64).
Neither can a reproach be made on account of Exh. 300 concerning the food in the penal institution. Symptoms of collapse which increased considerably everywhere in Germany and also in the penal institutions as the end of the war drew nearer, cannot be charged to the responsibility of the Ministry of Justice. That these were only symptoms of the military collapse in Germany as far as these matters are concerned, and that prior to that the conditions in the prisons were definitively irreproachable is clearly proved by the statements of the witnesses for the Prosecution Erey (cross-examination to Exh. 494, English transcript page 3972, German 3992) and Schirmer (cross-examination to Exh. 272, English transcript page 3954, German page 3905 ssq.)
Thus it is not proved that Klemm violated the principles of humanity at all in this connection, moreover according to the defense documents quoted by me up to now, the contrary has been established.
V. If I turn to the question of the lynching of aviators as the next problem, it seems to be necessary to state what we know now about the development. Before the administration of justice was confronted with this problem at that time it was discussed by Hitler in the closest circle of his advisors in military matters and questions of foreign policy. (Exh. 108, 109). For the consideration of our case it is unimportant which facts concerning the actions of Allied aviators violating International law have been established at that time. (see statement Fritzsche, English transcript page 5216 ssq. German, page 5120 ssq.) The consequence of the discussion in Hitler's closest circle was in any case the order given by Himmler in form of a secret decree already in August 1943 to all police departments subordinated to him to the effect that the police should not interfere with so-called quarrels of the population with enemy aviators who had bailed out.
(K1. Exh. 68 a). It is correct that by this order the population was left free to apply lynch justice. Only on 30 May 1944; Bormann addressed all Gau and District leaders, also in a secret decree, in which he informed them of cases where lynch justice was already applied and where he talked about the fact that the people who participated in those cases were not to be prosecuted. The wording is in the past tense. (Exh. 109,110) The Justice Ministry saw a copy of this letter for the first time when it was submitted to it through the Reich Chancellory (Lammers); Lammers left it to the Ministry of Justice to inform now also the Courts and the Prosecution authorities. On this letter Thierack wrote in his own handwriting an order to the competent department IV of the Ministry, to draft a circular decree concerning the notification, but at the same time with the instruction to submit to him all cases for a decision by himself in order to enable him to examine whether a quashing in the sense of the clemency decree could be justified. In the meantime Goebbels had published his article in the "Voelkischor Beobachter'' (Exh. 417). In this article Goeggels threatened that a time would come when the Wehrmacht or the Statr would be unable to protect the shot down aviators against the lynch actions of the population. The affidavit Bejlowec (Exh. 440) shows that only a considrable time after this article of Goebbels, department IV issued the circular decree as a secret order. The original of this decree which was issued to the highest judicial authorities and to the General Public Prosecutors has not been submitted. Neither did Klemm ever see it. He only acknowledged Thierack's order to the effect that department IV was to issue such a decree (see statement Klemm, English transcript pages 5050 sqq. German pages 4964 ssq.
and English transcript page 5148, German, page 5056). The statement of the witness Hagemann shows furthermore that there existed the possibility that the final wording of this decree, as it was submitted to the subordinate offices by department IV, did not mention, at all the purpose of the duty to report, that is the examination for a possible quashing. (Statement Hagemann, English transcript page 9304, German page 8914). That prior to the notification of the Minister by Lammers a "criminal" prosecution did not take place - as Bormann informed his Gauleiters - is in any case not correct in this wording. It may correspond to the actual facts of the case only insofar as, on account of Himmler's order to the police of August 1943, the police, apparently from this time on, totally refrained from reporting such cases or from passing on any information in this respect to the authorities of the administration of justice. Only on account of the fact that Justice authorities had no knowledge about these matters was it possible that no criminal prosecution took place and not because the authorities of Justice on their part did not carry out their duties. Prior to the decision of Bormann of which the Ministry was informed by Lammers, no reports of cases where lynch activity was not prosecuted, were submitted to the Ministry and definitely no such cases were quashed by the Ministry. This is also confirmed by Exh. 252 and by the lists of reports, the thorough examination of which showed that not in one case discussions to that effect took place in the Ministry. It is possible that Bormann was of the opinion that similar to Himmler, Justice authorities too had decided on a similar decree for their subordinated departments. But this was not the case. Lammers being aware of the actual connection informed Justice only later on and Thierack also gave no instructions equal to Himmler's orders, namely to refrain from criminal prosecution, but he ordered a special duty to report, so that he would be able to decide on the cases himself. Already by demonstrating the objective side of the case the conclusion may be drawn that for the authorities of Justice the commission of a war crime or a crime against humanity is to excluded.
