Hitler’s First Victims: The Quest for Justice

1 Crimes of the Spring Thursday morning of Easter Week 1933, April 13, saw clearing skies that held much promise for the upcoming holiday weekend. Mild temperatures were foreseen for Bavaria as they were throughout southern Germany, with a few rain showers predicted for Friday, but brilliant, sunny skies for the Easter weekend. Previous generations hailed such days as Kaiserwetter, weather fit for a kaiser, a playful gibe at the former monarch’s father, who appeared en plein air only when sufficient sunlight permitted his presence to be recorded by photographers. In the spring of 1933, some now spoke in higher-spirited and more reverential tones of Führerwetter. It was Adolf Hitler’s first spring as chancellor.   Shortly after nine o’clock that morning, Josef Hartinger was in his second-floor office at Prielmayrstrasse 5, just off Karlsplatz in central Munich, when he received a call informing him that four men had been shot in a failed escape attempt from a recently erected detention facility for political prisoners in the moorlands near the town of Dachau. As deputy prosecutor for one of Bavaria’s largest jurisdictions—Munich II—Hartinger was responsible for investigating potential crimes in a sprawling sweep of countryside outside Munich’s urban periphery. “My responsibilities included, along with the district courts in Garmisch and Dachau, all juvenile and major financial criminal matters for the entire jurisdiction, as well as all the so-called political crimes. Thus, for the Dachau camp, I had dual responsibilities,” he later wrote.   Deputy Prosecutor Hartinger was a model Bavarian civil servant. He was conservative in his faith and politics, a devout Roman Catholic and a registered member of the Bavarian People’s Party, the centrist “people’s party” of the Free State of Bavaria, founded by Dr. Heinrich Held, a fellow jurist and a fierce advocate of Bavarian autonomy. In April 1933, Hartinger was thirty-nine years old and belonged to the first generation of state prosecutors trained in the processes and values of a democratic republic. He pursued communists and National Socialists with equal vigor, and since Hitler’s appointment as chancellor had watched the ensuing chaos and abuses with the confidence that such a government could not long endure. The Reich president, Paul von Hindenburg, had dismissed four chancellors in the past ten months: Heinrich Brüning in May, Franz von Papen in November, and Kurt von Schleicher just that past January. There was nothing preventing Hindenburg from doing the same with his latest chancellor Adolf Hitler.   Until then, Hartinger’s daily commerce in crime involved burned barns, a petty larceny, an occasional assault, and, based on the remnant entries in the departmental case register, all too frequent incidents of adult transgressions against minors. Forty-one- year-old Max Lackner, for example, was institutionalized for two years for “sexual abuse of children under fourteen.” Ilya Malic, a salesman from Yugoslavia, was arrested after he “forced a fourteen- year-old to French-kiss.” Hartinger spoke discreetly of “juvenile matters.” Homicides were rare. The only registered murder for those years was a crime of passion committed by forty-seven-year-old Alfons Graf, who put four bullets into the head of his companion, Frau Reitinger, when he discovered her in the back of his company car with another man.   But that year, following Hitler’s January appointment as chancellor and the dramatic arson attack a month later that saw the stately Berlin Reichstag consumed in a nightmare conflagration of crashing glass, twisted steel, and surging flames, the jurisdiction was swept by an unprecedented wave of arrests in the name of national security. In Untergrünberg, the farmer Franz Sales Mendler was arrested for making disparaging remarks about the new government. Maria Strohle, the wife of a power plant owner in Hergensweiler, told a neighbor that she heard Hitler had paid 50,000 reichsmarks to stage the arson attack on the Reichstag; she was sentenced to three months in prison, as was Franz Schliersmaier in Bösenreutin, who put the amount at 500,000. One Bavarian was indicted for comparing Hitler to Stalin, and another for calling him a homosexual, and still another for suggesting he did not “look” German. “Hitler is a foreigner who smuggled himself into the country,” Julie Kolmeder said at a Munich beer garden a few streets from Hartinger’s office. “Just look at his face.” A Munich coachman crossed the law with the indelicate aside, “Hitler kann mich im Arsch lecken.” Euphemistically: Hitler can kiss my ass. More than one person was prosecuted for calling a Nazi a “Bazi.”1 Thousands of others were taken into Schutzhaft, or protective custody, for no apparent reason at all.   The shooting of four men in a failed escape from the Dachau Concentration Camp must have struck Hartinger’s Roman Catholic sensibilities as particularly unfortunate, coming as it did just two days before Good Friday and amid an appeal by the archbishop of Munich and Freising for an Easter amnesty. “In the name of, and on behalf of, the Bavarian bishops, I have the honor, Your Excellency, to extend the following request,” the stately and imperious Cardinal Faulhaber had written Bavaria’s Reich governor on April 3, “that the investigation procedure for those in protective custody be expedited as quickly as possible in order to relieve the detainees and their families from emotional torment.” Faulhaber expressed the desire that the detainees could be home in time for the Easter weekend, reminding the governor that there was no occasion more sacred to Christians than the Eastertide. “If because of time constraints the investigations cannot be completed by Good Fri­ day,” Faulhaber proposed, “then perhaps out of pure Christian and humanitarian grounds, an Easter amnesty can be granted from Good Friday until the end of Easter.” The cardinal reminded the governor that in December 1914 Pope Benedict XV had invoked a Christmas armistice that stilled weapons on both sides of the front. What worked in a time of war must certainly work in peacetime, was the suggestion. Indeed, the previous month Chancellor Hitler himself had stated that his “greatest ambition” was to “bring back to the nation the millions who had been misled, rather than to destroy them.” What better way to instill a sense of national loyalty than through a gesture of Christian clemency on the holiday celebrating the resurrection of Jesus Christ? In this deeply Catholic corner of the country, when the archbishop of Munich and Freising, the oldest and most powerful of the state’s bishoprics, spoke, the vast majority of Bavaria’s four million Catholics listened, and on this occasion so did its political leadership.   