Chapter 3 FIRST RECKONINGS

THE GERMAN EUTHANASIA TRIALS, 1946–1947

There is a tendency of plots to move toward death.

—DON DELILLO, LIBRA

The early West German euthanasia trials share with their U.S. counterparts a retributive attitude toward the homicidal violence inflicted on the mentally disabled during the war. Between 1946 and 1947, West German courts convicted euthanasia killers of murder and sentenced them to death. Although attitudes toward individual participants in the euthanasia program would change after 1947, little quarter was given to defendants prosecuted in the immediate postwar period.

In this chapter we will examine the West German euthanasia trials in the two-year period after World War II. We will find that German courts punished doctors (and sometimes nurses) as perpetrators of murder under the German Penal Code, section 211 and sentenced them to either death or imprisonment. The initial rigor of these trials, however, would be short-lived. By 1948, as relations between the East and the West spiraled into the Cold War, German courts began to relent in their assessment of euthanasia defendants. The trend started with characterizations of euthanasia doctors as accomplices rather than perpetrators and reduced sentences based on their subjective state of mind when the crimes were committed. By the late 1940s and early 1950s, this trend culminated in acquittals of proven killers. It is the main argument of this study that the trend line from punishing euthanasia killers to extenuating their crimes and, finally, acquitting them was driven by a nationwide yearning to recoup German sovereignty after years of military occupation—a process that uncannily resembled the interaction of power and criminal law in the U.S. approach to Nazi criminality, yet produced different results. In the case of the United States, concern with preserving the inviolability of sovereignty induced U.S. officials to consider all actors within the euthanasia program equally liable, despite the nature and degree of their actual contributions to the crime. For the Germans, the longing for restoration of national sovereignty would, over time, lead them to presume the innocence of euthanasia defendants, a presumption facilitated by evolving theories of criminal liability as applied to bureaucratic role performance within a criminal state (the Nazi government). We will explore these protean theories—and their adoption by German courts to exonerate euthanasia killers—in subsequent chapters.

We begin with a discussion of two legal postulates that structured the West German prosecution and punishment of euthanasia criminality in the postwar era. The first, the “subjective” theory of perpetration, grew out of the so-called Bathtub Case of 1940. The second postulate concerns the right of German courts to exercise jurisdiction over defendants charged with acts that, at the time of their commission, were not deemed to be criminal by the Nazi government. For a brief time German law had recourse to natural law theory as a means for affirming the right of German courts to punish such acts, despite the fundamental prohibition of ex post facto laws in continental jurisprudence. Our conversance with these two legal postulates sheds light on how German legal authorities conceived of Nazi criminality after the war, and how significantly these conceptions were beginning to change by the late 1940s as German aspirations for national sovereignty became irrepressible.

PRINCIPLES OF CRIMINAL RESPONSIBILITY IN GERMAN EUTHANASIA TRIALS: THE SUBJECTIVE THEORY OF PERPETRATION AND THE REVIVAL OF NATURAL LAW

The rigor of the first German euthanasia trials is remarkable when the context of West German popular attitudes toward the crimes of the Third Reich is taken into account. Although 70 percent of the population supported the trials of the major war criminals in 1946, German attitudes toward the successor trials (of which the euthanasia prosecutions were a part) were highly critical. Trying and punishing a criminal subculture that had rained misery on Germans and foreigners alike was acceptable to most of the population. To move beyond the top Nazis to indict lawyers, doctors, businessmen, industrialists, and military officers, however, was an entirely different matter. To prosecute these representatives of the best in German society, to arraign them as the murderers of innocent millions, was an intolerable affront to a precariously maintained national pride. In 1946, 70 percent favored the trials, but an equal number by 1950 opposed them as “victors’ justice.”

The first German courts called upon to adjudicate euthanasia-related killings did not share such sentiments. Article III of Allied Control Council Law #4 (promulgated in October 1945) on the “Reorganization of the German Judicial System” granted German courts jurisdiction over civil and criminal matters except for “criminal offenses committed by Nazis or any other persons against citizens of Allied nations and their property, as well as attempts directed towards the reestablishment of the Nazi regime, and the activity of the Nazi organizations.” In this excepted category of crimes, Allied tribunals would enjoy exclusive jurisdiction. The terms of Law #4 were superseded in December 1945 by Control Council Law #10, which permitted German courts to exercise jurisdiction over “crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons.” The practical import of this law was to restrict German courts—until Law #10 was repealed in the British and French zones on August 31, 1951—to cases involving denunciations (“grudge informers”), killings related to the terminal stages of the war (“end phase crimes”), deportations of Jews and Gypsies, concentration camp crimes on German soil, and euthanasia cases. Law #10, in effect, excluded German courts from placing under the judicial microscope the most notorious atrocity of the Nazi government—the million-fold murder of Jews in the eastern territories.¹

What was an impediment to prosecuting the crimes of the Final Solution was a windfall to euthanasia trials. Because most euthanasia crimes were committed by Germans on German citizens, they fell squarely within the bounds of jurisdiction as defined by Law #10. In prosecuting these and other Nazi offenses, the German courts could apply either Law #10’s definitions of war crimes and crimes against humanity or the German law of murder (section 211 of the German Penal Code). Although some latitude was given German prosecutors about how they could style an indictment, it was not unusual in euthanasia-related cases for defendants to be charged with both crimes against humanity under Law #10 and a variant of homicide (murder, aiding and abetting murder, or manslaughter) under the German criminal code. Where the two sources of law were in conflict, Law #10 would be supreme—at least in theory. The provisions of Law #10 were more favorable toward the prosecution than was the law of homicide under the German Penal Code. Unlike the code, Law #10, grounded in the Anglo-American law of conspiracy, did not recognize a distinction between perpetrators and accomplices: all participants in the crime were jointly liable as perpetrators for any acts carried out in furtherance of it. Under the German law of homicide, by contrast, a killer could be convicted as a murderer (i.e., a perpetrator) only if he fulfilled all the statutory elements of the offense, controlled the circumstances of its commission, or subjectively identified with the murder while assisting the main perpetrator to commit the crime—that is, if he embraced the murder “as his own.” Another significant difference between Law #10 and the German law of murder was the former’s relative disregard of subjective factors in its deliberations on a defendant’s guilt. Under Law #10, issues that would tie German courts in knots, like a defendant’s consciousness of wrongdoing, developmental background, or interior state of mind at the time of the offense, were immaterial. All that mattered was that the defendant intentionally committed or assisted in committing an act proscribed by the terms of Law #10, namely murder, extermination, enslavement, deportation, or political, racial, or religious persecution, all directed against “any civilian population.” If the defendant was found to have committed any of these acts, regardless of the degree of his participation, then he was guilty as a perpetrator of a crime against humanity.²

German criminal law, on the other hand, was far more interested in the subjectivity of its defendants. Much of German criminal law is a variation on the Kantian idea that virtue (or its lack) has to do not with actions in the world but with intentions in the mind of the actor. Influenced by the Kantian tradition, German criminal law evinces a far greater concern for the subjectivity of the offender than does Anglo-American law. It is not that the Anglo-Americans are disinterested in subjective factors like intent. Rather, they tend to “read” the external act as an index of the actor’s state of mind. As one U.S. court put it in 1918, “the law presumes that a man intends that which he does, and it is from the statements made and the acts done that this intent is to be determined.”³ German law, by contrast, spares no pains to excavate an actor’s subjective intent from the facts of a criminal case. Where the Anglo-Americans infer intent from objective acts in the world, the Germans peer into the dim hyperspace of the human mind in search of a phantom, the actor’s will. In this connection, a landmark decision of the German Supreme Court known as the Bathtub Case demonstrates the primacy of subjective analysis in modern German criminal law, especially in the postwar period.

The Bathtub Case came on appeal from the state court to the German Supreme Court six months after the outbreak of the war and involved a woman who had drowned her sister’s illegitimate newborn in a bathtub. Her motive was to remove from her sister the stigma of having a bastard child. The lower court found the woman guilty as a perpetrator of murder under section 211 of the German Criminal Code. On appeal, the Supreme Court reversed this decision on the theory that the woman, although she had killed the baby with her own hands, had no “personal interest” in the final result of the crime. The real perpetrator in the murder was her sister; she had incited the defendant to the murder and had a personal interest in its occurrence. The woman was merely a “tool” of her sister, and thus qualified as an accomplice, rather than a direct perpetrator. The Bathtub Case was the cradle of the “subjective theory of perpetration” in German criminal law, a theory that made a judicial finding of murder contingent on the personal interest of the actor. In this fashion, defendants who kill others with their own hands, like the hapless woman in the Bathtub Case, could evade conviction as murderers if the court was satisfied they had acted on behalf of someone else’s interest. As Jörg Friedrich has observed, the subjective theory was tailor-made for postwar Nazi defendants. Although they had the blood of thousands of innocent human beings on their hands, many argued successfully that they were mere tools of the arch-perpetrators, Adolf Hitler and his minions.⁴

In the years following the Bathtub Case, German courts did not always adopt the Supreme Court’s subjective theory of perpetration. When we turn to euthanasia cases tried in 1946 and 1947, we notice the relatively high incidence of rank-and-file defendants found guilty as perpetrators. After 1947, however, German courts increasingly applied the subjective standard to convict euthanasia personnel of complicity—even those directly involved in mass murder—rather than perpetration. Only those defendants who killed from a personal interest were identified as perpetrators—that is, killers in whom the impulse to crime originated.

The second legal postulate that structured German approaches to euthanasia criminality after the war was natural law theory. Revival of natural law in the postwar euthanasia trials is intimately connected with the problem of in personam jurisdiction, a much thornier issue than it might at first appear. Although Hitler had vetoed enactment of a formal euthanasia law out of regard for foreign propaganda, he had issued a secret order under his signature authorizing Bouhler and Brandt to set the killing program into motion. Many euthanasia personnel were aware of the order; to some, copies were exhibited. Moreover, in an April 1941 meeting of German state prosecutors and judges in Berlin, Viktor Brack effectively immunized euthanasia operatives from arrest, indictment, or prosecution. Given the permissive atmosphere in which Nazi euthanasia evolved, postwar defendants could plausibly argue they had acted in conformity with the orders of the sovereign authority in Germany at the time, and thus could not be charged with acting illegally. Further, they could with some credibility maintain they had lacked any awareness that their conduct was wrongful and should thus be acquitted for a mistake of law (Verbotsirrtum).

