According to Inhibit 531, the Prosecution charges that KLEMM has committed a crime by collaborating in the order to assure the total war effort. This is also an impossible conception. This order was a blanket law and it contains penal regulations for offenders against numerous prohibitions which had to be issued by the highest Reich authorities for reasons of war requirements or occurring scarcities. It can hardly be contested that such regulations can and must be legally protected. The conditions prevailing in Germany at various times required a larger framework of the penal regulations, as the cases to be judged extended from an insignificant infriction of to the most severe crime.
The issuing of this cover law was considered afvisable by the legal authorities for a special reason. Those administrative offices which had issued orders or prohibitions on account of war conditions began to hand over persons who had not obeyed these instructions to the police, because there was no regular penal regulation for such cases. As however, in view of the instructions concerned, it was not a question of preventive police measures, but of the punishment of criminal offenses, the legal authorities had to create a, basis for court proceedings. This could only be done by issuing the necessary penal regulations, and in this way the police was to be prevented from acquiring a new and uncontrolled power. It was thus only a constitutional question which alone was decisive for decreeing this law. The Prosecution have not made any further accusation against Klemm in this respect. They cannot be made, either, in view of a comparison with the laws issued by Thierack and Klemm in Klemm Exh. 57 and 58. The Prosecution however, considers that my client ha.s further tampered with the law by interpreting regulations connected with practical penal procedure in an inhumane way. But Klemm has not been guilty of tampering with the law in that respect either. In particular Klemm is being accused of having participated in the application of the rule of analogy, of the measures influencing jurisdiction (Lenkungsmassnahmen) and in the issuing of the circulars to the judges, and thus of having advocated a distorted application of the law. Finally the Prosecution puts forward that Klemm was responsible for the infamous increase in severity in police interrogations. As far as the latter is concerned, the assumption of the prosecution is again based on misunderstood records. The police introduced more severe interrogations on their own initiative. The legal authorities had nothing to do with that and never approved of them. On the contrary, they instituted proceedings against such officials if they received- knowledge of such severer interrogations, basing them on the law concerning punishable assault while on official duty according to the provisions of the German penal code par.
340, 341 (Exh. Klemm 26). In order to provide the legal authorities with a possibility to take uniform and energetic steps against those police officials who had committed offenses in this respect, Klemm was given a special department during his activities in the Ministry prior to 1939. From an accumulation of different cases documentary material was to be procured in order to take stops with the higher authorities through the Reich Ministry of Justice for illegal practices of the police. This alone was the idea and purpose of the so-called Sonder-Referats (compare statement by Klemm, English Transcript page 4815, German page 4739, English page 5168 and the following pages, German page 5076 and the following pages).
Since the Government, ostensibly upon Himmler's influence - by a decree of 17 October 1939 - created a special jurisdiction for the Police- and SS-Forces (Klemm Exh. 29) judicial authorities, in the period following, were robbed of the possibility to have offenders of this kind punished by the courts, Judicial authorities however -- as has not been disproven before this Tribunal and as numerous witnesses have testified -- in so far as they were acting as judges -- did not use the confession of a defendant in criminal proceedings against him if indications were found that coercion or bodily ill--treatment had been instrumental in bringing about the confession. The Prosecution was not in a position to quote any case from which the contrary could have been deducted.
The Ministry of Justice, and thus also the defendant Klemm, had no particular influence whatsoever on the formulation of criminal proceedings. Whether individual judges gave the accused sufficient opportunity to defend themselves properly, could be charged only to the responsibility of the judge himself, in accordance with the regulations of procedure. The principles of procedure had been laid down for decades in the Code of Criminal Procedure and in the Judicature Act.
The simplifications necessitated by the war however, have always stressed an exhaustive defense of the accused. Furthermore it was the judge's duty to do everything in order to find out the material truth. This prerogative and duty of the judge had never been limited. Neither could the Ministry really find out whether, in some single case, these old established principles had been violated. The files submitted to it hardly ever contained anything concerning the method of procedure and the method of conducting the trial by the judge. Here the Ministry of Justice could only intervene if any faults were discovered by the supervising judges. It is therefore impossible to reproach the defendant Klemm if any judge did not heed the legal provisions in some single case.
