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 IMT 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 cannot 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 recognition of the criminality of certain acts and developments can therefore be judged psychologically correctly only on the basis of all the conditions and contexts prevailing at that time. That applies particularly to wartime, which in all countries produces special exigencies and places the strongest emphasis on certain desirable facts while suppressing undesirable ones. Retrospective 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. 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 poena sine lege and nullum crimen sine lege is obvious. The question is whether facts constituting criminality were created after the war by the Charter of the London Agreement and the Control Council Law No. 10 which, in violation of the 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.

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 erroneous 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” of Henry Steele Commager, page 46 of the German translation.)

The defense can but concur in these words. The defense requests 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 the prosecution, without the Court having to fear a misunderstanding concerning the above quotation.

F. Opening Statement for Defendant Lautz[77]

Dr. Grube: May I begin my opening statement? The prosecution in its arraignment of Lautz has obviously started from three wrong suppositions. The first erroneous supposition was that Lautz evidently was confused with the Ministry official Letz and therefore it was erroneously assumed that Lautz had also been working in the 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 only, Lautz also is mentioned. I do not want to lose myself in details. That the defendant Lautz never worked in the Reich Ministry of Justice has been proved without a doubt by the evidence submitted so far. But I shall furnish further 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 prosecution sets out is the assumption that there was only one chief Reich public prosecutor [Oberreichsanwalt], viz, defendant Lautz. The evidence taken so far has shown that beside the chief Reich public prosecutor of the People’s Court, viz, defendant Lautz, there was still another chief Reich public prosecutor, viz, the chief Reich public prosecutor of the Reich Supreme Court. It is due to this error on the part of the prosecuting authority that matters have been made the subject of this procedure 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 of the Reich Supreme Court and not by the chief Reich public prosecutor of the People’s Court. It is due to the same erroneous supposition on the part of the prosecution, according to which there was only one chief Reich public prosecutor, that in the “information on the outlines of the German judicial system,” which was submitted by the prosecution at the beginning of the trial, it is stated 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 before these courts. I shall prove that he had only a quite limited competence, viz, competence for the criminal prosecution of those crimes for which the People’s Court was competent, and that he was superior only in regard to the personnel of the Reich public prosecutors 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 [Oberstaatsanwaelte] at the district courts. When these two points have been clarified, there remains of all accusations made against defendant Lautz only the one accusation of his being coresponsible for the criminal procedure carried through before the People’s Court. This brings me to the third erroneous supposition on which the indictment against Lautz is based. It is the fact that the prosecution in its indictment of 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 among 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 indictment. 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 starts from the position which the public prosecutor always held in relation to the law, 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. Although I am convinced by virtue of this legal position that defendant Lautz cannot be made responsible before criminal law for the sentences pronounced by the People’s Court, I shall, nevertheless, help to prove by my submission of evidence that the People’s Court was an unobjectionable institution; that any trial before it gave the defendants every guaranty of justice; and that the sentences of the People’s Court and their execution did not constitute any violation of international law, of the general principles of penal law, or of article II of Control Council Law No. 10. I furthermore shall prove that defendant Lautz had nothing to do with penal administration. It will be proved that the institutes for penal administration were not subordinated to him and that he had no possibility of influencing them or penal administration in any way.