If, as so many euthanasia defendants argued, their actions were countenanced by Hitler as the highest state authority in Germany during the war, then their postwar indictment for participation in euthanasia would violate a fundamental norm of German law, the ban on ex post facto (or retroactive) prosecution. This was a cornerstone of modern German criminal law, a principle codified in the German Penal Code of 1871, the Weimar Constitution of 1919, and the Basic Law (German Constitution) of 1949. The need to prosecute Germans involved in the mass murder of hundreds of thousands of mentally ill patients was compelling; yet, to violate the tenets of the Rechtstaat (a state governed by the rule of law) and criminalize actions that were not illegal at the time of their commission risked an arbitrariness that savored of National Socialist caprice. The Allies had encountered a similar dilemma at Nuremberg, one solved by joining uncodified crimes against humanity to the more securely established Laws of Armed Conflict. Where, as in the subsequent proceedings, the link between crimes against humanity and war crimes was dissolved, prosecution tended to invite charges of victors’ justice from the German public. As we have seen, however, the common law lawyers and judges were less troubled by ex post facto considerations than were their continental counterparts: for the pragmatic U.S. and British authorities, to allow Nazi war criminals to escape indictment for their million-fold murders would be a far greater injustice than to prosecute them retroactively. The International Military Tribunal reflected the Anglo-American position in its assessment of one defendant: “[S]o far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.”

Because of the centrality of the “principles of legality” in continental law (i.e., the ban on retroactive criminal laws), German judicial authorities had more scruples about breaching the prohibition of ex post facto laws. The strategy they developed to solve the problem differed in kind from the Anglo-Americans. Rather than brush aside ex post facto objections by invoking the overriding need to punish wanton criminality, the Germans revived a tradition of legal thought that had fallen into desuetude in German courts for 150 years—the theory of natural law. It is not an exaggeration to say that the application of natural law theory was the most significant factor in German jurisdiction over euthanasia-related crimes in the immediate postwar years. With reference to it, the courts could prosecute Nazi medical crimes, and do so consistent with the prohibition of retroactive prosecution (the principle of nulla crimen sine lege).

If natural law theory was the most important force in legal jurisdiction over euthanasia criminality, then the leading figure in reviving natural law was Gustav Radbruch. For much of his distinguished legal career, Radbruch was a steadfast positivist who urged German jurists to enforce all laws unconditionally, including unjust ones, offering them the cold comfort that they at least were promoting legal stability (Rechtssicherheit). Radbruch’s prewar orientation is clear in his 1932 assertion of the positivist view of law: “We condemn the minister who delivers a sermon contrary to his conviction, but we honor the judge who does not allow himself to be deterred from his devotion to the law by his conflicting feeling of justice.” That the writer of so consummate a statement of legal positivism could do a complete about-face thirteen years afterward is astonishing. In an article appearing on September 12, 1945, in the Rhein-Neckar newspaper, Radbruch revealed his conversion from legal positivism:

There are basic legal principles that are stronger than every existing law. . . . These basic principles are called the law of nature or reason. If laws consciously violate the ends of justice . . . then these laws lack validity, then the people owe them no obedience, then jurists must summon the courage to deny them the character of law.

In the thirteen years between his 1932 and 1945 statements, much had transpired to effect this change: the triumph by legal means of a vicious dictatorship, the defeat of Germany in a catastrophic world war started by that dictatorship, and the murder of millions during the war, carried out by the same dictatorship. The twelve-year imperium of the Third Reich was an unmitigated disaster for Germany and all of Europe. Radbruch blamed German legal positivism for helping open the door to the jackbooted vandals of the Nazi state.⁵

Radbruch’s message in the postwar years was all the more relevant because it addressed the crisis into which the Nazi experience had plunged German law—the crisis of uncertainty about the nature of what precisely bound judges in their interpretation of laws. Radbruch’s public conversion resolved this unsureness—at least in the minds of many German lawyers and judges—in favor of “supralegal law.” After his first anti-positivistic salvo in September 1945, Radbruch published his well-known defense of natural law theory, “Legal Illegality and Supralegal Law,” in the Süddeutsche Juristische Zeitung (SJZ) in August 1946. Radbruch began his essay with the statement that the National Socialists secured the obedience of the military and the judiciary to its criminal purposes with two principles: “A command is a command” and “law is law.” The first of these tautologies, he observed, was always qualified by the Military Code of Criminal Justice, section 47 of which forbade obedience to orders serving a “criminal purpose.” The principle of “law is law,” by contrast, admitted of no such limitations. “It was the expression of positivistic legal thinking, which ruled German jurists for many decades almost without challenge,” Radbruch wrote. “Legal illegality was therefore as self-contradictory as supralegal law. Praxis was repeatedly confronted by both problems.”⁶

The two “problems” Radbruch referred to were the “self-contradictory” maxim of positivism that “law is law” (the idea that the validity of a given law has nothing to do with substantive justice) and the natural law idea that an unjust law forfeits its legality. Both positions were problematic; yet, judges had to commit themselves perforce to one of the two theories. Radbruch found it meaningful that courts had already sided with natural law in their verdicts concerning the status of National Socialist law. One of the earliest cases was a 1946 verdict of the Wiesbaden district court in a civil matter. The case involved the heirs of Jews whose property had been confiscated according to Nazi laws during the war, before they were deported to Poland and killed there. The defendants had purchased the confiscated property at private auction. After the war, the heirs sued the defendants to return the property to them as the rightful owners. The defendants raised what in Anglo-American law is known as a “bona fide purchaser” defense, arguing they had innocently acquired the property at auction and thus were the rightful owners. In its verdict in favor of the plaintiff-heirs, the district court held that the Nazi laws declaring Jewish property subject to confiscation by the state “were in violation of the natural law, and were already null and void at the time of their decree.”⁷

Radbruch also described a verdict by a Russian occupation court in an eastern German criminal case involving “denunciation” to the Nazi authorities. In this “grudge informer” case, the defendant had notified the police that his neighbor had called Hitler a “mass murderer” responsible for starting the war. The denunciatee was subsequently arrested, convicted of “preparations for treason,” and executed. The Schwurgericht (lay assessors) convicted the denouncer of aiding and abetting murder despite his argument that he had acted in accordance with the law at the time, which required Germans to report cases of “high treason” to the local authorities. The court rejected this defense, evidently persuaded by the prosecutor’s argument that Nazi laws targeting unjust ends were nullified ab initio. Later in the same essay, Radbruch cited with approval the words of the state prosecutor of Saxony, affirming that no judge could justify his enforcement of a law that was “not only unjust, but criminal,” inasmuch as such laws contradicted the “inescapable, authoritative law, which denies validity to the criminal orders of an inhuman tyranny.” These and other examples, Radbruch concluded, proved that “the struggle against positivism” raged throughout the German court system. And the courts were well-advised to maintain the struggle, because, in Radbruch’s oft-quoted phrase, positivism had rendered German jurists “defenseless” against the “arbitrary and criminal content” of Nazi laws.⁸

What was the content of Radbruch’s natural law, the “supralegal law” that both measured and determined the validity of positive law? The vagueness of his natural law invited different interpretations. According to Manfred Walther, Radbruch’s natural law harked back to the Vernunftsrecht (law of reason) of the Enlightenment, rather than to Catholic (Neo-Thomistic) natural law. Walther bases his assessment on Radbruch’s statement from 1934: “Human rights, Rechtstaat, separation of powers, popular sovereignty, freedom and equality, the ideas of 1789, have again emerged from the flood of skepticism, in which they appeared to have drowned.” Walther’s identification of Radbruch’s natural law with the secular French Revolution, however, does not take account of the impact of the war on Radbruch’s thought, nor does it reckon with some of his postwar writings that evidence a more religiously oriented theory of natural law. In “The Renewal of Law” (1946), he referred to the “thousand year old common wisdom of antiquity, the Christian Middle Ages, and the period of the Enlightenment,” all of which asserted the existence of “a law of nature, a law of God, a law of reason.” Fritz Bauer, a former student of Radbruch and the motive force behind the postwar Remer and Auschwitz trials, traced Radbruch’s natural law to both humanistic and religious principles of human dignity in Western cultural history. The jurist and legal historian Eberhard Schmidt pointed out in a 1952 lecture that Radbruch never endowed his natural law with substantive content, nor spelled out how exactly the natural law was to be discerned. In the wake of Radbruch’s 1947 essay, attempts were made to flesh out the “Radbruch formula,” but even these efforts could not overcome the conceptual fuzziness that clouds all attempts to establish a universal and unchanging principle of right.⁹

However interpreted, Radbruch’s clarion call to revive natural law theory found an audience among German jurists in the years following its publication. Prior to the Nazi era, the Reichsgericht (forerunner to the postwar Supreme Court) subscribed to a positivistic theory of law, as typified in the famous dictum: “The lawmaker is independent and bound to no other limitations than those which he has himself drawn from the Constitution or other laws.” The effects of the war and Radbruch’s highly publicized critique of positivism wrought a thorough reorientation in the thinking of the Reichsgericht’s postwar successor, the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof in fact was the first legal forum to invoke Radbruch’s formula. In a 1946 civil case the court stated, in language taken almost verbatim from Radbruch’s “Legal Illegality” article: “If the principle of equality in the promulgation of positive law is violated, the law forfeits any quality of law and is generally not law.” Nor was such language unusual in the court’s opinions published after the war. Appeals to a “preexisting and accepted order of values and principles of duty governing human society,” “an inviolable and supralegal domain of human freedom and right derived from the ‘moral autonomy’ of the person,” and “an order of family life” that is “given by God” are scattered throughout the postwar jurisprudence of the high court.¹⁰

Radbruch’s influence was not confined to the highest judicial authorities in West Germany. Anti-positivistic statements also appeared in the decisions of district, state, and appellate courts. “The judge serves the law and has to apply it unless its application is forbidden by the general moral law,” held the appellate court (Obergerichtshof) of Cologne in 1949. The appellate court of Bamberg in 1950 adjured judges to nullify “laws contrary to natural law.” In a strange case, the district court of Wuppertal in 1946 rejected the legally minimal penalty meted out to a defendant, reasoning that “the laws may no longer be interpreted as something rigid and completely unchangeable by subordinating all feelings of justice,” because “the judge’s absolute consciousness of duty regarding justice and morality and the citizen to be judged by him [is] higher than the positive law.” Also in 1946, the district court of Wiesbaden held that laws “contradicting the natural law [are] at the time of their decree null and void.” According to the district court, such laws were those that violated principles “so intimately connected with the nature of the human being in its essence that their infringement would destroy the mental-moral nature of the human being.”¹¹

