Hitler's First Victims

by Timothy W. Ryback

  Hartinger understood that prosecuting the SS for premeditated murder and obstruction of justice presented challenges. The Bavarian courts were notoriously conservative, as Gumbel had reported in his 1922 study and Wintersberger knew from the “little Hitler trial,” and had become increasingly cautious under the new regime. But Hartinger believed that even conservative judges, when confronted by evidence of such grotesque horror, could not help but reach the only appropriate verdict. These atrocities could not be dismissed as unfounded rumor or “Jewish-Bolshevik” propaganda. This was hard forensic evidence. Moreover, from a practical point of view, it was being delivered by a state office purged of communists and Jews. These were pure-blooded Aryan forensics, indictments, and arrest warrants against equally pure-blooded Aryan criminals on charges of premeditated murder and obstruction of justice.

  Hartinger’s prosecution strategy was simple. He intended to indict Ehmann for the murder of Hausmann, and Kantschuster for the murder of Strauss. Dr. Flamm’s reports and Dr. Merkel’s lab results would do the rest. Prosecuting the killers of Schloss and Nefzger was more complicated. Hartinger had forensic evidence proving homicide and correspondence on concentration camp letterhead indicating obstruction of justice, but no murder suspects. Wicklmayr, Ehmann, Kantschuster, and Steinbrenner had all proven themselves capable of shooting a man point-blank, but there were no witnesses and no one willing to talk. Hartinger planned to indict “unknown perpetrators” for those murders, in the hope that the truth would eventually come out, and in the interim use the murders to implicate Wäckerle, Mutzbauer, and Nürnbergk.

  On the evening of May 30, as Hartinger awaited the final lab results of the most recent killings, he prepared a report on the murders he intended to prosecute. He summarized each case in a half-page description, headed by a Roman numeral, that included key details of the circumstances, excerpts from Flamm’s autopsies, reference numbers to the corresponding investigation files, and the names of the SS guards involved in each killing. He planned to take the four cases with incontrovertible evidence—Hausmann, Nefzger, Schloss, and Strauss—and bundle them into a series of indictments with the intent of demonstrating a pattern of deaths that suggested the intentional serial killing of detainees with possible chain-of-command involvement. He also included the Götz and Lehrburger killings.

  Hartinger finally had the hard evidence that met Wintersberger’s standard and, more important, the chief prosecutor’s attention. “I had in fact by chance mentioned while we happened to be walking with Minister Counselor Döbig,” Hartinger recalled, “that as soon as I received a few more documents that I was waiting for, I would be ready to issue indictments to the judge—at the time, a judicial review of indictments was required—and since he did not respond, I assumed he was in agreement.”

  ON THURSDAY, June 1, Hartinger met with Dr. Hermann Kiessner, the investigating judge for Munich II, and, in accordance with the Criminal Procedure Code, informed him of the forthcoming indictments. “If the prosecutor’s office considers it necessary to undertake a judicial investigation,” Paragraph 162 dictated, “the request is to be presented to the investigating judge for the district in which the investigation is to be undertaken.” Hartinger was aware that the indictment and arrest process could be perilous and fraught with complications. “As was well known, Nazis were required to report to the party anything that could be of interest,” Hartinger said. “I planned that the party would not find out about the indictments until the last possible moment.” Hartinger had complete trust in Kiessner, an elderly judge, who immediately agreed to the plan. “Since it was necessary to act quickly and with surprise if things were to succeed,” Kiessner recalled, “we both discussed the steps that were to be taken.” Hartinger would prepare the indictments and arrest warrants, secure Wintersberger’s signature, and then deliver them to Kiessner, who in turn would personally carry the arrest warrants to the homicide department. As a former judge and prosecutor, Hartinger had extensive experience with the police and had complete trust in them, and above all in their “diligence and integrity.” Kiessner agreed: “It was clear to both of us that success depended wholly on the homicide department of the police. I was to go to them immediately.” The police would be dispatched without delay to Dachau to take Wäckerle, Mutzbauer, and Nürnbergk into custody. “There was no question that the police department commanded great respect, and I relied on the hope,” Hartinger wrote, “that this respect would also not be without significance with the National Socialists and even with the SS.” Three weeks earlier, the police had used this “respect” to extract Josef Hirsch from Dachau. Hartinger calculated they could do the same with the arrest of Wäckerle.

