About the time that Engert, then Vice President of the People's Court, made this overture to Himmler, he began to complain officially that it was incompatible with the respect, dignity and tasks of the People's Court to try minor political cases. He opined that such cases could be settled more quickly and effectively by transferring the culprit to a concentration camp. Thierack, then President of the People's Court, in heartily endorsing Engert's attitude, wrote to the Minister of Justice in 1940 in part as follows:
"However right it is to exterminate harshly and uproot all the seeds of insurrection, as for example we see them in Bohemia and Moravia, it is wrong for every follower, even the smallest, to be given the honor of appearing for trial and being judged for high treason before the People's Court or, failing that, before an appellate court. In order to deal with those small cases and even with the smallest, the culprits should surely be shown that German sovereignty will not put up with their behaviour and will take action accordingly. That can be done in a different way and I think in a more advantageous one, than through the tedious and also very expensive and ponderous channels of court procedure. I have therefore no objection whatsoever, if all the small hangers-on who are somehow connected with the high treason plans which have been woven and abetted and plotted by others, are brought to their senses by being transferred to a concentration camp for some time."
These opinions and desires of Engert and Thierack found eager a sympathetic audience with the Gestapo and SS, resulting in working agreements between these agencies and the Ministry of Justice whereby such illegal transfers could be accomplished outside the law. As the International Military Tribunal in its judgment has found:
"An agreement made with the Ministry of Justice on 18 September 1942 provided that anti-social elements who had finished prison sentences were to be delivered to the SS to be worked to death."
This agreement, it will be noted, expanded the initial ideas of Engert and Thierack far beyond any mere hastening of minor political court cases or exploitation of prison labor. The agreement introduced the idea of exterminating the so-called "asocials", i.e. persons who for either racial, political or personality reasons were deemed unfit to live. Within a month after this agreement had been worked out and put into practive, it was expanded further to include not only those "asocial" elements who had finished their prison sentences, but also all Jews, Gypsies, Russians and Ukranians who were detained under arrest or imprisonment in any Reich penitentiary or work house as well as all Poles who were sentenced to more than 3 years.
Now, since the intentional design was to literally work these people to death once they were transferred to concentration camps, this expanded illegal agreement actually rendered any court sentence for any crime tantamount to a death sentence.
In some cases the death awaiting those unfortunates was not long in coming. For example, a situation report in 1942 from the Attorney General of the Court of Appeals in Berlin to the defendant Schlegelberger, while the latter was Acting Minister of Justice, revealed the following episode:
"In this connection I think I ought to point out that only recently perpetrators have been repeatedly handed over to the Gestapo. Also, there was no sufficient cause therefor, to be found in my opinion, in the conduct of the Justice authorities.
I am referring to criminal procedures against Skibbe and others--" than follows the citation of the case in the German files-- "in which 4 defendants, 26, 22, 20 and 18 years of age accused of committing 23, 19, 15 and 12 completed or attempted robberies by taking advantage of air raid protection measures, were sentenced by the Special Court of Berlin to 7, 6 and 5½ years of penal servitude and loss of civil rights for 10 years each. Although 3 of the perpetrators had not been convicted previously and the 4th one only of 2 comparatively minor crimes, in addition to all of them being still comparatively young and, at least in my opinion, the pronounced penalties being not inadequate, these perpetrators were handed over to the Gestapo. They were shot, as could be seen from the newspaper reports because they offered resistance.' May I remark that it is hardly unknown to the public any longer that these shootings 'because of resistance offered' are actually caused by other considerations."
Still operating completely beyond any existing law decree or regulation, this same cabal of justice officials, SS and Gestapo extended this policy of extermination through the occupied Eastern territories. As the SS and SD offices throughout those Eastern countries were instructed in November 1942:
"The Reichsfuehrer-SS has come to an agreement with the Reich Minister of Justice Thierack that the courts will forego the carrying out of regular criminal procedures against Poles and members of the Eastern peoples. These people of foreign extraction henceforth shall be turned over to the police. Jews and Gypsies are to be treated likewise. This agreement was approved by the Fuehrer."
