Q Thank you. From looking over the files can you remember where the files were before the trial began?
A I can still remember that before the trial they were sent to Amberg at the request of the defense counsel in order to look at them.
Q Do you believe that the defendant Oeschey, as regards the protest of the defendant Wagner of 13 October against the appointment of defense counsel Buerkel saw it at all before the trial on the 20th of October?
A He might at the most have seen it shortly before the beginning of the session, because I can remember that it is ordered in the files that until the beginning of the trial they remain in Amberg. Thus Oeschey may not have seen them any more before the beginning of the trial.
Q Did the defendant Wagner, as far as you remember, during the trial, protest against her defense counsel in some way or other?
A No, she did not.
Q Lawyer Buerkel did represent her during the trial without any protest?
A. Yes.
Q Dr. Lipps, finally in conclusion, the case of the Pole which you mentioned. You did not see any files about that, did you?
A. No.
Q Do you still remember that this Pole attacked his employer with a dung fork and that he infured him seriously? Can you still remember that?
A I think I can still remember that he attacked, him which some object. Whether he injured him I don't know. At least I can not remember it any more.
Q But you do not consider it important?
A The possibility that that was a case I can not exclude.
DR. SCHUBERT: Thank you very much, witness. I have concluded the cross examination, Your Honor.
THE PRESIDENT: Witness, you stated concerning the Strobel case that in the first trial it had been pointed out to Strobel what he might expect, but I didn't understand who pointed it out to him.
THE WITNESS: The presiding judge said it.
THE PRESIDENT: Did he tell him what he might expect? Did he make that definite?
THE WITNESS: As far as I remember, yes.
THE PRESIDENT: What might he expect, according to the presiding judge's statement?
THE WITNESS: The death sentence.
THE PRESIDENT: Is there any redirect examination of this witness?
REDIRECT EXAMINATION BY MR. KING:
Q Dr. Lipps, I have your affidavit before me and there are several questions concerning to that I want to ask you at this time. First, concerning the question of the availability of documents to you during a trial, you state in the fourth paragraph of your affidavit
THE INTERPRETER: Your Honor, there is something wrong with the sound system.
THE PRESIDENT: One moment, Mr. King. It is near the recess time and we will give a little time to repair the transmission system. Do will recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. KING:
Q. Dr. Lipps. before the sound, system went out of order, I was about to ask you a question based upon a statement in the fourth paragraph of your affidavit. In the statement to which I am about to refer you say, and I'll read the whole sentence: I was nominated, to assist the judge. The documents were not available to me, and I was left to arrive at my own conclusion during the trial. Now, in your testimony a few moments ago, you said that the documents were not prohibited to me and I quote your exact words as they came over the sound, system. Can you explain the difference between the phrase "not prohibited to me", and "not available to me"? It seems to me that those two statements are contrary; if they are not contrary, will you kindly explain the difference?
A. I only heard the English of what you said. I cannot understand, the English.
Q. May we have the sound system tested so that -- We will take it over again now, I am referring to the fourth paragraph of your affidavit, in particular to one sentence which I will read. You say: I was nominated to assist the judge. The documents were not available to me, and I was left to arrive at my own conclusion during the trial. Now, you said in your testimony this morning that the documents, and I quote your own words: "were not prohibited to me." Now, my question is this: Can you explain the difference between the statement in your affidavit and your statement in your oral testimony this morning?
A. The difference is this, I wanted to say that if I had tried I would have been able to get the files, but with the Special Court at Nurnberg it was not customary for the associate judge to see the files beforehand.
Q. And when you say, "not available to you," you meant by that in your affidavit that you did not try to get them; is that correct?
A. They were not passed on to me, and I did not make any effort myself.
DR. SCHUBERT: May it please the Court, I believe that once again we are confronted with a translation error which unfortunately occurs frequently. I gather from what Mr. King has said that in the English copy it says that the documents were not available to me, were not available. In the German text, which in this case, is the original, the witness has stated, "I have no insight into the files." In other words he did not say at the time, that he had no excess to the files.
MR. KING: Perhaps the explanation clears this portion of my failure to understand the difference, perhaps it clears that up.
Q. Dr. Lipps, I have observed in your cross examination that you were attempting to qualify rather broadly man of the statements which you made positevely in your affidavit. Now, I want to know if you still agree with some of those positive statements which you made; and, I am going to read them to you verbatim and ask you whether or not you still adhere to the views which you gave as of the date of this affidavit, 28 December 1946. Now, the first statement I am going to read appears at the bottom of paragraph 4, in which you say: "I consider it a humiliation of one's juridical character to have to assist at a trial presided over by Oeschey." Do you still agree with that statement?
