1.) Then the Einsatzkommando C 6, in strength of between 160 and 180 men, was formed in Schmiedeberg, the SS-Unterscharfuehrer Grimminger was assigned to this commando as export III, which means as the SD Intelligence officer, and the Defendant Graf was assigned to this Grimminger as a co-worker, Grimminger and Graf were instructed on their future tasks in the Einsatzkommando by the SD specialist in the staff of the Einsatzgruppe G, SS-Obersturmbannfuehrer Karl Hennicke. Hennicke expressly instructed the experts Grimminger and Graf, that they would have to deal only with the tasks of intelligence work and that any other activity was out of the question. Grimminger already died in early July 1941 in Lemberg, the first garrison of EK 6 on the russian territory. Graf was then the only SD - reporter of EK 6 at first. Upon his request, Graf was given an assistant later on because he could not cope alone with all the work which cropped up in his department. of SD export until, late July/early August 1942, except for some interruptions to which we shall have to come back later. From that date until ho was finally recalled in October 1942, Graf was only statistically a member of EK 6. In effect, he had been assigned during this time to the Commander of the Sipo and the SD in Stalino and had to assist there in the organization of a department III. then Leader III of Einsatzgruppe C, Graf, during the entire period of his membership in EK 6, exclusively worked as the SD-expert III, which means in making SD-reports. discussed so often that I need not discuss it any furhter. With regard to the details of Graf's activity it is sufficient to refer to his statements which he made as witness on his own behalf in direct examination.
ly by the evidence - is, that the Defendant Graf during his attachment to the Einsatzkommando 6, or even during his assignment with other offices was never engaged in executive matters. The Defendant Graf did not, have anything to do with political investigations of any kind, nor was he ever present at trials of arrested persons or at executions. Considering the conditions prevailing at the Einsatzkommando 6, SD specialist Graf could without any trouble stand completely aloof from executive affairs and confine himself to his own sphere of activity. transport to Germany was never one of the duties of the Einsatzgruppen, and the Defendant Graf had even less to do with it. The defendant Graf had just as little to do with the segregation of Russian Prisoners of war in the Camps. Kommando. The attempt to entrust him at the time of his assignment as commander of the Security Police and the SD in Stalino with the leadership of a Kommando came to nothing because of the firm refusal of the Defendant. Unterscharfuehrer. Apart from a few men of the Waffen-SS, assigned to the EK 6, Graf had the lowest rank in the entire kommando. After perhaps one year he was promoted to Scharfuehrer and after a few months shortly before his recall from the East the defendant Graf became Oberscharfuehrer. These ranks hold by him very exclusively noncommissioned officers' rank. At no time during his assignment was Graf an officer.
ted which could entitle the Prosecution to include the defendant Graf in such assertions as:
"All defendants, as officers or members of the staff of one or several Einsatzgruppen, or their subordinate units, committed murder, atrocities and other inhumane actions" or:
"The defendants were commanders and officers of special SS-Groups, etc.", or:
"Each man in the prisoner's dock occupied a responsible position or a command in a liquidation unit. Each of them presumed the right to decide about the fate of human beings and death was the intended consequence of his power and of the contempt with which he was filled this trial - as far as the person of the defendant Graf is concerned then it is the following premise contained in the Opening Statement: "We shall demonstrate in this trial that the rank and position of these defendants carried in themselves the authority and the duty to exercise control over their subordinates." is this : Neither by virtue of his rank nor by his position had the defendant Graf power over life and death of people; he could neither order nor carry out nor prevent shootings. nor instigator, nor abettor; he neither gave his approval for the commission of the crime in question, nor was he connected with any persons or agencies a iming to carry out those crimes. ed in the charge were committed. The Fuehrer decree which formed the basis for the shootings by the Einsatzgruppen of Jews, Commissars and Gypsies was not conveyed to the defendant Graf during his service with t he Einsatzkommando 6. Fuehrer Decree was only issued to the Group and Kommando Leaders, not to the sub-leaders and men.
Nor was the order passed on to the men and sub-leaders of Einsatzkommando 6 during the assignment. Not even during his visit to Einsatzkommando 6 in Kriwoj-Rog did Himmler speak of it to the men as he did when visiting Einsatzgruppe D. satzkommando 6 carried out arrests, interrogations and shootings. The defendant Graf credibly asserted that he never learned of the fact that shootings were carried out without previous. legal proceedings or that persons such as Jews, Commissars, etc, were shot only because they were Jews or Commissars, The fact that the defendant Graf actually thought that no conviction or execution took place in Einsatzkommando 6 without legal proceedings and without proof of guilt according to the generally valid laws of war can not become more evident than it does by the testimony of the female witness Reimers on 8 January 1948. Frau Reimers described how Graf once conceled a crying Ukrainian woman, whose husband had been reported and arrested on suspicion of sabotage, in the most kindly manner and assured the woman that her husband would surely return after the investigation if he were innocent.
