The special regulations against members of foreign nations were issued, the Jews were already excluded from the jurisdiction of the justice authorities, the so-called transfer of a social "prisoners to the police" - handled by department XV which was never subordinated to Klemm, not even formally -- was carried out. No more did my client have anything to do with the Nacht and Nebel cases. The interpretation of the laws by the courts was distinctly crystallized a steady practice had already developed during the preceding 4 years of the war, when the sentences became more severe because of the conditions caused by the war. The prosecution did not submit any evidence showing that Klemm during his time in office as Under Secretary advocated more severe sentences, especially in cases of high treason. The award of punishment and. the granting of clemency took place in accordance with distinctly developed standards. In this connection I will have to demonstrate in detail the proceedings which developed for the clemency questions in cases where a death sentence had been imposed. It will be proved that Klemm did not initiate Thierack who was severe on principle but that on the contrary, especially if the absence of the Minister offered an opportunity, he was inclined to be lenient. Impressive examples for this fact will be given to the Court from the document book of the prosecution III L (Exh. 252.)
THE PRESIDENT: Dr. Schilf, the hour for our noon recess has arrived. You may continue at 1:30 until which time we will recess.
(A recess was taken until 1330 hours.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DR. SCHILF: Schilf for the Defendant, Klemm.
May it please the Tribunal, before the recess I discussed the attitude of Klemm in the Ministry as Under Secretary and as far as the ciernen* question is concerned.
I now shall continue.
"In this connection the opportunity will arise to prove in general that it is only a mere assertion of the prosecution that the Ministry of Justice illegally ordered that a death sentence be carried out. Klemm did not participate in the issuance of directives concerning the clearing of jails, when the enemy approached. These were affairs which were ordered by the executive department of the Ministry (Dep.V). Evidence will be submitted which will prove that my client had practically nothing to do with department V. They will prove that all decisions in these questions were always made by Thierack, without his consulting his Under Secretary. Concerning the individual case about the illegal murder in the penitentiary Sonnenburg, the evidence obtained up to now through the cross examinations of witnesses will be supported by additional evidence. It will clearly be shown that the Ministry of Justice was not responsible for those measures. It will be seen that Klemm did not know anything about the order of the Reich Defense Commissioner and that, therefore, he did not have the possibility to prevent that those intentions were carried out."
I want to say here, Your Honor, that the sentence which I have just read is formulated differently in the document which you have before you.
"By reference to individual cases I will prove, that, in accordance with the plea made by the entire defense, the Judiciary did not do anything which made the lynching of Allied fliers who were shot down possible. The contrary will be proved. It was Klemm who ordered, that criminal proceedings should be started against Germans who had killed Allied fliers illegally.
The disputes with the party offices with regard to these orders will be shown. Furthermore it will be proved that Klemm saw to it that Germans, who treated bailed-out enemyfliers decently, were protected from subordinated authorities of Justice and other party agencies which showed over-great zeal.
"8.) When discussing the individual counts of the indictment I will try to find the basis of the evidence for subsequent legal considerations. This includes especially the question, as to whether it can be at all important for the judging of the facts of a crime to examine the actions of a superior Minister in which the subordinate Under Secretary had also no part. Here the problem will not be the importance of an order with regard to criminal law, but it will be discussed that the necessary causal connection is missing. Furthermore we will have the opportunity to produce evidence before this High Court with regard to the subjective side.
"I will demonstrate that Klemm due to his conviction that law has to prevail in the state and due to his generally decent human attitude interceded on behalf of the law. It will be proved that my client was held in high regard by his co-workers in the Ministry, that he tried in many individual cases to mitigate the fundamental harshness of Minister Thierack who was severe on principle, that he always was ready to listen to other officials, that he always was ready to accept sensible suggestions; in general he was thus just the opposite of Thierack.
"This attitude shewed also results - as will be proved - in the sphere of personnel policy. On principle he did not give any preference for positions to so-called "old party members". In case of promotions and appointments he recommended persons who did not belong to the NSDAP. I shall be able to show cases where he also recommended persons who were on the opposite side, if they had special professional qualifications. He tried to aid officials of justice who for political reasons, were personally in difficulties.
