In the immediate postwar period, the victorious Allies conducted a number of trials. Most famous, of course, was the International Military Tribunal in Nürnberg in 1945–46, which tried the highest-ranking and most notorious Nazi leaders who had been captured alive (such as Hermann Göring). This was followed by twelve trials of the American Military Tribunal, in the same courtroom, that focused on groups from the next echelon of perpetrators: the officers of the mobile firing squads known as the Einsatzgruppen, the High Command of the armed forces, leading officials of the ministries, generals from the Balkan and southeast European theater, the doctors involved in “euthanasia” and medical experiments, key industrialists, and so forth. In addition, many suspected Nazi criminals were extradited to other countries in Europe, to be tried for crimes they were accused of committing there. For example, Rudolf Höss, the commandant of Auschwitz, was returned to Poland for trial, conviction, and execution. At this time, local authorities in occupied Germany were restricted to carrying out “denazification” hearings and trying crimes that German perpetrators had committed against German victims. The obscure, low-ranking German perpetrators from Starachowice were not among those extradited to Poland, so none of them faced trial in the immediate postwar period.
Once it was clear—after 1948—that the Allied occupiers were going to initiate no further trials in those occupation zones that were destined to become the Federal Republic of Germany (“West Germany”), local judicial authorities there were empowered to undertake the investigation and trial of those suspected of committing crimes against non-German victims as well. For the next decade, the prosecuting attorneys of the individual states (Länder) of the Federal Republic did undertake some investigations and trials, but these were limited in both number and scope. Local prosecutors were not trained, organized, or directed systematically to seek out the Nazi criminals who might be in their midst. They responded when the presence of such suspects was brought to their attention, often by former victims.
This passive or reactive stance began to change in 1958. When faced with the case of a former member of the Tilsit Kommando, the prosecuting attorney in Ulm, Erwin Schüle, chose to do the maximum instead of the minimum. Following his investigative leads, he uncovered and indicted ten members of the Kommando and obtained the convictions of all of them. At that time, the German criminal code contained a fifteen-year statute of limitations for murder. With 1945 taken as the point at which prosecutions could first have begun, the statute of limitations that would have foreclosed further prosecution of even the most heinous acts of Nazi mass murder was fast approaching. Schüle and others thus took the initiative to create the Central Agency for the Investigation of National Socialist Crimes. Following the Ulm model, it created teams to investigate proactively entire crime complexes to determine what crimes had been committed and who might still be brought to trial for them. Before the statute of limitations deadline was postponed at the last minute by the German Bundestag, the Central Agency also issued an appeal for international cooperation, so that it could begin as many investigations as possible, for anyone already under investigation would not enjoy immunity from prosecution when the statute of limitations ran out.
In response to this appeal, the World Jewish Congress informed the Central Agency in the spring of 1961 of the potentially incriminating testimony by two survivors against Walther Becker and Willi Althoff.1 In 1962, German investigators conducted a preliminary round of interviews with two survivors in the United States and six in Israel. A handful of German witnesses who had been stationed in Starachowice or elsewhere in the Radom district during the war were interrogated in 1963. The Central Agency also discovered that an earlier investigation of Walther Becker had been undertaken by the Office of the State Prosecutor (Staatsanwaltschaft) in Hamburg in 1951, and this in turn had led to a brief investigation of Kurt Otto Baumgarten by the Staatsanwaltschaft in Hechingen. The investigations had been halted for lack of evidence in 1952.2 Since Walther Becker still resided in Hamburg when the Central Agency reopened the case, it assigned further investigation of the case to the Staatsanwaltschaft in Hamburg in August 1963.3
Between 1966 and 1968, the Hamburg Staatsanwaltschaft carried out numerous interviews and interrogations of individuals who included Schwertner, Baumgarten, Schroth, Becker, and finally Kaschmieder. The potential cases against Baumgarten, Schroth, and Kaschmieder were separated from the Becker investigation and sent on to the state prosecutors in Stuttgart, Dortmund, and Traunstein, respectively, in 1968.4 At the same time, the Staatsanwaltschaft in Hamburg decided that it had sufficient evidence to proceed to trial against Walther Becker.5 An arrest order was issued for Becker, but it was quickly lifted on the condition that he report to the authorities three times per week and not leave the Hamburg area.6
While Becker, Baumgarten, Schroth, and Kaschmieder now faced potential judicial consequences of their actions in Poland some twenty-five years earlier, two Germans prominent in the memories of Starachowice survivors escaped judicial scrutiny entirely. Willi Althoff, living under the assumed name of Ralf Matthias Bracke, was never located before his death in 1964.7 Walter Kolditz’s name came up repeatedly in the early interviews concerning Starachowice, but he died in 1966 without ever being interrogated.8 Fräulein Lutz, the feared secretary at Tartak, had also evaded judicial scrutiny. Morris (Moshe) Zucker, the father of one of the four typhus victims shot there after she had reported the cases, tracked down Fiedler in Germany after the war. Learning that Fiedler frequently visited Bad Tölz, Zucker followed him there, which led him to Fräulein Lutz and their two-to-three-year-old son. Zucker denounced her to the American authorities, who held and interrogated her for several days but then let her go. Both she and Fiedler thereupon disappeared for good.9
In addition to the lapse of time, which had allowed two prime suspects to die a natural death before they could be tried, the prosecutors in the now four separate Starachowice cases faced additional burdens or obstacles to obtaining convictions. One of these was the nature of the German law with which they had to work.10 This involved both the German criminal code itself and a key precedent-setting interpretation. The Federal Republic refused to employ the legal concepts that had governed Allied trials, especially the notion of “crimes against humanity,” which the Germans had bitterly criticized as an unfair application of ex post facto law. Thus, when the Federal Republic was once again a sovereign country in charge of all further prosecutions, it employed the German criminal code that had been in effect in 1940. By this statute, murder was the taking of a human life that was characterized by certain specific criteria. One of these involved acting out of a “base motive,” such as race hatred. Several others involved the manner of the killing, such as the taking of a human life with “cruelty” or “maliciousness.”
