Politics and Justice: A Case Study
CLAUS JORDAN
Preface
Our justice system is based on the principle of a separation of
powers. The administration of justice is supposed to be independent
of politics. It does, however, have to conform to the law, and laws
are passed by political bodies. So far, so good - at least as long
as legislative practices in turn are committed to upholding the
legal traditions that have evolved over time and have been tried
and proven in practice.
But if legislative practice begins to be guided by political opportunism,
and if special laws are passed to which jurisprudence must bow,
then the administration of justice becomes a tool of politics.
The 1979 rescission of the statute of limitations is an example
of special legislation that has had grave consequences. The decision
to revoke this statute was the result of political pressure. Concerns
regarding potential miscarriages of justice were rationalized away.
The case of Gottfried Weise, set out in this chapter, shows how
very justified these concerns were and how thoughtlessly all cautions
were swept under the table.
It is my hope that the discussion of this case will prompt the correction
of the legislative error of 1979 and that our justice system will
return to its naturally evolved tradition, as it was predicted that
same year:
"[...] Perhaps there will in fact be a few new cases that are
brought to trial as a sort of justification (eagerly seized
upon) for the rescission of the statute of limitations. According
to the experts, however, it is not likely. In light of the strict
rules of evidence, which cannot be tampered with, it is doubtful
that any verdicts can still be handed down. One day, around
the year 2000, the stipulation that murder is not subject to
a statute of limitations will be discovered amongst the nooks
and crannies of our justice system, and people will wonder how
this came about. The umpteenth revision to the Criminal Code
will then casually correct the problem - unless by that time
we will have a state which claims for itself that omnipotence
that we are yet free to call 'hubris'."1
1. Rescission of the Statute of Limitations: Breach of Legal
Tradition
On March 20, 1979 and July 3, 1979 the members of the Bundestag,
the lower house of the then West German Parliament, debated on the
rescission of the statute of limitations for murder. The corresponding
bill was passed into law on July 3, 1979 with a margin of 255 to
222 votes.2
1.1 Influence From Abroad
Naturally there was interest in this question abroad, but this interest
was fostered by German circles as well. For example, in an article
titled "American Delegation on the Issue of Rescission: Today at
Schmidt's" the newspaper Frankfurter Allgemeine Zeitung reported
about a tour by the Los Angeles "Simon Wiesenthal Center for Holocaust
Studies" that had been financially supported by the German Foreign
Office in Bonn.3 Members of the Israeli Parliament also sought to
influence the decision-making process at the urging of German authorities.
For example, Gideon Hausner, member of the Knesset and the Israeli
Holocaust Center Yad Vashem, reports that German Federal Chancellor
Schmidt urged him to impress upon the German legislators that National
Socialist crimes must not be allowed to lapse under a statute of
limitations - which he proceeded to do most insistently.4
1.2 Judicial Concerns
Reminders that Article 103 of the Basic Law prohibits retrospective
laws were brushed aside with reference to a 1969 decision of the
Federal Constitutional Court. The opponents of the rescission of
the statute of limitations raised further judicial concerns. Dr.
A. Mertes (CDU/CSU) pointed out the conflict between justice, and
peace as ordained by the law. In European legal tradition, limitation
means exclusively the
"protection of the state from miscarriages of justice."
And:
"In the countries belonging to the Anglo-American legal community,
the state safeguards against the risk of injustice in other
ways, namely through the principle of opportuneness and through
especially strict rules of evidence. In German and European
law, limitation is the necessary corrective to the principle
of legality." [...] "Incidentally, it is one of the great hypocrisies
of our time that the punitive purpose of expiatory justice is
everywhere relegated to second place in favor of resocialization,
while in the case of National Socialist crimes expiation is
made the foremost and sole purpose of punishment even after
35 to 47 years of resocialization."5
In his position statements, H.-J. Vogel, then Federal Minister of
Justice, did not express any concern about miscarriages of justice,
but responded merely to the suggestion that alleged National Socialist
criminals could no longer be convicted anyhow due to lack of evidence.
He commented that modern techniques of criminal investigation were
able to
"secure evidence of crimes and perpetrators in a way that allows
the conviction of the criminal even decades after the fact."6
But he made no mention of applying the techniques of modern criminology
to ensure the prevention of miscarriages of justice.
One-sided investigation was cautioned against by opponents of rescission
who feared that convictions might result despite insufficient evidence.7
Proponents, on the other hand, cited the principle of in dubio pro
reo - ie. "when in doubt, acquit" - which practice they clearly
considered a matter of course.8 This certainly was shown even more
clearly by Fromme in his aforementioned newspaper article where
he wrote of "the strict rules of evidence, which cannot be tampered
with," as of something self-evident and to be taken for granted.
None of these 'self-evident' matters were acknowledged in the case
of Gottfried Weise: Weise was convicted with nary a thought given
to the acquittal demanded by reasonable doubt. The strict rules
of evidence were tampered with most grossly, and to the defendant's
detriment. And there was no sign of modern forensic or criminal
investigation in his trial, least of all where such endeavors would
have resulted in an exoneration of the accused. - However: H.-J.
Vogel had suggested such techniques for strictly one-sided purposes
anyhow, namely to procure incriminating evidence.
1.3 The Fig-Leaf: An Expert Report
Originally the statute of limitations was to be rescinded only for
cases of so-called NS-murders.9 Members of Parliament Maihofer and
Helmrich openly supported this plan. However, constitutional concerns
were raised about such very obvious special legislation, so that
in the end the rescission was applied to murder in general.
The question regarding the constitutionality of a general rescission
of limitation for murder remained open. In his capacity as expert,
Professor Böckenförde had stated that the rescission of limitation
becomes unconstitutional if it means that normative regulations
of trial procedure can no longer be uniformly applied. He wrote:
"[...] This may happen, for example, if... the results obtained
are random at best, ie. due to the unstoppable deterioration
of evidence, insurmountable investigative difficulties, lack
of opportunity for effectively securing evidence, fundamental
uncertainty or insufficient objectifiability of the crime.
"It is beyond the scope of this report to ascertain whether
a rescission of the statute of limitations for NS-murders or
for murder in general would reverse into such impracticability.
This requires a detailed practical understanding and assessment
of actual conditions, particularly of the investigative and
evidential problems involved [...]."10
In other words, this report did not state that the rescission was
constitutional. Rather, it stated that at the time (1979) no unconstitutionality
was yet apparent, and that to determine this matter conclusively
it would be necessary to examine the "actual conditions" of several
cases.
1.4 Empty Promises
One empty promise was the assurance, given when an expert report
was obtained, that the overall constitutionality of the matter would
be ascertained. In fact however, clearly no-one in politics or science,
no-one amongst the guardians of democracy, and no-one in the media
really wants to know, else the supplementation and conclusion of
the report would long have been commissioned by now, either from
Professor Böckenförde or from another source.
In 1979 the embarrassing vulnerability of the core issues of "constitutionality"
and "miscarriage of justice" were shielded with Böckenförde's unfinished
report as with a fig-leaf, garnished with sanctimonious averments.
Now the case of Gottfried Weise reveals that these were but hollow
phrases and empty promises.
2. The Case of Gottfried Weise: an Example of Reversal Into
Impracticability
In 1988, pensioner Gottfried Weise was convicted in Wuppertal on
five counts of murder. An examination of the Wuppertal trial reveals
all the characteristics identified in 1979 by Professor Dr. Böckenförde
as being signs of a reversal into impracticability:
a) Unstoppable Deterioration of Evidence: for example, it has been
impossible to obtain the transfer papers which, together the two
other documents on hand, would prove that Weise was not employed
at the alleged site of the crime in Auschwitz until September 1944
(the alleged time of the crime being "June/July 1944").
b) Insurmountable Investigative Difficulties: for example, the Court
was not even able to develop a realistic conception of the alleged
site of the Freimark cases. (cf. Section 2.2.2.)
c) Lack of Opportunity for Effectively Securing Evidence: for example,
both the Public Prosecutor's Office and the Court neglected to obtain
a statement from former inmate Dr. Eisenschimmel in time. This testimony
would have gone a long way towards exonerating the accused. When
the defense attempted to secure this testimony, Dr. Eisenschimmel
was already so ill that he could no longer testify.
d) Lack of Objectifiability of the Crime: Wherever concrete facts
were concerned, the Court was always very vague in its "findings".
In the Freimark cases, for example, the alleged time of the crime
was given as "June/July 1944", and the names and sometimes even
the sex of the alleged victims are not stated. This makes it much
more difficult to locate concrete counter-evidence such as might
have been possible, for example, by cross-reference to the Auschwitz
Death Lists now available.
The Wuppertal Court "overcame" the evidential problems only by deviating
considerably from the "strict rules of evidence".
Another point which must be mentioned is one that Böckenförde could
not possibly have conceived of because he spoke from the perspective
of naturally evolved legal tradition: What happened in the Wuppertal
trial was practically a
e) Reversal of the Burden of Proof: the accused was in the desperate
position of being unable to prove his innocence, eg. to prove that
he could not have been at the alleged site of the crime at the stated
time. The Court was satisfied with contradictory and vague eyewitness
statements, whose doubtful quality it glossed over with the claim
that it was exactly these contradictions that showed that the witnesses
had not coordinated their testimony beforehand. It was up to the
accused to prove his innocence.
It was not until long after the trial that exonerating evidence
was found which the prosecutors had unlawfully avoided and prevented
from being obtained in time.
2.1 Overview of the Background, Course and Consequences of the
Wuppertal Trial of Gottfried Weise
2.1.1 Background of the Case of Gottfried Weise
Gottfried Weise was badly injured as soldier, and lost an eye. He
was certified unfit for frontline or guard duty, and after training
as bookkeeper he was detailed to the concentration camp Auschwitz,
where he was first employed in the Häftlingsgeldverwaltung (Bookkeeping
for Prisoners' Funds) outside the Camp and later in the "Personal
Effects Warehouse II" in Birkenau, where the possessions of camp
inmates were stored. There Weise had to supervise a group of Jewish
women. After Auschwitz was dissolved he conducted this group safely
to the Allies, via Ravensbrück. All of "his" inmates had testified
for him: how he had worked to make their lot easier in Auschwitz,
that they had been glad to be reassigned to his command during the
transport, that once he had even carried a disabled girl out from
under Russian artillery fire. After minute scrutiny in the course
of three years of imprisonment, Gottfried Weise was released. His
conscience was clear, and so he proceeded to do something quite
extraordinary: through the Red Cross and the World Jewish Congress
he searched for his former protégés. In the verdict handed down
by the Wuppertal District Court,11 however, these efforts on the
part of the accused are only mentioned disparagingly as signs of
his great cunning.
2.1.2 How Did the Indictment Come About?
In 1962 in Vienna, in the trial of Richard Baer, one witness, Herbert
Tischler, had told of an SS Unterscharführer or Rottenführer "Weiser"
who, he claimed, had killed an inmate when he tried to shoot a tin
can off his head. Thus "Tell of Auschwitz" was born.
Yes, an official document identified Tischler as an unreliable witness.
Yes, it was a known fact that he was wanted by Interpol for all
sorts of criminal acts. But as witness for the prosecution in an
NS trial, Tischler was considered credible. His reference to the
alleged "Tell of Auschwitz" entered the mills of criminal prosecution.
The alleged "Tell shooting" was ascribed to former Unterscharführer
Gottfried Weise. Inquiries were begun in 1980: questionnaires with
details of the alleged crime and with photos of Gottfried Weise
were sent to Poland, Israel, Hungary, and the United States.
In other words, witnesses were sought - and found. With the example
of the witness Freimark I will show how this search for witnesses
and the "refreshing" of their memories was done.
2.1.3 What Were the Charges?
On June 7,1985, the Public Prosecutor's Office of Cologne charged
the pensioner Gottfried Weise, resident in Solingen, born in Waldenburg
on March 11, 1921, with having committed murder in the concentration
camp Auschwitz.
On January 28, 1988, Weise was found guilty of five counts of murder
and sentenced to life imprisonment by the Wuppertal Jury Court headed
by Wilfried Klein, now vice-president of the Wuppertal District
Court.
