30th of March, 1939, and that your report to the ministry was made on the 2nd of April, and that I would assume from that the investigation had been made between the 30th of March and the 2nd of April on which you decided proceedings should be stopped?
A, I beg your pardon, this is not how the matter is to be understood. Just a moment - on the 2nd of April - I have to read it over - my report was made, yes, and on the 30th of March the man was found, Yes, what you did say is correct. I beg your pardon.
Q. Thank you. Would you turn to page 574, item No.5?
A. 547, yes.
Q. Yes, Item No. 5.
A. Yes.
Q. That is the case of a prisoner inpprotective custody who died as a result of falling in a gravel pit although the post mortem did not reveal any definite cause of death, it was only estimated that the death had been caused by outward injuries and neither cause of death, obviously a mild edema caused by heart failure, no indication of mal-treatment?
A. Yes, first I would like to make a preliminary remark regarding that case if I may. According to what you said by way of introduction these are cases from the year 1938, and at the time of his case I was already Reich Public Prosecutor on Berlin.
Q. Could you repeat that please? I didn't get it.
A. According to what you daid by was of introduction these cases are from the year 1938 and on the 29th of December, 1938, I was Reich Public Prosecutor in Berlin.
Q. I beg your pardon, Dr. Barnickel, this case was reported in December of 1937. The diary goes back rather than forward.
A. Oh, oh, of course, I couldn't know that. Yes, that seems to be right, '37 instead of '38, and in that case I will have to look at the case.
Q. Yes.
A. Yes, this report shows that the investigation was carried out in the usual manner. A post mor tem by the Court was undertaken and in this case, too, without doubt the investigating Judge of Dachau was again present. The post mortem did not show any definite cause of death. Apparently, we were not satisfied with this so that we asked the Institute of Forensice Medicine in Munich for a further investigation. The Institute of Forensic Medicine in Munich was so to say our highest medical authority. The Institute arrived at the conclusion that apparently a paralysis of the heart had occurred and above all apparently all of the physicians arrived at the conclusion that there were no inducation of maltreatment. In view of those facts there was not other possibilit than to stop the proceedings. I may add that in every case which had some kind of political coloration we had to report it to the General Public Prosecuto and I made my decision only in the General Public Prosecutor was in agreement with the decision.
That is all I have to say.
BY THE PRESIDENT:
Q. This case involves another point of interest, Dr. Barnickel.
A. Should we infer that this amn had not yet been tried? It appears that he was under suspicion of race pollution. I would infer that meant he was awaiting trail?
A. Your Honor, that, of course, is a question which to my regretI am unable to answer, whether a proceeding was pending against this man and before which court it was pending I cannot gather form this note.
Q. Well, how do you explain his being in a concentration camp when he was under suspicion only of violating the law for the protection of German blood and honor?
A. Well, Your Honor, that is just this protective custody which I fought against so very much and which was the thing which enabled the political police to put people under protective custody, even if there was only a suspocion. And so that no misunderstanding should arise, Your Honor. I may add also that I, of course, had no influence whatsoever on that, for this man, his name was Riesenfeld - can for example have been from Stuttgart or any other place, and it is possible that the Public Prosecution of his home town was instigating proceedings against him, but I cannot gather that from this note/
Q. But you would form this note know of the report concerning the fact that a man under suspicion of race pollution was in Dachau. Wouldn't that suggest to you that the ministry of Justice might under the legality principle have a duty to prosecute someone?
A. Your Honor, it is extraordinarly difficult to give a precise answer to that question. One also has to consider the possibility that the political police harbored the suspicion and that therefore it took him into protective custody and that perhaps the evidence was not of such a nature that the political police could consider a trial would be suc cessful; that, however, on the other hand, it wanted to keep this man in protective custody.
THE PRESIDENT: You may have a further opportunity after the recess to explain the matter.
We will recess for fifteen minutes.
(A short recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY MISS ARBUTHNOT:
Q At the recess we were discussing the case on page 574, in which the prisoner was held in protective custody under suspicion. Have you anything to add to your remarks on that case, Dr. Barnickel?
A Well, I think it would be interesting if I were to tell you in more detail about the extent to which the prosecution at Munich II was competent for Dachau. The prosecution at Munich II was not in charge of the camp; it had no right to supervise the camp.
THE PRESIDENT: You have covered that matter, we understand that. We understand your testimony on that issue.
Go ahead.
A (Continuing) Nor did we have anything to do with the inmates. We were only competent if, at the camp itself, an action took place which possibly might be a punishable offense.
I hope I have now explained the matter.
THE PRESIDENT: Yes.
