Q In that case I have to ask you to report something about that to us because at the outset you said that the picture which you formed was composed from legal literature and what colleagues told you.
A Essentially , yes.
Q That seems to me not to be in agreement if you're talking about your own office.
Q It was as follows: I found out sporadically about sentences of the People's court and I saw that the People's Court during its first years when I found out about these sentences, that is during the first years of the war, that the People's Court pronounced considerably more lenient sentences than was the case later on, and likewise the penalties given at other courts were increased also. These are examples, therefore, which I saw in addition to the sources in the literature and other sources of information from colleagues, and through these I formed a picture which I put down in the affidavit.
Q Then I have to read a portion to you, literally, and have to ask you whether you still now would draw such a far-reaching conclusion, after you had to limit your personal experiences in this question considerably. I am reading on page 4 of the German text, about the eighth line from the bottom; the sentence beginning with the words "Nach Feingang." Page 84 in the German text, I quote: "After having received instructions from the Ministry, the Prosecutor informed the judge of it; after conclusion of the proceedings, the prosecutor composed a further report to the Reich Ministry of Justice which included the copy of the verdict and the basis for the opinion." Now comes the decisive sentence: "The judge had to reckon with remittance of such a report, and, therefore, would hardly have left such directives unconsidered." If I understand your affidavit correctly, that is supposed to mean that through the remittance of the sentence to the Reich Ministry of Justice could, pursue him in some way or another in a disciplinary manner.
A Yes, after the speech which Hitler gave in April, 1942, before the Reichstag, the decision of the government had been stated; that they wanted to take steps against any judge who was outside the desired policy.
Q In what manner was it to proceed against him?
A I do not remember the exact wording of the speech any more, but the meaning was obviously that the judge would have to count on dismissal, or disciplinary measures.
Q Disciplinary measures would that mean criminal proceeding too?
A I cannot say that any more because I no longer remember the wording of the speech any more so well.
Q When you made your affidavit on the 25th of October, 1946, did you still remember the wording of this speech, or, as you say here of the decision of the Reichstag; did you still have it in your memory then?
AAlso not any better than today.
Q In your affidavit, however, it says, and I quote: Page 5 of the German text, the third line; I only quote half a sentence; "Every judge who was politically unreliable to remove from office and to have him prosecuted by law." Do you want to maintain that today?
A I said already I cannot remember the exact wording of that speech any more. I don't know any more whether prosecution under law was talked about expressly.
Q You said already before that you were in the same situation on the 25th October, 1946, as you are today.
A Yes. In the conference with the interrogator at the time, I was under the impression that prosecution under the law was planned.
Q But at that time already you had doubts, or did you not have any doubt at that time?
A I did not have them at that time.
Q A final question. You also were discussing the so-called Guidance Discussions. In your affidavit you made a statement about them. You were associate judge of the Special Court, Nurnberg.
A Yes.
Q Thus, you could get a personal experience about it; is that correct, or not.
A No, I did not participate in any guidance discussions.
Q You were an associate judge in the Special Court?
A Yes.
Q Would, you please have the kindness to state the time approximately?
A Yes, it was from November, 1944 until April, 1945.
Q And during these four or five months there were no guidance discussions?
A Yes, there were some, but I was never present.
Q Several witnesses who have appeared here have said that the judges of the Special Court, of Nurnberg, also told their opinions to the Prosecutor. Can you confirm that from your experiences?
A No. In the cases where I was present, I could not state my opinion to the prosecutor.
Q We understand correctly. I am talking about the fact that the judge talked to the prosecutor.
A Yes.
Q Now, did you gather the opposite experience at the Special Court in Nurnberg that, namely, that the Prosecutor guided the judge?
A Yes, it was as follows: That the Presiding Judge was informed by the Prosecutor who was working in the session what intentions the prosecutor had of making; what intentions he had to make in his plea. That of course, was kind of guidance.
Q And from that you conclude in your affidavit that in this way, I quote: It was a peculiar forcing violation -
A Yes, in other words, it was a limitation of his independence.
