A I do not know.
Q Do you remember that the criminal, who was a homosexual, had committed his offenses exclusively against juveniles?
AAs far as I remember, yes.
Q Was it because of that that the crimes was considered particularly grave?
A Yes.
Q I am now coming to the Fischer case. I have no files about that case. During your interrogation about that case, witness, did the prosecution put any files to you?
A I cannot say.
Q Witness, we are concerned here with a case of selfmutilation. What was the mandatory penalty under the law for that crime?
A In principle under the extraordinary war order the death sentence was mandatory. In cases of lesser gravity the death sentence did not have to be pronounced.
Q I am now coning to the Becker case. You say, Dr. Baeumler, that the witnesses who appeared in that case, some women whom Becker had defrauded, that they were of a doubtful character and that therefore a more lenient sentence would have been advisable. Do you knew that Becker, quite apart from those marriage frauds, had also committed fraud concerning the war damage Office?
A Yes.
Q What was the offense which in the assessment and in the fixing of the penalty was decisive?
Commission 111 Case 111
A The decisive point was the fraud concerning the war damage office.
Q And now coming to the Friedchen case, in that case you criticise the point that the feeblemindedness of Friedchen had not been taken into consideration and you point out that Friedchen, during his previous offense, had been granted the more lenient punishment of Article 1512. You locked out at the files again, Dr. Baeumler, and can you state that two previous decisions had been made, in one case Friedchen was granted Article 1512, whereas in the other decision the application of that paragraph was not granted. Can you remember that?
A. Yes.
Q. And what was the decision of the medical expert on the state of mind of Friedchen in that case which you had to judge?
A. According to the statements in the sentence, the expert's opinion said that the defendant was completely responsible for his actions, and Article 51 Section 2 concerning a reduced responsibility did not apply. I am now of the opinion, and was so at the time as is evident from my statement, that the expert should have granted the application of Article 51-B. In the trial before the military court, Article 51 section 2 was granted to this defendant. The court then shared the views expressed in Dr. Bauer's expert opinion.
Q. Dr. Baeumler, I am now coming to the Katharine Meyer case: field post thefts--robbery of 500 field post packages. You state that Katharine Meyer had not stolen all the packages but had only removed certain articles from the packages and had then posted the packages; that is to say, that the contact between the homeland and the front had not been interrupted. Do you know Dr. Baeumler, that the jurisdiction at that time had always established another point of view concerning field post thefts to the effect that those thefts were designed to shake the willingness of the soldier on the front to fight?
A. That is possible, but I cannot remember that now.
Q. Do you remember that the extent of those thefts was very considerable?
A. In my recollection, the extent was very considerable.
Q. According to your knowledge of the jurisdiction, do you believe that another special court would have arrived at a different decision in the case?
MR. WOOLEYHAN: Just a moment please. I object to that question on the ground, that the witness cannot be expected to know how another special court would decide a case.
JUDGE BRAND: He may answer. I take it your question is in substance whether the sentence exceeded the average in other jurisdictions. He may answer that question.
BY DR. SCHUBERT:
Q. Will you give your answer?
A. According to the instructions which appeared in the judge's letters, and according to the jurisdiction of other special courts, I am inclined to take the view that another special court too, against my own opinion, would have arrived at the death sentence.
Q. I am now coming to the Pirner case Dr. Baeumler: the juvenile criminal. In that case, you point out that Pirner had been pronounced capable of improvement by the medical expert. In your recollection, was the decision based on the point that Pirner was perhaps no longer regarded as capable of improvement?
A. Two different sets of questions must be kept apart here. There is the question of the juvenile as a serious criminal and the question of the habitual dangerous criminal. Concerning the question of the juvenile dangerous criminal, it was assumed that he was such a criminal; whereas concerning the examination of the dangerous habitual criminal, it was left open whether he was capable of improvement.
Q. Do you remember that in that case the expert, Dr. Bauer, submitted a written expert opinion?
A. I can remember that.
Q. In your recollection, did Dr. Bauer take up the view that Pirner, concerning the offenses he had committed was 18 years old, was not to be identified with a person above 18?
Dr. Baeumler, did you understand my question?