Before his death in 1949, Gustav Radbruch had occasion to comment on the verdicts of the state and appellate courts of Frankfurt in the Eichberg case (Mennecke, Schmidt, et al.). At trial, the defendants had defended their participation in euthanasia with appeal to the Hitler order of September 1, 1939, arguing that as a valid and formally binding law it had afforded a legal basis for their actions. They further claimed that even if the order was not valid law they had nonetheless believed at the time in its validity, and therefore were not criminally liable because of a mistake of law. In opposition to this view, the prosecutor had urged that the order was not a law because it lacked the formal elements of legal validity: it had neither been published nor countersigned by the proper ministerial authority. The state court rejected the defendants’ arguments, holding that whether the order was a law or not it was illegal. The court in other words refused to accept the prosecutor’s view that the Hitler order be denied legal validity on the basis of its formal inadequacies. Instead, the court declared that the state was not the ultimate source of law; it was bound by the “moral law.” Insofar as the Hitler order violated fundamental norms of justice, it forfeited any claim to legal validity, even if it was considered a law at the time of its decree. The manifest immorality of the Hitler order was so clear that it could not have been lost on the defendants. The Frankfurt appellate court upheld the state court’s determination, noting that the defendants must have been aware the euthanasia program violated “evident natural law principles.” In his commentary on the case, Radbruch applauded the courts’ endorsement of natural law. The verdicts demonstrated that “even tyranny has its limits, and may not just proclaim any arbitrary act a law.” He concluded with the prediction that the Eichberg verdict would be of “considerable importance for future euthanasia cases.”¹²

Radbruch’s words were indeed prophetic for many of the cases subsequent to the Eichberg trial. In the trials we examine in this and subsequent chapters, euthanasia defendants were usually charged with murder under section 211 of the German Penal Code. The true basis for the courts’ jurisdiction, however, was the defendants’ egregious violation of the “law of nature,” which was superior to all positive laws inconsistent with it. The verdict in the German Hadamar trial is representative. Although acknowledging the importance of positivism to “legal unity and security,” the state court of Frankfurt held that positivistic interpretations were curtailed wherever individual laws clashed with the eternal and unchanging law of nature. When a law violated the natural law, it lost all of its compulsory power and ceased to be valid law. The court identified one of the principles of natural law as the “sanctity of human life,” with which the state could interfere only as the result of a valid legal judgment (such as a death sentence) or in times of war. Because the Hitler order—whether or not it was a law—vitiated this principle of natural law, it was null and void at the moment the Führer reduced it to writing. Hence, the defendants’ actions pursuant to this so-called law were in reality “objectively illegal.” Furthermore, held the court, their actions were subjectively illegal: no matter how much they may have believed in the existence of a valid euthanasia law, “the wrongful nature of the so-called euthanasia program was apparent even to the simplest and most psychologically immature people”—apparent by virtue of the natural law. The reasoning of the Frankfurt court in the Hadamar case—denying the state ultimate authority as a source of valid law, nullifying the Hitler order for its unjust content, and upholding the defendants’ awareness of illegality with reference to the law of nature—is typical of many verdicts issued by German courts between 1946 and 1948.¹³

Natural law gave the German judiciary a normative basis on which it could condemn Nazi euthanasia, its top-level architects, and its field-level implementers without violating the principles of legality (ban on retroactive punishment). In trial after trial, euthanasia defendants portrayed the killing of the disabled as a program inspired by humanitarian concerns, with the aim of “releasing” incurably ill patients from their misery. In refuting this characterization and branding Nazi euthanasia as murder, German courts in the immediate postwar era insisted these killings were not motivated by compassion but by “reprehensible” and “crassly utilitarian” rationales that violated the most sacred principles of civilized peoples. By placing their talents and energies at the disposal of this criminal project, rank-and-file doctors and nurses had become parties to it. The unmistakable message was that the “small wheels” in the machinery of destruction were not the dupes of Hitler and his minions but culpable agents responsible for what they did.

Natural law theory also empowered postwar German courts to overcome a potentially exculpatory defense by euthanasia personnel—namely, that the outward trappings of legality surrounding the euthanasia program had led them to believe in its lawfulness. Under traditional German law, this “mistake of law,” if proven, would result in acquittal. By invoking a law of nature accessible to all rational people, German judges neutralized these mistake-of-law defenses: the unjustified killing of disabled patients was a patent violation of the sanctity of life, a core value of the natural law, of which the defendants had to have been aware in virtue of their very existence as rational beings.

Interpreting natural law so as to deny mistake-of-law defenses continued until the early 1950s when the “exertion of conscience” cases phased out natural law theory. Henceforth, German courts would not assume that the law of nature was accessible to all rational beings; instead, they would examine whether individual defendants had “exerted” their consciences sufficiently to understand the natural law. The self-evident quality of natural law was thereby de-emphasized in favor of a subjective, case-by-case exploration of a defendant’s capacity to comprehend the wrongfulness of euthanasia killing.¹⁴

With this context in mind, we can now turn to the German euthanasia trials themselves, beginning with those defendants who lacked the grace or good luck of a later trial. For in the early German trials, neither pleas of ignorance of wrongdoing nor subjective good intentions mattered. Euthanasia defendants stood before their accusers as perpetrators, and the flail of justice struck swiftly and without mercy.

THE PERILS OF BEING FIRST: THE WERNICKE AND WIECZOREK CASE

Less than a year after Germany’s surrender, Dr. Hilde Wernicke and Nurse Helene Wieczorek stood before the state court in Berlin charged with murder in violation of section 211 of the German criminal code. They were former members of the medical staff at the mental hospital Obrawalde near the Pomeranian town of Meseritz. The Berlin court’s findings of fact indicated that in 1943 Walter Grabowski, the new director of the Obrawalde mental hospital, informed Wernicke and Wieczorek of Hitler’s order to kill all incurably ill mental patients. He then initiated them into Obrawalde’s role in the killing program. At first, Wernicke withheld her agreement to participate, but eventually she overcame her scruples with the justification that incurable patients incapable of an adequate life should be eliminated. Wieczorek had fewer scruples, readily agreeing to participate. Grabowski swore both of them to secrecy under penalty of death. Thereafter, transports of patients arrived at Obrawalde along with lists of those designated for killing. Wernicke’s job was to examine these lists and confirm the diagnosis of incurable mental illness. She relayed the names of patients deemed truly incurable to nurse Amanda Ratajczak. Over the next year, she studied on average four to six patient histories per day, giving special attention to patients who suffered from both incurable mental illness and physical impairment. Patients capable of work were spared. From spring 1943 to 1944, Wernicke communicated the names of approximately 600 patients to nurses Ratajczak, E., and Wieczorek (who succeeded Ratajczak when she became ill in summer 1944) for killing. Like her co-nurses Ratajczak and E., Wieczorek injected lethal dosages of morphine and scopolamine into each patient. She performed this grisly work until September 1944. On January 29, 1945, Obrawalde’s role in the euthanasia program came to an end when the staff fled the institution to escape the advancing Red Army.¹⁵

The various judicial panels who heard the case within the state court of Berlin in March 1946 found the defendants guilty of murder as perpetrators. The German law of murder (codified in section 211 of the German Penal Code) is complex and highly nuanced. For this reason, readers steeped in Anglo-American legal culture may at first find German legal conceptions of murder perplexing. Prior to 1941, murder under German law was straightforward. The code’s definition of murder in 1912 emphasized premeditation as the essential element of the offense: “Whoever intentionally kills a person, if he carried out the killing with premeditation, is guilty of murder for that killing.”¹⁶ In 1941 the German Ministry of Justice overhauled section 211, redefining murder as a killing prompted by any one of several motives:

A murderer is any one who kills another person out of joy in killing [Mordlust], satisfaction of the sexual drive, covetousness or other base motives, maliciously or cruelly or by means endangering the community or for the purpose of making possible or concealing the commission of another crime.¹⁷

Writing about this revision of section 211 in September 1941, Roland Freisler, State Secretary in the Prussian Ministry of Justice and president of the Berlin People’s Court, hailed it as a “renewal” that better reflected the “natural feelings of the people.” For Freisler, the older version of section 211 failed adequately to address the interests of “substantive justice” because its emphasis on premeditation did not permit a “moral assessment” of the perpetrator. Freisler quoted with approval the annotations supporting the revision:

The complete destruction of a member of the community directly affects the community itself. Further, in morally evaluating assaults on the life of another, the state of mind that produces the crime is decisive. . . . Murder is distinguished from manslaughter by a particularly base state of mind, which has application to especially reprehensible motives or in related, especially base means [of acting].¹⁸

Henceforth, German legal analysis to determine who was a murderer “must regard [the defendant’s] entire personality.” Although the text of the revised section 211 was not infused with Nazi terminology or concepts, it was justified with resort to National Socialist principles—specifically, the will to give legal effect to the “natural feelings of the Volk.” The new version of section 211 survived postwar efforts to denazify German law and continues unchanged until the present day.¹⁹

At the trial of Wernicke and Wieczorek, the defendants were tried on the basis of the new version of section 211. Dismissing Wernicke’s argument that her actions had been inspired by the humane motive of delivering incurable patients from their suffering, the court found that both defendants had acted from base motives. Moreover, they had also acted “maliciously”; that is, they had exploited the guilelessness and defenselessness of their victims after winning over their trust—an act that “runs counter to every human feeling on the grossest level.” The defendants’ subordinate status in the grand scheme of euthanasia did not help them as it would defendants in later years. On the issue of perpetration versus complicity, the court invoked the subjective standard of the Bathtub Case, finding that each of the defendants had identified with the killing “as her own act.” Neither had declined or opposed Grabowski’s offer; rather, they had inwardly assented both to the project itself and to its reprehensible philosophy of destroying “valueless” life. The state court’s Schwurgericht held open the door to the legal permissibility of euthanasia but insisted that the defendants’ actions were not motivated by compassion.

Nor did the state court authorities find the defendants’ superior orders defense persuasive. On appeal from the Schwurgericht, the appellate court denied that Hitler’s 1939 order was a law, because it was never published in the Reich Legal Journal, as was required for all newly promulgated laws. Furthermore, the appellate court held, even if the Hitler order had been a valid order, the German Civil Servant Law obligated every official to refuse orders that violated criminal law. The defendants not only did not refuse the order, but “inwardly approved” of it. For this reason, they were guilty as perpetrators under the new version of section 211.²⁰ Because German law prior to 1949 required the death penalty in all murder cases (absent extenuating circumstances), Wernicke and Wieczorek were sentenced to death on March 25, 1946. When their punishment was carried out, they became the first—and last—euthanasia defendants tried in West German courts to suffer this fate.

VANITY, AMBITION, AND LOVE: THE EICHBERG CASE

Nine months after the Berlin state court handed down its verdicts in the Wernicke and Wieczorek case, the state court of Frankfurt presided over the trial of medical personnel from the Eichberg mental hospital. In 1940 the KdF had designated Eichberg a transit center and collection point in the government’s campaign against the mentally disabled. In this dual role, Eichberg received transports of mentally handicapped patients that were later dispatched to one of the six killing centers for “treatment.” It also became a venue for murdering both disabled adults and children.

