AFTERNOON SESSION (The hearing reconvened at 1330 hours, 10 July 1947) HERBERT KLEMM - Resumed DIRECT EXAMINATION - Continued BY DR. SCHILF:
Q Herr Klemm, the problem of the so-called lightening executions, I think, is now being concluded. Now I will ask you to tell me in general what your personal attitude was to the death cases as such. What was the attitude you took when you had to make a decision about such matters?
A I take the view, for State, legal, and religious reasons, that the State has the right and the duty to be permitted to pronounce a death sentence and to execute such sentence. But it is a condition that the offender and the wrongfulness of his offenses must be determined. I am also of the opinion that the standards can vary as concerns the wrongfulness of an offense: War or peace; deterrent, or combating such a state of affairs. Increased protection of the general public or the maintenance of public order and peace can constitute circumstances which at extraordinary times justify the pronouncement of a death sentence or not. Thus I, for myself, affirmed severe jurisdiction in time of war against public enemies and violent criminals, against robbers, plunderers, against criminals who exploited the black-out, against persons who committed high treason or treason. A State which has to order a black-out also has the duty to protect the population against the increased insecurity which arises. The State which cannot defend itself one hundred per cent against an air raid and cannot immediately remove its consequences has the duty to protect the victims of such air raids to the furthest extent against persons who have a wish to exploit such a state of emergency.
I want to brief, but I would like to give expression to one idea in this connection and that concerns the undermining of the morale of the Armed Forces. I would never have allowed myself the inner justifi cation to confirm a death sentence for defeatism or undermining of defense morale so that it could be executed, had I not believed up to the last that the outcome of the war would be bearable for Germany, I lost that belief during that April night in 1945 when the order came from the Reich Chancellery saying that Ministers and Under-Secretaries were to leave Berlin and to go to northern Germany.
Until then, I was dependent on what information the German population in general had about the war situation. As far as negative news was concerned, I only heard what the press, the wireless, or the High Command communiques told us. I, in my position, was not told anything by persons who were of different opinions. Furthermore, there were the rumors which sprang up again and again about new V-weapons, about new U-beats, submarines, there were Hitler's various speeches. I would only remind you of the phrase, "Berlin remains German; Vienna will become German again." I also remember that I think it was in March 1945 -- the Reich Prosecutor Lautz came to see me and with him the President of the People's Court, Haffler, Freisler's successor. Both had been to see Keitel. They told me how confident Keitel had been and that he had assured them they might think as they like but he could tell them that the war from the military point of view would come to a happy end for Germany. All those circumstances made me hold that belief.
Q Herr Klemm, the prosecution has asserted that the clemency practice became more stringent during the time when you were Undersecretary. Would you give us your views on that matter?
A I must answer that question in the negative. When I came to the Reich Ministry of Justice as Under-Secretary, Thierack had been for about 18 months the Minister of Justice. The clemency practice at that time when I arrived had been developed along definite lines. I, myself, could not even take up a more severe attitude, for concerning death sentence matters, only clear cases were submitted to me -- that is to say, cases where the head of the department too took the view that the death sentence would have to be executed and clemency was out of the question.
Concerning my attitude in doubtful cases, I would like to revert to those later. I now just want to make a general statement.
Q In the Affidavit 441, which we have mentioned here several times, the witness Altmeyer mentioned four cases where you, refused a suggestion for clemency which he as tho Referent had made. Would you give us your views on those cases?
A When I look at those four cases which Altmeyer described, I can only say that in accordance with the usual practice concerning clemency please at the Reich Ministry of Justice, those cases must be described as clear.
As concerns Case I, railway employees who had previous convictions had stolen blankets and food tins from a hospital train they had previous convictions. They had exploited extraordinary wartime circumstances. The goods that had been stolen were difficult to replace and they had been stolen from a hospital train according to Altmeyer's description. The use of that hospital train had thereby been endangered.
