The record further shows that the RM 100,000 was on deposit to Schlegelberger's name in a German bank when the crash came.
The defendant is guilty. There is no evidence justifying mitigation.
MR. LAFOLLETTE: Miss Arbuthnot will continue to read.
MISS ARBUTHNOT: The defendant Herbert Klemm has testified. One would believe from his testimony that he was a shy violet, a believer in the constitution state, a man who not only never harmed a Jew, a Dutchman or a Pole, but never heard of any harm ever coming to them. Indeed, this a modest, unobstrusive, inconsequential believer in all things that are true and pure, working ardently among piles of Nazi dreck to cleanse the Aegean stables -- Hercules with Sir Galahad's heart.
The documentary evidence in this case, read intelligently, proves otherwise. It also proves him guilty not only of taking a consenting part in and being connected with the government sponsored program to commit Crimes against Humanity, but an instigator and principal in the program.
In 1935 Klemm came to the Reich Ministry of Justice where he had served under Thierack as a mere Second Referent. He had not passed his legal examinations with a grade which was outstanding, and by his own estimate of himself he was unassuming. Yet by the end of 1935 he was a General Referent for political matters. In April 1939 he was made a Ministerialrat and in September 1939 he went to war.
If this such an unobstrusive, unimportant man working on political matters, then why do we find that in December 1936 he was recommending five SA Leaders for lay judges of the People's Court,193and if he was only concerned with political matters in his relatively unimportant position, why is it that in June 1937 194there is sent to him Heydrich's agreement for the SS with the Reich Justice Ministry that Jewesses who committed Rassensohade should be taken into protective custody after their sentences had expired? (This 193.
Ex. 438, NG-229, VA 1.
194. Ex. 456, NG-376, V Supp. 7.
man who never heard of anything happening to a Jew). And, why was it, that in January 1939, while he ostensibly was still an unimportant referent for political affairs, he again was especially advised of the extention of the Nuremburg Racial Laws into the Sudentenland. 195 The answer is plain he was the planted man of the Nazi racists in the Ministry of Justice.
He had to be advised on these matters.
Now this "unimportant and unobtrusive" man and this undistinguished and rather dull lawyer went to war. It was an aggressive war and he knew but he is not charged here because of that. The revealing thing is this, that both the Forty Chancellery, Hess and Borman and the Reich Chancellery Dr. Lammers busied themselves urging the Ministry of Justice to send Klemm to advise and assist the iniquitous Ssyssjnquart in Holland.196It is also revealing that this same "unobtrusive and unimportant" man should be called for by Borman himself to come back from Holland to Munich to serve in the Party Chancellery which had been the deputy of the Fuehrer's headquarters.
The answer, of course, is that Klemm was not an unimportant figure but a very important cog in the machine of those who wished to carry out the Nazi program of extermination and persecution most effectively through the Ministry of Justice. It must be remembered that by this time the Party Chancellery had to approve all legislation.
Klemm came back by his own testimony in the Spring of 1941. He worked under Kloepfer but he was the head of the Legal Division III-C and, despite his denials, apparently was Borman's most relied on attorney. We find him busy there at his trade of aiding persecutions on racial 195.
Ex. 376, NG-767, VD 323.
196. Ex 528, NG-584, X-ex. Klemm-Klemm's personal file in the Reich Ministry of Justice.
and political grounds. On June 12, 1942, he approved, on behalf of the Party Chancellery the notorious Lautz recommendation that the German High Treason statute be made to apply against foreigners who had, on behalf of their own governments and before the war, done acts which were calculated to make it difficult for Germany to over-run their countries.
This, of course, is an atrocious concept of law. Klemm approved it enthusiastically.197Klemm would have us believe that he had nothing to do with the appointment of Thierack as Minister of Justice. Be that as it may, Thierack was the Party Chancellery's candidate, probably because Dr. Rothenberger was the candidate of Martin Borman's brother and the Borman brother feud is factual and real. In any event, it is very clear that the ascendancy of Thierack was a great victory for the BormanHimmler-Klemm forces in Germany and we find Borman sending out a notice to the Gauleiters and Kreisleiters and the other little party Leiters. This was done on the 27 of August just after Thierack had come into power and, between the lines, one reads this -- "We have our man in now as Minister of Justice. Anything you want out of the Ministry, just write the Party Chancellery and we'll take care of it, particularly through our friend Klemm who is a great buddy of Thierack's." In any event, this very "unobtrusive" man, Klemm, initialled this circular which Borman sent out.198 Klemm also kept up his steady past-time cf working on racial problems for we find him on the 9 of September 199reviewing the draft which was to make more severe restrictions against the legal rights of Jews in judicial proceedings and making a few suggestion of his own as to how this matter could be made worse.