May it please the Tribunal; defendant Graf's human behavior in this situation is not the behavior of a man who knew of the Fuehrer Decree or who even suspected that people were shot without trial and without proof of guilt. Nor does a man act that way who, to use the words of the Prosecution, presumed the right to decide the fate of people and who considers death to be the intended result of the power and contempt he was filled with. No man acts that way who does not have the deepest respect for life and liberty of another man and who does not have the most profound human compassions for the plight of his fellowmen.
Truth is not clad in golden resplendent raiment. It frequently bears the likeness of unlikelihood, It is more difficult to defend than a lie. It is not surprising therefore that the statements of the defendant Graf meet with scepticism and disbelief when they concern purely internal processes and when no testimonies or documents support the defendant. defendant that it is hard to believe that despite his comparatively long service with EK 6 and the daily contact with other members of the Kommando he had not observed anything of the mass shootings carried out by EK 6. A scrupulous and unbiased inquiry into the entire situation, however, cannot but lead to the conclusion that a doubt in the correctness of the defendant's statements does not appear justified from whatever angle one may look at it. almost 11/2 years. against this statement it must be pointed out that Graf served in EK 6 in Russia from the end of July 1941 till the end of July 1942, that is approximately 13 months. In the period between the end of July 1942 and the middle of October 1942, Graf was with the commander of the Security Police and the SD in Stalino. From the 13 months of Graf's service in EK 6 we must deduct, furthermore, his assignment to liaison leader Heyer, approximately from 20 July 1941, that is altogether about 5 weeks. Furthermore, we must deduct Graf's furlough from 20 December 1941 till 28 January 1942, which makes another 5 weeks, and finally, Graf's illness and subsequent sick-leave from end of Larch 1942 till about middle of June 1942, that is approximately 3 months. Thus, Graf's effective total service with Einsatzkommando 6, after a deduction of at least 5 months off the total of 13 months, shrinks to about 8 months. And during these 8 months his time was so taken up with the tasks in his sphere of work as not to leave him any time to bother about the affairs of other sections. As regards the assumption that the defendant Graf talked with other members of the Kommando about the occurrences in EK 6, it must be pointed out, in the first place, that apart from the assignment in Stalino, EK 6 was almost all the time on the move in an easterly direction, with only short stops at any one placed.
ful that its sections could be put up in different billets according to their sphere of work. It must not be overlooked that Kommando 6 was never billeted in any one place as a closed body, but always split up into 3 to 4 sub-kommandos. The sub-kommandos were in different places, often 200 and even more kilometers apart. All these facts go to prove that Graf could contact only a small proportion of the Kommando members, Those among them whom Graf met and who had anything to do with the executions were not too communicative and even less so in front of the defendant Graf.
The reason for this fact is to be found in the nature of things. From all the defendants and witnesses who somehow knew of the events, we have learned here in the witness stand, that the execution of the Fuehrer Decree caused a tremendous emotional strain to all the participants. It may be presumed as certain that those people felt the need to unburden their mind occasionally, in order to ease their spiritual trouble through a conversation with comrades who were in the same position. out it is equally certain, that all these people were very secretive toward outsiders, who had nothing to do with the executive, and who were not at all to be considered as full members, but, like the reporter Graf, so-called "paper soldiers." All this, one must consider in order to understand that Graf's claim, that he did not hear anything about mass executions of Jews, etc. by the Kommando during the period of his membership in EK 6, is entirely credible. the Prosecution, insofar they contain references by the activity of EK 6. The defendant Graf, who had nothing to do either with the shootings or with the reports relating to them, is not able to give any relevant information about the statements made in the documents about the activities of EK 6. We have repeatedly heard from other defendants, who had a certain amount of insight, that extreme caution was to be observed in regard to these reports. In this connection I want to point out myself the following facts which particularly struck me when perusing the documents. In the Report of Events of 6 March 1942 - it is Prosecution Doc, NO-3240, Exh. 80, in Doc. Book II C it is reported that the village of Gorlovka had been cleared of Jews by the EK 6. In two Reports of Events dated 10 April 1942, Doc. Book III A, Prosecution Doc. NO-3256, and 20 March 1942, Doc. Book III A, Prosecution Doc. NO-3234, Gorlovka is quoted as garrison of the SK 4b for the same period during which the EK 6. is said to have become operative there. Something must be wrong here. In the Report of Events of 25 February 1942, Prosecution Doc.
