Her loyal friend confirmed without question that Schmidt-Hansen had demanded the oath and was certain that he had spoken to the manager about it in December 1941.
Laughlin asked the radio engineer one final question: “Could she have stopped broadcasting for German Radio if she wanted to?”
Solemnly, Christiani shook his head. “No, she couldn’t.”445
Several months after the end of the war, a German journalist and former RRG staff member named Hans König told American authorities that the imprisonment of Overseas Service employees for political crimes was not uncommon. “I have reason to believe that there was a high rate of convictions for political offenses with concentration camp sentences, as well as membership of resistance groups, among the foreign broadcasting staff. The wider horizons of the mainly non-Party staff members, subject as they were to draconian thought control and eavesdropping, bred a spirit of opposition among people of their intellectual training, especially when their professions and their life abroad had largely inclined them to liberal attitudes.”446 US officials knew that the danger of arrest and deportation was a real one faced by all Overseas Service employees—German and non-German alike. No witnesses were made available to testify to the fate of those unfortunate Reichsradio employees. When testimony about the danger of refusing to broadcast was given by the defendant’s friends and colleagues, Judge Curran instructed the jury to disregard it.
James Laughlin made a valiant effort. In the face of Mildred’s frustrating reluctance to follow his direction and the judge’s active refusal to allow testimony favorable to his client, he pursued several arguments aimed at sowing seeds of doubt about her guilt. It became a defense built on shifting sands—torn between the stubborn pride of his client, the massive power and resources of the Federal government, and the rigidities of law and precedent. Disadvantaged by a lack of available witnesses, a Justice Department eager to provide incentives to German witnesses for their continued cooperation, and a lack of financial resources, Laughlin attempted to beat back a tidal wave of emotion-laden evidence with contradictory but fervent arguments.
His first core argument was that Mildred Gillars was always an American citizen during the time of her alleged treason. As a citizen of the United States, her constitutional rights were flagrantly violated by her arrest and three-year internment. At the same time, Laughlin argued that the oath of allegiance that his client allegedly signed after the Pearl Harbor attack was a legal renunciation of her citizenship in accordance with the 1940 Nationality Act. If the jury believed that Axis Sally was still an American citizen at the time of the broadcasts, then the Federal government did not treat her as one and violated her constitutional rights—rights including habeas corpus, unlawful search and seizure, self-incrimination and due process. If the jury believed that she had renounced her citizenship after December 7, 1941, then her arrest and incarceration were illegitimate—opening the door for an acquittal.
Either way, the intent of the accused was central to determining her guilt or innocence. Laughlin provided multiple witnesses who made it quite clear that she was never in a position to refuse her hosts. Ulrich Haupt, Emil Beckman and Erwin Christiani did everything possible to express the terror they had faced at the hands of a ruthless police state. Laughlin constantly tried to remind the jury that those dangers applied to Mildred Gillars as well. Daily survival depended on collaboration. If, for instance, she had the option that Georgia von Richter had—to either broadcast for Berlin Radio or work in a munitions factory—would one job be any less a form of treason than the other?
Laughlin insisted that Mildred had remained steadfastly loyal to America (notwithstanding her hatred and distrust of President Roosevelt) through the darkest days of the war, and never, at any time, intended to betray her nation. He pointed to her insistence on visiting the prisoner of war camps, her requests to American listeners that they inform the friends and families of the POWs about their safety, and her refusal to speak to the convicted traitor Martin James Monti as proof of her patriotism.
The clarity of these explanations was muddied by Axis Sally’s adulterous affair with Koischwitz and her unapologetic love for the man. Laughlin’s depiction of the Professor as a Svengali leading an American girl to ruin did not conform to the history and attitude of the worldly woman on the stand. She simply did not want to leave her man—even in 1944 as Allied armies closed in on Paris. She did not abandon him in the midst of Germany’s defeat—not to save her own skin nor to plead her innocence before the Americans authorities. As she told John Kelley on the stand, no army would separate them—even unto death.