The most notable defendant at the Eichberg trial in December 1946 was Dr. Friedrich Mennecke, an infamous figure in the annals of Nazi euthanasia. Mennecke’s swaggering wartime letters to his wife, interspersing banal comments on his meals with casual references to the annihilation of mental patients, reveal a man deeply involved in mass atrocity without a trace of self-accusation. In 1938 Mennecke became the director of the Eichberg mental hospital, which he briefly left when war broke out to assume duties as an army doctor on the Western front. In January 1940, the KdF released him from his military duties to participate in the nascent euthanasia program. Accordingly, he returned to Eichberg and resumed his directorship. In February 1940 he attended a meeting of psychiatrists at the Columbus House in Berlin, where Viktor Brack informed him and his colleagues of Hitler’s decision to set the euthanasia program in motion. Brack reassured the attending doctors that the program was legal, a point he drove home by circulating a copy of Hitler’s euthanasia order. Categories of patients exempt from the program were also discussed; these included patients injured in combat and elderly patients suffering from age-related dementia. To justify the operation, Brack marshaled the familiar economistic argument: mental patients unable to contribute to the people’s community, but who nonetheless absorbed scarce resources, had to be eliminated, particularly during a time of war when so many of the nation’s most valuable citizens sacrificed their lives on behalf of the fatherland.²¹

Like his colleagues in attendance, Mennecke readily agreed to participate in the program. After the February meeting with Brack, he returned to Eichberg and completed the registration forms on his patients, occasionally ordering his staff doctors to do the same without acquainting them with the reasons for it. In the ensuing months, Mennecke also became an itinerant registrar for the euthanasia program, visiting other institutions to complete forms on their resident patients. At various satellite mental hospitals that Mennecke visited during winter 1941, he was estimated to have filled out 200 forms; at his own institution of Eichberg, the number reached 1,000. In addition—and more ominously—he traveled in November and December 1941 to the concentration camps at Sachsenhausen, Ravensbrück, Buchenwald, Dachau, Gross-Rosen, Auschwitz, and Flossenbürg as a participant in the Nazis’ 14f13 program. At these camps, Mennecke was believed to have filled out forms on approximately 1,000 inmates. The state court of Frankfurt declared that “there can be no question that some of the inmates from the camp system whom Mennecke designated for killing were gassed in the euthanasia centers.” Among the concentration camp prisoners caught up in Mennecke’s registration drive were large numbers of Jewish men and women. In making his assessment, Mennecke had reviewed photos of the prisoners from the camp files. On the backs of the photos he had written epithets gleaned from the records, such as “race defiler” (Rassenschänder), “malicious agitator and German enemy” (Hetzer und Deutschenfeind), “rumored Communist,” “Jewish prostitute.” Although conclusive evidence was unavailable, the state court believed that at least some of these Jewish prisoners were later murdered in the euthanasia centers on the basis of Mennecke’s forms.²²

Dr. Friedrich Mennecke with his wife, Eva. The director of the Eichberg mental hospital and a T-4 medical expert, Mennecke’s prolific correspondence with his wife became an important source of evidence against him at his criminal trial before a Frankfurt state court in December 1946. Courtesy Bundesarchiv Koblenz

Mennecke’s service to Nazi euthanasia did not end with these activities. He also served as a Gutachter (medical expert), reviewing regular shipments of completed forms sent to him in packets from Berlin. In the lower left corner of each form, he wrote one of three characterizations: “Yes,” “No,” or “Questionable.” His determinations were not based on medical exams but solely on the forms’ contents. Wielding this divine power over the life and death of people he had never seen, Mennecke reviewed nearly 7,000 forms as a T-4 expert. Of this number, he designated around 2,500 for destruction. Furthermore, during his tenure as the director of Eichberg, 2,262 patients were transferred from the facility to the killing center at Hadamar, where almost all of them were gassed between January and August 1941. Mennecke gave the lists of transferees to his underlings, ordering them to prepare the affected patients for transport. At trial, the court heard eyewitness testimony that the transferees were not all severely ill mental patients; some were only mildly disabled patients capable of work. Not all of them, in other words, were the “burnt out ruins” (ausgebrannte Ruinen) that Mennecke claimed in his defense. Finally, the court was satisfied that Mennecke had participated in the murder of adult patients at Eichberg between summer 1941 and December 1942. His assertion that he knew nothing of the killings was refuted by his detailed letters to his wife.²³

Mennecke’s defense at his trial in December 1946 was that he had become involved in euthanasia only against his will and had done everything in his power to secure a reassignment to the front in 1942. Again, Mennecke’s letters proved his undoing. In the eyes of the state court, they revealed his passionate engagement with the euthanasia program, a program that gave Mennecke the opportunity to interact with the “superstars” of mass killing. In one letter, he boasted to his wife of the praise that Dr. Werner Heyde (an Obergutachter in section II of the KdF and head of the T-4 Medical Department) had showered on him for his work on behalf of the program. It gratified his ego to be associated with the “famous Berlin organization,” noting that he and his staff were fully cooperating with it. After his transfer to the field from Eichberg, he sought to maintain his active role as a Gutachter: in a 1944 letter to the Reich Committee (responsible for administering the children’s euthanasia program), he advertised his willingness to continue his lethal work, indicating that he would accept the directorship of a children’s ward in Plagwitz (lower Silesia) were it offered to him.²⁴

Given this incriminating documentation, the court had no doubt that Mennecke had contributed to the killings at Eichberg willingly and enthusiastically. The court noted that the children’s ward at Eichberg was established under Mennecke’s regime as director, and that he had conducted correspondence with the Reich Committee in Berlin, whose “treatment” authorizations he forwarded to the ward’s director, Dr. Walter Schmidt. Mennecke did not blanch at the implications of his orders: according to Schmidt’s testimony, and as Mennecke himself confessed, he told Schmidt to proceed with “treatment” so long as the authorization had been given by the Reich Committee—an order that extended equally to adult patients and to children. Applying the subjective standard of the Bathtub Case, the court found that Mennecke had inwardly identified with the killings, which he had “willed as his own,” and was accordingly guilty as a “co-perpetrator” of murder—this despite the absence of proof that he had directly performed the killings himself. In its discussion of Mennecke’s motives under section 211, the court observed that he was not an ideological killer; rather, Mennecke was driven by a “boundless ambition” and an “illimitable need for validation.” It “flattered his vanity” to interact as an equal with eminent professors and political figures, and he spared no effort to ingratiate himself with them. The 200 Reichsmarks he received every month in compensation for his work in the euthanasia program was an added inducement. In brief Mennecke was, in the estimate of the court, willing to sacrifice everything—“law, morals, professional ethics, honor and decency”—to attain his goal of professional advancement. Mennecke’s unprincipled careerism was the goad to his participation in mass killing. Such motives the court deemed “base and reprehensible,” thus satisfying the “base motive” element of murder under the new version of section 211.²⁵

Because of his work as an itinerant expert, Mennecke could not assume direction over the children’s ward installed at Eichberg in early 1941 for the purpose of killing disabled children. Instead, he assigned the directorship to his deputy, Dr. Walter Schmidt, who returned from the field to take up his duties in summer 1941. For his role in the Eichberg killings, Schmidt stood with Mennecke in the dock as a codefendant. The state court was convinced that Mennecke had briefed Schmidt on the euthanasia program and that it would have been impossible to conceal transfers of patients from Eichberg without his knowledge. Schmidt assumed control of the children’s ward as the institution’s chief doctor. He soon received a visit from Richard von Hegener, deputy director of the Reich Committee, and Professor Paul Nitsche, one of three chief medical experts and from December 1941 medical director of T-4. The Berliners informed Schmidt that mentally handicapped children in his ward were to be destroyed (the German word was behandelt, or “treated”). There was some evidence presented at trial that Schmidt unsuccessfully tried to extricate himself from his new commission when he learned of it—a fact that would weigh significantly in the court’s assessment of his role in the killing program.²⁶

From summer 1941 until the end of Eichberg as a euthanasia facility, children afflicted with severe physical and mental handicaps were transferred to its children’s ward. On arrival they were subjected to medical observation; their physical and mental conditions, as well as their “educability,” were noted on forms subsequently sent to the Reich Committee. Based on their review of these forms, committee employees ordered additional observation or issued an authorization to the Eichberg authorities to have the child “treated.” In at least thirty documented cases, Schmidt himself administered lethal dosages of morphine and luminal to the children designated for “treatment.” In another thirty to forty cases, he had one of his staff nurses, Heléne Schürg, dispose of handicapped children with lethal injections (or, in a few instances, with deadly doses of luminal tablets). It was significant to the state court that no evidence implicated Schmidt in self-initiated killing, as the indictment against him had alleged. All of his criminal actions, in other words, were carried out within the scope of orders from Berlin.²⁷

The state court did not dwell exclusively on the destructive aspects of Schmidt’s career at Eichberg but also cited in its verdict examples of his probity as a doctor. It noted that he had sought to cure his patients with the newest medical methods, including insulin shock therapy. Witnesses attested to his professionalism and dedication to his patients, many of whom experienced such an improvement in their condition as a result of Schmidt’s interventions that they could be released from the hospital. Anticipating later (and more successful) defenses, Schmidt claimed these successes were his way of opposing euthanasia: by rehabilitating patients who might otherwise have been euthanized, he hoped to demonstrate the extreme nature of the government’s killing program.²⁸

For the court, Schmidt’s actions on behalf of the euthanasia program were qualitatively different from Mennecke’s. Unlike Mennecke’s motives for participation, Schmidt’s were not self-referential. He was not impelled by base factors like vanity, ambition, and acquisitiveness, all of which figured prominently in Mennecke’s conduct. Instead, the court pointed to the possibility that Schmidt—perhaps because of his upbringing—suffered from a “falsely understood subaltern loyalty to obey,” which prevented him from refusing to collaborate with the euthanasia program. Ultimately, in the court’s estimate he was a different moral animal from Mennecke, one to whom “a certain professional ethos” had to be granted. The state court was clearly impressed with the evidence presented about Schmidt’s “extraordinary efforts” to effect a cure in his patients. For this reason, it held that Schmidt—despite his proven involvement in the murder of his patients—had not acted from base motives as these were defined under section 211. The court did find, however, that Schmidt had acted “maliciously” by “secretly, treacherously, and falsely” transferring patients to killing centers like Hadamar, after forbidding their relatives to visit them and withholding information from the families of their whereabouts. Schmidt, in concert with his nursing staff, fostered trust in the patients and their families that they would be given medical treatment, a trust that was soon abused by lethal injections and gas chambers. The malicious nature of Schmidt’s participation in the killing resulted in a finding of guilt as a co-perpetrator of murder under section 211.²⁹