These instructions to the SS and SD in the East continue:
"Those considerations which may be right for the punishment of an offense committed by a German, are wrong with regard to the punishment of an offense committed by a persons of foreign extraction. The personal motives of the offender are to be disregarded completely. Important is only that this offense endangers the order of the German community and that, therefore, measures must be taken to prevent further dangers. In other words, the offense committed by a person of foreign extraction is not to be judged from the point of view of legal retribution by way of justice, but from the point of view of preventing danger through police action. From this follows that the criminal procedure against persons of foreign extraction must be transferred from the courts to the police."
With the Jews, Poles, Gypsies, Ukranians and other so-called "asocial" persons throughout the occupied East relegated to a carefully prepared death, this same unholy alliance returned its attention to the Reich and the Protectorate of Bohemia and Moravia. There, by the infamous decree of 1 July 1943, signed among others by Thierack, all of the foregoing perversions of judicial and penal process were tardily "legalized" by officially denying to all Jews any recourse to the criminal courts and committed any Jews accused of an undefined "criminal action" to the Police.
With grim humor the following article of that statute ordered the confiscation by the Reich of a Jew's property after his death.
This decree completed the absolute disfranchisement and expropriation of property of Jews in the Third Reich and Bohemia and Moravia who had not already, by that time, been deported or slain.
Prison inmates not transferred to concentration camps, pursuant to the foregoing program, were hardly better off in Reich prisons under the hospitality of the Minister of Justice. The defendant Joel had a working agreement with a deputy of Himmler's whereby he turned over to the SS, for shooting, those defendants whose sentences by the courts were deemed insufficient by Hitler who followed published decisions in the newspapers. A number of charts tabulating the shootings of such defendants, many of whom had received only minor sentences, attest to Joel's zealous activity on this score.
Schlegelberger, too, studiously connected what was deemed a "legal basis" for these shootings of prison inflates serving minor sentences.
Judicial murders in violation of international law.
Victims of the People's Court, Special Courts, and civil courts martial were judicially murdered by certain of the defendants using a variety of legalistic artifices, all of which had the obvious common denominator of a zealous desire to exterminate even trifling activity not even deemed misdeamors by the community of civilized nations. One such artifice frequently employed was a subjective, conclusive assumption by the judges and prosecutors of proof of the very issues tried. For example, after the Nazi importation of forced labor from the occupied East had collected large numbers of foreign workers within the Reich at various war jobs against their will, escape efforts by such workers across Reich frontiers to their homeland or elsewhere became frequent. These escapees, when apprehended by border officials, were normally handed ever to the People's Court for trial for preparation of high treason, which bore a mandatory sentence of death. The applicable section cf the German Criminal Code defined high treason in this contest "as an attempt to incorporate by violence or by threat of violence the German territory in its entirety or in part into a foreign state or to detach from the Reich territory belonging to the Reich." The escapees were indicted, inconceivable as it may be, for the violation of this provision.
In grasping for some legal straw upon which to base a conviction on these grounds, the courts created a whole--cloth assumption that such escapees were heading through Switzerland, or wherever they might have been picked up, in an effort to join some military legion hostile to the Reich. The Reich prosecutors were drawn into this scheme. Walter Brem, a former assistant to the Chief Prosecutor at the People's Court, described the situation thus:
"The majority of these cases concerned foreign laborers who wated to look for a job in Switzerland because of inadequate salaries and insufficient food rations in the Reich. The prosecution, however, claimed that foreign legions were being established in Switzerland and that every foreigner wanted to cross the border illegally to join up with such legions. I was ordered by the prosecutor of the People's Court to connect the accused somehow with the foreign legions.
I have never received a positive answer about these alleged organizations and the whole concept was known to the foreigners only as a rumor. Individual proofs of any acts of high treason could not be established; however, the prosecution bas** its claims on the assumption that such foreign laborers would behave in a hostile manner against Germany once given the opportunity."
This contention was acceptable to judges of the People's Court. On 12 August, 1942, three Polish defendants, Mazur, Kubisz, and Nowakowski, pursuant to an indictment signed by the defendant Lautz, were sentenced to death by the People's Court for preparation of high treason and attempting to separate a portion of the Reich by force. They had left their factory in Thuringa and proceeded across the Swiss border where they were apprehended by Swiss officials and returned to the Reich. As reasons fer their escape the defendants cited the hard working conditions to which they had been exposed. Kubisz testified that the meals consisted only of soup. Mazur stated that his work in the quarry was so hard that he feared he would not survive the winter. The defendants stated they had hoped to find better working conditions in Switzerland. They denied having had any knowledge of the existence of a Polish Legion in Switzerland. The prosecution offered no evidence to impeach this testimony in any way.
