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.
monstrous Law against Public Enemies, with its optional death penalty if he felt that the amorphous "sound sentiment of the people" was offended,231, was his favorite weapon.
Grasser,232 Katzenberger,233 Englbauer,234 Schegerer,235 Lopata,236 Kleinlein and Schaller237 and Wandel,238 for example, were done to death for misdemeanors or minor property felonies for allegedly exploiting conditions directly caused by war whereby public sentiment was affected. Guided bu his ideological belief in the war, and the remorseless desire to help wage it to a successful conclusion, public sentiment in these cases obviously was whatever Rothaug said it was. Yet other reprehensible Nazi ideologies also prompted his decisions in these cases. Although the Pole Lopata was sentenced ostensibly as a Public Enemy, Rothaug here, when queried whether the same fate would have met a racial German, said;239 "I cannot even imagine that possibility, even theoretically, because the very elements of the greatest importance could not be applied to a German."
231 - Pros. Exh. 112, p. 19 (Doc. Book II).
232 - Pros. Exh. 139 (1942), III C 86 A 234 - Pros.
Exh. 162 (1940), III D 76 235 - Pros.
Exh. 164 (1942), III D 101 236 - Pros.
Exh. 186 (1942), III E 99 237 - Pros.
Exh. 207 (1943), III E 77 238 - Pros.
Exh. 245 (1940), III F 54 239 - Tr. 7580 Racial discrimination for Hitler's avowed program of "extermination" could not be more clearly shown.
240 The Jew Katzenberger, ostensibly sentenced as a Public Enemy, really met death for the same reason; Rothaug has reluctantly admitted never having heard of a similar sentence inflicted upon a racial German for the same offense.241 The fact of Rothaug's rantings from the bench during his trial of Katzenberger, as quoted in Der Stuermer, thus appear completely credible:242 "Race defilement is worse than murder.
.... If today German soldiers are bleeding to death, then the guilt falls upon that race which from the very beginning strived for Germany's ruin and still hopes today that the German people will not survive the struggle."
Yet "Race defilement" was never proved against Katzenberger, and no death sentence could have been levied even if it had been.243 The determination to exterminate by any pretext thus becomes patent; it reached such extremes at Rothaug's hands that, in the Grasser case, the defendant was sentenced to death for a crime for which he had not even been indicted.244 Without exception, Rothaug's complicity has been shown in every further charge for which he stands indicted.
Double jeopardy? The Pole Lopata was so treated,245 and with respect to his second trial 240 - See Pros.
Exh. 187, III E 123. See also other cases of Poles exterminated for the same reason, cited in Pros. Exh. 556 and Pros. Exh. 478, III A sup. 69 241 - Tr. 7591.
See also Pros. Exh. 151, III C 68, 154, III C 73, 155 III C 64, 156 III C 108.
242 - Pros. Exh. 155, III C 64 243 - Pros.
Exh. 112, p. 45 (Book II) 244 - Tr. 7546-51 245 - Pros.
Exh. 186, III E 99 pursuant to a nullity plea the witness Paulus has affirmed that "The Reich Supreme Court did not compel the Special Court to pronounce the death sentence."
Unheard of pre-trial procedure? A week before he set the trial of Kleinlein and Schaller,246 Rothaug personally wrote the prosecution that he regarded the case as much more serious than charged in the indictment, and outlined how he intended to treat it.247 Perpetuating the secret horrors of concentration camps? He sentenced an inmate of Dachau for telling his mother the brutalities which befell him there, on no other evidence than retractions of the defendant under duress and SS reports from Dachau that such conditions did not exist.248 Denial of defense witnesses on political grounds? He enforced a Nazi decree that Party officials could not testify for the defense unless the local Gauleiter approved, and testimony was denied on that basis.249 Unlawful extension of German criminal law to the occupied territories. After joining the People's Court in 1943, he prosecuted Austrian residents for treason against Germany, and for undermining the latter's "defensive strength."250 If there is any short answer to why Rothaug committed the judicial murders proved against him, perhaps it lies in his testimony here concerning the Law against Malicious Acts:251 "It was the aim of (this) law to protect not only the public peace, but to protect the confidence of the population in their political leaders."
This is but a scanning review of the evidence in this case but it is 246 - Pros.
Exh. 207, Supra, III H 77 247 - Pros.
Exh. 206, III A 75 248 - Pros.
Exh. 559, Tr. 7571-7 249 - Pros.
Exh. 558; Tr. 7569-71 250 - Tr. 7569-71 251 - Tr. 7554; see also Pros.
Exh. Nos. 557, 425 IX B 143 and 559 sufficient to establish beyond a reasonable doubt that the defendant Rothaug under the alleged guise of judicial acts was a principal actor and took a consenting part in and was connected with the Nazi plan and enterprise to commit Crimes against Humanity as set out in this statement.
BARNICKEL We shall first consider the crimes against humanity which we charge were committed by the defendant Barnickel in the period prior to 1 September 1939.