Q We are clear that a limitation of his independence literally, and in the language terms something different than seduction -- than violence .
A Yes, the independence of the judge should, not be touched. If it is limited, then I consider that a use of violence.
DR. SCHILF: I have no further questions.
EXAMINATION BY DR. SCHWARZ: (Attorney for Defendant Petersen)
Q I only have questions on two points. Witness, in your affidavit you described your tasks as an investigating judge as consisting of finding out the facts in a case and to bring up, and to gather evidence against the accused. I now would like to ask you how, in what light did you see your activities in relationship to the investigations of the Gestapo?
AAs judge, one made the gathered experience that the police transcripts and records hate very different values, and it was in all cases necessary to examine these records as to their correctness.
Therefore, with the aid of available means, especially the interrogation of the defendant, and also frequently the interrogation of witnesses, I attempted to gain a picture in the interrogations as to how the matter had actually happened. The depositions, the records of the police, was for me in so doing only a sum of suggestions.
Q Witness, frequently it happened that during the trial the defendants denied confessions that they had made before the Gestapo during the trial.
A During the trial--
Q I am not quite finished. Was it not above all the task of the investigating judge to prevent this?
A Yes, this task was, of course, part of the finding out of objective facts in the case.
Q The investigating judge, or rather the institution of the investigating judge, was thus in a certain sense a control institution against the Gestapo.
A That is how I considered it; how I saw it.
Q Now, to another point. In your affidavit you mentioned the expression Thierack's blood thirsty People's Court Judges. Did you mean that in a general way, or were you thinking of a special group?
A I meant it generally speaking.
Q Which judges were you thinking of in particular?
A In so saying I meant to say that the jurisdiction of the People's Court seemed to me to be too severe; that was the content of this statement.
Q You were not referring to any special, definite judges?
A No.
Q Or did you mean to say that the lay judges at the Special Court were especially blood-thirsty?
A The role of the lay judges at the People's Court was, of course, for me not absolutely clear, but one thing was clear to me, that these lay judges who were high dignataries, partly of the party, partly of other state organizations, in political cases did not have the unprejudiced judgment as some one who was politically not some how connected with the existence of the Hitler state.
Q But you do not have any definite reasons for this?
A No.
DR. SCHWARZ: I have no further questions.
DR. DOETZER (For the defendant Nebelung): I ask permission to ask just a few questions.
BY DR. DOETZER:
Q. Witness, you know the defendant Nebelung whom I am representing?
A. No, I do not know him.
Q. Do you know any of the judges of the People's Court either, a professional judge or a lay judge?
A. I knew People's Court councilor Laemmle. I always met some associate judges and there is an associate judge of a professional nature and lay judges, but I did not have any closer contact with any of them.
Q. In how many sessions of the People's Court were you present?
A. I was present in a few sessions as a listener, and I believe twice I had been appointed by the prosecution as prosecutor in the sessions.
Q. During these sessions were the facts determined carefully?
A. In these sessions I could not notice that any essential important points were not discussed, in so far as the listener could judge it.
Q. Was the defense limited in its rights?
A. The pleas were usually somewhat short and without force in the cases in which I was present, but I cannot remember a case in which there was a limitation contrary to law.
Q. In your affidavit, at the end, you said that by the one-sided appointment to the Senates there was a predominate number of political dignitaries and, therefore, an objective decision of the case was made impossible from the very start.
A. Yes, that is the statement.
Q. I have not put a question to you yet, have I? How many jurists - judges - were on the Senat?
A. Three.
Q. If the question of guilt was divided, could these lay judges outvote these professional judges?
A. They could not outvote then because two-thirds majority was required.
DR. DOETZER: Thank you very much.
BY JUDGE BRAND:
Q. Mr. Witness, I should like to ask you a few questions which I think will not take more than two minutes.
Mr. Witness, from you affidavit, in connection with your interrogations to which you referred, you said this and I quote: "Many cases concerned mostly attempts to shirk compulsory labor and to escape to a foreign country." Do you remember that statement?
