Q I would like to ask one more question. The word, "Referent" has been used by you, and also by other witnesses, but I have not acquired a very clear idea of the duties of a Referent. Can you throw a little light on that subject for me?
A When I mentioned the word "Referent" I meant the expert of the prosecution working on the case, the "Sachbearbeiter." I myself was such a Referent, such an expert. In other areas of Germany they did not use the word "Referent" - but "Dezernent." It belonged to the tasks of the export to work on the criminal cases up until the indictment was issued, and, after the sentencing, the execution. In all cases before Special Courts it has to be stated, in addition, that the experts, the "Sachbearbeiter", were subordinates to the chief public prosecutor prosecutor at the Special Court - that is, the Oberstaatsanwalt - that they did not have any authority to sign and to make any decisions themselves. That is, they were allowed neither to indict someone, nor make reports, nor objections, nor to make decisions; nor were they allowed to sign any of these things, including clemency appeals, themselves. They were only allowed to sign subordinate orders of a lower authority. So that the formal and material direction of business, --and therefore the responsibility was with the chief public prosecutor, Oberstaatsanwalt, alone. We Referenten, we experts, were basically dependant experts. That, however, was true only for the Sachbearbeiter at the Special Courts whereas the Referenten at usual criminal cases also could sign indictments and objections themselves.
Q You spoke of them preparing documents. What documents did the Referent prepare in the course of preparation of a trial and the actual trial?
A The Referenten, the expert summarized the result of the investigations which the police organs had submitted to them, and either discontinued the trial because of lack of evidence, or they filed indictment. The document that I was referring which went to the court.
THE PRESIDENT: Any other defense counsel desire to examine?
DR. HAENSEL: (Counsel for defendant Joel) May it please the Court; The associate Judge, his Honor the Associate Judge, announced that he would ask a question after the cross-examination had been ended, and he said this question would not refer to any one of the defendants, but would be a general one.
The conduct of the German Penal Procedure was the subject of this question. I am convinced that the answer which the witness gave here is not correct but is based on a misunderstanding.
THE PRESIDENT: If that is the purpose of your statement, you would have to contradict the witness by testimony that you introduce in defense, but not by answering the witness at this point.
DR. HAENSEL: I only wanted to point out that it was a very basic point, namely, the court cannot know certain details of our practice of conducting a trial, and these questions in particular which were put today, namely, the question as to whether the police notice that was in the file could be considered in the judgment, or whether this could not be done. This shows that this basic problem has to be clarified.
JUDGE BRAND: Is it your point that you wish to ask the witness now some further questions on that matter?
DR. HAENSEL: I believe this subject which we started today would be advanced if two or three questions would be put to the witness.
JUDGE BRAND: I should be glad to hear them.
BY DR. HAENSEL:
Q Witness, in our files there are remarks made by the police which summarize results of investigations. Is that correct?
A Yes.
Q These results of the investigation, are they submitted in the main trial or not?
A No.
Q Do these results of the investigation by the police play any role during the sentence?
A No.
Q Are we concerned only with the entirely unimportant reports which, perhaps, are supposed to simplify the work of the prosecution, but for the determining of the question are unimportant?
A Yes.
BY JUDGE BRAND:
Q Witness, I understand you to say that the police reports are not used or introduced in evidence at the main trial, but I also understood you to say that the trial judge, as a matter of practice, roads those police reports before the trial.
A Yes, he reads them.
Q Is it your theory, then, that he expunges everything that he has read when he sits on the Bench in the main trial, and when he is determining guilt or innocence?
A I do not believe that he can forget everything that is in the files. In some way or other it must make an impression upon him, and I should imagine that if in a report by the police, a remark by the police, there is a note, for example, about political matters contained in it, that this will impress the judge in some way or other. Then, however, in most cases he summoned the police official who had written this remark and also examined him as a witness. That was in accordance with the principles of the conduct of the main trial. Under German law it is not allowed - or should not -- nothing should be considered in the judgment which was not subject of the main trial.
Court No. III, Case No. 3.
Q But you still adhere to your statement that the police officer who made the factual report is not called as a witness ordinarily unless there is contradiction made by some witness at the trial of statements made in the police officer's report. Am I correct in that?