BY MISS ARBUTHNOT:
Q Then it was of no interest to your office whether the prisoner was in protective custody or had actually been sentenced to a term there?
A You are referring to this particular case, are you?
Q This particular case, or any other case in which a prisoner was there in protective custody.
A No, that is not quite the way to put it. I have now given a detailed explanation of my competency, but I have not said that I was not interested in the matters connected with some concrete case with which I had dealt. However, on the basis of these brief file notes, I can only make statements in connection with the texts which I see in those notes.
May I add concerning my functions as Chief Public Prosecutor, as far as my work in Dachau was concerned, that I did not interpret my work in that connection in a different way from my other functions as a public prosecutor. I remember for example, that on account of a report submitted to us in one case, we did not find that a punishable act had been committed. However, all the same, if I felt some doubts about a particular case, doubts which were outside the law, I did not hesitate to voice my doubts, in such cases, before the camp management.
Q Thank you.
This document 3757-PS will be introduced as soon as it has boon completely processed.
I show you now, Dr. Barnickel, a file of three documents; a report and two letters, in connection with the case Wilhelm Franz and Dr. Katz. Do you remember that case?
A You are referring to the case of Franz and Dr. Katz? You are referring to two cases, are you?
Q Yes, the cases mentioned in that file which I have given you.
A Concerning tho case of Franz and Dr. Katz, I should like to point out that the report of 30 July 1934 was made by my predecessor in office as Prosecutor in Munich.
I did not know anything about that case at the time.
Q Would you read the -
A I would have to look through the whole file.
Q Would you read to the Court, please, beginning with Section 2 of that report, Sections 2 and 3?
A Second paragraph, political police.
THE PRESIDENT: Will you please first identify the document in some manner?
MISS ARBUTHNOT: These are documents concerning the case Franz and the Base Katz.
THE PRESIDENT: Well, is there an NG number?
MISS ARBUTHNOT: No, there is no number on these documents. They are copies of PID documents which we received from London. The original has not been received, and no number has boon given to it.
A (Continuing) I quote from a report by Dr. Frank, the former Minister of Justice of Bavaria, dated 2 December 1933, and I shall read paragraph 2:
"On the morning of the 19th of October the Prosecution at the District Court Munich II was told by the Bavarian police over the telephone that on the 17th of October 1933, in the afternoon, Wilhelm Franz of Munich, born on the 5th of June 1909, in protective custody, and Dr. Katz, of Nurnberg, also in protective custody, had both hanged themselves in their solitary confinement cells at the concentration camp of Dachau. On the same morning the prosecution inspected the matter on the spot and afterwards a post mortem was performed. The bodies had already been removed from the cells.
They had been taken to a shed; they had been put on stretchers and all their clothes had been removed except for their shoes. In Franz's cell, bloodstains were found on the bench. In Katz's cell it was discovered that tho chains which were used to open the window had been partly removed and had been replaced by a rope.
"On the basis of the inspection of the cell and the bodies on 20 October 1933, a post mortem was performed on both corpses. With the agreement of the Magistrate in charge, Dr. Meichsner, the camp physician, attended the post mortem, as well as Dr. Schangraber, the camp adjutant. The post mortem showed, as to both corpses, that there was a suspicion that third persons had exerted violence. According to the preliminary expert opinion by the two court physicians, in both cases death was caused by throttling. The strangulation marks found on the throat were not in accordance with tho findings one usually makes in the case of people who have been hanged. In respect to the corpse of Franz, it is also mentioned in this provisional expert opinion that it is not out of the question that a secondary cause of death might have been a fait de grace. Now marks were found on the head and also many on the rump and on the arms, and there was extensive contusion and smashing of the fat tissue. Furthermore, Katz's corpse, apart from the injuries to the throat, also showed injuries on the head, injuries to the skin, and in one case the skin was broken.
"During the inspection the prosecution ordered that the two belts with which Katz and Franz were supposed to have hanged themselves be produced.
It was not possible for these two belts to be produced immediately. The Local Court of Dachau has ordered that the belts be confiscated. So far, these confiscated objects have not been transferred to the prosecution."
Section 3: "I have informed the Prime Minister, and through him the Reichsstatthalter in Bavaria, as well as the Minister of the Interior, of the reports by the prosecution concerning the cases mentioned under '1' and '2'. In a letter of 29 November 1933, addressed to me, the Minister of the Interior requests for reasons of State policy, the quashing of the investigation proceedings pending with the prosecution at the District Court Munich II, in connection with the death of the prisoners under protective custody, Hugo Handschuh, Wilhelm Franz, and Dr. Delwin Katz. It is pointed out by way of a reason that by carrying out investigation proceedings the reputation of the National Socialist State would suffer greatly because these proceedings were directed against members of the SA and the SS, and thus the SA and the SS, as the main exponents of the National Socialist State, were immediately affected."