Alongside Mennecke and Schmidt in the dock were members of the Eichberg nursing staff. The most conspicuous among them was Eichberg’s chief nurse, Heléne Schürg. She served as chief nurse at Eichberg from 1937 until her dismissal by U.S. authorities in July 1945. At trial, it was proven that she had killed between thirty and forty disabled children with lethal doses of morphine and luminal, given either intravenously or in tablets. Schürg did not dispute her role in the killings but raised a superior orders defense, arguing that she had acted under orders from higher governmental powers. She also argued—and I have yet to find an analogous defense in other euthanasia cases—that her amorous infatuation with Schmidt had transformed her into an almost robotic tool of the chief doctor. The state court rejected the superior orders defense, but found her lovelorn argument credible on the issue of whether she was a perpetrator or an accomplice. The court found “she had so divested herself of her own will that she placed all her fortitude at Schmidt’s disposal, seeking to translate his will into reality and doing precisely that.” Such prostration of her own will to act effectively nullified the “will to perpetration” necessary to qualify as a perpetrator. She was thus guilty as an accomplice to the murders perpetrated by Schmidt. (That is, she was guilty of aiding and abetting murder.)³⁰

Schürg was not the only nurse convicted of complicity in murder by the Frankfurt court. Her colleague Andreas Senft had been a nurse at Eichberg since 1906. As a station nurse in the men’s ward, he confessed to deliberately killing patients with injections of morphine and luminal. His defense that his forty years at Eichberg had conditioned him to obey doctors’ orders and to support them in all circumstances was rejected as an exculpatory ground by the court, which found him, like Schürg, guilty of aiding and abetting murder.³¹

Until the promulgation of the German Basic Law in 1949, all defendants convicted as perpetrators of murder in German courts were given a mandatory death sentence, unless extraordinary factors were present to commute the sentence to life imprisonment. In the Eichberg case, the court found no reason to spare Mennecke from capital punishment. (The sentence was never carried out; he committed suicide in his cell at the Butzbach prison near Frankfurt on January 28, 1947.) Schmidt, however, was another story. The gap between Schmidt’s subjective state of mind and his objective acts qualified him as an exceptional case in the reckoning of the court, warranting life imprisonment rather than the death penalty. A similar focus on subjectivity characterized the court’s assessments of Schürg and Senft. Schürg’s “strong relationship of dependence” on Schmidt was counted in her favor, as were her efforts to extricate herself from the program; she received a prison sentence of eight years. As for Senft, the court found that his long-standing habit of deference had rendered him “psychologically unprepared” to deal with his role in the euthanasia program. He received a four-year prison term.³²

The significance of the Eichberg case in the history of German euthanasia trials can be interpreted on two levels. First, it typifies the willingness of German courts in the immediate postwar years to convict euthanasia killers as perpetrators under the German law of murder. In this respect, Eichberg is of a piece with the Meseritz-Obrawalde and Hadamar trials, representing with them a vein of cases that did not gladly suffer intentional mass killing—or the defendants responsible for it. Second, the Eichberg case adumbrates some new tendencies and directions that later courts would pursue with far more alacrity than the Frankfurt court did. These new approaches are especially evident in the court’s treatment of Schmidt, Schürg, and Senft. Although it finally convicted Schmidt of murder, the court did so only after a searching examination of his subjective state of mind at the time he participated in the killings. Its analysis framed Schmidt’s acts within the context of his “one-sided and false education” about his duty to obey authority. The court did not take the next logical step and deny Schmidt’s ability as a moral agent to withhold his consent to and collaboration with an unjust exercise of the sovereign’s will, based on his defective socialization. Yet, the raw material for such a step is implicit in the court’s reasoning. In addition, the court’s receptiveness to Schmidt’s argument that he only participated in euthanasia in order to curb its effects (e.g., by curing patients through various shock therapies) is a precursor to later “collision of duties” defenses, in which euthanasia killers would contend, with increasing degrees of success, that they collaborated in the program only to sabotage it from within. Although the state court of Frankfurt did not accept this defense here as an exculpatory or justifying ground for Schmidt’s actions, the basis for such a conclusion is discernible in the court’s rationale.

The Frankfurt court took a similar approach in its assessment of the two nurses, Schürg and Senft. Their psychological temperament—Schürg’s lovelorn reliance on Schmidt, Senft’s forty-year habit of automatic deference to authority—could have, and probably would have, qualified them for acquittal in a later era based on the theory that they lacked the necessary awareness of illegality on which criminal liability hinges. In 1946 German courts were not yet ready to give their defendants’ psychological makeup such exonerative effect. The memory of Nazi atrocities was still vividly etched in the minds of most Germans. Further, the Cold War had not yet reached its full stride, as it would in the late 1940s. The need to punish the killers of the National Socialist state still outweighed the need for a rehabilitated German nation as a democratic-capitalist buffer between the West and the Soviet sphere of influence in eastern Europe. This geopolitical situation would change between 1946 and 1948. When the worm did eventually turn and the West began to perceive the Soviet Union as an immediate menace to international security, deserving of higher priority than the prosecution of Nazi war criminals, the effect was to douse the fire of German prosecution with cold water. One result would be the wholesale acquittal or sentence mitigation of euthanasia defendants.

The German Hadamar Trial. Second row, left to right: chief nurse Irmgard Huber, Dr. Adolf Wahlmann, Dr. Bodo Gorgass. Courtesy the Landeswohlfahrtsverband Hessen

HUMAN WEAKNESS AND THE INERTIA OF THE WILL: THE GERMAN HADAMAR CASE

Dr. Adolf Wahlmann, former chief doctor at the Hadamar mental hospital, may have had a sickening feeling of deja vu as he sat in the defendants’ gallery in March 1947. A photograph from the trial shows Wahlmann sitting rigidly, his mouth frozen in a dispirited frown, his brows anxiously knitted, his chin thrust forward in an attempt at tremulous self-mastery. Wahlmann had already been convicted of war crimes at the U.S. Hadamar trial in October 1945. His prior conviction, however, related only to Wahlmann’s role in the scheme to murder consumptive eastern workers during the war’s waning stages. Sentenced to life imprisonment, the seventy-two-year-old Wahlmann now stood accused of murdering German patients at Hadamar between 1942 and 1945. A finding of guilt could have meant the death penalty for him.

When the war broke out in September 1939, Wahlmann was living in retirement in Heidelberg. Because of the shortage of doctors in Germany, he was brought out of retirement and appointed chief doctor at the Weilmünster mental hospital in June 1940. In August 1942 State Councillor Fritz Bernotat, who presided over the system of mental institutions and nursing homes in Hessen-Nassau, appointed him chief doctor at Hadamar. By this time, Hadamar had long since been transformed into an extermination center for the mentally ill, replacing the Grafeneck institution when it was closed in December 1940. Even before Wahlmann’s arrival, at Hadamar 10,000 mentally disabled patients had been killed through gassing as part of the first phase of the Nazis’ euthanasia program. A lull in the killing ensued from August 1941 until Wahlmann became chief doctor in August 1942. In late August or early September 1942, the first transport of phase two arrived in Hadamar, consisting of patients designated for killing from the cloister facility Hofen. Wahlmann had been briefed in advance on the killing program and Hadamar’s role within it. He devised a system of morning conferences with his nurses, in the course of which they reported to him the names of patients deemed fit for euthanasia.

Wahlmann and his nurses examined the patient’s records and illness history, then discussed whether killing was indicated based on their review. The final decision resided with Wahlmann. If he gave the green light, two nurses wrote the name of the patient on a sheet of paper, noting the amount of narcotics Wahlmann had specified to effect the patient’s death (e.g., the number of tablets of luminal, trional, or similar drugs). The paper was given to the station nurses, who used it as an authorization for killing the patients so chosen. During the night, these patients were given substantial overdoses, usually in the form of narcotics tablets. If the tablets did not result in death, an injection of morphine was administered the following morning, which invariably ended the patient’s life. Afterward, Wahlmann made a brief inspection of the corpse and fabricated false causes and times of death for the patient’s death certificate. The Frankfurt state court estimated that at least 900 mentally ill patients had been killed in this fashion.³³

At trial, the Frankfurt court found that Wahlmann’s actions fulfilled section 211’s definition of murder, insofar as he had acted “maliciously” by abusing the trust that existed between patient and doctor. His patients and their relatives looked to him to do everything in his power to either cure their illness or mitigate its effect. Instead, he exploited their trust by distributing overdoses of medication designed to cause their deaths. To this injury was added the insult of fraudulent causes of death, aimed at deceiving the victims’ next of kin about the actual fate of the patients. Although the court found Wahlmann guilty of murder as a perpetrator under section 211, it denied that he had acted from “base motives.” On the issue of what precisely motivated Wahlmann to collaborate in the mass killings, the court cryptically attributed his involvement to “human weaknesses and inadequacy, and a certain inertia of the will.”³⁴

In the black-and-white photograph of the Hadamar trial, an unassuming, bespectacled man sits to the right of Wahlmann. He is tensely expectant, uncannily resembling in his dark suit and tie with his recessive chin and graying temples a mild-mannered accountant. This is Dr. Hans-Bodo Gorgass, convicted by the Frankfurt court of the murder of 2,000 patients during his five months as a T-4 doctor at Hadamar. Like many of his T-4 colleagues, Gorgass served on the front as a military doctor until given the “uk” (unabkömmlinge, or “indispensable”) designation by Hitler’s chancellery. Released from his military duties in 1941, he was ordered to report to Berlin, where he was received in the KdF by Viktor Brack. Brack told him that a law existed, according to which incurable mentally ill patients were to be granted a “mercy death” by specially appointed physicians. Although the law could not be published because of unspecified reasons of secrecy, Brack assured Gorgass that his work as a T-4 euthanasia doctor was perfectly legal. Brack then announced he would receive a crash course in killing at the Hartheim mental hospital near Linz. Without expressing concerns about the commission given him, Gorgass immediately departed for Hartheim.³⁵

On arrival Gorgass met with the institution’s director, Dr. Rudolf Lonauer. Lonauer briefed Gorgass on the circle of those involved in the euthanasia program, disclosing that the mentally handicapped were disposed of in gas chambers located in six separate facilities within the Reich. At his trial, Gorgass told the Frankfurt court that these revelations deeply shocked him. He claimed, however, that Lonauer assured him only severely ill patients refractory to therapy would be affected. This assurance, along with Lonauer’s mention of the names of well-known physicians involved in the operation, pacified Gorgass’s conscience. Over the next several weeks, Gorgass served an apprenticeship in killing at Hartheim under the tutelage of Lonauer. After his stint at Hartheim, Gorgass graduated to the killing center of Sonnenstein near Pirna, where he observed the asphyxiation of patients with carbon monoxide gas. From Sonnenstein he arrived at Hadamar in mid-June 1941 to begin his service. There he was introduced to his work by Alfons Klein’s predecessor as director of the institution, Dr. Friedrich Berner. Gorgass claimed at trial that Berner told him he had a copy of the euthanasia law in his possession but for security reasons was not able to show it to Gorgass. Berner then placed Gorgass under oath and swore him to secrecy about the euthanasia program with a handshake.³⁶

