Fear of injury to one’s property or of future bodily harm do not excuse an offense, and in order that compulsion may operate as a defense, one must be without fault or blame in causing it. That one commits a crime merely because he or she is ordered to do so by some superior authority is, in itself, no defense, for there is nothing in the mere relationship of the parties that justifies or excuses obedience to such commands.
Moreover, the force and fear, in order to constitute a defense in a case of treason, must continue during all the time of such service with the enemy, and one who makes force his defense must prove that he left the service as soon as he could. In other words, ladies and gentlemen of the jury, this coercion or compulsion that will excuse a criminal act must be present, immediate and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done.469
The fact that the defendant was in love with Dr. Koischwitz, or that Dr. Koischwitz was in love with the defendant, is not sufficient, nor is the fact that Dr. Koischwitz was a man of dynamic personality, if you so find that he was, and that he asserted his influence over the defendant, is not sufficient. Nor is it sufficient that the defendant thought she might be sent to a concentration camp, if you so find, nor are threats to other persons sufficient. Nor is it sufficient that the defendant continued her employment with the German Broad casting Company and committed these acts merely because she wanted to make a living.470
Finally, Curran reminded the jurors of the stipulation signed by Mildred herself affirming her American citizenship. The stipulation (and her acceptance of it) made her “oath of allegiance” insufficient to avoid conviction:
You are instructed that so vague and indefinite a statement as translated would be something to the effect that, “I swear allegiance to Germany and signed Mildred Gillars,” which statement was handed by one person to another is not an oath, affirmation or other formal declaration of allegiance to a foreign state within the meaning of Section 401 of the Nationality Act of 1940.471
One by one, Curran eliminated every defense from the jury’s consideration. Mildred despondently sank down into her chair. Laughlin reddened. With their options severely limited, the jury filed out to decide the fate of Axis Sally. It would be a long vigil. After several hours of deliberation, the jury adjourned to a nearby restaurant for dinner. At 10:30 p.m., with no verdict, Federal marshals transported the jurors to the Hotel Continental for the night.
The following morning, Mildred arrived at court in a bus packed with prisoners. Edna Mae Herrick and her husband Edward waited outside in the searing wind. The last to emerge from the coach, Mildred greeted her half-sister with a cheerful “Good morning, dear.” Mildred appeared heartened by the lack of a quick decision. She was then led to a basement holding cell in the courthouse where she waited. Morning passed with no word, and when the jurors emerged at one o’clock to eat lunch at a 5th Street restaurant, reporters scanned their faces for some sign. The only indication of their discussions was a request for the transcripts of the 22 Axis Sally recordings entered into evidence.
Friday afternoon passed with no word from the jury room. With the weekend fast approaching, the jurors sent word at 4:28 p.m. that they had reached a verdict. Within minutes, Mildred was brought upstairs. At 4:45, the jury filed in. She intently eyed each one but not a single man or woman met her gaze. Judge Curran entered and asked her to stand. The bailiff asked the jury foreman, Henry G. Davis, if the panel had reached a decision. Without hesitation, Davis answered “Yes. Guilty.” Mildred’s face drained of color and Edna Mae began to sob. Laughlin demanded a poll of the jury. Barely audible above the din of spectators and press, each juror answered “Guilty.” One spectator shouted “Ah, hell,” as the slow procession dragged on. Print reporters swarmed out of the room to file their stories. Axis Sally was found guilty on only one of eight counts: #10—participation in the radio drama Vision of Invasion. After all the testimony by former prisoners of war, wounded servicemen and German collaborators, Mildred was convicted for acting in a play—a work written by a man charged with treason in 1943 and whose indictment was signed by the judge who now held her life in his hands. Death removed any possibility that Otto Koischwitz would face justice, but Mildred Gillars would bear the penalty for both of them.
