However, his suggestion that we read it - I believe there arc two paragraphs - verbatim from the text would put an end to any doubt.
Reading from Document NG-319, which is to be found on page 91 of the German text and 73 in the English text, "a letter from Dr. Thierack, dated Berlin, 11 November 1944, to the Staatsminister and Chief of the Presidential Chancellery, Dr. Meissner. Dear Doctor Meissner:" -Reading the first two paragraphs of that letter: "Since the issue of the decree concerning the right of pardon of 3 September 1939 by the Fuehrer I have submitted to you monthly a list of those cases of death sentences which I deem worthy of pardon. I grant the pardon only after no objections have boon raised by the Fuehrer.
"The number of cases in which the Fuehrer, contrary to my recommendation, has ordered the death sentence to be executed is extremely small. Of the 290 cases submitted to him during the past two years he has refused the right of pardon only once. I may conclude therefore that my administering of the right of pardon in cases of death sentences is in accord with the principles of the Fuehrer."
I assume, Dr. Schilf, that we arc in agreement now as to what this document said. May we turn now to page 102 in the English text, 124 in the German text, to the Document NG-213, which will become, when introduced, the Exhibit 286. This document contains three general subjects to which we will refer briefly. The first subject is in connection with the execution of six persons at Ploetzensee Prison on Sept. 7 and 8, 1943, who were executed without authority. Their name appeared erroneously on the list which went to the executioner, and they were, therefore, executed before it was officially intended that they should be. 2396 There are two other documents in this which we will refer to shortly which concerns this same subject, and I would request that we note that this is only tho introductory phrase of this particular subject.
Another matter which is concerned in this document concerns a letter which is signed by tho defendant Mettgenberg, and it concerns tho speeding up of executions in the Reich prisons due to air raids on the throat of air raids.
The other subject that is concerned here is that of tho disposal of bodies of persons who had been executed and because for one reason or another it was not possible to remove the bodies from tho prison area. The bodies lay exposed to he weather for several days, and finally it became necessary to have special measures taken to remove them. And, tho letter concerns tho bonus which is to be given to the men who participated in this removal.
Still another matter is concerned in this document. It appears at the end of the document, NG 213, it is a list of 142 names of persons who are to ho executed, and tho final note at the end of that document states that: "This list of names is to be telephoned at once to the chief executioner at Ploetzensee prison.
We have no further comment to make on this document at this time, and we offer it now, document MG 213 as Exhibit 286.
DR. LUMMERT: In the document MG 213, tho Prosecution has just submitted photostatic copies of this document, at tho and of those photostats, there is a list of names contained in this document -a list of names of persons whoso clemency pleas were apparently, partly supposed to have boon decided at that time. At the very end there is, under tho date of 7 September 1943, a note written by note -- typewritten note, which says: "The State Under-Secretary of the Reich Ministry of justice ..." I would like to object to this in that tho remarks had not boon signed officially; and, therefore the document does not show whether tho defendant Rothenberger dealt with the matter at that time.
Likewise I object that, two pages before this list of names, under the date, Berlin 8 September 1943, the signature is also missing.
MR. KING: Naturally we regret the defendant Rothenberger, at the time, did not sign the document, but the fact remains that they are not signed is evident from the photostat originals, and since they are clearly admissible as captured documents, with or without signature, we do not think any more has to be said in connection with the objection made by Counsel.
THE PRESIDENT: It appears that this was a general office copy.
MR. KING: I think it is apparent your Honor, that this list is generally referred to as an office copy.
THE PRESIDENT: We have been receiving office copies in evidence in the absence of tho original copies, and under these circumstances, the documents would seem to be admissible in evidence.
DR. LUMMERT: Just now you were talking about a copy. The photostat does not show whether it is a copy or whether it is something that has been copied from the original or a copy made on the typewritten, a typewritten draft.
MR. KING: In reply to the further question raised, we can only say that this document was found in the files. As to what may have happened to it prior to the time we found it, while the Reich officials were still in control of the files, we, of course, cannot say, but the document reproduced here, is a photostat copy of the document which we found in the Reich Ministry of justice files.