"10.) Extended fields which Klemm handled in the Ministry of Justice have not been mentioned by the Prosecution.
When submitting evidence I will have the opportunity to show especially that my client had to spend most of his working time in the Ministry for Department II of the Ministry. This department handled all questions which were concerned with the general training of all German jurists. Here the special difficulties which arose with regard to the personnel of tho authorities of the administration of justice on account of the events of the war had to be surmounted. The evidence will show that my client in training tho young jurists omitted all politics, that his work was absolutely unpolitical. Thus the so-called ideological training and examinations which were very much favored in the time shortly after the assumption of power of the NSDAP and which found a specially exact expression in the "Roferendar Lager" -- the Reforendar Camp for prospective lawyers -- "Hans Kerri" were excluded from the professional education of the jurist. At the time when Klemm at the beginning of the year 1944 took over his position in the Ministry, all these things had been settled a long time ago. The most urgent practical problems, where one could get young judges when and in what manner young jurists should make their examinations, how former soldiers were to be treated and similar questions belonged to Klemm's working field. This was practical work; also this field had nothing to do with "politics".
"If thus the picture and the activity of my client will be made clear to the Tribunal, then it will be proved that it is not a cheap attempt of throwing the blame upon dead persons, then it will become clear that it has been tried and perhaps also of Bormann. Klemm is, however, not responsible for their guilt."
That is all I have to say at the moment.
DR. WANDSCHNEIDER: Wandschneider for the Defendant, Dr. Rothenberger. May I begin my opening statement. At the beginning of my opening statement I want to say a few words about the task of the Defense as I see it.
The Task of the Defense.
With the presentation of its theory of proof, the Defense really starts its task in this trial. It is Confronted with an indictment presented in the name of the world community against the officials of the administration of justice in National Socialist Germany and referring to the moral conscience of just this world community. This situation requires a few words about the duties and position of the German defense in this trial. It is a cheap trick, if the Germans now, subsequently, merely because of the National Socialistic State has collapsed, declare very simply and without resistance that Hitler was "not right", and if these same Germans during the National Socialist regime, completely renouncing their own attitude and personality, were opportunists and cooperated with the entire National Socialist Policy with just as little resistance. Such a confession on the part of the Defense, which would be considered suitable only because the sentence of the International Military Tribunal established the amoral character of National Socialism, would also be a cheap trick and valueless.
Opinions are not formed under pressure of outward conditions, but on the basis of one's own knowledge. Of course, we do know on the basis of our knowledge that under National Socialism the basic rights and worth of the free individual and of the human community whose interests are inextricably bound together became corrupt and were destroyed and that is, by misuse and waste of the most valuable sources of power of the German Nation itself and of other non-German nations. Only selfrecognition, self-education and efficient, responsible cooperation of all members of a community lead to a really democratic way of life and state.
"The above statements which were made in order to be honest and above board have not been made from the standpoint of any disinterested neutral third party. How could a German defense-counsel be inwardly untouched by the arguments of the prosecution, regardless of whether and to what extent, he, as a German, considers himself "guilty". In view of the fact that the German people were entagled into error, misery, and guilt, should he not feel even more that he is one of them, and should he not try to gain that which cannot be lost: self-reflection, principles, and dignity. The defense wishes to thank the Tribunal for having given it full opportunity in this trial to represent the interests of its client in this spirit.
"II. Criminal facts of the case according to the indictment: Conspiracy and the individual facts of the case concerning war crimes and crimes against humanity.
"Dr. Rothenberger is charged with the crime of conspiracy, committing war crimes and crimes against humanity. According to the prosecution, the same concrete facts form the basis for the last two charges. In like manner, the charge of conspiracy is connected with the planning of the aforementioned war crimes and crimes against humanity. The facts presented by the prosecution to prove these crimes are in accordance with the I.M.T.-Judgments (viz. pages 94 and 95 of the Nymphenburg issue of the I.M.T.-Judgment) only relevant from the penal point of view since the beginning of the war. We are concerned with the following facts with, "Count 9 and 21 of the indictment:
"Use of the Special Courts and the People's Courts for the oppression of political enemies.