As promised, Laughlin motioned for a new trial—a considerable long shot since Judge Curran would make the decision. Sentencing was set for March 25. In the meantime, Axis Sally would remain in the District Jail. A Federal marshal stepped up behind the convicted woman and pulled out her chair as a signal to leave. She glanced once more at her distraught sister. Trembling, Edna Mae dropped a cup of water as Mildred was led away. A reporter waited by the holding cell for a comment. Unbowed, she said, “I wish those who judged me would be willing to risk their lives for America as I did.”472 She paced back and forth in the cell, drawing on a cigarette, until a black paneled van pulled up in front of the courthouse. “It looks like you are going to get your picture taken again,” the marshal jocularly told her. “I shouldn’t be surprised,” she replied dryly as she stepped out into the crowd.473
Her face, taut and strained, peered out the van’s narrow window. Nearby, Edna Mae was visibly bitter, telling one reporter, “I don’t think they will sleep much tonight.”474 Leaving court, James Laughlin met the press. He called the judge’s behavior an “outrageous and shocking violation of accepted judicial procedure.” Curran swept away every one of his defenses, he claimed. “There [was] no basis for much of it. He excluded anything concerning concentration camps. We know concentration camps are tantamount to a death sentence,” he said. In short, it was “an invitation to return a guilty verdict.”475
That evening, Mildred was greeted by a surprise telegram from the attorney whose services she had disavowed publicly a year before. From the wilds of Alaska, John Holzworth reminded the convicted woman of his past warnings and attacked her choice of legal counsel:
DEEPLY REGRET YOUR CONVICTION PARTICULARLY IN VIEW SOLE AND UNASSAILABLE DEFENSE OF GERMAN CITIZENSHIP BASED ON FACTS FURNISHED ME. WARNED YOU AGAINST LAUGHLIN IN AUGUST CONFERENCES. NEWS DISPATCHES STRESSED HIS LEGAL SHORTCOMINGS. WAS MY JANUARY 27TH TELEGRAM RECEIVED STATING LAUGHLIN NOTORIOUS FOR DOUBLE DEALING AND CROSSING? YOUR SOLE HOPE FOR CONVICTION REVERSAL ON APPEAL IS VIOLATION [OF] CONSTITUTIONAL RIGHT TO COMPETENT, LOYAL LEGAL REPRESENTATION BY COUNSEL. IN WASHINGTON SOON….
JOHN M. HOLZWORTH476
Confronted by the prospect of life in prison or even a death sentence, Holzworth’s telegram was a bitter emotional blow. As her sentencing approached, her behavior became more erratic and difficult. Mildred resisted Laughlin’s attempts to launch an appeal; refusing to sign necessary documents to proceed in pauperis. Penniless, she could not hire and pay for any other legal representation. On appeal, there would be no publicity bonanza for a lawyer in search of renown. It would be James Laughlin or no one.
“I’ll never be able to understand…”
On March 25, Mildred arrived for sentencing in the same black dress she wore throughout the trial. Once again, Edna Mae dutifully stood behind her. Curran immediately denied the motion for a new trial and asked Mildred to stand and receive her sentence. He asked if she had anything to say before he passed sentence. She looked down at the defense table and stiffened. “I’ll never be able to understand,” she began, “why I was found guilty in Vision of Invasion, which was written by Professor Koischwitz, who also directed and played in it. He was indicted for treason in 1943, and he was exonerated by this government. You, as a U.S. District Attorney, signed the papers.”477 Curran cut in, “I’m told so. I have no recollection of it.”
Determined to have her say, she continued her monologue: “If the Vision of Invasion was so heinous and odious, why was an American passport given to Mr. (Ulrich) Haupt?”
“Don’t ask me,” replied Curran.