A When I gave my first answer I did not think of a case where there was a summary report of the police investigation in the files, but I was only thinking of the fact that the police official who was in charge of the investigation was summoned to the court and examined. There was not always a summary of the police report in the files. These reports were in the files only if the Gestapo had undertaken the investigation, that is, only in political cases, for the Gestapo, the Geheime Staatspolizei, always made a concluding report. However, in the rest of the cases, in more than half of the cases which were tried before the Special Court, the Gestapo had not carried on the investigations, but the criminal police, or the rural constabulary. In cases which I was thinking of originally when I answered, the police official was examined only if there were contradictions in the statements of the witnesses.
Q But the Gestapo reports were made a part of the files, were they not?
A Yes.
THE PRESIDENT: Do any other defense counsel wish to crossexamine this witness?
DR. SCHILF (Counsel for the defendants Klemm and Mettgenberg): May it please the Court, only one single question, one single question, which has resulted from the questions of Judge Brand.
BY DR. SCHILF:
Q Witness, you have just told us about the matter of the influence of the files upon the main trial. I only want to ask you this. What you have stated here, basically, was that in accordance with the Code of Legal Procedure and with the practice even before 1933?
A What I said is general human experience, which was confirmed Court No. III, Case No. 3.before and after 1933, namely, the experience that no one can free himself of matters of which one takes judicial notice of if they are written down in the files, so that matters which are written there make an impression upon any judge if he had read the files.
Q And the purely formal matter of how the files were submitted when the prosecution submitted the files, that was the same before 1933 as after 1933?
A Yes. It was a basic principle of German legal administration and legal procedure to conduct trials in that manner. This, apparently, differs completely from the American manner.
DR. SCHILF: I have no further questions, Your Honor.
DR. WANDSCHNEIDER: For the defendant Dr. Rothenberger.
THE PRESIDENT: This is also your second round, Dr. Wandschneider.
DR. WANDSCHNEIDER: Only one question, Mr. President, in order to clarify the facts.
BY DR. WANDSCHNEIDER:
Q Witness, you said that the investigations were in the hands of the police, and that the prosecution then used these investigations when they filed the Indictment.
A Yes.
Q Is it correct also, according to the German Code of Legal Procedure, that before the Indictment is filed the prosecution frequently conducts investigations themselves without having the police be the exclusive authority of investigating?
A The prosecution could undertake investigations themselves, as well as ordering investigations conducted. This happened, quite frequently, especially in Nurnberg where they worked especially thoroughly. The police investigations had to be supplemented frequently, especially if the police investigations had been done by the constabulary. Then there was the double possibility that the files were either returned to the police or to the constabulary with concrete directives or in Court No. III, Case No. 3.structions for further investigations, or that the prosecutor himself, in exceptional cases, ordered witnesses and examined them.
Q Thus, is it correct that quite frequently, especially, the prosecution tried to have contradictions which existed in the statements of the witnesses clarified, and that this was done by investigations by the prosecution?
A Yes, that is correct, and that was also in accordance with a principle of the German Code of Legal Procedure, that the German prosecution had to consider matters both for and against the defendants it had to consider them both. In former times the principle had been formulated that the prosecution is the most objective authority in the world.
DR. WANDSCHNEIDER: Thank you.
THE PRESIDENT: Does the prosecution desire to have any redirect examination of this witness?
MR. WOOLEYHAN: No, Your Honor, we do not.
THE PRESIDENT: This witness may be excused.
(Witness excused).
MR. LA FOLLETTE: May it please Your Honors, with the permission of the Court and for the purpose of attempting to be helpful, I would like to address myself for a few minutes to the question of the manner in which the cross-examination of affiants who have not appeared as witnesses might be conducted, in order to have an expeditious proceeding.
I want to say first that I have investigated, just rather briefly before coming here, some of the rulings on affidavits which were made by the IMT, and I find that generally they are consistent with the ruling which was made by this Tribunal on the 11th of March in connection with Prosecution's Exhibit No. 79, document NG-316, which was the affidavit of Dr. Walter Brem, which was admitted in evidence after Dr. Grube and Dr. Schilf had addressed the Court on the subject. This matter is found -
Court No. III, Case No. 3.
