“1. Criminal case against Friedrich Linder, sentence of the Second Penal 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 * * *.”[55]
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 Nuernberg District Court of Appeals, says (NG-672, Pros. Ex. 179):
“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, much more numerous than cases where the petition for nullity was demanded for the benefit of the defendant on the Ministry’s 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 (NG-333, Pros. Ex. 177).
“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 an extraordinary appeal had been 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 percent 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.
e. Evidentiary Considerations
Mr. LaFollette: 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 No. 10, which is the inter-power act from which this Court springs, contains some matter relevant to the issue, while Ordinance No. 7, of necessity, treats the matter very fully. Between them they deal adequately with the matter of the competency of proof, intelligently relaxing the rules of 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 people.
But 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.