DR. SCHUBERT: May it please the Court, I object to this question. I did not refer to this sentence in the affidavit in my cross examination, and concerning this sentence, which is not concerned with establishing facts, but which merely is an assumption; I, therefore, think this question is not admissible.
MR. KING: May I say one word. The tenor of the witnesses testimony was to change the impression of his affidavit. In order to find out what his impressions really are, we have got to go back to what he thinks about certain aspects of the Special Court Procedure, as he discussed it in his affidavit.
THE PRESIDENT: It seems to me that the question which you are challenging is supposedly the difference between the one and the other.
You should confidence yourself to those things where there was some possible change of attitude. In this, I think Dr. Schubert is right. There was nothing said about this, and, therefore, it stands without any challenge.
Q All right, let us proceed to the question in the Strobel case. Dr. Lipps, do you recall the charge of the first indictment in the Strobel case?
A The indictment said that a crime on the part of the Malicious Acts Law had been committed.
Q Do you recall what the charge in the second, indictment was?
A I do not remember that.
Q Would it surprise you to know that the charge in the second one was the same as in the first; do you recall that now?
A I know that in the transcript, it says the Public Prosecutor made a charge out under the Malicious Acts Law, I mean the second transcript.
Q And, what was the maximum sentence under the Malicious Acts Law ?
AAs far as I can remember, prison or penitentiary.
Q For how many years?
A Five or six years.
Q Five or six years. And, yet, in the Strobel case, both indictments were based on the Malicious Acts Charge, and yet, the defendant was sentenced to death; is that correct?
A Yes, but I suppose in his oral plea, the Public Prosecutor extended the charge to the effect that the defendant was also to be evaluated as a dangerous habitual criminal.
Q But, he was not tried for that was he, in the indictment?
A In the indictment, no.
Q Is it you opinion that the Judge should know the law, the Judge in the case ?
A (No Answer)
Q I will repeat the question. You say the sentence exceeded the charge in the indictment. My question now, is, in your opinion, should not the presiding Judge in the case know the law; and, in fact, I will add to it, did not Oeschey know what the penalty for malicious utternaces was at the time when he sentenced this man to death?
A He did know that.
Q That is all. I want to refer to the last statement in your description of the Strobel case in which you said: "Without doubt the sentenced surpassed the usual limits for habitual criminals and from a legal point of view was most objectionable." Do you still agree now with that statement you made on 26 December 1946?
AAt that time, I had a long talk with the gentleman who interrogated me, and at first, he wanted to say it was untenable. I defended myself against that and finally we agreed on that expression objectionable" or "highly objectionable." I said that because the defendant had not merely committed a number of crimes which wire similar, as usually happens in the case of habitual criminals, but because his previous crimes were different from his last crimes; but, even then, I was of the opinion that the sentence was not wrong. It was, if one wants to put it that way, "daring".
Q You did not think then, that a sentence of death for a of five to six years, which was all that was possible, was legally objectionable. I am asking you for you personal opinion now?
A I am of the view that the charge was extended at the trial but the Public Prosecutor and that the defendant, in fact, had been indicted as a dangerous habitual criminal at the trial, that is -
Q Would you like to take the record and find any place in the record where the defendant was indicted for anything more than a sentence calling for sentence of more than five or six years in a penitentiary? I would like to have you point that out to me if you think there is any possibility of finding it in the record. Would you like to undertake that?
A It was shown to me at the time, and I found nothing on that.
Q That is all. I would like to go on to another of your statements in the affidavit. You referred to the Wagner case this morning. The Wagner case is also mentioned, in the affidavit. You said in connection with this case: "Oeschey's behavour in this case was another proof of his brutalitv and pitiless character." Now, this morning you made certain statements which made me wonder if you still adhered to this view. I ask you now if you do, and I think this question can be answered, yes or no. You may explain afterwards but answer it first, please, yes or no?
A No.
Q Will you explain it?
AAt my first interrogation, I read through the files again, and I concluded it from that. Afterwards I had misgivings of the statement. I rang up the gentleman and pointed out to him that it was merely a conclusion which was not really allowed to me as a witness, as I was only there to testify as a witness, and as to whether one could draw the conclusion that it had been brutal, one could not simply say that. During my telephone conversation I pointed out that the facts may have been such as of the day of the trial, they were established, that is, to say, that Oeschey before the trial did not hear of the application.
Q Did not hear of what application? I am talking now about the Wagner case.