By way of introduction, I would like to say that I cannot remember one of those four cases, I cannot remember that Altmeyer reported to me about them.
In the second case, looting of a water pump is concerned. In such cases, it was not always the value that mattered, nor did it always matter whether the stolen goods were replaceable in money, for in Germany the situation was such that money was of no use at all because with money one could not buy tho goods that had been stolen. They just didn't exist. Concerning that particular case, I am supposed to have said that, "Plunderers, in principle, should have their death sentences executed immediately." I could not possibly have put forward that theory in an uncompromising way for I could not defend myself or give orders contrary to the opinion which as the Minister's own opinion had been given in the judge's letter, and that was in the judges' letter, Exhibit 96, NG-321, Document Book I-D.
The third case also concerned an impositor who had previous convictions. He had committed series of frauds in a particularly disgusting way -- brutal way. He approached people whose relatives were missing from the front, and proetended that he had met their missing relatives and that he brought good news from them. Thereby he made them give him food, etc. It is that particular brutality which that case so serious. The last case, also, concerned a person who had previous convictions; he had broken out of a prison, and then had committed burglaries and thefts on a number of farms. In such cases particularly the death sentence was executed because it was particularly necessary to provide protection for the inhabitants of the open country. In consequence of the shortage of laborers, the farms were unguarded, or, it was only women who lived there. All those cases and those circumstances speak for the fact that they were clear cases. On no account can Altmeyer have suggested clemency to me, for only clear cases were reported to me. If the mitigating circumstances which Altmeyer described did in fact exist, he should have described them as doubtful, and a report would then have been made to the minister. I assume that all the more because I cannot bring them into any connection with names on any of my lists reported to me, but what may have happened is that these were in fact doubtful cases on which a report had been made to the minister and about which the minister had made a decision, and that one, two, or three days later, such as I described earlier, I merely signed the decision because during the report to the minister the final copy of the refusal of the clemency plea was not available. But if Altmeyer and I emphasize that on purpose, had asked for clemency, I could not have decided upon these cases being doubtful cases.
Q. Altmeyer said quite generally that Thierack only in unusual cases had allowed clemency, and you, witness, always had shared his view. What do you have to say about that?
A. All I have to do is to refer to the list of reports on death sentences which reveal that in almost ten percent of all cases the execution of the death sentence was not ordered. In particular with reference to Altmeyer's statement in his affidavit, I reexamined those lists, and, as far as these copies show it, I ascertained that during those thirteen months covered by those lists, 361 doubtful cases were decided upon; in 191 of those cases, that is to say in the case of 53 per cent, execution was not ordered.
Q. Will you tell us as briefly as possible what was the attitude toward clemency pleas. If it was not death sentences that were concerned, but to use a technical expression -- individual penal matters were concerned.
A. I personally allowed clemency in the case of individual penal matters wherever it could be done in regard of the general problem, and the lists submitted in reports, as far as they concern me, reveal that according to the list on sheet 6, in the English it is sheet 5 and 6, I granted three clemency pleas. The list on sheet 77, in the English text 87 and 88, in one case; according to the list on sheet 91, English text 103, 104, in three cases; and according to the list on sheet 135 , in the English text 154 and 155, in six cases.
Q. Apart from those lists submitted reports from which almost everything can be reconstructed, the Prosecution has only submitted a few files where clemency was granted and where you may have played a part. Those few cases I would like to discuss with you. May I draw the attention of the Tribunal to the fact that I am now dealing with Exhibit 144, NG-363, in Document Book III-C, pages 127 and following in the German text; that concerns the so-called Riedel case. Would you tell us something about that, please.
A. That was a clear case. Riedel, as the opinions of the sentence show, was sentenced on the account of statements he himself made.
Furthermore, the court stated expressly that it was a serious case. Riedel was a communist, who since 1921 had spent more than eighteen years living under assumed names. As early as 1940 he was convicted for statements hostile to the State; there were no reasons to grant clemency which would have justified commuting the sentence.