According to the witness Lazar, the accused committed two murders
(the "Lazar cases") in Personal Effects Warehouse II by means of
the so-called "tin can shooting", where the accused placed tin cans
on the head and shoulders of his victims and then shot at the tins
and then at the victims.
According to the witness Freimark, the accused also committed three
murders (the "Freimark cases") in "June/July 1944" in "Personal
Effects Warehouse I", namely:
a) one murder in a barracks (the "barracks murder"), and
b) approximately four weeks later, two murders in an area between
the camp fence and a ramp some 30 ft. away (the "ramp murder").
2.1.4 How Did the Trial Proceed?
The entire trial took place against the backdrop of a foregoing
conviction of the accused in a scenario of hatred. The press and
the Court complemented each other. For example, the press report
quoted in the following repeated eyewitness testimony which, though
proven to be false,12 was gullibly accepted at face value not only
by the credulous public but also by the Court, which actually included
even this so easily refutable atrocity tale in its written Reasons
for Sentence:13
"Children Were Thrown Alive Into The Burning-Pit"
"[...] When a new transport of inmates arrived at the camp,
the children were immediately separated from the rest of the
group, and thrown alive into a blazing fire-pit, [...].
"Suddenly, the intoxicated 'Blind One' arrived (that's what
the inmates called the accused, Weise), turned the light on
and ordered Olga... to dance... It was horrible! Outside, the
screams of the children...
"The Blind One ordered the pregnant girl to stand still, and
kicked her in the stomach with his boot. The young woman screamed
and collapsed. [...]"14
This sort of atrocity tale served to brand the accused as "Beast
of Auschwitz" - not only in the eyes of the public, but also in
those of the Court. While the accused was not convicted for the
alleged live burnings, the assumption that they did take place and
that the accused had displayed a great deal of callous hard-heartedness
most certainly did influence the Court in reaching its verdict.
This is proven clearly by the detailed way in which the Court repeats
this atrocity tale in its Reasons for Sentence and then accuses
the defendant of "utterly callous hard-heartedness".
The biased attitude of the judges was also clearly apparent in the
courtroom. For example, the VVN - the Organization of Persons Persecuted
by the Nazi Regime, a group known at that time to be financed from
East Germany and directed by the Stasi, the East German State Secret
Service - this VVN had handed out fliers in and outside the courtroom.
The presiding Judge offered a gentle reprimand for the distribution
of the fliers in the courtroom - something like that, he said, should
not be disseminated about the accused until after he had been convicted.
But no stop was put to the continued distribution of the leaflets.
The constant taking of shorthand notes by representatives of the
VVN and by "escorts" of the witnesses for the prosecution was also
not forbidden by the Court, which kindly overlooked it. (Incidentally,
Ruth Kulling of the VVN always had a seat in the area reserved for
members of the press.) In contrast, the defense counsel had urged
the son of the accused to refrain from taking notes, as doing so
was not permitted during the trial. - Several times it was also
observed that the VVN members, after making their shorthand transcripts
with impunity, proceeded to read their notes to the witnesses for
the prosecution before these took the witness stand.
In any normal trial the defense could and should have intervened
here, but in light of the scenario of hate that had been tolerated
and even partly contributed to by the Court, the Defense in the
Wuppertal trial saw no purpose in doing so. In order to avoid providing
even further material for all the advance preparation and choreographing
of the witnesses for the prosecution (in flagrant violation of all
rules of procedure, by the way), the Defense Counsel had advised
the defendant to refrain from making any statements of his own.
After the verdict had been handed down, the press twisted this accordingly:
"The defendant's silence, said Klein, showed that Weise had
no facts with which to counter the accusations - 'the past has
caught up with him now and will not be hushed up'."15
No-one seems to have noticed the monstrous implications of this
statement: the defendant had no facts with which to counter the
accusations...! What this suggests is that the accusations advanced
in the indictment and by the witnesses were facts in and of themselves,
which the accused was unable to refute. But accusations are by no
means facts.
But the reversal of the burden of proof, accepted so matter-of-factly
by the press, is no mere slip of the judicial tongue. The closer
one examines the trial documents, the more clear it becomes how
much the Court allowed its own bias to guide it. In any "normal"
trial the accused is presumed innocent until proven guilty, and
any uncertainty dictates the maxim "when in doubt, acquit". In Wuppertal
this was not so.
In the given situation of reversed burden of proof, it was of course
an easy matter to turn all the many investigative problems, which
are well to be expected in such a very late trial, against the accused
- especially those set out in Sections 2a-c.
Nevertheless, the accused would have had a fighting chance to prove
his innocence - if that's the way it had to be - if the Court had
not inexorably restricted or downright denied him every opportunity
for doing so. One of the hobbles placed on his defense was that
the Court relentlessly perpetuated the prosecution's one-sided selection
of witnesses: the prosecution had a wealth of information regarding
potential witnesses at its disposal; it was the duty of the Public
Prosecutor's Office to sift through these for witnesses for the
prosecution as well as for the defense, but this was not done. Even
in the course of preliminary investigations the former inmates were
only urged to testify if they claimed to have incriminating information,
such as for example the witness Lazar in her testimony in Budapest
on June 2, 1987 and June 16, 1987. The transcripts16 show, among
other things, how compassionately and urgently the presiding Judge,
Klein - who had travelled all the way from Wuppertal for this purpose
- strove to persuade the witness to consent to testify in Wuppertal.
Potential witnesses for the defense were dealt with rather differently:
When the Defense suggested the questioning of an ill witness, Ms.
Korn, in Israel, this was rejected: "The motion to hear evidence
does not indicate any reasons that the witness can be examined in
the foreseeable future."17
The defense attempted to counteract this one-sided selection of
witnesses by submitting numerous Motions to summon former inmates
(more than 20) and by further Motions to hear evidence, but all
were summarily rejected. These refusals were justified time and
again by the comment that the best these witnesses could do anyhow
would be to testify that they knew nothing of the alleged crimes
committed by the accused. This sort of testimony was said to be
irrelevant because, first of all, the inmates couldn't have known
everything and, second, after 43 years they could not possibly remember
exactly.
The Wuppertal Court consistently downgraded Motions to hear evidence,
submitted by the defense, to the level of Motions to obtain evidence,
only to reject them.18 In the first Order for Exemption From Imprisonment,
however, the Provincial High Court and Court of Appeal in Düsseldorf
had stated that in its view all potential witnesses should be heard
since the difficulty involved in establishing the truth after such
a long time warranted this.19 This is most remarkable, as it is
not the usual procedure for another court to attend to matters of
ascertaining facts; on principle, this is the sole task of the Court
responsible for the trial. The Provincial High Court and Court of
Appeal in Düsseldorf reinforced its opinion by granting Weise renewed
exemption from imprisonment after the Wuppertal verdict.
Another example of suppression of evidence is the testimony of Isaac
Liver, given on October 18, 1985 at the headquarters of the National
Police in Villejuif, France. The numbers in the following quoted
excerpts refer to written questions to the witness:
"No. 2: I worked in 'Camp Canada', first in Auschwitz in Canada
No. 1, then in Canada No. 2, which was in Birkenau, approximately
4.3 miles from Auschwitz. In 1944 I was in Birkenau [...].
"No. 4: The name Gottfried Weise and the nicknames 'the Blind
Man' or 'Sleepy' are absolutely unfamiliar to me.
"No. 5: I did not witness the crimes mentioned in this brief
and never heard anyone talk about them. I believe that this
story is untrue, as there is no doubt that all the prisoners
in the camp and probably those in the other camps as well would
have known of it."
"Personally I feel that this story is untenable; everything
described in this brief [!] is completely new to me and if these
things had really taken place in the camp the way they are described,
I could not but have known about them."20
An unprejudiced court would naturally have examined precisely this
witness in detail so as to avoid getting a one-sided account of
the events, to avoid giving the public a one-sided story, and to
ascertain the powers of recollection and the credibility of the
various witnesses by comparing their testimony. But the Wuppertal
Court "knew" from the outset which witnesses were credible and which
were not: and so the witness Isaac Liver was not heard. The transcript
of his earlier examination, while available to the Court, was not
read, thus remaining unknown to the public as well as to the jury.
Other testimony that could have exonerated the accused and corrected
the purely negative way he had been presented to the public was
swept under the carpet the same way.
Not only did the Court refuse to call witnesses for the defense,
it also thwarted the timely presentation of material evidence. This
will be discussed in greater detail in Section 2.1.7.2.
2.1.5 Reasons for Sentence
On January 28, 1988, the First Division of the Wuppertal District
Court's Jury Court decided that the accused was guilty of five counts
of murder, the overall sentence being life imprisonment.
The first 18 pages of the Reasons for Sentence are devoted to a
representation of the "historical background" based on "generally
known and historically established facts" with
"reference to, for example: Buchheim/Broszat/Jacobsen/Krausnick,
Anatomie des SS-Staates, Walter-Verlag, volumes I and II; Hofer,
Der Nationalsozialismus - Dokumente 1933-1945, Fischer-Verlag;
Kogon, Der SS-Staat, Wilhelm-Heyne Verlag".
This list of works is completely lacking in any Auschwitz literature
giving sound, verifiable and useful factual information.
It is not surprising, therefore, that the descriptions of the camp,
its organization and circumstances, which take up another 40 pages
of the Reasons for Sentence, contain numerous patently and verifiably
false claims and statements. For example, on pages 57-58 of the
Reasons for Sentence it actually states, verbatim:
"For many of the inmates their most valuable possession was
a bowl that served equally for their calls of nature and for
eating out of."
And:
"The purpose served by the concentration camp Auschwitz as mass
extermination camp shall not be discussed in detail here, as
the crimes which the defendant committed ie. is said to have
committed are not connected with the orders given in the context
of the 'Final Solution'."21
But details mentioned further on in the Reasons for Sentence repeatedly
refer to the well-known scenario. One example of this is to be found
in the context of the Wuppertal Court's attempts to explain away
particularly incredible claims contained in the witness Lazar's
thoroughly imaginative testimony:
In Budapest, Lazar had stated under oath that she had personally
seen many murders taking place, for example:
"3. I could move around freely in 'Camp Canada' and so I could
observe how SS-men shot prisoners.
"4. Executions happened almost everyday, almost hourly. I saw
it with my own eyes."22
Now this was in contradiction to the statements of most former inmates
who had testified earlier. But the Court managed to come up with
an explanation for this "discrepancy". It explained this gross exaggeration
away by stating that the experiences associated with the mass dyings
taking place at the nearby crematoria had fused with the personal
memories of the witness.23
At numerous other points in the Reasons for Sentence as well, the
Judges made reference to the "commonly known, historically established
facts" in which they believe so firmly. For example, the absolutely
unbelievable claim that the accused could take wild potshots in
the camp with impunity is simply rationalized with the comment that
after all it is "commonly known" that the life of an inmate was
of no value.
Even if one were to accept the "commonly known" nature of this idea,
one ought at least to have asked how such mad pistol-popping could
have been possible without also endangering the other guards. In
a somewhat closer investigation one could have examined old guard
books, which would have revealed that every weapon, each and every
bullet had to be accounted for. For example I had no trouble obtaining
a number of sample pages from concentration camp guard books from
archives in Prague - pages which document precisely that the procedure
of issuing weapons and ammunition, which every soldier is familiar
with, was also observed no less strictly by the concentration camp
guards. With a little less "common knowledge" and a little more
objective investigation the Court would not have fallen for that
bit of nonsense about the mad beast taking potshots in the camp
whenever he pleased, and getting away with it without so much as
a reprimand.
Under German law there is no appeal in matters of fact, which would
permit the re-examination of the "findings" which the Court arrived
at in this way of "common knowledge". In murder trials there is
no option for appeal, only for "revision", which investigates technical
errors of procedure but does not examine facts deemed to have been
established as such.
2.1.6 Revision
The defense had concentrated on the "Lazar cases", and on the branding
of the accused as "the Beast of Auschwitz" which they involved.
The defense considered the witness Freimark, who did not enter the
picture until quite late, to be so utterly incredible that it felt
that a conviction based on his accusations was impossible. This
was a mistake on the part of the defense, which was not versed in
the vagaries of Special Trials. Nothing was impossible in Wuppertal.