A. I assumed that that was no question, but that it was just a statement made by you.
Q. Is it correct that that was mentioned in Dr. Bauer's expert opinion?
A. I can remember that.
Q. Do you also remember that the sentence made different statements?
A. The sentence was of the opinion that the defendant also concerning those offenses he had committed before he was 18 years old, had to be evaluated as person of 18 or above 18.
Q. Concerning the deviation of the sentence from the written opinion of the expert, Dr. Bauer, can you give an explanation?
A. I have to refer to my earlier written statement. It might perhaps be possible that the expert Bauer at the trial deviated from his written expert opinion.
Q. You consider that possible, Dr. Baeumler?
A. I cannot make any definite statements because the records do not mention that point. I think that theoretically that is possible.
Q. While you were working at the special court, did that court at any time depart from the oral or written expert opinion of the medical expert?
A. I cannot remember a case where the court deviated from that expert opinion.
Q. Only one more final question. Was the fact, or shall we say the legal assumption, that Pirner was a juvenile serious criminal, that concerning the offenses he committed before he was 18 he was to be evaluated in the same manner as a person above 18----were those considerations essential for the decision?
A. That depends probably upon the point whether the majority of those offenses were committed before he was 18 or after. As far as I remember, the majority of his crimes were committed after his 18th birthday; and as far as I can recollect, because of those offenses, that is to say in a continuous connection, that is legally one offense, it was for that that he was sentenced. So that the offenses committed before his 18th birthday, perhaps when the case was evaluated had the smaller share and were less decisive than those offenses which were committed after his 18th birthday.
Q. Witness, do you remember that all offenses concerning the period of time were all around Pirner's 18th birthday, either before or after?
A. The various dates of his crimes, I can no longer remember, but I believe it is correct that those crimes were committed shortly before or after the 18th birthday. I have to correct myself, shortly after he completed his 18th year.
Q. Now coming to the Schnaus case. You say Schnaus, who had stolen a sum of more than 100 marks from a widow which was a so-called gift for parents, of soldiers killed in action, you say that Schnaus had said that he had not known where the money came from. Do you know whether Schnaus said that at the trial too?
Commission III, Case III A.- I should assume so, but I cannot make any definite statement on that point.
Q.- Can you remember whether Schnaus knew the origin of the money when he used it?
A.- He know about it, because as far as I remember after the theft the widow told him about it.
Q.- Dr. Baeumler is it correct that the Schnaus case was one of the first, if not the first, cases on which you worked at the Special Court?
A.- As far as I know it was the first case in 1943; I had worked at the Special Court before -- in 1940 for two months.
Q.- Did you, when the Schnaus case was tried, have the necessary experience with the Special Court?
A.- No.
Q.- Well, Dr. Baeumler, you also mention the cases of foreigners. Can you remember cases where innocent foreigners were sentenced?
A.- No.
Q.- Do you remember a case where a sentenced Czech was acquitted by Oeschey at the re-trial?
A. I can remember such a case; the Czech was sentenced for offenses against the Malicious acts Law, on the basis of testimony given by a Czech who incriminated him under oath. Later on this man was tried for perjury, and the witness was punished for perjury. Then the prosecutor requested re-trial of the Czech who originally had been sentenced for offenses committed against the Malicious Acts Law. During the written proceedings the defendant was acquitted by the Special Court.
Q.- Was Oeschey the presiding judge?
A.- When he was acquitted, yes. Whether he was also the presiding judge when the Czech was sentenced I cannot remem Commission III, Case III ber.
Q.- Did the defendant receive compensation because he had been detained innocently?
A.- For the damages he had suffered from his arrest, and for the pay he had lost, he was compensated.
Q.- Dr. Baeumler, you say that Oeschey was very severe in his attitude toward Poles; in 1943, or as from 1943, you worked with the Special Court. Did you, with Oeschey, witness many cases against Poles?
A.- No. As far as I remember there was only one case, which, as far as I know, was discontinued; but I don't know for certain.
A.- Therefore, then you cannot say for certain that Poles were perhaps sentenced to death?
A.- I don't remember that, but I must emphasize that that attitude on the part of Oeschey was also evident from other statements by Oeschey and in this case, too, it was emphasized.
