At the very outset he was made assistant to one Grimminger who served as an SD expert. Upon Grimminger's death in July 1941 Graf took over his position. Although Graf was statistically with Einsatzkommando 6 for thirteen months he served also for a short period with the Commander of the Security Police and the SD in Stalino. For five weeks he was detailed to the Liason Office of AOK 17; he was on furlough for five weeks and was ill and on sick leave for about three months. Thus about five months of thirteen months' incumbency with the einsatzkommando were spent away from the unit. During the eight months he actually served with the organization, Graf never once acted as commander of it or any of its sub-divisions.
In September 1942 Graf was assigned the command of a sub-kommando, but he refused to accept the assignment. Because of this refusal he was arrested and placed in custody for disciplinary action. Eventually the disciplinary proceedings were dropped and he was sent back to Germany.
The defendant, like every other defendant in court, is presumed innocent until proven guilty. The Prosecution has introduced reports showing that Einsatzkommando 6 engaged in various executive operations. It is not questioned that the kommando did participate in liquidating operations and, despite the defendant's denial, it is not to be doubted that he knew of at least some of these executions. However, more than mere knowledge of illegality or crime is required in order to establish guilt under Counts I and
II of the Indictment. Furthermore, in view of his various absences from the kommando it can not be assumed that his membership in the organization of itself proves his presence at and knowledge of any particular executive operation, without there being proof of that fact.
In view of Graf's non-commissioned officers' status in an organization where rank was of vital importance, it is not to be assumed that the commander of the organization would take Graf into his confidence in planning an operation. As a non-commissioned officer he would not participate in officers' conferences. Since there is no evidence in the record that Graf was at any time in a position to protest against the illegal actions of others, he cannot be found guilty as an accessory under Counts I and II of the Indictment. Since there is no proof that he personally participated in any of the executions or their planning, he may not be held as a principal.
Insofar as Counts I and II against the defendant are concerned the Tribunal concludes that the evidence does not rise to that degree of proof required by the principles of justice and the concomitant guarantees of correct procedure to warrant a finding of guilt beyond a reasonable doubt, and thus finds him not guilty.
The defendant joined the SS in 1933 and in 1936 was expelled because of lack of attendance and general indifference to the organization. It would appear that at no time was Graf a fanatical adherent of National Socialism. In 1932 he intended to go to South America but was prevented from doing so because of restriction on foreign currency. He tried also to migrate in 1940 but could not do so because of the war. His primary interest was not politics but business. His Work Book, a document required under the Law of February 26, 1835 (published in Reich Law Gazette 311) lists him as an Independent Business man from the period of October 1, 1935 to February 1, 1940 and as a civil servant from March 1, 1940.
In January 1940 he was drafted under the Emergency Service Regulations for service with the Landrat in Kempten and then entered the SD-Aussenstelle in Kempten on a war supplementary basis.
In the same year, 1940, he endeavored to be released from the SD so that he might join the army. He took an interpreter's examination in order to qualify for linguistic services in the army but he did not succeed in his attempt. On April 18, 1941 he wrote a letter, seeking to be released from the SD so that he might be enrolled in the army. A copy of this letter was introduced as a document.
In considering the subject of membership in a criminal organization, as defined by the International Military Tribunal Decision, September 1, 1939 is accepted as a crucial date. On that date Graf was not a member of any criminal organization. When, in 1940, he was drafted by the Emergancy Service Regulations he applied to rejoin the SS. He explained that this application was purely a perfunctory function because he would automatically have fallen into this organization on account of his thenbeing a member of the SD:
"The Personnel Department Chief could see from my documents that I used to be a member of the SS, so he said, 'Of course, in that case you have to rejoin the SS.' Therefore, I made out the application, but, if I had not been deferred to the SD, I would never have rejoined the SS. After all, I had left the SS and also I did not rejoin the General SS, but I was transfewrred to the special formation, the SD. After all, this was on the war emergency status. In my opinion then, it was merely a formal matter to regain my former SS number."
In substantiation of his claim that he rejoined the SS because of the insistency of his departmental chief the defendant pointed out, that although drafted into war service on January 1, 1940 he did not make his application for the SS until July 28. Had he had a sincere desire to rejoin the SS, he would not have waited 7 months to make the application. He, therefore, submits that the filing of the application was a mere form.
The Tribunal finds that the defendant's leaving the SS in 1936 showed a clear intention to disassociate himself from that organization and accepts the defendant's explanation that he would
not have rejoined the SS in July 1940 had he not been drafted by the Emergency Service Regulations and deferred to the SD. The Tribunal therefore finds him not guilty of membership in the SS under the conditions declared criminal by the International Military Tribunal.
With regard to membership in the SD, reference is made to the IMT decision which declares that the Security Police and the SD was a voluntary organization and that membership therein was voluntary. The Tribunal therefore finds the defendant guilty of membership in the SD. It further finds as a mitigating circumstance, however, that his membership in the SD was not without compulsion and constraint. It therefore adjuges that the period of the defendant's imprisonment from the date of his arrest, following the termination of the war, to the present date, shall constitute the sentence of the Tribunal based upon such conviction. In view of the fact that the defendant has thus already served his term of imprisonment under the sentence just imposed, it is now ordered that he be permanently discharged from custody under the Indictment upon adjournment of the Tribunal this day.