CHAPTER 11
Convicted
“Heavy hangs the head that plays the role of a traitor.”
—John M. Kelley447
MARCH 1949–JUNE 1961
The first week of March 1949 brought the latest in a series of shocking Soviet espionage cases. Judith Coplon, a Justice Department analyst, was charged with providing classified national security documents to her Russian lover, an employee of the United Nations. Coplon was accused of providing the Soviets with FBI files detailing the investigation of possible Communist agents in the Federal government. As another lovestruck American woman took center stage, the trial of Axis Sally slowly ground to a close. The scores being settled in Mildred Gillars’ Washington courtroom seemed out of sync with the times as the American public turned its attention to new dangers of subversion from within. In a matter of months, John Kelley would be tapped to lead the prosecutorial charge against Judith Coplon, but on March 8, 1949, the rising star in Attorney General Tom Clark’s Justice Department began his closing argument for the conviction of Axis Sally.24
In a ninety-minute statement laced with bitter sarcasm, Kelley depicted the defendant as one of the most morally bankrupt characters in American history. Like a firebrand evangelist condemning the evils of sinful flesh, he lashed out at the “unholy traitor” who cast her lot with the Nazis. Calling her “a stupid woman” with “lovers aplenty,” Kelley claimed that Axis Sally happily shared the exultation of Hitler’s early wartime victories. Reminding the jury of the Führer clicking his heels in triumph at the French surrender, he drew a direct connection between Adolf Hitler and Axis Sally:
She was on the winning side and all she cared about was her own selfish fame. She too absorbed the joy of conquest.… She believed the Nazis simply couldn’t lose and she made up her mind which side to be on. She broadcast time and time again that she had chosen the German side and said it was the right side…
Lock stock and barrel, she sold herself to the Nazis for 3,000 Marks a month. She had a nice apartment, antiques, flowers, lovers aplenty, cocktail parties at the press club and the [Hotel] Adlon with traitors like Best and Chandler.… She sold out, that is all. She thought she was on the winning side and the only thing she cared about was her own selfish fame.448
Kelley resisted any effort to define Axis Sally as the innocent victim of a manipulative and controlling lover. He depicted Koischwitz not as a lonely matron’s man of destiny, but a despicable adulterer who shamelessly carried on with the defendant while his doomed wife carried his child:
Otto Koischwitz: the mountain gazer, the dynamic Mr. Koischwitz…
And who is this dynamic Mr. Koischwitz?
So dynamic that he had to have his extra butter and his special food to keep his knees from buckling under him…
What a dynamic personality he was. And what a character we were told.… So much character that at the time he formed this unspeakable association with the defendant in the spring of 1943, it was at a time when his wife was carrying his fourth child… so dynamic that he had to go to the mountains of Silesia and gaze into their vast beauties and have the spirits tell him that they blessed his whole affair, and he wrote his love letters. What a special cad. Whether she was hypnotized or who was hypnotized, I don’t know and I don’t care.449 What a stupid woman. She thought she could go over there and rub elbows with mountain-gazing Germans a
nd get culture by the quart.450
Reading from one of Midge’s Medical Reports, the prosecutor depicted Axis Sally as being as depraved and sadistic as any death camp guard:
Tell me, why in the name of humanity would any decent woman tell a mother of her son’s death and then sadistically go into the details of his mortal injuries? In God’s name, what can excuse that? Only one thing—Treason!451
This was cruelty if ever I listened to it. And she got a sadistic joy out of it.”452
Although Kelley admitted that Midge’s prisoner-of-war interviews were propaganda-free, he maintained that she slyly waited for her moment to put the poison in:
Later, along came our Midge at 3,000 Nazi Marks a month to tack on the dirty propaganda in front of, and behind the recorded interviews, so that in order to listen to your boy, you had to listen to that rot…
Of course, she was taking [the war] seriously, sashaying around with the hypnotic professor and getting him extra butter rations. But, of course, our boys weren’t taking it seriously in the foxholes with all hell breaking loose around them while they listened to her tell them to lay down their guns and “toddle off home.”