JUDGE BRAND: What was that number?
MR. LA FOLLETTE: That was 79, Your Honor. The proceedings are found on pages 393 to 396 of the transcript.
As I interpret the ruling--although the Court may interpret itself, of course, when it looks at it as I refer to it -- the affidavits may be introduced with the understanding that there is an obligation to produce the witness for cross-examination if possible.
THE PRESIDENT: If "available" would be a better word.
MR. LA FOLLETTE: "If available"; I think that is the term that the Court used, "if available".
I also find that in Ordinance 7, Article 4, which is a comparable section to Article 16 of the Charter, Subdivision E says that a defendant shall have the right, through his counsel, to present evidence at the trial and to cross-examine any witness called by the prosecution. That, of course, is not a clearly applicable section.
Also the defendant may apply in writing--this is Subdivision F of Article 4 of Ordinance 7--the defendant may apply in writing to the Tribunal for the production of witnesses or of documents. The application shall state where the witness or document is thought to be located, and shall also state the facts to be proved. If the Tribunal grants the application, the defendant shall be given such aid in obtaining production of evidence as the Tribunal may order.
Also, in Article 5 of Ordinance 7; which is comparable to Article 17 of the Charter, Subdivision E provides, under the procedures which the Tribunal has, as follows:
"The Tribunal shall have the power to appoint officers for the carrying out of any task designated by the Tribunal including the taking of evidence on commission."
THE PRESIDENT: What was that last word? I didn't get it.
MR. LA FOLLETTE: "...including the taking of evidence on commission".
THE PRESIDENT: Thank you.
Court No. III, Case No. 3.
MR. LA FOLLETTE: Article 7 of Ordinance 7, which is comparable to Article 19 of the Charter, also lays down the rules, with which we are acquainted, that the Tribunal shall not be bound by technical rules of evidence. It provides for the introduction of affidavits, and the last sentence is pertinent; I quote:
"The Tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the Tribunal the ends of justice require."
I think, in a sense, this Tribunal's ruling has indicated some form of examination it had in mind. As to the method of this examination, I think there is a question open for discussion.
Court No. III, Case No. 3.
I now turn to Article 14 of Ordinance 7. This follows Articles 12 and 13, naturally, which, in turn, provide for the setting up of the Central Secretary General. In Article 14, Subdivision F, we find this very interesting and, to me, not heretofore properly evaluated subdivision:
"F. The Secretariat shall arrange for aid to be given defendants and the Prosecution in obtaining production of witnesses or evidence as authorized by the Tribunals."
As a practical matter apparently that -- or as an operating matter, let me say, at least that provision is not presently in operation, in that I consider that the facilities for obtaining witnesses for the Prosecution are yet a subdivision of the Office of the Chief Counsel. Ordinance 7, I am inclined to think, did not so contemplate.
Now I come to this situation. We have received from defense counsel pursuant to our request a list of the affiants whom they wish to examine who have not appeared as witnesses. I do not say that the list is completely complete. It is made up of the list furnished me by Dr. Kuboschok and also separate lists furnished by Dr. Schilf, Dr. Schubert, Dr. Koessl, and Dr. Brieger. Where there were duplications we made one composite list. I am not going to read the names. I simply say at this time that there are apparently 30 or 31 affiants altogether. Some of these requests have been made that they be examined the same man by several counsel.
Now, I take this opportunity and this method of addressing the Court because I do not believe that it is a matter in which the Prosecution either is entitled or required to make a definite motion as to procedure. I do point out that also last week it was suggested that these cross examinations should be terminated prior to the time that the defense began their case in chief. With that I an not so sure that that is completely necessary, in fairness to the defense, as other adequate methods are provided, and I will state my reasons now for that last statement.
Court No. III, Case No. 3.