Nevertheless, the People's Court found that the defendants' statements were more excuses, that the existence of a Polish Legion in Switzerland was "generally known", and that the defendants intended to join this legion. This judicial assumption was buttressed by a physician's certificate which showed all three defendants to be in excellent health and qualified for active service. Therefore, the court "was convinced" that the defendants had discussed the fate of Poland and her people with their camp mates in the factory barracks and had decided to join the Polish legion in Switzerland. The court said that it know of a pact with Russia that the Polish Government in exile had formed and that this fact had been broadcast by the British radio. The court knew, furthermore, that in the past Polish workers had repeatedly fled to Switzerland where they were recruited for the Polish legion, and I quote a portion of the court's decision:
"These circumstances force the court to the conclusion that the defendants intended to join the Polish Legion in Switzerland."
With regard to verbal remarks deemed seditious or deleterious to the "German peoples' defensive strength", People's Court sentences were not only outrageously unjustified, but reached the climax of judicial caprice. The Austrian taxicab driver, Rudolf Kozian, pursuant to an indictment signed by Lautz, was sentenced to death on 26 June 1944 for making certain uncomplimentary remarks concerning Hitler and the progress of the war. In the course of conversation while driving a female customer, who later denounced him to the Gestapo, he made remarks typified by the following: "To us Viennese it's all the same from whom we receive our bread whether his name is Stalin, Churchill or Hitler. What matters is that we can live ... When I quarrel with someone and see that I can no longer carry on then I step and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all. The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offers peace to the enemy." The Court found the defendant guilty of having attempted to undermine the German morale to such an extent that he was deemed to come within the special emergency decree authorizing death for impairing German defensive strength.
Contrast the foregoing case of the Austrian taxi driver, resident of a country occupied and annexed by illegal aggressive acts, with that of Mrs. Von Brincken, a German Nazi, who was indicted in August 1944 for having made similar statements in a conversation with friends at the seashore. When the man who had rented her a beach chair became angry about the careless way in which his chair was treated, Mrs. Von Brincken was alleged to have said: "Well, don't worry, the Russian commissars will be sitting in them next year." She was also vocally indignant to her neighbors because her seventeen year old daughter had just been drafted for labor assignment in the country, and said: "It would do the farmers no good; they would only get more work and more worry since the girl could not do anything but eat."
Due to the intercession of both her husband, a colonel, and a notorious SS general who was a friend of the family, she was released with an admonition.
Such judicial discrimination with death as the forfeit, is explained by the defendant Petersen, a lay judge at the People's Court from 1941 until the end of the war:
"The sentences of the People's Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal 'bourgeois' conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims."
DR. ASCHENAUER: Defense counsel for the defendant Petersen. By my motion of 21 February 1947 I objected to the submission of the affidavit of the Defendant Petersen. On 27 February 1947, I specified the motion. It says: "The Defense is not permitted to introduce the affidavit and the interrogations under oath of the defendant Petersen into the proceedings. On 21 February 1947 I gave the reasons for the motion which are as follows: From 12 June until the end of 1946, the Defendant Petersen was in the Langwasser Camp. As a patient, he was moved to the Regensburg Camp where his medical treatment was continued. Already at Langwasser, Petersen was pronounced unfit for transport. In spite of medical treatment, he was moved to Nuernberg. As he collapsed in Regensburg, medical treatment for circulation disturbance was continued at the court prison here; the circulation disturbance improved only at Christmas 1946. Accommodation in a cell in which half a window was missing, was naturally very detrimental to the state of health of the 61-year old defendant Peterson. Therefore, -
THE PRESIDENT: Counsel for the Defendant is advised that the statement of counsel is not evidence in this case. It is merely a statement of what later will be introduced in evidence. If this statement is introduced in evidence, you can make your objection and it will then be ruled upon. For the moment, the Prosecution will continue its statement.
DR. ASCHENAUER: I should only like to point out that this is the same affidavit which is being presented here and that this affidavit is due to the psychological condition of the witness.
THE PRESIDENT: I repeat. This is not evidence. This is merely a statement of what will later be introduced in evidence. At that time, if you have an objection, it will be considered. At this time, you may not interrupt the statement of the Prosecution.
DR. ASCHENAUER: I will raise my objection at a later time.
