The judges of these Special Senate know, of course, that the original sentences had, in each case, been rejected by the Senior Reich Prosecutor Dr. Lautz or by the Reich Ministry of Justice. Besides, the Minister's desire for a different sentence was indicated in the Senior Reich Prosecutor's plea during the re-trial. I am convinced, however, that no judge of the People's Court would have voted for a sentence which he did not consider justified under the circumstances.
"The work at the People's Court was a heavy strain on the conscience, since it involved the severe punishment of defendants who were often not criminals, but simply People with different political convictions; that sort of work is no fun. The primary penal intent was to set a warning example.
"I have read the above statement, consisting of one page, in German and state that it contains the complete truth according to my best will and belief. I had the opportunity to make changes and corrections in the above statement. I have made these statements of my own free will, without any promise of reward, and I was not exposed to force or threats.
"Nuremburg, 26 November 1946, (signed) Guenther Nebelung."
DR. DOETZER (for defendant Nebelung): May it please the Tribunal, I should like formally object to the submission of this document. The document does not show that Neberlung was instructed, was told, that this document was to be used in a trial against himself, and, therefore, he would have been justified in refusing the statement. I believe that should have been done, told that it was to be used here. Therefore, I ask you to go into my objection.
MR. WOOLEYHAN: May it please the Court, in answer to Defense Counsel objections, we wish to invite the Court's attention to the date of this affidavit, that is, when it was taken. On page 83 of the English document book it appears that this affidavit was taken on 26 November 1946, Nurnberg. At that time the defendant Neberlung had not been indicted; he was not a defendant.
The indictment was not served until some weeks later. The affidavit which has just been offered in evidence was in the nature of a pre-indictment investigation; and, in fact, any pre-trial investigation may eventually be used in evidence is implicit. The Prosecution submits it was no encumbent upon the investigation, at the time this affidavit was taken to inform the defendant that it might in some future time, be used against him. However, at the time the affidavit was voluntarily given, he was not a defendant and had not been indicted.
THE PRESIDENT: The objection will be overruled. Are you offering the exhibit.
MR. WOOLEYHAN: We are, your Honor.
THE PRESIDENT: It may be received in evidence.
MR. WOOLEYHAN: The Prosecution offers as Exhibit No. 175, Document NG 384; and, I gather it has been received.
THE PRESIDENT: Yes.
MR. WOOLEYHAN: We turn now to page 84 of book "E" which is document NG 396. NG 396 is a sworn affidavit which reads as follows:
"I, Hans Petersen, swear, testify and declare:"
DR. ASCHENAUER (for defendant Petersen): In regard to the presentation of this affidavit, I wish to raise an objection. I have made my objection in writing and I have made repeated motions. The last mentioned is dated 27 February 1947. Repeatedly I have pointed out and under the circumstances under which this affidavit came about, I pointed out in what psychological position the defendant was in on account of sickness. The defendant Petersen was from the first of June until the end of August, 1946, in the Langwasser camp. He was ill and then the patient was moved to Regensburg camp where his medical treatment was continued. His physical condition can be described as furunculosis. In the Langwasser camp Petersen was declared as not movable. The medical treatment was interrupted and he was moved to Nurnberg.
Although the defendant was intended to be taken to a closed cell, he collapsed in Regensburg. Here the medical treatment for circulation disturbances was continued, which only at Christmas 1946, improved.
Ten days ago I made the motion concerning this state of affairs, to call as a witness the court physician, Dr. Pflueger. The cell in which he was located a window was missing and it was detrimental to the health. This state of affairs is proven by the fact that Dr. Pflueger, in his won time, got a piece of cardboard to cover part of the window in an emergency way. Only later on when he was moved to another cell, on 6 January 1947, made the sickness of the defendant a little easier. In addition the defendant, in spite of his illness, did not get sufficient food. From Christmas 1945 until the present time, he suffered from starvation oedema, so that the American doctor saw himself compelled to prescribe special food for him; which, however, in effect, was never received. On the other hand, it is a fact that this affidavit is a document which is a summary compiled by the person who was in charge of the interrogations; in fact, it is a compilation of several statements made by Petersen. These statements, therefore, should be present together with the affidavit. Only then one would obtain a clear picture of the value of the affidavit. An affidavit which was made at the time of prison psychosis and illness is without any value. For that reason I would ask the Tribunal to make a decision, to make a ruling in effect, that the affidavit cannot be submitted in evidence.