THE PRESIDENT: The Tribunal will take five minutes' recess and then we will proceed, until 12:30 or thereabout, with your argument. I think that the interpreter is entitled to catch her breath.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: Besides, the legal institutions established in 1933, as for instance the application of analogy in penal law, the introduction of the Extraordinary flee, and the Petition for Nullification existed already a long time before Klemn became State Secretary. Even when viewed from the angle of legal degma and legal policy the principles justifying the introduced institutions cannot be contested. There is always a weak point in codified law which makes it difficult to either take the established facts of cases, occurring in every day life, into full consideration or to foresee them. Here Anglo-American law has an advantage in the judgment of cases. An evolution of law is gradually effected thereby, and new phenomena of crime can be dealt with without necessitating a tedious legislative procedure. In these proceedings the opportunity was often given to point out before the Tribunal that even in the dogmatics of German penal law efforts had already been made prior to 1933 to fit the constantly changing farts of life more effectually into penal law than was hitherto possible on account of the structure of German Law, by drawing up General Clauses to that effect.
If one disregards the observing phrases of a frank or Goebbels which were not adopted by the legal profession, and which every jurist could discern as being a mere profession, and which every jurist could discern as being a mere phrase, a same idea of legal policy in fixing the analogy of law cannot be denied (Compare Klemm Exh. 17, Mettgenberg Exh. 16, 17 and 23). The prosecution apparently was the victim of an error when, in quoting article 2 a of the Reich Criminal Code, they made it a, premise that only "Sound sentiment of the People" was to decide whether a penal law was to be applied analogically or not. A very grave error, found to this effect in the translation, has already been corrected. The law moreover demanded that an analogical application was possible only when the act proved to be punishable according to the underlying idea of a penal law and according to the Sound. Sentiment of the People. I am convinced that the root of all evil cannot be found in the concept "Sound Sentiment of the People either. No codified law can be applied without such a general clause, and the idea, inherent therein, complies with an old concept of German legal sentiment, my this nothing else was to be expressed than that a feeling for fairness had been passed dawn in Germany by those who thought fair and just. How the Reich ministry of Justice still wanted this to be interpreted in 1943 can clearly be seen from the Judge's letter of 1 October 1943 (Klemm Exh. 47). Not only science, but jurisprudence also has for a long time struggled with this problem, and the German Supreme Court for deciding legal matters, the "Reichsgericht" has repeatedly pointed out these limitations set up by the law (for details compare: Doc. Book Petersen No. 91 - 105, pages 64 - 94).
The defendant Klemm encountered this uniform method of administrartion of justice, existing already for years when he assumed the Office of State Secretary. No proof was brought against him that he increased the severity of this administration of justice in any form or that he endeavored to remove the limits set up by legislation or administration of justice. The same applies to the Extraordinary Flea and. to the Nullification Plea. These were filling a certain legal gap, caused by the fact that the judgments of the Special Courts, or the Appellate Courts and the People's Court -- insofar as they passed, judgment as Courts of First "Instance" -- could not be set aside by legal means. Justifying reasons may have existed - when these courts were instigated - for barring legal measures against judgments; the actual development proved however, that poor judgments were pronounced and legal errors were made by the officiating judges. Of course, in cases of wrong judgments, the but one-sided way of leniency was still open, whilst the unjust judgment still remained, and the one a against whom the judgment had been Passed, stayed branded after all. Finally, the grant of leniency was only possible when, although the judgment rendered was legally incontestible, the penal measures had been too harsh. For these reasons the Judicial Administration (Justizverwaltung), long before Klemm became State Secretary, had decided. (going by law outside of Germany and especially Austrian Law) to remedy this because the shortcomings of a court of first and last "Instance" outweighed the advantage formerly considered. (compare Mettgenberg, Exh. 31 and 32).
In regard to Klemm especially it was not claimed by the Prosecution that he sanctioned injustice and terror by means of these legal remedies. In the first place, the general claim by the Prosecution, that these legal measures had only or mostly been applied to the disadvantage of the condemmed, were refuted in the evidence. It clearly follows from many statements of witnesses and from documents that both legal institutions had been applied, to a large extent, in favor of the accused.
Court No. III, Case No. 3.
It is sufficient here out of the abundance of material to make reference to the Mettgenberg Exhibit 31, 32 and 44 as well as to the Rothenberg Document Book II, No. 170, page 142. Particularly from the Mettgenberg Exhibit 32 are obtained statistics that the plea for nullity in the period discussed in this article, in the greater number of cases has been put to the advantage of the sentenced man, and that the Senior Reich Public Prosecutor, as is seen especially clearly from the Mettgenberg Exhibit 44, only let himself be guided by legal stand-points. That this legal institute in itself cannot have been bad, as the witness for the Prosecution Behl believes it to be, is strikingly shown by the circumstance alone that the plea for nullity still exists now and is applied under the rule of the Control Council. (cf. Mettgenberg Exhibit 43).
Nothing has come to light to the effect that perhaps KLEMM tried, in using this legal assistance, to leave justice out of consideration in individual cases. It is to be particularly stressed with what foresight the use of this legal measure was observed in the Ministry. Cases where the Senior Reich Public Prosecutor at the People's Court or at the Reich Court of the Ministry of Justice was directly instructed without a hearing to take one of these legal measures, were extremely rare. Neither was the Ministry content with examining itself, but also obtained the opinions of other lawyers viz. that of the President of the Appellate Court of the district in which the sentence was passed and of the General Public Prosecutor. Only when there was a wide agreement of opinion was the Senior Reich Public Prosecutor now requested on his own initiative to enter upon the examination of the question as to whether the legal measure should be taken or not. The best evidence for this conscientious and thorough examination is the document introduced by this Prosecution itself (Exhibits 541 and 542.) In the predominant number of cases the Senior Reich Public Prosecutor expressed himself against any opposition of the sentence. The Ministry of Justice as a rule shared this attitude and Court No. III, Case No. 3.acquiesced to the sentences even when defects were revealed.
The Prosecution therefore remained absolutely indebted for the evidence which would show that the treatment pf these two legal measure served only to develop a justice of blood and terror.
Also the so-called guidance (Lenkung) proved, according to the evidence, not to be the fearful instrument with which the Ministry of Justice eliminated the independence of the judges and is supposed to have dictated the sentence from above. Also it is first of all to be mentioned here that the so-called guidance was no invention of KLEMM, There were indications from the Ministry of Justice which concern the co-operation of the judges and the Public Prosecutors and which found fault with the individual decisions of the judges, long before bis time (cf. Klemm Exhibit 56, Rothenburg Document Book III, No. 47 page 57). THIERACK introduced judges' letters in the year 1942 Only one single one, the judges' letter submitted by the Prosecution, falls in the time when KLEMM was Under secretary of State. His part in the guidance measures in question is therefore to be described from the very beginning as very moderate and is also to be justified from the point view of subject matter.
It is to be seen quite clearly from the affidavit of the witness SCHMIDT*LEICHNER (Klemm Exhibit 42) that the judges' letters aimed at neither an illegal pressure on the administration of justice nor a strong attack on the independence of the judges, and were not able to have this effect at all (cf. Exhibit Klemm 51 and the statements of the judges interrogated as witnesses). The one judges' letter which, before its publication, Klemm also submitted (Exh. 86), shows, in my opinion, a thorough and careful consideration of the legal question, the question as to the facts of the case and the question as to what punishment was suitable. It is significant that just the treatment of the subject of too harsh a policy on the part of the courts claims no small space in this exhibit 36. But according to the statement of the witness SCHMIDT-LEICHNER (Klemm Exhibit 42), THIERACK alone made out the Court No. III, Case No. 3.judges' letters in their final form and he allowed himself to discuss it with no one as to the subject matter nor even as to the phraseology.
The two directing letters to the Presidents of the Appellate Courts at Stuttgart and Hamburg (Exhibit 178 and 474) as the witnesses KUESTER (English Protocoll page 8198, German transcript page 7860), and STUBER (English Protokoll page 8393, German transcript page 8051) have testified, had numerous fore-runners. Moreover the sphere of undermining, with which the two letters were concerned, came under the jurisdiction of a Special Branch. From the statement of the witness FRANKE (English Protocoll page 9266, German transcript page 8877) and Exhibit 97 it is seen that a growing importance was attributed to the undermining in Reich territory as early as 1943. Exhibit 100 contains the experiences which were gained in the year 1943, that is before KLEMM's entry into the Ministry. It is impossible to maintain that KLEMM's work in this sphere contributed towards the support of National Socialist despotism, that it was necessary for this purpose. I beg the High Court in particular to consider the fact that in the case of these offenses, to bring it down to a brief formula, it was a question of mutiny at a time when the people were battling against their enemy on the outside. The form of the regime plays no part in that. No state can afford to tolerate inside enemies. Things cannot be looked at so one-sidedly as the Prosecution believes it must do.