The attorney in charge of the revision also focused on the "Lazar
cases". He believed that evidence for even partial incorrectness
would force a new trial. This was another mistake with tragical
consequences for the accused: on March 31, 1989, the Federal Supreme
Court quashed the verdict, but only with reference to these two
alleged murders - while, surprisingly, upholding it for the remainder
of the charges, ie. for the other three alleged murders, the "Freimark
cases".
2.1.7 The Final Verdict: The Freimark Cases
What was the nature of the "very 'personalized' evidence" (as the
attorney for revision put it) in these Freimark cases that had not
been affected by the revision process?
On the basis of Freimark's testimony the Wuppertal Court had considered
three murders in "Personal Effects Warehouse I", "the so-called
Old Camp Canada", to be proven:
a) Shooting of an unidentified male inmate on an unspecified day
in June or July 1944. This crime was said to have been committed
in a barracks described by the Court as "Bedding Barracks".
b) Approximately four weeks later (but still in "June or July 1944"):
shooting of two inmates from Grodno (sex unspecified). Another inmate
is said to have been murdered by SS-man Graf on this occasion. (This
branded Graf as murderer and discredited him as witness for the
defense. He had been acquitted by a Viennese court. The Wuppertal
Court fought tooth and nail against having the Viennese records
brought in for reference.) These crimes allegedly took place in
an area between a fence and a ramp located at a rail line some 30
ft. from the fence. At the time of the crime hundreds of inmates
had been boarding "thirty to forty" wagons via the ramp, while bright
floodlights made the night as bright as day.
2.1.7.1 Unconditional Faith in Freimark's Statements
For the Wuppertal Court, the testimony of the only alleged eyewitness,
Freimark, sufficed to warrant a conviction. The Court commented
on Freimark:
"The credibility of this witness is beyond question."24
"His credible testimony is already enough to convince the Court
of the factuality of the crimes of the accused as these are
set out in 1a) and b)."25
It was very rash to condemn a person to life imprisonment on the
sole basis of trust in the veracity and probity of one single witness.
Despite all the difficulties ensuing from the advanced deterioration
of evidence it was possible to find new proof which reveals that
the witness Freimark had not told the truth.
The Court's unconditional faith in its witness Freimark is incomprehensible.
Many contradictions were already apparent during the trial; the
Court chose to ignore them. For example, no-one bothered to take
note that Freimark had claimed that, having been a Jewish political
inmate in Auschwitz, he had had to wear a green identifying patch.
Closer scrutiny would have shown that time and again Freimark has
given different accounts of this aspect of his internment which,
after all, must have been of paramount importance to him during
his time in the concentration camp. Asked "what sort of patch?",
he is now known to have answered in the past: red-yellow (1962),
green (1966), green (1968), green and red-yellow (1988), green-yellow
(1989).65 These and many other inconsistencies were never investigated
by the Wuppertal Court. When the defense drew attention to contradictions,
these references were ignored.
The most important discrepancy is to be found in Freimark's statements
regarding the time when he was ill with typhus. It is undisputed,
for example, that Gottfried Weise was not detached to Auschwitz
until late May 1944, and spent the first eight weeks with Bookkeeping
for Prisoners' Funds, which office was located outside the camp.
The defense was able to prove this on the basis of two documents.
Further, the witness Freimark had stated earlier that he had contracted
a severe case of stomach typhus in late May 1944.
According to the documents at hand, therefore, neither Freimark
nor Weise could have been at the alleged site of the crime at the
time claimed for the crime ("June/July 1944"). But the Court managed
to iron out this minor "wrinkle": Weise might very well have been
assigned to guard duty every now and then (Weise had been certified
unfit for guard duty), and Freimark (who was utterly infallible
any other time) may have been mistaken in his earlier statements.
Of course Freimark confirmed most happily that, oh well, in that
case he had simply not fallen ill until a little later. And the
Court commented that the discrepancies in Freimark's claims regarding
the time of his bout of typhus did not reflect on his credibility
as witness because his testimony was supported by circumstantial
evidence.26 Freimark declared that his earlier "mistake" was due
to the fact that during his questioning in 1968 he had "not paid
any particular attention" in giving the time of his illness.27
2.1.7.2 Mis-Timed Circumstantial Evidence
The defense had requested that documentary evidence be obtained
to verify Freimark's illness. The Court received such papers the
day before the verdict was handed down, and believed it had reason
to rejoice. The documents that had been located - medical papers
from concentration camp Auschwitz - proved, it said, that the witness,
Freimark, had been examined in the Inmate's Infirmary in August
and September 1944 for suspected typhus. It was felt that, aside
from eyewitness testimony that needed to be artificially lauded
to the skies, one had now finally found some material (even though
presumptive) evidence that might serve as spur to the intent to
convict: circumstantial evidence to indicate that Freimark's new
claim as to the time of his illness was correct. What was smoothly
overlooked was the fact that in his most recent testimony Freimark
had claimed "October 1944" as the new date of the onset of his illness,
not "August or September 1944". The Court was only able to maintain
these erroneous claims by consistently refusing all of the Defense's
Motions to bolster this circumstantial evidence with supplementary
documentation.28
But even this prop, patched together as it was out of fragments
of the existing presumptive evidence, had been mis-timed by the
Court. It wrote:
"In the documents of August 14, 1944, for example, it was noted
under no. 9 of the list, regarding the examination of former
inmate and witness Jakob Freimark: '87215... Freimark, Jakob...
Clinical diagnosis: suspected typhus [Typhusverd.]', while for
other inmates the result given was 'typhus still suspected [noch
Typhusverd.]', merely 'Typhus', etc."29
What this indicates is that Freimark's illness was by no means far
advanced towards recovery ("typhus still suspected [noch Typhusverd.]")
nor even full-blown ("Typhus"), but that there was merely a preliminary
suspicion of typhus, in other words, that at most he had only just
contracted the disease. It should be noted, however, that neither
among the numerous infirmary documents that were turned up later,
nor among the Court documents, is there any infirmary paper that
states "typhus still suspected" [ie. "noch Typhusverd."]. It is
also strange that only two of a whole series of relevant documents,
available at the Auschwitz Museum, were read by the Court, and at
the last minute. And what is no less strange is the steadfast claim
that there were no further infirmary papers regarding Freimark.
The defense had no opportunity to take a closer look at the laboratory
papers, which were not read to the Court until the day of the verdict.
In this way the Court was able to sustain the fiction that Freimark's
illness must have broken out some time after August 14, 1944 and
that he had been fully recovered again by September 18, 1944. Further
evidence has been found now which disproves this tale, which was
thoroughly unbelievable from the start.
2.2 New Evidence, Motion for Retrial, Dismissal, Objection
A motion for retrial was filed in the case of Gottfried Weise in
late 1992. On April 22, 1994, the District Court in Mönchengladbach
dismissed this motion, which decision was communicated to the prisoner
in late May. Weise's attorney objected to this dismissal. The new
evidence on which the motion for retrial is based was, in part,
ignored completely in the dismissal and, in part, rejected for technical
or insufficient reasons.
2.2.1 "The Wrong Time" - New Evidence for the Incorrect Time
Alleged for the Onset of Freimark's Case of Typhus
2.2.1.1 Infirmary Papers Discovered After the Fact
What baffles me is why a judicial scandal did not already erupt
years ago, when it was shown how casually the Wuppertal Court had
interfered with the obtaining of further evidence, because allegedly
"[...] there is nothing to indicate that the state-operated
Auschwitz Museum in Poland has access to any documents beyond
the aforementioned infirmary papers, which have been put at
the disposal of the Red Cross International Tracing Service
in photocopy form."30
In actual fact, a total of seven laboratory reports relating to
Freimark's illness could be found:
1) Aug. 13/14, 1944 (Blood, results: not yet "sterile"),
2) Aug. 28, 1944 (Stool, results: still some pathogenic intestinal
bacteria),
3) Aug. 28, 1944 (Blood, results: not yet "sterile"),
4) Sept. 5, 1944 (Stool, results: still some pathogenic intestinal
bacteria),
5) Sept. 8, 1944 (Blood, results: "sterile" for the first time),
6) Sept. 11, 1944 (Stool, results: only normal coli bacteria, for
the first time),
7) Sept. 18, 1944 (Blood, results: still "sterile").
The Court based its opinion - that "in that case" Freimark had simply
not fallen ill until August - on the two aforementioned papers that
were allegedly the only ones that could be found: on two of seven
now known lab papers, specifically the first and last links (Nos.
1 and 7) of the chain of evidence.31 If the Defense had been granted
an opportunity to examine the papers presented by the Court, then
it could have determined even on the basis of only these two lab
papers, nos. 1 and 7, that something was wrong with the Court's
interpretation: the results of no. 1 did not yet indicate "sterile",
while the results of no. 7 did. If nothing else, then this "sterile"
result on no. 7 - had it been known to the Defense - would have
sufficed to make the Defense suspicious. This was the first instance
where the accused was denied a means to defend himself in this particular
matter; his second means of defence, the obtaining of documents
no. 2 through 6, was also denied him - and of course the Motion
to obtain an expert medical opinion was refused as well.
Fig.1: First "sterile" entry for Freimark, on lab report
dated Sept. 8, 1944. "Sterile" entries were also made for the
other two patients.
The documents found after the fact now prove that Freimark's case
of typhus did not break out "in August 1944", as the verdict claims.
The sequence of documents shows clearly that Freimark could not
have contracted his acute case of typhus between August 13 and September
18, 1944. However, his lengthy and severe bout of typhus is undisputed,
and also established in the verdict. But the documents prove that
it did not break out and become cured within the time span of August-September
1944. But when else should the illness have occurred: before or
after August-September 1944? The specialists' statements now available
to the Defense state unequivocally that the second entry of "sterile"
(according to the Gruber-Widal test) at the end of the series of
lab tests is typical for the conclusion of a final check-up in accordance
with the regulations pertaining to epidemic control at the time
in question. This could already be proven by means of the bacteriological
findings that have been available since 1990, but evidence regarding
the severity and hence the duration of Freimark's preceding illness
was as yet still lacking.
In January 1995 the Defense, at long last, also obtained copies
of the serological reports. (For an account of how this evidence
was obtained in the face of strenuous official opposition, see Section
4.2, "False Claims Made by the Wuppertal Court".) These serological
reports contain the following information pertaining to Freimark's
blood tests:
August 14, 1944 - titre 1:800,
August 29, 1944 - titre 1:800,
September 8, 1944 - titre 1:200.
"Titre" is the term used for the results of serological tests (degrees
of dilution in agglutination tests). Titres are first measurable
a minimum of two weeks after the onset of illness, and often "not
until much later, approximately 30 days" following onset. Values
begin at 1:100. As the illness progresses, titres slowly increase
to 1:400 or more. "The agglutinative potential persists for many
months following recovery from the illness."32
A titre of 1:800 on August 14, 1944 (sample of August 13, 1944)
means that Freimark must have contracted typhus long before that
date. All the medical experts consulted agree on this point. Further,
the titre of only 1:200 (September 8) indicates that Freimark's
convalescence was already well advanced at this time. Therefore,
Freimark must have been severely ill with typhus prior to August
1944, in other words, in June/July 1944 as he had stated originally.
To establish this as evidence relevant to the Court, Weise's attorney
has requested the consultation of a Court-approved expert - but
his requests, submitted repeatedly for several years now, have been
in vain.
But even without an expert medical report it can be proven that
Freimark's illness cannot have begun after September 1944, since
as Freimark himself testified, he had participated for at least
a few weeks in the preparations leading up to the Crematorium Uprising
of October 7, 1944. - The only remaining possibility, namely that
he fell ill before August 1944, is confirmed by many other statements
of Freimark's. His initial claim that he fell ill "in late May 1944"
is supported in many ways by his further statements.