The best that happens under cross examination, usually, is to tear down the credibility of a witness, in this case an affiant, or to elicit facts which lead the Tribunal to find or give an indication that certain statements made by a witness or an affiant are not true. In a sense I do not believe that any defendant or any man defending -- and I have usually defended, if I may say so parenthetically -- prepares his defense on the basis of what he will gain through a cross examination. He prepares his defense based upon the full case which is presented by the Prosecution's evidence, and whatever he gains by cross examination is, in a sense, additional grist in his mill, something that he gains in addition. I cannot see that facts which are gained from cross examination are essentially, however necessary for the defense in preparing its defense. This leads me to this suggestion, coming not for the purpose of precluding the defendants -- and they, of course, are free to argue -- that this Court has the power to appoint a commissioner or commissioners to hear these witnesses. It is also within the obligation, under the provisions of Article 14 of Ordinance 7, of the Secretary General to produce these witnesses. They can be heard by commissioners, it seems to me, concurrently with the preparation of the defense's case in the interim which this Court will grant, I am sure, and also actually concurrently with the progress of the case.
There is some example for this, although not completely analagous, of course, in the procedure which was followed in the IMT, where concurrently with the trial a commissioner heard evidence on the criminal character of the organizations which were involved. I say that it is not completely analagous, but I do not believe that there is a serious detriment to the defense if this Court appoints commissioners.
I also want to make it clear that to the full extent of the prosecution's ability as individuals -- I am referring, if I may, to myself and to my colleagues who have appeared in this court room -- we shall do all that we can to assist in the production of these witnesses. But by the very nature of things, with numerous cases running, we don't Court No. III, Case No. 3.get our witnesses here when we want them, and in fact we have used private means to get some witnesses here.
The obligation apparently is fixed by Ordinance 7 upon the Secretary General. I only make this statement because we cannot do that which we haven't the power to do, that is, to produce all these witnesses in any orderly schedule. I do think that a commissioner appointed by this Court would exercise more authority and obtain access to more facilities even than are presently enjoyed, so I don't think that would injure matters.
JUDGE BRAND: May I ask you a question?
MR. LA FOLLETTE: Yes, Your Honor.
JUDGE BRAND: On your proposal for the appointment of a commissioner you would contemplate that the testimony be transcribed verbatim?
MR. LA FOLLETTE: Yes.
JUDGE BRAND: And submitted to both Prosecution and defense and the Court in the proper language for their convenience?
MR. LA FOLLETTE: Exactly, Your Honor, exactly. And it might be that the Prosecution might care to be present at some of those cross examinations before the commissioner, which I think would be quite proper. But the complete transcript would be made available.
Otherwise this Tribunal and both defense counsel and the Prosecution are confronted with a period of three or four weeks, possibly, in which these witnesses could be assembled and examined here before the full Tribunal.
Now I want to make myself clear again. I don't offer this as a motion. The Prosecution does not desire to injure anyone. I am simply confronted with the practical situation, which I am calling to the attention of the Court, and also of other proceedings which have taken place in IMT and of the provisions of the ordinance which governs our conduct. I am sure possibly defense counsel want to be heard, although, as I say again, this is not a motion but a statement of what I think is an expeditious manner of procedure.
Court No, III, Case No. 3.
THE PRESIDENT: We have passed the usual recess time, and we will hear from defense counsel upon reconvening.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
TEE PRESIDENT: We'll be glad to hear iron the defense counsel now in the Hatters that were discussed by the prosecution, more particularly, this matter of commissioners.
DR. KUBUSCHOK (Counsel for defendant Schlegelberger): From the statements made by the prosecutor I understand that we quite agree that cross examination by the defense concerning an affidavit given for the prosecution is a definite right for the defense according to general rules. The question arises, however, whether a simplification by way of the time required is possible. The suggestion made by the prosecution, in order to save time, to establish a commission does not seem possible to me, but it does not seem to me either that this would mean a saving of time. Legally, to transfer the cross examination to a conmission is not possible for the following reasons:
The presentation of evidence to this extent consists of two carts, the reading of the affidavit before the entire plenum of this Court and all persons concerned and then the cross examination.
The suggestion made by the Prosecution amounts to the fact that the second part of the presentation of Defense that is to say, the cross-examination - should be held before another plenum. That is to say, before a commissioner or several commissioners. That, according to general legal principles, is impossible. Presentation of evidence can not be performed in part before different groups of people. The group of persons which has witnessed the first part and gained a personal impression from this first part must have the opportunity also to be present during the second part in order to complete the impression gained or to correct it; and to see the person and to hoar the person who, by the words read from his affidavit, has spoken to the Court so far.