The killing process at Hadamar unfolded as follows: patients arriving at Hadamar in transports were measured, weighed, photographed, and disrobed before being led into an “examination room,” where Gorgass inspected their patient histories and photocopies of their registration forms, upon which the Gutachter had inscribed his initials. The purpose of this final examination was to ensure that the patients’ symptoms were fully noted on the photocopies and to guarantee that no war-wounded patients or foreigners had been inadvertently included. Afterward, hospital personnel brought them into the gas chamber—a room thirty cubic meters in area, disguised as a shower room. Once the entire transport (consisting of between sixty and one hundred patients) was locked in this room, Gorgass went into a passage behind the gas chamber, where he turned on a valve that poured carbon monoxide gas into the chamber. As he did so, he observed the effect of the gas through a peephole. After ten minutes Gorgass turned off the gas valve. Another one to two hours passed before the chamber was ventilated and the corpses removed for cremation. Gorgass’s role in the killing process ended at this point, only to resume with each new transport, which arrived on average twice per week. With two exceptions—one involving a war veteran, the other a pregnant woman (subsequently killed with a lethal injection by the chief nurse)—Gorgass effected the deaths of all patients brought to him in the examination room. His role continued from June 1941 until the end of the first phase of euthanasia in August 1941.³⁷

Like many of his colleagues in the euthanasia program, Gorgass claimed the patients he gassed were in advanced stages of mental illness and physical decrepitude. The Frankfurt court found this assertion questionable, because, in its words, “a not inconsiderable number of those killed [at Hadamar] were neither physically nor mentally ill. There were many who were still capable of light work, who could carry on a limited conversation, who experienced emotional impressions (like joy, or emotions tied to good or ill treatment), and who could even correspond with their relatives.” One witness, a Dr. N., testified that many of those killed could have been treated with therapeutic measures that might have improved their condition. Eyewitness testimony heard at trial cited specific examples. Another witness, a medical doctor, described one of the victims as a small girl “who could not work at all, but was harmless, always happy, and greeted him every morning like a father.” His efforts to gain her exemption from transport failed, and she was sent to Hadamar for gassing. Another victim, a farmhand from Fulda, was not only capable of work but cognitively aware enough to recognize a former acquaintance of his in the Hadamar disrobing room. In its verdict the court listed several other examples, including a Jewish assessor committed to Eichberg in accordance with section 42b for distributing communist leaflets. The man was later transferred to Hadamar to be killed.³⁸

Dr. Hans-Bodo Gorgass, convicted by a German court in March 1947 for murdering 2,000 patients at Hadamar in summer 1941. Before his arrival at Hadamar, Gorgass was trained in techniques of mass murder at the killing centers of Hartheim (Linz) and Sonnenstein (near Pirna). Gorgass operated the valves in the Hadamar gas chamber that dispatched German patients with carbon monoxide gas. Like Adolf Wahlmann, Gorgass was convicted of murder under German law and sentenced to death. Both men’s death sentences were commuted with the formal repeal of capital punishment in West Germany in 1949. Courtesy HHStAW Abt. 3008, Hans-Bodo Gorgass

In assessing the nature of Gorgass’s actions in furtherance of the euthanasia program, the Frankfurt state court applied the criteria of section 211, beginning with “base motives.” According to the court, no such motives were perceptible in Gorgass’s conduct. “It has not been proven,” held the court, “that greed, the need for validation, striving after material advantage, or other despicable motives have caused Gorgass to collaborate in the implementation of the program.” Rather, the court believed Gorgass may have been dazzled by the eminent figures within the KdF who had approached him, “a small doctor,” with “a secret Reich matter.” Being awed into cooperating with a plot to commit mass murder did not “bear the stamp of moral reprehensibility”; it was instead the result of “a certain human weakness.” Despite this finding, the court found Gorgass guilty of murder under section 211 because his actions were “malicious”; that is, he had acted “secretly, viciously, and fraudulently.” Like his codefendant Wahlmann, Gorgass lulled transportees into a false sense of security by winning their trust, then coarsely abused this trust by killing them in gas chambers camouflaged as showering facilities. Gorgass was convicted with Wahlmann of murder (“malicious” killing) under section 211.³⁹

Only Gorgass and Wahlmann were convicted as perpetrators of murder in the Hadamar case. Although neither was deemed to have acted out of base motives, the court denied extenuating grounds in sentencing the two doctors. Gorgass argued for mitigation under paragraph 3 of section 211, an argument rejected by the court based on his “extremely unethical conduct during the euthanasia operation.” According to the court, had Gorgass “carried within himself high ethical values and a strong professional ethos,” it would have been obvious to him that the mass killing at Hadamar was illegitimate “from a medical as well as a human-ethical standpoint.” Presumably, only some form of disengagement from the program would have sufficed as “ethical” conduct. Likewise, the court based its rejection of Wahlmann’s claims of extenuation on the “especially high measure of irresponsibility” and “strong renunciation of the medical professional ethos” his actions displayed. Absent mitigating factors, both men were sentenced to death.⁴⁰

Besides Gorgass and Wahlmann, other members of the Hadamar administration faced judgment at the hands of the Frankfurt court. The nursing staff (including the luckless Irmgard Huber, convicted of war crimes in the U.S. Hadamar Trial) and the technical and office staff were all indicted. The logic of the Bathtub Case guided the court in categorizing the nurses as accomplices rather than perpetrators:

They were all inwardly too dependent and possessed of a powerful inertia of the will in order to grasp situations of such gravity in a sufficient manner. Above all, however, they saw their medical role models, whom they were accustomed to respect and esteem, [acting] weakly and without will, and found in them neither support nor a role model.⁴¹

Moreover, the Frankfurt court considered the nurses’ ability to conform their actions to the law compromised by subjective factors, such as a “primitive nature” and (in one case) “pregnancy” that “restricted her power to resist.” A habit of punctilious churchgoing also weighed in their favor. On this rationale, the nurses were convicted of aiding and abetting murder and given jail terms between three and eight years. The office staff, among them secretaries who had logged both the arrival of patients and property (including gold teeth) confiscated from them, were all acquitted on the ground that their criminal intent could not be sufficiently proven.⁴²

On appeal from the state court, the appellate court of Frankfurt criticized the lower court’s determination that the nurses were all accomplices rather than perpetrators. The appellate court held that the lower court had exaggerated the subjective theory of perpetration. This theory could only be applied in cases where the defendants “did not themselves commit the killing, but have collaborated in some way in the killings that were committed.” In such cases, stated the court, “the question must be answered whether they were perpetrators or participants, . . . i.e., [whether they] identified themselves inwardly with [the killing] and approved of it.” Where a defendant has fulfilled all the elements of the offense himself, however, that defendant is a perpetrator. “Whoever kills another person with his own hands, whoever administers the deadly shot, or mixes poison in another’s food, is a murderer, even if he does it in the interests of another, i.e. ‘for’ him.” However, because the defendants, and not the government, had lodged the appeal, the case could not as a matter of law be remanded to the lower court. The latter’s characterization of the nurses as accomplices remained unchanged.⁴³

The Hadamar case bears comparison with the Eichberg trial: in both, T-4 doctors were convicted as perpetrators of murder under section 211’s definition of “malicious” killing; in both, nurses were characterized under the subjective theory as accomplices to murder, rather than as perpetrators. Although jurists in the two trials were willing to convict physicians of murder as perpetrators, we can discern in both a tendency to regard the motives of the doctor defendants as something other than “base”: Schmidt was actuated by a “falsely understood subaltern loyalty to obey,” Wahlmann by “human weaknesses and inadequacy, and a certain inertia of the will,” Gorgass by “a certain human weakness” that awed him into collaborating with mass murder. Only Mennecke, in his overweening self-importance, was declared to have acted “basely.” Both cases are notable, too, for their refusal to convict as perpetrators nurses who with their own hands had murdered thousands of disabled patients. By the end of the Hadamar trial in mid-1947, we are moving steadily toward an era in the prosecution of Nazi euthanasia in which the rationale governing the portrayal of nursing staff as accomplices will be extended to T-4 doctors.

THE BENEFITS OF A “WEAK AND UNSTABLE PERSONALITY”: THE KALMENHOF CASE

In the history of National Socialist euthanasia prosecution, the trial of T-4 doctors Mathilde Weber and Hermann Wesse wears a Janus face. One face stares backward toward the earlier prosecutions of the Meseritz-Obrawalde and Eichberg medical staffs. The other looks toward new vistas in the evolution of German euthanasia trials. Although the first trial of the Kalmenhof doctors would end in early 1947 with the convictions of both Weber and Wesse as murderers, two years would pass before the Frankfurt court, on remand from the appellate court, would change its mind and find a T-4 doctor guilty not as a perpetrator, but as an accomplice.

The Kalmenhof mental hospital was founded in the mid-1920s as one of several charitable public institutions, “born,” in the ironic words of the Frankfurt state court, “in the spirit of humanity and a practicing love of one’s neighbor.” The association to which Kalmenhof belonged undertook to nurture “feebleminded” (schwachsinnig) but educable children by means of instruction and work therapy, with the goal of making of them “useful people.” When Hitler came to power in 1933, the Nazis wasted no time in subverting these constructive aspirations. They replaced Kalmenhof’s director and appointed Nazi zealot Fritz Bernotat chairman of the association. This was a dire omen for Kalmenhof’s patients; in 1936, at a conference of directors of mental hospitals in the castle of Dehrn, Bernotat was reported to have told the assembled directors, “If I were a doctor, I would kill these patients.”⁴⁴

When the killing program began, Kalmenhof was transformed into both a transit center, to which patients from other institutions were sent en route to Hadamar, and a miniature killing center in its own right, where individual murders were committed through lethal doses of narcotics. At the time Kalmenhof assumed these roles in 1940, Dr. Mathilde Weber was its managing physician. In January 1941, the Reich Cooperative for State Hospitals and Nursing Homes (a front organization for Hitler’s chancellery) sent to Kalmenhof lists of patients to be prepared for transport on a predetermined day by the busses of Gekrat. These selections had been made by T-4 experts based on registration forms completed and returned to Berlin by the Kalmenhof staff in 1940. Of the 600 to 700 patients at Kalmenhof, 232 were transferred to Hadamar, where they were gassed between January 17 and April 29, 1941. Patients were also transferred to Kalmenhof from other institutions for a short time before transport to Hadamar. In 1942 a children’s ward for the destruction of mentally disabled children was installed in Kalmenhof. Weber served as its managing doctor until May 10, 1944, when she was replaced by Hermann Wesse.⁴⁵