A. Yes, I remember it.
Q. I am interested to know what kind of compulsion you refer to in saying that it was -- cases of compulsory labor or who tried to escape, do you mean compulsion by law or in what manner do you mean the compulsion existed?
A. I mean the commitment through the Labor Office and other offices who were competent to form the commitments of labor.
Q. Laborers who were committed to specific jobs, you mean, and were required to remain on then?
A. Yes, they were duties for work which were compelled by the Labor Office.
Q. Thank you. Still referring again to your cases which you had made interrogations relative to, do you recall any cases of German citizens who attempted to shirk compulsory labor and tried to escape to a foreign country?
A. No, that did not fall within my sphere of work.
Q. Then, when you were referring to people who sought to escape from compulsory labor under the Labor Office, you were referring, I assume, to non-Germans?
A. Yes, it refers to those cases which during my interrogation Mr. Einstein had in front of him. Mr. Einstein had, if I may explain this remark, a number of files with him, and he asked me in regard to these files, and that is what my statements refer to.
Q. But your cases, if I understand you rightly, which involved attempts to shirk compulsory labor and to escape to a foreign country did not involve as defendants, German citizens and nationals, but some other people. Is that right?
A. No, they refer to foreigners.
JUDGE BRAND: That is all, thank you.
BY THE PRESIDENT:
Q. Witness, I would like to ask you one or two questions.
In your affidavit you refer to a regulation of the Reichstag of April 1942, which enabled Hitler to remove any politically unreliable judge from office and to have him prosecuted by law. Within your experience or within your observation or within your knowledge, do you know of any judge who was prosecuted after being dismissed from office for political unreliability?
A. I cannot remember any such case.
Q. Now, from your knowledge of German criminal law, what statute could be referred to as a basis for the prosecution of a judge after he was dismissed from office on account of political unreliability? Is there any statute under which you could claim an indictment against a judge on that ground?
A. Well, perhaps one could bring the indictment in connection with political regulations, penal regulations, but at the moment I am not informed as to how the legal structure could have been.
Q. You say there might be some penal regulations. Do you know of any penal regulation that would have any bearing upon such a case as that, meaning a case of a judge being dismissed from office on account of political unreliability?
A. No, that is not how it is. I mean the following: Perhaps in connection with a penal regulation which did not refer specifically to judges, the possibility could perhaps exist to construct an indictment but at the moment I cannot imagine how this reconstruction - how this would have been done.
Q. My point, particularly, is that political unreliability is a basis for a criminal prosecution. Is there any such thing?
A. Yes, a law on the basis of which a judge, according to the working of the law, could have been prosecuted because of political unreliability. Such a law, of course, did not exist.
THE PRESIDENT: Has the prosecution any re-direct examination? I beg your pardon.
DR. SCHUBERT (For defendant Oeschey): May it please the Court, I have no question to address to the witness, but it merely was pointed out to me that during my examination of the witness a mistake in the translation apparently took place, which seems to me to be important, so important that I want to clarify it immediately and in the presence of the witness. The witness said on the occasion of the case Jankovic, that is, of the Yugoslavian waiter who was sentenced to death without benefit of defense counsel, the witness said that the not-appointing of a defense counsel was a blemish (Schoenheitsfehler). As one of my colleagues told me, this word "Schoenheitsfehler" was translated merely with "mistake". The word "Schoenheitsfehler" means not a mistake in I the matter or in the form, but merely in the outside appearance. merely wanted to clarify this. It's a blemish.
THE PRESIDENT: I suppose there is no objection to the record showing Dr. Schubert's contention.
I am wondering at this time if we can get some idea as to who will be available in the morning so we can be looking up the documents.
MR. WOOLEYHAN: Your Honor, the Marshal gave me a list before we convened this afternoon and I will read it, and if the defense has any additions or subtractions, they can make them. The following affiants will be called: Baur, Kunz, Mayer, Escher, and Schroeder.