Q.- Dr. Baeumler, I am now coming to the last case -Berth, Schwarz and five other persons, who had committed theft, concerning parcels from the American Red Cress. In that case, apparently, you criticized the point that the sentence had been too lenient.
A.- I did not understand you.
Q.- I am now coming to the case of Berth, Schwarz and five other persons. That was a theft of American Red Cross parcels. It appears that you are of the view that the sentence passed on the defendants was too lenient. Do you in this case consider the death sentence correct?
A.- I said that Oeschey's opinion that the case of theft and squandering the loot in the black market was highly ob Commission III, Case III jectionable, and I shared that view of Oeschey.
I am of the pinion that the point was -- that the main point was these things had been stolen from The Red Cross parcels; as to the death sentence being advisable in this case, I did not say so, and I am still of the opinion that the death sentence was not necessary, but that the offenders should have been sentenced as enemies of the people -- just as those persons who had stolen packages in the field. The question as to whether the defendants were sentenced at the time as public enemies I can no longer answer, and when I deposed my written statement I did not do so either.
Q.- Dr. Baeumler, do you know that the indictment concerning the four main defendants in that case quoted Article IV of the Law Against Public Enemies?
A.- I do not remember, but I think it is possible.
Q.- Do you also think it possible -- as unfortunately we no longer have the sentences -- do you think it possible that the defendants were sentenced as public enemies just because the theft concerned gifts from the American Red Cross?
A.- That is possible Dr. Baeumler, do you perhaps remember that the crime at the trial appeared of lesser gravity that had been evident from the indictment?
A.- That is possible.
DR. SCHUBERT: I have concluded my cross examination.
EXAMINATION BY DR. KOESSL: (Attorney for Defendant Rothaug) Q.- Witness, in your affidavit you also criticized Rothaug' s manner of conducting trials.
Through Rothaug's manner of conducting a trial, did the facts become twisted or distorted?
Commission III, Case III A.- This question would answer in the negative.
Q.- The facts which had to be established for sentencing the defendant?
A.- Kindly repeat your question.
Q.- Did Rothaug's manner of conducting a trial twist or falsify the facts, or were the facts established truthfully, and was the sentenced based upon them?
A.- The facts were established beyond all doubt.
Q.- Did you observe that Rothaug twisted legal provisions and defeated the law?
A.- No.
DR. KOESSL, I have no further questions.
MR. WOOLEYHAN: There is no re-direct, Your Honor.
JUDGE BRAND: The witness may be excused.
Dr. HUGO SUCHOMEL, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
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)
You may be seated.
EXAMINATION BY DR. KUBUSCHOK: (Attorney for Defendants Von Ammon and Schlegelberger) Q.- Witness, you have deposed an affidavit, dated 21 February 1947 -
JUDGE BRAND: Will you inquire of his name, and identify the document.
DR. KUBUSCHOK:NG-2253, Exhibit 419.
Commission III, Case III
MR. WOOLEYHAN: Not NG, but NO -- NO-2253, Exhibit 419.
DR. KUBUSCHOK:NO-2253, Exhibit 419, Document Book VIII-A.
JUDGE BRAND: And the witness' name?
A.- Dr. Hugo Suchomel.
JUDGE BRAND: You may proceed.
Q Witness, I am now going to put a question to you. In this affidavit, on the second, page, you refer to a conference which was held during the second half of 1942, at a time when Thierack was already Minister of Justice, and which was concerned with the euthanasia question. You mention that, in your recollection, several gentlemen of the Ministry were present, among others, you mention the name of Ammon. Witness, your recollection of those who attended that conference, is it absolutely correct or is it possible that your memory may have been at fault on some points?