Prosecutors also faced an important distinction in German law between the perpetrator (Täter), who fully willed and identified with the deed committed, and the accomplice, who facilitated the deed but did not will the act as his own. In a key precedent, the so-called bathtub case, this legal distinction between perpetrator and accessory was given a crucial and counterintuitive twist. In this case, a woman had drowned the unwanted, illegitimate baby of her sister in the bathtub. The birth mother was found guilty of murder, but the sister who physically had committed the deed was declared guilty only of “accessory” (Beihilfe), because she had killed the baby on behalf of her sister and had not acted of her own will. This 1940 precedent was confirmed in 1962 through the Stachinski case, in which a KGB agent who killed two Ukrainian exiles in Munich was deemed a mere accomplice. This distinction was subsequently applied to those accused of Nazi crimes.11
As a result of this combination of statute and precedent, German judges ruled time and again in cases involving the Nazi mass murder of Jews that the true perpetrators who willed the deeds were a small number of notorious leaders—Hitler, Himmler, and Heydrich. All middle-echelon managers and organizers of the mass murder were mere accessories unless the prosecution could prove beyond a reasonable doubt not just what they did but also key elements of their state of mind—namely, that they willed the killing as their own act or that they acted out of race hatred. Since defendants were coached by their attorneys emphatically to deny either, and the contrary could seldom be proved beyond reasonable doubt, convictions for murder, as opposed to accessory, were rarely obtained. This legal distinction between “perpetrator” and “accessory” became especially vital after 1969, when an obscure and seemingly technical amendment to German law concerning the sentencing range for accessory to murder had the effect of placing most accessory cases beyond the statute of limitations.12
Concerning the perpetrators who physically committed the killings, as long as they acted according to orders and within prescribed routine, they too were mere accessories. Once again, only those who were noted for the cruelty and maliciousness with which they killed were exposed to conviction for actual murder. Convincing evidence concerning the manner in which a killing had been carried out was easier to gather than evidence concerning state of mind, so the low-level killers were legally at greater peril than their superiors in the middle management of the mass murder.
Given the greater ease with which the prosecution could deal with low-level killers, it is not surprising that the first Starachowice case to reach the courtroom was that of Willi Schroth. He had been captured by the advancing Soviet army in January 1945 and sentenced to twenty-five years of hard labor by a military court in Moscow in 1950. After ten years in captivity, he returned to Germany in October 1955 and lived with his sister in Düsseldorf. Thus, when his case was separated, it was sent to the branch of the Staatsanwaltschaft in nearby Dortmund that specialized in the investigation of Nazi crimes. The trial itself took place in the Düsseldorf state court (Landgericht) and ran from August 31, 1970, to March 29, 1971. It took testimony from forty-eight Jewish survivors as well as several German witnesses. Schroth was accused of murder in a number of individual cases and of being an accessory to murder in the November 1943 selection that sent at least 140 Jews to their deaths at Firlej. Some of the murder charges were dismissed for contradictory evidence (different witnesses at some point had named different killers) or insufficient evidence (no corroborating witness). A number of charges rested on convincing and consistent testimony by multiple witnesses (as well as Schroth’s own earlier admissions in his initial interrogation, for which he had apparently not availed himself of skilled legal advice) as to his actually carrying out the killings. The court’s legal analysis of these undisputed killings therefore was crucial; did they meet the high threshold of murder as defined by German law and interpreted in German court?