THE PRESIDENT: I think we are bound to admit the document.
MR. KING: We turn now to page 124 in the English document book, on page 115 in the German, as the next Exhibit 287. We introduce, at this time, document 652 PS, which concerns the same subject as the first part of Exhibit 286, document NG 213, which we introduced a few moments ago.
JUDGE BLAIR: On what page of the document book?
MR. WOOLEYHAN: Page 124. This is the incident involving the execution of six prisoners who were erroneously placed on the list which went to the execution. We offer the document 652 PS asExhibit 287.
THE PRESIDENT: It will be received in evidence.
THE PRESIDENT: It will be received in evidence.
MR. KING: As the next exhibit, 288, we introduce at this time the document, 653-PS, which also concerns the same incident involving the execution of six individuals whose names were reported erroneously to the executioner, and in the main is the same subject as is concerned in Exhibit 286, 287, and this one, 288.
The present exhibit, 288, involved an official explanation as to how the error occurred.
We offer the document, 653-PS, as Exhibit 288.
THE PRESIDENT: The document will be received in evidence.
MR. KING: The next exhibit, 289, will concern Document NG-559, which appears on page 138 of the English text and at approximately 163 in the German text.
This document is an affidavit, and I should point out at this time that the jurat as it appears in the German book is not signed by the person before whom the oath was given. That is an inadvertence, as will be seen from an examination of the original document, which I have before me, and which will be offered as an exhibit to the Court. The Defense Counsel are privileged to determine that it has been signed, if they so wish.
This affidavit is given by Harold Poelchau who was the prison chaplain at Tegel Penitentiary in Berlin. The affidavit concerns prison conditions as he observed them, details as to the manner in which executions were conducted, and also refers to the fact that Nacht-und-Nebel prisoners were present in Tegel Penitentiary, and as chaplain, Poelchau's statement that to his knowledge some of these Nacht-und-Nebel prisoners who were kept there were executed.
We have no further comment to make on this document and we therefore offer the document, NG-559, as Exhibit 289.
As soon as Defense Counsel have concluded their examination, it will be offered to the Court.
DR. SCHILF (for Defendants Klemm and Mettgenberg): The copy of the document which is in our German document book apparently does not contain all of the corrections which Dr. Poelchau made in handwriting in the affidavit, which has otherwise been written on a typewriter.
The handwritten changes which appear on the original are rather numerous. On one page there are ten handwritten changes. In addition to that, the handwritten changes are very difficult to decipher, even in the original. So that I cannot make sure whether they can be deciphered at all. In order to be able to examine that, I would like to request that a procedure be used similar to the one used a few days ago with regard to the document, NG-414, namely when the Defense was given the opportunity, for 24) or 48 hours, to compare the original with the copy in detail -- and for the very same reason, because handwritten remarks were so difficult to decipher.
THE PRESIDENT: There can be no objection to granting that.
MR. KING: We, of course, have no objection to the procedure suggested by Dr. Schilf. The only thought that occurs to me at the moment is that I am not sure that there is available -- that is, here in Nurnberg -- a photostat copy of this, and it occurred to me that it might be advisable first to assure ourselves that there is a photostat copy available before turning it over to Dr. Schilf for examination, since if for some reason it should become lost, we would not have the only copy in Nurnberg available to the Court. If we could perhaps first determine whether there is a photostat copy available here and then either make this original or a good photostat copy available to him, I think he could accomplish his purpose.
THE PRESIDENT: You have photostat equipment here in Nurnberg.
MR. KING: Yes.
THE PRESIDENT: That will be agreeable.
MR. KING: May the record show that Dr. Schilf and I will work out some procedure satisfactory to him, so that he may examine it as he suggested to the Court.
THE PRESIDENT: Yes.
MR. KING: In view of the fact that we have already given it an exhibit number, what is the Court's wishes as to the present exhibit? In other words, shall we let it stand, or withdraw it and resubmit it later on?
THE PRESIDENT: I think the uniform method has been to withdraw it, has it not? At least, that has happened in a number of instances, as I remember it.
