V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 6)

The Special Court sentenced him to death as a public enemy, and added, that persons needed special protection during the black-out in order to retain the feeling of safety in the country for the people.

4. An 18-year-old culprit W., who had no previous convictions against him raped a soldier’s wife during the black-out in 1941. After having visited an inn, he accosted, about midnight while on the way home with his 19-year-old friend P., a young woman who was going home from work at that late hour. She rejected the men and said that her husband was a soldier at the front and that she wished to go home without being molested. W. hit a man, who was standing nearby and who witnessed the incident, several times in the face without cause. Then he dragged the woman into a lane, hit her, and raped her on a bench, breaking her resistance by pretending to have a revolver on him. P. was waiting nearby in the meantime but did not interfere.

The Special Court sentenced W. as a public enemy to death for rape. P. was convicted to 5 years’ imprisonment for aiding and abetting the criminal.

Opinion of the Reich Minister of Justice

At a time when the best men of the nation are risking their lives at the front, and the nation is untiringly working for victory, there is no room for criminals who destroy this will of the community. The lawyers therefore must realize that during the war it is their duty to exterminate the traitors and saboteurs on the home front. The law offers enough expedients for this. The home country is responsible to the front for peace, quiet, and order in the land. This high responsibility lies not least of all, in the hands of the judge. In principle, every crime counts more gravely in wartime than in peace. The special struggle, however, is against the “public enemies” a concept closely confined by the law. When a judge after careful examination of the punishable offense and of the personality of the accused decided that a criminal is to be considered a “public enemy,” this serious decision must also be expressed with full severity by the sentence. It is self-evident that a thief who steals goods and property from fellow citizens after the terror raids of our enemies deserves death only. But any other culprit too who commits crimes by taking advantage of the circumstances of war sides with the enemy. His faithless character and his challenge therefore deserve the severest penalties. This applies especially to the cowardly black-out criminal. “I do not want,” so the Fuehrer said, “a German woman who may go home from work at night time, to have to watch anxiously that no good-for-nothing or criminal will hurt her, for the soldier has the right to demand that his family, his wife, and his kin at home are protected.”

It can be said that the majority of the German judges have fully recognized the demands of the hour. The death sentence which was pronounced by the Special Court on the only 18-year-old criminal who raped a soldier’s defenseless wife, also meted out to the shirker who snatched handbags, justly puts the rights of the people in the foreground. There are, however, still cases in which personal consideration of the perpetrator is placed above the interests of the absolute protection of the community. This is shown by the comparison of the present judgments. The cunning handbag robbery at night by the previously convicted perpetrator and the twenty-one thefts of parcels by the 19-year-old worker are not justly punished with 2 and 4 years in the penitentiary. The decisive element here is not whether the taking of the handbag is legally to be considered theft or robbery—which, incidentally does not depend on whether it was carried loosely or pressed tightly to the body—or whether the sexual criminal has done any particular harm. The fact that in wartime he assaults in a cowardly and cunning manner a defenseless woman and that he endangers the security in the blacked-out streets puts him on a level with the traitor. The safeguarding of our community demands that in wartime in such cases punishment should serve, above all, as a deterrent. Here prevention is always better than cure. Every punishment of a “public enemy” which is too mild will sooner or later be detrimental to the community and carries with it the danger of disease-like spreading and gradual disintegration of our defense. It is always better, the judge exterminates such a bacillus in good time than having to face helplessly a contaminated multitude later on. In the fourth year of war the criminal must not gain the impression that the community relaxes in combating him; he must feel always anew that the German judge fights the internal enemy with the same determination as the soldier fights the external enemy on our fronts.

2. SEXUAL CRIMES COMMITTED AGAINST CHILDREN AND MINORS

Several Verdicts from the Year 1941–1942

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The Opinion of the Reich Minister of Justice

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3. APPLICATION FOR COFFEE RATIONS BY JEWS

Decision of a Local Court of 24 November 1941

In autumn 1940 a special coffee ration was distributed to the population of the town B. Among others a large number of Jews applied for this coffee ration which, however, they did not receive as they were excluded from the distribution per se. The food authorities saw in this conduct an offense against the distribution regulations and imposed fines on the Jews. Thereupon several hundred Jews appealed against them and asked for a court decision, so that about 500 identical cases were pending simultaneously with the local court in B. The judge informed the food authorities that in his opinion the imposing of fines could not be upheld for legal reasons—one of which was the statute of limitations—and recommended rescinding them. The food authorities did not share this legal opinion of the judge and refused to rescind the fines but suggested to the court that it mention only the point of limitation in case the fine should be set aside. Thereupon the court rescinded the fine in one case; the other cases were to be dealt with according to prescribed procedure and with reference to this decision.

This ruling, in seven sections and covering 20 pages, contains verbose interpretations of the factual and legal position. The introduction tries to justify in long tirades the length of the reasoning. Then it is set forth in detail that the Jews had been able to register with their grocers before the official announcement of the impending coffee distribution, since the distributors had been informed in advance by their respective economic groups. “The contrary interpretation on the part of the food authorities was absolutely incompatible with the established facts,” as the food authorities had “overlooked” various factors. After an entirely immaterial description of the attitude of the individual grocers toward the Jews after the announcement of the decree, the document deals in detail with the investigations undertaken by the food office. The ruling continues that the court had tried in vain to cause the public prosecutor to take over the pending cases and deal with them in the regular manner, but that it had also refused on the grounds that no punishable act had been committed by the Jews, or, at least, that it falls under the statute of limitations. After again dealing with the fruitless efforts of the court to have the food office withdraw the fines, a series of factual and legal questions are declared irrelevant, but nevertheless discussed in detail beforehand. The following nine pages of the ruling deal with the examination of the legal question whether the registration of the Jews must be regarded a punishable act according to the distribution regulations. They arrive at the conclusion that this is not the case and that it would be wrong to prove it “by means of an abstruse interpretation of the law.” The long interpretation culminates in the summarizing statement that the Jews had not committed a punishable act.

Opinion of the Reich Minister of Justice

The ruling of the local court, in form and content amounts to pilloring a German administrative authority by the Jews. The judge should have put himself the question: How will the Jews react to this 20-page-long ruling, which certifies that he and the 500 other Jews are right and that he won over a German authority without losing one word about the reaction of our own people to this insolent and arrogant conduct of the Jews. Even if the judge was convinced that the food office had arrived at a wrong judgment of the legal position, and if he could not make up his mind to wait with his decision until the question, if necessary, was clarified by the higher authorities, he should have chosen a form for his ruling which under any circumstances avoided harming the prestige of the food office and thus putting the Jew expressly in the right. The freedom from punishment for the unauthorized coffee registration was, even according to the law then in force, definitely doubtful. The fact that Jews were not entitled to a supply of genuine coffee was self-evident even if it was not specially mentioned in the official decree. Registration had taken place by presentation of a coupon of the ration card and by having this card stamped. If, considering the special circumstances of this case, this had been construed as an abuse of the right to draw rations, it could have resulted in an affirmation of the punishable character of their act. The impudent, provoking conduct of the Jews would have made it a “particularly serious case.” In this case an offense could legally have been assumed. To such an offense a longer statute of limitations would have applied.

A legal view of this kind on the part of the food office need not have been regarded as “untenable,” “fabricated,” or “abstruse.”

Apart from this it was not necessary to point out to the Jew that he was only one of many members of his race who also had complained. Just as superfluous was the information that the food office in the preceding negotiations had refused to withdraw the fines and that the local prosecutor, through its refusal to take up the case, had also shown its opposition to the food office. These points were irrelevant to the ruling. The Jew could perforce only gain the impression of a dissension between the various authorities. Instead of this a few sentences of the ruling, dealing merely with the statute of limitations, would have been sufficient if the judge denied the punishable character of the offense.

The voluminous argument of the case would not even have been necessary if the case had involved a German. The order of the Fuehrer in the decree of 21 March 1942 on the simplification of the law that “court rulings must be given in short and concise form and must be limited to the absolutely essential” was already a wartime necessity. The German fellow citizen does not expect verbose and learned statements from the judge. The various ancillary and incidental considerations which guide the judge in his decision do not interest him. He wants to be informed by a few easily understandable words on what grounds he was found right or wrong.

4. VIOLATION OF FOREIGN-EXCHANGE REGULATIONS BY A JEW

Verdict by a District Court of 26 May 1942

The defendant, a 36-year-old Jew, had in 1936 taken possession of his deceased father’s textile firm. In 1938 he emigrated to Holland. In 1941 he was arrested in Amsterdam.