"Count 10 and 22 of the indictment;
"Participation in the discussion between Himmler and Thierack of 18 September 1942.
"Number 11 and 23 of the indictment:
"Sentencing and execution of Germans and non-Germans for high treason.
"Number 14 and 26 of the indictment:
"Illegal execution.
"Number 16 and 28 of the indictment:
"Preferential treatment shown party members who are to be punished and collaboration in the introduction of the special penal law for Jews and others.
"III. Non-existence of a conspiracy on legal grounds.
"Before starting to discuss the basis for the above charges in the indictment, it seems fitting to treat briefly the question of conspiracy. From a legal point of view, attention must be called to the fact that according to the statute of the London Treaty, as well as the Control Council Law No. 10, the conspiracy, or the planning can only be considered a crime in itself if it concerns a crime against peace, but not if it concerns a war crime or crime against humanity. This viewpoint was maintained also by the I.M.T. in trial No. 1.
"IV. The general circumstances of the case which form the basis for the charges of the indictment.
"1.) Memorandum of Dr. Rothenberger.
In its opening statement against Dr. Rothenberger the prosecution called particular attention to his memorandum to Hitler for the year 1942 and entered it as exhibit 27 in its document book I B. The prosecution characterized this as a peculiar document and commented upon it from its own point of view.
The defense will also have to analyze the memorandum minutely and discuss in detail its previous history and what has happened to it. It appears that the central problem here is the basically important question, of the dominating position of the judge in the life of a nation. The appointment of Dr. Rothenberger as Under-Secretary can be traced back to this memorandum, the character of which is clearly open to a psychological judgment. Naturally the reasons for his appointment will have to be discussed in greater detail. The memorandum presents therefore the very first of these important developments which put Dr. Rothenberger in the defendant's dock in Nuernberg.
"2) Dr. Rothenberger's reaction to the Hitler speech of 26 April 1942.
"The prosecution has further produced against Dr. Rothenberger his report on conditions to the Reich Ministry of Justice, dated 11 May 1942, as Exh. 76 in Document Volume I-C, which describes the reaction to Hitler's speech of notorious fame dated 26 April 1942. The prosecution blames him for the measures taken after the Hitler speech, just as for the corresponding measures of Autumn 1942. It will, therefore, be the task of the defense to show how the measures taken by Dr. Rothenberger in 1942 following the Hitler speech were meant, and what was their effect.
"The documents specified under this as well as the previous number, in fact, in the opinion of the defense, touch upon crucial questions of the whole trial; namely, the place of the judiciary in the National Socialist state. They require, therefore, a full description in the presentation of evidence by this side.
"3) Dr. Rothenberger's ideas on reform.
"Dr. Rothenberger failed with the plans for reform contained in Ms memorandum. It may also be conceded that they were bound to fail by virtue of a historical necessity. However, that is not the point, but rather to demonstrate that Dr. Rothenberger exerted himself again and again to the utmost for the preservation of the foundations of justice, in particular for an independent judiciary, and used all his strength to that end.
The defense will clearly show that in the case of his discharge after he had served only fifteen months as Under-Secretary, not personal but decisively factual differences were at stake, on account of which Dr. Rothenberger was no longer acceptable to the rulers in the Third Reich.
"4.) Dr. Rothenberger's personality and career from the pre-war period and into the second World War.
"The above events falling directly within the war period, become fully understandable only by showing the development of Dr. Rothenberger's personal and professional circumstances before the war. It will be demonstrated that even before 1933 he was a professionally able lawyer, interested solely in civil law, energetic and conscious of his responsibility. It will further be shown that after 1933 he succeeded in having his proposals for a constitutional state adopted in Hamburg. He did, to be sure, become involved, in constantly growing opposition to radical Party circles and to the SS, especially after the outbreak of the war.