During her tenure as managing doctor of the ward, transports of children arrived at Kalmenhof from Hamburg, Bonn, and the Ruhr. They were accommodated on the building’s third floor, which was reserved for the “Reich Committee children.” By this time, a portion of the hospital had been commandeered by the German army, causing acute shortages in hospital space. In the children’s ward, conditions were such that several children were assigned to a single bed. After a brief stay in Kalmenhof, nearly all of the transferee children died. The killings were done by a floor nurse, Maria Müller, by means of luminal tablets mixed in deadly doses in the children’s food. At trial, Weber claimed she never personally administered lethal injections or overdoses of medication to these children. She further argued she had no clear knowledge that killings were taking place, because she neither lived in the hospital nor lingered there beyond the morning hours. With respect to Müller’s actions, Weber disclaimed knowledge of her work. When her suspicion grew that Müller might have a hand in the patients’ deaths, she alleged that she warned the nurse repeatedly.⁴⁶

The state court did not find her defense cogent. Her assertions notwithstanding, the court was convinced that Weber not only suspected Müller of killing mentally disabled children in the ward, but had actual knowledge of these killings. Further, the court believed Weber had condoned the killings and even promoted them by listing spurious causes of death on the death certificates. Weber herself admitted that “in the course of time” she understood that the children were to be destroyed under authorization by the Reich Committee in Berlin. With each newly arrived transport of children, Weber received a list with the children’s names and a “treatment authorization”—a Nazi euphemism signifying that the children were to be killed. At trial, she testified that she had placed the list with the authorization in an open drawer in the desk in her office but did not forward it to Müller. The court established that hospital personnel had a passkey to Weber’s office, with which they could have easily obtained access to it; thus, even if no direct evidence showed that Weber had given the list to Müller, the nurse could have inspected it with little trouble.⁴⁷

Nor was the Frankfurt court impressed with Weber’s defense that she, unlike her successor, Hermann Wesse, was not a “Reich Committee doctor.” The court conceded this point but countered that Bernotat had instructed her to deal with the children in the ward as follows: “You don’t have to do much, since there isn’t any more treatment involved; it would be best if they disappear quickly.” Weber admitted she understood at the time that “disappear” meant “be killed.” Her claims of noninvolvement were further rebutted by mortality rates at Kalmenhof during her presence there as director of the ward. According to records in the Idstein registry office, prior to the installation of the children’s ward at Kalmenhof, on average one to two children died per month; afterward, the death rate shot up to fifty-five per month. During one six-week period, seventy children—most of them patients transported to Kalmenhof from Hamburg on August 8, 1943—perished in the ward. On individual days in September 1943, as many as six children died there. The court was clearly impressed by the decline in mortality in the ward from September 26, 1943, to November 7, 1943, a period during which Weber and Müller took leaves of absence for health reasons. Weber was temporarily replaced by Dr. H., during whose brief tenure as director of the ward not a single child died. When Weber and Müller resumed their work in the ward on November 7, the mortality rate soared: from November 8 to November 11, the deaths of six children were recorded. For the Frankfurt court, this fact proved that most of the deaths in the ward were not due to natural causes but to poisonous doses of medication. It further showed a dramatic linkage between the children’s deaths and the presence of Weber and Müller.⁴⁸

The data on mortality were critical in refuting Weber’s claim that the deaths of children in the ward were attributable to natural causes. The court rejected this defense, along with her representation that the children transported to Kalmenhof were in such a deplorable condition of health, aggravated by the strains of transportation and inadequate nutrition, that they died shortly after arrival. Three witnesses at trial testified to the children’s stable condition: they described many of the children as conveying “no impression of idiocy” and, in some cases, playing like normal children. One witness stated that some of the children “were all able to run,” and for this reason she had the “impression” they were not “terminal cases.”⁴⁹

Also weighing against Weber’s assertions of innocence were her documented contacts with Professor Carl Schneider, a T-4 expert and chaired professor at the University of Heidelberg, where he was involved in research on brains plundered from euthanized patients. During summer 1942, Weber participated in a four-week course with Schneider, presumably on the subject of euthanasia. Weber portrayed the trip as purely recreational in nature—a portrayal the court discounted. In view of the shortage of doctors in 1942, the court speculated that Weber was sent to Heidelberg for initiation into the mechanics and goals of the euthanasia program. Her link with a leading figure in Nazi euthanasia, as well as her documented receipt of bonuses from the Reich Committee in compensation for her unspecified collaboration with its “purposes,” put paid to her defense of innocent entanglement in the program.⁵⁰

Weber’s final line of defense foreshadowed the representations of other euthanasia doctors prosecuted in the years after her conviction. This was the “sabotage” argument, which she related to the court as a choice among three alternatives:

(1) either to collaborate in the [euthanasia] project; (2) to seek a reason to extricate myself from the institution, where I also had my illness to consider; (3) to place myself in a position in which my life would be secure and the greatest good of the children could be at the same time preserved.⁵¹

Weber strove to convince the court that she had chosen the third alternative as a means of sabotaging the euthanasia program where she could. The court did not accept her story. Instead, it found that Weber had opted for the first alternative of collaborating in the operation despite her revulsion against it. The Frankfurt court agreed that she tried to disengage herself from the activities in the children’s ward; however, time and again she allowed herself to be mollified by Bernotat’s reassurances, so that she was never able to divorce herself from the program. The court held she could have accomplished this separation with little prejudice or difficulty to herself. In response to Weber’s claim that she did in fact eventually sever her connection with the children’s ward, the court replied that she did not leave Kalmenhof for ethical or legal reasons but, as she had written in a letter from 1944 to the authorities in Wiesbaden, because of her failing health.⁵²

The two primary charges against Weber related to the transfer of adult patients from Kalmenhof to Hadamar and the destruction of disabled children in the Kalmenhof children’s ward. The court acquitted Weber of the first charge on the ground that no evidence existed to prove she was aware of the purpose behind the registration forms when they were first circulated to the medical staff at Kalmenhof in 1940. Further, when she did finally learn of their function, it was unproven that any killings were carried out on the basis of the forms she had knowingly completed. With respect to the second charge (killings in the children’s ward), Weber fared considerably worse. Although it was never proved Weber murdered anyone with her own hands, the court insisted on the importance of her contribution to the murders. Without a physician to falsify causes of death, the program could never have been kept secret. Nurse Maria Müller, the syringe-wielding killer in the ward, relied on Weber to conceal her murderous actions with misleading death certificates. Although Weber’s contribution to the crime occurred after the killings were performed—lending an appearance of accessory after the fact to her role in the program—the court held that this contribution was “causal” to the occurrence of the murders. Without it, the success of the program could not have been ensured.⁵³

Determining that Weber was co-responsible for the murders committed in the children’s ward, the court had no difficulty in finding that she was a perpetrator, not an accomplice. In one of the last euthanasia cases to apply the principle of the Bathtub Case to the detriment of a defendant, the court held that Weber had embraced the killing operation as her own. In support of this finding, it pointed to an occasion in which Weber had accused two of her nurses of violating their oath of silence, threatening to denounce them to higher governmental authorities. She did this gratuitously, without external compulsion, in a manner of acting that proved “how very much she had made the ‘operation’ her own.”⁵⁴

For Mathilde Weber’s successor, Dr. Hermann Wesse, Kalmenhof was one in a string of assignments that involved him in the mass killing projects of the Third Reich. By the time of his arrival in Kalmenhof, Wesse was an experienced hand in the medical destruction of human life. In 1942 he had worked briefly in the children’s ward at Brandenburg-Görden under a leading architect of the euthanasia program and a T-4 expert, Dr. Hans Heinze, before reassignment to a clinic for juvenile psychiatry in Bonn. Here he was instructed in the techniques of euthanizing disabled children in accordance with the standards of the KdF. In October 1942 Wesse was an assistant doctor in the children’s ward at the Waldniel mental hospital until its closure in mid-1943. From there he did a three-month stint at the children’s clinic of the University of Leipzig under another T-4 potentate, Dr. Werner Catel. At Leipzig, Wesse acquired his doctor’s diploma in “congenital and acquired feeble-mindedness.” Thereafter he worked in the Uchtspringe mental hospital’s children’s ward. His time at Uchtspringe was cut short when in December 1943 he was drafted into the army. In April 1944, Berlin declared him “indispensable” and sent him to Kalmenhof as Mathilde Weber’s replacement.

Prior to his assignment at Kalmenhof, Wesse reported to Berlin for orientation from Richard von Hegener of the KdF. Von Hegener informed him that as director of the Kalmenhof children’s ward, he was to submit to the Reich Committee reports about the patients containing their medical history and “physical, neurological, psychiatric, intellectual, and characterological” assessments. Three medical experts in Hitler’s chancellery would examine the reports and prepare expert assessments independently of each other. If all three agreed that the patient should be “put to sleep,” Wesse would receive a killing order. Afterward, he was obliged to contact the Reich Committee about the outcome. At trial, Wesse claimed von Hegener had threatened him for non-compliance with these orders, allegedly warning him, “If you refuse, you will face dire consequences,” then smiling and adding, “You don’t think about spending your life in a concentration camp.” After meeting with Fritz Bernotat and the acting director of Kalmenhof, his codefendant G., Wesse began his death-dealing work in the children’s ward in May 1944.⁵⁵

At trial, Wesse portrayed himself as a mere cog in an infernal machine. “I was there as a simple soldier,” he told the court. “I could only say ‘yes’ and ‘yes indeed,’ and was accustomed to obeying orders.” The evidentiary record contradicted Wesse’s claim that he was just an obedient footman in the grand scheme of mass killing. Shortly after his arrival in Kalmenhof, Wesse wrote a letter to von Hegener, in which he virtually requested that potential euthanasia victims be sent to him. Wesse’s request that he be sent disabled children for killing is enormously incriminating, inasmuch as it originated entirely from him. No pressure was applied, no compulsion exerted, no order issued to make such a request—it emanated solely from Wesse. His act was a gratuitous exceeding of what was required of him, much like Weber’s castigation of her staff nurses for breaching the oath of secrecy.⁵⁶