A Concerning that paragraph of my affidavit I have to make a correction. I remember that that conference was secret; for secret conferences only persons were invited who in some way or another were concerned with the subject which was discussed at such a secret conference; that was based on a so-called order by the Fuehrer Fuehrerbefehl according to which every official was allowed to receive information about secret matters only to the extent required for the particular official's work. At that conference referents of the Penal Division, that is to say, Division IV Had been invited; probably only those officials who possibly might have had to deal with euthanasia cases. If my recollection is correct of all the gentlemen whose names I have given here, the names of Ministerialrat Joel, Ministerialrat Ammon, would have to be omitted, also Ministerial Dirigent Grau, and Ministerialrat Rietsche, because at the time when that conference was held those persons still belonged to Division III. And, Division III only dealt with legislative matters. Regarding Oberreigierungsrat Dr. Hans Heder, my recollection is certainly correct. As far as Ministerial Dirigent Mettgenberg is concerned, Ministerial Millke, and Dr. Westphal, I cannot altogether exclude the possibility that one of these gentlemen perhaps was not present; be it that he was on leave or had gone on an official tour or was ill. For the rest, I have nothing further to say about the affidavit.
Court, III, Case III
Q A supplementary question. Did von Ammon, at any time, have anything to do with euthanasia questions?
A No.
MR. WOOLEYHAN: I object, your Honor. There has been no foundation laid to show that this witness is qualified to answer that question. It calls for a technical knowledge of the Ministry's functions, and there is nothing showing either in the affidavit or here that he is qualified to pass an opinion on that question.
THE PRESIDENT: The objection will be sustained.
MR. WOOLEYHAN: I also ask, your Honor, that the answer be stricken.
THE PRESIDENT: The answer will be stricken. It is not within the purview of the cross examination under this affidavit.
Q Do you know von Ammon through official contacts and privately?
A I did not know him privately, but I did get to know him through our work.
Q What you found out about him through your work, does that entitle you to assume that von Ammon during his work was always endeavoring to adhere to a human course?
A Dr. von Ammon was not my subordinate, therefore, I cannot give any information about Ms work.
Q Your knowledge of him from living together from working together in the same building at the Ministry, what impression did that give you?
A Dr. von Ammon, according to my own personal impression, was a quiet official, who, in no way, gave me the impression of a particularly ardent person.
Q Your position as Sub-division Head for Austrian Legal Affairs since 1939, probably gave you an opportunity to get to know the Undersecretary of the time, Dr. Schlegelberger, in your work?
A Yes, I became acquainted with Dr. Schlegelberger for the first time when he came to Vienna at the end of 1938 or at the beginning of 1939 he asked the staff in the Ministry of Justice in Vienna whether they were willing to be employed outside of Austria.
When in March 1939, I came to the Ministry of Justice, at first I had nothing to do in my work with Under-Secretary Schlegelberger, for I had to work exclusively on the penal legislation for Austria; penal legislation was under the direction of Under-Secretary Dr. Freisler, whereas Under-Secretary Schlegelberger dealt with civil matters.
MR. WOOLEYHAN: I object to further questions on this matter for the reason that the defendant Schlegelberger is in no ways mentioned in the affidavit.
THE PRESIDENT: Your examination clearly exceeds the scope of the affidavit; there can be no question about that. If you desire to make this witness your own, vouching for him as to his credibility, to that extent, the Commission will hear such testimony as you may offer in behalf of the defense, as your witness; otherwise, the objection must certainly be sustained.
DR. KUBOSCHOK: As the witness lives in Vienna, and as it would be difficult to recall him, I would like to claim him as a witness for Schlegelberger, and would like to direct questions to him as that.
MR. WOOLEYHAN: In that event, your Honor, I request a 24 hour notice in order to be able to prepare some kind of cross examination.
THE PRESIDENT: Under the circumstances, the witness being a resident of points rather far distant, we will permit the Defense Counsel to examine him in behalf of the defendant Schlegelberger; and, we will shorten the time allowing the Prosecution to reall this witness the latter part of this afternoon for cross examination. We will not hold him ever for the full period of 24 hours under the circumstances. You may proceed.
DR. KUBOSCHOK: May I proceed? Did I understand that correctly?
THE PRESIDENT: Yes.
Q Witness, you stated before that Under-Secretary Schlegelberger did not deal with penal matters, but that was the exclusive sphere of Under-Secretary Freisler. Did that distribution of spheres of work remain in force after the death of Guertner, and during the interim until the appointment of Thierack?
Did Freisler remain Undersecretary?