MR. KING: We will therefore withdraw it at this time and submit it for re-admission when Dr. Schilf has satisfied himself as to the accuracy of the German copy.
JUDGE BRAND: It might be well to check the English copy and see if the handwritten interlineations are correctly typed in on the English copy also.
MR. KING: Yes, sir; that will be done.
As Exhibit 289 we now introduce the document, NG-435, which is the sworn affidavit of Walter Strelow who has been in the past, director of the Tegel and Ploetzensee Prisons in Berlin, and who is at present a director of the 3 Lehrter Strasse Prison in Berlin.
We would like to read in the case of this document, one paragraph which is to be found beginning on page 144. of the English document book, and that is 171 in the German. Before reading this paragraph, may we point out that the document concerns in the main prison conditions at the Ploetzensee Prison and the method of executions carried out there during the tine that the affiant had personal knowledge of conditions. This paragraph, on page 144, reads as follows:
"The execution of the sentences took place by hanging since the guillotine could not be used. As I was repeatedly told on the following days by eye-witnesses, eight convicts at a time, chained together one behind the other, were led to the so-called Barrack No. 4 where the gallows stood, and there they were hanged by the executioner Roettger from Hannover and his three assistants, at intervals of twenty minutes -- so that every twenty minutes eight people were executed. The hanging was carried out in the following way:
"ROETGER, standing on a stool, put the rope around the neck of the convict who was held by the three assistants; then after the assistants had lifted the convict upwards, the rope was fastened on a hook, and then the assistants let the body of the convict go. Unconsciousness is supposed to have occurred immediately in every case. In know for sure, from conversations with his officials, that this manner of execution corresponded exactly to the wishes of Hitler. Hitler wanted to avoid any resemblance to the British method by which the convict is made to step on a trap door."
We offer the Document NG-435 as Exhibit 289.
THE PRESIDENT: The Document will be received in evidence.
MR. KING: As Exhibit 290, the prosecution offers the Document NG-720, which is to be found beginning on page 147 in the English text, and 175 in the German text. This Document is signed by the First Public Prosecutor and Section Chief with the prosecuting authorities in Munich, and is dated 15 July 1945. It concerns, in the main, the method by which death sentences were executed in Munich. We do not wish at this time to go into -- to read the somewhat indelicate details in this Document, and therefore offer it as Exhibit 290.
DR. GRUBE (Defense Counsel for the defendant Lautz): May it please the Tribunal, in this Document we are not concerned with the captured document. It is a document which was composed after the occupation, with the date 15th of July 1945. The Document is that which has not been given in the proscribed form of an affidavit. In addition to this, both documents carry the name Roemer only in typewritten. Therefore, I do not believe that the Document can be accepted in evidence, and, therefore, I object to the submission of this Document.
MR. KING: In offering this Document the prosecution does so as an unsolicited, signed statement. If in front of those conditions the court feels it cannot receive it, we will withdraw it.
THE PRESIDENT: It is not sworn to, apparently.
MR. KING: It is not sworn to, your Honor, it is correct.
MR. WOOLEYHAN: May it please the Court. A brief history might take this Document within the category of unsworn, signed statements. This Document, as will be seen by the signature, is signed by the author, who at the present time bears a fairly responsible legal position in Munich. This Document came to the prosecution unsolicited and unasked for. Neither before, nor since, has there been any correspondence for liaison between this office and the source of this Document. Now, in view of that fact we think that the Document is credible on its face, and we submit that if the defense seeks to attack its credibility the only way for them to legitimately do it, is to call the author of the Document and ask him if there is anything there that isn't true.
DR. GRUBE: -
THE PRESIDENT: It isn't necessary to be heard, Dr. Grube, under the circumstances this Document is clearly not admissible. This Roomer, who makes the statement, is available, just as much available to the prosecution ashe is to the defense. You are offering it unauthenticated.
MR. KING: In view of the court's ruling, we will, at this time, withdraw Document NG-720, which was originally introduced as Exhibit NG--720, which was originally introduced as Exhibit 290, subject to possible resubmission later if the objections of the court can be met in any way by the prosecution.
The next Document Book to which we will turn is that of Document Book 7B.