"All the facts of the case expounded above under IV are legally relevant from the point of view of war crimes and crimes against humanity, as well as from that of conspiracy; they are therefore presented with reference to all charges against my client.
"V. The various facts of the case in the order of the indictment and the position taken with regard to them."
May I say at this time I notice in the English translation for the German word "Tatbestaende, the word "facts" is in the document. I have consulted and I have been told that the word "charges" would express more properly what I mean to say.
THE PRESIDENT: The charges cf the case, that is in the title?
DR. HANDSCHNEIDER: Yes in the title.
"The various charges of the case in the order of the indictment and the position taken with reward to them.
"All the charges made against Dr. Rothenberger have to do with the field of criminal law and administration of punishment. It will be shown by the prosecution's own documents and by further evidence, that Minister of Justice Thierack reserved for himself all matters of criminal law and criminal law procedure of criminal law, as well as of administration of punishment, and accordingly by the exclusion of Dr. Rothenberger, placed Departments III, IV, V and XV of the Ministry, under his own direction. Dr. Rothenberger, therefore, neither had influence on the whole field of criminal law nor was he responsible for it. Neither Special Courts nor the People's Court, neither General Public Prosecutors nor any sort of criminal courts nor prisons were under his direction. The description of Dr. Rothenberger as successor of Freisler in the opening statement on page 64 of the German translation is therefore incorrect and an error. Without question, the entire criminal law was under the direction of the latter as Under-Secretary, which from the beginning was not the case with Dr. Rothenberger.
"1) Ad numbers 9 and 21 of the Indictment;
"According to the above general statements, therefore, Dr. Rothenberger did not cooperate in the improper use of the Special Courts and the People's Court for the suppression of political opponents.
"2) Ad numbers 10 and 22 of the Indictment:
"On 18 September 1942 an agreement was reached between Himmler and Thierack which, according to a file note by Thierack, among other things, provides for the delivery of criminal prisoners to the SS for the purpose of "extermination by work" and for the transfer to Himmler of criminal justice in cases concerning Jews, Poles etc. It will be shown timt Dr. Rothenberger did not take part in the discussion of these points, was not responsible for them either, and had no knowledge of them at that time.
On this point I also have a request to make regarding the correct tion of one expression used in the translation, That concerns the word "delivery" in the fifth line from the bottom on page 9. I would like to request that the German expression "Abgabe" be translated " transfer" or "extradition".
3) Ad numbers 11 and 23 of the Indictment:
Dr. Rothenberger never took part in the sentencing of political opponents for high treason. If the prosecution takes the view that non-exercise of the right of clemency after valid sentence applies, then in the cases in question with which Dr. Rothenberger dealt in the absence of Minister Thierack, an opinion having regard to factual and legal points will be given.
4) Ad numbers 14 and 26 of the Indictment:
Insofar as the four illegal executions which took place erroneously on S September 1943 in Ploetzensee may be referred to by the charge of illegal executions. Dr. Rothenberger's lack of responsibility will be demonstrated by the documents of the prosecution and by further evidence.
5) Ad numbers 16 and 28 of the Indictment:
Dr. Rothenberrer had no share in the preference given to Party members in clemency proceedings, as is also established on the basis of the documents of the prosecution. Nor did he take a responsible part in depriving the Jews, and others, of their civil rights, as will be shown in detail.
General Aspects of Criminality.
To understand the line of reasoning on which this presentation of evidence is based, attention is called to the following general criminalistic points of view which in themselves of course are known to the Tribunal. If, nevertheless, they are emphasized here, it is because the Tribunal is confronted with the extraordinarily difficult task of having to form a judgment of events, people and mental processes from a world of thought which is entirely alien to it.
1. ) Limited Sphere of Activity of individuals under a Dictatorial Regime.