This draft and the series 197.
Ex. 77, NG-412, Y C, 81 198.
Ex. 38, NG-541, I B, 26 199.
Ex. 204, NG-151, III H, 38 of conferences which followed it, led up to the notorious law of 1 July 1943 which deprived the Jews of all rights and turned them over to the police.
Klemm finally became State Secretary in January 1944 and now, since most of the Jews had been eliminated from Germany completely, we find him specializing in persecutions and exterminations on political grounds.
We have reviewed as extensively as we can in this statement the provisions of Prosecution Exhibit 252, NG-414, Book III, 1, pagel, the oft-referred to list of death sentences. We shall not review them again, but we do point out that in July 1944 Klemm decided that the sentences given at Stuttgart in political matters, as he reviewed political matters, were not severe enough and wrote a stern letter of protest in July 1944, demanding that exterminations be stepped up.200Also, in order to make sure that the Nazis could beat the German people themselves to a pulp in order to support the war, we find Klemm himself signing the decree which made mere negligence in the operation of any war plant or any act negligently done which affected the war effort, a crime for which the death sentence could be imposed.201But Klemm is still not satisfied and we find again that as late as March 1, 1945 he writes a denunciatory letter to Hamburg because they weren't exterminating people fast enough in political cases.
Klemm justifies all this in his own mind by saying that when Germany was fighting the war the people at the home front should be made to sacrifice. He ignores two things, one, that this was an aggressive war which he well knew, and that if the world can be a better place to live in, it must be a crime to drive people into supporting wars of aggression. The IMT so found and we follow their 200.
P. Ex. 178, NG-676, III E, 95.
201. P. Ex. 531, NG-1918, X-Exam. Klemm.
202. P. Ex. 474, NG-627, III Sup. 46.
findings. The documentary evidence in this case, therefore, not only establishes the falseness and the fraudulent character of Klemm's testimony, but it further shows that here was a man who willingly took a consenting part in, was connected with, and in fact, instigated the governmentally sponsored plan to murder, exterminate, enslave, imprison and persecute human beings, purely on racial, political, and religious grounds. This man, as we trace his caree, was always striving to make administration of justice a tool to carry out this philosophy. He is responsible for the crimes against humanity which have been committed and which are in this record, not only on the cases from the People's Courts at Nuernberg and Stuttgart, but from the documentary reports of Oberlandsgericht Presidents throughout Germany, the incorporated East territory, also by the records from the Peoples Court and the Special Courts which were created as a special favor for the people of Bohemia and Moravia, Austria, and the western over-run countries.
Finally we point out that early in May, a few days before the surrender, Klemm and his superior, Thierack, and one Franke, an official in the Criminal Division of the Reich Ministry of Justice, stood together near the Doenitz Government headquarters, and just before Doenitz issued the order of surrender Thierack, in Klemm's presence, ordered Franke to take false papers, assume a false name, and to go underground. Franke testified on the stand under cross-examination and he was not asked whether Klemm objected at any time to Thierack's instructions to Franke or advised Franke to do otherwise. We are not concerned with Franke's conclusions as to the reasons which prompted Thierack's action. We do, however, say that it has always been the law that whore the testimony shows an attempt to hide evidence of a defendant's actions, that this is evidence of guilt having probative value worthy of serious consideration by the court. It is the Prosecution's position that this is the final demonstration of perfidy in the saga of Klemm. He was perfect ly willing to see a man hide himself so that he could not be brought to testify against him.
He would not have done that had he not considered himself guilty of actions for which he could be criminally convicted by German courts as well as any international court which might be set up.
The record in this case demonstrates that Klemm is not entitled to be believed. He did not tell the truth on the stand. The court should take these facts into consideration not only in finding him guilty of crimes against humanity, but also it is our opinion that the court is required under the rules of evidence to disregard the testimony of Klemm in matters involving the massacre at Sonnenberg and the murder of Allied Flyers. He has repeatedly been proved to have made false statements on material issues in the cross-examination and this destroys his credibility for all purposes.
The defendant Klemm is guilty of crimes against humanity, as well as of the criminal responsibility for the massacre at Sonnenberg and the murder of Allied flyers.