The District Court of Mönchengladbach again ignores the significance
of the 'sterile' entries, it again ignores the regulations for epidemic
control that were in effect in those days, and it again rejects
the consultation of an expert. Weise's attorney had requested "an
expert report, to be drawn up by an epidemiologist specializing
in hygiene and bacteriology". As the Wuppertal Judges before them,
their colleagues in Mönchengladbach now claim with universal expert
knowledge that the lab reports give no indication of any "final
check-up". But while the Wuppertal Judges still maintain that Freimark's
hotly contested bout of typhus took place sometime between August
14 and September 18, 1944, the District Court of Mönchengladbach
does at least realize that Freimark was not acutely ill with typhus
during this time. From the perspective of the Motion for Retrial
the Defense fully agrees with this. But what the District Court
of Mönchengladbach would also like to sweep under the carpet is
the question of when exactly Freimark should have undergone the
acute stage of his severe case of typhus, if not in June/July 1944?
Understandably enough, this question is a very uncomfortable one
for the supporters of the verdict. In Freimark's statements, his
resistance activities account so fully for the time from September
18, 1944 to the Crematorium Uprising (October 7, 1944) that no sufficient
time remains. The time of his long and severe illness, which no-one
disputes, can thus have been only before August 1944, ie. in June/July
1944. And if one will concede this, one must also concede that the
only supposed eyewitness could not possibly have been at the alleged
site of the crime at the alleged time.
2.2.1.2 Freimark's Testimony Regarding the "Klehr Case"
Aside from the complete sequence of laboratory reports, other new
evidence also supports Freimark's original statement that his illness
began in late May 1944: this evidence comes in the form of statements
made by Freimark before he knew where the emphasis would need to
be placed in the Weise case. In 1968, for example, he stated that
he had been admitted to the infirmary in May 1944, with typhus.
He then recounts how he was able to observe Dr. Mengele and the
medical orderly [Sanitätsdienstgrad] Klehr at their experiments
on inmates when he "was already feeling better".33 By this time
his severe illness (102, 104, 106.3°F fever34) had abated and he
was up and walking around as convalescent. His severe illness must
therefore have abated in July 1944 at the latest, for it was found
in the Auschwitz Trial in Frankfurt that the orderly Klehr had been
transferred to the satellite camp Gleiwitz in July 1944. According
to the Auschwitz Chronicle,35 "[...] from July 1944 [Klehr was]
director of the prisoners' infirmary in the auxiliary camp Gleiwitz
I [...]."
In his 1968 testimony Freimark reported in detail about many of
Dr. Mengele's atrocious deeds, all of which he - Freimark - had
seen with his own eyes. And: "Klehr, the orderly, always accompanied
Dr. Mengele."36 So Freimark did not see Klehr only once, he saw
him a great many times. And of course he could not have seen everything
he described in just a single day; he needed weeks of observation.
This permits only one conclusion: to allow for his observation of
Klehr and Mengele, Freimark's severe case of typhus must have been
clearing up in early July 1944 at the latest.
The District Court of Mönchengladbach suggests that it might well
have been the case that Freimark was in the infirmary on several
occasions. After all, the witness had also stated that he had once
been beaten by Dr. Senteler. In suggesting this, the District Court
of Mönchengladbach ignores the precisely documented organization
of the health care facilities in the Auschwitz concentration camp.
The Court completely ignores the fact that inmates were admitted
to the infirmary only after being examined by Chief Physician Dr.
Zenkteller (not "Senteler"; cf. also Section 2.2.5); that they could
not simply drop in to visit friends whenever they felt like it;
that Freimark himself recounted his experiences with Dr. Zenkteller
several times, relating to his bout of typhus; etc.
2.2.1.3 Freimark's Statements on the Course of his Illness
Freimark's case of typhus must have been very severe indeed. In
his Yad Vashem report, Freimark recounts - as mentioned before -
that he had frequently run temperatures of 102 to 106.3°F.33 Also,
probably because he was confined to his sick-bed for so long, he
had developed a painful abscess on his posterior.37 While he was
in bed suffering badly from this abscess, the following had allegedly
been recorded on his card [hospital chart?]: "Grober Vital 1/800."38
The question remains open whether this Gruber-Widal test is one
of those known to us from the lab reports or whether a test of this
kind was already performed during the acute stage of the illness.
The latter cannot be ruled out in light of the evident severity
and duration of the illness. - In his testimony of 1966 Freimark
also remarked that he was "laid up" with a case of stomach typhus.39
In his testimony of 1968, already cited repeatedly, he reiterated
that he had contracted typhus (in May 1944), then added that he
made his observations of Mengele and Klehr "when I was feeling better
again." So he must have been rather poorly before. And he must have
been very considerably improved over the time when he still suffered
so severely from the dressed abscess on his posterior, since he
could not have taken the excursions he described while being padded
and bandaged as he was. The abscess, in turn, was the result of
protracted confinement to bed combined with the uncontrolled voiding
of urine and stool typical for stomach typhus. This too shows that
the illness must have begun long before the time "when I was feeling
better again."
The acute manifestation of his illness, accompanied with collapse
and fever up to 106.3°F, which he still stressed vigorously in 1962,
rules out that the illness did not break out until August/September
1944. A lengthy series of lab tests intended to identify and confirm
the disease would have been utter nonsense, given the intensity
of the outbreak and the unmistakeable symptoms.
All Freimark's pre-1988 statements regarding his bout of typhus
indicate that he was severely ill, and for a correspondingly long
period of time. A case of typhus that severe takes weeks from the
time of outbreak to the time it abates. But as demonstrated in the
aforegoing, the illness must have begun to abate by early July 1944
at the latest, else Freimark could not have observed Klehr's misdeeds
"frequently". Freimark's severe bout of typhus, which lasted several
weeks, must thus have begun in early June 1944 at the latest. This
coincides with the time he specified in 1968, namely "late May 1944".
Hence his earlier statements support his testimony of 1968.
Aware though it is of this, the District Court of Mönchengladbach
has turned a blind eye to the fact that Freimark allegedly made
his observations of Mengele and Klehr when he was recovering again
- in other words, after his severe illness. The Court suggests instead
that Freimark had no doubt been in the infirmary repeatedly. The
Court thus ignores not only the fact that Freimark himself had recounted
his observations of Klehr in express connection with his recovery
from typhus. It also ignores the organization of the health care
facilities, which are set out in particular detail in the documentation
pertaining to Auschwitz. Without being admitted by the Chief of
the Out-Patient Department, Freimark could not have gained access
to the sickward, much less to the isolation ward for epidemic patients,
which is where he claims to have made his observations. As lab documents
prove, Freimark was assigned to Infirmary Compound BIIf. The admitting
physician in the accompanying Out-Patient Department BIId was the
Polish Dr. Zenkteller, whom Freimark recollects in a very emotionally
charged manner, and again in close connection with his case of typhus
(cf. also 2.2.5.).
2.2.1.4 Freimark's Testimony Regarding his Collaboration in
the Preparations for the Crematorium Uprising
Freimark was not ill in August/September 1944. The complete series
of lab reports from August 13 to September 18, 1944 proves this.
Could Freimark have been so severely ill with typhus after September
18, 1944 (when he was healthy, as proven) and before October 24,
1944 (when he was also clearly healthy, and on his way to Sachsenhausen)?
An affirmative answer to this question is already practically ruled
out, since the five weeks remaining between September 18 and October
24, 1944 would hardly have been enough to allow for the severe illness
per se, much less for the mandatory subsequent quarantine that was
necessary to establish freedom from infection prior to the transfer
to another camp.
But Freimark himself provides us with another piece of evidence
for the recovered state of his health after September 18, 1944.
According to him, he participated in the preparations for the Crematorium
Uprising in close co-operation with Salman Gradovski.40 The Uprising
took place on October 7,1944. Freimark's involvement must have come
after his illness. In Wuppertal, too, it was expressly noted that
in his new testimony Freimark "placed the subsequent Crematorium
Uprising in close temporal proximity to this [ie. the time of his
illness]."41 This is correct, except that not the entire illness
can be slotted into "August/September", practically in passing.
That was only the time of convalescence and final check-up. The
series of lab reports proves this beyond doubt. But the actual time
of illness per se was in June and July, 1944.
The District Court of Mönchengladbach completely disregards the
issue of how Freimark's severe illness (which is proven beyond doubt)
is to be fitted into the time-table of the events in question.
2.2.1.5 Freimark's Testimony Regarding His Recall to the "Canada"
Commando at the Beginning of the Hungarian Transports
"When the Hungarian transports began, I was recalled to work
in 'Canada'. That was where we realized why they wanted us to
purge the camp of Jews. They arrived day and night, these transports
from Hungary. We worked on the ramp, and it was very hard. One
transport after the other arrived."42
This statement of Freimark's in his report of 1959/1962 once more
solidly corroborates his very definite testimony of 1968, that he
rejoined the "Canada" Commando in May 1944. According to the Auschwitz
Chronicle, the Hungarian transports, whose start was the occasion
of his recall, began in mid-May 1944.43 Freimark's initial statement,
that he fell ill shortly after this recall, fits in perfectly with
the date he first gave for the start of his illness: late May 1944.
The District Court of Mönchengladbach ignores this completely.
2.2.1.6 Freimark's Testimony Regarding His Further Convalescence
During the Time of the Transports from Lodz
In his Yad Vashem report44 Freimark gives a detailed account of
his stay in the infirmary while continuing to recover from his illness.
According to Freimark, this rather lengthy stage of convalescence
coincided with the time of the transports from Lodz - in other words,
August/September 1944. This in turn coincides perfectly with his
statement that he had fallen ill in late May 1944.
The District Court of Mönchengladbach ignores this completely.
2.2.1.7 Summary of Section 2.2.1
Gottfried Weise's attorney has been pointing out for years that
the lab reports do not disprove Freimark's illness in May 1944,
but that rather they are powerful evidence for the correctness of
this initial statement. Strangely enough, none of the authorities
whose duty it is to ensure that justice is done has shown the slightest
interest. Now, however, this evidence - which is already of great
consequence by itself - is solidly supported by further new evidence.
These further evidential pillars resulted from statements of Freimark's
which were no less unknown to the Wuppertal Court than the complete
sequence of lab reports, which therefore also constitute new evidence.
The new evidence supporting Freimark's 1968 statement ("onset of
illness in late May 1944") include:
1) Lab reports Nos. 1 and 7, which had been misapplied by the Wuppertal
Court, as well as the lab reports Nos. 2 through 6, discovered later
- ie. the entire sequence of lab reports, Nos. 1 through 7. This
documentary support of Freimark's 1968 testimony - very solid support
indeed - is reinforced five-fold by the following new evidence contained
in other statements of Freimark's:
2) Freimark was in the infirmary by June 1944 at the latest. Only
in this way could he have observed Klehr at his misdeeds when his
illness began to abate, ie. in July 1944 at the latest.
3) Freimark's illness was very severe, and lasted a proportionally
long time. It cannot have begun after the "sterile" test results
of September 9 and 18, 1944, because on October 24, 1944 he was
already healthy and being transferred.
4) In late September/early October 1944 Freimark, then healthy,
collaborated in the preparations for the Crematorium Uprising. Thus,
he cannot have been ill at this time.
5) Freimark himself dates his transfer to "Canada" as mid-May 1944.
He recalls the time of the transfer: "When the Hungarian transports
began...". The Hungarian transports began in mid-May 1944.
6) Freimark was still convalescing at the time the transports from
Lodz arrived, ie. in August/September 1944.
With reference to the Court's statement that "the credibility of
this witness is beyond question", only one conclusion is possible:
Freimark himself proves that he cannot have been at the site of
Weise's alleged crimes in June/July 1944. The statements he made
which indicate that he fell ill in late May 1944 are considerably
more plausible than his suspiciously sudden change of mind in Wuppertal,
that "in that case" he had simply not fallen ill until August/September
1944.
The District Court of Mönchengladbach holds to the Wuppertal version.