The first step was to establish whether Schroth killed out of a “base motive”—that is, race hatred—as the indictment charged. The court ruled to the contrary, portraying Schroth not as an anti-Semite but rather as a “primitive” and obsequious person holding a position far beyond his limited abilities and desperately trying to please his superiors. The court noted in effect that not all witnesses testified that he mistreated Jews all the time, and that, compared with some of the other Germans in the Starachowice camps, he was deemed “not so bad.” The German witnesses, his former colleagues, testified that he was “decent” and “correct.” As for the unfortunate incident in which Schroth urinated on Jewish corpses in an open grave while remarking that the dead Jews should “drink up”—an incident witnessed by three survivors—the court noted that other witnesses had described such an incident with a different German at a different time and place. Rather than concluding that this was a common ritual among the German personnel, the court started from the unexamined premise that such an act had happened only once. Since there was conflicting testimony, the possibility of mistaken identity had to be resolved to the benefit of the defendant.13
Having dealt with the crucial issue of “base motive,” the court then had to analyze the charges accordingly. The court accepted that Schroth had shot Jadwiga Feldman and Mala Szuch on May 15, 1944, when the two women had not gone to work, and it accepted multiple witness testimonies that he had dragged Mala Szuch by the hair as she resisted being taken away. But it accepted Schroth’s claim that he had killed the two women on Becker’s order, neither on his own initiative nor out of race hatred. Thus, legally his act was one of accessory and as of 1969 beyond the statute of limitations.14
Concerning Schroth’s first killing, that of the injured worker, the court again accepted Schroth’s claim that he had done this on orders from above and to spare further suffering by the individual. As he had not willed the deed, or done it out of race hatred, or carried it out cruelly and maliciously, he was a mere accessory, and the statute of limitations had run out on that crime.15 Concerning his role in the November 1943 selection, Schroth admitted that he had taken part and accompanied the victims to Firlej, but he claimed that he did not know they would be killed until he arrived there. The court concluded that it was “not impossible” that he did not know the selected Jews were going to be killed. Thus he was in practice an accessory, but this may not have been “intended” or “knowing” on his part and therefore was not punishable.16
Schroth’s shooting of Szmul Wajsblum, after he had forced the old man to dig his own grave just outside the fence of the Majówka camp, had been perhaps the most widely witnessed individual killing there and one about which there was no conflicting testimony. When initially asked why he had forced Wajsblum to dig his own grave, Schroth had answered, “At that time I thought little about all that.”17 Though the court accepted Schroth’s claim that he had shot Wajsblum on orders from above, it could not escape the conclusion that forcing Wajsblum to dig his own grave meant that the killing had been done “cruelly.” Schroth’s act of killing Wajsblum was categorized as accessory, but since he had done it “cruelly,” it was one of the few cases of accessory not beyond the statute of limitations. On this count alone, he was convicted.18 For this he was sentenced to six years in prison.19
Three months after Schroth’s conviction, the Staatsanwaltschaft in Stuttgart moved to have all charges against Kurt Otto Baumgarten dropped and the case dismissed. Baumgarten had admitted that one Jewish worker in his division, Brenner, had been repeatedly reported for inadequate inspection of corrosion in 88 mm. shell casings. Brenner, he said, had been repeatedly warned, but in vain. Thus he had had no choice but to inform the Security Police in Radom, which then sent someone to execute Brenner. Those survivors who witnessed Brenner’s execution had conflicting accounts about whether Baumgarten killed Brenner, ordered his killing, or was just present. In any case, the prosecutor concluded that, whatever Baumgarten’s role, the shooting was occasioned by the goal of deterring sabotage, not “base motives.” As such, it was manslaughter, not murder, and thus beyond the statute of limitations. Witnesses offered conflicting accounts of who killed the wounded prisoners after the breakout attempt. And one witness who had named Baumgarten as the killer had also stated that he displayed “a certain amount of humanity” in killing only the severely wounded who had no chance of survival and not all the wounded as ordered. On this count, the prosecutor also saw no chance of a conviction. As these were the two strongest charges, the recommendation to drop the case was promptly accepted.20
Walther Becker had escaped from Poland in January 1945, briefly taken up police duties in Regensburg until the capitulation, and then returned to Hamburg. He rejoined the police there, was temporarily suspended at the insistence of the British occupation authority, but was then reinstated in 1947. He was suspended once again in March 1951, while his case was being investigated for the first time. When that case was dismissed in August 1952, he resumed his police work until his retirement in 1957. He was placed under arrest briefly from March 1 to 3, 1968, conditionally released, and officially indicted on April 8, 1970.21 Becker’s trial finally opened in the Hamburg Landgericht in August 1971, just months after Willi Schroth’s conviction.