NO-3340, Exh. No. 22, Doc. Book I, after naming the EK 6, there is a report on actions in Dnjeprpetrovsk, which are said to have been carried out in January and February. But the EK 6 was no longer in that town and in that area since 12 November 1941. In this connection I refer to the Report of Events of 14 January 1942, in Doc. Book I, Prosecution Doc. NO-3279, Prosecution Exh. No. 21, and to the Report of Events of 16 January 1942, Prosecution Doc. NO-3405, Exh. No. 42, Doc. Book II A. In both documents, Stalino, more than 300 kilometers east of Dnjeprepetrovsk, is quoted as garrison of the EK 6 for the period in question, a fact which confirms the statement of defendant Graf. Hence, there is not much to be derived from the Reports of Events. These documents cannot be construed as evidence against the credibility of defendant Graf, all the lees so, because, according to the statement of witness Hart -the Kommando Chief of EK 6, Sturmbannfuehrer Mohr, ordered executions to be carried out only after detailed examinations of the facts. In this connection I also want to refer to the affidavit of Friedrich Moeller, submitted by me. prising that defendant Graf should not have even once have come to see a mass execution in the course of one of his journeys. In reply to this, the fact must be emphasized that in general these executions were carried out in remote places and, as far as possible, to the exclusion of the public. Therefore it would have been quite a coincidence if defendant Graf on his way had just chanced to meet an execution. If an event, which in itself is possible, could only have happened by chance, one may not assume that its actual happening was probable. The defendant Graf denies that he ever has been even witness of an execution. There is no shadow of a counter-evidence to this fact.
are not apt to create any justified doubt in the credibility of defendant Graf. It is the result of evidence that Graf neither can be considered as principal nor as accessory in the imputed crimes nor had any knowledge of the fact that these crimes were being committed. must essentially result from the evidence. 1 September 1939, of organizations which have been declared to be criminal by the International Military Tribunal and by paragraph 1 (d) of Article II of Control Council Law No. 10, namely the SD and the SS. securing of required manpower for tasks of special state and political importance (Emergency Service Regulation) of 15 October 1938, the defendant Graf was drafted for emergency service by the Landrat in Kempten who had jurisdiction over the defendant's place of residence, and was assigned to the SD-Aussenstelle in Kempten on a war supplementary status. The defendant Graf objected unsuccessfully to this drafting for emergency service at the SD section in Augsburg. later on he tried again and again to get away from the SD. When he was bold enough eventually to apply to the Wehrmacht direct to get enlisted, the only result was his transfer to Dueben and from there his assignment for Einsatzkommando 6 in Russia. Upon his return from the East the defendant was appointed in the late fall of 1942 as Deputy Chief of the SD branch in Kempten. In 1944 Graf took over the SD branch Kaufbeuren as Deputy Chief, Even after his return from his assignment in Russia he never gave up his endeavors to get released from the SD, but they proved until the end of the war just as unsuccessful, as they had been at the time he went to Dueben. Graf refused all invitations from his chiefs to join the SD organization.
Under his liability for emergency service Graf had been attached to the SD as a temporary employee during the war, and there was no change in his relations to the SD until the end of the war. It follows from these facts that Graf has never become a member of the SD. The defendant Graf was nothing else but an ordinary civil servant in the SD, and not a voluntary one at that, but compelled by an act of government authority. For this reason alone the defendant Graf cannot be classed as belonging to the SD organization which was declared criminal by the International Military Tribunal. I quote from the IMT judgment:
"The Security Police and the SD was a voluntary organization."
"The fact remains, however, that all members of the Security Police and SD joined the organization voluntarily under no other sanction than the desire to retain their positions as officials." never apply to the case of defendant Graf.
In Doc. Book V C the Prosecution has presented a legal expert's opinion as Doc. No. 5814, Exh. No. 212, declaring that the Emergency Service Decree of 15 October 1940 with its subsidiary regulations would not offer a legal basis for call-ups to the SS or the SD.
This expert's opinion expounds the private views of a judge pertaining to questions which do not come up for decision at all in this Tribunal, while disregarding altogether all questions under discussion in this trial. the basis of the Emergency Regulations concerning liability of service, anyone had ever been called up for the SD, and in particular whether the Defendant Graf was detached to the SD in this manners. This question has been clearly answered. And even if the opinion, cited, had been correct, this could in no way have sweetened the pill of bitterness that the Defendant Graf had to swallow, namely that of the actual notification for liability of emergency service and his later transfer to EK 6. That notifications concerning liability for emergency service for the SD were sent out, generally, by the competent authorities, according to the official notice of 8 July 1939, and that there hardly existed a possibility to wangle one's way out, e.g. to neglect to comply with the order, is clearly demonstrated by the affidavit of the former Government Councillor Dr. Holz submitted by Counsel for the Defense on behalf of the Defendant Radetzky.