A week later, the state interior minister, Gauleiter Adolf Wagner, responded on the Reich governor’s behalf.2 “Most Honorable Herr Cardinal, I have the honor of responding to your letter to the governor of April 3, 1933,” he wrote, “to inform Your Eminence that we are in the process of reviewing the cases of everyone currently in detention, and that by Easter more than a thousand individuals will be released from protective custody.” Wagner conveyed additional good news. The state government would permit Easter Mass to be celebrated among those practicing Roman Catholics who remained in detention as long as it did not constitute “a burden to the state budget.” Wagner recommended that “the responsible religious authorities should be directly in contact with the administration of the individual detention camps, whom I will provide corresponding instructions as to how to deal with this matter.”   But now, amid heartening news of the Easter amnesty, came news of the deaths at Dachau. The call to Hartinger that Thursday morning was conducted in conformity with Paragraph 159 of the Strafprozessordnung, or Criminal Procedure Code, which required police officers “to report immediately to the prosecutor or local magistrate” any case in which “a person has died from causes other than natural ones.” Paragraph 160, in turn, obligated Hartinger to take immediate action: “As soon as the prosecutor is informed of a suspected criminal act, either through a report or by other means, he is to investigate the matter until he has determined whether an indictment is to be issued.” In compliance with his Paragraph 160 responsibilities, Hartinger called Dr. Moritz Flamm, the Munich II medical examiner, who was responsible for conducting postmor­ tem examinations and autopsies in criminal investigations.   Hartinger liked Dr. Flamm. Both men had previously worked in Munich I, Hartinger as an assistant prosecutor and Flamm as a part­time assistant medical examiner. Like Hartinger, he was a man of keen intelligence who had earned perfect grades in school. And like Hartinger, Flamm was a man of sterling professionalism. Flamm autopsies were models of precision and efficiency— not a moment wasted, not a detail overlooked. Often thirty pages in length, they could withstand the most rigorous scrutiny in a court of law. Flamm was particularly proficient in bullet wounds. He had completed his medical training at the Ludwig Maximilian University of Munich in July 1914, just in time to join the 2nd Bavarian Infantry Regiment. He was dispatched to the front in August 1916 with the 3rd Medical Company, where he served meritoriously, earning an Iron Cross, the Bavarian Military Order, and the Friedrich August Cross. “Particularly noteworthy is his absolute reliability and his medical professionalism that make him, without question, suited for any type of service,” the company surgeon had commented after the war. “At the front [Flamm] became virtually indispensable as the situation with medical sup- plies deteriorated,” he wrote, “all the while demonstrating a seemingly inexhaustible dedication to his work.” The surgeon observed that Flamm was notably “modest” and “by nature rather sensitive,” but possessed of intelligence, sound judgment, and humor even “in the most desperate situations.” The surgeon said he had come to know in Flamm a physician “for whom one can only wish full and well-deserved recognition and in good conscience can provide unqualified praise.” Flamm’s handwriting, precise and refined, with playful, elegant flourishes, reflects his calm and easy competence.   Flamm also demonstrated a fierce independence and willing- ness to act on his conscience when circumstances demanded. In the spring of 1919, amid a failed Bolshevik coup that saw thousands taken into protective custody—with and without cause—he exercised his authority as chief physician of a military hospital to order the release of two patients who were being detained on suspicion of collaborating with communists. Flamm was accused of Bolshevik sympathies, but was taken into “personal protection” by his superior, who vouched for him “administratively, professionally, and politically” and insisted that he was a man free of “any personal, moral, or political blemish.” After two years with Flamm in Munich II, Hartinger had come to share the same high regard. In addition, Flamm had a driver’s license and his own motorcar.   1.     The word Bazi can be translated as “swindler” or “scoundrel,” and derives from the Bavarian dialect, as does the word Nazi, a shortening of the word Nationalsozialist, but also an old nickname for Ignatius, a popular Bavarian name commonly associated with a country bumpkin, and applied disparagingly to Hitler followers. A Nazi never called another Nazi a “Nazi.” They referred to each other as National Socialists or “party comrades. 2.      The Gauleiter, or district leader, was the Nazi Party official responsible for local affairs. These Nazi Party districts corresponded to the thirty­three voting districts for the Reichstag elections. In 1941, the number of Gauleiter and corresponding districts was increased to forty­three.