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.
The treatment of the defense counsel Diessem while it is not a crime in this case, also evidences determination to exterminate, which had its repercussion in the reprimand of Diessem for interfering with the Cuhorst determination (Tr. 2325-29).
The Prosecution contends that under all the facts and circumstances in this case, a murder and extermination for political reasons has been established beyond a reasonable doubt.
There is also in this record the case against the Convent at Untermarshtal, which under all the evidence in the case was a persecution on religious grounds beyond a reasonable doubt. We call attention of the Court to the fact that it is incredible that the defendant Cuhorst did not know that the Gestapo had confiscated the property prior to this trial. We also call their attention to the fact that the evidence shows that the affidavit of the Mother Superior, Uphremia Berger 266 contains a statement attributed to the defendant Cuhorst, made at the trial, in which he said the "Sisters have been convicted but the seizure of the monastery has not yet been justified." Cuhorst meticulously covered the facts in all of his cases in his testimony and in this one particularly but he never denied making this statement.
We further call attention to the fact that the Nazi burgeomeister, of Muuderkingen did not serve his sentence, but that the non-Nazi burgeomeister of Untermarchtchal and one of the Sisters, served their sentences and that they were the only people of all the people convicted who served any prison sentence.
266. Ex. 498, NG 706, III B Sup.
On the face of the facts in this case, and having regard to the acts of Cuhorst against the priests, Wassmer and Blattman,267 for listening to foreign radio stations and Heimtuecke, we must conclude that Cuhorst's conviction and sentencing of the Sisters at Untermarchtal was a persecution upon religious grounds, and one calculated to aid the confiscation of religious property.
We must also never forget his statement: "Viola, my friends, now to the slaughter bench", uttered before he entered the room to act in a so-called judicial capacity. Both the witness Eberhardt Schwarz and the witness Loduchowski assert that Cuhorst made this statement and neither of them were shaken on cross-examination.
Under the record in this case and the other case records, it is the contention of the Prosecution that the defendant is guilty of Crimes against Humanity beyond a reasonable doubt.
Crimes against Humanity - OESCHEY Oeschey, epitome of aggressive war from the judge's bench, now pleads in defense that he too, saw the same disintegration of German justice that is now charged in the indictment.
He wrote his brother, in 1942, that the Nazi judicial process had become a farce; 268 yet in the cases of Strobel269 and others270 he sent the defendants to their deaths for maligning Hitler. The artifice by which Oeschey 267.
Ex. 571, NG 909 268.
Sec Tr. 8778; Oeschey Ex. No. 9 (Oeschey I 28) 269.
Pros. Ex. Nos. 149, 227, 228, 236 and 479. 149-III C 53, 227-III J 79, 228-III J 84, 236-III J 74, 479-III-A Sup. 86.
270. Case Montgelas, Case Wahlrab and case Popp, Pros, Ex. No. 494, III Sup. 50, see also Pros. Ex. 583 for Nazi press account of these cases.
could opine like the democrat at home, yet from the bench exterminate similar opinions like a Nazi is plain from his handling of the Strobel case. He declared Strobel's prosecution for malicious political remarks a mistrial half-way through, announced that instead the Law Against Habitual Criminals was to be applied, and with no other notice immediately sentenced Strobel to death on the inconceivable basis of unrelated prior thefts for which Strobel had served time.271 Oeschey's motive of political extermination, in view of the fact that no death penalty was possible for malicious utterance whereas for "habitual criminals" it was272 is here too apparent for argument.
Hand in hand with extermination of political opposition, according to Nazi precept, went extermination of the alleged "inferior" races, and Oeschey followed that path. His opinion in the Kaminska-Wdowen case is an atrocity in racial propaganda, in that case with two judicial murders as the forfeit.273 With the indicted offense a mere scuffle amounteing in any civilized society, to at most a minor assault,274 he seized upon the Law Against Poles and Jews to condemn the Pole Kaminska;275 technically barred from similarly treating the Ukrainian Wdowen since the latter was not a Pole, he dubbed him a "public enemy" and accomplished death for both. Oeschey's reason for so doing, in the face of the insignificance of these indicted misdemeanors, is clearly stated in his published opinion:276 271.
Pros. Ex. 479, III A Sup. 86.
272. Pros. Ex. 112 (Book II).
273. Pros. Ex. Nos. 201 III H 25 and 201A III H, see also case Kwasnik, Pros. Ex. 232, III J 115.
274. Pros. Ex. Nos 229 and 235, 229-III J 87, 235-III J 93.
275. Pros. Ex. No. 201, supra, p. 11, III H 25 276.
Ibid, p. 17, His racial discrimination was equally reprehensible against Jews; see Schoenbaum case, Tr. 8767. Cf. Guentner case, Tr. 8754-6 re. Party members.
"The German nation which is engaged in a hard defensive struggle, rightly expects the most severe methods against such alien elements... particular significance."