ROTHENBERGER The rise of the defendant Rothenberger to power in Hamburg coincides with the rise of the Nazi Party.
We do not say that Rothenberger could not have achieved in time the high judicial office which he held. But it is reasonably obvious that his appointment as Chief of the Hamburg Administration of Justice in March 1933 by Gauleiter Kaufmann was not on the basis of his judicial ability alone for Rothenberger himself was then a man not yet 37 years old with little judicial experience. Within a matter of months after the seizure of power, as the evidence shows, Rothenberger began to warp the law, which he was duty bound to uphold, to fit the crimes and misdeeds of high Nazis in the district. We have seen how Rothenberger participated in covering murders, brutalities and other inhumanities, committed by Gestapo and SA men in concentration camps.
We have seen how Rothenberger removed courageous judges who tried to withstand the pressure brought to bear on them to conceal violations of the law, and we have seen that this defendant urged, encouraged and approved the judges who were his subordinates to join the Party, to participate in Party formations such as the SS in their capacity as judges and servants of the law. We were first told that Rothenberger and, in fact, the whole Hamburg Nazi hierarchy were friends of Jews and that little or no harm came to them even in the pogrom of November 1938. Evidence now before the Court and testimony by witnesses whose credibility cannot be denied have given the lie to these assertions. While proclaiming that he was a friend of the Jews, Rothenberger himself ordered, as one of his own witnesses has testified, that indigent Jews he denied even what little benefit the law could offer them at that time. Under Rothenberger's direction the Special Courts were made "court martials" - which is his own definition and limited to severe cases.
It is true that in the main these acts were committed and acquised in by the defendant Rothenberger prior to September 1, 1939. Nevertheless we ask the Court to take notice of these acts in order to be able to judge more accurately the capabilities and inclinations of this man who later was to rise to the second highest position in the Reich Ministry of justice.
The great bard has said "What is past is prologue" and so it was with Rothenberger. A decade in the Hamburg judicial system had not been idly spent. During this time under the aegis of the Party he rose from an unknown to the highest judicial office in the Hanseatic District, the "Little King" of Hamburg, as both his friends and opponents called him. Ability? Unquestionably. But this was a period in which ability alone meant nothing unless one had the proper Party connections. Rothenberger made sure that he was properly connected. An intimate of Gau leiter Kaufmann, friend of the notorious Gestapo head Streckenbach and a familiar figure to every other Nazi worth knowing, he achieved his position quickly and, once achieved, he secured it by remembering how he achieved it.
We have seen in the period from 1933 on for the next 9 years how Rothenberger cooperated with the men to whom he was responsible for his office.
We now come to the second phase of his career. Of the many notable documents in history, Pros. Exh. 27 203 will probably be one of the least remembered, yet in the legal history of Hitler Germany it indeed played a decisive role. This is Rothenberger's memorandum to Hitler, on the basis of which he was appointed to the position of Under Secretary in the Reich Justice Ministry, but it served a more significant purpose than the mree elevation of a scheming ambitious man to the position of prestige in high Nazi officialdom. When Rothenberger begam work on his memorandum, we do not definitely know, but we do know that it was completed on or before March 31, 1942 and that a copy of it was handed to Hitler's personal adjutant, Brig. Fuehrer Albrecht, who was a friend of Rothenberger's, for immediate delivery to Hitler. Even Rothenberger himself cannot deny and, in fact, admits that the document reached Hitler soon thereafter. It would have been strange indeed if Albrecht had not handed the memorandum to Hitler at once for that was obviously Rothenberger's purpose in giving it to him rather than sending it through regular channels. This too, Rothenberger admits. Reich Minister Lammers of the Reich Chancellery says that Hitler told him on the 7th of May that he had received the memorandum "some time ago". The plain meaning and ordinary construction put upon these words makes it clear, we submit, that the memorandum was in Hitler's hands long prior to the date of his speech directed against the judiciary. But now comes from the 203 - NG-075, IBI.
mouth of this defendant a strange denial. After carefully arranging a medium for sure and quick delivery of the document to Hitler, he tells us that he is morally certain that Hitler did not find time to read or until after the infamous tirade against the judiciary delivered by Hitler on 26 April 1942. Why, one may ask, is Rothenberger so persistent in this denial? The reason is not far to seek. Now, some five years after the occasion of the speech, which spelled the doom for the last remaining vestige of judicial independence in Germany, Rothenberger does not dare to admit responsibility for the forces set in motion by this memorandum. Like so many other of this defendant's denials, this one, too, does not stand up in the face of documentary evidence. In a latter from Albrecht to Rothenberger shortly after the speech had been delivered, (Pros. Exh. 536) Albrecht says, "The Fuehrer read your memorandum immediately after it was submitted", and in reply to this letter Rothenberger says, "Your letter brought great joy to me", and goes on to say, "I believed because of the Fuehrer's speech to be on the right track." What better proof could there be than these words of the man selected by Rothenberger to carry his work to Hitler?