The material for the two guidance letters, according to the evidence before us, was collected in the Branch administered by the witness FRANKE. The individual cases were then expounded by Franke, and the minister then decided in which case it must be pointed out that the offender has been given too mild a punishment. It has been clearly established that KLEMM signed the two letters on THIERACK's instructions, since the decision can only have been put on the latter. Therefore there can be no talk of KLEMM having possibly tried of his own free will to impose a harsher conception on the judges. The cases were only picked out because they did not agree with the jurisdiction which was Court No. III, Case No. 3.otherwise uniform in Reich territory.
The witnesses KUESTER (English Protocoll page 8198, German transcript page 7859) and STUBER (English Protocoll page 8394, German transcript page 8051) as well as the affidavit of BACMEISTER, Rothenburg Document II No, 23 page 16) have confirmed KLEMM's manifestations in the witness box, that the sentences of the Appellate Courts at Stuttgart and Hamburg in these matters of undermining lay below the average of the rest of the Appellate Courts in the Reich. From each letter itself it is seen further that an aggravation of the sentence is not desired purely without reason but it was actually a matter of uniformity and agreement in practice. The judges, concerned by the guidance letters, themselves, the witnesses KUESTER (English Protocoll page 7860, German transcript page 8199) and STUBER (English protocoll page 8394, German transcript page 8051), likewise declared that they did not feel that their independence as judges was attacked. The same is true of Cuhorst. They even went further and declared that they did not once feel moved to pronounce severer punishments in the future. None of the guidance letters during the time when KLEMM was State Secretary, led to any disciplinary measure being taken against these judges.
The so-called direction of the administration of justice concerned only the case and not the person of the judge It ought therefore to be made clear that the judge's independence was not to be destroyed, and according to the statements of the witnesses this result could not have been aimed at either.
In closing I still have to point out in this connection an error on the part of the Prosecution. In their opening speech they asserted that the directing letters had had the exaction of the death penalty as their aim.
And I now interpolate: In its final plea the Prosecution asserted that it was the aim of the guidance discussion to ask for the death sentence, They were introduced under the name of "Exterminating." The letters themselves, however, show that in all cases it was only Court No. III, Case No. 3.a matter of sentences of imprisonment and censure is passed because a more severe penalty would have been suitable.
In no case was there talk of the necessity of passing sentence of death. Furthermore, it is not stated that the Chief Reich Public Prosecutor at the People's Court was directed to enter the special objection with regard to sentences of imprisonment. It is only pointed out that this ought to be examined by him. As a matter of fact, the extraordinary objection was not entered in any of the cases mentioned in the guidance letters. There is therefore nothing to be discovered in any respect which could be identified with a crime against humanity.
XI. The Indictment made no accusation against my client that he had supported illegalities where civil cases were concerned. During its hearing of witnesses, however, the Prosecution submitted documents Exh. 452, 453, 457, 460 with which they associated KLEMM. The latter adopted his attitude to all these documents as witness in his own case. (English protocol p. 5074 onwards, German transcript p. 4986 onwards). All doubtful questions were therewith cleared up and it only remains to repeat something in this respect.
The Prosecutor also submitted Exh. 348 against my client, a circular of HIMMLER'S concerning the removal of posters, in which Jews had been forbidden entrance to places of business and hotels. In this circular it was alleged that such indications were no longer necessary as there were no longer any Jews resident in the Reich territory. The Prosecution wishes, probably, to draw the far-reaching conclusion from this, that KLEMM knew already at that time of the extermination of the Jews and of the conditions in the concentration camps. I must refrain from going into general details concerning the actual knowledge of the general public in Germany at that time, concerning the fate of the Jews and the conditions in the concentration camps. I should only like to point out that the witness FRITZSCHE into whose ministry all news converged about which the German public was informed - and the officials of the ministry knew no more - gave detailed Court No. III, Case No. 3, demonstrations as to the cunning methods of secrecy under which the highest leaders of the Reich concealed their crimes (English protocol page 5208, German transcript Page 51l4 onwards), also in this connection (KLEMM Exh.