Inasfar as killings of bailed-out allied aviators took place after the issuing of the circular decree by Thierack no authority of justice could meet the participation clause mentioned in Control Council Law No. 10. The Prosecution attempts to construct such a participation, by trying to accuse Justice of an incitement to murder by indirect actions namely on account of the fact that Justice did not prosecute those persons who become guilty by committing such acts.
But this could only be in question if the Justice authorities had assured the perpetrator, in a way known to them, that they would not prosecute the punishable action before he committed it. An instigation, connected to the action like cause and effect, could only then be considered. But even an existing intention not to prosecute such actions could not be made accessible to large circles of the people.
It follows unequivocally from the affidavit Bejlowicz (Exh. 44O) and the deposition of Hagemann (Transcript Engl. page 9308, German page 8917) that the subaltern offices of the Ministry actually treated the circular order as secret. Only the highest offices of the justice in every district were informed at all, and it is out of the question that large circles of the people could know of this secret order. It was an internal affair limited to a narrow circle. The way the judicial authorities acted could consequently for this reason never be connected causally in the sense of the regulations of the Criminal Law to cases of lynching which happened later. Any crime against humanity and the laws of war is moreover still excluded in our case by the circumstances that it is impossible to start from the fact that the Justice authorities were willing at all to stop the criminal prosecution against the German population. If the circular order issued as final contained literally 15 0ct-M-FL-7&8-11-Cook (Int.
Hahn) the addition that "for the purpose of examining the discontinuation" reports should be made.
Thus this means something absolutely different from what the Prosecution believes to be able to assume, Himmler's ordinance to his police and Bormann's ordinance to his highest party functionaries was taken very seriously by these authorities. They actually wanted to suppress entirely the criminal prosecution of such cases. There have also become known details from the deposition of the witness Hagemann as to how police and party offices stood up against the justice authorities.
I, now, interpolate No. 30. As yesterday's final plea shows the Prosecution intends to construe something entirely different from the testimony as the witness Hagemann heard it and construed it, and as it is quoted from this testimony in it's final plea, and I quote from the final plea:
"He, that is Hagemann, one evening had Kluettgen with him for dinner. Kluettgen, at this passage in the transcript, - it is on page 9309 of the English text, - however, said the following, and I am comparing the note to this passzge on account of the statement made by the Prosecution in their final plea, which I fail to understand entirely and I quote:
"I asked the legal adviser of the SA if possible to ask Kluettgen to come to see me. To begin with Kluettgen had been working in the District of Brandenburg, but later he was transferred to the Aachen District, and there he had to deal with transportation questions. One Saturday he came to see me at my apartment, when he was at Duesseldorf in line of duty. I was at home and sick, I talked to him on that occasion, but I was not very favorably impressed by him."
And in reply to a question of defense counsel?
"Q.- Did you not have the opportunity to arrest Kluettgen immediately", he replied:
"A.- No, I did not have that opportunity. I was alone in my apartment, on that Saturday in question and I did not have any weapon at my disposal".
I do not have the time here to deal with the further discrepancies of the Prosecution testimony on the witness Hagemann. His testimony is especially supported by the files of the Military Tribunal at Dachau which arrived within the last days and which I could introduce as Exhibit 82. The details reported there speak distinctly for themselves. The report of Public Prosecutor Steiner of 20 September shows with what energy he tried to arrest the perpetrator for two murders and bring him before the Senior Public Prosecutor at Kleve.