Mr. Wooleyhan will continue presentation of Document Book 7B. That will be in the next minute or so.
Your Honors, in connection with the ruling on Document -- on the Exhibit 290, which was withdrawn -- that was Exhibit 720, may we call your Honor's attention to certain language in Article 7 of Ordinance No. 7. We do so at this time for the following reason: That not only in connection with Document NG--720, but in other documents, which we intend to offer in evidence, the question which the court, which was presented to the court, and ruled on, my become of exceeding importance to the prosecution.
If the court has Article 7 before it, I will not read the entire paragraph. However, there is one sentence of that, that I would like to read. It is as follows, it is the second sentence in the paragraph the first sentence in the paragraph.
It says; "Without limiting the foregoing general rules the following shall be deemed admissible if they appear to the Tribunal to contain information of probative value relating to the charges," There follows a list of documents in that group, which includes, Affidavits, Depositions, Interrogations, and other Statements, Diaries, Letters, Records, Findings, Statements, and Judgments of Military Tribunals, and the reviewing and confirming authorities of any of the United Nations, and copies of any Document or any secondary evidence of the content of any Document, if the original is not readily available, or cannot be produced without delay.
We would like to put the question to the court at this time as to the court's interpretation of this particular sentence, but in general Article 7 in its entirety, when it concerns such documents as NG-720, or such document as solicited or unsolicited letters which are signed by the sender, but which may not be sworn to, as if we have been proceeding on the theory that Article 7, and particularly the sentence which I read, permitted us to offer any evidence, signed but unsworn to letters, which came to us unsolicited, or perhaps in some cases where they were solicited.
JUDGE BRAND: Has counsel considered the varying of Rule 21 of the Rules of Procedure of all of these Tribunals in which there seems to be a special provision that certain instruments may be received although not in the form of affidavits, but which prescribes the procedure which shall make such instruments admissible without an oath, namely, statements in lieu of oath. Now, would you not think that it was the proper construction of the rule which you have road when construed with Rule 21 that either an affidavit or a statement in lieu of oath would be required?
MR. KING: I do not have before me the exact wording of Rule 21 and I think therefore that I am not in a very good position to comment on the comparison which Your Honor has suggested. May I ask one question, however? Let's take as an example the Document NG-720. Would that or would that not constitute in Your Honor's opinion a statement in lieu of an oath?
JUDGE BRAND: I think a reading of the Rule 21 would make the answer entirely clear.
MR. KING: I have the disadvantage of not having that before me. That is all, I think, that we want to say on that at this time. We may ask the Court at a later date to consider the problem again in connection with a special series of documents which we may at a later time offer.
MR. WOOLEYHAN: Turning now to Document Book 7-B, the first document in that book is NG-030. It includes a rather lengthy dossier of related letters and directives which are introduced by a covering letter signed: By order of the defendant Engert, and addressed to the Public Prosecutor in Linz, which is in Austria. In this cover ing letter, Engert states that the progress of the war and the proximity of the front lines render an evacuation of the Reich prisons necessary, and he calls attention to the Public Prosecutor that attached to his letter are details in enclosed directives.
Engert requests the prosecutor to keep him - Engert - informed of whatever steps are taken in obeyance of these directives. Then follows the attached directives that Engert refers to plus a series of official letters sent out by the public prosecutor at Linz to the end of carrying out this ordered evacuation of the prisons.
We wish, to call particular attention to Pages 10 and 12, which are Pages 3 and 4 of the German book. Reading briefly from the enclosed directive regerred to in Engert's covering letter, the enclosed directive says in part the following:
"The following details are to be observed:
"a) Nacht und Nebel prisoners are not be released under any circumstances.
"b. Foreigners are to be released only if they have had their residence in the Reich for many years, if they are especially reliable and fulfill all the requirements under 'H'.
"c) Jews, Polish persons of mixed race of the first degree, and gypsies are not to be released.
"d) For Polish subjects, who are protected personnel, a release may be considered only if the requirements made under 'H' apply."
If we turn to tho next page, we see that paragraph "H" refers to those prisoners who have only short sentences.