“It interests me. It affects my fate,” she replied.478 “I shall never be able to understa
nd—”
Curran cut her off saying that her attorney had already argued her case. Comparing her crimes with those of Douglas Chandler and Robert H. Best (both of whom received life sentences), the judge acknowledged that Mildred did not participate in “conferences with high Nazi officials to formulate policy.” Therefore, he sentenced Axis Sally to a 10-to-30-year sentence with a $10,000 fine. She raised her chin, turned quickly and walked out of the courtroom. Aware that her sister was playing the lead role in the greatest drama of her life, Edna Mae told reporters, “I don’t think Ethel Barrymore could have done a better job of taking the verdict.”479
Reaction to the sentence was swift and nearly unanimous. “She should have been strung up,” one ex-soldier said in response to the verdict. “That’s my opinion and every man in the Ninth Division would agree with me…. She knew where you were located and she’d tell us to expect a visit and then they’d come over and bomb the hell out of us.”480 Some residents of her former hometown felt she should be shot. The Herricks returned to Ashtabula, Ohio, to face years of both open discrimination and quiet disdain. Edna Mae’s devotion to a half-sister she barely knew cost her family dearly. At the same time, Mildred became increasingly unappreciative of the sacrifices made for her.
“Gradually deteriorating”
She is an intelligent, clever, scheming, overbearing, demanding person with an intense hatred for American ideals and principals [sic]. She is thoroughly imbued and indoctrinated with racial and religious prejudices. She detests “Jews” and the “Technicolor” group which, of course, are the Negroes. She has an elevated opinion of her talents and abilities. When she isn’t catered to, she gets belligerent and wants special treatment. She has a self-righteous attitude and now feels she is persecuted. The long periods of incarceration in jails and quarters have begun to have an obvious effect on her personality. She has become irritable and difficult to manage, although she is enjoying better treatment in the United States than she did in Continental Europe. She believes that she didn’t get a fair trial or justice in her case. The Assignments Board, Department of Corrections DC, is of the opinion that she should be placed in a reformatory type of institution where specialized care is available because of length of sentence and her gradually deteriorating personality.481
In June of 1950, Jail Superintendent Colonel Curtis Reid wrote to the Director of the DC Department of Corrections about one of his most troublesome prisoners. Despite his dislike of Axis Sally, her emotional instability was of great concern. James Laughlin tried for weeks to get her to sign the necessary papers to launch her appeal, but she refused. With the deadline approaching, the attorney begged Colonel Reid to intercede. She suddenly changed her mind and sent a flurry of notes to Reid demanding to know when the documents would arrive for her signature. Only days after Laughlin argued her case before the United States Court of Appeals (the prosecution had meantime dropped two counts against her), Mildred reported crippling digestive problems to the jail’s physician. Within a week, the doctor placed her on a strict diet of black coffee and buttered toast.482
Understandably fearful that the appeal was the last gasp of her legal hopes for freedom, Mildred sent several notes to Colonel Reid demanding a personal interview. On March 6, she “fainted” in front of the matron’s office while working on the laundry detail. An injury report stated that Mildred “suddenly threw her hands in the air and fell to the floor in a sitting position.”483 She was uninjured, but the disturbing incident recalled previous fainting spells, as in 1928, when she swooned in the Camden jail for the press, and in 1949, when she passed out in court after the jury heard her call American forces “murderers” in a recorded broadcast. When the going got tough, Axis Sally tended to pass out.
At her own request, she was transferred to the Women’s Division of the District of Columbia Workhouse at Occoquan, Virginia. But nine days later, she was returned without explanation to the District Jail at the request of authorities. Frustrated amid a seemingly endless wait for the decision of the Appeals Court, Mildred lashed out again. This time, she struck Edna Mae from her visitors list. Colonel Reid wrote a sympathetic note to Mrs. Herrick to inform her of Mildred’s decision and “save [her]… a trip to this city.”484 As the outlook for a favorable decision looked increasingly bleak, she cut her ties with her only living relatives. From late 1949 to the summer of 1950, Edna Mae kept in touch with Colonel Reid regularly. In one letter, she asked the superintendent if she could send shoes or a small chicken to Mildred for Christmas “if it wouldn’t cause too much dissension [sic] among the prisoners.”
On May 19, 1950, almost five months after Laughlin argued the case, the Court of Appeals upheld the jury’s decision and the judge’s conduct. Judge Charles Fahy wrote that the weight of the evidence was sufficient to convict her on the tenth count (participation in Vision of Invasion), even though she was found not guilty on the remaining seven. The three eyewitnesses who witnessed her actions (Ulrich Haupt, Georg Heinrich Schnell and Hans von Richter) were never challenged as to their competence in the original trial, so their testimony could not be disallowed.