I now quote the Steiner Note. It is document book No. 10, supplement, English Text page 13: "The Public Prosecutor Steiner has gone to Duesseldorf and there on the 21st of September he made a personal report on the case. The Reich Ministry of Justice and as far as I know the Ministerial Dirigent in question from Dusseldorf were informed of the decision and they shared the view that proceedings against Kluettgen must be carried out and a warrant for his arrest must be issued.
This Public Prosecutor also tried to get a warrant For arrest through the Wehrmacht.
The notice of the Public Prosecutor van der SMISSEN of 23 September 1944 shows also that the Ministry of Justice took the position that the proceedings against KLUETTGEN should absolutely be carried out. The letter of the Senior Public Prosecutor KLEVE to the Chief Public Prosecutor Daessoldorf (that was the witness HAGEMANN) mentions a communication of the Kreisleiter (county leader) of KLEVE that he stood by his refusal although the interrogation should take place on the "order of the Peich Minister of Justice". It also follows from the other documents submitted in KLEMM Exhibit 83 that the Ministry and the Public Prosecutors concerned tried at that time immediately and with emphasis to prosecute the guilty persons in opposition to the party and the police authorities. It follows unequivocally from the affidavit WILKERLIN (KLEMMExhibit 66), the affidavit PRFISER (KLEMM Exhibit 69) and also from the depositions of HARTMAN on the witness stand (Transe. English page 9016, German page 8656) and MITZSCHKE, (Trans. Engl. page 9318, German page 8926 and the following page that the Ministry was in no case willing to simply put up with the practice of the police and the party officials. It endeavoured on the contrary to completely clarify every case and also to be enabled to proceed regularly through this. KLEMM can also claim credit for even having been most active in this respect. He gave the special order to the witness MITZSCHKE to make the Chief Public Prosecutor in Munich prevail upon the police to render the reports on the facts (Transe. Engl. page 9316 and the following pages, German page 8924 and the following pages). Neither do the notes of the witness HEIM show anything different (Exh. 529). It is expressly written there that in this case "a report on the action on the part of the police must absolutely be submitted". HEIM noted there especially that this was the decision of the State Secretary KLEMM. The following reason do s not belong to the instruction by itself. HEIM expresses by it only what he wants to be understood as special reasons on the basis of a discussion with MITZSCHKE personally. MITZSCHKE deposed as witness that the order given to him by KLEIM was absolutely unequivocal and was supposed to comprise all cases in which Lynch justice had taken place.
But for the reasons given by HEIM it is decisive in what position the administration of Justice was placed against the powerful functionaries of HIMMLER and BORMANN. The general mood in the high st offices did not permit the Ministry of Justice to issue any ordinance at all which openly stated the contrary of what was wanted by the police and the party. On the other hand it was impossible to let the small Public Prosecutors in the provinces fight without any prospect for success against the all--powerful police and party mechanism. The Ministry had to be able to support it with its authority, which in itself was not very strong. If the individual Public Prosecutor wanted the police to carry out a criminal prosecution or at least to obtain files, he could do so best by demonstrating the necessity of a regular closing of the proceedings and pointing out at the same time that tho possibility for a discontinuation existed under the legal regulations. HEIM's notes as well as the order by THIERACK must be appreciated under these actual and psychological conditions. According to tho legal position the possibility also existed theoretically of discontinuing the proceedings in special cases. This follows from the regulations concerning clemency matters (Gnadonordnung) according to which the had of the State - later also the Minister of Justice as his delegate - had the right, under certain legal, exactly defined conditions to discontinue proceedings. (cf, KLEMM Exh. 38a to No. 18 of the regulations concerning clemency matters - Gnadonordnung).
"It cannot be denied that there arc cases imaginable, in which the Justice could rightly have discontinued the criminal prosecution against German perpetrators. But the prosecution did not submit a document from which it follows that such a, discontinuation through the Minister actually took place. It is therefore impossible to re-examine the individual cases in which THIERACK used his right to clemency.
