TBA BRIEFINGS OCTOBER 2015 ♦ TOPEKA BAR ASSOCIATION ♦ Defining Rule of Law TBA Office Tiffany Fisher, Executive Director In this and next month’s essay, I will attempt to 534 S. Kansas Avenue, Suite 1130 examine the question of whether people may take comfort Topeka, Kansas 66603 that the rule of law will always prevail over arbitrary Phone: 233-3945 email: [email protected] administration of justice. Considering the facts of one of www.TopekaBar.com the most extreme cases of national crisis known to Western Civilization, the answer might seem to be “yes” with the Board of Directors caveat that the law need not be just or even reasonable. James P. Rankin, President This and next month’s essay suggest that the rule of law Laura Graham, President-Elect may be twisted to create an earthly hell. Dave Newbery, Treasurer Diane Bellquist, Secretary ______________________________________________ Mark Bennett, Director Glenda Cafer, Director “So whatever you wish that men would do to you, do so to Vince Cox, Director By Jim Rankin them; for this is the law and the prophets.” James R. McEntire, Director Kyle Mead, Director Matthew 7:12 RSV Amanda Vogelsberg, Director Jim Wright, Honorary President Judge Ernst Janning: “Judge Haywood… the reason I asked you to come: Those people, those millions of people…I never knew it would come to that. You must believe Committee Chairpersons it, you must believe it.” Stephen W. Cavanaugh, Bench-Bar Judge Dan Haywood: “Herr Janning, it “came to that” the first time you sentenced Terri Bezek & Anthony Mattivi, Continuing Legal Education a man to death you knew to be innocent.” Anthony Mattivi & Ron Wurtz, Criminal Law Judgement at Nuremberg, A play by Abby Mann (1957) Alan Alderson, Family Law Vince Cox, Law Day October 1, 1946, the International Military Tribunal sitting at Nuremberg handed Christopher Joseph, Legislative down the individual sentences for more than 20 Nazi leaders who were on trial since Mary Christopher, Medical-Legal Shaye Downing & Doug Shima, Membership 1945. Twelve of the defendants were sentenced to death and hanged. The international Dan Gronniger, Memorials military trials involved those members of the Nazi high command such as Göring, Pedro Irigonegaray, Naturalization Hess, Jodl, and Kaltenbrunner, then in allied custody. Hitler and Goebbels committed Scott Sumpter, Probate suicide in the spring of 1945 and many other Nazis, such as Adolf Eichmann, escaped S. Lucky DeFries, Prof. Ethics & Grievance Germany or were hiding within Germany. After the International Tribunal handed Ryan Hellmer, Program & Entertainment Natalie Haag and Laura Graham, Public Relations down its verdicts, further international cooperation concerning the trials became Roger Fincher, Public Service impossible.1 Sarah Morse, Publications Sarah Morse, Young Lawyers Division The Nuremberg Trials were not universally supported. Certainly not in Germany Carol Ruth Bonebrake, Service to the Bar but not even in the United States. Harlan Stone, Chief Justice of the United States Supreme Court at the time, described the proceedings as a “sanctimonious fraud” Lawyers’ Assistance Committee and a “high-grade lynching party.” Associate Justice William O. Douglas said at If you or someone in your office feels a need to discuss a problem involving alcohol, substance abuse or depression, Nuremberg, the Allies “substituted power for principle.” The ex post facto nature or with life in general, please call a member of the TBA of the international human rights concepts supporting the Nuremberg prosecutions Lawyers’ Assistance Committee. Confidentiality assured. raised concerns because these principles had not existed as law prior to the war. Jeb Benfer, Chair ...................................233-2323 Nevertheless, the United States proceeded with additional Nuremberg Trials after the Kerry Gasper..........................................233-8862 International Tribunal had completed its work.2 John Harper ..........................................354-8188 Claude Lee ............................................783-8334 Among the subsequent trials were the so called “Justice Trials” (officially styled” Billy Rork ..............................................235-1650 The United States of America v. Joseph Altstötter, et al, 3 T.W.C. 1 (1948), 6 L.R.T.W.C. Jon Snyder..............................................235-5500 1 (1948), 14 Ann. Dig. 278 (1948)), which began March 5 and ended December 4, Bryan Smith...........................................234-2453 1947.3 The Justice Trials were the subject of the celebrated 1961 film Judgement at Or call KALAP toll-free at 1-888-342-9080 Nuremberg, starring Spencer Tracy, Marlene Dietrich, and Maximilian Schell. Sixteen ♦ TBA BRIEFINGS ♦ lawyers and judges were