A Of the application of the defendant not to have Lawyer Buerkel, but another lawyer as her defense counsel.
Q Let us take another sentence in your affidavit. Referring to the Role case which you do not identify.
A I do not know it.
Q Well, I will tell you about it. The last sentence in your affidavit concerns this case as follows: "I consider the sentence a monstrous one which was unjustifiable." Now, this morning you said, you made a statement which was quite different from this statement which I have just read.
May I ask you -
A Well -
Q Will you wait a minute until I ask my question. May I ask you whether or not you still agree with the statement you made in your affidavit? Will you answer it first, yes or no, and then afterwards explain it, if you wish.
DR. SCHUBERT . Just a moment witness. May it please the Tribunal, I object. In this case, too - in the case of the Pole - I only asked for facts and I did not ask for opinions which the witness gave in his affidavit. I therefore believe that the redirect question here is just as unjustified as it was in the previous case.
THE PRESIDENT : Do you have some comment to make, Mr. King ?
MR. KING . Well, there is certainly a difference in this, there is no doubt but what he says in this case there was a justifiable murder, so that it is different from what he says in his affidavit. What he says in his affidavit is different from what he said this morning. I am just trying to test to what extent he changed his position, which I gather is considerable.
THE PRESIDENT: He may answer.
BY THE WITNESS :
A. If the case was such as I remember it, I maintain my opinion of that time. Today I merely said that I can not exclude the possibility that the Pole attacked his master with a pitch fork and injured him seriously. I no longer know whether that is how the case was.
MR. KING : Witness, I have only one more question. This morning you have changed considerably the statements which you made in your affidavit --
DR. SCHUBERT : Witness --
MR. KING : Wait a minute, I am not finished. There is, of course, no reason at all why you may not change your opinion. I take it that that is your privilege. But I would like to have appear on the record perhaps some of the back ground information which is in my possession as to possibly why you may have changed your opinion.
May I ask if you did not, on Sunday, -- last Sunday -- May 25th, together with a number of other affiants to affidavits which have here been submitted in evidence, gather at the home of a defense counsel, together with certain other defense counsel, and discuss the position you were to take upon cross examination here, and in that discussion was it not pointed out to you, certain benefits which you might derive from altering the statements you made in your affidavit, will you answer that question, please ?
A. It was not on the 25th-
MR. KING : What were you told ?
DR. SCHUBERT : I object to this question. First of all, the question has nothing to do with cross examination. I did not object to the question as to whether the witness had been asked by me, or whether he had been told that he would regret it, for it is a matter of course that I as defense counsel would neither hold out to the witness any advantages nor any disadvantages, according as to how he relates his testimony, but I do object to the witness being questioned as to the manner in which I talked with him. According to the ruling of the Tribunal it is my right to talk to the witness before his examination. Mr LaFollette, senior member of the prosecution, told me the same thing. The prosecution on its part claims the right to talk with the witness, and the defense never objected to that right. Therefore, I do not believe that it is admissible that the witness should be asked as to the contents of my conversation with him.
THE PRESIDENT : It is your right to talk to the witness. You did talk to him. No complaint about that. But the prosecution is entitled to know what was said. Your objection is overruled.
MR. KING : I will put the question again.
BY MR. KING :
Q. What was said to you at your Monday conference ?
A.- The cases were discussed, and on the basis of my former statements I was asked supplementary questions of a similar kind as they were put to me today.
Q - At that time you were shown files, case files ?
A.- No, I was not shown any files.
Q. And following the putting of questions to you, was your probable answer discussed ?
A.- No. That was not discussed.
Q.- I want you before you answer this next question, to think it over very carefully. Did any one defense counsel, or other persons present at that meeting, point out to you any advantage which would accrue to yourself for changing your statements which you made in your affidavit ? Will you think that over carefully before you answer it ?
A.- Nobody promised me any advantages.
Q.- I didn't ask you that. I asked if any one pointed out any advantages which would accrue to you personally from changing your position. I assume that no one is in a position to promise you advantages. I am merely asking you whether they made you aware of what might accrue to you if you changed your position.
A.- No, nothing was indicated, nothing was hinted at. It wasn't discussed at all.
Q.- How long did this meeting last ?
A.- All afternoon -- we went out at noon, at twelve o'clock, and at eight, or seven, the train went back. But it was a private gathering, and we did not only discuss those cases but we also discussed general subjects.
Q. - I don't want to ask for names at this time, but can you tell me now, how many other gentlemen who have given affidavits and who expect to be called as witnesses, were present at this meeting. I don't want names. I just want the number of these people present at this pow-wow.