  As Hartinger was finalizing details of his plan with Kiessner, he encountered Wintersberger in the second-floor corridor at Prielmayrstrasse 5. “We started talking and stood by a window,” Hartinger later remembered. “During this conversation I informed the chief prosecutor that I would now—I probably said ‘today’—dictate the indictment for the four cases.” Things were ready to go. “And then the chief prosecutor stated quietly and without any visible emotional reaction: ‘I’m not signing anything.’ ” Hartinger looked at Wintersberger, speechless. “That was one of the greatest surprises of my life,” he recalled. “In a word, I was stunned. I didn’t ask the reason, since his position was clear. I said nothing more and took my leave.”

  At that point, Hartinger could have abandoned the indictment process. He already had years of service in the state bureaucracy and was ranked in the “special class” pay scale, earning significantly more than he would in more remote parts of Bavaria. With his excellent performance reviews, he could anticipate an appointment as chief prosecutor within the next five years, possibly even of Munich II itself, and eventually ascend to the presidency of a district court, perhaps even become state attorney general. He also had his family to consider. He was a brief three months short of his fortieth birthday, with an apartment in an elegant quarter of Munich where he lived comfortably with his family. “At the time, my wife was often ill,” Hartinger would write. “She was suffering from a long-term heart and nervous disorder that brought her to the edge of her grave, and which was caused primarily by the constant worry and anxiety about my unrelenting fight against Nazi brutalities.” In brief, Hartinger had every personal reason to keep quiet and every professional justification to defer to his superior. But as he walked down the hall back to his office, he knew there was only one decision he could take. “It was clear to me, and there was no more reason to reconsider,” he said, “that I should act on my plan, to dictate, to submit, and sign the indictments and other paperwork myself.”

  That evening, Hartinger stayed behind in his office with his trusted assistant, to dictate his murder indictments and arrest warrants against the camp personnel. Hartinger was clear, explicit, and resolute: “I hereby issue a public indictment against unknown perpetrators for the crime of murder according to §211 of the Reich’s criminal code. In addition against Wäckerle, H., camp commandant, Dr. Nürnbergk, camp doctor, and Mutzbauer, office administrator, all currently resident in the Dachau Concentration Camp, for the offense of aiding and abetting according to §257 of the Reich’s Criminal Code.”

  Hartinger had already issued the indictments for the murders of Alfred Strauss, Louis Schloss, and Leonhard Hausmann, and finally Sebastian Nefzger. “Although the accused Wäckerle, Nürnbergk, and Mutzbauer knew of the circumstances and understood the cause of death, they did not act according to their professional duty, and furthermore presented the situation as if it clearly dealt with suicide.” Hartinger went on to note that Nürnbergk went so far as to write to the district court in Dachau on May 27 that “the possibility of death at the hands of another party is excluded.” Hartinger noted that Mutzbauer had also submitted a false report when he was in clear possession of the facts. In light of these events, Hartinger wrote, “I submit a request for the opening of a preliminary judicial investigation and the issuance of an arres
t warrant for the accused because of imminent danger of suppression of evidence.” Hartinger returned home late that evening to find his wife waiting for him. When she asked why he was so late, he said flatly, “I just signed my own death sentence.”

  15

  Good-Faith Agreements

  AS HARTINGER WAS PREPARING the murder indictments and arrest warrants in his office, Karl Wintersberger was in the Wittelsbach Palace cautioning Heinrich Himmler about the imminent judicial action against Hilmar Wäckerle and several other concentration camp SS personnel. Wintersberger provided Himmler with evidence from Hartinger’s investigation, including photographs of the abused corpses of both Schloss and Nefzger, as well as evidence related to Hausmann and Strauss. “I pointed out that with these four cases in particular, based on the fact that there was a pressing suspicion of serious criminal acts on the part of members of the camp guards and camp administrators,” Wintersberger recorded in his notes from the meeting, “and since this fact had become known to the prosecutor’s office as well as the police officials, there is an obligation in serious criminal cases to pursue the matter regardless of the individuals involved.”