A Yes, because Under-Secretary Schlegelberger was put in charge, of the Ministry of Justice. The distribution was not changed in any way. The Penal Division continued to send us only instructions issued by Freisler Under-Secretary. To what extent Under-Secretary Freisler's before or after, consulted with Under-Secretary Schlegelberger, I do not know.
Q. From your knowledge in an official and other capacity of your superior of the time, Dr. Schlegelberger; and furthermore from your knowledge of the personality of the later Minister of Justice Thierack - can you give us a brief summary and account of the personality and the course under Minister of Justice Guertner, Under-Secretary Schlegelberger and Minister of Justice Thierack?
MR. WOOLEYHAN: One moment, please. Your Honor, this is obviously calls for an oration of some length which can wander in any direction. I cannot conceive from the question asked in which direction it is headed I ask for a specific question, on some specific point.
JUDGE BRAND: The objection is overruled.
BY DR. KUBUSCHOK:
Q. Witness, will you kindly answer the question?
A. I gained the impression that in the sphere of penal legislation the driving force for the extreme severity of the National Socialist laws was Under Secretary Freisler. When Minister Thierack took over office he, to begin with, reserved to himself penal matters and penal legislation because under secretary Rothenberger was appointed to deal with civil matters. Minister Thierack and also Under Secretary Freisler both upheld a very severe attitude. When in 1942 -- and that was at the end of March because Ernst Schaefer, the Ministerial Director at that time had retired and the senior Ministerialdirigent Dr. Leopold Schaefer had fallen seriously ill -- I had to take over the direction of penal legislation for the Reich as well, I called on Minister Thierack twice and put to him that German justice had lost all standards in meeting out sentences; that the death sentence was being applied to an extent which was altogether untenable, and in particular I called his attention to the fact that I had received a letter from the front in which a front line soldier complained that a man who had raped and murdered his wife had been sentenced to death, just as a farmer who had slaughtered cattle black. I drew Minister Thierack's attention to the fact that because the death sentence has no gradations it was impossible to pronounce death sentences for minor offenses, for black slaughtering, on such a scale as was actually being done.
Minister Thierack told me that while there was a war on he could not become soft. He admitted that state of affairs was untenable for peace time, and that not only legislation but practice, too would have to become more lenient but only after peace had come. When next, at the beginning of 1943, the former prosecutor general of Koenigsverg, Dr. Vollmer, took over Division IV and later on also Division III, that severe course became even more evident than before.
Q. Can Schlegelberger's resignation and Thierack's taking of office be described as a change on the general course at tho Ministry towards severity?
A. As far as penal legislation is concerned increased severity was hardly possible. In individual penal matters Dr. Freisler already adhered to a very severe course. That policy under Thierack became even more harsh, and that - because Thierack, as he said, at the suggestion of Hitler, wanted to decimate the criminals so that the good elements would not be killed in action at the front while the dangerous criminals would remain incarcerated in penitentiaries. Under Thierack, therefore, the number of death sentences rose by leaps and bounds.
Q. Did you, during your work at the Ministry, gain the impression that Schlegelberger, in the direction of affairs after the death of Guertner, generally speaking adhered to Guertner's policy?
A. I had the impression that Guertner's policy was continued under Schlegelberger. In the sphere of penal law, however, tho policy had already been laid down by Freisler and that policy laid down by Freisler did not change under Schlegelberger. In any case, it did not become more severe.
Q. From your collaboration with Schlegelberger would you give us an account of Schlegelberger's personality?
A. I can hardly talk of a collaboration with Under Secretary Schlegelberger because, as I said before. Under Secretary Freisler governed matters of penal legislation; but I was under the impression that Under Secretary Schlegelberger in no way would have urged a policy which would have made special concessions to the demands of the Party.
I can no longer remember details today because those points which I had to deal with in matters concerning Schlegelberger's department, I do not remember any more. Their number must have been small. Concerning the civil department and its work I gained the personal impression that the outstanding scientific position of Schlegelberger, at any rate, did not promote a change such as happened in penal legislation. Perhaps it even detained it.
DR. GRUBE (for defendant Lautz): May it please the Court, I do not wish to question the witness on his affidavit, but I would like to question him as my own witness under the same conditions as Dr. Kubuschok has just done. Would you permit me to address some few questions concerning the defendant Lautz to this witness?