The defendant is guilty of a number of cases of illicit dealings. His activities began when he, as the chief heir of his father, ostensibly renounced his inheritance in favor of his sister who was a foreigner with the intention of depriving the German foreign currency control of the entire domestic and foreign fortune; simultaneously he made an agreement with his sister that everything should remain as it was. From their holdings in a firm in Holland which, as a subterfuge, were transferred to a dummy, the Jew and his fiancee received about 100,000 Dutch guilders in 5 years, which were not offered to the Reich Bank. He also disposed of the proceeds from various houses without a permit. As for the Dutch firm, which was practically his own, he deceived the Reich Bank for several years by pretending that he had nothing to do with it, and that moreover it was in the red and unable to repay a loan. In doing so he cheated the German authorities by producing forged balance sheets. Finally, after the Aryanization of his firm, he tried to persuade the new owners, former employees of his, through reduction of his claim by 80,000 RM, to bring 40,000 RM across the border to Holland without a permit. When his property was registered as “Jewish property” the defendant concealed considerable assets. He defended himself mainly by asserting that all these offenses were only the continuation of his father’s violations of foreign currency regulations and that he was under the influence of his sister.

“For the reason given by the defendant” the district court did not find it a grave offense in the sense of article 42 of the Foreign Exchange Regulation of 4 February 1935, nor of article 69 of the Foreign Exchange Regulation of 12 December 1938. It sentenced the defendant to a total of 2 years’ imprisonment, making allowance for the pretrial detention and to a fine of 9000 RM.

The verdict, in the accompanying opinion, discusses first of all facts that might be extenuating and mentions that the defendant had not previously been convicted; he had acted under a certain coercion, owing both to his father’s doings and to his sister’s obstinacy. One offense by necessity led to the next. Through his confession he had considerably facilitated clearing up the facts. On the other hand, the long duration of his offenses, his fraudulent conduct toward the German authorities, and the requests he made of his former employees were cited as demanding a heavier punishment.

Opinion of the Reich Minister of Justice

The court applies the same criteria for imposing punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of different but of inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the meting out of punishment. Here, where a profiteering transaction typical of the defendant as Jew and to the disadvantage of the German people had to be judged, the verdict in awarding the punishment must take into consideration in the first place that the defendant had deprived the German people for years of considerable assets. He had, as innumerable members of his race have done before him, ruthlessly and for deliberate selfish reasons violated the most vital German interests by profiteering and fraud. He has abused Germany’s hospitality, which had enabled him and his father to pile up a huge fortune, and finally has not hesitated to instigate German men who depended on him economically to serious violations of foreign currency regulations, violations which endangered their very existence. From these general points of view of the German people the question had to be clarified whether this was a particularly serious case; it did not suffice here to rely solely on the rather unconvincing statements of the defendant himself, who could not have been under coercion for 4 years, but acted in his own interests and on his own initiative. This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment. The reflections of the Jew and his family, in this respect, are of very minor importance.

5. CONCEALMENT OF THE REQUIRED DESIGNATION AS JEW

Verdict of a Local Court of 24 April 1942

A Jewish proprietress of a boarding house had failed to apply for the addition of the surname Sara in the official telephone directory 1940 and 1941. The local court sentenced her to a fine of 30 RM, or an alternative of 10 days’ imprisonment. In the opinion it says: According to the ruling of the local court, Jewesses are obliged to add the name Sara to their names in the telephone directory. Therefore, the Jewess is to be fined. The reason for the mild sentence was the fact that sometimes individual judges had not ruled in conformity with the local court.

Opinion of the Reich Minister of Justice

The verdict contains no grounds for the sentence. The reference to a ruling of the district court does not free the judge from offering an opinion of its own; on the contrary, it rather gives the impression as if the judge had half-heartedly and reluctantly submitted to the authority of the district court. The verdict should give the essence of the grounds in a short and concise form. Here the essence is the following: when she registers in the official telephone directory, the defendant enters into general legal and commercial life as the proprietress of a boarding house. The registration in the telephone directory is in the nature of the subscriber’s visiting card for telephonic business relations. Application for change of name is therefore absolutely necessary in order to avoid mystification.

Moreover the grounds for awarding the punishment are not sufficiently set forth. The verdict must make a clear decision—if the court finds an action punishable, then it has to award the punishment appropriate for this action regardless of whether other courts have, because of incorrect deductions, acquitted the culprit. The idea that the defendant did not have to expect a sentence with certainty because the court rulings, owing to deviating verdicts, were not yet uniform does not justify leniency. The court which is lenient because of one single wrong judgment actually compromises with the defendant. But what she did was a typically Jewish camouflage in her business dealings. It is surprising that people are only gradually realizing this.

TRANSLATION OF DOCUMENT NG-315

PROSECUTION EXHIBIT 82

EXTRACTS FROM ISSUE NO. 3 OF THE JUDGES’ LETTERS, 1 DECEMBER 1942, SUMMARIZING TWO CASES AND GIVING IN EACH CASE THE OPINION OF THE REICH MINISTER OF JUSTICE

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13. FORGERY OF A TESTIMONIAL BY A CLERK

Judgment of a local court of November 1942

A 19-year-old, so far unpunished clerk, who had worked in a firm of machine tool makers wanted to be employed in a larger enterprise. For this purpose she made herself out a testimonial of her present firm in which she confirmed that she was efficient and able to cope with an “independent leading position.” She forged the signature of her chief by tracing it from the signature folder and copying it with ink. This brazen forgery was immediately discovered when the testimonial papers were submitted to the new firm, to which she had been referred by the labor office.

The prosecution sees in the action of the part of B. severe forgery of documents (pars. 267 and 268 of the Reich Criminal Code) on account of the fact that the forgery was committed for monetary gain. The proposed penalty was 2 months’ imprisonment and a fine of 30 reichsmarks.

The local court saw in this offense the given facts as contained in the former paragraph 363 of the Reich Criminal Code which provided imprisonment or a fine up to 150 reichsmarks for forgery of testimonials for the purpose of improvement of one’s position. As this ruling, however—this is what it says in the judgment—has been rescinded through the law of 4 September 1941 and has been substituted by the new paragraph 281 of the Reich Criminal Code (misuse of identity papers)—which however does not apply in this case as the testimonial is not a document of identification—the court has only to regard the action of B. either as a grave forgery of a document according to paragraphs 267 and 268 of the Reich Criminal Code or “again to apply the provision of paragraph 363 of the Reich Criminal Code despite its having been cancelled and to consider it still in existence in accordance with the sound sentiments of the people and in accordance with the will of the legislator insofar as the provisions of paragraph 281 of the Reich Criminal Code are not complied with.” The court assumed the alleged second possibility. “Working on the principle that nowadays the judge is no longer obliged to adhere slavishly to the exact letter of law, the court found the accused guilty of having forged a testimonial according to paragraph 363 of the Reich Criminal Code.”

The sentence was 3 weeks’ arrest.

On passing sentence the judge remarked that the convicted person may be placed on probation, which was later granted.

Opinion of the Reich Minister of Justice

It is correct that nowadays the judge should no longer have to adhere strictly to the letter of law in a slavish way. This freedom in applying the law should, however, not lead the judge to base judgment on a law, which the legislator has cancelled. Moreover, the manner in which paragraph 363 of the Reich Criminal Code is applied assumes a law which is still in existence. Paragraph 363 of the Reich Criminal Code was cancelled because particularly during the war it was no longer possible to counter all forgeries of certificates generally with the purpose of furthering one’s advancement merely by light contravention punishment. The many opportunities of changing one’s job frequently these days offer the temptation to facilitate this change of position through such forgeries of testimonials. Such temptation must therefore be countered by a threat of more severe penalty than was provided by the former paragraph 363.

This generally more severe measure applied to such cases does not, however, prevent from justly taking into consideration the particular circumstances of individual cases within the framework of now existing law codes, if the offense as in this instance is really a mild one. The judge sensed correctly that B.’s offense corresponded to the degree of guilt of the former paragraph 363. He could have provided for this also under existing laws.

B. is a yet young and inexperienced girl of whom one may assume that she was not entirely conscious of the extent of her deed. This impression is confirmed by the primitive means of the forgery. B. endeavored to leave her present firm in order again to work in a larger enterprise. For this reason she wished to make her recent activity appear to the best advantage. It cannot simply be assumed that she thought of a better paid position in doing so, especially as it is not so simple to secure such a position under wage scales in force at present. In consequence, it could be rejected that she sought a monetary gain. Thus only an ordinary document forgery could be dealt with in accordance with paragraph 267 of the Reich Criminal Code. As the penal code did not demand imprisonment, having regard to the special circumstances of this case, the judge could have imposed a fine according to paragraph 27b of the Reich Criminal Code.

The payment of this fine would have more forcibly brought home to the still young B. the antisocial action of this deed rather than an imprisonment, which the judge immediately postponed.

14. REFUSAL BY A SCHOOL CHILD TO GIVE THE GERMAN SALUTE

Decree by the Court of Guardians of 21 September 1940

An 11-year-old girl is conspicuous in school through continuously refusing the German salute. She bases this on her religious convictions and cites in explanation some passages from the Bible. In matters concerning the Fuehrer she appears altogether disinterested.

The parents, who also have a 6-year-old daughter, approve of this behavior of the child and obstinately decline to influence the child to the contrary. They also refuse to give the German salute and point to the passage in the Bible, “Do nothing with an upraised hand for it displeases the Lord.” They adhere to this in spite of advice by the court and the director of the school. The mother refuses altogether to discuss it with the child. The father is willing to do so, but says that the child should decide herself. The parents prove themselves to be adversaries of the National Socialist State also in other respects. They possess no swastika flag. They did not enter their child for the Hitler Youth: they were expelled from the National Socialist Public Welfare Association, because they will not support the collections, despite an adequate income of the man. Nevertheless they deny being adversaries of the movement. The juvenile board suggested that the parents should be deprived of the right to bring up the two children on account of their attitude.

