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.
JUDGE BRAND: Referring once more to common law language, as I recollect it, in Exhibit 49, was it not arguable that a statement there, which was made by a German official was in the nature of a res justae. I do not remember the exact details of that statement but it was an official statement, was it not? Was it not in the course of official business?
MR. KING: No, it was not, your Honor. It was a letter which was written pursuant to a request by an Army captain, and the request was to the effect that Schneller, a minister or director gave him a list of persons who were dismissed from the Ministry of Justice for certain reasons. And, Schneller, then, in response to that request set down, as he best could recollect it, the names of individuals who were dismissed for the reasons given. I do not think the res justae was present in that document.
THE PRESIDENT: It seems to me, that which has been suggested by my colleague -- I think I am somewhat familiar with the post litem motam and anti post litem motem, and I am not aware that they have been applied to any situation with the exception of self-serving declarations. However, I do not have any law books here, and I may be wrong. The thing that troubles me is this, I venture to recall what happened, and I do not recall very clearly as to the reasons for the ruling in document No. 560, but I am wondering if it is possible that the ruling was based upon the fact that the witness was not available. It has been suggested he was a prisoner of war at the time he made it.
MR. KING: He was a prisoner of war at the time, your Honor. I do not believe the question of the witness's availability was discussed at that time. In fact I do not think we knew where he was at the time that document was introduced, and whether he was readily available.
THE PRESIDENT: In this instance I do have the impression that this man Roemer is available -- right close here, well, in Munich.
MR. KING: It is true, your Honor that Roemer may be in Munich, but we do not know for sure any more about the man Roemer than we know about Schneller.
For all we know Schneller is also available.
THE PRESIDENT: Of course in American jurisprudence we always like to be careful not to admit evidence which forecloses cross examination, and we would like to adhere pretty closely to that rule if we can. If the witness is at all available, I strongly feel we should adhere to the ruling.
Will you give us the page of the transcript where that discussion took place, relating to document 560?
MR. KING: Yes, that begins on page 295 and for the following four or five pages.
THE PRESIDENT: Well, in any event, there should be an examination of what was said at that time, bearing upon the ruling which we made at that time.
I also think we might benefit in hearing what Dr. Grube has to say on the issue, because we will not rule on it at this time.
DR. GRUBE (for the defendant Lautz): May it please the Court, in regard to the document NG-720, I would like you to consider the following: The signature Roemer is not written by hand, but it is written on a typewriter; thus, there is no proof that the document actually originated with Roemer. It could also have been submitted by an unknown source.
In regard to the decision of the Tribunal in regard to NG-560, I would like to make the following remarks: At that time, the Court admitted the document. At that time I put the question as to whether the Defense could gather from the decision of the Tribunal according to whether the document was admitted, even though it was not a captured document and not an affidavit, whether the Defense could, therefore, conclude that the Defense Counsel also could submit simple letters as documents. At that time the Tribunal decided that this possibility had to be examined in each individual case. If from the present case, the conclusion is to be drawn, and the Prosecution should be given the right to submit simple letters as documents, then I ask the Tribunal simoultan eously to make a decision also in regard to the Defense, and I ask, and I ask you not to make your decision depending upon the time the letter was written.
I believe that would be a great injustice in a decision, if letters, which were written before the date suggested by the Prosecution, would be admitted as documents, and letters written after this date would not be admitted as documents; that would be a one-sided favortism toward the Prosecution. In such a case it is natural that at a time when we were not thinking of a trial of jurists, the Defense could not think of letters, and the credibility of individual letters in the same way were as large or as small, regardless of what date they were written.
DR. KOESSL (for the defendant Rothaug): May it please the Court, I believe that I can remember with certainty that for the admissibility of document NG-560, there was a special circumstance which, namely, that the Schneller letter was the result of a discussion with several camp inmates, and this community of work in the camp could not be reconstructed any more today, could not be recreated any more today. The thoughts expressed in the Schneller letter were the combined efforts of several persons. The letter was written in midst of the collapse after the war and confusion, and that the authors of the document were no longer accessible, and the author of the document NG-720 is easily accessible.