JUDGE BRAND: Mr. Wooleyhan, do you think that you can adequately prepare for the cross-examination if the witness is returned here the latter part of the afternoon after some interventing witness?
MR. WOOLEYHAN: Yes, your Honor.
JUDGE BRAND: Do you think you can do that?
MR. WOOLEYHAN: Yes, Your Honor, we have no objection.
JUDGE BRAND: I think it will save time. I take it that the defense has no objection to this intervention by some of their own number, in spite of the fact that we are sitting only as Commissioners today. If you have any objections they will certainly be sustained.
The Commissioners will permit you Dr. Grube, to make him your witness.
I am advised that technical reasons require us to take a recess at this time.
(A recess was taken)
Commission 111 Case 111
THE PRESIDENT: Before the examination begins, the Commissioners have considered that it should be a matter of record that such testimony as the defense may introduce beyond the scope of cross examination will be certified to the full Tribunal and will be considered by it as being in evidence. I assume that is the purpose of defense counsel in introducing this evidence.
DR. GRUBE: Yes.
THE PRESIDENT: One further matter. Inquiries have been made concerning the manner in which the testimony shall be recorded during the sitting of the Commission. The transcript will continue with the same paging and in exactly the same manner as if the Tribunal were sitting at this time. The pages of the transcript which represent the hearings before the Commission will be certified to the full Tribunal as being the evidence taken before the Commission, but the paging will continue exactly as it would continue if the hearings were before the full court.
MR. WOOLEYHAN: Your Honors, before the direct examination proceeds any further of this new defense witness, the fact that he is now a defense witness has raised a sudden problem not heretofore foreseen. The problem is this-- the Prosecution has retained two affidavits of Dr. Suchomel which we had intended to use as a rebuttal evidence. The defense, as I understand from Dr. Brieger during the recess, likewise has an affidavit from Dr. Suchomel which they had intended to use in their case in chief. Since part of the defense's case-in-chief has been suddenly projected into this proceeding, we feel that some ruling should be made as to the admissibility of these affidavits now, because I for one fear as possible prejudice in not being able to get these affidavits in after this witness leaves. I think Dr. Brieger has something to say about that too.
THE PRESIDENT: An inquiry: What would counsel for both sides think about putting in all of your affidavits and completing thereafter the verbal examination of this witness upon all of them?
Commission 111 Case 111
MR. WOOLEYHAN: That was my point in bringing up this matter now. That is agreeable with me.
DR. BRIEGER: On my part I do not want to speak to the suggestion made by Mr. Wooleyhan, but I prefer to have one of those colleagues speak whose client is concerned.
THE PRESIDENT: I am sorry, but the translation didn't come through to the bench.
THE INTERPRETER: Dr. Brieger said, I don't like to speak myself to what Mr. Wooleyhan has said, but I should prefer to have another one of my colleagues speak whose client is affected by this matter.
DR. ORTH (Counsel for Defendant Altstoetter): I had the intention in defending my client Altstoetter to submit an affidavit by the witness Suchomel. The affidavit is up to now, available only in the German text. Up to now it has not been mimeographed. Therefore at this time I can only submit it to the court in German in one copy. That is the original. I believe that this would without doubt not be fair to the prosecution, because the prosecution should also know this affidavit. Therefore if the court is in agreement, I should like to submit the affidavit only when I come to my case in defense of Altstoetter.
THE PRESIDENT: Where is this witness residing, Berlin?
MR. WOOLEYHAN: In Vienna, Your Honor. I might like to add to Dr. Orth's remarks that the documents that we wish to submit at a later time in rebuttal that comprise the affidavits of this witness are not ready at the moment. They arc being prepared, but they a re not ready.
THE PRESIDENT: Then the suggestion which we made appears to be impossible.
MR. WOOLEYHAN: It appears to be impossible so far as the German translation of Dr. Orth's. We could get our exhibits in this afternoon, but I could not possibly cross examine on this. I was not aware of the fact that he hadn't had it translated.
THE PRESIDENT: I assume that the Prosecution will want the right which has been accorded to the defense, to have this witness produced Commission 111 Case 111 for cross examination upon the affidavit which he will later submit.