MR. WOOLEYHAN: To get the proper context, I will begin at the beginning of the excerpt included in the opening statement.
"The sentences of the People's Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal "bourgeois' conceptions of crime and punishment, but rather of annihilating an opposition which could become detrimental to the German aims. This was our duty. Hence, after a defendant had been brought before the People's Court because of some act or utterance, his actual deed was of no particular importance in the determination of the punishment within the framework of the law. The important thing was whether the man had to be exterminated from the community of the people as a 'public enemy' because of his personal attitudes and his social or anti-social tendencies."
The further artifice of "punishment by analogy", previously mentioned generally, was a tyrannical in practice as it seems in theory. Revolting examples of this procedure in action are legion. A particularly notorious case that turned on this ground was that of Lehmann Katzenberger, sixty-eight year old former chairman of the Nurnberg Jewish Congregation. Katzenberger was indicted by the Nurnberg District Court for so-called "racial pollution", having been accused of sexual relations with one Irene Seiler, an Ayran woman. The police tried desperately without success to secure the necessary conclusive evidence, but Katzenberger and Seiler, both well known figures of some prestige in the community, denied under oath any illicit relationship. There were no witnesses to or other evidence of the accused act. Since an acquittal of the Jew was unthinkable, particularly in Nurnberg which was the hearthstone of the Jew-baiter Streicher, and whose newspaper "DER STURMER" widely publicized the story, Katzenberger was remanded to the Nurnberg Special Court, tried as a "public enemy", sentenced to death and executed.
Seiler was indicted for perjury and was joined with Katzenberger as co-defendant; her sentence of two years was later suspended.
As Hans Groben, Nurnberg District Court Judge for preliminary investigations, describes the case:
"As I had no reason to doubt the truth of Seiler's sworn statement, it was clear to me that I could not keep Katzenberger in custody any longer. Therefore I informed his counsel, Dr. Herz, about the issue of this interrogation and gave him to understand that then was the right time to act against the indictment. Dr. Herz naturally understood this hint, and at once he filed an appeal against the indictment. According to the regulation (paragraph 33, STPO) I put the appeal before the Public Prosecution, adding in my report that I had the intention to comply with this complaint (paragraph 306, Section 2, STPO), i.e., to set Katzenberger free. I thus clearly expressed with this additional remark that I believed Katzenberger not to be guilty .... As was later explained to me, the accusation already filed with the District Court was thereupon withdrawn and replaced by one filed with the Special Court....
"I was shocked when I heard the result of the trial. The fact that Rothaug combined the trial against Seiler, a case of perjury, with the trial against Katzenberger, shows clearly that he took over the case of Katzenberger with definite prejudice and that he was determined to exclude Seiler as a witness for the defendant. According to normal procedures, Seiler should have been a witness in Katzenberger's trial and should have testified for him stating that the accusation against Katzenberger was not true. This normally should have led to the acquittal of Katzenberger as there was nothing decisive against him. Rothaug's verdict, in my opinion, was based solely on blind hatred for Jews. As there were no reasons for Katzenberger's condemnation on the ground of so-called race defilement, there was still less reason to apply paragraph 4 of the "Decree against Public Enemies" (Volksschael ingsvererdnung); because if it were altogether impossible to ascertain when or if Katzenberger and Seiler had the alleged intimate relations, it was still less possible to explain that this had happened in exploitation of war conditions.
To arrive at Katzenberger's condemnation on the grounds of so-called race defilement and to sentence him in connection with Paragraph 4 of the "Decree against Public Enemies", it was necessary to violate all the facts in the case. It has always depressed me that this verdict, which cannot be designated as anything but judicial murder, was pronounced by Rothaug."
One further sampling of the prosecution's evidence will serve to reveal how the protection against double jeopardy, keystone of criminal procedure the world over, was abrogated and used for the murder of civilians of occupied countries.
The Nurnberg Special Court, under the leadership of the defendants Rothaug and Oeschey, used this fiendish practice in the case of Jan Lopata, a Polish youth brought during the war to work on a German farm. The accused was in 1940 sentenced to two years imprisonment by the Neumarkt District Court for indecent assault of his employer's wife. When the case was reviewed by the Reich Supreme Court, a please of nullity against the decision was issued by the prosecution on the grounds that the sentence was too lenient, and the case was referred to the Nurnberg Special Court for retrial. In the court's verdict sentencing Lopata to death, the Presiding Judge (the defendant Roth-aug) observed:
"The total inferiority of the accused lies in his character and is obviously based on the fact that he belongs to the Polish sub-human race."