It is quite impossible to transfer that entire complex of questions to another group of people. That can be seen from the general principles as well as from Article IV, Article 5, No. E. It is pointed out that the possibility exists to delegate the gathering of evidence. It is not expressed there however that part of the evidence can be gathered by delegates. Therefore, the institution of a commission is not possible for legal reasons, according to my opinion and does not serve in any way to provide an objective impression to the Tribunal.
I also do not believe that a saving of time would be brought about. The Defense can only begin its case in chief and can only draw conclusions as to what witnesses arc required after the entire case in chief of the Prosecution has been concluded. By the cross examination to the extent of the hearing of the defendant as a witness and the calling of further witnesses can and will be determined. Therefore, the Defense could only start its case in chief after the commission also had finished with its work.
By establishing a commission no doubt time would be used. The hearings before the commission where the presence of the Defense Counsel is required - would be required - there would be no limitation as far as time is concerned, no reduction of the time needed....
At any rate, it does not seem possible that the work of the commission could continue while here the proceedings continue in the court room.
One last word in order to mention an occurrence before the IMT: The case was different there; there, the entire gathering of evidence for one subject was put into the hands of a commission - not part of it. There, the IMT, the hearing of the witnesses presented a saving of time, a considerable saving of time because hundreds of witnesses could be heard at the same time while the proceedings were going on since those witnesses were concerned only with the various organizations under indictment - but not with the individual defendants.
Therefore, a possibility of establishing a parallel working at the same time in the court and in the commission and therefore saving time - existed. I believe, therefore, that we will neither save time, nor that it is legally possible to transfer the cross examinations before a commission. I believe that the concern on the part of the Prosecution about the use of time is too far-reaching. I do not believe that the hearing of the individual witnesses who have made out affidavits will amount to such an extent of time as were the witnesses who have appeared heretofore.
A majority of the witnesses live in Nurnberg - or can be reached there. Therefore, I believe that also the beginning of the cross-examination does not have to be put off for any length of time.
THE PRESIDENT: I assume that Dr. Kuboschok speaks for the entire group of Defense Counsel, Am I right in that?
We will make no ruling. We will make no announcement on this at this time. We will take up other matters if the Prosecution has some other matters to take up at this time.
MR. KING: Prosecution will call at this time the witness Lt. Col. McLendon. It will be a matter of a moment or so before Col. McL. don arrives.
LT. COL. JOHN C. MCLENDON, a witness, took the stand and testified as follows:
JUDGE BRAND: Do you solemnly swear that the testimony you shall give in the issue now pending shall be the truth,the whole truth, and nothing but the truth?
LT. COL. MCLENDON: I do.
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. KING:
Q For purposes of the record, Colonel, will you state your name and official position?
A John C McLendon, Lieutenant Colonel, Field Artillery, Chief of War Crimes Liaison Detachment W, 7708 War Crimes Group, APO 178.
W By "Liaison Officer" you mean that you coordinate various matters of interest and concern between the War Crimes Group in Dachau, Augsburg and OCCWC here in Nurnberg?
A That is correct.
Q That is correct. Have you had occasion to inquire as to whether or not numerous persons have been indicted, tried and sentenced for the crime of murdering parachuted and downed allied fliers?
A I have.
Q Can you tell us how you came to acquire the information you are about to give, and at the same time answer in so doing these questions: Approximately the number of cases tried by the war Crimes Group in Dachau, the number of individuals accused in those trials, the number of allied fliers alleged to have been murdered, and the breakdown of sentences of the individuals indicted as a result of those trials, and the sentences given to the individuals so tried?
A I was requested by the Prosecution to got this information. I immediately contacted the Chief of the Counsel Section at Dachau, and discussed it on the hone, and requested that he send me a cable - commonly known as a TwX-
THE PRESIDENT: Will you raise your voice a little, please? Raise your voice a little; it is not quite distinct.