Q. Now, I would like you to tell us something about the Kaukowitsch case; that is Exhibit 244, NG-459, Document Book III-D; in the German text it is at page 137.
A. I cannot check up on that case because it occurred at a time--- I believe it was February 1945, that is to say at the time which is not covered by these lists. I no longer remember whether it was a decision of my own or a decision of the minister which I signed afterwards. This is in itself a perfectly clear case. The way in which the prosecution read out the case into the transcript does not represent the actual facts. Jaukowitsch had not committed an ordinary theft, but besides he had committed serious thefts in the same cellar. He did not steal because he was in difficulties, but he immediately sold the things he had stolen. And thefts from cellars in particular had been on the increase in Germany on a tremendous scale at that time; they had become an epidemic. That is shown from Exhibit 171, NG-544, Document Book III-A; that is a report on the situation. Thierack reported about the situation in penal justice in Exhibit 172, NG-252, of Document Book III-E. There it is stated that theft from cellars in 1943 had increased by one hundred per cent. This was a very common offense because the most valuable possessions of people were housed in the cellars, and when no air raids were on, nobody was there to guard those cellars. The criminal made a full confession. I know from the insight which I have had into the clemency practice that every other person, in such cases would have been sentenced to death and would have been executed.
Jankowitsch, however, was not executed for the files which I examined revealed that the prison of the court house here in Nurnberg was damaged severely during an air raid, that Jankowitsch was able to escape.
Q: Concerning the Jankowitsch case, a special question arises rand I would like to discuss that question with you now. No defense counsel had been appointed for Jankowitsch. Can you give us the reason for this, briefly, please? That may have played some part in reaching a decision about the clemency plea.
A: The legal situation was this: It was no longer proscribed by law to appoint a defense counsel; that was due to curtailment as a measure of simplification which had become necessary because of the lack of personnel. Beyond that, and that, too, can be seen from the files, Jankowitsch was asked expressly whether he wanted a defense counsel, and Jankowitsch said he would do without one. That question was taken into account when a decision on the clemency plea was made. I cannot remember that the Jankowitsch case was reported to me; therefore, I cannot say anything about that, but considering how the experts and referents, dealt with the case there is no doubt that attention was paid to the fact whether a mistake was committed.
Q: We are now coming to the third case, that is the last case which the Prosecution brings in connection with your person, where you took part in making a decision on the clemency plea, that is the Bonnes case. May it please the Court, this is exhibit 181, NG 155, document book III-G, page 5 in the German text. Would you tell us something about that?
A: The Bonnes case was also concerned with a death sentence for the undermining of the defense moral.
When the first sentence which had been passed in this case was submitted to the Ministry of Justice, it was the original intention to make an extraordinary appeal. I had made a special plea on that vount to the Minister, but it was not done because the defense counsel was trying to have the case resumed. The resumption was vigorously supported by the senior Reich Prosecutor and the Reich Ministry of Justice. No extraordinary appeal was made because the reopening of the case had started. At that stage the only thing that could be done was that concerning Minister Thierack, a very severe letter should direct Senate President Krohne; and in that letter he criticized the quite impossible opinion which were was given for the sentence. When Thierack had written that letter he snowed me a copy and told me he hoped that Preisler took that to heart, whose trivial undignified opinions had attracted attention for sometime past. When the second sentence in the case arrived, and still the result was a death sentence, there was a lengthy and violent discussion in Thierack's office and finally he was prepared to propose to Hitler that the death sentence should be commuted into a penitentiary sentence of eight years; but at that time already the Gauleiter who was locally competent, had to be consulted and his opinion had to be submitted. That letter was answered by Stuerz, the competent Gauleiter, in very sharp terms; he was very much against granting a clemency; he used some arguments which involved considerable charges against the Ministry of Justice. That letter first reached Thierack and Thierack became so much persuaded by that letter that at the bottom of the letter he put down a note by way of instructions to Department IV, "execution". When the letter came to me with that note on it, I went to Thierack and told him that was impossible.