JUDGE BRAND: Just a moment, Dr. Grube, with reference to your argument. In what you suggest is that the probative value of a document or of a letter is not affected at all by the time in which it is written. The principle to which I was referring, which does make a distinction as to the time when instruments are prepared is based upon this idea: That when instruments are prepared for the purpose of introducing them into Court, there is much more danger that they will be suspected as being influenced by the desire to put them into evidence, whereas an instrument which is written perhaps in the course of business, before the writer knows that it is to be used as evidence, does have far greater probative value because it is not subject to such suspicion. And, that is the distinction I was suggesting, not making a ruling but sug gesting that very clear distinction.
DR. GRUBE: May it please the Court, I merely wanted to refer to document NG-720. The gentlement of the Prosecution stated that this letter had been sent to the Prosecution without having been solicited. I believe the person who had written this letter to the Prosecution without being solicited, he, sir, wanted to fulfill some definite purpose with that in any case, and I believe for that very reason the suspicion which your Honor has just mentioned, that the document is somehow colored in the subjective way, and that it exists.
JUDGE BRAND: I was not attempting to imply a doubt when I suggested this case at all, I was merely pointing out the principle I had in mind.
MR. KING: Your Honor, one further word the Prosecution would like to say as to the time of the writing of this letter. It obviously could not have been written in contemplation of this proceeding, since at that time, the charter which set up the International Military Tribunal had not even been signed, let alone the basis for this particular current trial.
Do we understand that your Honor will defer further ruling on this until some future time?
THE PRESIDENT: That is the feeling of the Tribunal at this time.
In the meantime I personally would like to be advised as to whether this man Roomer is available for the administration of oath or for subpoena, to appear before this Tribunal?
MR. KING: Your Honor, we will attempt to determine that individuals present whereabouts.
JUDGE BRAND: To whom was this instrument addressed. My copy does not show an addressee?
MR. WOOLEYHAN: My recollection was that there was no addressee on the original.
THE PRESIDENT: You have overlooked the fact, not purposely of course, that Dr. Grube has objected on that ground, that there was no evidence that it was an individual signature; that it was a typewritten signature.
What do you know about that?
MR. WOOLEYHAN: Your Honor, I am afraid I am not able to answer your question. I did not present that document.
THE PRESIDENT: That should be looked into.
MR. WOOLEYHAN: Yes, we will look into it.
If the Bench and the Defense Counsel will please turn to document book 7-B.
MR. WOOLEYHAN: If the Bench and defense counsel will please turn to Document Book 7B: On page 34 of the English Book, which is page 27 of the German, is found NG-741. This is a sworn affidavit executed by one Frau Gertrude Leppin. The affidavit is short, some two and one-half pages long, and confines itself to an eye witness description of a massacre in Sonnenburg Prison. The affiant's place of redidence was approximately two hundred yards from the penitentiary itself. The occurrance to which she refers was between 29 January 1945 and two or three days thereafter. According to the affiant's knowledge, information and personal observation, the prison officials, in the face of the Russian advance, ware ordered to exterminate all political prisoners in the prison. They were so ordered, but all of these officials in the prison, according to the affiant, refused to do it, but fled the town without carrying the order into effect. The next day the SS did the job. according to the affiant's estimate, having talked both to the Russian troops who freed the prison, and to the warden of the prison, she estimates that some 815 political prisoners were shot down. The prosecution wishes to call the attention of the Tribunal mainly to the statement on page 35: "He (meaning Herr Schenkwitz, the warden of the prison) added that the officials of the penitentiary have been ordered to shoot the political prisoners." The prosecution offers as Exhibit 293, Document NG-741.
THE PRESIDENT: You speak of political prisoners; that page 35 indicates that there were Russians among them. 2421
MR. WOOLEYHAN: It does, your Honor.
THE PRESIDENT: You classify them as political prisoners - the Russians?
MR. WOOLEYHAN: I was attempting to limit my remarks to the extent of the affidavit, and the affidavit does not define. It merely states Russian prisoners and political prisoners, both of which were in the prison.
THE PRESIDENT: Both classes were shot?
MR. WOOLEYHAN: That is what I gather, yes sir.
THE PRESIDENT: The document will be admitted.