2.2.2 "The Wrong Place" - New Evidence For the Incorrect Account
of the Place and Details of the Crime45
The murders which are imputed to Gottfried Weise by that part of
the verdict that has become final were allegedly committed in ie.
near the old disinfestation facilities (Gas Disinfestation I) which
the Court imprecisely and incorrectly termed "Personal Effects Warehouse
I" ["Effektenlager I"].46 This is where witness Jakob Freimark claims
to have observed them:
a) The convicted is said to have committed one murder in the "Bedding
Barracks" on the grounds of "Personal Effects Warehouse I". The
witness claims to have seen this while standing amongst many other
inmates in a square in the camp, from which point one could see
the entrances to two identical-looking barracks at the same time.
b) The convicted is said to have committed two further murders "in
the square between the loading ramp and the eastern entrance to
Personal Effects Warehouse I". The track on which the loading ramp
was located ran along the fence, at a distance of "approximately
30 ft.". Therefore, in the eyes of the Court there was a "square"
of about 1,080 sq. yards [33 ft. (distance between fence and track)
x 295 ft. (length of the fence)] between the fence and the loading
ramp.
In contrast to the alleged victims and the alleged time of the crime,
the supposed sites of the crimes are described relatively precisely
by the Court. This makes it possible to double-check the description
of the site which the Court accepted in reaching its verdict. This
layout of the site was incorrect.
The District Court of Mönchengladbach cannot dispute the incorrectness
of the Wuppertal Court's account of the site, but it deems the incorrect
findings contained in the verdict to be irrelevant.
2.2.2.1 The Wuppertal Court's Incorrect Layout of the Site of
the Crime
Both the witness and the Court orientated their accounts of the
alleged events on an incorrect layout of the site of the crime -
a layout that agrees with an equally incorrect sketch that was incorporated
in the verdict.
Fig.2: The Incorrect Sketch Endorsed by the Wuppertal
Court
Labels X1 and X2 added by Jordan.
X1: Alleged 'square' where approx.100 inmates lined up for
roll call.
X2: Place where the "Barracks Murder" was observed.
2.2.2.2 The Correct Layout as Shown by Documents
The following sketch, drawn to scale, shows the correct layout.
This sketch is the result of careful analysis of several American
air photos,47 the description of Delousing Chamber I (the alleged
site of the crime) as given by documents from the Auschwitz Archives,48
and the book by Pressac49 which is considered to be the definitive
scientific work of Auschwitz literature.
Fig.3: Sketch based on US Air Force Aerial Photographs
from 1944
The correct lay-out shows that the open spaces X1 and
X2, shown on the sketch endorsed by the Wuppertal Court,
did not exist.
The District Court of Mönchengladbach does not dispute that the
sketch which the Wuppertal Court used to determine the location
and nature of the alleged crimes is incorrect. It also has nothing
with which to contest the correctness of the sketch drawn from the
aerial photographs. Nevertheless the Court states "that the US air
photo of August 25, 1944 by itself cannot reflect the conditions
in the camp at the time of the crime, in June/July 1944...". This
claim is utterly incomprehensible, since the District Court of Mönchengladbach,
according to its own account, has also seen the US air photos of
April 4, 1944, May 31, 1944 and December 21, 1944, which - together
with other evidence - served to verify the sketch.
2.2.3 "The Wrong Scenario" - Correction of the Alleged Layout
Shows: the Scenario Attested to Would Have Been Physically Impossible
The Wuppertal Court based its conception of the layout of the site
in question not only on the incorrect sketch but also on witness
testimony, particularly on the testimony of the witness Freimark.
The Court had affirmed that this witness recollected the site in
particularly precise detail. And indeed: he described almost a dozen
incorrect details precisely as they appear, incorrectly, on the
Court's sketch. Witness Freimark obviously was not familiar with
the alleged site of the crime from personal memory; he merely went
by the faulty sketch.
First of all, two very essential details were wrong:
1) The alleged empty space ('square') where Freimark claims to have
stood among "many" inmates while witnessing crime a) was in fact
taken up by a barracks (No. 5 in the previous sketch) of which Freimark
obviously had no knowledge. Freimark and his fellow inmates could
not have stood here. Also, there was no other place large enough
to accommodate a greater number of inmates which would have met
the requirements of the scenario described by Freimark (two barracks
doorways directly visible).
The District Court of Mönchengladbach suggests that perhaps it was
not 100 inmates who were lined up. Freimark and the Wuppertal Court
had only mentioned "many". But the work commandos named by the Wuppertal
Court, and the information provided by the Auschwitz Chronicle regarding
their numerical strength, does indicate a number of approximately
100 inmates, calculated as set out in the Motion. Happily, these
calculations are facilitated by the many Auschwitz work detail lists
still available which show the precise numerical strengths of the
work details which, according to the Wuppertal Court, were present
at the site of the crime. Once again, any factual resolution of
this matter has been rejected. - The District Court of Mönchengladbach
has also completely ignored the second important matter: according
to the Wuppertal/Freimark scenario, Freimark would have had to be
able to see directly into the entranceways of two barracks resembling
each other in every detail. The correct sketch, however, shows that
the barracks were by no means that similar, and that there is no
conceivable place from which both barracks entrances could be directly
looked into at the same time. The District Court of Mönchengladbach
ignores the fact that this proves Freimark's account of the crime
to be false.
Especially where the two allegedly identical barracks are concerned,
Freimark's account of the crime is typical of the way in which "truth
was ascertained" in this case: originally - ie. at the time of his
first questioning in Israel - Freimark knew of only one barracks,
where all the characters who played a part in the "barracks murder"
got together. In the Wuppertal trial Freimark then saw the (incorrect)
sketch of the camp, where two identical barracks are (falsely) drawn
in. The sketch inspired Freimark, and he revised his initial testimony
(the single-barracks version) into a two-barracks scenario: he now
redistributed the participants in this drama between two barracks,
for a particularly theatrical account of the alleged events. As
proof of his veracity he concedes that he is no longer sure whether
the "Bedding Barracks", the actual scene of the crime, was the right-hand
or the left-hand one of the twin barracks. The Court was so filled
with enthusiasm by his nit-picking love of truth and his detailed
knowledge of the scene that it completely overlooked the trap: the
two-barracks version works only on the fictional scene of the crime,
on the incorrect camp sketch - not on the real scene. It does not
fit the real layout; Freimark's account of the crime, and the "findings"
based thereon in the verdict, are false.
2) The scenario of the alleged crimes b), the "ramp murders", is
based on the following: hundreds of inmates, working day- and night-shifts,
load up a long freight train of "thirty to forty" freight cars,
unload it again, and re-load it. Hundreds of tons of freight must
be passed in bundles along long queues of inmates. With utter disregard
for blackout regulations, the large open space between the fence
and the ramp is lit "bright as day" by the floodlights on the fence.
Three inmates manage to set up a hiding place in one of the many
freight cars, bring in a supply of food and water, and hide themselves
there. Their absence is not noticed until shift change. After hours
of counting and roll-call, the inmates must begin unloading all
the freight cars again. In the presence of hundreds of other inmates,
the fugitives are found, beaten, and murdered. The time is approximately
midnight.
The facts, however, are as follows: the loading rail-line ran right
along the fence. Thus, the ramp did not give access to a "square"
295 ft. long and 33 ft. wide, but rather only to a strip at most
3 ft. wide and at most 98 ft. long (approximately 33 sq. yards).
There were also no floodlights on the fence, and no night-time illumination
"bright as day". As well, there were no "thirty to forty" freight
cars. The entire loading track could have accommodated a maximum
of six freight cars, and no more than three would have fit alongside
the little ramp directly by the fence. (The former inmate Josef
Odi, who - unlike Freimark - was familiar with the old Gas Delousing
Chamber, and had described it correctly, had already considered
it remarkable indeed that on some days as many as "several" freight
cars could be loaded!)
The District Court of Mönchengladbach avoids commenting on the physical
impossibility of the "thirty to forty" freight cars in a most unusual
way: while quoting the verdict verbatim at all other times, in this
instance the Court simply omits the claim of thirty to forty freight
cars in its quotation from the verdict. Deliberately, or through
sloppiness? The District Court of Mönchengladbach does not comment
on the other errors in Freimark's account which prove his unfamiliarity
with the site. Further, the District Court of Mönchengladbach attempts
to gloss over the physical impossibility of setting up the work
commandos (as specified by the Wuppertal Court) between the rail
line and the fence by arguing rather weakly:
First, according to the Motion there was a distance of 8.9 ft. between
the rail line and the fence, and second, the work details surely
did not number as many inmates as the Motion calculated on the basis
of statements of the Wuppertal Court and of data from the Auschwitz
Chronicle.
Regarding the first objection, the District Court of Mönchengladbach
failed to take note of the information it had with respect to rail
and loading facilities. Otherwise it would at least have noticed
that freight cars protrude over the rail line, ie. that there were
by no means all of 8.9 ft. of open space between the cars and the
fence, but rather 5.6 ft. at most. The Court would have had to realize
that it was not possible to walk or stand immediately next to the
fence, that a usable strip approximately 3 ft. wide was all that
remained, and that this strip as well was no longer than just barely
98 ft. (including space for guards at the sides). A closer look
would have revealed to the District Court of Mönchengladbach that
it was impossible for more than twenty persons to line up, much
less to work here under guard. And there would have been absolutely
no space left for the alleged beatings and murders to take place
and - to quote Freimark - to be observed in detail by all the inmates
present.
Regarding the second objection, it is rather amazing that the District
Court of Mönchengladbach suddenly casts grave doubts on the data
given in the Auschwitz Chronicle, that source which it otherwise
deems so extremely reliable (namely, when the data it provides serves
to incriminate), and it is all the more surprising that the Court
does so without even having examined the documents cited therein
(work detail lists). Well, never mind! Loading, unloading and reloading
the thirty or forty freight cars, as was described and "ascertained"
by the Court, would have required a great many workers, and the
Wuppertal Court also stressed this repeatedly. But where should
these have found enough room under the actual conditions? The District
Court of Mönchengladbach leaves this vital question wide open.
Investigations pertaining to the alleged site of the crime reveal
many other discrepancies, all of which go to confirm two things:50
- First, Freimark testified to many local details that exist only
on the incorrect Court sketch, not in actual fact. He clearly had
no personal memories of the site.
- Second, many of the incorrect details "ascertained" by the Court
are integral parts of the scenario which is the basis for the account
of the crime and the corresponding "findings" of the Court.
These two points alone prove that the testimony of the witness Freimark,
and the account of the alleged events subsequently set out in the
verdict, are necessarily false.
2.2.4 "The Wrong Gottfried"
In the Wuppertal trial, witness Freimark repeatedly declared that
the accused was "indelibly impressed" on his memory as "Gottfried".
This was rather surprising even then, for in his earlier testimony
- those samples of it which were known at that time - Freimark had
never mentioned Gottfried Weise, the man who was allegedly so indelibly
impressed on his recollections.
2.2.4.1 New Evidence: the Real Gottfried of Freimark's Recollections
In the meantime, lengthy reports and witness statements of Freimark's
have come to light which were not yet known at the time of the Wuppertal
trial. In 1959/1962, for example, Freimark wrote a very long report
for the Yad Vashem, detailing everything he remembered about Auschwitz.
Freimark clearly spent years intensively reviewing his Auschwitz
memories for this purpose, and these accounts contain something
quite astonishing: at that time, Freimark recollected a completely
different Gottfried (and only this different one):
"When Oskar [a chief overseer] was sent home, he was replaced
by another German, named Gottfried. He was from the Sudetenland.
He was a terrible son-of-a-bitch. An assistant overseer served
under him, a Belgian named Leon. The two of them were dreadful
murderers."51
So in 1962 Freimark clearly associated the name Gottfried with an
inmate. Freimark had to endure his tyranny when he was "skilled
laborer in the weaving mill". And if he had remembered more than
one murderous son-of-a-bitch named Gottfried: is it really credible
that he would at that time (1962) have mentioned exclusively the
one of whom he only knew in very general terms that he was a "terrible
son-of-a-bitch" and a murderer, and would have completely forgotten
about the very memorable one-eyed Gottfried Weise even though -
according to Freimark's testimony of 1985 - he had observed this
Gottfried commit several very definite murders, at great peril to
his own life?