He also significantly discusses, in this opinion, the danger to German "honor" of largo numbers of laborers from eastern countries in the Reich, and points to labor in war industry as the only justification for their toleration at all.277 It is beyond belief that Oeschey was in any doubt concerning the slave status of most foreign defendants appearing in his court.
Nor, on the stand, did he appear in any doubt concerning the justice of the judicial standard "sound sentiment of the people". Yet this weapon of his for dealing death under the Public Enemy Law was directly challenged by at least one group of civic officials. The miller Zollner was condemned to death as a "Public Enemy" for grinding and selling grain contrary to the War Economy Decree, because Oeschey ruled that the "sound sentiment of the people" demanded it.278 But the local mayor and others risked their positions by appealing both to Oeschey and to Thierack for clemency, to no avail, on the basis that "the sentiment of the people without exception" regarded Zollner's fate as unjustifiably severe.279 Another bizarre example of this devilish concept of "sound sentiment of the people" by which Oeschey branded defendants as "Public Enemies", is the contrast between the cases Sponsel280 and Barth et al.
281 For theft of postal 277.
Ibid, p. 20 278.
Pros. Ex. 581, Tr. 8770-77.
279. Ibid. See Oeschey's affidavit, Pros. Ex. No. 580, wherein he describes this precept as "a wishy-washy rubber-like phrase of no practical use to jurisprudence."
280. Pros. Ex. No. 189, III E 8 281.
Pros. Ex. No. 190; see testimony of witness Goeringer, Tr. 1263 et sec., for verdict.
parcels destined for Wehrmacht soldiers, the feelbe-minded woman Spomsel met death as a "Public Enemy" because "sound popular sentiment" demanded it; yet for theft of similar parcels sent by the International Red Cross to English and American prisoners of war, Barth and his accomplices received prison terms ranging from five years to three months. With such a judicial weapon in the hands of a man with Oeschey's ideology, the process of law did in truth become a "farce".
Just as with Rothaug, concentration camp atrocities were brought to Oeschey's judicial attention; yet at the bidding of the SS and Gestapo he cloaked and concealed such horrors by sentencing their revealers for "malicious remarks." 282 When civilian resistance and zest for the war understandably disintegrated under Allied advances into the Altreich, it is not surprising that Gauleiter Holz recalled Oeschey from the Army to whip Franconia back in line.
As president of the civilian court martial, he fulfilled that mission of homefront terrorization until he could no longer get through the streets to the courtroom.283 During these last days Oeschey transformed himself from a judge to an Executioner for Himmler. With Himmler in command of the Reich Defense Commissars, and Gauleiter Holz being immediately subordinate to Himmler as Commissar for Franconia, and Holz having completely superseded the Ministry of Justice in control of court martial decisions.284 Oeschey's role as a 282.
Case of Sauer et al, Tr. 8756-67; see Heubeck case, ibid.
283. Testimony of witness Hodges, Tr. 3363-71 to which cf. Tr. 3251 date of Montgelas trial and execution, Tr. 3486.
284. Tr. 8788 Party force for last-ditch resistance is obvious.
He set his standards for this last "court" in his first case, i.e. Montgelas,285 and his following judgments were no less atrocious. As crimes against humanity inflicted upon his fellow countrymen these court martini cases dwarf any brief description here, nor do they need it. The crime is clear; sentences of death for defeatistic remarks at a time when no other remark was sensibly possible, in a last desperate attempt to prolong aggressive war and to retain whatever unlawful gains had been thereby acquired. At least one such case again Montgelas, so shocked even the legal circles of Nuernberg-Fuerth that the District Court conducted exhaustive investigations of responsibility therefore, a few months before the present case went to trial. 286 In addition to the fact that the Montgelas case was decided on the basis of facts which clearly showed and must have shown to the defendant Oeschey, Gestapo entrapment, the court will recall the testimony of the witness Hodges 287 to the effect that on the 17 day of April 1945, eleven days after Montgelas was executed on the 6 of April 1945, following his trial on the night of the 5 of April 1945, the American troops entered and took Nurnberg.
Thus we have a case in which Oeschey knew that Montgelas was entrapped, that his so-called undermining statements were made in a hotel room to a woman Gestapo agent, that there was no evidence that the woman had ever received the statement, and that the Americans were expected to take Nurnberg at any 285.
Pros. Ex. Nos. 494, 150, 148 and 149 494-III B Sup 50, 150-III C 35, 148-III C 50, 149-III C 53.
286. Pros. Ex. No. 150, supra.
287. Tr. p. 3367-3369 time.
There can be no case which more clearly shows an intent to murder and exterminate a human being on political grounds before the next chance to commit this particular murder would be taken from Oeschey, Gauleiter Holz, and the Nazis with whom he willingly cooperated in carrying out this program.