This was a period in the history of Nazi Germany when the term "concentration camp" was not a familiar word to the general public. Dachau meant nothing more than a little settlement near Munich. The Justice Administration still had some respectable prosecutors who could not be intimidated by threats from minor Nazis. In 1934 and during this period the defendant Barnickel held the position of Chief Public Prosecutor in Munich in which position he was responsible for the investigation and prosecution of offenses made known to him.
Shortly after Barnickel became Chief Public Prosecutor in Munich, he caused proceedings which were begun by his predecessor to be discontinued against SA and SS men in connection with the death of two Jews who were being held in "protective custody" at Dachau.252 Barnickel asserts, despite his signature authorizing the discontinuance of these proceedings, that he must have been ordered to take such action by a superior.253 During this same period the defendant Barnickel also stopped investigations in progress of alleged "suicides" at Dachau of persons held in "protective custody" and of persons "shot while attempting to escape" from that camp.254 There is no evidence that any action was ever brought against the SA and SS men responsible for these 252 - Pros.
Exh. 565: Tr. 7849-55 253 - Tr. 7896, 7899-7900 254 - Pros.
Exh. 3757-PS¢ Tr. 7839-49.
murders nor against Gestapo men for the unauthorized taking of persons into protective custody, a practice which Barnickel thought was "illegal".255 It is true that these events transpired before the war, but it is equally true that the defendant Barnickel, then in a position where he could have exerted his influence in curbing these early excesses, knowingly acquiesced in them and thus fanned the fanaticism which made Dachau a word that will forever be a symbol of Nazi bestiality.
Throughout the course of the war until his transfer in 1944, Barnickel was the third highest public prosecutor for the People's Court. We should like to consider briefly the reasons for Barnickel's transfer to the Reich Supreme Court which were, he alleges, due to his leniency as a prosecutor. The statement of his superior, Lautz, taken together with other facts before the Court, is credible evidence to the contrary. Of Barnickel's claim that he was too lenient, Lautz says the following: "I never had any reason to criticize him on this account. From the manner in which he was transferred.... it is clear that the Ministry was not of this opinion, otherwise it would have never transferred him to Leipzig in the same capacity."256 Lautz has stated that, under his supervision, the defendant Barnickel was in charge of "undermining the defensive strength" cases until just prior to his transfer.
The great volume of such cases supervised by him is evident from the fact that of the approximately 3000 cases handled by his department in 1943 alone, about 2500 concerned "undermining of defensive strength".257 Barnickel seeks 255 - Tr. 7846-49; 7781-885 256 - Pros.
Exh. 126, p. 4 257 - Tr. 7693-4 to minimize the importance of this activity by saying that only 22 death sentences were passed for this offense during that year.
258 No matter to what extent the number of deaths is minimized, the fact remains that Barnickel in his capacity as a Public Prosecutor was responsible for the deaths of persons sentenced on racial, religious or political grounds.
This is shown by a brief reference to several cases in which Barnickel participated that resulted in death sentences. The defendant Deibel received the death penalty for writing political slogans on the washroom walls of the factory and listening to foreign broadcasts.259 The defendant Birk was sentenced to death because he "made defeatist statements declaring the war as irretrievably lost."260 On what grounds other than political can it be said that these defendants were sentenced to death?
There can be no doubt that Barnickel in this high position knew that there was no substantial merit in the charges made in the "undermining of defensive strength" and in many of the high treason cases in which he participated. The Prosecution submits that the defendant Barnickel's acquiescence in the indictment, trial and execution of individuals so charged was a Crime against Humanity.
258 - Tr. 7706 259- Pros.
Exh. 493 260 - Pros.
Exh. 562 CRIMES AGAINST HUMANITY - Cuhorst At the outset, we call to the attention of the Court that the defendant Cuhorst has apparently misunderstood the charges against him.
He seems to think that he is being tried on some theory of the percentage of the cases which he tried which might be considered good or bad. This is not the charge.
The Prosecution admits that evidence of how he acted in other cases may have probative value in determining his criminal intent in particular instances, but the law with which he is charged makes him guilty if in one case we establish beyond a reasonable doubt that he gave a death sentence or a sentence of imprisonment on racial, political or religious grounds.
Also, in evaluating the acts of the witness, Cuhorst, we must remember his testimony on page 7984 of the record wherein he explained in his own affidavit261 the elimination of criminals. He frankly states that he believes that the population should be cleansed of parasites by long term prison sentence, security detention or death sentence, and that he should like to add that "eliminating these criminals does not mean exterminating them in the sense of exterminating."
We must also recall the language used in the verdict in the Eckstein-Winter case,262 which the witness Atzesdorfer read (Tr. 8458-9), where Winter is described as a gypsy who was a menace to the population, and must be removed from the folk community. Also Eckstein, a German who associated with gypsies, was a person who represents a danger to the population "And his incorrigibility now as ever demand his complete extermination" from the racial community and thus the death penalty.