The guardianship court refused to carry out this proposal and merely made an order for supervision by a probation officer.

In the explanation, the court stated that it had not been proved that the parents were adversaries of the National Socialist movement or that they really had fought against it; they were merely “not sympathetic to the movement and not willing to promote it.”

It was stated furthermore that “the parents are only in so far responsible for their attitude toward the National Socialist movement as they act contrary to the relevant penal laws.” The parents must realize that the children must be brought up in the National Socialist spirit and that the schools have instructions to educate them in that spirit. If the parents are not willing to bring up their children in that spirit themselves, or if they believe that their religious views do not allow them to bring up their children in that spirit, the least that must be demanded from them is not to oppose National Socialist education at school. Owing to the fact that the child is well brought up in other respects and that—judging from the court’s personal impression—the parents are “of absolutely reliable character,” it may be assumed that in future they will not give the school any trouble with respect to education.

The court of appeal rescinded the decision of the guardianship court and deprived the parents of the right to look after their children, as they are not fit to bring them up.

Opinion of the Reich Minister of Justice

The judge at the guardianship court in his decision misunderstood the principles of National Socialist education of youth.

Today, the education of German youth is based on the home, the school, and the Hitler Youth (law regarding the Hitler youth of 1 December 1936). They have to cooperate and each of them has to carry out that part of the educational task allotted to him by the community. The aim of this joint work consists in educating the young people in body, in mind, and morally in the National Socialist spirit for service to the nation and for the community.

This aim can be reached only by joint cooperation of the home, the school, and the Hitler Youth. Any opposition to and any deviation from this education endanger the common aim. An essential part of this education as well as a particular responsibility have been laid into the hands of the parents. They are united with the child by ties of blood. The child lives close to them and constantly looks to the habits and the example of the parents. To educate means to guide. To guide means to set an example by your way of life. The child models his way of life on the example of his parents. What the child hears and sees there, especially in early youth, it becomes accustomed to by degrees and accepts it as a rule of life. Therefore, the educational aim of the National Socialist State can only be achieved if the parents, conscientiously and aware of their responsibility, give their child in thought and deed a model example for its behavior in the community life of our nation. To this education of German man or woman belongs also the imparting of respect and awe for the symbols of the State and the movement at an early stage. Here, too, the community expects active cooperation on the part of the parents. A reserved neutral attitude is as harmful as attacking the National Socialist idea. Thus, indifference to the training of a patriotic member of the national community means neglect of duty on the part of the parents and endangers the educational aim for the child, even if this is not immediately apparent in each case. For this reason, it is not enough that in the present case the parents will not oppose the school in the future, they are supposed to cooperate actively in their children’s education as a whole. Thus, the responsibility of the parents does not start where its violation becomes punishable. The child is often being endangered if the parents consciously oppose the educational work of the community. That was the case here. Who continues to refuse the German salute on account of erroneous religious beliefs, who separates himself from the great social work of construction of national socialism without any reason, and who purposely withholds his children from the Hitler Youth and never takes advice, of him it can no longer be said that he merely “does not sympathize” with the movement and does not promote it. He attacks it by his opposition and is its adversary. This is proved by his convictions and by his inner attitude.

Thus, the judge of the guardianship court ought to have deprived them of the right to look after their children simply by consideration of the fact that parents, who openly profess the ideas of the “Jehovah’s Witnesses,” are not fit to educate their children in the spirit of national socialism.

TRANSLATION OF DOCUMENT NG-498

PROSECUTION EXHIBIT 93

LETTER FROM THIERACK TO PRESIDENTS OF VARIOUS DISTRICT COURTS OF APPEAL, 17 NOVEMBER 1942, CONCERNING MANNER OF ACQUAINTING JUDGES AND PROSECUTORS IN ALSACE, LORRAINE, AND LUXEMBOURG WITH THE JUDGES’ LETTERS

The Reich Minister of Justice

m Rb./34/42

Berlin W 8 17 November 1942

Wilhelmstrasse 65

Tel. 110044

Long distance: 116516

To the Presidents

of the District Courts of Appeal and the Attorneys General in Karlsruhe, Cologne, and Zweibruecken

Subject: Judges’ Letters.

May I ask you to make it a habit to give the judges and prosecutors in Alsace, Lorraine, and Luxembourg, too, an opportunity to acquaint themselves with the Judges’ Letters. In cases where judges and prosecutors are suspected of political unreliability, they are to be excluded in a suitable manner from the list of subscribers to the Judges’ Letters.

[Typed] [signed] Dr. Thierack

Certified:

[Signed] Beitz

Clerk

[Seal]

Reich Ministry of Justice

PARTIAL TRANSLATION OF KLEMM DOCUMENT 33

KLEMM DEFENSE EXHIBIT 33

ANNOUNCEMENT OF MARTIN BORMANN, PARTY CHANCELLERY CHIEF, 2 DECEMBER 1942, REQUESTING GAULEITER TO INFORM THE PARTY CHANCELLERY OF THEIR OPINIONS ON THE JUDGES’ LETTERS AND OF GOOD AND BAD VERDICTS[287]

p. 377 ff.

Judges’ Letters

R. 187/42

2 December 1942

Party Comrade Dr. Thierack, in his capacity as Reich Minister of Justice, appeals to all German judges and public prosecutors, by way of confidential Judges’ Letters, to bring German justice in line particularly with the political exigencies of justice. I will see to it that the Judges’ Letters are passed on to the Gauleiter, and I request them to give their opinions, where necessary, on all proposals and suggestions made by the Reich Minister of Justice in these Judges’ Letters.

Furthermore, I request the Gauleiter to inform the Party Chancellery of good and bad verdicts, as far as they come to their knowledge, and as far as they may be used in the Judges’ Letters. We will then discuss the relevant parts with the Reich Minister of Justice.

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TRANSLATION OF DOCUMENT NG-676

PROSECUTION EXHIBIT 178

LETTER FROM DEFENDANT KLEMM TO THE PRESIDENT OF THE STUTTGART COURT OF APPEAL, 5 JULY 1944, STATING SENTENCES IN THAT AREA WERE TOO LENIENT, PARTICULARLY IN CASES IN WHICH DEFENDANT CUHORST PRESIDED[288]

COPY

The Reich Ministry of Justice

IV secret I 5045/44

Berlin W 8, 5 July 1944

To the

President of the District Court of Appeal

(Oberlandesgerichtspraesidenten)

and to the Attorney General

in Stuttgart

Subject: Practice [Rechtsprechung] of the District Court of Appeal (Oberlandesgericht) Stuttgart in cases of defeatism

For some time now the practice of the criminal senate of the District Court of Appeal Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases the sentences are considerably too mild, they do not sufficiently bear in mind the thought of the protection of the people which must govern the punishment of defeatism, and are in an incompatible disproportion to the sentences which are in similar cases passed by the People’s Court and by other district courts of appeal. I would refer especially to the following sentences which lately attracted my attention:

1. Criminal case against Friedr. Linder—OJs. 205/43—, sentence of the 2d criminal senate of 7 January 1944 (President of the Senate Dr. Kiefer, District Court of Appeal Counsellor (Oberlandesgerichtsrat) Dr. Stuber, and Hegele, presiding officer of a chamber at the court of appeal (Landgerichtsdirektor)). You made a report under date of 28 April 1944 on this case on the sentence. In view of the danger and of the frequency of the statements made, I must maintain the interpretation already expressed in my decree of 15 March 1944—IV secret I 5045 b/44—that the defendant, a foreigner, deserved a severe sentence of penal servitude. I have therefore directed the files to the Chief Reich Prosecutor at the People’s Court to examine the question whether the extraordinary objection should be applied against the sentence.

2. Criminal case against Karl Unger—OJs. 203/43. Sentence of the 1st penal senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

The defendant is an old active Communist who apparently remained an activist also after the assumption of power and who has not given up his former opinions. His age and the illness, to which you refer in your statement of 17 May 1944, did not prevent him again to make malicious Communistic oral propaganda at an especially dangerous time. I must, in these circumstances, consider the sentence passed of 2 years’ penal servitude, as being much too mild. I have therefore directed this case also to the Reich Chief Prosecutor at the People’s Court.

3. Criminal case against August Jooss for aiding and abetting the enemy—OJs. 41/44—judgment of the 1st penal senate of 14 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn).

The foul defeatist statements made to the French civilian worker were dangerous to such a degree that even the mentally deficient defendant must have known about the consequences, and they show a frightening measure of lack of national dignity. The sentence passed of 2 years’ penal servitude must in these circumstances be described as inadequate.

4. Criminal case against Johann Kornmayer—OJs. 31/44. Sentence of the 1st penal senate of 24 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

The reasons aggravating the punishment which were appropriately stated in the sentence should have resulted in sentencing the defendant, an old Marxist, to a considerably higher sentence than 3 years’ penal servitude.