15) and affidavit MORGAN (PETERSEN document No. 107 and No. 111). It is not shown by any one of the documents submitted by the Prosecution that KLEMM heard anything more about the true fate of the Jews than the other officials in the Administration of Justice. KLEMM described in the witness box what he knew of the conditions in Theresienstadt (English protocol p......., German transcript p. 4931, English protocol p. 5181, German transcript p. 5089, English protocol p. 5194, German transcript p. 5100). He learnt less in his short visit to LEITMERITZ than, for instance, the witness MIETHSAM, who was active for months in LEITMERITZ in the vicinity of Theresienstadt (English protocol page 4880, German p. 4805). The Prosecution leveled no reproaches at these witnesses in this respect. I also refer you to the depositions of the witness HARTMANN in this connection (English protocol p. 9051, German transcript p. 8670). Neither had KLEMM received any knowledge of the measures for evacuating the Jews in Holland, especially of the proceedings which have been reproduced in Exhibit 605 and onwards (cf. deposition KLEMM English protocol p. 9383 onwards, German transcript p. 9868 onwards). Like millions of other Germans and by reason of the distorted methods of propaganda he was free to believe indeed that the Jews were isolated towards the East, in special towns, but he did not know that the intention was to exterminate them and that to a large extent they had actually been exterminated. Such deductions can never be made in KLEMM's disfavour from the exhibits. As I have already mentioned above, KLEMM cannot be brought into any sort of association with measures taken against the Jews by any offices whatsoever. Only that would be of relevance to the Court...
At the end of my statement I wish to go into further detail concerning a single point which is of importance in judging KLEMM as a person.
Court No. III, Case No. 3.
The Prosecution has confronted my client with a speech which he delivered in Weimar on 3 and 14. February 1944. In this speech, KLEMM stated that he had, when taking over the post of State Secretary, no program of his own, considering himself rather the first aide of the minister (Tr. p. 5157 of the English text, p. 5065 of the German version). It appears that the Prosecution means to infer from this that KLEMM thereby publicly professed to be an adherent of THIERACK's policy and acts. The statement as such is not to be considered particularly significant. It was in line with his standing within the bureaucratic structure of the ministry (cf. JOEL Doc. Book I No, 1, quotation of article 52 a of the standing orders of procedure within the Reich ministries). Still, the words used by KLEMM have a certain special implication, and this is the only reason for dealing with them at this juncture. They concern his relationship to the party and ought not to be taken out of this context. As a matter of fact, KLEMM protested against the insinuation that he had been transferred to the Reich Ministry of Justice as an expoment of the party, a rumor which the witness ALTMEYER, too, thought fit to mention in this court. It was this assumption which KLEMM wanted to keep at a distance. In fact, he hereby kept the party and her tendency for total power at a distance. It implies, therefore, a profession of the conception that justice was not to be directed by the party, which rather speaks in KLEMM's favor and was even courageous. It is the profession of a policy of justice in the sense of a state ruled by law. And the evidence clearly shows that such a profession was in line with KLEMM's attitude. The witness HARTMANN also gave an illuminating description of how KLEMM managed, after taking office as State Secretary, to amend the ways of rumor mongers in the ministry. (cf. HARTMANN, Tr. p. 9022 of the English and p. 8641 pp. of the German version). The affidavits of KLOPPER (KLEMM Exh. 34), ENCKE (KLEMM exh. 35) and MUELLER (KLEMM Exh. 36) also show in detail that KLEMM, when serving at the Chancellery of the Party, considered himself a representative of the administration of Justice and upheld its interests when conflicting with Court No. III, Case No. 3.those of the party.
The proceedings before this court of justice have destroyed the legend that KLEMM was an exponent of the party. The assumptions of the prosecution -- which completely misunderstands KLEMM's activities in the Party Chancellery and which holds him responsible for matters quite outside of the scope of his activities in the justice group III c, have been proved to be absolutely wrong.