In reliance upon the decrees "legalizing" nullification and retrial of criminal cases it the prosecution's behest, defendants were deprived of any assurance that a sentence of less than death was their final fate. Ministry of Justice officials, working through the prosecution, joined in this infliction of double jeopardy. For example, in a case involving a non-German the defendant Klemm wrote to the President and attorney General of the Stuttgart District Court of appeal on 5 July 1944, and directed the following:
"for sometime now, the jurisdiction of the criminal senate of the District Court of Appeals in Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases, the sentences are considered too mild...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 refer especially to the following sentences which lately attracted my attention:
"1. Criminal case against Frederick Linder, sentence of the Second Criminal Senate of 7 January, 1944 (President of the Senate Dr. Kiefer)... "You made a report under date 28 April 1944 on this case regarding the sentence. In view of the danger and of the frequency of the statements made by the defendant, I must maintain the interpretation already expressed in my decree of 15 March 1944, IV Secret I 5045B/44 - that the defendant, a foreigner, deserved a serious 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 appeal should not be applied against the sentence..."
It is technically true that an extraordinary appeal or plea of nullity could, on the face of the enabling decrees, operate to a defendant's benefit as well as to his detriment; but this possibility was illusory in practice. Dr. Josef Grueb, former judge of the Nurnberg District Court of Appeals, says:
"It was obvious that the Ministry of Justice only admitted a petition for nullity when it was unfavorable to the defendant. Cases in which the Ministry ordered a nullity plea unfavorable to the defendant were, at any rate, very more numerous than cases where the petition for nullity was demanded for the benefit of the condemned man of its own initiative...It was mainly a means employed by the state to cancel sentences which seemed inadequate in the light of the political conceptions of those times."
A terrifying glimpse of the actual extent to which double jeopardy was exploited during the Third Reich's last years, is furnished by the defendant Nebelung:
"If the Chief Reich Prosecutor, Dr. Lautz, was not satisfied with the sentence, he could file an Extraordinary Appeal against it. This was done, in my opinion, mainly as a result of orders by Reich Minister Thierack. After 1943, Extraordinary Appeals became frequent. All cases in which Extraordinary Appeal had to be filed were tried again before the Special Senate of the people's Court. This Special Senate concerned itself exclusively with Extraordinary Appeals. Of all Senates of the People's Court, this Special Senate pronounced the largest percentage of death sentences. According to statistics which I saw myself, 70% of all sentences passed by the Special Senate during 1944 were, as I recall, death sentences."
By the foregoing samples from actual case records and comments thereon by German jurists involved, the prosecution has sought to typify rather than specify the war crimes and crimes against humanity committed by the defendants. Detailed accounts are unnecessary at the moment to exemplify the judicial murders and legalistic perversions for which these defendants have been indicted; that will be fully developed by the evidence.
Mr. LaFOLLETTE: May it please Your Honors. I will proceed and General Gayler, as Chief Counsel, will follow me and close.
Evidentiary considerations.
We believe it will expedite the trial of this case and be of assistance to the court and evidence a proper attitude of fairness toward the attorneys for these defendants if we discuss now some of the theories of evidence and of the relevancy and materiality of evidence under which we shall present the proof in this case.
Law 10, which is the inter-power act from which this court springs, contains some matter relevant to the issue while Ordnance 7 of necessity, treats the matter very fully. Between them they deal adequately with the matter very fully. Between them they deal adequately with the matter of the competency of proof, intelligently relaxing the rules to the necessities of presenting proof in a country, which has not only been physically destroyed but which has had its government disintegrate and also suffered the demoralization, which follows the defeat of a vicious ideology which has permeated the thinking of far too many of its peoples.
Put relevancy and materiality - the relationship of primary facts to the ultimate fact - involves a cerebral process - the method of finding the existence of an ultimate fact by logical processes from objective proof.
These latter standards lie within the consciousness and the conscience of men. Thus they are not affected by the external consideration which justify the relaxation of the rules regulating the competency of proof. They should not have been and they were not relaxed. We endorse the decision to retain them and welcome the opportunity to work under them.