And this would be necessary in order to deduce from it, reproaches against any official of tho administration of Justice, for cases such as the one described by the witness FRITZSCHE (Tr. Engl. page 5216 and the following page, German page 5120 and the following page) would perhaps have justified such a granting of clemency by discontinuation.
VI. As to the issuing of the decree on the Martial Courts of the year 1945 KLEIM acknowledged that he worked on it together with others. The Prosecution believes that it can consider this ordinance an instrument of the dictatorship of the party and SS which could be used to got rid of political opponents without having to observe any limitations. It especially seems to believe that the proceedings were lacking in all the most primitive rules of procedure. It obviously assumes further on that the Court decree introduced new norms with regard to material law. This conception is in contradiction to the history of this decree's genesis, the meaning, object and also the wording and the practice of the decree on the Martial Courts. As tho witness KRITZINGER deposed in his affidavit (KLEIM Exh. 68) and as KLEIM himself demonstrated by describing some individual cases (Transe. Engl. page 5065, German page 4980) it was on the contrary just tho objective of the decree on the Martial Courts, to prevent a wild party and SS justice and to make it impossible. Cases had become known in which district leaders (Gauleiter) and other higher party functionaries had for instance dared to have officials fleeing before enemy troops shot or hanged. The situation already showing the symptoms of the collapse must not be driven towards chaos. A legal allowance for the circumstance that the normal functioning of the Administration of Justice was not possible any longer, for the reason alone already that the connection to the central offices was severed. A solution could be found only by creating a Martial Court which corresponded to Military law and stated from the same conditions and premises. Of course the procedure had to be regulated in a more liberal way.
After all it could not be observed in the individual case whether precepts of criminal procedure as e.g. the rules for the serving of summons or its time limits could be adhered to under the given local conditions. But it goes without saying that this did not give the Martial Court the privilege to proceed arbitrarily to the defendant's distinct disadvantage. It remained bound to the basic principles of the German criminal procedure and had to pay attention to them. Nor did the decree on the Martial Courts contain any now specified evidences in regard to substantive criminal law. If the decree speaks of the necessity to pass sentence on actions which endangered the population's determination to fight it expresses in this only the circumstances, that actions other than those of this kind could not be judged by a Martial Court at all. It was therefore a regulation which limited the precepts of the Criminal Code. Whether the case in question was to be considered as such a ease at all was to be decided according to the criminal laws already existing. The defendant OESCHEY deposed in his testimony (Trans. Engl. page 8714 and the following pages, German page 8350 and the following pages) that the practice actually proceeded that way. There was in any cases as KRITZINGER and KLEHM attest, no doubt when the decree on the Martial Courts was created, that no new material criminal law should be introduced by it. The precept of the Par. 4 contained only a restricting limitation of the competence for the gravest cases Just as no aggravation of the material law by the decree on the Martial Courts took place so should also the defendant not be robbed of his fundamental right to defense by it.
"It is certain that the party element was at a distinct advantage by the insertion of the lay members of the court into the decree on the Martial Courts, however it would have been beyond the powers and possibilities of the administration of Justice to exclude it completely because the position of the administration of Justice was more under-mined in the Third Reich. It follows from the KLEIM Exhibit 68 that the party desired to play first fiddle to a greater degree still, than the decree on the Martial Courts permitted.
It must be attributed alone to tho tireless endeavors by KLIEM in the conference of the State Secretary that a judge was admitted at all as president and an official of tho Public Prosecution as representative of the prosecuting body to the Martial Court. KLEIM could consider it a guarantee after this personal success that the decree which was then composed by the legislative department and THIERACK would make possible a regular procedure and a just sentence. It is impossible to assume that the inssuing of the decree on Martial Courts, as such, should transgrees against the laws of war and the laws of humanity and that KLEIM became guilty of such crimes by his participation in issuing this decree.