Undoubtedly it is a characteristic of a dictatorial regime that the great majority of the population sinks into more than average passivity and paralysis of responsibility, in contrast to a democracy where the average citizens too, the majority of the population, display a far greater initiative out of the practical experience of their liberty and their own sense of responsibility. However, it is a certainty that the few, who, under such a regime, stand in opposition to the rulers and thereby are doing something which in a democracy would carry no risk worth mentioning, thus risk their lives and their liberty. Consequently, it is not possible to do justice to the circumstances involved if one minimizes the courageous actions of individuals in a dictatorial system by inept comparisons with conditions obtaining in a democracy. It is obvious, therefore, that the question to which degree an individual had the power and opportunity in a police-state system to call a halt to developments felt by him to be wrong, must in all fairness be judged by other standards.
2.) Necessity of individual method of observation.
A dictatorship blurs, especially to the foreign observer in a completely inconclusive manner the actually existing, great, individual and basic differences, on account of the "coordination" which to begin with was effected in the exterior sphere. Thus for example a German or Frenchman will hardly succeed in picking out one Chinese face out of a crowd of Chinese. One looks just like another. For that reason it is the more imperative to take into consideration the individual personality and its historic as well as geographical background -- like that which binds Dr. Rothenberger to the Hanseatic tradition of the old trading and harbour city of Hamburg - the more inapplicable generalization and standardization may lead to misjudging the specific importance of a personality end the particular nature of his work.
3.) Methodical ineptness of a retrospective view.
Evaluation from the point of view of criminal law is concerned with the possible participation in the commission of a criminal act and the possible personal guilt. It is decisive for judging a person's guilt to establish whether he shared in and had knowledge of the crime and whether he is conscious of it; so for instance in the case of the conspiracy which is alleged to have existed since 1933, knowledge of the criminal development of National Socialism since that time is decisive. In spite of some disappointments and bad experiences in individual cases, surely none of the defendants considered the National Socialist development in principle and as a whole as criminal, nor was he necessarily compelled to do so. It is not intended to question the statements of the I.M.T. about the destructive development of the NSDAP, which, according to Article X of Law No. 7, are binding until the contrary is conclusively proved. Nevertheless, it so happened that the National Socialist era produced a number of events and institutions which were either politically indifferent or even appeared as the expression of peaceful reconstruction; they were not mentioned in the findings of the I.M.T. Public opinion, however, was formed on the basis of those manifestations. Questions such as the revival of trade, the construction of Autobahnon, the elimination of unemployment, the creation of great social institutions, as for instance the National Socialist Public Welfare Association and the Winter Relief Scheme, continuously, year in year out, were in the limelight with the German public and overshadowed everything else, not to mention events in the field of foreign policy like the AngleGerman Naval Treaty, international sport events such as the Olympic Games, etc. The greater part of the population, even the educated classes, were not aware that unemployment was only eliminated by an ever ever more formidable increase of the economic capacity for the purpose of the coming war, and that the donations and subscriptions which the people collected by hard work for their social institutions disappeared in the gorge of rearmament.
Did not Hitler's protestations that the construction of Autobahnen in Germany was to be considered proof of Germany's peaceful intentions of reconstruction, and not as the expression of militaristic mentality, sound entirely convincing in view of the fact that should it come to the point these same Autobahnen would operate strategically to Germany's disadvantage, which actually did happen?
By his systematic, and indubitably extremely cunning propaganda policy, Dr, Goebbels brought about, step by step, a constantly increasing isolation from foreign countries, which made it more and more impossible to form a truly objective judgment about other countries and questions of foreign policy. It is true, treaties with foreign countries were heralded with much publicity as proof of the desire for amicable cooperation with other nations. Considering these circumstances were men, even those in higher positions as for instance Dr. Rothenberger, who did not have the slightest insight into matters of foreign policy, to show less confidence in the National Socialist leadership of the state than evidently was manifested by the foreign statesmen who concluded treaties with the Third Reich?
Suspicious events were not discussed by the press and the public and thus escaped public attention and judgment to a large extent. Insofar as dangerous practices of National Socialism were still discernible in domestic and foreign policy, they never appeared as naked facts before the German public, as is stated by the I.M.T. verdict, but were exhaustively "disguised" in comments, rendered harmless, or even excused and justified as the results of alleged intrigues by the opposing camp.