Witness: Very well, sir. I have a cable -- commonly known as a TWX -- from the Chief of Counsel at Dachau which is a detachment of the 7708 War Crimes Group. And I shall read it.
"From Dachau Detachment 7708 War Crimes Group, U.S.Army, APO 407. To: Liaison Detachment E, 7708 War Crimes Group, Office of Chief of Counsel for war Crimes, U.S. Army, APO 696A."
BY MR. KING:
Q Colonel, I think you are reading just a little too fast for the translators.
A "Attention: Lieutenant Colonel McLendon. Breakdown of flier cases tried Dachau Detachment 7703 War Crimes Group, U.S. Arny, APO 407. The following information is certified to the Prosecution in the Ministry of Justice case. 57 individual cases have boon tried involving the assault of murder of more than 100 American fliers:
The death sentence, 48; life sentence, 23; over 50 years sentence, None; 26 to 50 years' sentence, None; 11 to 25 years' sentence, 16; 6 to 10 years' sentence, 10; 5 years or less sentence, 48; acquitted, 24; Nol. pros., 5. Total number of perpetrators tried: 174."
"Originator: Lieutenant Colonel Durst, Counsel Section Signed Brazai."
Q. Colonel, just one more question. Do you have knowledge that the summary of cases involving the murder of allied flyers were tried for crimes committed on or after June 1, 1944?
A. I have discussed that specific question with Colonel Durst and requested his answer, and he says that the great majority were for crimes committed after June 1, 1944.
Q. The prosecution has no more questions of this witness.
THE PRESIDENT: Will defense counsel care to cross examine?
CROSS EXAMINATION
DR. SCHILF: Schilf for the defendants Klemm and Mettgenberg. With the permission of the Tribunal, I should like to put one question by way of cross examination to the witness. Colonel, is it known to you that before the court at Dachau, the objection was sustained by the defense when stating that in the case of air attacks by allied flyers violations of international law had been committed, and that therefore that was in favor of the defendants. Is it known to you that a sentence or a decision was reached by the court at Dachau according to which that statement was considered justified?
MR. KING: One moment, please, I, for one, do not understand the question, and I think that I am entitled to understand it before the witness is permitted to answer it. I understood Dr. Schilf to say that the objection made was that international law had been biolated and that that in some way accrued to the benefit of the defendants. Now if that is not what he said, I apologize, but I would like to have the question restated. I have this far failed to understand it.
DR. SCHILF: I repeat my question, and I shall speak very slowly. Is it known to you, Colonel, that the Tribunal at Dachau accepted the statement made by the defendants to the effect that the allied flyers, themselves, had violated international law by, for instance, shooting with machine guns on women who were in the fields, and that as a reaction on their part, the population, after these flyers had been downed or parachuted, lynched them; that, in other words, the Court considered that statement on the part of the defendants relevant and drew the conclusion there from that the defendants could present proof for these facts -- evidence, that is to say, for the fact that the allied flyers themselves violated international law?
MR. KING: May I ask Dr. Schilf if he intended that question to be answered, yes or no, since it was a knowledge question put to the witness.
THE PRESIDENT: That seems to be a direct question, and first of all at least must be answered by either yes or no. The question is do you know certain things, and the answer is either yes or no.
THE WITNESS: No, I have no knowledge of that specific question.
DR. SCHILF: I have no more question.
THE PRESIDENT: Does any other defendant counsel desire to cross examine this witness?
(No replies)
Will there be redirect?
MR. KING: NO. May we ask that this witness be excused?
THE PRESIDENT: The witness may be excused.
MR. KING: May we ask the Court and defense counsel to turn to Supplement Book No. 4. The first of the two documents in Supplement No. 4 is NG-612 and will become, when admitted in evidence, Exhibit 444. This document is apparently a summary of reports to be made by various officials in the Ministry of Justice at meetings held at least two different times. On page 2 of the English and German versions, we find the defendant Joel scheduled for two reports at a meeting held on Thursday, 19 November, and this is presumably based on other information in the document of 1942.
On page 3 of the English and on 4 of the German, the defendant Joel is listed as either to make or having made a report on the treatment of Jews and Poles as well as Russians in connection with the internal order of the Reichsfuehrer-SS.