After he had once taken the view that eight years penitentiary were a suitable punishment in that case, he could not now consider the death sentence suitable. Thierack said to me he had thought the matter over, he could see now that his view, that the sentence could be commuted, had been wrong. There was no point in reporting to Hitler on the case; Hitler would share Stuerz's view. He, Thierack, too, could no longer with a clear conscience suggest that the sentence be commuted. It was impossible for me, therefore, to persuade Thierack to adhere to his former view. I initialled that letter from Gauleiter Stuerz, to show that I had seen the letter, and in the same way I initialled on the margin -- Thierack's instruction "execution", signed by him, -- that again means nothing else but that I had taken note of it. I did not have to decide on it and I did have to take note, and I had to give evidence that I had taken note. If I had not done so, the department would have returned the letter to me to take note of the Minister's instructions.
Q: You mentioned that Thierack, in such a case, could bring about Hitler's view. The Prosecution has submitted documents and I would like you to give us your views on those documents. Your Honor, we are concerned with exhibit 282, NG 319, document book VII-A; exhibit 358, NG 137, document book V-B; and exhibit 45, that is NG 304, document Book V, supplement. Please give us your views in brief?
A: Paragraph 453 of the code of penal procedure lays down the following: Death sentences do not require confirmation, but they may only be executed when the authority which is competent to deal with the clemency plea has decided that it does not wish to make use of its right to grant clemency.
The next paragraph is of no interest in this connection. Under the law the right to grant clemency was Hitler's, as the head of the State. During the war he had delegated it to the Reich Minister of Justice, in so far as the Minister of Justice, Thierack, could execute sentences, that is to say, could reject clemency pleas; but if it was a question of commuting the death sentence, that is to say, if clemency was to be granted, then Hitler reserved for himself the final decision.
That state of affairs lasted until November 1944. A practical execution was this: Every month lists summarizing those clemency pleas - and those lists via the president's chancellery, the head of which was State Minister Meissner - were sent on to Hitler. Only when Hitler had given his consent the persons to whom clemency had been granted were told that the death sentence had been commuted. Previously that was not possible. As is shown by Exhibit 282 it was found that that procedure was not much good. It was a hardship for those who had applied for clemency - for they were left in uncertainty for some time as to whether or not they were to be executed. And also from the point of view of office management it made things difficult, for it was found that of the total of 290 clemency pleas - pleas to have the death sentence commuted to a prison sentence - Hitler had failed to approve only one. In 289 out of 290 cases he had approved that clemency should be granted. That is clearly shown from the letter of Thierack to Meissner, which is contained in Exhibit 282....
JUDGE BRAND: Pardon me... I think I didn't understand your statement with reference to the number of cases submitted to Hitler. Would you restate that? I want to understand it.
A. The letter says that during the last few months, or during the last year, 290 cases had been reported where the death sentence was to be commuted to a prison sentence. Of those pleas Hitler had approved all, with one single exception.
JUDGE BRAND: Those were cases in which clemency was recommended to Hitler, is that right?
A. Yes, Your Honor. That concerns suggestions by the Minister to grant clemency in the cases concerned. In introducing this Exhibit the prosecution made a mistake insofar as it has been stated that all pleas for clemency had been refused with one exception. In fact, it was the contrary. All pleas were granted with the exception of one single case, which was refused. Meissner replied to Thierack in answer to this letter that those lists concerning clemency pleas were no longer wanted and in effect that meant that from now on the Minister of Justice himself was able to grant clemency.
That is to say, the commuting of a death sentence to imprisonment had been delegated, from Hitler to Thierack. That was in November 1944. But the Gauleiter as hitherto had to play their part, in particular in cases which had attracted public attention.
And then there was another group of cases, as can be seen from the letter by Meissner. Closely connected with this Exhibit 262 there are Exhibits 455, NG--
DR. SCHILF: I have quoted it already. NG-304.