DR. SCHUBERT : May it please the Court, I object to that question. It has nothing to do with ascertaining the credibility or otherwise of the witness. It is not important at all how many persons attended that meeting as regards whether today's statement by the witness was correct or incorrect. The question has nothing to do with cross examination.
THE PRESIDENT : Objection over-ruled.
MR. KING : Will you answer the question, please -Apart from yourself ? --- One moment, please, I don't want to embarrass any defense counsel, or any other witness. Merely tell me the number of affidavits of other affidavits, who were present at the meeting, who expect to appear here as witnesses. Please do not give their names.
A. Apart from myself, three such gentlemen attended.
MR. KING : That is all, your Honor.
THE PRESIDENT : The witness may be excused.
(The witness was excused)
HERMANN MUELLER, a witness, took the stand and testified as follows :
JUDGE BLAIR : Hold up your right hand and repeat after me the following oath :
I swear by God, the almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE. BLAIR : You may be seated.
EXAMINATION
DR. SCHUBERT : May it please the Court, we are concerned with Document Volume II-C, Document NG-653, Exhibit No. 149.
BY DR. SCHUBERT :
Q.- Witness, please tell the Court your name and your profession.
A.- Dr. Hermann Mueller, Jurist, born 4 May 1910, resident at Aschaffenburg.
Q.- Dr. Mueller, on 15 January of this year you deposited an affidavit, about which I would like to put a few questions to you. You criticized in your affidavit the manner in which the defendant Oeschey conducted the trial, Can you confirm to me whether, in the trials which were conducted by Oeschey, the relevant points - that is to say, the points which matter ed were discussed ?
A.- They were discussed.
Q. - You then refer to the close relations of the defendant Oeschey with the Party. Do you know whether, and what influence, Oeschey had with the Gauleitung ?
A. No, I only put that down in my affidavit as a personal assumption, as is evident from the word "wohl", "probably".
Q. You then discuss his influence on the shaping of jurisdiction. Can you tell me through what channel that influence was exerted? Were you thinking of the directive discussions?
A. I myself never attended a discussion on directives, but I was able to ascertain, or at least I believe that I did ascertain, that Oeschey's opinion in the majority of cases was the decisive opinion.
Q. At the guidance discussions?
A. At the guidance discussions which, in their results, had to be passed on to the presiding judge.
Q. Dr. Mueller, until what time did you work with the Special Court in Nurnberg at the prosecution there?
A. From April 1942 I was with the prosecution in a department, (Referat) in which the sentences which had been demanded had to be dealt with.
Q. And that was until the end of the war?
A. Yes, until the end of the war.
Q. Is it correct that in the ordinary case, during the period when you were prosecutor with the Special Court, there was a directive concerning the increased extent of the punishment which came from the Ministery of Justice to the prosecution in Special Court cases?
A. In every single case we received a directive; I assume that that directive ordinarily came from the Ministery of Justice itself.
Q. You received the directive from the General Prosecutor?
A. We submitted two indictments together with the extent of punishment that was intended. If we received nothing, that was considered the directive to proceed accordingly at the trial. Other wise, express instructions were received either from the General Prosecutor, or in some cases directly from the Reich Ministry of Justice by teleprint.
Q. Dr. Mueller, I am now coming to the Strobel case. You say that Strobel was a man who had had many previous convictions. Do you remember that strobel had 48 previous convictions?
A. I cannot remember the number, but I know that there was a long register of punishments.
Q. Can you remember that in the case of the previous convictions it was not only thefts but all kinds of crimes?
A. I cannot make exact statements about the various sentences.
Q. Dr. Mueller, you say that the Reich Ministry of Justice ordered prosecutions on the basis of Article 2 of the Malicious Acts Law of 20 December 1934, Was that order, an instruction from the Reich Ministry of Justice on the basis of the guidance of jurisdiction which we discussed earlier?
A. No, no, that was a prerequisite of the trial.
Q. Without that information from the Reich Ministry of Justice, in otherwords, the prosecution could not have brought a charge?
A. That is right.
Q. You then say, regarding the transcript of the second trial, that is to say, after the trial had been suspended. --- For the moment I will withdraw the question.
Dr. Mueller, you will remember that the trial was suspended.
A. Yes.
Q. The decision to suspend the trial was based on the necessity to ascertain whether the defendant was a dangerous habitual criminal?
A. That is correct.
Q. Was that decision announced?
A. Naturally,
Q. Do you remember, Dr. Mueller, that in the interim period, that is to say, between the first and the second trial, the prosecution sent a report to the prosecutor in Nurnberg, that is to say, to their superior authority?