MR. WOOLEYHAN: A brief word, if the Court please. The objection of defense counsel for the defendant Petersen --
THE PRESIDENT: Mr. Wooleyhan, I guess it will hardly be necessary to hear from you. We think from the statement made by counsel for the defendant Petersen no showing has been made against the admissibility of this document. You may proceed to use it. Perhaps I should explain for the benefit of defendant's counsel that the way is open to challenge the manner of taking it or the condition of the defendant at the time the statement was made. All such is defensive matter and will be heard at the proper time.
MR. WOOLEYHAN: If the Court please, quite apart from the manner in which the statement was secured, and whatever appropriate value it may have, the prosecution certainly does not want to be put in the position of having it appear that any duress or intentional mistreatment of this defendant took place, as being entirely beyond our control, these conditions.
THE PRESIDENT: Regarding anything of that kind, let it be shown by the defendant at the proper time, and proceed with your statement.
MR. WOOLEYHAN: N.G. 396 is a sworn affidavit reading as follows:
"I, Hans Petersen, swear, testify and declare:
"I was admitted into the NSDAP on 1 April 1925 at the occasion of the Party's second foundation. In 1933, effective 1 January, I joined the SA. On 1 January 1942 I was appointed chief of the Main Personnel Office of the SA. My last rank was that of Obergruppenfuehrer. In 1942 I was made a member of the Reichstag in lieu of the former Captain Pfeffer.
"I was honorary associate justice at the People's Court from 1941 or 1942 until the end of the war. At the beginning I was honorary judge in the 1st Senate. I remained there only a short time. Then I became a member of the Special Senate in the place of my predecessor, the former chief of the Main Personnel Office of the SA, Obergruppenfuehrer Raecke. This Special Senate only met to consider extraordinary appeals. Alto gether I participated in approximately 9 to 10 sessions.
All the proceedings concerning extraordinary appeals were very brief since the preliminary investigations were already finished. My last session took place in August 1944.
"The list of honorary associate justices was kept at the People's Court. It had been made up by Schlegelberger at Hitler's order. The decree of nomination was signed "Schlegelberger". Each of the political and military organizations had to submit nominations and one member of each organization was active at the People's Court at any given time. The honorary associate justices of the Special Senate were, besides myself:"
Then there follows a list of six honorary judges whose names we do not read but merely call to the attention of the Court their ranks and titles. There was a General, a Naval Captain, Police General, SS Brigadier, and another SS Brigadier.
"I no longer recall the names of the remaining associates, approximately thirty in number.
"The sentences of the People's Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal "bourgeois" conceptions of crime and punishment but rather of annihilating an opposition which could become detrimental to the German aims. This was our duty. Hence, after a defendant had been brought before the People's Court because of some act or utterance, his actual deed was of no particular importance in the determination of the punishment within the framework of the law. The important thing was whether the man had to be exterminated from the community of the people as a 'public enemy' because of his personal attitudes and his social or anti-social tendencies.
"I have read the above statement consisting of two pages in German and declare that this is the truth according to my best knowledge and belief. I had the opportunity to make changes and corrections in the above statement. I have made these statements of my own free will, without any promise of reward, and have not been exposed to force or threats.
Nuernberg, 3 December 1946. (signed) Hans Petersen."
Prosecution offers as Exhibit No. 176 Document NG-396.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: Turning now to Document NG-333 found on page 87 of Book 3-E, NG-333 is a sworn affidavit which reads as follows:
"I, Guenther Nebelung, swear, testify and declare:
"I was the president of the 4th Senate of the People's Court in Berlin from 1 July 1944 until the end of the war. I was a member of the NSDAP since 1928. I was a lieutenant in the SA. The scope of the People's Court included high treason and treason, undermining of German defensive strength, sabotage and espionage. This field of work was divided up among the six Senates according to subject matter and geographical area. The 3rd Senate, for instance, specialized in cases of treason to the advantage of Poland and Soviet Russia; the 4th Senate in all other treason cases, high treason cases from certain districts, and sabotage.