5. Criminal case against Paul Friebel—OJs. 32/44—sentence of the 1st penal senate of 4 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Hegele, and Oberlandesgerichtsrat Eckert).

The defendant spoke in an especially critical period, in favor of a capitulation after the Italian example. I cannot accept the sentence of 1 year’s prison term as a sufficient punishment.

6. Criminal case against Clothilde Radspieler—OJs. 26/44—sentence of the 2d senate of 9 March 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Payer).

The sentence passed of 1 year’s prison term is not in proportion with the particularly dangerous remarks made, even taking into account the mitigating reasons of the personality of the defendant.

7. Criminal case against Heinrich Brechtel—OJs. 221/43—sentence passed by the 1st penal senate on 24 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

There are considerable doubts about the negation of the inner facts of the case, the defeatism, in view of the political past of the defendant and the undisputable meaning of his remarks. In any case the sentence of 1 year’s prison term cannot be regarded as sufficient in the case of this old Marxist who saw a new light dawn after the fall of the Duce and who openly expressed his hostility towards the State.

8. Criminal case against August Meier—OJs. 14/44—sentence of the 1st penal senate of 26 April 1944 (President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).

In this case also the especially dangerous remarks of the defendant made to the wife of a soldier and to a soldier have been punished with a sentence of 1 year’s prison which sentence is in no way satisfactory. I intend, also in the cases 3 to 8, to submit the files to the Reich Chief Prosecutor at the People’s Court for examination of the question whether the extraordinary veto should be applied against the sentences passed.

9. Criminal case against Maximilian Seebacher—OJs. 196/43—judgment of the 2d penal senate of 10 February 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsrat Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

In the case of this defendant who, as a former Marxist, openly expressed his hope for an overthrow by violence, a severe penal servitude sentence would have been appropriate in place of the 2 years’ prison. In this case, however, for the reasons mentioned in your statement of 27 and 28 April 1944, I shall put aside my objections and refrain from further action.

10. Criminal case against Leo Graf—OJs. 22/44—judgment of the 1st senate of 22 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).

This defendant who had repeatedly propagated the abdication of the Fuehrer, would have deserved a considerably severer sentence than the 10 months of prison term passed. For the reasons stated by you, Attorney General, in your report of 8 May 1944, the sentence passed may, however, be accepted as just adequate.

11. Criminal case against Alois Baum—OJs. 22/43 of the 1st penal senate of 25 February 1944 (President of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, Oberlandesgerichtsrat Eckert).

This defendant, particularly as an old Party member, should have shown more self-discipline. The annoyance about his treatment at the post office was certainly not sufficient reason to make such foul defeatist remarks. In view of the danger of these remarks, the sentence of 2 years’ prison term demanded by the representative of the prosecution would at least have been appropriate. In view of the serious physical ailment of the defendant I shall, however, refrain from any further action.

12. Criminal case against Karl Peter—OJs. 28/44—sentence of the second penal senate of 18 April 1944 (President of the Senate Dr. Kiefer, Oberlandesgerichtsdirektor Dr. Sick, and Oberlandesgerichtsrat Dr. Stuber).

The sentence of 2 years’ penal servitude passed on this defendant appears to me precariously mild. Even if he be a mentally somewhat deficient boaster he has, in an attitude of hostility toward the State, continually incited others in an especially hateful manner. I shall, however, refrain from submitting the files to the Reich Chief Prosecutor.

At the meeting at Kochem I requested the President of the Senate to explain, in what manner in the fifth war year cases of defeatism should be tried. I believe that I may now expect that the District Court of Appeal (Oberlandesgericht) Stuttgart will also pass judgments accordingly. It is indispensable that you, President of the Oberlandesgericht and you, Attorney General, will in future direct your special attention to these criminal cases. I further request you, Attorney General, to report to me until further notice when submitting indictments for defeatism, what sentence you intend to demand in the main trial so that I may point out possible objections with regard to the measure of punishment.

As deputy

Certified: [Typed signature] Klemm

[Typed signature] Grundmann

First Judicial Secretary

PARTIAL TRANSLATION OF DOCUMENT NG-627

PROSECUTION EXHIBIT 474

(Also Rothenberger Document 73

Rothenberger Defense Exhibit 7)

LETTER OF DEFENDANT KLEMM TO THE PRESIDENT OF THE HAMBURG DISTRICT COURT OF APPEAL, 1 MARCH 1945, STATING THAT SENTENCES IN CASES OF “UNDERMINING THE MILITARY EFFICIENCY” OF GERMANY HAVE BEEN TOO LENIENT

The Reich Minister of Justice

IV g-23-3118/45

Berlin W 8, 1 March 1945

Wilhelmstrasse 65

Telephone: 41 00 44

Long distance 11 65 16

(Stamp)

Hanseatic District Court of Appeal

Received: 9 March 1945

To the President of the District Court of Appeal and the Attorney General in Hamburg

Subject: Too lenient sentences and sentences proposed by the prosecution in cases of undermining the military efficiency

I have observed for quite some time that the sentences passed and to some extent also the sentences proposed by the prosecution at the Hamburg District Court of Appeal in cases of undermining the military efficiency (offenses under par. 5, art. 1, No. 1, Extraordinary War Penal Ordinance) are dangerously lenient and below the Reich average. With unusual frequency I have had to decide therefore to propose extraordinary objection to sentences pronounced by the District Court of Appeal. Recent sentences submitted to me which appear to be too mild, cause me to draw your attention to the particularly lenient sentences passed in the following cases:

1. O. Js. 184/44 (IV g-23-3118/45) against Bastian u.T.[289]

*******

The judge in charge as well as the deputy of the attorney general must proceed from the fact that public undermining the military efficiency is punishable by death, according to article 5, paragraph 1 of the extraordinary war penal ordinance;[290] only in less serious cases may the death penalty be waived. Therefore, the death penalty has to be demanded not only if an especially serious case is under consideration, but an offense of average gravity is sufficient to render the provisions of article 5 of the ordinance applicable. Only those cases can be considered less serious, where the gravity of the offense is below average. The jurisdiction of the Reich Supreme Court has developed the principle that a less serious case can be considered as such only “if the facts of the case distinguish it fairly clearly from the usual type of the punishable act in question, in favor of the accused and if the over-all assessment of the circumstances, especially the offender’s personality and the circumstances which might have induced him to commit the offense, justify a deviation from the regular jurisdiction” [handwritten: “usual punishment”]. This principle also applies to cases of undermining the defensive power with the reservation that on account of the particular danger in wartime far less importance can be attributed to extenuating circumstances arising from the personality of the criminal than in connection with other crimes.

*******

It is justified that the sentences should go by the effect of the remarks. In some sentences remarks can be found like, “Serious harm has not resulted from his action.” I doubt whether in such cases the repercussions of the remarks have been followed up to the end. Their effect on the audience can be determined through their interrogation; however, it is difficult to determine whether this audience has passed on the remarks, and what impression they made on third and fourth persons. Reasons of this type are therefore only justified if extensive investigations with definite results have been instituted.

In the sentences cited above there are among the reasons for the award of punishment, statements about the personality of the offender, the extenuating consequences of which are doubtful, for instance—

“Especially hard life.”

“Uprooted by the Russian revolution.”

“Lets himself go frequently because of his rather surly nature.”

“He has been a good comrade.”

“People with a disorder of the stomach, as we know from experience, are inclined to be disgruntled.”

“He may have been annoyed about a certain phrase in the radio lecture in question.”

“He had to suffer under the Jewish boycott movement during his activities abroad.”

(That should rather be a reason for more severe punishment).

“The accused has been happily married to her husband, a veteran of the movement. She maintains she also got along very well with her husband as far as political matters were concerned.”

(That, too, in consideration of the grave utterances—OJs. 275/44—should not serve as an extenuating but as an aggravating reason, as on account of living together with a veteran of the movement, the woman should have been better educated than others in National Socialist sentiment and thought.)

Please discuss the sentences as well as my opinion about them in the proper way with the judges and public prosecutors in question, and see to it that in all cases of undermining the military efficiency the required severe punishment will be meted out in your area, too.

Acting

Klemm

Certified:

[Signed] Schreiber

Clerk

[Stamp]

Reich Ministry of Justice

Chancellery of the Minister

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[291]

DIRECT EXAMINATION

*******

Dr. Schilf (counsel for defendant Klemm): Now we have finished with the group of questions which concern the Party Chancellery. Now, we are coming to the last phase, that is, your work as Under Secretary of the Reich Ministry of Justice.[292] The Tribunal knows when you became Under Secretary. Now, I am asking you, did you, yourself, have any influence on your appointment to be Under Secretary in January 1944?

Defendant Klemm: No, I did not. During the last 3 months of 1943 I heard Thierack say to me that he was thinking it over whether he should propose me to be his Under Secretary; then, I heard nothing more. I only told the head of my department at the Party Chancellery about that remark of Thierack’s.