A. Yes, I remember that.
Q. I am going to show you the files of this case.
(Document submitted to witness).
Please read that letter and tell me whether that is the report which was submitted to the General Prosecutor at that time, please read it aloud.
A. The whole letter?
Q. Yes, the letter.
MR. KING: I wonder if we might have the letter somewhat better identified than it has been already.
DA. SCHUBERT: I did not understand.
MR. KING I have no objection to the reading of the letter, but I wonder, for purposes of future reference, if we may not have it better identified, such as the date, from and to whom, and all the other relevant facts which will help us later to identify it in the files.
BY DR. SCHUBERT:
Q, Will you read it please?
A. It is a letter from the Senior prosecutor in Nurnberg to the general prosecutor in Nurnberg, dated 19 January 1944, regarding penal proceedings against Georg Strobel for a violation of the Nalicious Acts Law. The text says:
"The Special Court suspended the trial of 30 November 1943 in order to examine the question as to whether the defendant is a dangerous habitual criminal. Sentences which are in accordance with Paragraph 20-A have been passed.
"The defendant, in the years 1917 to 1941, has had 44 previous convictions, among them 17 times for theft and fraud, 11 times for offensive behavior, physical injuries and resistance, twice for sexual crimes, and once for a serious sexual crime.
"Apart from a large number of short sentences, he was sentenced in 1923 to a penitentiary term of one year for theft, a repeat offense, and 1941 to one year and six months in a penitentiary for two attempted sexual crimes with a child. The medical officer of the District Court describes the defendant as an asocial character with a bad criminal prognosis.
"I intend, unless other instructions are received, to ask for the death sentence at the new trial."
Q. Dr. Mueller, now that you have read this, can you confirm that this was the report.
A. Yes, it was.
Q. That was the report which was submitted to the General Prosecutor between the two trials?
A. Yes, that was the report.
Q. Can you see from the files that you have before you whether the General prosecutor gave a different instruction?
A No. I remember that no other instructions were received.
Q Dr. Mueller, at the second trial, too, you were the Prosecutor, is that correct?
AAs far as I remember, yes.
Q Please open up the page where you will find the transcript on the second trial. It is correct that you were the Prosecutor?
A Yes, I was.
Q The transcript contains the remark that the Prosecutor brought tho charge orally in his plea and based it on the law against malicious acts.
A I do not remember any particulars of the way the charge was brought, but as the old charge Was not withdrawn, it can be assumed for certain that the transcript is correct, for oral additions were not customary when the indictment was read.
Q Dr. Mueller, would you have a look in the transcript and see what it says about the plea which you put forward?
A The Prosecutor asked that the defendant should be sentenced to death as a dangerous habitual criminal and should be sentenced to loss of civic rights for life and that he should also pay the costs.
Q. As regards your plea, it was made within the meaning, within the framework of the charge, is that correct?
A No.
Q But that is what you read out just now?
A But as far as the facts are concerned, it is not correct. That is what I mean. The plea here certainly was for a connection between the Malicious Acts Law and the law Concerning Dangerous Habitual Criminals.
Q I do not understand in what way that contradicts what you said just now.
A Well, since it says "within the framework of the indictment" I believed -- well, the indictment was extended at the trial. That is where I saw a contradiction.
Q The indictment was extended at the trial?
A Comparing the original indictment and the plea which I made at the end.
Q Dr. Mueller, between the first and the second trial was a defense counsel appointed for Strobel?
A Yes, according to Page 47 of the files. No, that is not correct. Page 42 at the back of the page. Page 47 names the person, gives a change in the name of the person who was appointed defense counsel.
Q A defense counsel was appointed by the Court?
A Yes.
Q Dr. Mueller, you say in your affidavit it is evident from the transcript that the defendant did not have his attention drawn to the fact that the legal point of view had changed. It is hardly possible that you remember the actual course the trial took?
A No.
Q It would therefore probably be more correct to say it is not evident from the transcript whether it was pointed out to the defendant that there had been a change in the legal point of view?
A I am basing myself on the correctness of the transcript.
Q Was the justice official Kastner the man who took down the minutes? Would you look that up, please?
A Yes, it was Kastner.
Q Do you know that Kastner's transcripts frequently showed defects?
A No, I really only know Kastner by sight as far as our official relations are concerned.
Q Were the defendant and his counsel informed about the fact that it was possible that the sentence might be passed on the basis of the Habitual Criminal Law?