"All verdicts first went from Senior Reich Prosecutor Lautz ---"
If I may interpolate here a moment, the word "verdicts" there is probably a mistranslation. I think it refers to indictments. I will check the original. The word in the original is "Anklage", which I believe is the German word for indictments, so if I may correct that here as we go along.
"All indictments first went from Senior Reich Prosecutor Lautz to the president of the People's Court, who then divided them up among the various senates. After the end of the trial the records, together with the sentence, would be sent back to the Senior Reich Prosecutor. If the Senior Reich Prosecutor, Dr. Lautz, was not satisfied with the sentence, he could file an extraordinary appeal against it. This was done, in my opinion, mainly as a result of orders by Reich Minister Thierack. After 1943 extraordinary appeals became more frequent. All cases in which an extraordinary appeal had been filed were tried again before the Special Senate of the People's Court. This Special Senate concerned itself ex clusively with extraordinary appeals.
Of all Senates of the People's Court this Special Senate pronounced the largest percentage of death sentences. According to statistics, which I saw myself, 70 percent of all sentences passed by the Special Senate during 1944 were, as I recall, death sentences.
"I know besides this no other means of contesting a sentence of the People's Court, except that the defendant could submit a clemency plea in case of a death sentence.
"After a death sentence of the People's Court had been confirmed, the Senior Reich Prosecutor Dr. Lautz arranged for its execution. After Thierack had become Reich Minister of Justice, he introduced the socalled 'guidance' of justice. This was accomplished by means of confidential 'judges letters' which were distributed to all judges. They appeared at irregular intervals. They described sample cases, mentioned the sentences and followed these up with a general statement by the Minister about them and his opinion on each of the sentences. These 'judges letters' were intended to serve as models and to contribute to the standardization of penal administration throughout the Reich.
"The preliminary investigations and examinations before People's Court trials were, in practice, handled exclusively by the Gestapo and then handed over to the 'Investigating Judges' of the People's Court. In order to be admitted to the People's Court a defense attorney had to be politically reliable and approved by the Gestapo and the National Socialist 'Lawyers League'. Without the prerequisite of political reliability he could not at any rate have remained a lawyer.
"The defense had the right to present evidence and to cross-examine witnesses. In practice, however, this depended upon the personality of the judge and of the defense attorney. No defense attorney could represent the cause of his client too aggressively, without risking thereby to get into difficulties with the Gestapo and the Lawyers' League. I consider it entirely possible that a defense attorney might possibly land in the hands of the Gestapo or in a concentration camp, if he had made himself obnoxious in this manner before the Peoples' Court or the Court of Appeals. Defense attorneys could get into precarious situations.
"I have read the above statements, consisting of two pages, in German and declare that this is the complete truth according to my best knowledge and belief."
Skipping to the signature, we find it reads, "Nuernberg, 21 November 1946, signed Guenther Nebelung."
DR. DOETZER: (For the Defendant Nebelung) May it please the Tribunal some mistakes have occurred in the translation which evidently resulted from the fact that the corrections of the defendant in his affidavit were misread.
On Page 1 of the photostat of the affidavit, the Defendant Nebelung made the following correction: "In 1944, according to our statistical, revi which I saw, as far as I remember-- " The copy which I have before me reads, "as far as my judgment goes."
On Page 2 of the affidavit, there is another mistake which changes the meaning. The Defendant Nebelung made a correction on that page. "The preliminary investigations, the investigations before the People's Court we in effect made by the Gestapo--" and now comes the correction"-- and were then forwarded to the investigation judges of the People's Court." It should not read "files referring to the investigation."
MR. WOOLEYHAN: Your Honor, this is a similar problem to one which occurred a while back. It is not connected with the translation. We compared the English translation which I read in Court with the German original. The German original is the correct translation. The error lies in that, in the first case, in copying this on a stencil for the defense, apparently, the wrong word was used.
In regard to "memory" the German word is "Erinnerung". That appears in both the English and in the original. The correct words will be going into evidence, and they were so translated.