2.2.4.2 The Wuppertal Theory of "Successive Reproduction"
The Wuppertal Court believes it has found a way to explain the workings
of Freimark's memory. The Court explained that despite the great
passage of time "his 'simple' recollection... of the central event
[showed] the high degree of accuracy of his recollections." Further,
the Court exhibited psychologically motivated empathy for the way
in which Freimark first did not, then did remember things.52 The
witness, the Court explained, successively reproduced his memories
around emotionally charged focal points and had thus not been affected
by external influences.53
To Freimark the name "Gottfried" was no doubt a "focal point" for
the reproduction of "emotionally charged fragments of memories".
Does it not seem reasonable to suspect that Freimark "successively
reproduced" the wrong Gottfried?
2.2.4.3 How was the Accused Identified?
In the trial of Gottfried Weise the identification of the accused
was carried out in a gross deviation from any serious recognition
process.54 As already mentioned in the context of Isaac Liver's
statements, potential witnesses for the prosecution were given a
questionnaire providing information regarding the suspect and the
charges brought against him.55 An accompanying series of photographs
included several of the accused, which, however, is probably of
lesser importance in this case, as the one-eyed Gottfried Weise
is easily identified anyhow. It is thus no surprise that Freimark,
who had several opportunities to study the photos, knew very well
which of them showed the accused. And as though that had not been
a bad enough travesty of the identification process, the Wuppertal
Court even permitted the staging of this farce in the courtroom:
"Much as though a great weight had suddenly lifted from his
shoulders, he [Freimark] said that he had immediately recognized
'Slepak', 'Gottfried', when he had entered the courtroom, and
then, looking at the accused, he continued: 'Yes, that's him.
Let him take off his glasses. He wasn't wearing glasses back
then. I'm inmate 87215. Do you recognize me?' Flipping back
and forth in the photo folder that he had been given, and getting
more excited and upset by the second, he identified the accused
after only a few moments: 'I'm looking, and I think I'm in Auschwitz
again. That's him (photo 8). No doubt about it, that's him (photo
14). I saw him like that (photo 2). That's him too. There's
no doubt, these pictures show Slepak. That's the man sitting
here today."56
2.2.4.4 The Wrong Gottfried: Result of "Successive Reproduction
of Emotionally Charged Remnants of Memories"
Freimark's considerable prowess as actor in the Wuppertal courtroom
shows how thoroughly he was able to embrace a role that accrued
to him from successive reproductions. How could the wrong "Gottfried"
have evolved in his mind?
When he was first questioned about Gottfried Weise in 1985, the
name "Gottfried" was still "indelibly impressed" on his memory,
but any recollections of the actual person had already faded. He
is then questioned quite pointedly about a presumed murderer named
"Gottfried". To Freimark this name is a focal point for emotionally
charged remnants of memories. One of his emotionally charged remnants
is the certain belief that all SS-men employed in Auschwitz "participated
in the machinery of murder."57 Two emotionally charged remnants
now combine in his mind to produce a new "focal point for successive
reproduction" in a fictional construct that is growing ever more
real to him. A photo album is placed before him, showing men wearing
the hated uniforms of concentration camp guards. Unlike the others,
one of them is portrayed several times. He has only one eye - that
makes him stand out: "Sleepy", or "Slepak", whom they had specifically
asked about! And his name is Gottfried! Goodness gracious! Freimark
now feels certain that he has found his man. All that's still lacking
is the appropriate story. And Freimark proceeds to successively
produce memories of other emotionally charged remnants, drawing
on things experienced, read and heard: the story that inmates who
had hidden in a freight car were shot. Of course...:
Hadn't he, Freimark, actually seen that happen himself? - Let's
see, what was that all about again? - Right: an inmate from
Grodno58 - or was it two?, and Graf had shot him?59 - Were there
perhaps even more of them? - But of course: there were three,
and two of them were shot by "Gottfried". - Yeah, sure, he'd
already been a "dreadful murderer" back in the weaving mill.
- And where did he shoot the two of them? - Well, surely there
were freight cars to be loaded, standing outside the "Old Canada"
area, and the fellow in charge there used to shoot, too.
So was that "Gottfried"? - Of course, who else should it have
been, if not that "terrible son-of-a-bitch"? Sure, he was the
one! - Incidentally, his surname was Weise. - Oh really? Well,
I still think of him by his first name.
What's that? 1944, not 1943? Well, all right then!!! 1944!
Freimark of 1985 grows ever more certain. And it is not long before
he can recount his subjective truth with such "astonishing accuracy
and realism" that the witness-hunting public prosecutor is ecstatic
and the Wuppertal judges are all the more so.60
The District Court of Mönchengladbach comments on all this: "The
supposition advanced by the appellant, that the witness Freimark
could have confused the appellant with a functionary inmate named
"Gottfried" is not a statement of fact commensurate with the requirements
for admissibility. The appellant has not submitted any concrete
evidence pointing to such a confusion. The witnesses he has proposed
to call in order to establish the state of witness Freimark's knowledge
with respect to the appellant and the inmate Gottfried are not suitable
as a source of evidence because they cannot contribute anything
towards establishing what the witness Freimark knew at the time."
[Note: the testimony of 58 witnesses, all of whom were in the same
area as Freimark, had been proposed as evidence to establish that
the inmates did not know their guards by their first names.]
2.2.5 Other "Wrong Gottfrieds" in Freimark's Accounts
It is incredible to see how thoughtlessly a German Court applies
the previously described theory of "successive reproduction". To
emphasize how great the danger of "wrong Gottfrieds" is with story-tellers
like Freimark, the following gives just one example of the many
other instances where Freimark has mis-identified persons:
In his Yad Vashem report (1959/1962) Freimark describes how the
infamous Dr. Mengele, assisted by Dr. Knott and Dr. Schor, took
a quart of his blood.61
In his 1966 testimony regarding Sachsenhausen, Freimark then claimed
that a Dr. Senteler (correctly: Zenkteller) had taken this quart
of blood.62
In his Suwalki report of 1989 ("Einsam in der Schlacht" ["Lonely
in Battle"]) he again names Dr. Mengele and Dr. Knott as having
taken the blood, but this time without mentioning Dr. Schor.63
Freimark's memories focus center on a central event, namely the
taking of the blood. His tendency to exaggerate turns the quantity
into an entire quart. But nevertheless: the taking of the blood
- the central event - very likely did indeed take place. The acting
persons, on the other hand, are freely exchangeable in Freimark's
imagination. It is easy to see why Freimark named Dr. Zenkteller
(1966) as being the one who had taken the blood: Freimark hated
this physician and in 1966 accused him of, among other things, having
carried out 'selections'. The central experience was that this inmates'
physician had had to decide which patients were to be admitted to
the infirmary for treatment. Freimark's penchant for exaggeration
turned this into "selections for the gas chambers": a charge which,
as is well known, bodes ill for anyone accused thereof. Unlike Gottfried
Weise, however, Dr. Zenkteller was lucky: he was Polish, was given
a fair trial in Poland, and was acquitted.64 Had he been German,
the matter would no doubt have ended tragically for him too.
The District Court of Mönchengladbach does not waste time on such
considerations. It did not even take note that the name of the physician
accused by Freimark was actually Dr. Zenkteller. Similarly, by failing
to consider this Polish physician's duties, which are known in detail,
it also neglected to ensure the proper evaluation of Freimark's
statements.
3. The "Freimark Case"
In Freimark's various accounts there are many other examples of
mix-ups of persons, places and incidents. These have been discussed
in greater detail in a separate analysis of claims and data by and
about Freimark.65 On the basis of the statements he made in the
course of the "Freimark Case" - statements which, due to the talkativeness
of the witness, are available in plenty - the goal-oriented nature
of his testimony can be well analyzed. The overriding goals which
become apparent time and again are:
a) the desire for revenge, and
b) the desire for self-aggrandizement.
Freimark adapts these overriding objectives to his individual case-oriented
goals. In 1966, for example, his desire for revenge was directed
against Dr. Zenkteller. When he realized that, being Polish, Zenkteller
- an able Polish army medical officer, by the way - was immune to
false allegations, Freimark redirected his accusations at Dr. Mengele.
Freimark also manages to adapt his overriding desire for self-portrayal
to the conditions presented in each individual case. In his Yad
Vashem report of 1959/1962, for example, he still wrote a great
deal about his heroic work for the Resistance movement of the Camp
Underground, and about his no less heroic participation in the preparations
for the so-called Crematorium Uprising (October 7, 1944). At that
time he still gave the time of the beginning of these preparations
as "August 1944". That fit in well with the actual beginning of
his illness, May 1944. In the Wuppertal Trial, however, it was necessary
for him to postpone his illness, since otherwise he could not have
incriminated the accused. To prevent any conflict with his alleged
heroic feats in the Resistance movement, he now gives the time he
fell ill as late October 1944. This in turn clashes with his transfer
to Sachsenhausen, which can be precisely dated as October 23, 1944.
In writing his heroic epic "Einsam in der Schlacht" ["Lonely in
Battle"] for the Suwalki book in 1989, after the Wuppertal Trial,
he therefore restricts himself to only very vague comments about
his participation in the Uprising of October 7, 1944, and shifts
the starting date of his illness to yet another time - December
1944.
Incidentally: some American friends of a young Israeli's were sent
translations of the Suwalki book. At first the Israeli was so moved
by Freimark's account that he did not think he could go on reading.
But then he did read on. He provided the translation free of charge,
annotated with the comment: "This man is a fucking liar!"
The District Court of Mönchengladbach: "The credibility of the witness
Freimark is in no way compromised by this comment."
4. The "Wuppertal Case"
4.1 The Bias of the Wuppertal Court
In Wuppertal they were happy about Freimark's so precisely tailor-made
memory. Freimark was the Court's dream witness.
Up until then, nobody had wanted Freimark as witness. Neither in
the Sachsenhausen Trial nor in the Frankfurt Auschwitz Trial had
he gotten the role he longed for, and even the clerk who took down
Freimark's Yad Vashem report seems to have harbored a few doubts,
as his sceptical questions would indicate. But in Wuppertal Freimark
was finally given center stage. The presiding Judge's "common knowledge"
and his desire to create a memorial for the victims of Fascism provided
for the proper staging of his presentation. The Judge himself expounded
on the nature of his "common knowledge" in the verdict; his desire
for a "memorial" was initially known to me only through hearsay,
and so I made inquiries. The result: in late 1985 the Wuppertal
newspaper had reported about the many deaths that had occurred in
the concentration camp "Kemna" that had existed near Wuppertal from
mid- to late-1933. A curious Wuppertal inhabitant asked why the
names of the murdered persons were not given on the new Kemna Memorial.
It turned out that, happily, there had been no casualties in Kemna
at all, and the allegation of "many dead" was thus wrong. The newspaper
named the City Archives as its source. The City Archives named Judge
Klein as theirs. And Judge Klein did not consider the polite inquiry,
now addressed to him, to be deserving of a reply.66
The appropriate stage-set for the trial was provided courtesy of
the Wuppertal "Antifa", the anti-Fascist scene: the VVN's metastasis
whose fellow-travellers and hired applauders happen to be particularly
numerous in Wuppertal and include the local press. The trial which
was then enacted in Wuppertal has already been reviewed in detail
in the book Der Fall Weise:67 the bias exhibited by the Wuppertal
Court, the disparate treatment and valuation of the witnesses for
the prosecution and the defense, the refusal of numerous motions
to hear evidence, the suppression of exonerating evidence. I have
already mentioned a further example of the suppression of evidence
practised in Wuppertal (Section 2.2.1.1, lab reports). A separate
report68 discusses further aspects of the one-sided valuation of
evidence at Wuppertal, and I will dispense here with a repetition
of the details set out in the book and the report. Copies of the
book were sent to all the members of the Bundestag [German parliament],
and the report went to all those persons directly responsible: the
Federal President, the Federal Chancellor, the Federal Minister
of Justice, the Chief Minister in charge, and the regional Minister
of Justice. The response: with a few exceptions, there was a general
denial of responsibility, references to the separation of powers,
and referrals to the Public Prosecutor's Office, which in turn states
succinctly that it perceives "no need for action" without responding
to so much as a single one of the arguments submitted.
This situation is not only unfortunate for the tragic individual
case in question, but should be a cause of sleepless nights for
anyone concerned about how far this our country is actually under
the rule of law.