charged with furthering the Nazi policy of racial purity by rendering unwarranted verdicts and assisting with enforcement of Nazi eugenics Editor: Sarah Morse laws. The indictment included four counts. All defendants were charged with the first Contributors: Terry Beck, Doug Shima, Amanda Kiefer and Rich Eckert. three: viz conspiracy to commit war crimes and crimes against humanity; war crimes continued on page 4 ♦ Page 2 ♦ TBA BRIEFINGS OCTOBER 2015 continued from page 4 - President's Column presiding judge at the Nuremberg Special had died before the trial began and one against civilians in territories occupied Court from 1937 to 1945. The case in case resulted in mistrial. Four defendants by Germany and against soldiers question involved a 68-year-old Jewish were sentenced to life in prison and six of countries at war with Germany; man named Katzenberger. Katzenberger defendants were imprisoned for shorter and crimes against German civilians was tried under Article 2 of the Nazi law for terms. Few convicted defendants served and nationals of occupied territories. protection of German blood. The law forbad their entire prison term. The two most The fourth count of the indictment sexual relations between Jewish persons notorious of the Nazi judges, Roland charged seven of the defendants with and other German nationals. Katzenberger Freisler, president of the People’s Court membership in the SS, SD, or the was accused of having sex with a 19-year- in Berlin, and Reich Minister of Justice, leadership corps of the Nazi Party, all old German girl. Both Katzenberger and the Otto Theirack, escaped the judgement of which had been declared criminal girl denied the charges and described the at Nuremberg altogether. Freisler was organizations by the International relationship as fatherly. The only evidence killed in a February 1945 bombing raid Military Tribunal. Essentially, the submitted was that the girl had been seen on Berlin. Thierack committed suicide defendants were charged with judicial sitting on Katzenberger’s lap. For Judge after his arrest by the allies. Rothaug that was sufficient. Manuevering murder and other atrocities, which they Clearly, the German judges the case into a special proceeding, Rothaug committed by undermining law and participated in and enabled Nazi permitted uniformed Nazi officials to offer justice in Germany and circumventing atrocities. These were adult men, opinions as to Katzenberger’s guilt. In order traditional legal procedure in order to educated, cultured and worldly. How did to enhance the normal punishment for Article enable mass persecution, enslavement the judges succumb to Nazi influence? 2 violations (usually life in prison), Rothaug and extermination. Writing in the New Republic, retired interpreted a law—prescribing death for law Seventh Circuit Court of Appeals Judge Perhaps the most notorious example violations intended to take advantage of the Richard A. Posner provided insight of the judicial crimes involved Judge war effort—as applicable to Katzenberger. concerning judges becoming caught up Oswald Rothoug. Rothaug was the Rothaug imposed in mass movements: the death sentence on Katzenberger “Perhaps in the fullness of time the on the ground that growing of marijuana plants … will Katenberger had come to be no more appropriate KICK exploited the German objects of criminal punishment than “black out” rules—an ‘dishonoring the race.’ Perhaps not; air raid precaution— but [the story of the German judges] BACK in order to pursue can in any event help us to see that his sexual interests. judges should not be eager enlisters WITH THE COURTS Katzenberger was in popular movements of the day, executed and the or allow themselves to become so German girl was immersed in a professional culture imprisoned for that they are oblivious to the human perjury. When the consequences of their decisions.” issue of insufficient Judge Posner’s comment helps us evidence was raised, understand and relate the problems of Rothaug stated: “it is Germany in the 1930s and 40s to our sufficient for me that JUST IN CASE own time and place, but there is a darker A PODCAST BY the swine said that a and more compelling prospect. The German girl sat upon German judges were influenced by the his lap.”5 authoritarian tradition of the German Ten of the Justice Empire, they had no long tradition of Trial defendants working through challenges to a liberal Hosted by Paige Nichols, and featuring criminal-law cases just in from the United States Supreme Court, the Tenth Circuit, and the Kansas Appellate Courts were found guilty. constitutional order and in 1934 they, Four were acquitted. along with other civil servants, were TUNE IN AT MONNAT.COM/PODCAST Two defendants were required to swear allegiance and loyalty