The Prosecution offers as Exhibit Number 177, Document NG-333.
THE PRESIDENT: If defense counsel still insists that there is some error in translation, let that be worked out according to the usual procedure. The document, itself, will be received in evidence.
MR. WOOLEYHAN: May the Court please, could we rise at this time for our midday recess, or is it too early for that?
THE PRESIDENT: This is the usual time for the mid-afternoon recess.
MR. WOOLEYHAN: Could we have that at this time, please?
THE PRESIDENT: Yes. We may. We will take a 15 minute recess at this time.
(A short recess was taken)
THE MARSHAL: This Tribunal is again in session.
MR. WOOLEYHAN: The Prosecution continues with Document 676 which, in the English Book 3, is on page 90. This document appears to be a communication from the Reich Ministry of Justice in Berlin on 5 July 1944, addressed to the President of the District Court of Appeal and the Attorney General in Stuttgart. The subject of this letter is Jurisdiction of the District Court of Appeal Stuttgart in Cases of Defeatism:
"For some time now the jurisdiction of the Criminal Senate of the District Court of Appeal Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases the sentences are considerably too mild. They do not sufficiently bear in mind the thought of the protection of the people which must govern the punishment of defeatism, and are in an incompatible disproportion to the sentences which are in similar cases passed by the People's Court and by other District Courts of Appeal. I would refer especially to the following sentences which lately attracted my attention:
"1. Criminal case against Linder, sentence of the 2nd Criminat Senate of 7 January 1944.
"You made a report under date of 28 April 1944 on this case on the sentence. In view of the danger and of the frequency of the statements made, I must maintain the interpretation already expressed in my decree of 15 March 1944 that the defendant, a foreigner, deserved a severe sentence of penal servitude. I have therefore directed the files to the Chief Reich Prosecutor at the People's Court to examine the question whether the extraordinary appeal should be applied against the sentence.
"2. Criminal case against Unger. Sentence of the 1st Penal Senate of 22 February 1944 (President of the Senate Cuhorst).
"The defendant is an old active communist who apparently remained an activist also after the assumption of power and who has not given up his former opinions. His ago and the illness, to which you refer in your statement of 17 May 1944, did not prevent him again from making malicious communistic oral propaganda at an especially dangerous time. I must, in these circumstances, consider the sentence passed of two years' penal servitude, as being much too mild.
I have, therefore, directed this case also to the Reich Chief Prosecutor at the People's Court.
"3. Criminal case against Jooss for aiding and abetting the enemy-Judgment of the 1st Penal Senate of 14 April 1944 (President of the Senate Cuhorst).
"The foul defeatist statements made to the French civilian worker were dangerous to such a degree that even the mentally deficient defendant must have known about the consequences, and they show a frightening measure of lack of national dignity. The sentence passed of two years' penal servitude must be in these circumstances described as inadequate.
"4. Criminal case against Kornmayer. Sentence of the 1st Penal Senate of 24 April 1944 -- President of the Senate Cuhorst.
"The reasons aggravating the punishment which were appropriately stated in the sentence, should have resulted in sentencing the defendant, an old Marxist, to a considerably higher sentence than three years' penal servitude.
"5. Case against Friebel -- Sentence of the 1st Penal Senate of 4 April 1944 (President of the Senate Cuhorst).
"The defendant spoke in an especially critical period, in favor of a capitulation after the Italina example. I cannot accept the sentence of one year's prison term as a sufficient punishment.
"6. Criminal case against Radspieler -- Sentence of the 2nd senate cf 9 March 1944 (President of the Senate Cuhorst).
"The sentence passed of one year's prison term is not in proportion with the particularly dangerous remarks made, even taking into account the mitigating reasons of the personality of the defendant.
"7. Criminal case against Brechtel -- Sentence passed by the 1st Penal Senate on 24 February 1944 (President of the Senate Cuhorst).
"There are considerable doubts about the negation of the inner facts of the case, the defeatism, in view of the political past of the defendant and the undisputable meaning of his remarks. In any case, the sentence of one year's prison term cannot be regarded as sufficient in the case of this old Marxist who saw a new light dawn after the fall of the Duce and who openly expressed his hostility towards the State.