There are two interpretations to be placed upon this memorandum. One is what Rothenberger now says he meant to convey in the writing of it; and the other is the clear impression which anyone, knowing Rothenberger' s background and the inexorable ambition of the man, gets from even a casual reading of the document. This memorandum cannot be read, knowing what we do about the defendant Rothenberger, without coming to the conclusion that Rothenberger was suggesting to Hitler that he should take over by direction and action the judicial thinking of the Reich. There is no other interpretation to be placed upon such phrases as "The Fuehrer should be the supreme judge" and "All judges must judge like the Fuehrer" and "A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer." The defendant Rothenberger is not so careless in his writing as to have unintentionally misstated his true thoughts when he wrote these words.
We have heard denials that this was not the interpretation he meant to convey; and have heard other denials from this defendant which have been proved to be deliberate falsifications of facts which were known to him. We have even heard him say that he did not know how the memorandum happened to get into Hitler's hands in the first place. He did not change his position until he sensed that we had conclusive proof to the contrary.
THE PRESIDENT: Miss Arbuthnot, we will take until eleven o'clock for our morning recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
MISS ARBUTHNOT: The speech of 26 April 1942, as we have said, is the line of demarkation between the period when at least a few judges thought they were independent, and the period when all judges in Germany knew that they could never be independent again under Hitler. We say it is evident that this memorandum sparked the impressionable and impetuous Hitler to rid himself once and forever of those troublesome public servants who believed that there was in the world a quality which they had learned in earlier years to call justice. Hardly had the final echoes of this philippic died away when Rothenberger wrote to the defendant Schlegelberger stating that his judges were "shocked" by the speech, but assuring him that it "did not surprise me", adding that in any event it did not apply to Hamburg because all was well with the judiciary there.204 Even while he wrote he wrote he cast envious eyes on the position held by this once vererable jurist hoping within a few months for an appointment which would place him in the position then held by Dr. Schlegelberger.
The appointment for which he hoped came perhaps even sooner than he expected, and on 20 August 1942, the "Little King" of Hamburg moved to Berlin bearing with him an entourage of trusted lieutenants who soon became known in legal circles of the German capital as "the Hamburg invasion".
One of the Under Secretary's first official acts was a conference at Hitler's headquarters on 18 September 1942 which included Himmler, his old friend Strechenbach, who was then head of the Gestapo for all of Germany, Rothenberger, Thierack and perhaps one or two lesser lights.205 These men discussed numerous topics which 204 Pros.
Ex. 76, NG. 389 BK IC6.
205 Pros. Ex. 39, 654 - PS, IB 75 were soon reflected in positive action throughout the "Greater Reich". Rothenberger expressed the "greatest satisfaction" 206 of the results of this conference which he noted lasted not less than 5½ hours.
One of the points discussed was the question of Poles and Jews in the so-called Incorporated Eastern Territories, who were already subject to the stringent and notorious decree which had then been in force for more than eight months. This discussion is summarized in a report of that conference as Point No. 14. Concerning this the defendant Rothenberger has an interesting explanation. He admits that he was present for all of the other points discussed, but as to this particular one he was absent and in his absence Thierack and Himmler had between themselves discussed the question. The Prosecution will be frank to say that at one time we conceded the plausibility of Rothenberger's explanation. That was before Rothenberger took the stand in his own defense and in rebuttal, on which occasions, as has been amply demonstrated, he piled lie upon lie and offered one weak explanation after another in the denial of established facts. It was then that the Prosecution came to the conclusion that the credibility of this defendant is a negative quantity and that nothing he says in his own defense contains an element of truth. We ask the Court to follow us in our conclusion that Rothenberger was in fact in attendance at this conference when plans were made for turning over to the Police the Poles and Jews in the Incorporated Eastern Territories, and that then and there Rothenberger acquiesced in this crime which is among the more heinous in all of recorded history. There followed, in a few weeks, more positive action to carry out the agreement reached there. On 5 November 1942, Strechenbach in a generally circulated letter set out in detail the manner in which the turning over of Poles and Jews to the police for "further action" was to be accomplished not later than 1 Jan. 1943. 207 206.