MR. WOOLEYHAN: On page 37 of the English Book, which is page 30 of the German, is found what apparently is a diary. It was signed on the 28th of December 1942 by Westphal, an official in Division IV of the Ministry of Justice. On successive days from the 14th of December 1942 until the 22nd of the same month, Westphal describes a series of occurrences and visits in Ploetzensee Prison, attended by the defendant Mettgenberg, and other occurrences which were reported to the defendant Mettgengerg. For example, the first entry concerns preparations for mass hangings at Ploetzensee Prison, which is in Berlin. The next day Westphal notes that there was a visit made to Ploetzensee in connection with thim matter by the defendant Mettgenberg, among others; and then, Westphal describes in great detail the method of hanging sentenced prisoners by means of rope over hooks from which helpers held up the convicted person and dropped him. On the 21st of December the defendant Mettgenberg is noted to have issued the necessary directions for these mass hangings. And the last entry notes that the first hangings were carried out quickly and without incident.
On the next page, which is page 38 of the English, page 31 of the German, we find a further note initialed by Westphal, to the effect that questions of the defendant Mettgenberg to the official in charge of these executions did not elicit anything in particular.
The prosecution offers as Exhibit 294, Document NG-320.
On page 39 of the----
THE PRESIDENT: The document will be admitted in evidence.
MR. WOOLEYHAN: I beg your pardon, your Honor. Thank you.
On page 39 of the English Book, which is 32 in the German, is found NG-328. From the original it appears that this document is a typewritten memorandum to the files. However, the subject, "Execution by Hanging," is handwritten. The typed signature of Mettgenberg appears as the signer of this document, and it concerns certain executions to be held in Frankfurt for which the defendant mettgenberg is issuing the requisite directions as to the method, manner, and time. The prosecution offers as Exhibit 295, Document NG-328.
DR. SCHILF (for defendant Mettgenberg): Hay it please the Court: In regard to this document I would only like to point out the following. This is not to be regarded as an objection. I shall have to draw the conclusions from this later on. On the head of the Document there is a handwritten remark. This handwritten remark is as follows: "Subject, Execution by Hanging." The text which follows is written on a typewriter, and also likewise the name of Mettgenberg is written by typewriter, and that is twice, in different places.
That Mettgenberg did not sign these file notes himself is also apparent from the fact that in front of his name the usual remark sign appears. It is not apparent, one cannot see from the document, who made the copy, and who in handwriting wrote the words on the top of the document, "Subject, Execution by Hanging." If the document is to receive fall probative value, in my opinion the prosecution would have to affirm, or find-maintain or find out who made this handwritten remark, and who made out this copy, because it is a copy. It apparently comes from some one else's files.
MR. WOOLEYHAN: May it please the Court, Dr. Schilf is quite right. It is exactly that -- an office copy; and how many office copies in the files are signed, at least by the writer.
THE PRESIDENT: The ruling that we have heretofore made concerning office copies certainly has application here, does it not Dr. Schilf?
There is no objection; no objection has been made, so I take it we will receive the document in evidence. Any arguments you have can be made later, of course.
MR. WOOLEYHAN: On page 40 of the English Book, which is page 33 of the German, is found a letter addressed to the Ministerialrat Klemm, who is the defendant Klemm, at the main office of the Party, or Party Chancellory, and is dated 1 December 1942.
It appears, from an affidavit of the defendant Klemm already in evidence, that this was about a year before the defendant Klemm became Undersecretary of the Ministry of Justice.
This letter is sent to Klemm by Minister Thierack, and bears the handwritten initials of Thierack. It concerns the carrying out of death sentences against certain marauders. It is concerned mainly with the method of executing those death sentences. In this letter Thierack reports to Klemm that the normal method of execution is the guillotine, one of which is located at every prison where executions are carried out. Thierack notes, however, that since the issue of the deeree against public enemies - this decree by the way, is found in Document Book II, at page 19 since the issue of that decree, only one case of deviation from the guillotining of defendants sentenced to death occurred. In that one deviation an executioner equipped with an ax and an executioner's block was brought to the necessary site in a motor car.
The Prosecution offers as Exhibit 296, document NG-324.
THE PRESIDENT: The document may be received in evidence.
MR. WOOLEYHAN: On page 42 of the English book, which is page 35 of the German, is found NG-4-5. This is a sworn affidavit by one Walter Strelow, formerly a director of Ploetzensce Prison in Berlin. while in that position, at various times between the period 1939-1945, he describes various experiments carried out in that prison against certain convicts under sentence of death who underwent experiments with poison gas.