THE PRESIDENT: At this time the witness may be excused and we will now recess until tomorrow morning at 9:30.
(The witness was excused and withdrew from the courtroom.)
(The Tribunal then adjourned until 0930 hours, 23 May 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., defendants, sitting at Nurnberg, Germany, on 23 May, 1947, 0930-1630, Justice Marshall presiding
THE MARSHALL: Tho Honorable the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the court room with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: Defendant Engert has been excused temporarily at his own request, and proper notation will be made.
DR. KOWSSL: (Counsel for Defendant Rothaug): May it please the Court, I have been informed that the first witness who will be summoned is the witness Mr. Karl Mayer. This witness has given an affidavit which is in document book 3-1, Document NG 469, Exhibit No.231.
DR. KARL MAYER, a witness, took the stand and testified as follows:
JUDGE BRAND: Will you raise your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak tho pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DR. KOESSL: May I begin my cross examination?
EXAMINATION BY DR. KOESSL:
Q. Please state your full name and your profession.
A Dr. Karl Mayer, Lawyer.
Q. Witness, in your affidavit you are speaking of the con duct of a trial by Roghaug.
A. I did not understand the question, counsel.
Q. Witness, in your affidavit you are speaking about the conduct of a trial by Rothaug. Would you please tell the Tribunal what you think of the conduct of a trial by Rothaug? What is your opinion of it?
A. Landgericht director Rothaug, District Court Director Rothaug was a judge who applied the National Socialist laws in the National Socialist manner. I got to know his manner of conducting a trial during numerous cases where I was defense counsel before the Special Court in Nurenberg, and I personally, during the first time about 1934 or 1935 once had a very serious clash with him when I got my point of view through. During the succeeding years I had the impression that he treated me with a certain amount of respect and that it was possible for me to conduct the defense in such a way as under the special political circumstances of the Reich during the Third Reich it was possible at all to conduct it. That is, it was limited in any case. That District Court Director Rothaug during that conduct of trials actually acted contrary to the law, I could not find. But I believe that the decisions which he made were according to the National Socialist laws as they happened to be and could be justified as such. That is what I want to say about the decisions. In regard to the conduct of the trial itself, it is my opinion that as far as the defendant and the defense counsel are concerned, he should have left more leeway for them and that frequently he was too strict in the conduct of a trial, but I do not want to say that he actually violated the code of procedure as it was at the time. And in order to give an opinion on the whole, if I are permitted to do so, I would like to say that in my opinion the special hatred which District Court Director Rothaug caused among the German people and here in Nurenburg in particular, was based less perhaps on the fact that he applied the Nazi laws in tho Nazi manner or Nazi sense, but that it was based rather upon the form in which he treated the defendants and sometimes also the defense counsel.
Q. Witness-
A. For other judges, too pronounced similar sentences in similar cases and one could not find out that these other judges were hated equally as much as District Court Director Rothaug.
THE PRESIDENT: Dr. Koessl, I don't want to be critical of your examination, of course, but it would be desirable if you would direct those questions more specifically than to just ask the general question which would call for a lenghty answer, if you can.
DR. KOESSL: Yes.
BY DR. KOESSL:
Q. Witness, did Rothaug cut off an explanation that you wanted to offer which was obviously legal, and did he do so unjustly, over?
A. I believe that he tried to do so once, in the case which I mentioned already before at the beginning of the Third Reich. During later years I cannot remember such a case any more and I don't believe that it happened, either.
Q. Did Rothaug let the defendants make necessary statements?
A. I cannot remember such a case.
Q. You mean a case in which he limited the defendants' statements?
A. A case in which such a thing happened within the meaning of a behavior contrary to the legal code of procedure I don't know. I am only saying that speaking from a purely human point of view he should perhaps have given the defendant more leeway to make his statements.
