Commission III - Case III
Q. Excuse me, Dr. Suchomel. I believe you said before your were in error on those two gentlemen and since they are not concerned here I think we need not repeat it.
MR. WOOLEYHAN: Your Honors, that is all the redirect examination I have on the affidavit and if there is no objection I would like to proceed to a brief cross examination of Dr. Suchomel now as a witness for the defense Court No. 3, Commission III CROSS ELIMINATION BY MR. WOOLEYHAN:
Q. Dr. Suchomel, this morning you stated that you had always considered the defendant Schlegelberger both as Under-Secretary and later as Acting Minister as being concerned with civil affairs as distinguished from criminal, is that correct?
A. I am sorry, I do not get that. That in many cases I cooperated with him, I do not say in a few matters.
Q. In a few matters you said what? Please repeat that for us.
A. In a few matters only did I have anything to do with Dr. Schlegelberger.
Q. I realize that, doctor, but this morning under direct examination by some of the defense counsel, you stated that defendant Schlegelberger was officially responsible for civil matters in the Ministry as distinguished from criminal which wore handled by Freisler. Is that what you said or not?
A. Yes, that is correct.
Q., That being the case, doctor, I am going to show you a book, and when I show it to you, I would like for you to describe what it is to the court.
(Witness is given a book)
A. That is the Reich Law Gazette, Reichsgesetzblatt, from the year 1941.
Q. Now, Dr. Suchomel, is that the official organ which published the laws and decrees of the Reich Nazi Government of that year?
A. Yes, it is.
Q. Now, doctor, please turn to Page 164.
A. Yes.
Q. What is the title of the decree of 20 March 1941 that you see on that page?
A. Decree Concerning the Competency cf the Criminal Courts in the Reichsgaus of the Ostmark cf 20 March 1941, page 164.
Q. Now who signed that decree?
Court No. 3, Commission III.
A. The Reich Minister for Justice, entrusted with the conduct of affairs, Dr. Schlegelberger.
Q. Would you say that was a civil matter or a criminal matter?
A. That is a criminal matter. That is a matter concerning criminal law.
Q. Now, doctor, please turn to page 248.
A. Yes. Second Decree for Supplementing the Decree Concerning the Exercise cf Criminal Jurisdiction in the Protectorate cf Bohemia and Moravia of 5 May 1941. Signed Reich Minister cf Justice entrusted with the conduct of affairs, Dr. Schlegelberger.
Q. Now, Dr. Suchomel, what do you find on Page 552?
A. 552. Third Executive Decree Concerning the Decree about the Competency of the Criminal Courts and Special Courts and other Regulations of Criminal Procedure of 1st September 1941. Signed entrusted with the conduct of affairs, Dr. Schlegelberger.
Q. Now, what do you find on Page 576, doctor?
A. What page? 576, Police Decree on Opening Licenses for Public Houses of 22 October 1941. The Reich Minister of Economy.
Q. No doctor. Just a moment, please. On Page 576, there is a decree signed the 19th of September 1941.
A. Yes. Executive Decree Concerning the Decree Introducing the Law About Cancellations in the Criminal Reports and the Decree about Criminal Records in the Reichgaus of the Ostmark of 19 September 1941. Signed entrusted with the conduct of affairs.
Q. What was that again? Who was it signed by?
A. All that has boon signed by Dr. Schlegelberger; but I must say that we only discussed these decrees with Under-Secretary Freisler; that Under-Secretary Freisler then submitted them to the head f the Reich Ministry cf Justice. The reports were not held before Under-Secretary Schlegelberger. I do not make my reports to Schlegelberger, but always to Under-Secretary Dr. Freisler. The rest then was a matter for the Under-Secretary Freisler who evidently, concerning all matters which had to be signed by the Reich Minister of Justice, at the time reported Court No. 3, Commission III to Under-Secretary Schlegelberger.
I never reported on these decrees to Under-Secretary Schlegelberger.
Q. Dr. Suchomel, we are not at the moment concerned with to whom you reported. We are concerned with whether or not in your opinion the statutes which you just read from the official legislation organ before you were concerned with criminal matters or civil matters. Which were they?