Without wishing to deny that there exists a certain predisposition on the part of the German people for the reception of authoritarian wisdom, bad though it may often be, one can not get around the fact that, based on the circumstances described above, the process by which Germans, even those on a higher level, arrived at an opinion and judgment, of necessity moved and was bound to move along certain lines.
The question as to knowledge of certain criminal acts and developments, or better yet, the question as to the recognition of the criminality of certain acts and developments as being criminal, can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies in particular to war time, which, in all countries, produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. A retrospective method of observation which, in examining facts, does not put itself into conditions existing at that time, projects into the past, knowledge and opportunity of knowledge gained later on.
Applied to this trial, the above named method imputes to the defendants a knowledge, an awareness of the criminality of circumstances, which they did not have at that time and makes demands on their faculties of perception, which they could never have satisfied under the circumstances then prevailing.
VII. Principles of the Constitutional State:
"nulla poena sine lege" "nullum crimen sine lege" The inner connection between the afore-mentioned train of thoughts and the principles "nulla peona sine lege" and "nullum crimen sine lege" is obvious.
The question is whether facts constituting criminality were created after tho war by tho Charter of the London Agreement and the Control Council Law No. 10 which, in violation of tho above principles, are applied retroactively to previous acts, which at the time of commission did not constitute criminal acts. The resulting cardinal problem will be discussed by the Defense.
In this paragraph I ask you to translate the words "Verbrechens Tatbestaonde" not with "facts" but with "criminal charges". The 7th line from tho bottom of page 17.
VIII. Conclusions.
The great and famous American judge, Oliver Wendell Holmes, said in 1896: "The real reason for a decision are considerations of a political or social nature. It is orruneous to believe that a solution can be found solely with the aid of logic or general legal doctrines which no one contests." (Quoted from quotation in "Majority Rule and Minority Rights" by Henry Steele Commager, page 46 of the German translation).
The Defense can but concur in those words. The Defense requests therefore that consideration be given to its train of thoughts as derived from this attitude, and stated in VI, 3, which are the corollary of similar thoughts of tho prosecution, without the Court having to fear a misunderstanding concerning the above quotation.
THE PRESIDENT: You are speaking in behalf of which defendant? You are speaking in behalf of Engert, are you not?
DR. MARX: Defense Counsel for the defendant Karl Engert.
THE PRESIDENT: The secretary advises us that there is no copy in English of the opening statement for the defendant Engert. Can that be supplied to us?
DR. MARX: Excuse me, Your Honor, I can't understand what you are saying.
Your Honor, I can clarify this error without any further ado, because an opening plea on my part does not exist at all, and I wanted to make my statement because of that.
THE PRESIDENT: You have no opening statement to make in defense of Engert at this time, is that correct?
DR. MARX: Yes. Excuse me, Mr. President. In consideration of the existing situation at the present time and before tho medical examination of the defendant Engert has taken place, I do not consider it appropriate to show the lines that the defense will follow, because it isn't possible at all to do so, and cannot be brought into connection with a proper defense of this defendant. Lately it has not been possible to have a clear conversation with the defendant Engert at all. One could n t sneak to him about the questions which are of interest here, and he also showed a lack of ability to remember anything. To be sure it was possible during the presentation of tho case in chief of the Prosecution and on the basis of my own knowledge, of the defense's own knowledge of the law and the facts, to consult with the defendant, but the possibilities for the cross examination were created in the main by the defense counsel himself.
Therefore I request you to postpone the question of tho opening statement until the physical condition of the defendant Engert and tho question as to whether an amelioration of his condition can be expected has been decided by medical expert opinion.
THE PRESIDENT: The Tribunal will postpone the consideration as to the time at which the opening statement for the defendant Engert shall be made until such time as we have seen and examined the medical report. At that time if it is considered necessary and proper that the case should go on against the defendant Engert we will set a time for you to make an opening statement for him out of tho regular order. Is that agreeable to the Prosecution also?
MR. LAFOLLETTE: Yes, Your Honor. I would like for the record to show that the statement of the Tribunal is agreeable to the Prosecution.