"VII. The Prosecution believes that reproaches against my client can be based on the Minister's clevency procedure. Moreover, they apparently wish to maintain that his attitude encouraged THEIRACK in his severity. The Prosecution does not refer to any individual cases in which KLEMM himself pronounced a too harsh and unjust decision. It is also not shewn in detail which attitude KLEMM adopted with regard to any case in which THEIRACK may have pronounced too harsh' a decision. Obviously it is only being deduced from the large number of death sentences carried out that this clemency procedure was inhuman and in itself constituted a crime against humanity. It is not admissible to base legal deductions only on figures and statistics. As the Prosecution considers, however, that special importance should be attached to figures, I myself cannot refrain from once again going into the matter of the report lists, which has been so often discussed already, insofar as it may concern the responsibility of my client. According to Exh. 173 it has been established that in 1943, i.e. before my client took up his activities as Undersecretary of State, about 5300 death sentences were carried out. Basing their arguments on the statements of the witness SUCHOMEL, (Exh.
534) the Prosecution obviously wishes to prove that after KLEMM joined the Ministry of Justice the policy in clemency cases had become severe to an inhumane degree. The statements of SUCHOMEL, how ever are clearly refuted by the testimonies of witnesses. Thus the witnesses HARTMANN (Tr. English. page 9034, German, page 8653 FRANKE (Tr. English. page 9273, German, page 8889). ERHARD (Tr. English, page 6376. German, page 6184) and KLEMM himself (Tr. English, page 4979, German, page 4896 f) have been able to testify from their own personal experience that the figures which SUCHOMEL quoted cannot possibly be correct. Only those can be regarded as a basis here which are shown by the report lists themselves (Exh. 232). This well founded basis of evidence shows that in 1944 the figures of 3500 cannot have been exceeded. The afore-mentioned witnesses could moreover state that usually there was only one report on death sentences per week. Even if the lists do not record every report to the Minister, this can be explained according to the testimony of the witness HARTMANN by the fact that in that case KLEMM could have had nothing to do with such reports. Exh. 232, it must be remembered, is the personal copy of the defendant KLEMM with his own notes on it. The fact that this copy shows KLEHM's hand-written remarks proves, in connection with this testimony of HARTMANN's that it is a question of a complete collection of the lists which KLEMM received in his turn Thus, all reports on death sentences have been recorded in lists, with the exception of those few cases in which a so-called lightning-execution had been ordered, or which concerned the trial dealing with the assassination attempt on HITLER on 20 July 44 (testimony FRANKE, Tr. Engl. page 9278, German page 889). The document in question is therefore a reliable basis of evidence.
In order to establish the total number of death sentences carried out, one must only include the proportional figure for those weeks in which KLEMM did not participate in the report to the Minister. The lists record about 2700 death sentences. Counting about seven report days as missing and taking the special cases not recorded in the lists into consideration one cannot possibly arrive at a higher figure than 3500.
Thus also the statement of SUCHOMEL and his deduction to the effect that in 1944, 8000 death sentences were carried cut, is conclusively proved to be false. In comparison to the 5300 executions carried out in 1943, a considerable decrease can even be stated. According to KLEMM, Exh. 77, there should be records in the document center in Berlin where the files of the former Reich Ministry of Justice have been collected, which show that in 1943 and 1944 altogether 10,071 cases occurred. The Prosecution has not submitted these files which allegedly exist according to this newspaper notice. However, if one takes this figure for both years as a basis, the testimony of SUCHOMEL is refuted. If according to Exh. 173 there was a question of 5300 cases in 1943, the remainder of about 1500 cases in respect of both years can be explained by the fact that the Reichsstatthalter for Bohemia and Moravia, who was given the right to grant reprieves at the beginning of 1244, end the Reichsstatthalter in the incorporated Eastern territories, who had such a right even before that date, dealt with those 1500 cases by way of their independent clemency procedure.