A. Well, those matters, no doubt, dealt with penal legislation, I must point that out, dates from that period when Under-Secretary Schlegelberger had the direction. This morning I only said that I, as a member of the penal division, only dealt with Under-Secretary Freisler.
Q. Yes, doctor, I believe we understand that now. Thank you. Now will you hand this to the witness.
(Witness is given document)
Now, Dr. Suchomel, will you please describe that paper which you hold in your hand. Tell the court what it is.
A. To the Reich Minister and Chief -- The Reich Minister of Justice, entrusted with the conduct of affairs, Berlin 29 October 1941. To the Reich Minister and Chief of the Reich Chancellery, Berlin, W-8, Voss strasse 6. Re: Penal Matters against the Jew Luftglas. Luftglas not Luftgas. SC-12, GS 304041, Senior Public Prosecutor in Kattowitz.
Q. One moment, Dr. Suchomel, does that appear to be a letter with the letterhead which you have just read?
A. Yes, that is a letter with a letterheading.
Q. Now who signed the letter?
A. It is Schlegelberger's signature.
Q. What is the subject of the letter?
A. The Case Against the Jew Luftglas.
Q. Would you say that was a criminal matter or a civil matter, doctor?
A. That is a criminal case, but from the District Kattowitz.
Q. Your Honors, for your information, the document from which the witness just read was Exhibit 88, which is already before the Court Court No. 3, Commission III.
in evidence.
Now, Dr. Suchomel, this morning you similarly stated with regard to the defendant Rothenberger that while ho was Under-Secretary of the Ministry of Justice, he was concerned with civil matters as distinguished from criminal. Did you not?
A. Under-Secretary Rothenberger on principle only dealt with civil matters. With every Under-Secretary, it was possible that reports had to be made about penal matters too, in particular when death sentences were concerned, and when the Minister could not be reached. For a while, Under-Secretary Rothenberger was the only Under-Secretary, if I remember correctly, and minister Thierack ordered that penal matters on principle were to be submitted to him. But it is altogether possible and even probable that when the Minister could not be reached individual cases were reported on to Dr. Schlegelberger, in particular death sentences. I, myself, believe that I can testify that I never reported on such penal cases to him. But I must say that it is altogether possible and even probable that in the absence of the Minister, urgent cases were reported on to Under-Secretary Rothenberger. But I cannot say anything in virtue of my own observations. And I took good care, as a witness, not to testify to anything which I do not know from my own observations. That fact that --
THE PRESIDENT: Mr. Witness, may I ask you one question. Pardon the interruption. In so far as the testimony may show that Dr. Schlegelberger and Dr. Rothenberger dealt with criminal matters, you would not say that they had exceeded their legal authority, would you; that is, that they had violated their duty in dealing with criminal matters?
COMMISSION III CASE III
A No, I did not mean to say that; certainly it is not an infringement of duty; that was entirely a distribution work inside the Ministry, but the government position of Under Secretary properly placed the duty on him to deal with matters were concerned, he was tied by the instructions of the Minister, and I know from my own observation that Minister Thierack when he took over office, when Rothenberger appeared, that he reserved penal matters to himself. I can only repeat that when the Minister was not available, no doubt the Under Secretary did decide on urgent penal matters.
MR. WOOLEYHAN: That is all, Your Honors.
THE PRESIDENT: The witness may be excused.
BRUNO GRUENWALD; 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. ASCHENAUER: (Attorney for Defendant Petersen)
Q Witness, please give your name.
A My name is Bruno Gruenwald; I was born on 18 December, 1879 in Berlin; I am an attorney at law, at Wilmersdorf, Laubenheimerstrasse 24.
Q When were you admitted as a defense counsel for the People's Court?
A From 1934 until the beginning of 1945.
Q The cross examination refers to an affidavit in Document Book Volume VII-A, NG-535, Exhibit 283. Witness, were you an officially appointed or freely chosen defense counsel?