Turning now to Page 12 of the English Book which is Page 5 in the German Book, we find a directive of Engert's which says the following: "Should it become impossible for any reasons to bring the prisoners back to the extent agreed upon, those prisoners who are not outspokenly asocial or hostile to the State, are to be released in good time so they will not fall into the hands of the enemy.
"The elements mentioned before, however, which the Prosecution submits are the elements we have just read in the categories A through D must be turned over to the police for their removal, and if this is not possible, they must be rendered harmless by shooting. All traces of the extermination are to be carefully removed."
The Prosecution offers as Exhibit 290, Document NG030.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On Page 30 of the English Book, which is Page 25 of the German, we find a one-page document NG770. This document bears the letterhead of the Reich Minister of Justice. It is dated Berlin, 12 December 1944. It is signed by order of the Defendant Engert. The letter stresses the necessity of prohibiting religious services for the inmates of the Reich prisons. The Prosecution offers as Exhibit 291, Document NG-770.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: On Page 32 of the English Book which is Page 26 in the German Book, is found NG-667. This one-page document boars the letterhead of the Reich Minister of Justice and is signed by order of the Defendant Engert.
It is addressed to the General Public Prosecutors It is briefly concerned with the necessity for handcuffing or chaining those prison inmates who are sentenced to death whenever they receive visitors. The Prosecution offers as Exhibit 292, Document NG-667.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: May it please the Court: The Prosecution proposes to file with the Tribunal a short brief taking a little further our contention on the interpretation of Rule 21 in the Tribunal's rules and its relation to Ordinance Number 7, Article 7, in the hope that it will serve to clarify the issue raised as to signed unsworn statements.
THE PRESIDENT: If you desire to prepare such a brief submit it to opposing counsel at least 24 hours before submitting it to us.
MR. WOOLEYHAN: Naturally, Your Honor.
THE PRESIDENT: The time has come for the usual adjournment and we will therefore recess the Court until next Monday morning at 9:30.
THE MARSHAL: The Tribunal is in recess until 0930 on Monday, April 21, 1947.
(The Tribunal adjourned until 21 April 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germany, on 21 April 1947, 0939-0945, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the court room will please find their seats. The Honorable, the Judges of Military Tribunal III, Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. 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 defendants Rothaug and Engert who are absent through illness.
THE PRESIDENT: They have been excused, so let the proper notation be made.
MR. LAFOLLETTE: If your Honors pleases, an event has occurred in which the Prosecution feels justified in requesting the Tribunal for a short adjournment or recess. I would like for Mr. Wooleyhan to make the announcement to the Tribunal in a formal request on behalf of the Prosecution.
MR. WOOLEYHAN: Into the record of this case, which Dr. Jacoby did so much to create the foundation for, the Prosecution gives its heartfelt thanks, and Godspeed to a reward any of us may expect. I am sure that Dr. Jacoby has every right to expect the finest reward. Until 1931 Dr. Jacoby was an esteemed member of the German bar, and thereafter an American citizen. Dr. Karl Jacoby was continually the legal expert and consultant in preparing the Prosecution's case. More important than that, however, he was a high principled, unselfish, fantastically hard worker, and a sincere and capable lawyer, and most important, a very dear friend to all of us here. God rest his soul
MR. LaFOLLETTE: The Prosecution respectfully request the Tribunal out of respect for Dr. Jacoby, who die last night, that we shall recess until 1330 this afternoon.
THE PRESIDENT: It seems to Tribunal that this is a very proper and fitting testimonial to the respect we all have to Dr. Jacoby's memory, and we will therefore grant the motion. As the Tribunal rised, we ask the Tribunal to rise with us in respect to Dr. Jacoby
THE MARSHAL: The Tribunal is in recess until 1330 hours this afternoon.