It is true that he has - as FRANKE has correctly put it "exploited" his connections with the Chancellery of the Party. (Deposition FRANKE, Tr. p. 9275 of the English and p. 8856 of the German version). He did exploit them but for the purpose of further protecting the administration of justice and law from party interference. Whenever difficulties arose with the Party Chancellery, KLEMM was approached, and he succeeded in many cases in safeguarding the interests of justice by personal negotiations. The deposition of the witness MIETHSAM is important in this connection. He stated that KLEMM used his influence in favor of an objective personnel policy (Tr. p. 4882 of the English and 4806 of the German version). In this respect, I may also refer to the deposition of the witness STAGEL (KLEMM Exh. 61), and particularly to that of WILLERS (KLEMM Exh. 59), furthermore to those of WILKERLING (KLEMM Exh. 59), KRIEGEL (KLEMM Exh. 63 a), BRUNO (KLEMM Exh. 63 b), and FROBOESE (KLEMM Exh. 12). This very large number of depositions shows that this was not a question of isolated cases, rather it proves the persistent endeavors of KLEMM. How far KLEMM was from being abjectly obedient to the party, can be seen most clearly in that of his fields of activity in which he did most of his practical work, namely the department II of the Ministry, which dealt with the question of the new generation of the legal personnel. The statement of the witness WOGATZKY (KLEMM Exh. 75) discloses unambiguously that during the period, in which KLEMM headed the department, party training and party education were not stressed. Similar to his attitude on this subject, he also considered efficiency, rather than party membership, when dealing with personnel policy, a field in which THIERACK left him Court No. III, Case No. 3.in independent charge.
Apart from KLEMM's own deposition on this subject, I may refer to the suggestions made by him on these subjects in the meeting of department heads on 3 March 1944 (Exh. 45). His personnel policy was in contradiction to that of the party and of THIERACK.
This by itself is sufficient to refute the conception that KLEMM could have been the "confidant" of BORMANN. The rumor monger ALTMEYER is the only person who believes in this assumption. Those witnesses who really had inside knowledge such as KLOPPER (KLEMM Exh. 34), .ENCKE (KLEMM Exh. 35) and MUELLER (KLEMM Exh. 36) hare stated that, the relationship between the two was merely official in character and that they did not have private intercourse with, and did not like, each other. HARTMANN - who was better informed than anybody else on the relationships of KLEMM, when State Secretary, to other persons, was in a position to point out that the two men never met and neither were any letters ever exchanged between them. (Tr. p 9041 English, pp. 8661 pp. German version).
Similarly, with regard to the relationship between KLEMM and THIERACK it is again the witness ALTMEYER, who alone sees them in a suspicious light, not having been able, though, to produce any real facts as a basis for the conclusions he allegedly reached even at that time. For a long time, an official relationship had in fact existed between the two men. But the difference of their characters alone prevented any intimacy and any agreement in decisive questions. Those witnesses who had known KLEMM closely knew him as a man imbued with the feeling of good comradeship, given to emotion and open to reasoning. THIERACK's character has been rightly described unfavorably by all persons who have commented on him before this court. The witness HARTMANN, who was KLEMM's aide and who had, in this capacity, real inside knowledge of personal factors, gave us a description of them as they really were: he said that the difference of temperament led to tensions and disagreements between the two, and that KLEMM was not a willing tool of THIERACK. (cf. deposition HARTMANN, Tr. Engl, p. 9041, German p. 8661 pp.)
Court No. III, Case No. 3.
KLEMM's remark styling himself the first aide of THIERACK did, therefore, not mean a confirmation of THIERACK's attitude toward many questions, but it meant confirmation of the purpose to be an assistant in the service of justice, not the blind tool of a minister.
Your Honors, do pass judgment on KLEMM by the standard of his own actions. Don't allow your judgment to be darkened by the acts of a BORMANN and a THIERACK. Their deeds were not his. If the proceedings in this court have made this clear, my client may hope for a just sentence.
Based on the considerations stated above, it is my task to ask you to acquit KLEMM on all courts r
THE PRESIDENT: I should like to have counsel put on their earphones for a moment The agreement which was made with the approval of the Tribunal, and in which the spokesman for the defense participated and in which he stated that he agreed, was that a lump sum of time should be awarded to all of the defendants and that they would divide that time among themselves.
I wish to ask if any agreement has been made for the division of time.
DR. SCHILF: Your Honor, we have worked it out exactly how long our pleas will take.
THE PRESIDENT: Are you up to schedule?
DR. SCHILF: I hope so. I shall hear after lunch whether I have managed to stick to it but I should like to point out that the plea for my client Mettgenberg is very short and, therefore, I can save the time there that I spent on my other client, Klemm.
THE PRESIDENT: We are somewhat apprehensive lest an imposition might be created not only upon the Court but upon some of the later defendants. We have computed the period of time which can possibly be allowed and have added the extra time which we are consuming during noon hours and shorter recesses and it seems that there Court No. III, Case No. 3.may be a vary serious difficulty if the time is consumed by the first arguments and than the last defendants to argue the case come before the Court with a plea that they have not been given a full opportunity to argue their cases.