Becker was on trial solely for crimes that he was accused of committing on October 27, 1942, not for any other acts committed during his nearly five years in the Security Police branch office in Starachowice. Most important, he was charged with participating in and giving orders during the ghetto-clearing, during which more than 3,000 Jews were sent to their deaths at Treblinka and many others were killed in the process. Additionally, he was charged with personally killing twelve Jews in nine distinct incidents. In all cases, he was accused of killing out of base motives and cruelly. The 1970 indictment listed fifty-nine Jewish witnesses and nine German witnesses whose testimony was the basis of the indictment.22
In contrast to Schroth, who had admitted to numerous killings but had pleaded superior orders, Becker had followed a defense strategy of total denial. His police office had not had jurisdiction over Jewish affairs in Starachowice, and he had not known of the impending deportation action. He had gone to the marketplace and briefly observed what was happening without reporting to anyone or giving anyone orders, and then had left. The prosecutor deemed his testimony “unbelievable” and “contradicted by the testimony of numerous witnesses.”23 After fifty-five court sessions stretching over seven months, during which the witness list had grown to 100 and an additional fifty-one depositions were read, the verdict was delivered on February 8, 1972, by the Schwurgericht or “jury court,” comprising the presiding judge, Senatspräsident Wolf-Dietrich Ehrhardt, two associate judges, and six laymen.
The Schwurgericht combined elements of the jury trial and the bench trial in the American court system. The presiding judge conducted the proceedings. Every member of the panel of nine judges could intervene and ask questions of the witnesses. The panel then weighed the evidence and reached its verdict. A brief verdict was then read in court. The judicial reasoning behind the verdict subsequently was issued in a much more extensive written opinion. In this system, neither the particular roles of individual judges nor the actual authorship of the written verdict is revealed. Presumably, the presiding judge, who conducted the proceedings in court, also exercised considerable influence over the weighing of evidence. And presumably the written verdict that came out over his name was not issued without his input and approval.
The verdict in Becker’s trial began by accepting his account in virtually every regard. In particular, “lacking any finding to the contrary,” the court accepted that Becker, as a member of the Criminal Police rather than the Gestapo, had not been responsible for Jewish affairs in Starachowice, and that he had not been informed of the impending deportation, had not participated in the ghetto roundup and selections on the marketplace, much less commanded them, and did not know that the deported Jews would be killed. The verdict challenged his account on only two minor points. First, Becker’s claim to have observed the ghetto liquidation for only a total of forty-five minutes before departing—first on the marketplace briefly and then for ten minutes at the loading of the train—defied the reconstruction of any possible timeline. By his own admission, and by the testimony of several German witnesses, Becker must have been on the marketplace by 8 a.m. The loading of the train could not possibly have begun before 10 a.m. Therefore, he must have been present for at least two hours. Second, the court accepted Leopold Schwertner’s testimony that while on the marketplace Becker had not just observed but had spoken to members of the Werkschutz. However, the nature of that conversation remained unknown and thus not evidence of a command role. Otherwise, the crux of Becker’s account—that he had no jurisdiction over Jewish affairs in Starachowice and was an uninformed and nonparticipatory observer on the day of the deportation—remained intact for the court. His account was “conceivable and could not be disproven,” and thus he was acquitted on all counts.24
The court then turned to the eyewitness testimony of numerous Jewish survivors that contradicted the Becker account. The total dismissal of all Jewish testimony was achieved in three stages. The first was a statement of principle concerning the value of eyewitness testimony, which the court proclaimed to be “the most unreliable kind of evidence” available to the judicial process. In this particular case, it was even more unreliable because of the twenty-nine years that had elapsed. For the court, the “ideal witness” was an “indifferent, attentive, intelligent observer” who had watched the events in question in a “disinterested” and “detached” way. This the Jewish witnesses from Starachowice “certainly” were not. Given their situation, in fact, they had to be “bad witnesses.”25
Second, the court turned to the individual instances in which Walther Becker was charged with personally having killed a total of twelve Jews in nine different instances. The prosecution was ill-advised to have brought at least three of these charges, which were easily dismissed for problematic evidence. To make its prophecy about the unreliability of Jewish survivor testimony self-fulfilling and to leave Becker’s account intact, “without any finding to the contrary,” the court required somewhat greater effort on the other counts.