A. And Exhibit 358.
DR. SCHILF: That, too, I have already quoted. NG-137.
A. In the incorporated Eastern territories the decision about the execution of death sentences did not lie with the Minister of Justice but with the Reichsstatthalter and Oberpresident - senior president. Those, too, had to compile lists and send them to the Ministry of Justice. When Meissner said that those lists were no longer required it became unnecessary for the Reichsstatthalter and Oberpresident in the incorporated Eastern territories to send those lists to us. Therefore, for reasons of simplifying matters in war time conditions they were done away with. There only remained the individual reports. That circular decree which ordered this simplification I have seen, but I have not seen the list.
DR. SCHILF: I would ask you in this connection to tell us briefly to what extent in practice the Gauleiters influenced Thierack's practice in granting clemency. I only want to know what effect that had in practice.... now that we have already discussed the position of the Gauleiters.
A. The prospect of getting Hitler to grant clemency existed only if a Gauleiter gave us approval to have a sentence commuted, but from my recollection I can say that it was not such an infrequent thing for a Gauleiter to give his consent. There were a few cases where, in spite of the fact that the Gauleiter had refused, we managed to get Hitler to grant clemency, but, in general, this is the way it was:
If a Gauleiter made a decision against a measure of clemency which the Ministry had planned, Hitler only rarely did give his consent to grant clemency. If Thierack all the same, on his own initiative, had granted clemency, the Gauleiter certainly would have approached Hitler directly. Probably by Bormann. In that case the result would have been obvious.
JUDGE BRAND: Did the witness say he would have approached Himmler, or Hitler?
A. Hitler - as the head of State, Your Honor.
JUDGE BRAND: I think the translation misunderstood you.
A. Thus, to a certain extent the clemency practice had developed by necessity to deviate from which, in general, was of no use. One had to concentrate more energy on those cases which, for objective or subjective reasons, justified taking particular interest in them.
DR. SCHILF: We now conclude this matter - for more individual cases or documents referring to the clemency practice have not been submitted by the prosecution. Now I would like you to give us your view in brief about Exhibit 496, with which the prosecution has connected you. Exhibit 496 is the so-called "Death List" of sentences passed by the Special Court of Nurnberg. The Exhibit is called the "Death Sentences passed by Oeschey." This is NG-1081, III-B Supplement.
A. I have looked at that list and I have also looked at Exhibit 238, NG--409, and Exhibit 253; NG--398. Those are the lists of death sentences passed by the Special Court of Nurnberg, and death sentences executed at Stuttgart.
The two exhibits I mentioned last are contained in volume 3-L. Neither from those lists nor from affidavits which have been submitted in respect to the Nurnberg or Stuttgart judges, have I been able to find any case where I decided about granting clemency.
Q. I am now referring to the Altmeyer affidavit, Exhibit 441. He said only that in principle you had followed the same line as Thierack. I would like to ask you in what way did you report as to what happened when you were there and did you during those reports have a chance to exert any influence on Thierack?
A. In general I can only say that the reports to Thierack about death sentences did not have the character of a consultation. Thierack did not want to take advice. He merely wanted to know about the facts of the case and then he decided himself. The decision was made immediately. That was true particularly in the case of the clear death sentences. Thierack had before him the document which had been drafted in the clear cases, saying that clemency would not be granted. The facts were layed out and as soon as that had been done Thierack in such clear cases signed the document. There was no possibility for intervention. If one did occasionally draw attention to a particular point as a rule Thierack very tactlessly and with much energy rejected such intervention. It was different when the cases were doubtful. In those cases the referent or the expert gave a detailed account of the facts of the case and that referent or expert gave his own views. He gave a reason for the position he took and he also gave supplementary explanations. As to whether Thierack consulted other persons or not that varied. That was left to him entirely whether ho would do so or not. Sometimes he asked one of the other persons what do you think about this, but as a rule he came to a decision immediately, execution or commuting the sentence to the penitentiary term of eight of ton years of whatever may have been suitable.