COMMISSION III CASE III
A In most cases I was appointed official defense counsel. I had some, but only a few cases where I was chosen defense counsel.
Q Do you know the conditions for admission as defense counsel before the People's Court?
A No, I am not acquainted with them personally. I was entered in the list of defense counsel at the suggestion of the Lawyers Chamber, without having made an application myself.
Q Were all officially appointed defense counsel party members?
A No, I myself was not a party member either; and I know of several other colleagues who were not party members and did not belong to any formation of the party.
Q For what reasons were free defense counsel rejected?
A I do not know any details; the fact that free defense counsel were rejected has to be admitted; whether political reliability or other reasons were decisive never became known to me in detail.
Q How many lawyers' letters did you receive?
A I only received one lawyers' letter.
Q Can you remember whether in that letter there were instructions and orders?
A No; as I convinced myself yesterday when I looked at a copy, only clemancy pleas were discussed which probably had not found the approval of Minister of Justice, Thierack; further more, I remember since yesterday I saw the copy that I was somewhat shocked by a remark at the end of the lawyers' letter to the effect that the Ministry of Justice was about to make a statement, and as I said in my affidavit I apparently drew the conclusion that certain restrictions of the clemancy pleas were about to be made.
Q For the purpose of clarifying this case, I would ask you to look at and read out the text under figure 7 in the Lawyer's Letter which deals with that case.
AA basket maker who was defended by an attorney was, because COMMISSION III CASE III of resistance to the authority of the State, and because of offensive behavior sentenced to three weeks in prison; he had tried, when he was drunk, at a prohibited spot, to pass across a railway track, and when railroad officials tried to stop him, he had become offensive; at the same place he had behaved in an offensive manner to people who passed the prison sentence because the defendant had four previous convictions for physical attacks on his superiors, and because formerly he had been sentenced to a prison sentence because he had been away from his army unit without leave.
His defense counsel, in a clemancy plea, asked that the prison sentence should be changed to a fine, and pointed out that the person sentenced was at the time a driver with his own horses, and would suffer severe economic damage if he had to go to prison. He also pleaded that he had been dismissed from the army because he was feebleminded, and that the offense, therefore, was not of such a great nature. When the appeal was refused by the prosecution, he complained and stated as a reason for his complaint that this was a tragic case and that it was due to the conditions of the time; that an offense of this character in times of peace are punishable by a small fine; and that today such crimes are frequently considered a capital crime; that that is due to the general nervousness of which the courts are not free either; which, however, just as the many private law suits show the sense of humor is lacking which reduces things of that kind to their proper proportion.
Q Further criticism you find here;
AA sense of humor certainly is not to be suppressed in difficult times, but only where it is in its proper place; if a defense counsel in a court or a prosecution would be charged with lack of humor because of a defendant who shocked him in his statement of intoxication and becomes offensive to other people, and resists the police and then receives his proper punishment, that is incomprehensible. The defense counsel should have remembered that in the fifth year of COMMISSION III CASE III war judges and prosecutors should not be bothered with inappropriate clemancy pleas about which a great deal more has to be said.
The lawyer would have done better if he had explained to his client who has repeatedly made himself offensive how to behave nowadays rather than by his erronious statements to back him up.
Q You can confirm expressly, therefore, that no instructions were contained in that letter?
A I have not seen an instruction in this, but I suppose that an attempt was to be made in some way to issue instructions in that direction to the defense counsel.
Q You never received another lawyer's letter, did you?
A No.
Q But that lawyer's letter from which you have read, did it express criticism that the appointed defense counsel before the People's Court, did not exhaust all possibilities for defending their clients?
A No, I did not come across that; I did not see that in the lawyer's letter.
Q Did the lawyers have to follow instructions?
A No, and I would have refused to do that, because I have always considered the principle of free advocacy decisive.
Q Therefore, the provisions of the Lawyers regulations still applied?
A Yes.
Q. Do you know whether the lay judges at the People's Court received the judges letters?
A. I do not know about that, but I assume so because all judges are said to have received these letters from the Ministry of Justice.