"8. Criminal case against Meier, sentence of the 1st Penal Senate of 26 April 1944 (President of the Senate Cuhorst).
"In this case also the especially dangerous remarks of the defendant made to the wife of a soldier and to a soldier, have been punished with a sentence of one year's prison, which sentence is in no way satisfactory. I intend, also, in the cases No. 3 to 8 to submit the files to the Reich Chief Prosecutor at the People's Court for examination of the question whether the extraordinary appeal should be applied against the sentences passed.
Skipping to the last paragraph of this letter, on page 93:
"At the meeting at Kochem I requested the President of the Senate to explain, in what manner in the fifth war year cases of defeatism should be tried. I believe that I may now expect that the District Court of Appeal, Stuttgart will also pass judgments accordingly. It is indispensable that you, President of the Court of Appeals and you, General Attorney, will in future direct your special attention to these criminal cases. I further request you, Attorney General, to report to me until further notice, when submitting indictments for defeatism, what sentence you intend to demand in the main trial so that I may point out possible objections with regard to the measure of punishment.
"As deputy (signed) "Klemm."
If the Court please, it is the prosecution's intention to introduce or offer the documents just read at this time. I am not clear whether or not the defense cares to make an objection.
DR. SCHILF: (For Defendant Klemm): May it please the Tribunal, I have to object to the introduction of this document. The photostatic copy of the document which has just been handed to me shows that it is only a copy. The document begins with the word "copy", and then there follows the text which the prosecutor has just read in part.
The signature also shows only a typewritten signature; that is, it is not handwritten. So it is not clear whether this document represents a literal copy of the original. Furthermore, it has not been made clear whether the original of which we have only the copy here was received in Stuttgart, or whether it is only a draft. So that this copy perhaps was put in the files of the Justice Ministry. I think that my objection is considerable because nothing but a typewritten copy of a document has been submitted, and there is neither a handwritten signature nor a certification which would give evidence that this document has really been written and sent out.
MR. WOOLEYHAN: May the Court please, the prosecution submits that all of the defense counsel's objections to this document are sufficiently answered by pointing out the fact that although this document is in truth labeled copy, on the last page, under Klemm's signature we find the words "certified; Grundmann, First Judicial Secretary".
DR. SCHILF: To this last remark of the prosecutor I would like to say, these words, "certified: Grundmann, First Secretary of the Justice Department", they belong to the copy, they are part of the copy. The First Secretary Grundmann could not certify this copy. Rather, it is as follows: This remark was on the original. If this copy which I have here in front of me could have been certified by Grundmann, his handwritten signature would have to appear on this document.
That this is not the case results from the fact that the words do not say only "Certified, colon, Grundmann" but here in this copy they say, "Certified, signed Grundmann." This makes it quite evident that the document from the first to the last letter is an entirely uncertified document, a simple copy which could hardly be considered a document.
MR. WOOLEYHAN: Your Honors, the prosecution submits the document is certified for our purposes.
THE PRESIDENT: It would seem as though this is a similar matter to one of the former rulings of the Tribunal. I take it that this is a captured document, and it is an office copy and therefore was offered as the best evidence of the original secondary evidence, and it is covered by the Guenther Nebelung affidavit and seems to be identical with a problem we have had heretofore during this trial. Therefore the same ruling should be given.
DR. SCHILF: Mr. President, I am not quite familiar with the signatures in the other case about which you already made a ruling. The case under discussion now, however, cannot be interpreted in any other way. It is unequivocal because on the document there is not the least evidence as to whether this copy has been made by an authorized office or not. There is nothing but a notation of the document center according to which this document has been registered. I personally do not doubt that it has been captured; that it is a captured document but from this fact we cannot conclude that it is a correct copy that it was written at all, and that the person to whom it was addressed received it.
All these conditions, if we consider them altogether, I think this case seems to me that even if we assume that it is a captured document, formal probative value cannot be assigned to it.
THE PRESIDENT: I think the Tribunal understands the matter, and the Tribunal feels that it is similar to a former ruling and is here bound by the ruling. It will therefore stand.