That the defendant Graf had done everything in his power under the existing circumstances, to evade the order for liability to serve in the SD, has been clearly shown by the evidence. ly active in the SD, and neither that he did in fact possess any knowledge of the SD being used as an instrument for the achievement of criminal aims.
2.) Membership in the SS. became a member only in 1933. After having been ordered to join the SD on the basis of his liability for Emergency service he made application, in June 1940, for a renewal of membership in the SS having been urged to do so by his superior officers. Graf then became member of the Special Formation SD of the SS. To the general SS Graf had had no connections since 1936. Graf's re-entry into the Special SS-Formation SD was an inevitable consequence of his conscription for service with the SD. That is, he did not join it of his own free will. In any case, it has been established that Graf did no duty with the SS after 1 September 1939 and did not come at all into contact with the SS as such. On the other hand, his activity with the SD was entirely independent from his membership in the SS. Therefore it cannot be said that the SS had any authority of command over defendant Graf's actions. The Military Tribunal II acquitted in Case 4 versus Oswald Pohl and others, the defendant Volk of the charge of having been a member of the SS because it had not been established clearly enough if the SS had had exclusive authority of command over Volk's actions.
he is not guilty of crimes against humanity and war crimes. There is no basis to the supposition that he knew of the above-mentioned crimes committed by the SS. The correct personal behavior of the defendant speaks against this supposition. defendant Graf is neither guilty on Count III. Matthias Graf and for his release from custody.
THE PRESIDENT: when the Tribunal reconvenes at 1:45 we will hear the two witnesses which are still outstanding and then -
DR. BELZER: I can't understand.
THE PRESIDENT: It doesn't affect you anyway, Dr. Belzer; you are through. And then we understand that Dr. Koessl will be ready to deliver his final plea in the Schubert case.
The Tribunal will now be in recess until 1:45.
(A recess was taken until 1345 hours.)
11 Feb 1948_A_MSD_14&15_1_Gross (Hildesheimer) (The hearing reconvened at 1345 hours, 11 February 1948.)
THE MARSHAL: The Tribunal is again in session.
DR. HOCHWALD: If the Tribunal please, before the witness is called I respectfully move that the defendant Haensch may be placed in another seat in the defendants' box.
THE PRESIDENT: The defendant Ruehl will please take the third seat from the end - just exchange seats with Haensch. follows:
JUDGE SPREIGHT: Witness, raise your right hand and repeat after me: I swear by God, the Almighty and Omniscient. that I will speak the pure truth, and will withhold and add nothing."
(The witness repeated the oath.)
JUDGE SPREIGHT: You may be seated.
DR. KRAUSE for the defendant Haensch:
Your Honor, the witness Jauer has been named by the Defense. I would like, therefore, to stare with the direct examination of the witness.
THE PRESIDENT: We understood that you had submitted an affidavit.
DR. KRAUSE: Your Honor, the affidavit I shall not introudce after the witness has appeared here on the witness stand. I refer only to her statement she is making on the witness stand.
THE PRESIDENT: Will both counsel please come to the bench.
(Both counsel went to the bench and conferred with the Tribunal.) BY DR. KRAUSE:
A My name is Herta Jauer, Berlin-Zehlendorf. Teltower Damm 7.
Q When and where were you born?
11 Feb 1948_A_MSD_14&15_2_Gross (Hildesheimer)
Q What is your profession?
Q Do you have any special training for this profession?
Q What is your place of work at the moment?
A I am a dental assistant at the moment of Dr. Maennel.
Q When did you first start working with Dr. Maennel?
Q And what is the work at the moment, in detail?
Q Do you receive the patients?
Q Do you comply with telephone calls?
Q Are you a practical assistant to Dr. Maennel as far as the treatment is concerned?
Q And what at the correspondence and office work?
Q What does the correspondence comprise? has anything to do with correspondence or office work. been concluded?
Q Do you also deal with any letters, mail, and correspondence? practice? treatment about what has been done.
Q Do you also write down the date?
11 Feb 1948_A_MSD_14&15_3_Gross (Hildesheimer) afterwards? is being tr ated.
Q In what way do you make out the bills? invoices are made according to the time. or is it also taking place during the time the patient is there, or what time or you do that?
THE PRESIDENT: Just a moment, please. Now the witness did answer your question. Than you put a very leading question to her which is not permitted. BY DR. KRAUSE: over and the bill is paid? into another closet.
Q How long do you keep the index cards?
A Well, they are never thrown away. They are kept until they are full - they are kept as long as that. back?
Q How far back are the oldest index cards in your collection?
A Before the War. The index cards have been put in a certain place from as far back as 1933. card which has been introduced here as evidence so I can discuss it with the witness. (The card was handed to the witness.) Witness, I have here an index card in front of me which I am now going to 11 Feb 1948_A_MSD_14&15_4_Gross (Hildesheimer) show to you.
It boars the name of Dr. Haensch, Zehlendorf. Hartmannsweilerweg 16. Will you please look at this index card. Do you know this card?
Q Who made this particular entry on this index card?
Q Are all the entries your own? 1942.
Q Did you also make that entry?
Q Are you sure that it is your handwriting?
Q It strikes me. witness, that the handwriting on this index card isnot always the same. Can you give us an explanation concerning that?
A Well; it was written in a hurry at the time, sometimes one writes standing up or takes another fountain pen or any other pen, and the handwriting is not always the same.
Q How many patients did you deal with in one day?
AAbout 80 to 100 in those years. We had a tremendous lot to do in thos days.
Q Under the entry of 14 January 1942 you see a line. What does that line mean?
A You mean in the invoice or when the amount is mentioned?
Q Yes. Why did you make this line?
Q You say, that is addition then?
Q What has been added then?
11 Feb 1948_A_MSD_14&15_5_Gross (Hildesheimer)
Q Does that have anything to do with the making out of the invoice?
Q You say it is addition of the treatments. What actually did you add? You cannot very well..... the individual treatments, 1,2,3....
DR. HOCHWALD: If the Tribunal please, this is a leading question. The addition from the part of the defense counsel is unnecessary. He asked what did you add together - which is a complete question. He goes on to explain what she could not have done. is leading.
THE PRESIDENT: Please try to refrain from leading questions, counsel.
BY DR. KRAUSE: concluded on the 14th January 142. What does the further entry mean on the 7th of February, that is?
MR. HOCHWALD: If the Tribunal please, the prosecution does not recollect that the witness has made such a statement.
THE PRESIDENT: Now, the witness did not say that. Now, please don't lead the witness. You ask questions which will allow her to use her own discretion and her own judgment, her own recollection. BY DR. KRAUSE: why is the entry of 7 February not included in this edition? and therefore the addition line has been made where the treatment, or at least not the treatment was fin is lied, but that part of the treatment which is being paid for. then guarantee for the correctness and the accurateness of those entries whatever is entered on this card corresponds to the fact, that it is correct?
DR. KRAUSE: Thank you. BY MR. HOCHWALD: have executed an affidavit on the 27th of January 1948? me to hand you a copy?
Q Nevertheless, I would like to hand you a copy. You say in this affidavit that Dr. Haensch is known to you. How long do you know him?
A I have known Dr. Haensch only during the time of this treatment.
Q Where from do you recall his first name?
A That I do not know. If it is not entered in this card index, I am sure I have never asked for his first name.
Q But in your affidavit, you say, "Dr. Walter Haensch is known to me". Till you look now at the chart, does on the chart the first name appear. then his first name was "Walter"?
A Then it was put in at the attorney's, Dr. Kirsch, I have not paid attention to it, the lawyer Dr. Krisch, in Berlin-Zehlendorf, who actually made out the affidavit, then must have added the first name. not known to you?
Q It was not known to you?
Q Did you see Haensch after his treatment by Dr. Maennel had been finished in 1943?
Q Has somebody shown you a picture of his in thelast time?
Q Would you recall the defendant?
A That is very difficult to say. I am not sure. I don't know whether I would recognize the face after that many years.
Q Will you try? Look at the defendants.
cognize the face. I could not say.
Q So you do not recall him?
MR. HOCHWALD: If the Tribunal please, I wish that the defendant, Haensch, would show himself to the witness.
THE PRESIDENT: Well, if she doesn't recognize him, there is no point in showing him, then.
MR. HOCHWALD: I only want to know if she Will recognize him if he is shown to her. BY MR. HOCHWALD: your hand was found and who found it? because now we use new cards. The cards are now on the attick, aid there is only a small remainder of cards because one part of the cards was soiled and the remainder I put into the attick. remained?
A That is difficult to say. There are hundreds of them. There are certainly a few hundreds. one which is before you, if you know that?
A Well, there are private cards; they were on the writing desk and therefore they probably remained because those which I put down stairs in the card index box had all been thrown down and were soiled by the Russians. They have been destroyed. before you found among these hundreds of cards which have remained? put into large boxes in alphabetical order and therefore I could find it.