On one count, three witnesses had testified that Becker had been by the steps of the alleyway leading up from the main street known as the Kolejowa to the marketplace, where he had personally beaten and shot Jews. The key witness had described in detail how Becker had shot two men, one of them quite elderly. But in one account he said that Becker knocked down the elderly man and shot him on the ground. In a different interview, he said Becker shot him while the man was still standing. His evidence was therefore dismissed as “discrepant.” The testimony of a second witness was dismissed as too unspecific as to which and how many people Becker had shot in the alleyway, and the witness was accused of being untrustworthy in any event for an allegedly false claim he had made in an earlier restitution case. The third witness was dismissed out of hand for calling Becker a “bloody pig” and behaving in a threatening manner toward the defendant. Becker was therefore acquitted on this charge.26
Becker was charged with shooting an elderly couple (identified as the Biedermans by many witnesses but not identified by name in court). One witness admitted hearing the shots and then turning and seeing Becker standing over the couple with smoking pistol in hand. But the witness admitted that there were other Germans standing by Becker, and an expert witness testified that the ammunition in question was smokeless. Thus, the court could not exclude the possibility that another German had fired the fatal shots. A second witness had provided pretrial testimony but did not appear in court. The German judicial interviewer vouched in his professional opinion for the credibility of her testimony, but it was dismissed because the court had no possibility of making its own assessment in this regard or to establish whether the witness knew Becker well enough to identify him.27
Concerning the shooting of the teacher, Shlomo “Szkop” Zagdanski, three key witnesses differed on the exact location: in Krotka Street, at the corner of Krotka and Niska Streets, or coming from the direction of the synagogue (on Niska Street). They offered different times in the morning: 7 a.m., 8 to 8:30 a.m., or shortly before departure from the marketplace. They differed on whether Becker was alone or with a group of two or three Germans. Furthermore, the court doubted that two of these witnesses knew Becker well enough to be able to identify him with certainty. And the third had offered only one testimony in court, so his credibility could not be checked for consistency over time against earlier testimonies. The less detailed accounts of other witnesses only confused the situation further.28
Becker was accused of shooting the tailor Kirschenblatt. One witness gave two detailed and consistent testimonies in 1971 but had not mentioned this incident in his earliest testimony in 1968. Moreover, he displayed a tendency to “embellish” and “exaggerate.” The court thus questioned his credibility. A second witness offered only hearsay evidence, since on seeing Kirschenblatt’s body, she learned immediately from his wife how he had died, but she did not see the shooting itself. A third saw Becker shoot “the tailor” but then provided the name of a different tailor in Wierzbnik.29
It was obviously German policy during the ghetto-clearing to shoot all physically handicapped people, who were deemed likely to impede the speed with which the Aktion would be carried out. Unfortunately, the prosecution merged accounts of what most likely were the killings of two different handicapped people into one incident, which predictably led to irreconcilable contradiction between otherwise compelling testimonies. Mendel Mincberg, the son of the head of the Judenrat, testified that he saw Becker summon a man from Bodzentyn with a bandaged leg and foot to the open door of the courtyard off the square and shoot him. The court conceded that Mincberg’s testimony and demeanor in court were “clear, calm, and objective.” However, he claimed to see Becker’s pistol smoking, had not mentioned this particular shooting in his earliest testimony in 1962, and then over time had added details to his account, such as the town from which the man came. Moreover, the court noted, when Mincberg was directly accusing Becker, his voice became slightly “strained” and “nervous.” The court could not exclude that this was possibly an indication of inner “uncertainty and doubt” on his part.
The second witness, Rachmil Zynger, the historian of the Wierzbnik community memory book, was praised by the court for his demeanor and unusual memory for detail. However, Zynger testified that Becker and another man took a one-legged man on crutches behind the half-closed doorway of the courtyard, after which he heard a shot fired. He too had omitted describing this incident in detail in his early 1962 testimony, merely stating that he had seen Becker shoot people. Noting the differences in the two testimonies—summoned versus taken, bandaged foot versus one-legged man on crutches, open door versus half-closed door, Becker alone versus Becker and another German, saw the killing versus heard the shot—the court concluded that these seemingly believable accounts were “irreconcilable,” hence neither could be used to convict the defendant. That others mentioned the killing of or seeing the dead bodies of handicapped persons in different places and circumstances was not taken to confirm an overall policy of killing all the handicapped, thus enhancing the credibility of testimony concerning the killing of both a one-legged man on crutches and a man with a bandaged leg and foot. Instead, such accounts were treated as divergent and conflicting testimony concerning the killing of one handicapped person, rendering them even more contradictory and thus even less compelling for the court.30
It was also clear that the Germans killed elderly people in the Wierzbnik ghetto liquidation. Two such elderly victims were Abram Rubenstein and Henoch Kaufman. One “calm” and “composed” witness testified that he saw Becker alone take these two men through the courtyard doorway, after which he heard shots and later saw the bodies. Becker was the only German seen in the area at that time. The verdict noted that someone else could have remained unseen in the courtyard and done the shooting. Furthermore, a second witness—Abram Rubenstein’s daughter-in-law—testified that just as her column was marching away from the marketplace, she saw her father-in-law emerge from a doorway. He was alone when a man she identified as Becker came up and shot him. The court doubted whether she could identify Becker with certainty but had no doubt she could identify her father-in-law. Thus, once again it had two irreconcilable accounts that canceled one another. There were also differing accounts of Henoch Kaufman’s death.31 As on all other charges of individual killings, Becker was acquitted.