Article II, paragraphs 4(a) and (b) of Law 10, are the same in substance, although differing slightly in the use of language to express the substance, as Article 7 and 8 of the Charter, respectively.
These paragraphs of Article II of Law 10 read as follows:
"4 (a) The official position of any person, whether as Head of State or as the responsible official in a Government Department, does not free him from responsibility for a crime or entitles him to mitigation of punishment.
"(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
Paragraph 4(a) above is a sound role and applies to most if not all of these defendants. Paragraph (b) is likewise sound. We point out.
However, that those defendants are lawyers who are charged fundamentally with perverting or converting a system of justice into an instrument for committing crimes under international law. Since this paragraph affords them the right to offer evidence in mitigation and to plead for mitigation from that evidence, the prosecution is entitled to answer that pleasby two arguments. First, that a lawyer has especial knowledge of the perverting effect upon the dispensation of justice not only of his own acts but of the acts of others of which he has knowledge - knowledge as an ultimate fact. Second, that a lawyer entrusted by his very calling with a sacred duty, must of necessity offer strong proof indeed in mitigation of the prostitution of that duty.
We shall introduce proof on this issue, from which knowledge, as an ultimate fact will arise and also proof, from which the plea of mitigation will be shown to be faniciful and hypocritical.
Again, upon the subject of relevancy and materiality - probative value, - we shall offer evidence of other acts of these defendants and also acts of persons other than these defendants, knowledge of which, as an ultimate fact, can be inferred to the defendants. These acts shall include these which constitute evidence of other crimes, committed both by these defendants and by others. We are convinced that this evidence is relevant and material, and therefore admissible under accepted rules of evidence supported, by Wigmore, an acknowledged authority.
Certainly, a brief exposition of cur position will expedite the trial by enabling the court to rule expeditiously, but at the same time judiciously, and it is also our hope that by furnishing defense counsel with an understanding of the legality of the rules under which this evidence will be offered, they will not find it necessary to resort too frequently to empty objections.
We can afford to be candid with court and counsel. It is only the lazy, the uniformed or inherently dishonest and therefore unethical lawyer who socks recourse to silence or obtusion. We refuse to follow a course of conduct from which either of the forgoing can be charged to the prose cution of cases before this Tribunal and its sister tribunals.
Evidence of acts, including other crimes not only of the defendants but of others, is permissible, and most often offered to show Knowledge, Intent or Design. They are also relevant upon the issue of Motive. Because of the nature of the crimes charged in this indictment, each of the foreign-, Knowledge, Intent or Design and Motive, is an essential ultimate element or ingredient of these crimes. Therefore, the rules with authorize the introduction of such proof are of concern to this court.
Before treating the subject affirmatively, we shall prepare the way by eliminating the supposed objection of Unfair Surprise. We offer the following quote:
"Of the other objections (other than Undue Prejudice) from the point of view of that auxiliary policy which creates the Character rule, the objection of Unfair Surprise is the only one that could be supposed to be here applicable. But it has never been treated by the Courts as of consequence. Evidence tending to show, not the defendant's entire career, but his specific knowledge, motive, design, and the other immediate matters leading up to and succeeding the crime, is of a class always to be anticipated and is in such given instance rarely a surprise; moreover, the kernel of the objection of unfair surprise; namely, the impossibility of exposing fabricated evidence, is wanting where the evidence deals with matters so closely connected with a crime as design, motive, and the like."
The above quote, referred to the further objection of Undue Prejudice. That objection does not arise here. This is a trial by the Court - by judges. It is a trial by judges, who by training and character rely only upon objective standards in determining guilt or innocence. The rule was never considered in America as a necessary protection to a defendant in trials by court.
In fact - the very contrast between the system and standards of judicial conduct by which these defendants are being tried and the subjective personality yardsticks which they, particularly the judicial defendants, will be proven to have acted under and used, it is to be hoped, will have some effect in serving the declared purpose of Potsdam.
"To prepare for the eventual reconstruction, of a German political life on a democratic basis."
In treating with the subject under discussion, we must refrain, because of time limitation, from presenting Wigmore's excellent philosophical discussion of the basic principles which overn the proof of Knowledge, Intent and Design. Therefore we limit ourselves, from necessity, to an exposition of those statements which are applicable to the crime which most, if not all, of these defendants have committed - murder.