4.2 False Claims Made by the Wuppertal Court
The Wuppertal Court made several false claims. A number of them
have been known for some time. For example, it has been proven ever
since 1990 that the Court's claim that no further documentation
was available regarding Freimark's illness was false (see Section
2.2, "New Evidence"). Another false claim was that the medical records
of convalescing patients were always marked "typhus still suspected"
(see Section 2.1.7.2, "Mis-Timed Circumstantial Evidence").
In early 1995, particularly weighty evidence came to light regarding
further false claims made by the Wuppertal Court. On January 12,
1995 Charles Biedermann, Director of the International Tracing Service
in Arolsen, sent the Federal (Bonn) Secretary of the Interior the
lab papers, including the serological results, that had been held
back for such a long time. In his accompanying letter he wrote apologetically
that it was not the ITS's fault that these documents had been held
back for so long; in 1988 the presiding Judge Klein had merely said:
"The issue of decisive importance in this trial [of Weise] is
the question whether the witness Jakob FREIMARK was still interned
in the concentration camp Auschwitz on September 18, 1944, as
the ITS had confirmed earlier in a memo to the Bavarian Landesentschädigungsamt
[State Compensation Office]."69
And further:
"Not until now [letter, Federal Department of the Interior,
December 19, 1994] have you informed us that in fact every single
lab test as well as its nature and results were of vital importance
in the trial."
Contrary to this, Judge Klein gave the impression both during the
trial and in the verdict that he had in fact searched for such medical
records and one might be sure that none existed.
The letter of the ITS reveals, as an aside, that Judge Klein must
have had access to Freimark's Compensation File. The defense is
still denied even the slightest glimpse of this file.
5. General Problems Entailed In Very Late Trials
In its every stage, the Weise Trial entailed problems which most
likely did not arise only in this case, but in other, similar trials
as well. What happened and continues to happen in the case of Gottfried
Weise, therefore, is a general model of the legal problems created
by the rescission of the statute of limitations.
Now these admittedly are problems lying within the province of jurists,
a province where I really have no business interfering. But: I would
not presume to intervene in someone else's province if I could see
anyone actually responsible doing his duty there.
5.1 The Generation Gap
The Baden-Württemberg Minister of Justice, Eyrich, noted as early
as 1979 that a generation gap was to be expected in trials taking
place so very long after the alleged crimes. The process of reaching
a verdict, Eyrich said, could be compromised by the fact that the
younger generation, to which the Judges belong, "cannot properly
conceive of the conditions and framework of the crime which they
themselves, after all, never experienced."70
No doubt Eyrich perceived the generation problem first and foremost
with respect to the evaluation of events of the War - the absolute
necessity to obey orders, etc. But even in the case of Gottfried
Weise, who is charged with completely private murders committed
on a whim, as it were, and by no means in compliance with any orders
- even in this case the younger Judges were quite unable to "properly
conceive of" many things.
A contemporaneous witness who remembers the difficulties encountered
in the cremation of the Dresden bombing victims, for example, would
surely not have fallen for the atrocity tale of children being burnt
alive in open-air burning pits. Or another example: anyone who had
ever been on guard duty himself would certainly have wondered where
Weise might have gotten the ammunition he wasted in shooting wildly
about in the camp, why the Guard Register contained not a single
entry about the shootings, etc. etc.
One example shall suffice to show how very incapable the younger
generation of Judges in Mönchengladbach was of understanding and
"properly conceiving of" the conditions and situations of those
days:
One of Freimark's many "mistakes" was his claim, made in the Suwalki
book of 1989, that he had been interned in a prisoner-of-war camp
at Allenstein. "The camp was called Stalag 10a."71 According to
Freimark, this was where the Polish Captain Kachacinski told him:
"I invite you to join the underground organisation that we will
set up. You will be the contact to all the camps. You will be the
contact between the camps. You will be given work that will enable
you to move freely between the camps. As electrician you will test
the electrical fences."72
In the Suwalki book Freimark proceeds to fill several pages describing
his underground activities as electrician.
In his Yad Vashem report he tells of similar work done in Auschwitz
and refers to the experience he had gained in "Stalag 10a":
"We went to work in the Polish underground. We went around the
camp and made sure that the signs were hanging properly and
that the small fence in front of the electrical fence was in
order. I was the foreman in this work detail because I said
I was already experienced as electrician. I had already done
this kind of work in Stalag 10a."73
District Court of Mönchengladbach: "This statement also does not
suffice to compromise the credibility of the witness Freimark, because
on page 70 the witness only states that he had pretended to be an
electrician in order to be assigned to a special unit, which he
indeed was; and that he had been made foreman there. Thus, the witness
Freimark does not claim that his presence in the Prison Camp was
a matter of fact."
The District Court of Mönchengladbach did not even pay attention
to the abbreviation "Stalag". As we know, this did not stand for
"Prison Camp" ["Strafgefangenenlager"], as the District Court incorrectly
claims, but for "Main Camp" ["Stammlager"], which was the term for
regular prisoner-of-war camps - as opposed to "Oflag" = "Offizierslager",
or "Officers' Camp". In light of this, how should the Judges at
Mönchengladbach have thought to ask the questions that would have
immediately occurred to any member of the War generation? For example:
how did Freimark, who allegedly was 16 years old at that time, ever
get into a prisoner-of-war camp at all? And why were there so many
Polish officers there, who after all are known to have been quartered
in separate Officers' Camps? But this did not "ring a bell" for
the Judges who, luckily for them, were born too late to be subject
to doubts raised by experience. Instead, they come to the easily
refutable false conclusion that it was possible for Freimark to
simply "pretend" that in Auschwitz. Even the excerpt which the District
Court of Mönchengladbach quotes from Freimark's Yad Vashem report
shows that he had not said anything about "pretending" there. In
the Suwalki book he even proceeds to build up a whole series of
his heroic deeds around his work as electrician. If the District
Court of Mönchengladbach considers this work to be "pretense", then
it must also relegate Freimark's entire Suwalki report to the realm
of fable, in other words, it must acknowledge Freimark to be utterly
unreliable, as petitioned by the Defense.
5.2 Wilful Application of Standard Theorems of Forensic Psychology
While the Wuppertal Court did dutifully read the textbooks on the
forensic application of psychology, it stretched the theorems it
found therein to the breaking point. Something which holds true
for normal trials cannot simply be extended "as is" to the new kind
of Special Trial we have here. For example:
The forgetting process over time, which the Court did take note
of in some detail,74 is illustrated by a bell curve in the book
by Bender, Röder and Nack75. It is downright frivolous for the Wuppertal
Court to attempt in pseudo-scientific manner to apply such "forgetting"
bell curves in unmodified form in cases where the events to be recalled
are 41 years removed, such as in the case of Freimark's first questioning.
It ought to have been noted that the "forgetting" bell-curves of
textbook fame are based on forgetting times on the scale of months,
of a few years at the very most - not of several decades.
5.3 Disregarded in Wuppertal: the Tendency of Very Late Testimony
to be Goal-Orientated
Bender, Röder and Nack point out that testimony given in the course
of a trial is frequently geared towards a desired goal (in other
words, incrimination or exoneration of the accused). For this reason,
remnants of memories are often deformed to make them "expedient";
untruths are "attached" to true details. Further they state:
"132. Whereas the comprehensiveness and reliability of recollections
deteriorate with time as a matter of course, the subjective
certainty of the informants - the conviction that their recollections
are complete and reliable - frequently exhibits the opposite
trend: they (allegedly) become all the more certain, the farther
back the actual event lies in time.
"133. This phenomenon is related to the increased probability
that remote events are more frequently 'retrieved' from the
depths of memory because the informants have thought about,
have mentally occupied themselves with the events in question.
But such a resurrection of earlier memories not only reinforces
thought patterns, it also falsifies and expands them. Given
this prerequisite, the farther back an event is, the more our
informants have ultimately forgotten how little they had remembered
of the event shortly after it happened."76
This classic textbook speaks of even 30 days as "long-term". Freimark
was first questioned about the case of Gottfried Weise after 41
years, ie. 15,000 days - an intervening period 500 times as long.
During this period, additional things he repeatedly heard and read
influenced his memories in an emotionally highly charged manner.
The ever-changing content of his testimony at different points in
time speaks for itself: fading memories are overlaid with things
heard, read and imagined.
The problems in ascertaining truth, as already noted for regular
trials by renowned authors specialized in this field, occur all
the more with exponentially increased severity in political "special
trials" conducted decades after the alleged fact. In the Federal
Republic of Germany, the problems that arise are made taboo for
reasons of foreign affairs or "public education". Academic research
is not subject to such fetters abroad.
5.4 Ignored in Wuppertal: The "Survivor Syndrome"
The problem of the "Holocaust Survivor Syndrome" received international
attention at the time of the Wuppertal trial. Medical sources told
me that the Ukrainian-American psychiatrist Dr. O. Wolansky was
one of the leading experts on this subject today, and I was referred
to a seminar he had given on this subject on January 25, 1993 at
a Congress held in the Polish Consulate in New York and attended
by 150 Polish, White Russian and Ukrainian physicians. To quote
an excerpt:
"Well-known Ukrainian-American psychiatrist Dr. O. Wolansky
explained the persistent psychological and psychiatric damage
caused to the mentation of the majority of the concentration
camp survivors. He indicated that in regard to Holocaust survivors
alone, over 1600 medical articles and books [have been] written
on this subject in the past 50 years, which resulted in the
term Holocaust Survivor Syndrome. He explained that the true
horrors and the stress of the concentration camps were forgotten
by survivors with the passing of the years, and were supplanted
by group fantasies of martyrdom borrowed from heard or read
materials or by delusions confabulated anew. He illustrates
this phenomenon with the effusive and emotional testimony in
Jerusalem of the Jewish Treblinka survivors at the Demjanjuk
trial which subsequently turned out to be what in legal terms
and before a more neutral tribunal could be called prejudice
and/or fabrications."77
It already turned out in the Wuppertal trial that Freimark had been
under psychiatric care. The symptoms of "Survivor Syndrome" which
Dr. O. Wolansky listed in his seminar -
· fantasies of martyrdom borrowed from heard or read materials,
· delusions confabulated anew, and
· effusive and emotional testimony -
may be found in Freimark's accounts in great number, in the form
of "attached untruths" as set out by Bender, Röder and Nack.
6. Cautio Criminalis
In advocating the rescission of the statute of limitations, Herr
Schwarz-Schilling soothingly pointed to the allegedly matter-of-course
maxim of in dubio pro reo [when in doubt, acquit]. As though to
reaffirm his confidence in this practice, he released a postage
stamp in 1991 (in his erstwhile capacity as Postmaster General)
which commemorated the four-hundredth anniversary of the birth of
a man who had made outstanding contributions to the development
of the Western world's legal traditions:
At a time when all the world (himself included) still believed
in witches, Jesuit priest Friedrich Spee von Langenfeld advanced
his "Judicial Considerations Regarding the Witch Trials". Of course
the heinous crime of witchcraft must be combated, he said. But precisely
because witchcraft was such an especially grave crime, the accused
must be granted every possible avenue of defense.
One might wish that those in charge of our justice system today
would read Spee's book and take his advice to heart.78 Of course
no-one still believes in witches who go flying off on their brooms
at night to meet with the devil. But the belief in particularly
heinous crimes as a matter of "common knowledge" is firmly entrenched.
And of course physical torture is no longer used today, unlike in
the witch trials of medieval times. Even in the post-War Special
Trials it has not been the method of choice since the early 1950s.
But defendants accused of crimes commonly known to have been particularly
heinous are still denied the full range of avenues for defense demanded
by Spee more than 360 years ago. How, for example, was Gottfried
Weise to defend himself against being branded "the Beast of Auschwitz"
if the flaming burning-pits, the burning of live children, the mass
gassings going on all around him, the metres-high flames shooting
out of the crematoria chimneys were so "commonly known"? It was
only logical for the Wuppertal Judges to allow the beast thus branded
no "excuses".