KLEMM, in his capacity as State Secretary, only had to decide on a small fraction of all cases. The highly unreliable witness ALTMEYER, it is true, tried to maintain that reports were made to KLEMM every moth. This statement, however, has also been clearly refuted by the evidence. This was stated unanimously by the witnesses EHRHARDT (Tr. Engl. page 6371, German page 6178), FRAHKE (Tr. Engl. page 9368, German page 8878) and HARTMANN: (Tr. Engl. page 9033, German page 8653) while giving exact details concerning the technical procedure as to how the lists in Exh. 353 were drawn up. During the whole period of his activities as State Secretary KLEMM on his own part received only 4 or 5 oral reports concerning death sentences.
This fact, too, becomes evident from Exh. 253. According to the lists, only on five days, the exact dates of which are given, oral reports were made to KLEMM. On two of these 5 days no death sentences were dealt with, but cross in connection with several criminal proceedings which had not yet been brought to a close. (cf. testimony KLEMM, Tr. Engl. p. 4978, German P. 4896). Even the witness ALTMEYER had to admit the clear evidence of Exh. 253 when it was put to him in the cross-examination. He thinks he can explain the gaps in his memory by maintaining that KLEMM frequently deputized for the Minister, and that this fact had not been recorded in the lists. In contradiction to this, the witnesses EHRHART (Tr. Enql. p. 6369, German p. 6176), FRANKE (Tr. Engl. p. 9268, German p. 8878) and HARTMANN (Tr. Engl. p. 9032, German p. 8652) again unanimously pointed out that such a sudden necessity for deputizing was a very rare occurrence. These cases of deputizing can be of no practical importance whatsoever, for according to the statements of these witnesses the lists were always only drawn up in the offices on the day proceeding the report, and were even made out with a view to the person in question, be it the Minister of the State Secretary, This was also - in accordance with the rule laid down by the Minister himself, as is shown by Exh. 45, according to which THIERACK gave general instructions at the beginning of 1944 that all death sentences should be reported to him.
This quite fearless basis of evidence proves that KLEMM on his own part did not refuse to grant a reprieve in more than 85 cases. These 85 cases represent only about 3.5% of all executions ordered in 1944 (testimony Kl. Tr. Engl. p. 4976 ff, Germ, p 4894ff). Now it is rather remarkable that the Prosecution has not submitted one single document concerning the cases which were decided by KLEMM. The individual names of the cases concerned are clearly shown by Exh. 252. Therefore there is no documentary evidence available as to what KLEMM's decision was in these cases.
Thus it is impossible to examine one way or the other whether KLEMM's decision was just or in just and therefore perhaps Inhuman. No deduction can therefore be made from this which might be unfavorable to KLEMM. The following fact, however which is in my client's favour, should be taken into consideration. He could decide independently only on the so-called clearcut cases. The evidence has provided sufficient material to shear how this term was to be understood.
In accordance with the legal regulations, i.e. the clemency regulation and the official instructions, 7 different officials had to give their comments on the clemency question after a sentence had been pronounced, and before the final authority for clemency cases came to a cecision. Now if a case was designated as clear-cut it meant that all the seven official who had been heard had unanimously taken the view that the granting of any clemency was cut of the question. The fact that KLEMM was only allowed to pronounce a decision in clear-cut cases is proved by the statements of the witnesses HART-MANN, FRANKE, EHRHART and KLEMM which all correspond with each other. Even the witness ALTMEYER could not deny each other. Even the witness ALTMEYER could not deny this fact in spite of his tortuous explanations. The witness EHRHART (Tr. Engl. p. 6370, Germ. p. 6178) has also stated that if KLEHM had to deputize for THIERACK the so-called doubtful cases were immediately postponed.
That the refusal to grant a clemency in such a clearcut case should constitute an outright inhumane decision is out of the question for the reason alone that 7 different officials had unanimously voted for the carrying out of the sentence. KLEIM, however, when making his decisions was not content simply to base his decision on these seven notes, but he had the case reported to him, examined it on his own and only then pronounced the decision (testimony KLEMM, Tr. Engl. p....... German p. 5083) also affidavit BEMS (Doc. ROTHENBERGER IV b N 180 p. 20).