The Best Years of Their Lives
In December 1949 at the request of the Office of Alien Property, the FBI dispatched agents to interview former German colleagues and friends of Max Otto Koischwitz. Their task was to determine whether the return of money and property belonging to the Koischwitz family and expropriated by the Federal government after their return to Germany in 1939 could be safely returned to the surviving daughters. Stella, the professor’s eldest, was living in New York City, and the FBI was especially interested in the role she had played as a radio announcer during the war. Following Koischwitz’s death, she worked as an announcer and news reader on Reichsradio to make ends meet, and the young girl’s political leanings had to be determined before the property was returned.
Ironically, the United States was, at the same time, welcoming dyed-in-the-wool Nazis—some with blood on their hands—into the country because they were perceived to be valuable assets in the struggle against Communism. To determine whether the return of the property would harm the national interest, agents interviewed Horst Cleinow (the once-feared radio manager who threatened Mildred after he discovered that she had been broadcasting without a censor), Adelbert Houben, Hans von Richter (her former friend and manager) and, most importantly, Gerd Wagner.
Wagner was the head of the News Division for the USA Zone and a personal friend of Max Otto Koischwitz. Wagner met him on his return from America at the outbreak of war in September 1939. A frequent visitor to the Koischwitz home, the Professor revealed to Wagner a crucial fact about his time in America; one that sheds light on his decision to take US citizenship in 1935:
MR WAGNER stated that he had talked with MAX OTTO KOISCHWITZ in Berlin, the exact date he could not recall, at which time KOISCHWITZ had stated to him that he, KOISCHWITZ, had been requested by the German government to secure his American citizenship for the purpose of carrying on German propaganda in the United States.… He advised that in conferences with MAX KOISCHWITZ, he was very anti-American in his views.485
As early as 1935, Max Otto Koischwitz took his orders from Berlin—and even assumed American citizenship so that his service to the Third Reich would not be interrupted. His yearly trips back to the Fatherland, dissatisfaction with the Hunter faculty’s refusal to grant him a full professorship, and anger at those students who resisted his attempts at Nazi indoctrination make sense in this light. Wagner’s revelation explains why the newly minted American was welcomed back to Germany with open arms and a Foreign Office job in September 1939. Moreover, it reveals a man capable of betraying those closest to him for the sake of the Reich, and shows how and why he pressured, cajoled and manipulated a lonely American to take actions that jeopardized her citizenship, her freedom, even her life.
Other former Reichsradio functionaries interviewed that December were not as forthcoming. Cleinow, von Richter and Houben portrayed Koischwitz as a dissent
er, even anti-Nazi. Horst Cleinow was residing in Emmaus, Pennsylvania—another by-product of the treason trials, in which once-loyal minions of the Hitler regime were rewarded for their assistance to the Justice Department with new “temporary” homes in the United States. Despite his application for party membership in 1937, Cleinow denied ever being a Nazi:
[Cleinow] never received any indication that Koischwitz was a Nazi Party member. He said that the latter’s employment in the Foreign Office did not necessarily mean that he was a Party member, although it was quite possible that his Party membership may have been concealed. He did not believe that this was the case, however, since Koischwitz was one of the few people with whom Cleinow freely discussed and criticized the German political situation. In these discussions, Koischwitz indicated his very sharp criticism concerning matters initiated by the Nazi Party. He said that if Koischwitz was a Nazi Party member, he was not a fanatical one.
Cleinow believed that Koischwitz enjoyed life in the United States much better than in Germany and did not feel at home in Berlin. He said that Koischwitz never expressed any positive or negative political statement toward the United States but that he was generally regarded in Berlin as favoring the mentality of the Anglo-Saxons…. According to Cleinow; Koischwitz was cautioned by the members of the German Foreign Office to remain silent and to retain to himself his pro-American admiration.486
Axis Sally: The American Voice of Nazi Germany Page 25