Q. Would you be a little more brief here. All we want to know is to what extent you could have exercised influence and what part you yourself played?
THE PRESIDENT: I think the witness just answered that question. I suggest that you proceed to another question. We have had his answer.
BY DR. SCHILF:
Q. Witness, your position as under--secretary would have lead one to believe that you, concerning the procedure which you have just described, had a certain advantage of stating your views, Was that so?
A. I couldn't do so. I use to sit on the same side as the referent, the head of the department or the collaborator. Sometimes my opinion was asked just as the others may have been asked and my opinion was taken into account in the same way, or rather it was usually not taken into account as the opinion of any collaborator or referent.
Q. There is one more individual case here where according to my information, you are said to have worked particularly hard for clemency. That is the Dreiling case. Would you tell the Tribunal about that in a few brief words?
A. I can actually remember two cases where I did succeed in persuading Thierack to grant clemency. The cases can be seen in Exhibit 352, page 18, in the English text pages 20-21, and pages 89 and 90, in the English, pages 102 and 103. I beg your pardon, the first was page 19, not page 18, page 19, it was page 19, that in the English text is page 22. It concerns the von Goddin case. In that case the Minister had already ordered that the death sentence was to be carried out. I had the files returned to me by the referent and then after the department in general had reported I had a private talk with the referent and after lengthy discussions the minister allowed himself to be persuaded and did commute the sentence. I remember the Dreiling case even more clearly. It concerned an elderly woman who had made defeatist remarks
THE PRESIDENT: Mr. Klemm, may I ask you a question which might perhaps shorten this.
In the case of the elderly woman did you also intervene successfully with the minister and secure a commutation of the death sentence?
WITNESS: Yes, I achieved the commutation. The question was remarkable in so far as the gauleiter was concerned, he had with a great deal of determination rejected the idea of a clemency plea.
BY DR. SCHILF:
Q. We will now go on to other documents which the Prosecution has submitted against you. That is exhibit 281, that is NG-301, and 279, that is NG 302. The execution of death sentences was to be accelerated. According to the documents which we have mentioned here we are concerned with events, some of which occurred in 1943 and some of which occurred in 1944. That is the time during which you were under-secretary. Please tell us something about these two documents?
A. Exhibit 281 deals with two events, one of which happened a year before the other. The-one deals with Meissner, the head of the Chancellory, a letter from him to Thierack dated the 3 of September, 1943. In that letter Meissner at the request of the Fuehrer complains that no decision had been made about the carrying out of the death sentences within a space of five to twelve months. That letter was not replied to. There is a note on it: "No answer - out of date." The explanation for that is to be seen in Exhibit 279, that is correspondence between Lammers and Thierack on the same subject, because the necessary measures had in the meantime been taken it became unnecessary to reply to Meissner. Quite independent from that matter, the second part of the document deals With the fact that Department 4 on 1 September 1944, that is to say, almost exactly a year to the day later, established the fact that many death sentences had not been reported on and so no disposition had been made as to whether clemency was to be granted or not. That was reported to the minister and the minister then ordered a letter to be written which we have seen in the document, the letter to the President and the General Reich Prosecutor of the Peoples Court.
I only took note of the draft of that letter.
Q. Furthermore, the Prosecution has submitted against you Exhibit 299, , No 303, document book VII-B. These exhibits are concerned with the question as to whether or when relatives of persons who had been executed had been informed about the execution, were you in the same department for that? Please tell us something about that?