Why didn’t she ask the Germans to lay down their guns and stop shooting our boys if she was a loyal American and taking it so seriously?453
In reality, this was her snide, stinking little way of torturing American boys in the foxholes. She knew the Nazis weren’t paying her to entertain US troops.454
If she didn’t have a rotten conscience, why didn’t she stay [in Paris] and be liberated? She knew what she had done as a traitor to her land.… Can there be any doubt in the minds of anyone what was in the traitorous heart of this woman?455
Mildred sat unmoving, her eyes darting about as Kelley’s barrage went on. The prosecutor sat down and yielded the floor to James Laughlin. The urbane, silver-haired attorney rose and approached the jury box. Like an indulgent father defending the good intentions of a wayward daughter, he called his client “unjustly maligned and accused.” “Horse manure about sums up the government’s case,” Laughlin said. “This lady never wanted to do anything against the United States [and] never wanted to betray her country.”456 The Government’s response to her wartime activities was a gross overreaction. “Not a life was lost as a result of her broadcasts,” Laughlin emphasized. “On the other hand, you can infer that many an American mother got comfort from the news of her son’s whereabouts which came to her on those broadcasts.”457
Ignoring the hours of testimony from former POWs, Laughlin insisted that there was “no evidence that the broadcasts were harmful to the country, or that they tended to undermine the morale of the armed forces.”458
In the face of the mountain of damning evidence, Laughlin tried to exploit the racial composition of the jury. He pointed to the Justice Department’s enthusiasm for prosecuting dangerous characters like Miss Gillars with a heavy hand, all the time refusing to lift a finger against lynch mobs and “those who persecute the Negro in the South”:
Are you going to condemn anti-Semitism in Hitler’s Germany and uphold it in this country? I hope the Justice Department will be fair and punish those who persecute the colored man in the South by violating his civil liberties. The soul of the black man is just as precious in the sight of Almighty God as the wealthiest man in this country.459
Let’s be absolutely fair in this case. If you are going to crush race prejudice so it will never rise again, you can’t permit the violation of the colored man’s civil liberties in the South, and the Justice Department should be prosecuting vigorously all those who violate them.460
Laughlin took aim at the questionable motives of the prosecution witnesses, condemning the government’s slavish willingness to take the testimony of former Nazis at face value. The perks and advantages available to cooperating Germans should cast doubt on their testimony, he said. “The word of a Nazi should never be taken over that of an American citizen. Everyone knows that.” He compared the meager five dollars per day that the jury received to the ten dollars a day stipend that former Nazi functionaries were paid for their cooperation. Moreover, the witnesses were given employment opportunities unheard of in war-wrecked Germany.
No matter how he tried to distract the jury from the facts of the case, Laughlin had to address his client’s unsavory relationship with Koischwitz. “From the time of Sodom and Gomorrah,” he told the jury, “married men have been carrying on affairs with women. That’s wrong—but we are dealing with human beings.” Testing the credulity of every person in the room, Laughlin inferred that the affair was not wholly consensual. “She didn’t know his wife was pregnant,” the attorney insisted. “Our laws allow females—in order to save their lives, to allow their bodies to be violated.”461 Despite his client’s clear adoration of the Professor in her own sworn testimony, the defense blamed “coercion and enemy compulsion” in the figure of Otto Koischwitz as the main reason she remained on the Berlin airwaves:
What would any of you have done?… Suppose she had crossed him? He could have had her put away at any moment.… She’s only a human being and she’s a woman. The law does not expect a woman to hold her ground to such an extent that she would have been sent away to a concentration camp or death. She’s not supernatural. She’s only human.
