The further artifice of “punishment by analogy,” previously mentioned generally, was as 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, 68-year-old former chairman of the Nuernberg Jewish congregation. Katzenberger was indicted before the Nuernberg district court for so-called “racial pollution,” having been accused of sexual relations with one Irene Seiler, an Aryan 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 Nuernberg which was the hearthstone of the Jew-baiter Streicher, and whose newspaper “Der Stuermer” widely publicized the story, Katzenberger was remanded to the Nuernberg Special Court, tried as a “public enemy,” sentenced to death, and executed. Seiler was indicted for perjury and was joined with Katzenberger as codefendant; her sentence of two years’ imprisonment was later suspended.
As Hans Groben, Nuernberg district court judge for preliminary investigations, describes the case (NG-554, Pros. Ex. 153)—
“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 result of this interrogation and gave him to understand that this was the right time to act against the warrant of arrest. Dr. Herz naturally understood this hint, and at once he filed a complaint against the warrant of arrest. According to the regulation (section 33 of the Code of Criminal Procedure) I put the complaint before the public prosecution, adding in my report that I had the intention to comply with this complaint (section 306, paragraph 2, Code of Criminal procedure), i.e., to set Katzenberger free. I thus clearly expressed with this additional remark that I believed Katzenberger to be innocent * * *. As was later explained to me, the indictment already filed with the penal chamber of the district court was thereupon withdrawn and replaced by one filed with the Special Court.
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“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. For, according to normal procedure, Seiler should have been a witness in Katzenberger’s trial and should have testified for him stating that the charges against Katzenberger were not true. This normally should have led to the acquittal of Katzenberger, as otherwise there was nothing decisive against him. Rothaug’s verdict, in my opinion, was based solely on blind hatred of Jews. While there were no reasons for Katzenberger’s condemnation on the ground of so-called race defilement, there was still less reason to apply section 4 of the ‘Decree against Public Enemies,’ because if it was altogether impossible to ascertain when or if Katzenberger and Seiler had the alleged sexual intercourse, 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 in connection with section 4 of the ‘Decree against Public Enemies,’ it was necessary to violate all the facts of the case. It has always depressed me that such a 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 Nuernberg 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 sentenced in 1940 to 2 years’ imprisonment by the Neumarkt local court for indecent assault on his employer’s wife. A plea of nullity against the decision was filed by the prosecution on the grounds that the sentence was too lenient and the case was reviewed by the Reich Supreme Court with the result that it was referred to the Nuernberg Special Court for retrial. In the court’s verdict sentencing Lopata to death, the presiding judge (the defendant Rothaug) observed (NG-337, Pros. Ex. 186)—
“The total inferiority of the accused lies in his character and is obviously based on the fact that he belongs to the Polish subhuman race.”[54]
In reliance upon the decrees “legalizing” nullification and retrial of criminal cases at 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 Appeals on 5 July 1944 and directed the following (NG-676, Pros. Ex. 178):
“For some time now, the jurisdiction of the penal 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: