There is much to be said in mitigation of punishment. Lautz was not active in Party matters. He resisted all efforts of Party officials to influence his conduct but yielded to influence and guidance from Hitler through the Reich Ministry of Justice, believing that to be required under German law. He was a stern man and a relentless prosecutor, but it may be said in his favor that if German law were a defense, which it is not, many of his acts would be excusable.
We find the defendant Lautz guilty as charged upon counts two and three of the indictment.
THE DEFENDANT METTGENBERG
By his own sworn statement the defendant Wolfgang Mettgenberg frankly and fully admits his connection with the Hitler Night and Fog decree. His statements show that he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.
We will not reiterate the statements made by him in his sworn statement and hereinabove quoted. Suffice it to say that Mettgenberg held the position of Ministerialdirigent in Departments III and IV of the Reich Ministry of Justice. In Department III, for penal legislation, he dealt with international law, formulating secret, general, and circular directives. He was regarded as an eminent authority on international law. He handled Night and Fog cases and knew the purpose and procedure in such cases. He knew that the decree was based upon the Fuehrer’s order of 7 December 1941 to the OKW. He knew that an agreement existed between the Gestapo, the Reich Ministry of Justice, the Party Chancellery, and the OKW with respect to the purposes of the Night and Fog decree and the manner in which such matters were to be handled.
The defendant von Ammon was Ministerial Councillor in Mettgenberg’s subdivision and was in charge of the Night and Fog section as shown in this judgment. The two acted together on doubtful matters and referred difficult questions to competent officials in the Reich Ministry of Justice and the Party Chancellery, since both of these offices had to give their “agreement” in cases of malicious attacks upon the Reich or Nazi Party or in the Night and Fog cases. The NN cases came from the Wehrmacht but in some cases directly from the Gestapo. These cases were assigned to Special Courts at several places in Germany and to the People’s Court at Berlin by defendant von Ammon. Mettgenberg and von Ammon were sent to the Netherlands occupied territory because some German courts set up there were receiving Night and Fog cases in violation of the decree that they should be transferred to Germany. They held a conference at The Hague with the highest military justice authority and the heads of the German courts in the Netherlands, which resulted in a reference of the matter to the OKW at Berlin which agreed with Mettgenberg and von Ammon that “the same procedure should be used in the Netherlands as in other occupied territories, that is, that all Night and Fog matters should be transferred to Germany.”
In Department IV for penal administration, Mettgenberg’s work consisted of inspecting execution equipment. He witnessed one execution in 1944. He was entrusted with speeding up clemency applications because prisoners were escaping during air raids. Reich Minister Thierack called the defendant, Rothenberger, Under State Secretary, by telephone at Berlin and instructed him to make decisions concerning the clemency in death sentence cases presented by defendant Mettgenberg who made “reports lasting hours,” and then Rothenberger made the decisions.
The evidence does not positively show that clemency cases presented by Mettgenberg and passed upon by Rothenberger were NN cases. We think, however, that the only conclusion that can be reached from Mettgenberg’s testimony during the trial is that Rothenberger passed upon all clemency matters presented to him by Mettgenberg which included NN cases. Mettgenberg stated that he was appointed to speed up clemency matters due to air raids and that he took the matter up with the Reich Minister of Justice, Thierack, who at the time called Rothenberger on the telephone and told him to receive and pass upon the clemency matters submitted. Mettgenberg testified that he did present clemency matters to Rothenberger by telephone conversations which lasted for several hours and that Rothenberger then made the decisions.
The defendant Mettgenberg assumed the burden of defending the illegality of the Night and Fog proceedings under the Ministry of Justice not only for himself but for all defendants connected therewith. He prefaced this defense with the following statement:
“Today I am still of the view which I expressed in my affidavit. My view is that it was regrettable because the courts, in these matters, could not completely do justice to their foremost task, the finding of the truth. Now that I believe I have heard everything and believe myself to be able to survey the whole matter, I have to say that as concerns the various evils between which one had to choose, a transfer of the NN cases to the administration of justice was, after all, the lesser evil, so that this emergency solution which was made was probably the only possible solution.” (Tr. pp. 6269–6270.)