JUDGE BRAND: Mr. Prosecutor, I am interested to know your position about this. The copy that was captured was captured in Berlin, was it, or where?
MR. WOOLEYHAN: This document was unearthed in Berlin as part -- I can give you the exact source if you will bear with me?
JUDGE BRAND: My point merely would be this; if the original was written and sent it would not be captured at Berlin. The only thing that could be there would be the office copy. Is that your position?
MR. WOOLEYHAN: The office copy would be the only copy that could be found in Berlin. Going on the assumption that this letter was in fact sent in the original it could never be found in Berlin, but in Stuttgart.
JUDGE BRAND: Then your point is that the fact that an office copy was found in Berlin -
MR. WOOLEYHAN: The place of origin.
JUDGE BRAND: -- makes prima facie case for the delivery of the original.
MR. WOOLEYHAN: Yes. The prosecution offers as Exhibit Number 178, Document NG-676.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The next document is NG-672, on page 95 of the English book. It is a sworn affidavit reading as follows:
"I, Dr. Josef Grueb, Judge at the Court of Appeal, Nurnberg, Gibitzenhofstrasse 106, hereby declare under oath:
"I was born on 18 May 1902 in Gerolzhofen, Unterfranken.
I passed my State Juridical Examination in Wuerzburg in 1928. From 1929 until 1936 I was active as 'Assessor', second Public Prosecutor, Magistrate and First Public Prosecutor in Bamberg, Kronach, Fuerth and Nuremberg. On 1 January 1937 I was appointed First Public Prosecutor at the Court of Appeal in Nuremberg."
JUDGE BRAND: That is '42, isn't it?
MR. WOOLEYHAN: '37, your Honor. If I may check the original a moment?
JUDGE BRAND: I think that's my mistake.
MR. WOOLEYHAN: It's 1937, your Honor.
"On 1 September 1942 I was promoted Judge at the Court of Appeal, but remained active in the Prosecution's office there. I entered the NSDAP on 1 May 1937.
"In addition to numerous tasks pertaining to the Administration of Justice, I dealt with general criminal cases in sofar as they fell under the jurisdiction of the Special Court. Thera were no so-called political cases among then, such as criminal cases against priests, against members of religious orders or against Jews. The General Public Prosecutor Dr. Emil Bems, and in his absence, his representative, Senior Public Prosecutor Dr. George Engert, were responsible, for all essential instructions or reports. All important cases were discussed with the General Public Prosecutor; instructions and reports were made out according to the letter's direction. The drafting of the texts was left to the experts."
Skipping to page 2 of this affidavit, the first complete paragraph.
"I hold Presidents Rothaug and Oeschey responsible for the bad reputation of the Special Court in Nuremberg and its extraordinarily severe judgments. The method by which both Presidents conducted the trials raised the strongest objections. The brutality of both presidents, their cynicism and their prejudices were brought to light in the most disagreeable manner. Both had used the courtroom for propaganda of National-Socialist conceptions, contrary to the dignity and the objectivity of a Tribunal. I believe Rothaug's conspicuous political fanaticism and, possibly, his ambition which made him strive for a successful career at the expense of the defendants, were the reasons for his severity in pronouncing sentences. The severe war-time laws helped him much in his efforts. He often made it clear, during a trial, that the defendant had lost the right to live. I felt that this was a very serious offense against the objectivity and reserve that were to be expected from the judges. He consistently ignored prosecutors, defense counsels and experts. He obviously considered the defense counsel as a 'necessary evil'. The only rather inglorious exception among the medical experts, was the former medical official of the District Court, Schuhmacher. When examining the defendants from a psychiatric point of view, he used to take a position against the defendants with exceptional violence, and in doing so, he rendered the most valuable services to a man like Rothaug. Rothaug gladly adopted the idea that even a psychopathic condition of the defendants would not constitute extenuating circumstances. I always had the impression that he was possessed by a demon that threatened anyone within his circle.