*******

Q. Mr. Klemm, we shall now discuss the subject of Judges’ Letters and also the so-called Guidance Letters [Lenkungsbriefe]. You know that the prosecution submitted a very extensive amount of evidence in regard to this subject.

First I want to ask you about the Judges’ Letters. In what manner did you participate in Judges’ Letters?

For the information of the Tribunal, I would like to cite the documents that are concerned with this question. They are Exhibits 81 through 86, 90, and 94 to 96 inclusive. The NG numbers are given on the list which I have submitted. Since the documents do not have to be discussed individually, I believe it is sufficient to refer to exhibit number.

Please answer my question, Mr. Klemm.

A. The Judges’ Letters had already been issued for more than a year at the time when I became Under Secretary. I cannot say anything about the history of their origin. My participation was limited to having a carbon copy of the finished Judges’ Letters submitted to me in draft form. Thierack was given a copy at the same time. When looking it over, I had to start from the point of view of not only the selection of the cases which had to be treated and the subjects, but also of the fundamental opinion of Thierack which had already been laid down by him in advance. Technical changes would have been of little avail, since Thierack looked at these drafts word for word and changed them considerably. He regarded the Judges’ Letters as his own exclusive province.

Moreover, of the letters which the prosecution has submitted here, I myself participated only in the Judges’ Letters, Document NG-321, Prosecution Exhibit 86.[293] All of the other letters date from the time prior to which I was Under Secretary.

Q. The prosecution regards the Judges’ Letters, from the point of view of their contents as well as their form, as an illegal pressure exercised on judges and jurisdiction at that time. It asserts that it was a serious intervention into the independence of judges. When you were concerned with the Judges’ Letters, did you consider that effect? Did you fear it, or did you support it, or did you see those matters from a different point of view than the prosecution asserts here?

A. I wish to say the following about that. The thought never occurred to me that the impression could be created at all which the prosecution today raises as a charge. The sentences were incorporated into the Judges’ Letters anonymously, that is to say, without stating the name of the court, without stating the name of the condemned person or even the name of the judge, or the time. Through that, it was intended to be emphasized, especially by this means, that the question of general interest and not the individual case was at stake, nor the praise or the blame of a judge. By the manner in which these matters were incorporated into the Judges’ Letters, in particular, the judge could not feel himself being addressed directly, as usually occurs in legal journals, in which these sentences are published in the legal press with the full naming of the court, the file number and the date, and then there usually follows the discussions of the opinion.

That the Judges’ Letters were confidential was not due to the fact that they had to be afraid of showing themselves in public, or that something that was incorrect was supposed to be covered up. The reason was rather the following; the truthful presentation of the case, and they were not hypothetical cases reported in the Judges’ Letters, but those which had actually occurred. Thus, I am saying that the truthful presentation of a case could not always keep the judicial decisions anonymous, but it was intended to avoid—also to the advantage of the person who was condemned—that he not all over again be exposed to public criticism. Furthermore, it was also intended to prevent that the public may learn of the wide and general criticism of one court by another.

The National Socialist press, in its total character, was exclusively hostile to the administration of justice, and the administration of justice in particular had to suffer the most unbelievable attacks in the Nazi press. The press would have jumped at these Judges’ Letters in order to criticize the administration of justice, and would have said, “The offices of the administration of justice themselves state how wrong the attitude of the administration of justice is.” Above all, however, it was intended to be avoided that the Judges’ Letters would be interpreted in an entirely wrong direction—that is, through the general public—in clemency pleas, that in a false lay comparison, by referring to Judges’ Letters, a claim for a pardon would be raised.

In addition to that, the Judges’ Letters were intended to be the basis for a friendly discussion between the highest authorities of the administration of justice and the individual judge. Judges and prosecutors were requested expressly—by the Judges’ Letters themselves—to address requests in regard to the Judges’ Letters directly to the Minister of Justice, and they were told that they were not forced to go through channels. Every judge and prosecutor was supposed to be a direct collaborator in these Judges’ Letters, and in this direct way letters reached the Ministry of Justice.

*******

Q. We can now interrupt the subject of the Judges’ Letters. May I inform the Tribunal I intend to submit more evidence in my document book in regard to this subject. Now we come to two so-called guidance letters which bear your name, Document NG-676, Prosecution Exhibit 178 and Document NG-627, Prosecution Exhibit 474.[294] These letters concern information issued by the Reich Minister of Justice which you signed as Thierack’s deputy. Witness, the first went to the president of the district court of appeals in Stuttgart. That is Exhibit 178. The second one is to the president of the district court of appeals in Hamburg. That is Exhibit 474. The contents of these documents show that undermining of military efficiency was the subject. The sentences by these courts of Stuttgart and Hamburg were criticized as being too lenient by the minister—that is by you—because they were signed by you as deputy. Please describe to the Tribunal how these two letters came about.

A. Undermining of military efficiency was regarded as particularly dangerous. The reason for it was the experiences which Germany had in 1918 when the German armies were far in enemy territory and through the failure at home sufferable peace was prevented. Therefore, undermining of military efficiency was already in 1939 introduced by law as a subject for penalty. Care was to be taken that the will for tenacity and the inner strength and hope and faith in a sufferable end of the war would be maintained. In view of the successes which the German Wehrmacht had the first years of this war and also during the middle of the war, we hardly heard anything about reverses at that time with the exception of Stalingrad. Thus, this crime never occurred. Only toward the end of the war when the military situation got worse, the prosecution had to send the indictment and the opinion to the Ministry of Justice. These matters were handled in the Referat, the department of Franke, in order to get a uniform picture of the jurisdiction. It was also important to pay attention to the fact that the penalties were uniform in the different districts of the Reich.

If it happened that in individual cases there were considerable misgivings against the legal evaluation or the extent of the penalty, the files were submitted to the Oberreichsanwalt, the Chief Reich Prosecutor, for review as to whether a further means of legal recourse was necessary. The misgivings, however, referred not only to sentences that were too lenient, but also to sentences that were too severe. Only in the latter case it was simpler. One could help by means of a clemency plea. I here have to insert that neither the minister nor I, myself, saw the opinions in cases in regard to the undermining of military efficiency with the exception of those cases in which the execution of a death sentence which had been issued was pronounced or cases in which the Referent or department chief requested the introduction of a legal recourse. A longer observation of the sentences in the Referat, or department, could then show that a certain district deviated from the generally recognized principles in its sentences, especially from the principles recognized by the Reich Supreme Court.

Presiding Judge Brand: Mr. Klemm, I think you fully explained the reasons why you desired to have uniformity. Now this particular exhibit indicates that in this particular instance you complained of sentences being too mild. You have explained the reasons which underlay your theory in the matter, and I think you have covered it sufficiently. We must avoid such continuous repetition, Mr. Schilf.

Dr. Schilf: Mr. Klemm, therefore let us go concretely to the contents of these two letters. How did it happen that these two letters as such were written? I believe it will be necessary to bore the Tribunal with that still because your name is under this letter.

Presiding Judge Brand: Counsel, you are not boring the Tribunal, nor is the witness. But we have the substance before us at this moment of these letters and you need not ask the witness what the substance of those letters were. We are here to try the case fairly and we don’t want counsel to worry about boring us, but we do want counsel to worry about undue explanations and too long explanations. Ask your next question.

Dr. Schilf: Please state the practical cause how these letters happened to be written. Due to the decision of the court, you do not have to discuss the contents any more.

Defendant Klemm: The method for writing such letters had already been established long before I entered the Ministry of Justice. If cases accumulated in one district, the president of the district court of appeal who was concerned received a letter so that in future cases a general just sentencing, as it happened in the entire Reich, would take place.

Presiding Judge Brand: Why did you write this particular letter? Just ask him why he wrote the particular letter shown in Exhibit 178.

Defendant Klemm: These cases had been collected in the Referat—in the Department—and then they were reported to the minister and the minister determined whether such a guidance letter was supposed to be written. In these two cases of Stuttgart and Hamburg, Franke and Vollmer, the department chief, reported to the minister about the jurisdiction exercised by these district courts of appeal and suggested to compile the most extreme cases and to call them to the attention of the presidents of the district courts of appeal. The minister approved of this suggestion and in addition to that determined that I had to sign these letters. That in these letters, the first person singular “I” was always used, is the accepted official style. To that extent I may refer to Exhibits 48, 94, 95, 96, and 99 in which simply Referenten and associates also write in the first person singular, although the letter bears the letterhead of the Reich Minister of Justice, and they sign it personally.

Dr. Schilf: Mr. Klemm, in regard to the two guidance letters to Hamburg and Stuttgart, were the judges who pronounced these sentences and who had aroused the disfavor of Thierack supposed to be called to account personally, or were measures supposed to be taken against them?

Defendant Klemm: That was not supposed to be done in any case. It would have been neither in accordance with the intentions of the Ministry nor was it the meaning of such a guidance. The president of the district court of appeals in Hamburg, who was requested at the end of the guidance letter to speak to the judges in the appropriate manner, that was what it says literally in the letter, could handle it directly. As the official superior, he did not use this letter at all; but within the framework of a community of work within the NS lawyers league, that is, on a purely comradeship basis and not as a superior, he spoke about these matters. Even less could the president of the district court of appeals in Stuttgart issue measures to the individual judges personally, or reproach them, because this letter was expressly addressed to him. At the end it says that “you, Mr. president of the district court of appeal should call direct and special attention to these problems.” There is also a circular letter by the Ministry of Justice which is known and which emphasizes again and again that the independence of the judges should not be touched.