We must also evaluate his action in the light of his testimony about the case Von Jan, where he disapproved of Von Jan stating "that the sound sentiment" of the people is a repudiation of the acts commit 261.
Ex. 475, NG 544, Bk, III, Sup. 49 262.
Ex. 209, NG 485, Bk III K 5; testimony Eberhardt Schwarz p. 2211-12; Testimony of Diessem. p. 2320-5, 2334-36, 2341-2; testimony of Atzesdorfer, p. 8457-60, 8464.
ted against Jews in the Pogrom of 1938. With this background, we find that Cuhorst sentenced Eckstein, who was a German associating with gypsies, and Winter, a 21 year old gypsy, to death for thefts of bicycles during the war. The finding of fuilt cannot be quarreled with, but a death sentence based flagrantly and openly upon the fact that one man was a gypsy and the other an associate of gypsies, indicates that here a murder was committed by the defendant in connection with a plan and enterprise nationally sponsored, to murder, exterminate, enslave, imprison and persecute human beings on account of race. There can be no other explanation for a death penalty in this case. As a matter of fact, the explanation is given by the defendant himself in the judgment which he rendered. No stronger evidence of a Crime against Humanity can be found in the whole transcript of this case. It must be remembered that an intent to murder, or exterminate, on the ground of race can be disclosed by the penalty given, even though the finding of guilt does not evidence that the guilty finding was based on racial grounds.
We reiterate it is not necessary to create guilt that a defendant should be found guilty solely on racial, political or religious grounds, because the mere finding of guilt in itself, until some penalty is attached, does not constitute murder, extermination, imprisonment, enslavement or persecution. But when the penalty as in this case discloses it was based on racial grounds and results in death, the evidence has established all of the material elements of the crime, and the Court has no alternative but to find the defendant guilty. This case represents two murders on racial grounds.
It is also true that the death sentence against the Czech, Koudelka, given at Ulm, for stealing suitcases off a railroad platform, is a Crime against Humanity based on racial grounds.
Unfortunately we do not have the verdict and judgment before us (The Court knows that most of the records at Stuttgart were destroyed by fire and bombing), but here a Czech is again properly found guilty, but sentenced to death for taking property of relatively minor value under circumstances which should lead the court to conclude that Crime against Humanity has been committed.263 Of the same character of extermination on racial grounds, is the case of Milk, a Baltic, and Margitay, a Hungarian, for robberies resulting in a very serious crime in the Nazi regime, the robbery of a Gauleiter's house, both sentenced to death.
It is alleged that the people were robbing all over Southern Germany, but there is other evidence in the case which indicates that they took little of value, but largely food to maintain life. Again the Prosecution does not quarrel with the act of conviction, but we do contend that the sentence is so severe as to amount to a murder and an extermination on racial grounds alone.264 Probably the outstanding case on racial grounds next to the Eckstein-Winter case, is that of Louisa Togni, an Italian girl who was sentenced to death by Cuhorst in the face of an opinion by the Reich Supreme Court which stated that a person could not be sentenced to death as a dangerous public enemy under paragraph 1 of the Decree merely for plunder, unless the other elements objectively showed that the defendant was a public enemy in fact.
This girl was approximately 20 years old, understood very little German and was probably not very intelligent mentally. Cuhorst sentenced her to death, he claims in order that he could approve a clemency plea, but the facts are that it was only through the intercession of the Italian 263.
Tr. 8008 264.
Tr. 2267-70; 2286-88 Embassy that the sentence was reduced to eight years.
265 Coming into the category of cases upon political grounds we must remember that "political" in Law 10, written to apply in the Third Reich, cannot be read in the sense of 'political' as that is known in countries which enjoy a two or more party system.
'Political' as all Nazi judges construed it - and the defendant Cuhorst construed it - meant any person who was opposed to the policies of the Third Reich, and being opposed to the policies of the Third Reich was in turn construed as meaning the doing of an act which was contrary to the successful conduct of the war.
Under this definition of 'political', the Prosecution contends that the death sentence against the 65 year old senile Schmidt for taking cigarettes from postal packages was an act of extermination on political grounds. Schmidt in fact, was a rather useless eater, and for this reason, he would constitute a person in the community who should be exterminated by Cuhorst's standards, but in addition, his taking of cigarettes that were allegedly intended for soldiers certainly constituted political opposition to the aims of the Reich as Cuhorst saw it, and justified his death sentence on that ground. The sentence to death of this old man for acts which in normal times in Germany would have constituted larceny and a misdemeanor, under the war time legislation should have resulted in an acquittal, because the theft which made a person a public enemy had to be of something valuable, not a luxury item. Nevertheless, Cuhorst irrationally arrived at a violation of the public enemy statute and thereafter used the full penalty of that statute to give a death sentence. We do not know, of course, what the common sense of the people of Stuttgart was, but we doubt if the citizens there 265.
Tt. 8249-51 at the time that their common sense was invoked by Cuhorst were in agreement with him.