The reproach of the Prosecution that the clemency procedure in itself was inhumane or was not in accordance with the importance of the grave decisions which had to be made is therefore unjustified. Beyond that, however, it must be stated that KLEMM' as shown by Exh. 252. granted a clemency in spite of everything in several of these cases which were reported to him as clear-cut, or else gave the order for a re-examination of the case which might benefit the defendant. That in itself is a symptom for KLEMM's humane and just attitude. The witness for the prosecution FRANKE has pointed out that KLEMM's attitude was no more severe than that laid down by the general policy which had already evolved and been pursued by all officials of the Ministry of Justice before he joined it. This is also corroborated by the documents (Exh. 45) of the prosecution, according to which there can have been no change of policy following KLEMM's joining the Ministry. (Testimony KLEMM, Tr. Engl. p. 4970, German p. 4889, Engl. P. 4890, German p. 4898, Engl. p. 4985, German p. 4905, Engl. p. 4996, German p. 4912).
This becomes quite evident through the testimony of the witness WILKERLING (Klemm Exh. 59). MATTERN (Klemm Exh. 60). PREISER, (Klemm Exh. 74). The witness HARTMANN (Engl. transcript page 9023 and the following pages, German, page 8647) and BRUNS (Klemm Exh. 636) have told of various single cases which illustrated the fact that Klemm advocated in many cases a ore lenient interpretation and intervened also with THIERACK, in favor of a pardon or at least of a re-examination of verdict. He therefore differed from TIERACK's more severe conception. Only the witness ALTMEYER believes to have observed something different in this point. He told of 4 cases which KLEMM allegedly decided. These cases would really be the only factual basis for the finding of anything relating to the actual procedure in clemency cases in the sense of the indictment. It is, however, an incomplete basis, in particular in reference to the personality of exactly this witness who contradicted himself after and who appeared extremely insecure, and who obviously belongs to the witnesses who now try to accuse their former colleagues in order to excuse themselves for their former activities.
The 2 cases about which he was cross-examined more in detail are altogether not designed to support ALTMEYER's attempt to give a perogatory judgment about KLEMM. At this he must admit himself that the policy in elemancy cases had followed this direction already for many years and he mentioned a similar case which at SCHLEGELBERGER's time had also resulted in a rejection of a clemency plea. In the two other cases which he now wants to represent as doubtful, he attempts to make it seem especially severe, that at the plunderings which occurred, the taken object was insignificant. It is questionable, if this was actually the case, seeming that at that time many things were completely unobtainable. When during cross-examination the corresponding judge's letter, Exh. 861 was shown to ALTMEYER, unanimously is of the opinion that the stealing of objects of small value cannot be considered as looting, he evaded the issue and wanted to place major importance or the personality of the perpetrator which cannot be any more established at this time. The witness did not realize that, by doing soy he completely contradicted his former argument which had stated that the severity of the judgment resulted from the insignificance of the stolen object. This ought to be sufficient to make the unreliability of ALTMEYER's testimony evident. So it remains a fact that, according to the testimony of the other witnesses, KLEMM had had an amiliorating influence.
As far as KLEMM himself took part in THIERACK's decision as a minister, ho can also not be charged with having committed a crime against Humanity or against the Rules of War. I do not have to go into discussions on the problem whether the clemency pleas rejected by THIERACK could actually represent such a crime in the individual cases presented by the Prosecution. Because in none of the cases presented with documentary evidence by the Prosecution has it been establishes, whether KLEMM voted at all, and in favor of what he voted in each individual case.