In the same category is the Gottfried case of trial by Court martial as contained in the affidavit of the witness Huemmer who was closely examined on the affidavit on the 4 June 1947. Huemmer described the offense of Gottfried, namely that Gottfried came to the citizens of a village near Uffenheim, told the villagers that he had met the American soldiers, that they had given him chocolate, and seemed to be decent people, and that they should now have their village destroyed by defending it against them. Gottfried for this was sentenced to death and was executed under Oeschey on the 15 of April, when the probability of the Americans capturing Nuernberg and depriving Oeschey and Holz of the right to exterminate a man on political grounds was oven more imminent than in the Montgelas case. The witness Filbig 288 who attended the trial, supports Huemmer.
That Oeschey was determined to exterminate people on racial grounds is also evidenced by the folllwing cases: Witrak, Etcheverria, Giani and Sala, Jancovic, and Manziuk, 289 all of whom were non-German nationals and who were given death sentences under factual situations which the court will find by applying the standards we have set out herein above, were 288.
Tr. p. 3351.
289. Witrak; Ex. 494, NG-952, III B Sup.; Ex. 583, NG-856 Etcheverria; Ex. 582, NG-990Giani-Sals; Ex. 229, NG-650, III J, 87 Jancovic; Ex. 244, NG-459, III D, 115. Manziukl: Ex. 149, NG-653, III C. 53.
clearly based upon racial grounds and no other.
Under the standards fixed as applied to the evidence, the defendant Oeschey is clearly guilty of personally acting as a principal, taking a consenting part in, and being connected with, the Nazi sponsored plan and enterprise to murder, exterminate, enslave, imprison, and persecute human beings on racial and political grounds. This constitutes a crime against humanity.
MR LAFOLLETTE WILL NOW READ THE NEXT PART.
MR. LAFOLLETTE: The Sonnenberg Massacre - Klemm From January 1, 1944 until the end of the war the defendant Klemm was State Secretary, second in command to his close friend and long time associate Minister of Justice Thierack.
On January 30, 1945, at approximately midnight 290 six hundred to eight hundred German national political prisoners, some Russians, and women and children who had been marched in from Grandna, were shot down in cold bolld by a special commando of Gestapo from the station at Frankfurt on Oder.291 One day in the last part of January 1945, Robert Hecker, an official of Department V of the Ministry having control of prisoners and prisons, was talking with the General Public Prosecutor at the Kammergericht at Berlin, named Hansen.
292 Hansen told Hecker that it might be necessary to evacuate Sonnenberg penitentiary, that preliminary discussions as to the measures to be taken had been carried out with State Secretary. Klemm. However, Hansen told Hecker that he, Hansen, 290.
Ex. 293, NG-741, Bk. VII B, 34 Affidavit of Frau Leppin.
291. Testimony Criminalrat Herget at Gestapo Headquarters at Frankfurt on Oder.
292. Tr. 3048 and 3060.
could not tell Hecker about them, but Hecker should ask Klemm about these arrangements because Klemm had misgivings. 293 Hecker tried to see Klemm but could not get in office. A few nights while on night duty at the Ministry of Justice, Hecker received a call from the prison asking for instructions in regard to evacuation in case the Russians broke through at Kuestrin. Hecker called Thierack and was told the prison would have to be defended. Hecker reported this back to the prison.
The director of the prison then asked if there were any other instructions. Having had the conversation with General Public Prosecutor Hansen earlier, Hecker called his office; Hansen was at Brandenburg, but the official on duty at Hansen's office, the referent, a first prosecutor, told Hecker that according to the instructions which 293.
Tr. 3048 Court No. III, Case No. 3.had been issued, the police, the Gestapo,294 were to be informed in case of evacuation.
The prison called back later this same night and said that the immediate danger was over. That was all that took place that night.
Hecker then, a few days later, saw Ministerial Counsellor Eggensberger, who had been on night duty the night before Hecker saw him. Eggensberger had a conversation with Hansen while on duty, had written this conversation down and was reporting the following morning to Hecker, the competent official, what had happened in the line of duty the night before.295 Hecker further said that Eggensberger reported to him that the General Public Prosecutor at the Kammergericht in Berlin, and the Reich Defense Kommissar who was the Gauleiter of the province of Brandenburg had, pursuant to agreement, decided that only part of the prisoners should be transported away. The rest of the prisoners were to remain in the prison and be transferred to the Gestapo before the Russians could capture the prisoners. On the basis of this agreement, a part of the German prisoners were transferred to the Gestapo, while the officials of the prison, the rest of the German prisoners and the Polish prisoners who had been transferred from a prison in Posen, together with the director, had left on foot from Brandenburg.
Eggensberger further told Hecker that morning that Hansen had informed him that the agreement was made pursuant to an agreement and approval of Under State Secretary Klemm.
The witness Eggensberger, who is presently an official in the District Director's office under the French at Tuebingen, testified that while he was on night duty late in January or early February, he had received a call from the General Public Prosecutor Hansen telling him that during the night the prisoners of the Sonnenberg penitentiary would be handed over to the Gestapo, that a detachment of the Gestapo 294.
Tr. p. 3050.
295. Tr. p. 3050.