The most prominent fact characterizing Oeschey was the brutality with which he conducted trials, never fearing to insult the defendant during sessions in the most vulgar manner. He seemed to have followed his predecessor Rothaug in the handling of defendants without human compassion. Every impartial person in the audience had the impression that when Oeschey conducted a trial, the defendants as well as the defense counsel were limited in the most inadmissible way in the protection of their guaranteed rights.
I consider it possible or probable that under such circumstances, statements were made in some judgments which never would have been made if the trial had been conducted objectively; this might also have caused the Public Prosecutor or the Defense Counsel to suggest a nummity plea in some case or other. Whether this happened in every case in which it was necessary and for what reasons a petition for nullification was omitted, I do not know. It was obvious that the Ministry of Justice only admitted a petition for nullification when it was unfavorable to the defendant. Cases in which the Ministry ordered a nullity plea unfavorable to the defendant, were, at any rate, far more numerous than cases where the petition for nullification was demanded for the benefit of the condemned man. I do not recall a single case in which Berlin had ordered a nullity plea in favor of a condemned man of its own initiative without any suggestion from lower officials, although a nullity plea could be demanded either in favor of or against the defendant. It was mainly a means employed by the State to cancel sentences which seemed inadequate in the light of the political conception of these times.
"This statement is the whole truth and was made without coercion. I have read it, signed and declared it under oath.
"Nuremberg, 7 January 1947 (Signed) Dr. Josef GRUEB" Prosecution offers this NG-672 as Exhibit 179.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The last document in Document Book 3-E is NG-337. Due to the familiar difficulties of assembling these documents it is not in the proper order. However, by the method of the presentation, in skipping around from page to page, I think it will be clear. At the outset it might be said that NG-337 is not any one single document but a collection of documents bearing the same number. There are two verdicts included in this document, an indictment, a number of connect ing letters and one telegram, and they were all gathered from the same file and presented as found.
This document really begins on Page 114 which is the verdict of the District Court, Newmarkt, which reads as follows:
"In the Name of the German People!
V e r d i c t District Court Neumarkt pronounces in the case against LOPATA, Jan, Polish farmhand in Bodenhof at present detained for assault, in its public session of 28 April 1942 in which took part:"
There is a list of judges whose names we won't read.
"On the basis of the Trial:
LOPATA Jan, born 24 June 1916 in Kajscowka, District Myslenice, parents: Michale and Anna Lopata, single, Polish farmhand, at present in detention is sentenced to an imprisonment of 2 years in a prison camp for the crime of assault."
Skipping to the last paragraph, of the verdict which is on the next page, 115 in the English book.
"The character of the defendant as a whole, as explained at the trial, especially the fact that the defendant in addition to the proven crime, which was already a serious crime in view of the manner and the stubbornness, with which it was carried out, and the fact that he committed another offense by his brutal conduct towards his employer require that the death sentence be carried out.
Signed, Neumarkt, 26 Oct. 1942."
May it please the Court, there is some confusion here, which I had not seen in going over this document. On the first page of this verdict, on Page 114, the defendant Lopata is sentenced to two years in a prison camp. How that squares with the statement on the following page, that the death sentence must be carried out, I am not prepared to state.
However, in reading the rest of the documents within 337 in their chronological order, perhaps it will clear up, if that will be acceptable.
DR. KOESSL: In the English, the last there seems to be a mistake, some mix-up. In the German copy the paragraph reads as follows: "For the ordinary had bad character of the defendant the following testifies that he could not make a confession, that he would not make a confession but rather denied and this denial was continued in spite of the testimony by the witness who was under oath, Schwenzer. Therefore it seemed to be suitable to condemn the defendant by use of Nos. 3 and 4 of the Polish Criminal Code, of Criminal Procedure, of the 4th of December, 1941, Reichsgesetzblatt I, Page 759, and to condemn him to the penalty of three years in a prison camp - two years in a prison camp, for leaving his place of detention without permission the money penalty of 35 Reichsmarks, which was usual, and in default of payment an additional week in prison camp was regarded as a sufficient punishment."
MR. WOOLEYHAN: The Prosecution wishes to thank the defense counsel. That seems to make it very clear. However, what the defense counsel just obligingly read was the remainder of Page 114 which I had omitted reading. That is all O.K.