According to the principle in dubio pro re (in doubt - for the accused), the Court cannot exclude the possibility that KLEMM gave reasons for the pardon at the time of his voting. In individual cases we know from the above quoted statements of witnesses that he has positively done so. The Court will, however, not be able to acknowledge KLEMM's responsibility because of a legal consideration: the participation in the discussions concerning the execution of death sentences does indeed not meet the legal facts of a causative form of participation, according to the Control Council Law No. 10 Hitler had, as head of the Government conferred the right to decide about the execution, after the beginning of the war in 1939, not perhaps to the Ministry as to a body, but only and exclusively to the Minister of Justice personally (Klemm Exh. 38a, 39, as well as SCHLEGELBERGER Document BI No 28 and 29). The opinion of the offices consulted had therefore no cusative influence on the decision of the minister. He could, and had to decide according to his own judgment, this was his duty and in correspondence with the law. In the case of Minister THIERACK an added factor is, that he was on principle not to be influenced, as all witnesses had confirmed. THIERACK was autocratic and very arbitrary. He was from the start rot inclined to lot any of his collaborators push him into a decision. Such an attempt would have produced the contrary effect on him. Corresponding to his legal position and his personality, THEIRACK did also at the voting not want to hear a proposal for a decision from his collaborators. The voting consisted only in the stating of reasons which could be of importance for his own decision. He gave no importance whatsoever to the result of the discussions of his collaborators, and when he was now and then informed about the personal opinion of one of his collaborators, it was obvious that it did not concern him.
In this circle of consultants and advises of the minister, KLEIM had no other position than the others, that is, the assistants, the sub-department Chiefs and the department-chief. THIERACK also asked KLEMM nothing else but to state means and reasons which could be of importance for his decision. We learned from the witnesses EHRHARD (Transer., English page 6372, German page 6179). FRANKE (Transer. Engl. page 9269, German page 8880), and METTGENBERG (Transer. English page 6313, German page 6124) and from the Affidavit METTERN (Exh. Klemm 60), that his vote had no greater weight than the note of the others. How small KLEMM's influence on THIERACK was in such reports, is illustrated by the contempt which, according to METTGENBERG's statement (Tr. Engl. p. - , German page 61241) he showed towards his collaborators at such a report. If a causative responsibility for THIERACK's decisions could be considered, then literally every member of the Reich Ministry of Justice, who ever took part in such a report, was indeed equally responsible. The report lists (Exh. 252) demonstrate, what a large number of persons would be concerned by this. KLEMM's position in the voting did not differ in the least from the position of these persons. His official position as under Secretary did not make any difference in this.
VIII. Finally the charge of the Prosecution, that KLEMM had participated in a distortion of existing laws, is unfounded. The Prosecution states that an increasing number of German laws were decreed not only in order to create confusion in legal conditions, but also in order to interpret arbitrarily already existing laws, so as to offer an opportunity to the National-Socialist leadership to destroy political adversaries. The Prosecution referred in particular to two documents in KLEMM's case which have still to be discussed. One is Exh. 437. It concerns a session, in which the various Ministries and the Party Chancellery discussed an order to be issued, concerning the simplification of the criminal procedure. If was only a meeting of the department at which KLEMM' as deputy of the Party Chancellery had no authority to give his definite consent.
It results from KLEMM's various statements, which arc quoted in the document, that he wanted to obtain a simplification of the complicated criminal procedure which was burdened with formalities, in order to economize time as well as employees in the then critical phase of the war. The document shows in detail KLEMM's real endeavor to find a synthesis between the necessity of finding simplified measures and the guarantee of a just procedure. The High Tribunal will at the examination of this document arrive at the opinion, that at this meeting KLEMM was led neither by problems of party politics nor by any desire for party influence, but only by considerations relating to the general principles and the policy of law. It results clearly already from the form in which KLEMM expressed bis suggestions that this was scientific discussion and not an attempt to carry through a party doctrine. The Prosecution believes to find in the discussion a particular offense by KLEMM's suggestion to abolish the decision by the judge on an order inflicting punishment issued by the police. In this case the Prosecution starts from an entirely mistaken supposition. It overestimates this police authority to punish which was carried over from the eighties of the 19th century. The fines of this police authority to punish amounted to 10 up to 20. -- RM. The order inflicting punishment was only applied in cases of minor traffic infractions. This institution does not even have the significance which corresponds in the United States with the decision of a magistrate, and which is incontestable. KlEMM only suggested to abolish the re-examination by a judge of such a police order, but not to cut off the possibility to appeal to the superior office. The procedure of re-examination by a judge was always much more expensive than the insignificant fine. It is impossible to find in these facts an important restriction of the right of the defense.