Q. Did you have occasion to reopen a case?
A. In no case.
Q. Did you observe that Roghaug distorted the facts and stated them incorrectly?
A. That I did not observe either.
Q. Did Rothaug, because of your political opinion, make it difficult for you to perform your duty?
A. I believe that Rothaug knew that I was of a different political opinion and conviction than he and National Socialism altogether. People know me, after all, in this building. But I have to say that personally he never put difficulties in my way. I believe in one case he even wanted to help me once when he was of the erroneous opinion that I myself was in danger of being politically persecuted.
Q. Did you set to know a case in which Rothaug brought about political disadvantages for others because of their political opinions?
A I don't know anything about that.
q Did you find that Dr. Rothaug just respected you because of your behavior?
A I have already stated that I made my point with him, and I believe that in individual cases I was also successful with my defense when he was presiding judge. I remember especially the case of the Protestant pastor Nothnagel in Nurnberg who because of his defeatist statements during the war was indicted here and I defended him and I succeeded after a very difficult trial of three days. I succeeded in having this Protestant Minister Nothnagel acquitted by the Special Court under Rothaug.
THE PRESIDENT: Witness, speak a little more slowly. It's hard for the translator to keep up with you. Just a little more slowly, if you can.
THE WITNESS: Yes, Your Honor.
EXAMINATION BY DR. KOESSL:
Q How did Rothaug treat you, witness, when as defense counsel you went to his office for official reasons outside of the session?
A I can only say that when I personally came to his office, he could be surprisingly friendly and conciliatory, quite contrary to the manner in which he behaved during the court sessions.
Q Thank you very much. I have no further questions.
DR. SCHUBERT: Schubert for the defendant Oeschey. May I continue the cross examination, Your Honor?
CROSS EXAMINATION BY DR. SCHUBERT:
Q Witness, you mention in your affidavit two cases in which you were defense counsel before the defendant Oeschey. One of these two cases is the case of Praun, a man who was tried because of his remarks which he made against the Third Reich, and whose case later went to the People's Court because it was regarded as undermining of military morale.
Witness, do you still remember what remarks Herr Von Praun made?
A I still remember the following remark by Herr von Praun. The first one I remember with certainty; the rest of the remarks I have to reserve to say that I may be in error. Herr von Praun lived in Ansbach near Nurnberg, and during a very heavy air attack on the city of Nurnberg in August 1943, he, together with other persons, were in the air raid shelter of his house. Herr von Praun is from a very prominent Nurnberg patrician family who still owned houses in Nurnberg which were very old and valuable, and he was particularly affected by the sight of burning Nurnberg. And now in sight of this burning city of Nurnberg he said, "Herr Goering too can no longer help us. Only God can help now." That was his first remark. Then he was reproached with having said "The so-called new weapons which were being discussed all the time in Germany were merely propaganda." Finally, he mentioned that between Hitler on the one hand, and I believe Goering on the other hand, very great difference of opinion existed. I believe that I am not mistaken in regard to the last two remarks either, but in view of the great number of cases which I had to defend it is not quite impossible that I am a little bit mixed up with another case, but I don't believe so.
Q Dr. Mayer, did I understand you correctly that you said that the airraid was directed not at Ansbach where Herr von Praun was, but was made on Nurnberg?
A The air attack was concentrated on Nurnberg, and as far as I know, not a single bomb fell in Ansbach.
Q Dr. Mayer, was Herr von Praun at the time known as an enemy of the then government?
A I believe that I can answer that question with "Yes." I can briefly state the reasons for my answer. Herr von Praun was a man who never in his life said, "Heil Hitler." Therefore, when he had even been summoned to the Regierungs President in order to justify this, and when this man because of the remarks for which he was charged was summoned to the Gestapo, he entered the office of the Gestapo with the words, "Von Praun reporting as ordered". The Gestapo officials were of course surprised about this, and at the conclusion of the interrogation, when Herr von Praun was again discharged, they greeted him with "Heil Hitler, Herr von Praun."
Herr von Praun replied, "May God keep you." Thus from this story, which I heard from him, I believe that I am justified in saying that this man really not one single time said "Heil Hitler," and that he was known for this.