I again caution counsel to arrange their time so as to be fair to all of you. It is up to you, in accordance with the agreement which has been made and which was announced in open court.
We will recess until 1:30 this afternoon.)
(A recess was taken until 1330 hours.)
AFTERNOON SESSION The hearing reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Do you propose reading 82 pages to us?
DR. GRUBE: I propose, in the time available to me, to be able to finish, but before smarting with my final plea may I express two requests to your Honors?
I have two parts of my written final plea, independent of these statements, which I already submitted to the Tribunal some time ago in English translation and in duplication, and will you permit me to refrain from reading these two parts and to have them filed for the record?
THE PRESIDENT: They may be filed. The Tribunal will examine them.
DR. GRUBE: Apart from that, will you please permit me the following: In my final plea there are many references to items of the English transcript. Will you please permit me that I refrain from reading these portions of the transcript and that they also be incorporated and taken into the record?
THE PRESIDENT: That may be done. That involved a further problem which we have given some study to. Apparently some of the defense counsel wi.ll be making their arguments at a time before the translation of those arguments is available in English. In that event, I suggest that the interpreters be authorized again definitely, in the interest of the defendants, to check and revise their interpretations which are made in the booth against the translation when it is completed or against the electrical transcription so that the transcript of testimony will be more accurate than, perhaps, the original interpretation would be.
I assume that counsel for the Defense will desire that. If there is no objection they will be authorized to make suck corrections or revisions as may be necessary prior to the publication of the transcript.
You may proceed.
DR. GRUBE: In my case, however, the translation was already submitted as far as I know.
Mr. President, your Honors?
First requisite for answering the question, how far the defendant Lautz can be held responsible for the facts submitted to the Tribunal by the Prosecution is the determination of the fact what functions within the legal administration were assigned to him.
The prosecution at the beginning of the trial, has submitted to the court the "Information about the basic principles of German Justice". When presenting the indictment orally, the prosecution referred to that exhibition. (Tr. 37). Near the end of that information it is stated verbally: "Criminal prosecution in matters before the People's Court and the Special Courts as well as before the ordinary courts was the task of the Reich Chief Public Prosecutor. The defendant Lautz was Reich Chief Public Prosecutor."
The prosecution has obviously been under the impression that there has been only one Reich Public Prosecutor in the German Legal Administration and that he, as highest authority of the penal prosecution authorities, was a member of the Reich Ministry for Justice. This can be the only explanation for the fact, why the defendant Lautz has been charged in different counts of the indictment, directed exclusively against the Reich Ministry of Justice, with responsibility for these matters, together with employees of the Ministry.
The evidence has clearly shown that this conception of the prosecution is false.
Lautz, as Reich Chief Public Prosecutor, was the chief of the prosecuting authorities at the People's Court, from 1 July 1939 until Germany's defeat. In this capacity he neither belonged to the Reich Ministry of Justice, nor did he have any authority over the prosecution of other criminal courts, or over the penal institutions of the legal administration. His task was exclusively to introduce criminal prosecution in those cases for which the People's Court was the competent authority, as explained in my exhibits 23, 32 and 33.
Lautz was, as shown in my exhibits 154 and 155, neither the superior of the other prosecuting authorities nor was he entitled to issue directives to them. Not only the prosecution witnesses Behl and Brom, but also Lautz himself explained the situation to that effect. (Tr. 5790). That was in accordance with the laws prevailing until 1945. And that is also the reason the for the fact that the prosecution could not show any evidence which was suitable to connect Lautz with incidents which were beyond his jurisdiction.
I can save myself the trouble of discussing here all prosecution documents which refer in their content to the Reich Chief Public Prosecutor at the Reich Supreme Court. I have discussed them with the defendant Lautz during his interrogation as witness and may therefore refer to pages 5781 and following of the English record.
The defendant Lautz therefore had nothing to do with the criminal prosecution of other criminal courts, especially the Reich Supreme Court and the Special Courts, contrary to the conception of the prosecution, If the German Public Prosecutors could at all be hold co-responsible for the sentences of the courts, this responsibility, as far as the sentences which were pronounced by the People's Court and only following indictments submitted by Lautz.