THE PRESIDENT: Then we will hear the next opening statement.
DR. GRUBE (For the Defendant Lautz): May I begin my opening statement?
The Prosecution in its arraignment of Lautz has obviously started from 3 wrong suppositions. Tho first erroneous supposition was that Lautz evidently was confused with the Ministerial Official Letz and therefore it was erroneously assumed that Lautz had also been working in tho Reich Ministry of Justice. Only thus can it be explained why in several counts of the indictment with which the Prosecution is expressly charging the Reich Ministry of Justice. Lautz also is mentioned. I do not want to lose myself in details. That the defendant Lautz never worked in tho Reich Ministry of Justice has been proven without a doubt by the evidence submitted so far. But beyond that, I shall furnish proof that Lautz did not take part in any of the measures with which the Reich Ministry of Justice is charged.
The second erroneous supposition from which the Prosecuting Authority sets out is the assumption that there was only one Chief Reich Public Prosecutor, viz.
defendant Lautz. The evidence taken so far has shown that besides the Chief Reich Public Prosecutor of the People's Court, viz. the Chief Reich Public Prosecutor at the Reich Supreme Court. It is due to this error on tho part of the Prosecution that matters have been made the subject of this trial with which defendant Lautz had nothing to do. It is the nullity plea for instance of which I am thinking here; I shall prove in the course of my submission of evidence that this nullity plea could be filed only by the Chief Reich Public Prosecutor at the Reich Supremo Court and not by the Chief Reich Public Prosecutor at the People's Court. It is due to the same erroneous supposition on the part of the Prosecuting Authority, according to which there was only one Chief Reich Public Prosecutor, that in the "Information on the outlines of the German judical system, "which was submitted by the Prosecution at the beginning of the trial, it is started on page 5:
"The criminal prosecution in cases before the People's Court and before the Special Courts, as well as those before the ordinary Courts, lay in the hands of the Chief Reich public Prosecutor. Defendant Ernst Lautz was Chief Reich Public Prosecutor". I shall prove in the course of the evidence to be submitted by me that defendant Lautz was not a superior official to the Public Prosecutors of the Special Courts and other Courts and that he was not competent for the criminal Prosecution of those crimes for which the People's Court was competent, and that he was a superior official only in regard to the personnel of the Reich Public Prosecution at the People's Court. The position of defendant Lautz as Chief Reich Public Prosecutor at the People's Court did not differ in any way from the position of the Chief Public Prosecutors at the District Courts.
Court No. III, Case No. 3.
After these two points have been clarified there remains of all the accusations made against defendant Lautz only the one reproach of his being jointly responsible for the criminal trials carried through by the People's Court. This brings me to the third erroneous assumption on which the indictment against Lautz is based. It is the fact that the Prosecution Authority in its indictment against Lautz, as well as the other Reich Public Prosecutors under indictment here, obviously started from the assumption that the function and position of a German Public Prosecutor are the same as that of the Prosecuting Authority in Anglo-American criminal procedure. As will be proved by the evidence of the defense, the position of Public Prosecutor in the German criminal procedure, as well as the position of the prosecution in general in European jurisdiction, always has been and still is today fundamentally different from that of the Prosecution in Anglo-American jurisdiction. The evidence will prove that the position of a German Public Prosecutor in relation to the law, the Ministry of Justice and the Court in General, as well as his function in individual criminal trials, always have been such that he cannot be made responsible in criminal law for the sentences and their execution, neither objectively nor subjectively. The indictment in the case in question is based amongst other things on the general principles of penal law, such as they are contained in the penal laws of all civilized nations. As an example of this, the Prosecution has quoted legal statements by the judges Stephen and Holmes in its verbal statement. These legal statements concerning penal responsibility are not complete, however. I shall prove by further quotations from legal statements by these two judges, that also according to Anglo-American conceptions the German Prosecutor is not responsible before criminal law for the sentences, provided one really starts from the position which the public Prosecutor always held in relation to the law, to the Ministry of Justice and the Court, and from the functions which he carried out in accordance with German law at all times in individual criminal trials.