Q Witness, were these remarks made in the air raid shelter?
A Partly in the air raid shelter and partly outside.
Q Herr von Praun, after the case had been referred to the People's Court, then in the prison committed suicide, is that correct?
A I know that Herr von Praun, after the case had been turned over to the People's Court, met his death in prison. I was told that he hanged himself; I believe, on the end of his bed.
Q After the trial, did you speak to Herr von Praun again?
A In this trial in which District Court Director Oeschey was presiding judge, there were some very unpleasant incidents.
Q Witness, excuse me if I interrupt you. I did not ask you about the trial, but I asked you whether after the trial, that is, after this decision had been made, this referral to the other court, did you again speak to Herr von Praun?
A Yes, I just wanted to start to tell you about this. Herr von Praun , when this decision had been announced that the case would be referred to the People's Court, was under the impression that his case had taken a turn for the worse. He came toward me and said, "Counsel, this means death. Please give my regards to my wife." I said, "Herr von Praun, please calm yourself. I shall visit you in prison and we shall discuss the case." I did visit him and I tried to encourage him and I told him, "Worse than you were treated here by the Special Court in Nurnberg, you can not be treated by the People's Court either.
On the contrary, I am convinced that your case will not even remain at the People's Court, but as a so-called less serious case, will be handed over to the District Court of Appeals in Munich. And in Munich, there is quite a different atmosphere than in Nurnberg." I knew that the former Reich Minister of Justice, if I am not mistaken, Emminger, who was a prominent member of the Bavarian People's Party - Volkspartei - that he belonged to the court there in Munich, and in Munich you can expect a more calm and better treatment in the trial.
Q Witness, did the defendant on that occasion tell you of a clash which he had with a prison official?
A That was not on this occasion. But I then visited Herr von Praun once more and while after the first visit I had the impression that I succeeded in calming von Praun, now when I visited him for the second time I found him again without composure. And I said, "Well, Herr von Praun, what happened now again?" He told me that he had addressed himself to Regierungsrat Schaumann, who was in charge or was the second man in charge of this investigating prison, with the request that he should be permitted to obtain the documents necessary for certain tax declarations which he was in the habit of doing already for years; that they should be given to him in jail. These were the tax statements of several old ladies from his circle of relatives who could not do it themselves, and of some family foundations of the family von Praun.
Herr von Praun made this request to the Regierungsrat Schaumann, whom I mentioned, and according to what Herr von Praun told me, this request was refused with the words -- you are a criminal, and you are not allowed to make any tax declarations at all any more, but at that time Herr von Praun had not been sentenced yet. The wife of von Praun who visited him also at about the same time told me the same story; also Herr von Praun had told her this same instance, only with the difference that Regierungsrat Schaumann, government counselor Schaumann, said -- not only was supposed to have said -- you are not only a criminal, but you are a penitentiary jail-bird and a criminal. About this despicable treatment, Herr von Praun was of course excited, aroused, and I had great difficulty calming him again. I told him -- Herr von Praun, you will get your documents for the tax statements. I shall see to it that you get them, and I also made, a written application immediately to the Prison Administration and asked to grant von Praun's request.
Q Dr. Mayer, when did von Praun commit suicide -- immediately after this argument; can you state that still; do you remember it still?
A Unfortunately I cannot state it exactly any more, but as far as I remember, at least eight days that expired before he did.
Q Just a moment, eight days expired between what?
A Between my last visit and the death of Herr von Praun.
Q And the death of Herr von Praun-
A But I will have to emphasize again I cannot make any exact dates because I do not know now.
Q How many days expired between the trial and his death?
A That was even longer.
Q Was Herr Von Praun nervous; was he neurotic?
A Whether he was neurotic, I cannot say, but I only know that Herr von Praun was in delicate health; for instance, from the time of his birth, he was suffering from deformations of his vocal cords, or he was lacking a vocal cord, and, therefore, he could only talk with a rough, hoarse and toneless voice; and moreover, on his entire body he had insufficient skin.