  Wintersberger’s news of the Dachau murders came as no surprise to Himmler, but the threat of imminent judicial action certainly did. Since the first killings in April, Munich II had proven to be accommodatingly circumspect in its response. Wintersberger had not only closed the investigation into the shooting of Benario, Goldmann, and the two Kahns after two weeks, but had also confirmed the SS account of the deaths, even citing verbatim the disparaging remarks about the Jews’ deportment. Wintersberger had personally investigated the Lehrburger shooting and that very day, June 1, closed that case as well. But now Wintersberger had come with news of potential murder indictments and arrest warrants.

  FOR THE PAST SEVERAL MONTHS, Himmler and interior minister Wagner had played fast and easy with the law in the name of public security. When Hans Frank had complained of the overcrowding of state facilities, Wagner was curt and unapologetic. “In case the justice officials find that the number of existing prisons is not adequate,” Wagner proposed, “I would recommend implementing the same methods that were used earlier against the masses of incarcerated members of the National Socialist German Workers’ Party. They were known to be locked up in any vacant enclosure without concern whether there was adequate cover against the effects of the weather.”

  A few weeks later, Himmler had announced the opening of the Dachau Concentration Camp with equal disregard for due process. “We took these measures without worrying about the petty issues,” the Munich police chief stated at his press conference, “with the conviction that we were restoring calm to the people and acting in their best interest.”

  Wagner and Himmler meanwhile altered the state security structures. Wagner appointed Munich police chief Himmler as a “political counselor” in the interior ministry on March 15, and two weeks later made him commander of the political police for Bavaria and placed him in charge of “already existing and planned concentration camps. Himmler placed Reinhardt Heydrich, as Warren Farr later noted, in charge of the police files, with horrific consequences, especially for covert agents like Hunglinger and Nefzger.

  On May 30, the Dachau Concentration Camp was officially transferred into SS authority. For the previous two months, as has been shown, the SS had served as “assistant police” to the Bavarian state police, under the auspices of Captain Winkler. As commandant, Hilmar Wäckerle had been responsible for the detainees, but Winkler remained in charge of the facility. The May 30 transfer was effected with a formal handover by Winkler to Wäckerle. “The command of the SS guard unit, as well as the other guard and security services in the Dachau Concentration Camp, was transferred today to the SS leadership,” the transfer protocol stated. Winkler “officially relinquished” authority with his signature, and Wäckerle “officially accepted” with his. The camp regulations, inventory of weapons, a list of telephone numbers that included the Nazi Party headquarters in Munich (Tel: 54901), and other administrative documents were placed in Wäckerle’s hands. Winkler departed. Dachau belonged to Himmler.

  But now Wintersberger had arrived with news of imminent judicial intrusion. His appearance in Himmler’s office that afternoon came amid rising concerns within the state government over reports of the killings in Dachau. Three days earlier, on the afternoon of May 29, Wintersberger had visited Minister of Justice Friedrich Döbig in his office and had shown him a copy of the camp regulations imposing martial law and providing for capital punishment. Wäckerle had told Wintersberger that he had prepared the regulations on instructions from Himmler, who had subsequently approved them. Wintersberger told Döbig he believed the death penalties violated state law. Wintersberger also informed Döbig of “contradictions” between Wäckerle’s account of several recent deaths in the camp and the forensic evidence collected by Flamm. Döbig called Hans Frank and suggested that the minister of justice ask Prime Minister Siebert to place the issue on the agenda of a meeting with state ministers scheduled for May 31.

  The next day, when Döbig discussed the matter with Wagner, the interior minister said the circumstances of the shootings required “further clarification” with Himmler and Wäckerle. Since Himmler was indisposed, Wagner called Siebert and told him to strike the matter from the meeting agenda. Wagner then proposed a meeting with Himmler, Wäckerle, Nürnbergk, Wintersberger, and Flamm. Döbig countered that they needed to avoid “any appearance of interference in the pending investigation,” and proposed instead that Wintersberger have a quiet conversation with Himmler.

  Himmler recognized the danger immediately. The administrative tangle that had allowed Wagner and Himmler to transfer police authority for Dachau to the SS was causing increasing confusion at all levels of state government. Siebert was responsible for Bavaria as prime minister, as was Epp as Reich governor. Wagner shared Nazi Party authority with other Gauleiters in Bavaria, but exercised statewide power as interior minister. Himmler was subordinate to SA chief Ernst Röhm—the SS was an elite unit within the SA—but exercised autonomy as chief of police in Munich. The chaos deepened amid local power struggles.