Q. But in the Stuttgart case the names of the participating judges were listed. What was the purpose of that?

A. Of the twelve sentences which are mentioned in the Stuttgart letter, nine had been pronounced when different members were sitting in the court. For that very reason the names were listed to show that the issue was not the failure of one individual judge, but that the general jurisdiction of the district court of appeals of Stuttgart in matters of undermining military efficiency was not in accordance with the wishes of the Reich level and the needs of the time.

Q. In that connection the name of the codefendant Cuhorst is mentioned. Did you know at the time the then President Cuhorst?

A. No, his name did not mean anything to me.

Q. Did you know that the then Senate President Cuhorst was also president of the Special Court of Stuttgart; and, were the guidance letters supposed to criticize the jurisdiction of the Special Court at Stuttgart?

A. I did not know the jurisdiction of the Special Court of Stuttgart at all. That the same person was presiding judge of the Special Court and president of the senate of the district court of appeal was not known to me at the time.

*******

Q. One final question in that context. In the two so-called guidance letters, especially in the one to Stuttgart, mention is made of the fact that an extraordinary objection was supposed to be raised. Do you know anything about whether that was done?

A. The sentences were not sent to the Oberreichsanwalt with a request to raise the extraordinary objection, but with the instruction to examine whether it would be worthwhile to raise an extraordinary objection. In neither of those cases, neither in the guidance letter to Hamburg or to Stuttgart, the problem was the changing of prison sentences to death sentences, but the questions were merely prison terms and whether they should be increased but still remain prison sentences. Thus, the Oberreichsanwalt was not instructed to raise an extraordinary objection. As far as I know, at the time, the Oberreichsanwalt in the cases which were sent to him for examination refused to register an extraordinary objection; and, as far as I know, the minister was satisfied with those results of the examination.

Q. With that we have concluded the question of the Guidance Letters.

*******

c. Lawyers’ Letter Written by Thierack

PARTIAL TRANSLATION OF DOCUMENT NG-260[295]

PROSECUTION EXHIBIT 87

EXTRACTS FROM LAWYERS’ LETTER NO. 1 SIGNED BY REICH MINISTER OF JUSTICE THIERACK, 1 OCTOBER 1944

Lawyers’ Letters

Information of the Reich Minister of Justice

Confidential

Number 1, dated 1 October 1944

LAWYERS OF GERMANY

The German people, on the threshold of the sixth year of war, face tremendous war tasks.

The Fuehrer has ordered that all resources of the armed forces and armament industry be used to the utmost in order to master these problems.

In pursuance of these measures dictated by total war, the administration of law will also be curtailed and simplified to a great extent. The further mobilization of German lawyers into the armed forces and armament industry cannot be balanced only by curtailment and simplification. Above all it necessitates the utmost concentration of those elements which will have to carry on with our future administration of justice. Every lawyer who in the future will still be entrusted with his office must always be aware that the administration of German justice has, now more than ever, the direct duty of securing the frontiers and the waging of war, especially in view of the new tasks, which will arise through the increasing totalization of the war. Thus, the German lawyers have become the rear guard of the fighting forces. The complete concentration of all resources which this involves and which is expected especially from the senior members who take the place of their younger colleagues, presupposes unified direction and rigid execution of the work of all lawyers regardless whether they are judges, public prosecutors or attorneys.

In the hour, when our people have entered upon the decisive battle for its right to live, each lawyer must concentrate all his attention solely on this battle for freedom. Everything that does not directly serve this battle must now be put aside and everything that serves this struggle must be done with the least possible expenditure of time and work and in the simplest fashion. When the life of our people is at stake, all other individual interests must be pushed aside. For some time now there has no longer been any room for petty quarrels. Things which yesterday had some importance are perhaps quite unimportant today. Legal affairs not immediately connected with the war, must also be dealt with in the shortest and most economical way. The only aim of judges, public prosecutors, and lawyers is to preserve the life of our people.

The lawyer who is very often the first to deal with troubles and needs of his fellow countrymen is today entrusted with a particularly responsible task. Affairs which are not absolutely important in waging war, he must keep away from the law courts; however, legal cases of importance in respect to the war are to be dealt with quickly but not less conscientiously as the need of the hour demands. This task cannot be accomplished with good intentions only. Above all he must be thoroughly acquainted with the various plans and intentions of the administration of justice in the various branches of law.

I know that the lawyers are waiting for such a reorganization of their work and that such a regulation of the administration of justice will be welcomed especially by the conscientious members. Therefore, I have decided to introduce in these fateful hours, at a time of total war, a new chapter in our administration of justice by publishing the Lawyers’ Letters which are to supplement the Judges’ Letters, published two years ago.

These Lawyers’ Letters serve a double purpose. They are to inform lawyers of the aims of the administration of justice by means of publication of the verdicts of law courts in various branches of law, which are of importance in conducting the war, and they are to demonstrate the policy of the court in order to save unnecessary work in regard to remonstrances, complaints, or legal remedies of all kinds, for which there is no longer any room today. On the other hand they are to regulate the general relations of lawyers toward each other in their own profession, and also toward the judges and public prosecutors in order to develop close collaboration among all administrators of justice, and thus avoid future friction, complaints, or quarrels on this subject as far as possible in order to mobilize all forces for the actual legal work. The harder the times and the more stringent the restrictions, the closer cooperation should be among all administrators of justice in their common task.

Therefore, the Lawyers’ Letters, just as Judges’ Letters are to be a close link between the administrators of justice and its personnel; and thus, judges, public prosecutors, and lawyers are to be more closely connected by a general reorganization of their work. These are not orders, but signposts to help master the great tasks which lie ahead of us.

I expect that no German lawyer fails to recognize the seriousness of the hour and the magnitude of the task. I expect the complete mobilization of all resources for tasks that war puts before us, including our people’s struggle for freedom. I know that we shall win this battle, if we work together and fight like one man.

With this in mind, I hope these Lawyers’ Letters are a means of unifying and strengthening the fighting spirit of German lawyers.

The letters are not to remain mere words but should take shape in actions!

[Signed] Dr. Thierack

Berlin, 1 October 1944

Conduct of Lawyers in Penal Cases

1. The defense counsel selected by a citizen of the Protectorate who was sentenced to 12 years’ penal servitude and 10 years’ loss of civil rights directed a letter to his client in the penitentiary, wherein he held out the prospect of obtaining a mitigation of the sentence by means of a request for clemency. Among other things the letter states:

“Today I have a personal request. Of your own accord, you offered to recommend me to other well known Czech families, in which some members met with a similar fate. You also informed your wife of this offer at the last discussion we had together with her. Therefore, I wrote to Prague, but received the answer several times that likely clients needing defense counsel are not known. Had I been acquainted with this fact, I would have asked you during our many conferences to give me the addresses * * *.

“During the proceedings I was able to prove by many documents, that you are not at all hostile toward Germany but definitely pro-German. I also believe that you will find the right attitude toward the new Greater Germany after this difficult experience and wish you the best for the future.

“With the kindest regards and Heil Hitler!

“yours,

“signature”

2. An attorney defended a woman, who together with her sister was accused of keeping contact with prisoners of war which was forbidden. Both women were accused of having received French prisoners of war in their home, of having entertained them and exchanged caresses with them.

Among other things the defense counsel said in his final statement:

“We too, would be glad if kindness were shown to our German prisoners of war in foreign countries, and we do not consider those foreigners, who are kind to our German prisoners, liable to punishment.”

3. Several Czech businessmen had to vindicate themselves before a Special Court because of offenses against the penal order for protecting the rationing of consumer goods (receiving butter they were not entitled to). Their counsel said in his final plea,

“I feel impressed by these defendants who like true German men and good family fathers shouldered a responsibility which was really one for their wives.”

In order to show the pro-German attitude of a defendant, the defense counsel read parts of a speech which one of the defendants made on some occasion with regard to the aims of national socialism. He interrupted the reading and cried, “I could almost believe I hear my Fuehrer speak.”

4. A factory owner had obtained a great deal of food for the canteen of his factory from the black market and had used part of it for himself. Therefore, he was sentenced to 2½ years of penal servitude for violating regulations for war economy. In his plea the defense counsel pointed to the fact that the food was of benefit to the workers, and thus also armament and the armed forces. He finished his speech with the words—“And now, then, condemn the defendant!”

In answer to the reproach of the presiding judge he declared that he could formulate his plea in other words and demanded the acquittal of the defendant.

5. Counsel took charge of the defense of a woman shopkeeper, who had in several cases sold new bicycle tires and high tension batteries to customers without purchase certificates in exchange for butter, meat, sausage, and bacon. She was sentenced to 2 years’ imprisonment and a fine of 1,000 reichsmarks because of continued offenses against the penal order protecting the rationing of consumer goods and the prohibition of bartering.