(The Tribunal then recessed until 1330 hours, 21 April 1947.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honors please, I think it is now almost a week, certainly about four days, since the Court made its ruling on the two motions with reference to examining witnesses. At that time the Court announced that it was prepared to name a commissioner and, as I recall, Dr. Schilf asked the Court to wait until he had a chance to read the ruling in the transcript, and as handed to him. I am rather assuming that that time has elapsed, and the question of examining witnesses for whom Defense Counsel has made request is crowding them, and, very frankly, the Prosecution is precluded from interrogating witnesses once that witness has been approved as a witness in the absence of the commissioner. I, therefore, am asking the Court if they will announce the appointment, either now, if they can, or by morning.
THE PRESIDENT: Vie are prepared to make that announcement at this time. Mr. Fried has been named by the other Tribunals as their Commissioner, and we think by reason of uniformity and his experience that he is the logical man to be the Commissioner for this Tribunal. He is, therefore, named for that purpose.
MR. KING: Does the Court have before it the Document Book VII-A?
THE PRESIDENT: We have.
MR. KING: It will be recalled that on Friday the Prosecution offered the Document NG-720, which is the last document in Document Book VII-A. Defense Counsel raised an objection to the admissibility of that document which, after a brief argument, the Court sustained. We would at this tine like to ask the Court for a re-consideration of its ruling on that objection. The brief which we indicated on Friday we would like to file will not be filed at this time; we substitute in lieu thereof more argument. As to the Document NG-720, the reasons apparently which the Court believed were controlling were the reasons which the Court believed was the fact that it was a statement not sworn t*, although signed by the author of the letter.
We ask the Court to consider another document which was admitted in the session of 7 March; that was Document NG-560, the Exhibit number was 49. Discussion relating to that document can be found in the transcript at pages 295, and the following pages. The Court may recall that document under the name of the Schneller letter; the Document NG-560, the Schneller letter, was signed by Schneller but not sworn to. That document was dated July 20, 1945. The person Schneller was at that time in an army camp and he was being held there in detention; he was asked for the statement, and in response gave this letter and statement, and signed it; but it was not sworn to. The Court, at the transcript pages to which I have already referred to, admitted the document for what probative value, whatever probative value that it might have.
We turn now to the document which was refused on Friday, the Document NG-720. This document is dated the 15th of July, 1945, or five days earlier than the Schneller letter, which was admitted. The Document NG-720 was a voluntary letter; it was not requested, and in that respect it seems to us that it has more probative value than a letter which was specifically requested. Furthermore, the individual who signed Document NG-720, Roemer, was not in detention at the time, and, for all that appears in the document, it was a contribution which he made on his own free will. We think, at least, that the Document 720 is as good a document, all facts considered, as the Document 560 -- by that I mean the facts relating to its offer in evidence are as favorable as the Document 560. In many respects, some of which I have pointed out, we feel that it is entitled to mere consideration than the Document 560, which was admitted. In view of what I have said, may we ask that the Court re-consider its objection to the admission of Document 720, on the basis of the Document NG-560, Exhibit 49.
JUDGE BRAND: May I ask you a question before you surrender the podium in order to clarify your position in our minds. Suppose that evidence has been or shall be introduced to the effect that one of the named defendants in this case has committed a specific act which the Tribunal considers to be a violation of Control Council Law 10; and suppose that in the course of the defense, as they put in their case in chief, they should introduce a hundred letters, unsolicited, written by diverse persons in which those one hundred people, each of them in their own way, state that the defendant in question didn't do the act, which the testimony of the Prosecution has indicated that he did do.
Would you object to the admissibility of these unsolicited letters?
MR. KING: Your Honor, the first question that would concern me in that situation would be the date of the letters. If the letters were dated two years ago, before there was any possibility of the present case, it is entirely possible that those letters should be considered.
JUDGE BRAND: Well, you are invoking the old distinction between anti litem motam and post litem motam.
MR. KING: I think it is very definite in this particular situation that must enter in.
JUDGE BRAND: You are not, in your own mind, then only opening the door to the admission in evidence of anyone's letter submitted as evidence and written post litem motam?
MR. KING: No, Your Honor. The principle of admitting any letter which may be of benefit either to the Prosecution or to the Defense, if established, would open the door to just such a possibility as Your Honor has suggested. We think that every letter, every document, should be considered on its own merits, in full consideration of such facts as when it was written, who wrote it, and the conditions under which it was written.