While serving as director of the Kalmenhof children’s ward, Wesse prepared reports on the children based on their patient histories, medical exams, and intelligence tests. He forwarded between 100 and 150 such reports to the Reich Committee. When he had received a killing authorization from Berlin, he gave it to Nurse Müller for execution, who killed the patients by mixing luminal into their evening meals. The court found that Wesse furnished twenty-five such authorizations to Müller, affecting a wide range of children in the ward: “feebleminded” school-age and adolescent children, as well as “characterologically deviant” children (i.e., juvenile delinquents). In two cases Wesse himself administered lethal overdoses of morphine that caused the patients’ deaths. The patients involved, Margarete Schmidt and Ruth Pappenheimer, were no more “hopeless” cases than some of Weber’s patients. Margarete Schmidt was a twenty-three-year-old epileptic who worked as a servant girl in the hospital. The court described her as having a “good capacity for work:” she attended to much of the housework in the Kalmenhof facility, which, with some supervision, she could accomplish without difficulty. In January 1945 Wesse, who had earlier sent a report to Berlin on Schmidt detailing her physical and mental condition, received a killing authorization for her. For this reason, Wesse elected to kill Schmidt himself with an injection of luminal, a drug he chose because as an epileptic Schmidt was accustomed to taking luminal tablets. The injection did not effect her death, causing Müller to administer an additional injection, this time of morphine, from which Schmidt expired a short time later. The death records in the Idstein Registry Office listed her cause of death as “epilepsy, increasing dementia, status epilepticus, brain swelling.” Why Wesse and Müller murdered Schmidt was a matter for speculation by the court. It conjectured that Schmidt’s work as a housemaid likely exposed her to the crimes perpetrated there by Wesse and Müller. Wesse may have consciously slanted the report to her prejudice in an effort to authorize her killing and thereby “dispose of a burdensome witness” (eine lastige Mitwisserin).⁵⁷

If the circumstances surrounding Schmidt’s death were suspicious, those attending Ruth Pappenheimer’s demise were sinister. Pappenheimer was an eighteen-year-old half-Jewish girl, described by the court as “mentally normal” but characterized by Wesse as “asocial.” She was committed to Kalmenhof in fall 1944 after an adolescence of minor juvenile delinquency, including various sexual peccadilloes (among them, sexual relations with a variety of soldiers) and the theft of some bottles of wine and a wool scarf from her employer. For reasons not clarified in the court’s opinion, State Councillor Bernotat in Wiesbaden took an especially malefic interest in doing away with her. According to Wesse, Bernotat had demanded that he prepare a report about Pappenheimer for the Berlin authorities. After the report was completed and sent to the Reich Committee offices, Bernotat supposedly badgered Wesse with questions about whether the killing authorization had been given, complaining that Berlin worked too slowly. Eventually the authorization arrived, and Wesse administered a lethal injection of morphine to Pappenheimer, a mentally and physically healthy young girl. The Frankfurt court was convinced that she was murdered only because she was Jewish.

The court’s deliberation on whether Wesse was a perpetrator or an accomplice was brief and succinct. In twenty-five proven cases, he had collaborated in the murder of Kalmenhof patients; in at least two of them, he himself had caused the patients’ deaths. Applying the standard of the Bathtub Case, the court found that Wesse “desired the killings as his own.” For this reason, he was a co-perpetrator in the children’s ward murders.⁵⁸

What, according to the court, were Weber’s and Wesse’s motives for action? Neither was impelled by ideology, it held. Rather, they murdered for career-related reasons: Weber wanted to “preserve her cushy independent job,” Wesse his “indispensability” status that exempted him from frontline military service. The court regarded both of these motives as “base” under section 211. As far as sentencing was concerned, the court weighed extenuating against aggravating factors for both Wesse and Weber and found no compelling reason to grant them a mitigated punishment. On January 30, 1947, they were sentenced to death.⁵⁹

This pronouncement, however, did not end Mathilde Weber’s judicial odyssey. Nearly fifteen months after her conviction by the Frankfurt state court, the appellate court of Frankfurt reversed the lower court’s finding that Weber was guilty as a perpetrator. According to the appellate court, the lower court did not sufficiently clarify “why an action occurring after the completion of the crime [i.e., falsifying death certificates] can be considered co-perpetration,” instead of aiding and abetting. The appellate court did not exclude the possibility that Weber was indeed a perpetrator. If, for example, her “guarantee of help” encouraged Müller’s “will to perpetration,” then such action would constitute perpetration, even though it was done after the crime was performed. This showing the lower court never made, according to the appellate court. For this reason, the case was remanded for reconsideration by the Frankfurt state court.⁶⁰

When the case arrived in the lower court for retrial, Weber received a much more charitable reception than she had on her first go-around. By the time the court delivered its new verdict in February 1949, much had changed in the history of German euthanasia trials. Weber’s prosecutions, in fact, are divided between two separate eras: the period of retribution (the first trial) and the era of growing leniency toward National Socialist euthanasia operatives (the case on remand). Between her first trial in early 1947 and the retrial in February 1949, the geopolitical landscape had changed considerably in Europe. The Truman Doctrine had been announced in February 1947, declaring U.S. intentions to “contain” Soviet communism wherever it appeared. The Truman Doctrine made clear U.S. commitment to maintaining a strong military presence in regions perceived to be threatened by Soviet invasion. For West Germany, this meant unabated U.S. troop strength on German soil as a counterweight to the Russian army. Irresistibly, as the decade of the 1940s wound down, the realization that Germany would be divided into two separate countries stole over the German people. The Council of Foreign Ministers, established at the Potsdam Conference in July 1945 to develop a uniform policy for Germany, repeatedly failed to produce a consensus on the German question. Between April 1946 and December 1947, the council met five times with nothing to show for its efforts except mutual denunciation and idle speechmaking. On June 23, 1948, the futile work of the council was interrupted when the Soviets instituted a blockade of West Berlin in response to West Germany’s currency reform. The blockade isolated 2.5 million Germans living in West Berlin from the western allies and cut off the flow of food and electricity into the western half of the city. When the Russians lifted the blockade after 324 days, the Council of Foreign Ministers reconvened in Paris on May 23, 1949, the same day as the new Basic Law of the Federal Republic went into effect. By this point, however, the prospect that German division would become permanent had congealed into a certainty: Germany was now split between a West and an East Germany with a partitioned Berlin situated in the middle. The waning years of the 1940s marked the beginning of the Cold War, the incunabula of the bipolar world that would dominate and envenom international politics for the next half-century. The Cold War was in full force when Mathilde Weber’s second trial began in March 1949.⁶¹

The Frankfurt court on retrial interpreted the subjective theory of perpetration to Weber’s advantage. According to the court, the facts did not support a finding of perpetration: Weber never volunteered her services to the Reich Committee but was already involved as a doctor in Kalmenhof when the children’s operation started; nor was she a Nazi Party member, from which the court inferred a presumption that she did not subscribe to euthanasia for ideological reasons. The court was persuaded by her defense that “she found her work in Kalmenhof unpleasant and quickly formed the desire to extricate herself from it.” Where in the first trial the court had rejected Weber’s argument that her distaste for the killing program had led to her removal from Kalmenhof in May 1944 (on the proven ground that she had departed for health reasons, not out of conscientious objection), the court now accepted Weber’s claim that her “inward rejection” of euthanasia caused her dismissal. For all of these reasons, it found that Weber had not desired euthanasia “as her own” and was thus guilty only of aiding and abetting murder, that is, of being an accomplice. On the issue of punishment, the court affirmed extenuating grounds in Weber’s case, based on her relative youth and immaturity at the time of her service at Kalmenhof, which affected her ability “to deal with the demands made upon her.” Moreover, her educational background had not prepared her for agonizing ethical choices. “She had only the common school and career education behind her when she began her work in Kalmenhof in 1939,” the court held. The court characterized her as “fundamentally a weak and unstable person,” whose “guilt consists in the fact that she closed her eyes to what was happening around her and let the nurse subordinate to her do as she liked.” Hence one could not lump her in with all the other euthanasia doctors; she was a distinct “exception.” This indulgent line of reasoning led the court to sentence Weber to a jail term of three-and-a-half years.⁶²

As trifling as her sentence was in comparison with the enormity of her crimes, Weber never served more than a month of her punishment. After her second trial she was released from custody and her sentence suspended because of poor health. Not until October 1954 was she deemed healthy enough to do her time. In November 1954 she was again released, apparently for time served prior to her second trial. By 1960 she had resumed her career as a practicing doctor. Hermann Wesse, also indicted and tried for his role in euthanizing patients at the Waldniel mental hospital, benefited from the abolition of the death penalty in Germany in 1949. Nonetheless, he was one of the few euthanasia doctors to spend considerable time in jail for his collaboration in the euthanasia program: after twenty years, he was released from prison in September 1966 for health reasons.

Mathilde Weber benefited from the trend toward leniency discernible in German euthanasia trials after 1947. Had her appeal come before the Frankfurt appellate authorities in 1946 or 1947, we might question whether she would have enjoyed such a favorable outcome. One historical factor that may account for this seachange in judicial attitudes was the growing antagonism between eastern and western Europe. The tension between the United States and the Soviet Union in the late 1940s was a godsend for Weber in her second trial. A politically and morally rehabilitated Germany was needed to anchor the Western alliance against the Soviet bloc. The imperatives of international politics intersected with a West German society eager to lay its scandalous past to rest and avid to recoup its sovereignty after a brief period of eclipse. Within this society, the West German judiciary—itself tainted by its prior contacts with Nazism—became an auxiliary to the nation’s willed amnesia. The tools of German criminal law like the distinction between perpetration and complicity and the statutory definition of murder were used to further this act of collective forgetting. Although the most visible symbol of the yearning to forget appeared in late 1949 with the Bundestag’s amnesty of certain types of Nazi crimes, trials like Weber’s had already proclaimed West Germany’s determination to close the book on National Socialist criminality.

In the early phase of the German trials, however, the courts convicted defendants as perpetrators of murder under German law. The wrongdoers’ motives, in the estimate of the courts, were various: they included ideological affinity with Nazi doctrine (Wernicke, Wieczorek), vanity and self-seeking ambition (Mennecke), a distorted sense of obedience (Schmidt), human weakness and an “inertia” of the will (Wahlmann and Gorgass), careerism (Wesse), and a weak, unstable personality (Weber). Among these euthanasia killers, only Wieczorek, Wernicke, Mennecke, Weber, and Wesse were deemed to have acted with “base motives” (i.e., in a morally reprehensible manner). Only Wernicke and Wieczorek paid for their participation in Nazi euthanasia with their lives. With the exception of Wieczorek, all nurses were convicted as accomplices to murder, based on motives ranging from love (Schürg) to thoughtlessness (Senft). These determinations were predicated on a subjective analysis of each defendant’s moral and intellectual capacity to comprehend the wrongful nature of the killing operation. Of these early trials, only in the Kalmenhof case did a West German court categorize a T-4 doctor as an accomplice rather than a perpetrator. As we will see in Chapters 4 and 5, reducing euthanasia doctors’ roles in the Nazi killing program from perpetration to complicity—and, in several cases, even acquitting them for “proven innocence”—would become inflationary in West German courts after 1947.