The defense counsel said in his final speech:

“The defendant is not to be blamed for getting additional food in an illegal way. She is very corpulent and therefore surely needs more than other people. One need only look at that body to see that it needs a considerable amount of food. The food is insufficient even for normal persons. Reich Minister of Health Dr. Conti himself declared, that the food rations are not sufficient.”

The lawyer has repeatedly given cause for measures of controlling him because of his professional conduct. To date, 16 statements of objection and disapproval have been made against him because of insulting expressions to the court, to colleagues and parties, and because of charging of inadmissible special fees, etc.

6. A mother and her daughter were indicted by a Special Court because of offenses against paragraph 4 of the decree dealing with people violating the national emergency orders. The daughter as the head clerk of a firm had stolen a large number of food ration coupons and clothing cards and had given them to her mother. The latter loosened the coupons from the paper and kept them for future use. The food bought with those tickets was often served at their home parties.

In his final speech the defense counsel expressed himself somewhat in the following manner:

“The indicted daughter was the brain of the firm. The rooms expanded, the house expanded. According to that quotation it is but natural that the daughter has given parties and invited guests. The mother is a busy modest housewife, and both are ladies of good family. The fact that the mother loosened the coupons so neatly and guarded them so carefully shows her to be a good and orderly housewife, who proved her orderliness even in this work.”

The defense counsel came to the conclusion, that both women had earned the sympathy of the court and a reward for having confessed. Neither defendant, he finally said, did wrong; there is no criminal guilt.

7. A basket maker who was defended by a counsel was sentenced to 3 weeks’ imprisonment and 14 days’ detention for resistance against the police and for insulting and gross misconduct. In a drunken state he had tried to cross a train track at a point where it was forbidden to cross and was offensive toward railway officials who tried to prevent him from doing so. In town he had molested pedestrians and resisted arrest by the police. The court had sentenced him to imprisonment because the defendant had previously been punished at 4 different times for attacking superiors, and because prior to that he was sentenced to imprisonment for absence without leave while in the army.

His defense counsel petitioned for clemency, asking that the prison sentence be changed into a fine, and in so doing he pointed out that the defendant, who makes deliveries with his own team would be badly affected economically by the prison term; that he was released from the army because of imbecility and that, therefore, his offense was not so bad. He lodged a complaint against the refusal of the public prosecutor and in his argument he said, among other things, the following:

“The case was taken much too tragically. Under prevailing circumstances incidents which were punished with minor fines in peacetime are now often looked upon as capital offenses. This is due to the general nervousness by which the courts are undoubtedly influenced. However, this is only temporary just as the immense number of private charges. There is a lack of humor, preventing us to see these things at their true value.”

8. A woman was charged with insulting another woman. She had called out to the other woman who had shortly before lost one of her sons at the front: “They shot one of your boys, we hope they shoot the others, too.”

In his appeal the defense counsel said:

“Without intending to minimize the heinousness of her words, as they are stated in the indictment, the question of whether the expression is an insult must be examined. The expression contains—so it goes on to state—a malediction, a curse, and is certainly wounding to the feelings of a relative, particularly of a mother, very gravely, but thereby it does not amount to defamation. It is not an expression slighting a person, and therefore it is not an insult.”

The defense counsel adhered to this contention in his final speech although the president had pointed out to him that his standpoint about the punishable nature of the expression was not tenable.

When the insulted mother was questioned as a witness during the proceedings, she started to cry when the president asked her about her son, and took out two pictures of her son in uniform and showed them to the judge; whereupon the defense counsel declared that she was obviously hysterical. After being sharply rebuked by the president, the defense counsel answered in the same sharp way that he quite understood the grief of the woman, but he doubted the credibility of her words. The word “over-excited” was also used.

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Opinion of the Reich Minister of Justice

The problematic nature of the position of the attorney at law which rests upon the premise that the lawyer acts, on the one hand, on principle as the representative of an individual citizen who appoints and remunerates him, on the other hand, as an agent of administration of justice and lawyer of the community which has assigned him to and entrusts him with his function, has long been especially apparent in criminal jurisdiction. The evolution of civil right from the purely “private right” of the past—when the individual pursued his right more or less for his own sake—to the civic right of our time in which the citizen also administers his “private rights” as trustee of the community has indeed also changed and reformed the task and position of the lawyer. This modification did not, however, become so obvious because in their widest sense the pursuit of justice and the administration of justice in the domain of civil right still command, at least outwardly and notwithstanding the sway of the community’s influence, a form which does not make the dual position of the lawyer with its inward conflict of duties so conspicuously prominent as has always been the case in the domain of criminal jurisdiction. A penal suit according to our present idea of penal law is no longer a matter of two parties contending for their rights. Here, it is not a “private citizen,” threatened in his freedom, who disputes against a “juridical person” called the State opposed to him on a level of equality or against the State attorney before an independent judge for the rectification of a claim raised against him by the State, but a citizen who vindicates his conduct before the community and its leadership to which he owes loyalty and consideration, against the suspicion of breach of loyalty or of contempt. Here it is not rights of freedom which are fought for but social obligations which are assessed. Here it is not mere compliance with the law that is examined; it is the honest collaboration, the loyalty, and the worthiness or unworthiness of the personality of the individual citizen which are weighed and determined for the community. Here it is not so much a matter of the rights of the community with regard to the individual as they have been given it by the voice of the citizen, but rather that the individual has as many rights and obligations as the community has conferred and imposed upon him.

It is evident that such a viewpoint must involve far-reaching effects on the position and task of the lawyer as the criminal defense counsel, even if outwardly criminal procedure does not essentially differ in its form from the former criminal trial. As defense counsel, the lawyer has shifted closer to the State and community. He is incorporated into the community of the administrators of justice and has lost his former position as unilateral representative of the interests of the defendant. Whoever is not ready to accept this clearly and absolutely and is not prepared and able consistently to act accordingly ought not to don the robe of a German lawyer nor take a place at the defense counsel’s bench. Not only would he be at disagreement with himself, not only would he fall from one conflict into another, but he would also though often unconsciously do harm rather than service to the administration of justice and last but not least also compromise the reputation of those of his colleagues who think and act differently. It is obvious that as defense counsel the lawyer has found it so much more difficult than the judge and the public prosecutor to achieve this mental change. However, this must never convey the delusion that merely the thorough and successful striving to acquire this professional frame of mind and a thorough devotion to this professional aspiration clears the way to the fulfillment of the difficult as well as responsible and gratifying office of defense counsel. What the issues involved in the individual sphere by this altered role of the criminal defense counsel are, will often be discussed in these Judges’ Letters in the future. The fact remains, at all events, that the qualification of the lawyer as criminal defense counsel, for which the bar has now been fighting for over 10 years with varying success, will ultimately depend upon whether and to what extent it succeeds in its attempt to attain this new role not only ostensibly but also in a really moral sense and to unite nonetheless, this enhanced position of obligations towards the community with the obligations towards the individual citizens in such a way that the community gets its right while the individual citizen who entrusts himself to a lawyer is not abandoned or perhaps even betrayed.

That this struggle of the bar is to this day by no means ended is daily shown anew by incidents of professional routine, apart from the cases mentioned.

I know full well that many lawyers shrink before this struggle for their new adjustment which calls at the same time for an honest pledge, because they deem it to be disloyal to their clients and therefore keep aloof from penal cases.

My appeal is not meant for them. For whoever shuns moral obligations or does not have the strength to see the fight through could never indeed perform useful work as a criminal defense counsel.

However, the motives which have formerly induced and are still inducing many others to shun criminal cases are very diverse. There is no question here of those lawyers who from inclination or calling handle civil cases only, and who in this and other spheres as lawyers in economic cases, for instance, mostly in an exclusively advising and managing capacity perform the most valuable legal work without this ever becoming known to the courts or the public. Of these I do not wish to make criminal counsel for it would be entirely amiss to take them away from their important tasks and give them another one for which they feel no moral calling. Aside from this there is, however, quite a number of lawyers who decline to work on a criminal case because they generally consider criminal cases of secondary order because they are “less juristic.” One ought not to put questions of hierarchy of this sort between criminal law and civil law at all. The opinion that criminal jurisdiction and thereby also counsel for criminal cases are of secondary importance—which is occasionally expressed even today—can only be upheld by someone who interprets the concept “juristic” by abstract constructions and logic reasoning thus trying to maintain a concept “juristic” which has long been given up in civil law also.

Whoever realizes that law is of vast significance to the life of the community, conscious of the problem facing a lawyer in the serving of his nation and its ways of life, recognizing the high ethical value of such legal work, and measuring the importance of each individual case for the community, will not underestimate the defense of the life and freedom of a fellow citizen in a criminal case; but rather consider it more vital and important than the contesting of property rights or other legal questions which perhaps are of secondary concern to the community. And whoever has come to realize that a serious and responsible defense cannot be conducted nowadays, with the knowledge of a few sections of the penal code or even with rhetoric swing and an elegant appearance, but that in addition to this a profound knowledge of modern criminal law and the entire legal sphere is essential not to overlook criminal biology in its widest sense to which belongs above all an extensive understanding of politics, and intuition will agree that, nowadays, the defense counsel in his own “juridical value” does not occupy a secondary rank any more than the judge or prosecutor. On the contrary the best lawyers are barely good enough to be defense counsels or judges particularly when taking into consideration the vital importance of criminal law in wartime. Just as I fill the judges’ seats only with the best today—the same principle applies to civilian law as far as the judges in the divorce courts are concerned who similarly decide the fate of human beings—so only the best lawyers should be admitted as defense counsel.

