 |
may direct him, material of his own to such presentation in the
course of the taking of evidence. Right at the start, I would like to make an
observation concerning the purpose of the so-called counterproof, that is to
say, the proof to be furnished by the defense. This counterproof logically
presupposes at least consistent proof on the part of the prosecution. Such
consistent and incriminating evidence has, in my opinion, not been established
by the prosecution with regard to any of the counts of the indictment. What may
have been established by the prosecution, though only by means of prima
facie evidence, does not justify the charge of intentional acts, termed
criminal under penal law, on the part of the defendants. Of the prosecution's
case in chief must be said: multa non multum. Hence the charges could,
even at the present stage of the proceedings, be dismissed by a verdict of not
guilty. The so-called counterproof of the defense, therefore, is operating in a
vacuum produced by lack of conclusively substantiated evidence on the part of
the prosecution; and counterproof by the defense, considered in the abstract
sense of the term, is not only superfluous, but also logically impossible. The
defense presents this proof only, as it were, diligentiam praestantis
causa.
Under the correct legal interpretation of the London Charter
and Control Council Law No. 10, the prosecution has failed to show that any
crimes actually committed are linked by a causal chain to intentional acts or
omissions on the part of my client. In order to say that he has caused a crime,
his acts or omissions ought to have been shown as having violated a duty under
the law or under the principles of ethics by whose fulfillment he could have
prevented or remedied a wrong. A factor decisive for the conclusion that my
client was not in a position to prevent wrong, let alone to cause such wrong
himself, is the political and social structure of the Third Reich, namely, the
boundless despotism of one single individual and his close confederates, which
deprived my client of the possibility of doing what the prosecution charges
that he did. I am speaking of the terror that prevailed in the Third Reich and
increased as the years went by. I shall try in my main proof, as well as during
examination of witnesses — whenever necessary — to make this terror
stand out in as bold a relief as possible for the benefit of the Court.
Furthermore, my main task (within the framework of the division of
labor and subjects between the various defense counsel) will be to show that
the indictment is built upon a wrong historical conception of the ideological
— and consequently the political — attitude of the social and
professional stratum to which the defendant |
218 |
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