Pros. Ex. 38, NG059, IB 74 207.
Pros Ex. 265, L-316 IV A 46 This conference was followed by still another on 14 April 1943, the subject of which was the treatment to be accorded to Jews in the Greater Reich.
In attendance at this conference were State Secretary Klopfer, State Secretary Stuckart, Kalternbrunner, who was then head of all concentration camps, and the defendant Rothenberger.208 The result of this meeting, which had an elaborate build up, was the so-called 13th amendment of the Reich Citizenship Law of 1 July 1943 which became officially effective on July 1943,209 in which it was declared that "on the death of a Jew, his property is forfeited to the Reich" and it was made effective for Germany, for the Incorporated Eastern Territories and for Bohemia and Moravia. Thus was consummated one of the most rigorous acts in the long series which was known generally as the "final solution of the Jewish problem".
There is much more which could be said based on evidence in this record as to the part the defendant. Rothenberger played in promulgating the Crimes against Humanity with which we have charged him herein. We could, for example, elaborate on Rothenberger's speech at Lunenenburg on 17 February 1943 in which he re-affirmed the bases of his memorandum to Hitler and asked for the "ruthless extermination of a socials". We could refer to the great number of documents in evidence, which either originated with or were initialled by him, all of which show that his attitude, his very actions, were in the spirit of "judging like the Fuehrer". We believe that what we have said establishes beyond any reasonable doubt that the defendant Rothenberger took not only a participating part, but, after he acquired for himself the greater opportunity, beginning on 20 August 1942, he became a principal in the program of extermination, abuse and illtreatment which we have called generally Crimes against Humanity.
The defendant Lautz throughout the war was responsible for the 208.
Pros. Ex. 112, NG 715, BR. II 54 209.
Pros Ex. 204, NG 151, P. 10/20 of document.
indictments and trials of all persons brought before the People's Court. We are here concerned with his participation in and responsibility for acts which we hold to have been crimes against Humanity based on racial, religious or political grounds.
This defendant, like most of his colleagues, asserts that he bore no personal antipathy towards Jews and, in fact, according to the pattern established by these defendants, testified as to specific incidents in which he aided Jews who had been wrongfully accused. We have asked this defendant to explain why it was necessary to point out in indictment after indictment where a Jewish defendant was involved that such defendant was Jewish or a person of mixed race. He has answered that under the existing law not only he but other prosecutors were required to state such facts in indictments filed by them, but that such statements were not calculated to an, in fact, did not prejudice a defendant so described. Accepting this to be true, it becomes patently obvious that Lautz, among others, took racial and religious factors into consideration when filing charges and felt obligated to present them to the court. An established policy of this kind adhered in by this defendant, when considered in the light of the known aims of Nazi Germany, leads but to one basic conclusion, which is, that a man's racial heritage or religious conviction entered into the question of whether or not he was to be indicted in the first place and the severity of the sentence he was to receive.
A large percentage of the cases indicted by the defendant Lautz were pursuant to the charge of Wehrkraftzersetzung or "undermining the defensive strength". These cases dealt with remarks or trivial acts which were construed on a subjective basis as expressions or acts demonstrating a lack of faith in Germany's ability to win an agressive war.
The defendant Lautz has said that "I regret that because of this war and through these death sentences, many people who were otherwise all right had to lose their lives."
210 The cases tried by the People's Court represented roughly only ten percent of the total number tried by all courts in Germany, but this ten percent was personally selected under Lautz' direction. The conditions were described by Lautz as follows: "If I submitted a case of 'seditious undermining of German defensive strength to one of the Senates of the People's Court, being particularly serious, there was always a possibility that the death sentence would be pronounced."211 This defendant cannot now be heard to say that these cases were forced on him when, in fact, those tried before the People's Court were selected at his discretion. The defendant Lautz must bear a high degree of responsibility, after an indictment and trial in any given case, to consider first, whether the trial had been fair, and; second, whether the facts of the case warranted a recommendation for clemency of this defendant which he could use at any time to correct a misguided, a mininformed, or an over zealous court. It matters not that the Reich Justice Ministry had also to agree with the recommendations made for an extraordinary appeal or for a clemency plea. The important fact is that these devices were available to this defendant, and that in case after case where rank injustice was apparent, he made no use of his powers.
There is no escaping the conclusion that this defendant, although following the broad outlines of the law in filing an indictment, also agreed wholeheartedly with the conclusions reached by the court in sentencing pursuant to these indictments. We think it is clear from the evidence in this case that the defendant Lautz failed to take any action to negative sentences which he knew or must be presumed to have known were based solely on racial, religious or political grounds. In making this statement we do not deny the right of a nation at war to take the necessary precautions and safeguards to protect herself from within. But the cases to which we have referred 211.
Ibid p. 8 in a large degree bore no relationship to Germany's war effort.
Rather they represent opportunities seized upon by men, whose duty it was to uphold justice, to exterminate along the lines of a Nationalistic pattern. Lautz, as one of the two highest policymaking members of the People's Court; was responsible for the aformentioned crimes against humanity which were committed through indictments, trials held and sentences executed by the court.
The defendant Joel has been painted during this trial as a shining knight in armor astride a prancing white charger roaming throughout the width and breadth of the land slaying the proponents of Nazism and freeing Jews from the squalor and brutality of concentration camps. We have heard everything about this veritable Prince Hal except that he is a member of the Victims of Facism. If there were a bit of Falstaff in this gallant knight, we are told, which occasionally led to his arrest for rowdyism, or forgetfullness of his tailor bills, or an illegitimate child, or a drinking bout which cost him a year's expense allowance, it was only because this frolicking prince was gifted with a great sense of humor. We venture to suggest that the true picture is something different than has been painted.
From 1934 until 1937, the defendant Joel was Chief of the socalled Central Prosecution in the Reich Ministry of Justice. A word should be said as to the original purpose of this section. It has been alleged that this office was established to support the local prosecutors throughout Germany who found Party pressures stronger than their ability to cope with them. But we should also note that another purpose and, perhaps the real one, was to deal with the zealous supporters of the Weimar Constitution who had stood in the way of Nazi ambition prior to the raise to power.212 The defendant Joel has preened himself for his selftouted efficiency in correcting abuses of SA and SS men inflicted on inmates 212.
Tr. p. 5788 of concentration camps in Germany prior to the war.
As for his responsibility in the Kemna Concentration Camp matter, Joel has testified that he quashed criminal action against the known perpetrators of beatings and other atrocities in this camp only because he was ordered to do so.213 In fairness to this defendant, his counsel has stated that certain documents which would further explain Joel's action in this case have been lost. The Prosecution, of course, reaches no conclusion based on these missing documents. It is clear, however, even without further explanation, that when a man whose duty it is to punish wrong doers suspends action against the guilty persons, even though allegedly on orders, he himself becomes guilty of a participating part in the resulting crime.
We were told that in 1938 the defendant Joel came to Nurnberg to rectify the wrongs done by the Gauleiter Holz in confiscating Jewish property. Of this deed Joel told us that due to his activities, more than five hundred pieces of confiscated real estate were removed from the grasp of Holz and restored to their owners. Well, we looked into that matter. We found, as the evidence shows, that indeed Joel succeeded in re-transferring the property from Gauleiter Holz, but not to the original owners.214 The property which Joel claimed credit for restoring went straight away into the hands of the Gestapo and when it was sold to Aryans, the proceeds were used for purposes decided by Himmler. The only piece of property which was returned to an original owner, so far as the evidence before this Count shows, is one parcel which was confiscated from an Aryan women whose husband was Jewish and when the error was discovered, the property eventually was returned to her.
Joel was appointed in 1938 liaison man between the Reich Justice Ministry and the Gestapo. In this position, which he held both before and after September 1, 1939, we believe it to be an inferable fact 213.
Pros. Ex. 120, NG 249, Ic 20 214.
Pros. Ex. 366, NG318; Ex. 367,NG. 329; Ex. 464, NG 1103.
that he had full knowledge of the exterminations, the brutalities and illtreatment for which the Gestapo was responsible and in which the Reich Justice Ministry concurred.
After September 1, 1939, Joel continued to serve as liaison representative between the Reich Justice Minister and the Gestapo and in this position received and originated various letters and documents in evidence which show clearly that he had knowledge of criminal activities carried on by the Gestapo and acquiesced in by the Reich Justice Ministry.215 It is not without significance that in the Elias Trial, which was conducted largely by the Gestapo, Joel was called in and took a leading part.