Some testimonies about Walther Becker were clearly dubious and raised the suspicion that Becker had been named by the witnesses for specific acts committed by others who could never be identified. And clearly, given the passage of time and the traumatic circumstances in which the events were experienced, accounts of the same incidents by different witnesses inevitably differed from one another in minor, and in some cases major, ways. But the problematic nature of eyewitness testimony so many years after the crime did not prevent every court in Germany from working its way through such evidence with a somewhat less dismissive attitude. Although every court had to begin with the presumption of innocence on the part of the defendant, not every court began with the presumption that the Jewish survivors who came to give testimony were “bad witnesses” before even examining their evidence.
Whatever the discrepancies among the accounts of different witnesses, or among different accounts by the same witness, upon which the court primarily based its acquittal for each charge of individual killing on Becker’s part, it still faced the consensus testimony of numerous witnesses concerning Becker’s active role during the Aktion that conflicted with the brief, nonparticipatory role that he claimed and about which the court had declared it could make “no finding to the contrary.” To justify acquittal on this basic charge, the court categorically had to dismiss from consideration the testimony of whole groups of witnesses. And that is precisely what it did. It created whole categories of evidentiary flaws, whereby the least suspicion about the reliability of a witness’s testimony in one regard led to its dismissal in all regards. Category by category, entire blocks of witnesses were removed from further consideration concerning their testimony on the crucial issue as to whether Becker had played an active role in the Aktion.
A large number of witnesses were dismissed because the accounts they gave over a series of interviews were inconsistent and contained discrepancies. In particular, the court noted the tendency of witnesses to become more detailed and specific and hence more damaging in accusations about Becker from one testimony to another. As the opposite of “natural memory loss” over time had occurred, the court concluded that these witnesses were “consciously or unconsciously inclined” to “project” onto the defendant their “understandable” hatred of the Nazi regime. Seeing Becker as the representative of the Nazi regime in Starachowice, they blamed him personally for the suffering caused by other unknown perpetrators who were not in court and could not be brought to justice. Therefore, the court would not use evidence to convict Becker that had been provided by witnesses whose various testimonies exhibited inconsistency and especially a pattern over time of intensifying accusation.32
What the court did not say is that a pattern for increasing specificity in witness testimony in such cases was systemically inherent in the way that the prosecution collected evidence. Initially unfamiliar even with the basic facts, the judicial investigators conducted general interviews. As they became increasingly knowledgeable about the case and began to focus on those events, suspects, and witness accounts that held the greatest promise for an effective prosecution, they reinterviewed witnesses. By then, the investigators were far more informed about the case and conducted the interviews with the specific purpose of collecting more detailed information on particular points. The pattern among Jewish survivor testimonies in this case, which the “jury court” in Hamburg found so suspicious and attributed to Jewish “hatred” and “projection,” was perfectly evident in other investigations of Nazi crimes based almost entirely on the testimony of Germans.33 In short, the court cited a pattern in the evidence, a pattern that was systemic in the way that German prosecutors built their cases, to dismiss categorically the evidence thereby collected in this case, and blamed the witnesses’ alleged “hatred” and “projection” as its justification.
Another category of witnesses whose testimony was dismissed entirely were those who, in the view of the court, did not know Becker “face to face.” Those who used general formulations—such as saying that Becker was known to everyone in the ghetto, or those who said that Becker had merely been identified or pointed out to them by others—were deemed too susceptible to mistaken identity. This was justified on two grounds. First, there would have been many German officers on the marketplace that day, all wearing similar uniforms as well as caps with brims that partially shielded their faces. To the Jews, they all would have looked alike. Second, given the situation on the marketplace, the Jews were “in no way critical and disinterested observers.” Thus, unless each individual witness provided the explicit grounds by which the court could be convinced that he or she knew Becker “face to face,” the danger of mistaken identity was too great for that testimony to be used to convict him.34
The court dismissed testimonies categorically for a number of other reasons as well. Those testimonies that alleged Becker was seen shooting and beating in the marketplace but did not provide more detail were deemed too general and lacked sufficient specificity.35 Witnesses who manifested or admitted to any visible memory problem or confusion were discounted.36 If the court regarded a witness as too young at the time—in one case, fifteen years old—then that testimony was questionable as well.37 In short, if the witness either had been too young in 1942 or seemed too old in 1971, the testimony was rejected. If a witness testified in court for the first time and had provided no earlier accounts, the courtroom testimony was dismissed because it could not be judged for consistency over time.38 If the witness had given one or more pretrial depositions but could not appear in court, the testimony was dismissed because the court could make no assessment about demeanor and trustworthiness.39 If the witness displayed emotion or animosity toward the defendant, the evidence was dismissed.40
And finally, there was what amounted to a “perfection test.” Testimonies that were demonstrably in error in one regard could not have evidentiary value toward convicting Becker in any other regard. This included not only the already noted discrepancy between testimonies over time but also hyperbolic exaggeration (“hundreds were shot”), mistaken details (such as the color of German uniforms), mistaken sequence (Becker collecting valuables on the marketplace rather than upon entry to Strelnica), and other assertions the court deemed demonstrably false (Becker shooting Esther Manela or Szmul Isser on the marketplace, Becker holding a smoking pistol or wearing white gloves, Becker with pistol and dog rather than pistol and club).41
Since virtually all Jewish witnesses could be placed in one or more of the above categories, their testimonies concerning Becker’s active role in the deportation were dismissed from consideration. There were, however, three Jewish witnesses and two German witnesses who had offered specific and damaging testimonies that were not yet disqualified.