A. It is particularly the second paragraph which caused the prosecution to submit that document, according to which relatives of non-German nationals were not informed when on execution had been carried out. That is evident too from the lists on reports. I approved the draft of that circular decree, but the report was made for an entirely different reason. Up to that time the prison was to inform the relatives--that is to say, the prison where the condemned person had been executed. It was found, however, that in most cases the prisons did not inform the relatives. In 1943 the Ministry of Justice gave information by writing to the relatives, which was unskillful. That is shown by Exhibit 298. Department IV itself wanted the matter to be put in order, and that was the true reason for that circular decree, that is to say, the relatives were to be informed by the prosecution. I noted down that actual reason in these report lists as a clue. What I put down was: "In future the prosecution will deal with informing relatives."
The fact that foreigners were excepted from that ruling was due to purely technical and mail reasons. In most cases the nearest relatives were not known, or their residences were not known, or it was not possible to reach them through the mails. That was in the middle of 1944, when that applied particularly in the West. That was quite apart from the linguistic difficulties if one would have sent out such a letter in German. It was not really a great disadvantage because it was open to the defense counsel to produce that information; it was much easier for him to get into contact with the relatives than it was for the legal authorities.
May I refer to the witness Gruenwald who, here in the witness stand, said that in 95 percent of all these cases he himself sent the information to the relatives.
Q. The Indictment contains a special point concerning you;
that is the assertion that you had exercised influence on the jurisdiction of the People's Court. It asserts that you had participated in the jurisdiction of the People's Court. Did you have any influence on the People's Court?
A. We. For example. I met Freisler only one time--I mean, over matters concerning the People's Court. Freisler came to my office once-
THE PRESIDENT: The witness has said "no" categorically, that he had no influence. I don't think that he can expand on that very far.
BY DR. SCHILF:
Q. The Tribunal does not want you to go into so much detail if you can give a clear answer in a few words.
A. What we discussed was merely evacuation of the People's Court for reasons of air raid danger. That actually happened on the day on which Freisler was killed during an air raid.
Q. Herr Klemm, you know that the prosecution has charged you personally with having directed the jurisdiction of the People's Court. We will revert later to two documents which are known in this trial as direction letters. I would ask you now whether you exercised an guidance, in writing or otherwise, on the People's Court or, concerning extraordinary objection, whether you introduced that or asked for it also for the purpose of giving direction.
A. Thierack, who came from the People's Court, regarded the People's Court as his own sphere when it came to ministerial decisions. The jurisdiction of the People's Court was already established along firm lines when I arrived. Everything that belonged to that sphere had been settled before my time, before I ever joined the Ministry of Justice. The department dealing with the undermining of defense morale had been established in 1943; the jurisdiction concerning malicious acts law cases and the undermining of defense moral had had established policies given to it before I arrived on account of the war-time exigencies.
The lists of sentences show that the Special Referat, Franke, had been established in January 1944. Franke never informed me about matters; he had many immediate negotiations with the Minister, and only occasionally, afterwards, did he inform me about the results. Freisler too in no way allowed interference with his jurisdiction. He made it more severe against the will of the Ministry. Furthermore, all attempts to make Freisler give up his incredible way of conducting procedures were absolutely hopeless. In the year 1944, at the decision of the Minister, several extraordinary objections were made, but nearly always, as far as the People's Court was concerned, those extraordinary objections against death sentences passed by Freisler.
Q. I would like to put something to you in this connection, and what I wish to put to you is Exhibit 174. That is an affidavit by the defendant Barnickel states that the Reich Ministry of Justice frequently shared the view of the Oberreichsanwalt and that therefore the Reich Ministry of Justice did exert influence on the jurisdiction of the People's Court through that channel.
A. In a few rare cases the Oberreichsanwalt was immediately instructed to make an extraordinary objection, but hardly ever when a short prison sentence was to be changed to a longer prison sentence. Such cases were submitted to the Oberreichsanwalt for examination and for his opinion. He was asked whether it was desirable to make extraordinary objections. So far as I know, what actually happened was that in such cases where it could only be expected that the prison sentence would go up, the Oberreichsanwalt used to advise against making an extraordinary objection, and the Ministry of Justice, with the exception of a few very rare cases, if ever at all, did not condone those proposals.