As a high-ranking jurist informed me, one of the elements ensuring
the citizen's firm understanding of their legal position is that
verdicts which have become final are not open to nitpicking. I beg
to differ: even the judicial Demigods in Black may err. It is very
important to keep them from becoming ideologically blinded and subject
to preprogrammed "errors". The uncertainty about one's legal position
which the rescission of the statute of limitations has caused must
be remedied. Even those defendants who are charged with "special
crimes" must be able to defend themselves without restraint, and
persons who speak up in their favor must not be defamed out of hand
as Nazi and potential arsonist, as it happened in Solingen to Herrn
Kissel for daring to put in a good word for his neighbor Weise.79
In 1979, journalist Fromme predicted that our naturally evolved
legal traditions would be silently restored "in about the year 2000".
Couldn't it happen a little earlier? Isn't it high time that Böckenförde's
expert judicial report is finally concluded with the analysis of
a concrete legal case? But no-one seems to have the courage to grasp
the nettle, neither in the matter of principle nor in the individual
case of Gottfried Weise. In this case a retrial had already been
requested in late 1992. A few months later, Weise's attorney attempted
to find out from the District Court of Mönchengladbach how the processing
of the application was proceeding. The application could not be
processed, he was told initially, because the documents requested
had not yet been provided by North Rhine-Westphalia. Then a game
began, not unlike what we as children used to call "Schraps lost
his hat". The Pardons Office had the documents. No, not that one,
a different one. No, not that one either. Finally, in late November
1993, the District Court sent a memo with a voluminous enclosure.
The Public Prosecutor's Office of Cologne - the same one that had
achieved Weise's conviction - had had the files since July 1993,
and had drawn up a lengthy "decree" in which it attempted, with
a great many words and very little content, to substantiate that
the application for retrial should be refused. In a further "decree"
of December 1993, the Public Prosecutor's Office brought forth additional
arguments for refusal. In January 1994 Weise's attorney submitted
the refutation of all these arguments to the District Court. In
late May 1994 the application for retrial was refused, which the
Defense appealed. The Provincial Court of Appeal at Düsseldorf refused
the appeal, without hearing and without comment. The Federal Constitutional
Court did not admit the appeal, on the grounds that first the Provincial
Court of Appeal at Düsseldorf would have to hear the appeal it had
refused earlier. And since early 1995 the Düsseldorf Court of Appeal
is waiting for the documents and files to resurface from somewhere
within Chief Minister Rau's jurisdiction. (Date of this writing:
May 1995.)
How long is this playing-for-time to continue? After two previous
strokes, Gottfried Weise has just undergone a massive operation
for cancer, followed by pneumonia, and has suffered a third stroke.
To some, a "natural solution" might seem the easier way out.
For as long as those responsible continue to shirk their duties,
all we have left to us is the prayer which I found inscribed on
an Upper Bavarian house,80 invoking Saint Michael, the "champion
of justice," to stand by us in evil times.
- K. F. Fromme, Frankfurter Allgemeine Zeitung (FAZ), July
5, 1979: "Was man sagt, und was man meint."
- Debate on the 18th revision of the Criminal Code; see Plenary
Transcripts 8/145 and 8/166.
- FAZ, March 15, 1979: "Den Vorhang nicht fallen lassen."
- FAZ, June 18, 1979, p. 11: "Völkermord darf nicht als 'normales'
Verbrechen gelten."
- Plenary Transcripts 8/166, p. 13235. Emphasis in the transcript.
- Plenary Transcripts 8/145, p. 11612.
- eg. Dr. Lenz (Bergstraße, CDU) in the Bundestag debate of
March 29, 1979, Plenary Transcripts 8/145, p. 11609.
- eg. Dr. Schwarz-Schilling (CDU), Plenary Transcripts 8/145,
p. 11644.
- cf. F. K. Fromme, FAZ, Feb. 14, 1979: "Die Angst vor dem,
was man will."
- FAZ, June 30, 1979, no. 149, p. 6.
- Verdict of the Wuppertal District Court, Jan. 28, 1988,
pp. 104-107.
- There was no burning pit at the location mentioned, near
Personal Effects Depot II; cf. the chapter by J. C. Ball, this
volume.
- Reasons for the Wuppertal Auschwitz verdict of Jan. 28,
1988, p. 96.
- Wuppertal newspaper General-Anzeiger, June 10, 1987.
- Article by Ulla Dahmen-Oberbossel in the Wuppertal General-Anzeiger
of Jan. 20, 1988.
- Copies of both transcripts were appended to the Motion for
Appeal of Aug. 12, 1988.
- Rejection of Motions to Take Evidence nos. 1-13, quoted
here from p. 17 of the Motion for Appeal.
- Motion for Appeal, p. 6.
- Motion for Appeal, p. 80.
- p. 1909f. of the Court files.
- Verdict, pp. 65, 66.
- Verdict, p. 151.
- Verdict, p. 116.
- Verdict, p. 180.
- Verdict, p. 190.
- Verdict, p. 185.
- Verdict, pp. 75, 76.
- Verdict, pp. 76, 77.
- Verdict, p. 58.
- Verdict, pp. 76, 77.
- Verdict, pp. 76, 77.
- According to Helmut Denning, Lehrbuch der Inneren Medizin,
6th ed., Stuttgart, 1964, pp. 86ff.
- Freimark's testimony in Tel Aviv, Nov. 20, 1968; doc/172.
- Re. quoting method "doc/nnn": a voluminous dossier has been
compiled about the numerous claims and data by and about Freimark.
Interested persons may obtain a copy in return for photoduplication
costs. Aside from the transcripts of earlier witness testimony
by Freimark, this collection also contains two longer reports
or accounts by Freimark:
1) "Einsam in der Schlacht" ["Lonely in Battle"], Freimark's
autobiographical account in the Suwalki book of 1989 (Jewish
Community Book Suwalki and Vicinity: Baklerove, Filipove, Krasnopole,
Psheroshle, Punsk, Ratzk, Vizhan, Yelineve; The Yair - Abraham
Stern - Publishing House, Tel Aviv, 1989); texts are partly
in English, partly in Hebrew; Freimark's story has been translated
from the Hebrew.
2) Freimark's Yad Vashem report; recollections from 1959, records
from 1962 and 1964. (Translated into German from the Yiddish
[in Hebrew script].)
- Yad Vashem report, pp. 72, 82; doc/156, 162.
- D. Czech, Auschwitz Chronicle, 1939-1945, New York: Henry
Holt, 1989, p. 816.
- Freimark's eyewitness testimony in Tel Aviv, Nov. 20, 1968;
doc/173.
- Yad Vashem report, pp. 79, 80; doc/160.
- Yad Vashem report, p. 80; doc/161.
- Freimark's statement in Tel Aviv, April 29, 1966; doc/168.
- Suwalki book and Yad Vashem report; doc/108, 109, 111, 139,
141, 142, 145, 152ff.
- Verdict, p. 75; doc/177.
- Yad Vashem report, p. 53; doc/146.
- D. Czech, op. cit. (Note 35), p. 627.
- Yad Vashem report, p. 83-84; doc/162, 163.
- A more detailed study has been drawn up on this topic: Matthies/Jordan,
Der Fall Weise - Neue Beweise zur Klärung unrichtiger Ortsangaben
und unrichtiger Tatvorwürfe im Urteil des Landgerichtes Wuppertal
vom 28. Januar 1988, March 1993, with supplement from May 1993.
Copies of this study are available in return for photoduplication
costs.
- cf. Matthies/Jordan, op. cit. (Note 45), p. 4.
- cf. J. C. Ball, Air Photo Evidence, Delta, BC: Ball Resource
Services, 1993, p. 34.
- cf. Archivum des Museums in Auschwitz. Ensemble der Erklärungen
zum Raub des Opfergutes, ch. 51, pp. 119-134, report of former
inmate Josef Odi.
- J.-C. Pressac, Auschwitz: Technique and Operation of the
Gas Chambers, New York: Beate Klarsfeld Foundation, 1989.
- For details cf. Matthies/Jordan, op. cit. (Note 45).
- Yad Vashem report, p. 63; doc/151.
- Verdict, p. 187; doc/180.
- Verdict, p. 188; doc/181.
- cf. the works of Prof. Dr. Michael Stadler, Institute of
Cognition Psychology, University of Bremen; cf. esp. Stadler/Fabian/Wetzels,
"Wiedererkennen des Täters oder Identifizieren des Beschuldigten?",
in Bremer Beiträge zur Psychologie 100(1) (1992).
- Re. similar practices in medieval witch trials, see the
chapter by M. Köhler, this volume.
- Verdict, p. 183; doc/179.
- Verdict, p. 182; doc/179. Again, there are parallels to
the witch trials: every defendant is guilty!
- For Freimark, the name of the town Grodno seems to be another
focal point for emotionally charged remnants of memories. In
his imaginative account of how he participated in the murder
of a fellow prisoner, his accomplices are again three inmates
from Grodno, who were then executed; doc/67.
- Verdict, pp. 196-197; doc/182.
- According to the Court (Verdict p. 196; doc/182) two inmates
were indeed shot by one Unterscharführer Wigleb in 1943 after
attempting to hide in a wagon under some things that were to
be shipped out. Because of the 1943 incident, former Unterscharführer
Graf was charged in Vienna as accomplice, but was acquitted.
According to Freimark, in 1944 he was again an accomplice in
a precisely identical event, this time committed together with
Weise. Clearly Freimark had heard about the event of 1943 and
proceeded to impute it to Gottfried Weise. Incidentally, Freimark
had originally stated 1943 as the date for this event as well,
and it took the joint efforts of the Prosecuting Attorney and
the Judge to persuade him to revise the date to 1944.
- Yad Vashem report, p. 72; doc/106ff.
- doc/167, 168. In the transcript it was first typed, then
crossed out with the same typewriter: "also took a liter of
my blood."
- doc/139.
- Hefte von Auschwitz, no. 15, p. 45, footnote 90.
- Matthies/Jordan, Aug. 1993: Der Fall Weise - Neue Beweise
zur Klärung unrichtiger Angaben des Zeugen Freimark und unrichtiger
Feststellungen im Urteil des Landgerichtes Wuppertal vom 28.
Januar 1988. Copies of this study are available in return for
photoduplication costs.
- Copy of the unanswered letter, C. Jordan's files.
- Rüdiger Gerhard, Der Fall Weise - Dokumentation zu einem
Auschwitz-Birkenau-Prozeß: Ein "Lebenslänglicher" fordert Gerechtigkeit,
Berg am See: Türmer, 2nd ed., 1991. For example, see pp. 31-33,
statements of Dr. Hans Eisenschimmel (not read into evidence)
and Henry Isaac Liver (ignored); p. 51, refusal to consider
the "Vienna File"; p. 60, witness Kierski (disparaged as "having
insufficient perspective"); p. 73, witness Burger (exonerating
evidence given by a witness for the prosecution is simply glossed
over and explained away).
- Jordan, March 15, 1992: Der Fall Weise - Fakten zum Wiederaufnahmebegehren.
Copies of this work are available in return for photoduplication
costs.
- This date of Freimark's presence in Auschwitz had never
been questioned and was not an issue at all.
- FAZ, Feb. 9, 1979, p. 5.
- Suwalki book, p. 314; doc/120.
- Suwalki book, p. 316; doc/124.
- Freimark's Yad Vashem report, p. 70; doc/155.
- Verdict, pp. 187, 188; doc/180, 181.
- Bender, Röder, Nack, Tatsachenfeststellungen vor Gericht,
2 vols., Munich: C. H. Beck, 1981, v. 1 p. 46.
- Bender, Röder, Nack, op. cit. (Note 75), v. 1 p. 48.
- News release, Jan. 25, 1993, Polish Historical Society,
Stamford, CT 06902, USA.
- Friedrich von Spee, Cautio Criminalis oder Rechtliches Bedenken
wegen der Hexenprozesse, Munich: dtv, 1982.
- cf. the flier which Herr Kissel saw himself forced to distribute
because the media denied him the right to publicly correct the
vicious incendiary slander that had been directed at him.
- "O'hl.Michael 'Kämpfer des Rechts' / steh uns bei / wenn
uns droht was schlechts." AD 1993.
Unfortunately the beautiful color photograph of this house inscription
cannot be reproduced here; it was confiscated by a certain lady
Prosecuting Attorney.
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