The measures required for the mobilization of all forces for total war which must lead to further curtailment in the administration of justice will automatically cause some lawyers, hitherto engaged on civil cases only, now and again to occupy themselves with criminal cases, insofar as personnel shortage necessitates this. For these lawyers, more than for their colleagues (who up till now have been for the greater part, or exclusively working on penal cases), it is necessary that they approach their new work from the very beginning with a clear inner attitude and professional conscience which will also give them the necessary assurance in their appearance and work which is a primary asset for successful legal work.

They need not fear to be called upon to do legal work of a secondary nature. He who takes the job of a defense counsel in penal cases of importance to the war, also contributes to the war effort. This means today, however, that he is expected to make a considerable war effort. In cases where the State permits the use of defense counsel, it does not want to see court statisticians but sincere and responsible fighters of the law who seek justice side by side with the judge and the prosecutor. Penal cases have always demanded particularly exacting work, due to the fact that the long sessions involve both physical and mental strain, and require in every case a higher personal effort than the most difficult civil cases, in which the main work can be completed in the office and at the desk.

One of the main objections raised today by lawyers, and by no means by the worst ones, concerning taking the job of defense counsel which can only be approached with complete frankness can be found in results of the guidance of practicing law. The defense counsel, they say, only seldom has the opportunity to succeed, in getting through his deviating opinion due to the close collaboration of judge and prosecutor, for instance, in the introduction of evidence, or to find sufficient attention in his final plea so that sometimes it may appear that the verdict has already been pronounced prior to the main proceedings. The lawyer’s success in any case is often rather minor, and the lawyer very easily attains a secondary position compared to the judge and the prosecutor.

This contains both truth and untruth.

He who is seeking “success” as defense counsel in penal cases must first ascertain what is understood by it. It should go without saying that a conscientious lawyer does not only see success where he manages to reduce the sentence proposed by the prosecutor, to find loopholes in the law for his client following the old tradition, or where he otherwise succeeds in exploiting the case to his client’s advantage. He who only has this conception of the entire affair, not only misunderstands the tasks of a defense counsel, and not only lives in penal conceptions of the past which have been overcome by the introduction of paragraph 2 of the Reich Penal Code and by the law itself, but he also lowers the value of his own work. The success of a defense must already be apparent in the consciousness of having done everything possible as a coresponsible lawyer in order to lead justice to a successful conclusion.

More than that the defendant could not demand and if he did—which is humanly understandable since he cannot be arbiter on his own behalf—then the defense counsel should not support him.

As far as the secondary position compared to that of the judge and the prosecutor is concerned which might be feared by quite a few, I can only answer: Everyone achieves a rank in his life and profession which he works and fights for through his accomplishments and personality. The duty of a defense counsel is not limited to his activity in the main proceedings as many believe. His chief task begins much earlier while cooperating at the elucidation of the state of the case, the production of evidence to be introduced in court, and numerous interviews prior to the trial.

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The defense counsel as a result of his dual position as a defense counsel of one person on the one hand and as an administrator of justice for a community on the other hand will repeatedly face the danger of the fact that the accused whom he is defending depends upon him, making him forget that he is not the mouthpiece of his client but an independent administrator of justice. If, for instance, a defense counsel submits applications only upon request of the defendant, or if he proposes the hearing of character witnesses though he himself does not doubt the credibility of the hitherto heard witnesses, if he adds more lengthy letters of the defendant to his brief as appendices only to comply with the defendant’s wish, this indicates either a lack of the required self-criticism or of the necessary energy toward his client in carrying out his office as defense counsel.

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The cases mentioned in this first Lawyers’ Letters, some of which have led to reprimands and disciplinary measures are only a small part of the vast material at my disposal. They really speak for themselves. At the same time they show how much work remains to be done, if we are to solve the tasks which the increased totalizing of war puts to us. If we succeeded in releasing only part of the manpower—represented by lawyers at present engaged in examinations and court of honor proceedings—for really important and war essential legal work, a considerable contribution would have been made. To attain this is not only the goal of the judicial administration. Lawyers themselves should collaborate in this with self-discipline, which I particularly expect from now on.

If there are any difficulties, doubts, wishes, and troubles, every lawyer may report these to me either himself or through his chamber so that these questions may be discussed and cleared as far as possible in these Lawyers’ Letters.

As for the cases reported to me this is briefly to be said:

(1) The letter of the defense counsel to a traitor in a penitentiary speaks for itself. Not only is the unconcealed wooing of clients repulsive, but especially the inconceivable lack of dignity and the servility with which this German lawyer addresses a declared marked enemy of the state, calling him “Dear Sir,” wishing him “all the best for the future,” and after mentioning “his esteemed wife” closes with “best regards and Heil Hitler, yours.”

Surely it cannot be expressed more clearly that one is unqualified for the legal profession.

(2) The lawyer, whose plea was that “we would be glad if our German prisoners of war would be shown a kindness” shows a total lack of understanding of the seriousness and significance of this offense. It is not the business of German women “to show kindness” to prisoners of war, but they should behave as German women. Decency and honor should bar the least contact with prisoners of war who are still our enemies. What should women who have resisted the temptation to which the defendant fell say if they hear a lawyer express such views?

(3) As for the defense counsel, who was “impressed” by the attitude of the Czech industrialists who had bought butter without ration tickets because the defendants “like real German men they took the blame for their wives who were really responsible,” all that can be said is that he knows very little about the tasks of a German lawyer. Here again the lack of tact and understanding was not that he tried to minimize the offense. He obviously knows nothing about the situation of ethnic Germans in the Protectorate and about the interests of the German people. To mention a speech by one of the Czech defendants in one breath with a speech by the Fuehrer was—no matter how it was meant—outrageous. Such a thing cannot be excused as an “awkward mistake.” Lack of instinct is a feature of one’s character.

(4) The lawyer who pleaded for a factory owner, accused of an offense against wartime economy, was it is true right in pointing out that the defendant also thought of his workers when he acquired food illegally. As far as this was a fact he even had to point it out. But in disregarding the fact, that the defendant as the sentence of 2½ years penal servitude shows bought considerably for his own benefit, he has violated his duty as defense counsel. Furthermore, in trying to influence and mislead the court by saying “and now condemn the accused” thus demanding the acquittal of the defendant, he went far beyond the limits of a possible and legitimate defense. This suggestion had to give everybody and not least the defendant, too—to whom he should have explained his offense—the impression that the sentence was unfair and as such contrary to the interest of the people. This type of plea does not serve, but damage the administration of law.

(5) The next two cases also show that some defense counsel have not yet, in the fifth year of war, recognized the importance of criminal proceedings to war economy. To excuse black market activities with the obesity of the accused can scarcely have been meant seriously and can, of course, not meet with success—except for the bad impression counsel makes. This again cannot excuse the temporary lapse, because counsel has, by saying incorrectly and tactlessly later on that the Reich health leader himself describes the food rations as insufficient, revealed that he himself disagrees with our laws and government. The 16 objections and reprimands brought up against him so far confirm the picture, which he has given of himself in this case.

(6) To defend parties and dinners given by the two “better class women” with the help of stolen ration cards by saying that business, so to speak, required such parties is just as stupid as it is to expect the court to find the defendants not guilty of an offense. Such statements not only show considerable lack of understanding of the importance of criminal cases in the field of the law of war economy, but they should never be made at all in a court of law.

(7) Humor should certainly not be suppressed especially in difficult times, but only where it is appropriate. But it is inconceivable for a defense counsel to reproach a court or the prosecution for their lack of humor, because a defendant who indulges in a drunken brawl annoys people and resists the police received a well earned punishment. The defense counsel would have done better to consider that in the fifth year of war one should not burden judges and prosecutors with uncalled for petitions for mercy and complaints; about the latter there is still much to be said. He would have done better to make it clear to his client who had already repeatedly made himself unfavorably conspicuous, how to conduct himself in these times instead of backing him up by his false statements.

(8) If in this case the defense counsel raises legal doubts against the assumption of an insult to the mother, he can thus only intend to obtain an acquittal. Therefore as a representative of the law he takes the view that in such cases according to our law there is no protection of the honor of soldiers killed in action and their relatives. This attitude and his subsequent conduct at the trial, in which he called the gravely afflicted mother of the dead soldier “hysterical and highly strung,” when facing the judge she naturally re-experienced her pain and sorrow, revealed, even had the mother been very excited, a rare absence of any feeling for the community and human compassion. He who tries to cover such a criminal deed, particularly as a representative of the law, puts himself ideologically on a level with the defendant.