We shall offer the type of evidence, under discussion, first under the Knowledge principle:
"The Knowledge principle has practically little application here, though it would be available to show a knowledge of the nature and injurious effect of a lethal weapon."
We point out that in this case "knowledge of the nature and injurious effect of a lethal weapon" is of first importance. The defendants had full knowledge of the character of this lethal weapon, -- a judicial system deliberately fashioned into a headman's axe. In fact, most of them directly and actively fashioned it. Consequently, under each of the categories of the substantive law of murder, which we have heretofore expounded, and particularly under the second, proof of prior acts, including crimes, of those defendants and of others of which they had knowledge, are clearly relevant.
The same type of evidence shall be offered under the following rule relating to the Intent principle:
"The Intent principle receives constant application; for the intent to kill is in homicide practically always in issue, and is to be proved by the prosecution, and the recurrence of other acts of the sort became a tend to negative inadvertence, defensive purpose, or any other form of innocent intent. For this purpose, therefore, the evidence is receivable irrespective of whether the act charged is itself conceded or not."
Also the rule of anonymous Intent authorizes the introduction of proof of such other crimes and of the crimes of others:
"The principle of Anonymous Intent finds occasional application, particularly in poison cases. Other instances of death by poison under somewhat similar circumstances serve to negative the supposition of inadvertant taking or of mistaken administration, even though the person responsible for the other poisoning is not identified; and thus, a criminal intent having been shown for the act charged, by whomsoever done, the defendant may be then shown to be its doer."
This court shall be called upon to determine whether a so-called judicial execution was a true judicial decision or poison handed the defendant in a disguised chalice having the exterior appearance of judicial purity. When we produce innumerable cases of such acts can a defendant be heard to say he did not know his monstrous chalice was lethal and intended it so to be?
Also the Principle of Design or System is applicable for identical reasons:
"The principle of Design or System finds here frequent application. It supposes that a design or plan in the defendant is to be shown, as making it probable that the defendant carried out the design or plan and committed the act; and it receives former similar acts so far as through common features they naturally indicate the existence of such a plan, design, or system, of which they are the partial fulfillment, or means. This principle is fully recognized in the precedents."
And finally prior acts of violence, including crimes, are evidence of motive as well as of Design:
"Prior acts of violence by the defendant against the same persons, besides evidencing, intent, may also evidence emotion or motive, i,e., a hostility showing him likely to do further violence;
"Threats of violence are in themselves expressions of a design to injure, and are accordingly dealt with elsewhere."
Certainly, when we shall offer so many cases of deaths of Poles and Jews, no one of these defendants will have the temerity to say we cannot show proof of their own prior utterances, as well as those of others, of which they had knowledge, as a clearly inferred ultimate fact, demanding deaths to Poles and Jews and also that haste and more haste must be made to turn the Nazi Judicial system into a headman's axe, for the purpose of showin their motive, when these Poles and Jews, with their so-called "judicial" system and processes.
It would be a strange law, indeed, which would say that if a man killed one Pole or one Jew, his prior threats to and assaults upon that Pole or Jew, were relevant evidence of the Motive with which he acted, but would deny the same proof, when the same man, or in this case men, killed millions of Poles and Jews.
Of course, the law is neither so blind nor so callous ...
The accepted rules of proof in an objective system of law justify every offer of proof of prior statements, acts, and crimes of these defendants, and of those others of which they had knowledge, as an ultimate fact which we should make in this case.
We need not, nor shall we attempt, to evade or circumevent those salutary rules.
These defendants can, and should be convicted, but only under law. Because we believe that, we have not been afraid to pre-declare our understanding both of the substantive law and the rules of evidence under which just convictions shall be asked and which we believe will be rightfully rendered, under the proof adduced.
Although the matter is not related to the theories under which evidence will be offered by the prosecution, there is one other matter relating to the evidence which the prosecution feels it is entitled to discuss at the opening of this case.
During the introduction of the evidence, certain names of important officials recur: Otto Thierack, Roland Freisler, Vollmer, Westphal, Crohne, Laemmle, Haffner, and others. Since these men are not in the defendants doc** the court is entitled to know why. Thierack committed suicide on the 26 October 1946. Freisler was killed in an air raid which demolished the People Court Building in Berlin, early in 1945. Vollmer forsook the Ministry of Justice for the Luftwaffe during the last days of the battle for Berlin in 1945, and was reported to have died in action.