Joel attended at least two conference at Kochem Castle where matters of high Justice Ministerial policy were discussed. In May 1944, Joel attended a conference at which Himmler spoke on racial and political questions, and in August of the same year attended another conference there, on which occasion matters of high ministerial policy were again discussed.217 It is quite beyond belief that from all of the defendant Joel's association with the Gestapo, with his various opportunities to know of the policies and action of the Reich Justice Ministry, that he in fact did not know that crimes were being committed.
The defendant Joel's acts both before and after 1939 constitute crimes against humanity which render him guilty at least as a chief participant in such crimes.
MISS ARBUTHNOT: Mr. Buchthal will continue with the reading.
215. Pros. Ex. 366, NG318; Ex. 367, NG. 329; Ex. 464, NG 1103 216.
Pros. Ex. 374, NG 081, VD 272; Ex. 375, NG147, VD 280; Ex. 480, NG 699, III Sup. 90.
217. Pros. Ex. 45, NG 195, Bk I B 93; Ex. 451, NG 636
MR. BUCHTHAL: Rothaug -
The defendant Rothaug beyond a reasonable doubt has used the extraordinary Nazi statutes of every description, both as judge and prosecutor for purposes of judicial murder. Moreover he has sunk in this courtroom from jurist to perjurer. On at least five material issues of his defense he has sought refuge in a lie, to the serious detriment of his protracted testimony. He first denied having held "any kind of office in the Nazi Party";218 yet he later described reporting to Oeschey, who headed the Party Office of Gau Legal Advisor, matters arising in his (Rothaug's) "group",219 and the Gauleiter himself revealed Rothaug's party title in that capacity as Gaustellenleiter,220, which is clearly within the Party Leadership Corps. He denied anti-semitic activity and gratuitously cited the Deeg case as one wherein he had struck down prominent Nazi racial fanatics with wide publicity and severity of sentence; 221 yet when faced with the case record he conceded not only that the trial had been secret with only certain high Party officials present, e.g. Kreisleiter Zimmermann and SD chief Elkar, but also that the sentence concluded with a 4-month prison term and fine. 222 He contradicted the witness Ostermaier's testimony that he re-wrote opinions in a violent political vein, and denied having thus touched the opinion in the Schlamminger case;223 218 - Pros.
Exh. 12, IA 42 219 - Tr. 7602-05 220 - Pros.
Exh. No. 554 See also Pros. Exh. 561 for Rothaug's knowledge of and participation in the activities of the NSDAP Leadership Corps.
221 - Tr. 7350-54.
222 - Tr. 7567-9 case;223 yet when faced with the handwritten draft of the opinion, he admitted that his alterations and revisions exceeded the original text.
224 He denied having asked the investigating judge in the Katzenberger case to remove from the case file a finding of insufficient evidence to detain Katzenberger;225 yet both the investigating judge and his deputy, whose credibility here was not impaired by cross-examination, testified unequivocally that he did.226 To climax it all, he completely disclaimed knowledge of any of the ten denunciations, on racial and political grounds of judges' decisions throughout Franconia contained in Oeschey's letter to Gauleiter Holz of 118 December 1942;227 yet Oeschey's secretary has deposed in evidence here that she literally copied all those denunciations from a draft report written by Rothaug.228 Apart from what Rothaug may have said here about them, the many cases in evidence over which he presided speak for themselves.
229 He has admitted here that:230 "I also know that under normal circumstances, i.e. independent of war and of the National Socialist ideologies and laws, dozens of people who were sentenced by the Special Courts would now still be alive."
In his sentences under those extraordinary laws engendered by aggressive war, we can see with grim clarity what he meant. The 223 - Tr. 7523-25 224 -Tr. 7551 225 - Tr. 7589.
This was examine under German criminal procedure. See Criminal Code Art. 125, Tr. 7588-9.
226 - Pros. Exh. 560; Tr. 7536-9** Pros. Exh. 53, III C 82 227 - Tr. 7592-7613; Pros.
Exh. No. 561.
228 - Oeschey Doc. 200, Exh. No. 135 -Oeschey 1) 229 - All Nurnberg Special Court death sentences now in evidence, and many others between 1936-1943, were in fact executed.
Pros. Exh. No. 238, III 164.
230 - Pros. Exh. No. 473, III A, Sup. 32.