  “The state’s authority is threatened by unwarranted attacks on all sides from political functionaries in the normal administrative machinery,” one local official despaired in those weeks. “Every local political leader, municipal leader, and district leader issues decrees that interfere with the authority of the lower officials in the ministries.” Instructions and ordinances were introduced by regional authorities that undermined ordinances issued by district officials, who in turn issued ordinances that undercut authority down to the smallest local police station. “Everyone arrests everyone,” he observed. “Everybody threatens everyone with Dachau.” Bavaria was collapsing into administrative chaos. “Even in the smallest police station, the best and most reliable officers are facing uncertainties in the administration,” he warned, “that will invariably lead to the devastation and destruction of the state.”

  AMID THE TUMULT and confusion of that blood-spattered German spring, the violence took an unexpected twist that even Emil Gumbel could not have foreseen. Nazis began killing Nazis.

  The half million SA storm troopers had long been of brutal utility to the Nazi cause. They battled Bolsheviks in streets and beer halls. As “assistant police,” they helped round up and frequently attacked communists, socialists, and Jews. They also turned on each other. In one incident, on April 22, an SA leader and two storm troopers assaulted an SS man in a guesthouse in the town of Feldmoching, just north of Munich, “because he had earlier insulted the SA people” in the town. The SS man was beaten, ordered to kneel before the SA men and beg for forgiveness, then taken to a hospital, where he spent the next two weeks recovering from the abuses. The SA leader “confiscated” his victim’s motorcycle and lent it to another SA man, who drove it for two days then returned it and dumped sugar into the gas tank.

  On the day Wintersberger appeared
at the Wittelsbach Palace, Himmler was in fact seeking the release of one of his prized SS colonels from a psychiatric ward. In March, SS colonel Theodor Eicke had been taken into protective custody by Josef Bürckel, the Gauleiter in Ludwigshafen, then declared mentally incompetent after staging a hunger strike. Eicke dispatched a series of enraged letters to Himmler, one of them eighteen pages long, protesting his incarceration and reminding the Reichsführer SS of his loyal service. Eicke’s psychiatrist wrote to Himmler on April 22 with the assurance that after “several weeks of observation and evaluation” there appeared to be no sign of “mental illness” or “tendencies toward a psychopathic personality,” and suggested Eicke could be released.

  Himmler knew Eicke to be querulous, paranoid, and violent, but he was also aware that Eicke was a fanatically loyal and effective member of the SS. Eicke had tripled the size of SS-Standarte 10, from 290 to 1,000 men, in less than a year. Himmler personally promoted him to SS colonel in November 1931 and gave him a book with the personal inscription “Loyalty is eternal.” Unwavering loyalty was a fundamental precept of SS membership, as Warren Farr was to point out in Nuremberg, in underscoring the collective guilt that came with SS membership. “We must be honest, decent, loyal, and comradely to members of our own blood and to nobody else,” Farr would read verbatim to the tribunal. Loyalty was to be repaid with loyalty.

  Himmler provided a 300-mark-per-month subsidy for Eicke’s family while Eicke was in the psychiatric ward, and by the end of May was willing to extract the former SS colonel from incarceration. “I intend to use Eicke in some position, possibly with the government,” Himmler was to write Eicke’s psychiatrist on June 2, “but he must not make things too difficult or impossible for me.”

  On Tuesday, June 1, as Himmler was preparing to make good on his promise of loyalty to a fellow SS man, Wintersberger informed Himmler that the Munich II prosecutor’s office was in possession of incontrovertible evidence of Nazi homicide that was going to compel the prosecutor’s office to take action against another one of Himmler’s prized SS officers. Himmler studied the photographs of Schloss and Nefzger, listened to the details of the four investigations, weighed the implications. He knew that a state law was being drafted that would grant amnesty to the myriad transgressions perpetrated by the SA and SS over the past several months, including the Dachau murders, but he needed to bide his time.* “Police Chief Himmler has agreed to give instructions not to create any difficulties for me and my investigative judge while handling the investigations in the Dachau camp,” Wintersberger recorded after the meeting, “and to comply with all requests, and that he declares that, of course, he would have no objections regarding my further intentions to pursue investigations into the individual cases.”