Nathan Gelbard had testified that he had heard two shots and turned to see the elderly couple lying on the ground and Becker and another German standing at the corner of the marketplace. But Gelbard had “not testified to an exact observation” (eine exakte Warhnehmungen nicht bekundet), in that he stated only that he thought Becker was holding a pistol. The court could not exclude that Gelbard had seen some other kind of object in Becker’s hand, and his testimony simply concerning Becker’s presence on the marketplace was deemed “irrelevant.”42
Mendel Mincberg had testified not only that he had seen Becker shoot the man with the bandaged leg and foot but also that Becker had personally struck Mincberg as well as others as they made their way to the marketplace. Aside from Mincberg’s slightly strained voice when giving parts of his testimony, however, the court claimed “inconsistency” (Inkonstanz) between Mincberg’s early testimonies in Israel (1962 and 1968) and his subsequent court testimony.43 The court then turned to invoke the scores of witnesses it had hitherto dismissed. As the son of the head of the Judenrat, Mincberg was well known. Surely if Becker had struck him, at least one other witness would have mentioned this fact. Thus, the court “could not exclude with total certainty” that Mincberg had accused Becker “unjustly.”44
Rachmil Zynger had testified not only about Becker and the physically handicapped man but also that Becker had stood at the corner of Krotka Street and given orders to others. But for the court, such testimony was too vague to exclude the possibility that Zynger saw Becker merely talking with the Werkschutz, as Leopold Schwertner had testified, and the content of that conversation was unknown.45
The court still faced two more hurdles. Dr. Kurt Puzicha, the German engineer who had been in charge of the mines that supplied ore to the Braunschweig Steel Works in Starachowice, had claimed during the 1951–52 investigation that he had neither witnessed the Wierzbnik deportation nor knew who directed it. Now he came before the court in Hamburg and testified that he had been at the train station on the day of the deportation. He saw the Jews being marched to the loading ramp, with Becker at the head of the column. Among the Jews was an elderly couple. When the old man tripped, an SS man struck him, and the wife pleaded that her husband was blind. Upon hearing this, Becker pulled the couple out of line and shot them both. Puzicha had not testified in 1952, he said, because he did not want to have anything to do with the entire business, but now he wanted to tell the truth.
The court thought otherwise. In 1933, Puzicha had been taken into “protective custody” and later had been held back in his career because of his “political unreliability.” After the war, it was too late professionally to recover and make the career to which he felt he was entitled. In short, Dr. Puzicha was bitter. Furthermore, Puzicha had suffered under the Nazi regime, and Becker was “the representative” of that Nazi regime in Starachowice. Left unsaid but clearly implied, in the court’s view Puzicha too had “projected” his resentment of mistreatment at the hands of the Nazi regime onto Becker and thus his evidence likewise had to be discounted. Not just Jews but anti-Nazis also were considered “bad witnesses” in this courtroom.
One last German witness, Wilhelm Swoboda, testified that on the night after the Aktion, he had found Becker in a drunken stupor, stammering incoherently that it was only bearable when drunk.46 The court argued that no conclusions about Becker’s guilt could be drawn from this evidence. It was “possible,” as the defendant maintained, that he was merely shaken by the terrible events he had just witnessed.47 Becker walked out of court not only a free man but also financially compensated for the three days he had been placed under arrest.
Almost immediately upon hearing of the Hamburg verdict against Becker, the Landgericht Traunstein, where the last Starachowice defendant, Gerhard Kaschmieder, was awaiting trial, issued a decision bringing the proceedings to a halt. Explicitly referring to the Hamburg verdict, the court noted that despite a far greater number of witnesses and far more damaging testimony, Becker had been acquitted. There was little chance, the court concluded, that Kaschmieder could be convicted.48 The Traunstein Staatsanwaltschaft successfully appealed this decision.49 Kaschmieder went to trial for the reprisal shooting of ten Jewish prisoners in the spring of 1944, but the testimony was contradictory. Some witnesses said they saw Kaschmieder lead the victims out of camp and out of sight below the cliff before they heard the shots. Others said they witnessed the shooting directly outside the fence above the cliff. One witness had testified in 1951 that the shooting had been carried out by Becker. He now included Kaschmieder among the perpetrators but said that the Germans had led the prisoners into the woods, from which he heard but did not see the actual shooting. Since Kaschmieder’s role could not be ascertained with the necessary certainty, he was acquitted.50
I cannot conclude this chapter without more personal reflections on the Becker verdict. I have worked in the German court records of trials of accused Nazi criminals for more than thirty-five years. They are an invaluable source to the historian, and the numerous survivor testimonies collected by conscientious investigators for the Starachowice trials are no exception. I must say that in those thirty-five years I have read scores of trial verdicts, and many I found disheartening. But never have I studied a case in detail and encountered a verdict that represented such a miscarriage of justice and disgrace to the German judicial system as that in the trial of Walther Becker.