Q. I think that will be sufficient on that document, Dr. Garnickel.
A. Yes.
Q. Could you now turn to the letter of the Chief Public Prosecutor Wintersberger to the Attorney General in Munich, which is dated 30 July 1934, and read that letter? I think that we can omit the last paragraph of that letter in the reading.
A. Yes. The letter is dated the 30th July 1934, and it is addressed to the General Public Prosecutor at Munich:
"Concerning this enclosure, I have, in accordance with instructions asked the Political Police of Bavaria on the 12th of July 1934, after having made contact with the management of the concentration camp at Dachau, to clarify matters and to make an attempt to discover who the persons are who are under suspicion as having committed the crime. In my request I also pointed out that until now I have not received the tools of suicide which were confiscated by the Court (belts and suspenders). It appears that the Political Police has handled the files, without written order, to the Political Department of the concentration camp at Dachau.
The latter has returned the files, together with a letter of 25 July 1934, to the Political Police. The first paragraph of that letter says:
"The new motion for evidence made by the Public Prosecution Munich II slows what out-of-the-way means are being used in order to make the concentration camp at Dachau responsible for crimes which are alleged to have been committed there.'
"In the second paragraph of the letter regret is expressed that the two dead men were able, by committing suicide, to escape the punishment which they had to expect.
"The third paragraph refers to the confiscation and says:
"'After the corpses of the two men had been released, when the post mortem had been performed, there was no further reason why the management of the camp should keep the objects with which the two men had hanged themselves. The management of the concentration camp is not composed of people of that disgusting type who keep suck objects for their own souvenirs, such as has happened recently in America in the Dillinger case.'" The letter is signed by SS Obersturmbannfuehrer Lippert, deputizing for the Commandant of the Camp.
Q. And now, will you read the last letter in that file, the letter signed by you, dated 27 September 1934?
A. "I have a copy of the letter from the Prosecution at Munich II of 27 September 1934 to the General Public Prosecutor at the District Court of Appeals at Munich. It is concerned with Wilhelm Franz and Dr. Katz and their deaths at the concentration camp at Dachau.
"I hereby inform you that I have discontinued proceedings, as the investigations did not yield sufficient cause to assume that third persons played any part in the deaths of the two inmates."
The copy is signed by me.
Q. Do you remember that case now, Dr. Barnickel?
A. Well, to be quite frank, much as I regret it, I don't remember that case. Anyway, I can't remember it at the moment.
Q. But the letter last read by you, dismissing the proceedings, was sent by you?
A. Well, according to the copy I signed the letter, and that must have been about four weeks after I had joined the prosecution in Munich. Naturally, the facts of the case, such as they can be seen in the files here, are rather noteworthy, and I really regret that in spite of the fact that these facts are striking, I cannot remember the case.
Q. But at the time the letter was sent by you dismissing or stopping the proceedings, you would have had knowledge of the facts of the case, even though that had happened before your term of office?
A. Naturally, some files must have been submitted to me, but as to what I saw and what happened at the time--maybe I will remember it later, but for the moment I can only say again that just now, with the best will, I cannot recollect the case.
MISS ARBUTHNOT: Thank you. No further questions.
THE PRESIDENT: Dr. Barnnickel, a few questions for general information.
BY THE PRESIDENT:
Q. First, with reference to your diary, did you make the entries at approximately the dates of the events which they record, or when?
A. Well, that rather varies, Your Honor. Generally speaking, I made those entries at the time when those events actually occurred.
Q. And do you have your original diary there, before you?
A. No, I don't have that with me, Your Honor.
Q. In what form was it prepared originally? In handwriting?
A. It was in shorthand.
Q. Written by you, or dictated by you?
A. No, I took that down myself.
Q. Was it in a loose-leaf book or in a book in which the pages were made fast?
A. No, they were small bound books, like copy books.
Q. Did the prosecution make an inspection of the documents from which you quoted?
A. I was not asked to produce it. Your Honor, I presented those extracts in the fist days of January 1946 when I was taken into protective custody. At that time I had my extracts certified by the notary at Augsburg, and extracts which I made later were made only when my defense counsel had some more of my diaries sent to him from Leipzig. However I believe, because I reread those diaries at that time, that I can say for certain now that I did not make any entries about this case, I want to say this again, that my diaries were not intended for entering political and professional matters, but I used them to enter facts connected with my personal life.