Not just a victim, a martyr; “Here is this lady—taking her chances with the bombs falling,” ensuring that the soldiers’ messages home get through to their families. She walked a tightrope between her desire to help the GIs and to meet the expectations of the dreaded Horst Cleinow. “Refusal meant death. Cleinow with a wave of his finger could have sent her to a concentration camp and death—not immediate perhaps—but slowly of starvation.”462
Laughlin saved his most powerful assault for the United States government’s violation of Mildred Gillars’ constitutional rights. Arrested, released and rearrested without charges in a foreign land; imprisoned without a hearing or a speedy trial, her rights as an American citizen were trampled upon. The same American government that denied her those rights hypocritically sought to convict her subject to that very same Constitution. Laughlin charged that Mildred and the other radio traitors were all being held to a new and dangerous redefinition of the crime of treason. For over a hundred years, “mere words” were not enough to constitute treason, but this new conception of the crime made the speaking of words into a microphone a capital crime. Sidestepping the fact that the words were spoken on enemy territory, Laughlin charged ahead, warning that this redefinition could undermine the First Amendment and have a “destructive effect on free speech and thought” at home:
The right of civil liberty—of personal liberty—is at stake in this trial. If this defendant is convicted, the right of free speech could not help but be impaired…463
The only way you can repudiate this tyranny is to acquit this defendant. To put your stamp of approval on such conduct means no one in this country would be safe. Freedom of speech would be wiped out and the writ of habeas corpus would be suspended.464
It took five hours for Laughlin to finish his plea for Axis Sally’s acquittal. In a final gesture, he raised his arm like a master of ceremonies, swept it toward the defendant and closed with a final acclaim, “Ladies and Gentlemen, I give you Mildred Gillars.”465 As he sat down, the lawyer hesitated. He rose again to remind the jury of Mildred’s oath of allegiance to Germany:
The testimony is further that she turned it over to Mr. Schmidt-Hansen. His testimony is that he did not recall it, although on cross-examination he said that he did not deny it, it could have been a routine or something like that. However, Christiani testified that he did have a conversation about that, and as a result of that oath she was permitted to return to work. I ask you, therefore, to keep that in mind, as to whether she signed an oath, and the circumstances under which she signed it. If it conformed to the statute, she expatriated herself, and she should be acquitted on that count if no other.466
Despite his earlier agreement to the sti
pulation that Mildred was an American citizen who owed allegiance to the United States at all times, Laughlin pinned his hopes on a thin reed that he foolishly threw away at the beginning of the trial. Although her story about the oath was only confirmed by Erwin Christiani, no supporting documentation existed. Nevertheless, Laughlin used it in an attempt to invalidate the entire trial. If defense counsel had taken that position in the beginning and claimed that she had expatriated himself in 1941, acquittal might have been, at least, a possibility.
Her lips tightly pursed in nervous anticipation, Mildred listened closely as Judge Curran instructed the jury. Asking them to use “the same good common sense you apply to the problems of everyday life,” Curran told the jurors that if the defendant gave “aid and comfort” to the enemy and acted with the intention to betray the nation, the verdict must be guilty. As the judge continued, he whisked away each one of the defense arguments, deeming them irrelevant to Axis Sally’s guilt or innocence. It did not matter whether she lived in fear of arrest and internment in a concentration camp. It did not matter if she felt compelled to broadcast for the Nazis—unless she lived in fear of “imminent and impending death or bodily harm” at all times.467
Curran explained: “Force and fear must continue all the time [author’s italics] in which the traitorous act or acts is performed.”468 To meet that standard, Axis Sally would have had to experience the imminent fear of death or torture every day from December 8, 1941 to May 8, 1945. “Fear that she might be sent to a concentration camp is not sufficient,” he said, an unusual twist of logic in a world freshly acquainted with the horrors of Buchenwald, Dachau and Treblinka:
Axis Sally: The American Voice of Nazi Germany Page 24