Numerous studies of German postwar trials have noted the difficulties posed by the nature of German law that stood in the way of obtaining satisfactory verdicts. A 1940 criminal code to deal with individual offenses against society was an inadequate legal tool to deal with state-designed and state-sanctioned crimes against individuals. However, the problems posed by German law were not, ultimately, the primary cause of the verdict in the Becker case. In this case, the trial turned not on any controversial interpretation of German law but rather on the court’s assessment of witness credibility. The former could provide grounds for review but not the latter, which was entirely within the court’s discretion. Thus, the prosecution’s appeal was summarily rejected as “obviously unfounded.”51
More recently, several scholars of the postwar trials have shifted their focus away from the problems posed by German law to the problem posed by German judges. The legal profession in the Third Reich was among the most Nazified, and lawyers seemed to have been disproportionately attracted to the party’s elite organization, the SS.52 After the war, it was simply impossible to staff the German court system without readmitting to the bench many who had served as judges under the Third Reich. And, so the critics suggest, it is inconceivable that this did not affect how they shaped the interpretation of German law and reached verdicts in the trials of accused Nazi criminals.53
What then can be said about the presiding judge, Wolf-Dietrich Ehrhardt, in the Becker trial? A review of the Nazi Party files of the Berlin Document Center microfilms in the U.S. National Archives produced no surviving party card for Ehrhardt. His obituary in a professional publication in Hamburg provided a useful outline of his life.54 Ehrhardt was born in Münster in 1913 and raised in Berlin. His father was killed in World War I, but despite family financial hardship, Ehrhardt passed his Abitur in 1932 and his first and second state law exams in 1935 and 1938, respectively. Drafted into the Luftwaffe, Ehrhardt was transferred to the artillery, where he reached the rank of Oberleutnant (first lieutenant) by the end of the war.
Ehrhardt entered the Hamburg justice system in February 1946, an early entry date that could scarcely have occurred if he had had conspicuous involvement with the Nazi Party. He rose steadily. According to the obituary, he won special recognition among Hamburg jurists for his role as presiding judge over “jury trials” (comprising three judges and six laymen) through his strict leadership and natural authority. He was, so the obituary claimed, especially moved by the large trials involving National Socialist crimes, whose particular demands always exhausted his “last personal reserves.” In July 1972, just months after the Becker trial, he was promoted from Senatspräsident of the regional criminal court to president of the entire Hamburg Landgericht. He retired in 1980 and died in 2002.
In contrast to the portrayal of his professional accomplishments in his obituary, however, Ehrhardt had earned minor notoriety in a critical article in Der Spiegel for his conduct in court in several cases in 1964. On two occasions, when exercising his prerogative to question German female witnesses, Ehrhardt had posed irrelevant inquiries about their sexual relations with non-German men and then openly expressed his dismay and disapproval.55
I could not put together the Becker verdict and the Spiegel article on the one hand and the highly regarded and professionally successful judge portrayed in the obituary on the other. Who was this man who, entering the legal profession in the mid-1930s, had not even joined the Nazi Party, while his cohort of aspiring young lawyers had flocked to the SS? Who was this man who could express in open court his disapproval of German women who had relations with Turkish men and write the Becker verdict so dismissive of the Jewish witnesses in his courtroom, and do this with total professional impunity and then be named president of the Hamburg Landgericht? I revisited the microfilmed documents of the Berlin Document Center at the National Archives to check again, and this time I looked at the index of SS officers who had files from the Race and Settlement Main Office (RuSHA) of the SS, which examined the membership and marriage applications of SS officers for racial suitability. Wolf-Dietrich Ehrhardt’s name appeared in the index, but on the roll of microfilm was the briefest such file I had ever seen. It contained precisely three documents of interest. The first document, one sentence on an otherwise-empty page, explained why the file was so slim. Ehrhardt’s documents were no longer in the file but rather in the “secret safe” of the chief of staff. The second noted that the now-missing Ehrhardt documentation had been returned to RuSHA by the chief of the Sippenamt, the office of ancestral research consulted by the SS for proof of the five generations of racial purity required of each SS member. The third explained, again in one sentence, that Ehrhardt’s name had been “stricken from the list of SS applicants, because he had non-aryan ancestors.”56