Q. From what do you deduce that?
A. From the general designation, 'judge's letters', and from the fact that I was told that such letters were sent to the judges.
Q. You have no personal knowledge on that point?
A. No.
Q. Did a proceeding before the People's Court follow the Code of Penal Procedure?
A. Yes, they did, and they followed procedures which had been laid down especially for the People's Court. Generally speaking, it was an abbreviated trial. It was even possible to come to an immediate decision on t he case at the trial.
Q. Were provisions of the Penal Code, apart from some special cases, in general applied?
A. Yes, I can say that. Generally speaking the defendant and the defense counsel were heard in full.
Q. Did Freisler, in principal, show disrespect to the law of the defendants or did he only do so in special cases?
A. I should like to split up my answer. When Freisler, assumed his office, it was his custom to lot the defendant have their full say, but as time went on he had his definite moments when he interrupted the defendant occasionally so that that must be regarded as a curtailment of the defense. In particular concerning the cases which since 1947 became more and more frequently, the cases of undermining the defensive strength.
Q. Did Freisler allow the defendants to ask the witnesses questions, and the defendants in the People's Court could speak freely and heard freely there?
A. I can conform that -- in particular I remember that the presiding judge did hear the defendant if the defense counsel asked that such questioning should be done.
Q. Could one describe Freisler as a typical judge of the People's Court?
A. I would not like to affirm that question because there were a number of very serious judges who, in the manner in which they conducted a trial, gave the defendant altogether an opportunity to defend himself fully.
Q. In that connection do you know anything about the presence of Lemmle, who in many cases deputized for Freisler?
A. Yes, in many resistant movement cases I saw Laemmle as an a associate judge and also as the judge who wrote the sentences and also later on in many cases I saw him act as presiding judge.
Q. What vi as your opinion of Laemmle?
A. Laemmle was a very sensible, calm, and a matter of fact person who was entirely the master of the conduct of the trial, who was fully informed on the subject matter of the trial, and who treated the defendant in an all together human way; he hardly over cut him short, but always let him have his full say.
Q. What are the relations between Freisler and Laemmle?
A. I do not know whether there were any difficulties, I do not know. I could not observe it; I do not know it.
Q. What conclusions would you draw from the fact that he was not promoted?
A. We defense counsel who worked for the People's Court were struck by the fact that Laemmle, who for years, had *een the presiding judge of the first senat, as a deputy, that he was never promoted to be a Senat President. Later on, for a while, he was provisionally in charge of another senat, but he was never given the title of senat president, that struck us because several other gentlemen were promoted.
Q. Is the German judge bound by severe evidence provisions?
A. According to the code of procedure he is not bound by any definite provisions, but has the right to establish evidence freely.
Q. Was the presiding judge in a position to reject irrelevant notions for evidence?
A. That night have been attempted in individual cases. I personally, however, when I put a motion for evidence, I also urged that the president alone should not make a decision, but that the senat as such should make a decision; and, as a rale, if the senat did not withdraw for consultation at the trial, at the session, -- I saw to it that the presiding judge had the approval of the associate judges.
Q. Is it against the Code of Procedure if the presiding judge reprimanded the defendant, naturally without using offensive expressions?
A. That is his right, because he has the authority of the police authority at the trials. If anybody, whether defendant, whether witness, or anybody else at the trial does not behave properly, it is his right to stop that and reprimand them.
Q. In the affidavit you deposed, you state concerning the question of the People's Court -- receiving instructions to proceed in a more severe manner, I did not hear about that, personally, but it was a fact?
A. That is correct. Among the circle of defense counsel who worked there during the years from 1944, particularly in 1944, I had the impression that particularly severe sentences were passed; whether that was due to the changed conditions of the war, and whether it was at the instructions of the Ministry of Justice, we do not know, naturally, but the fact as such, was established for cases of undermining defensive strength, t is became more and more freely as the war went on, usually ended with the death penalty, even when the defendant had made minor statements, which normally would have hardly any attention paid to them and which were made by the defendants when they were excited by the Military situation.
Q. The basis for such instructions, you do not know?
A. No.
Q. Were proceedings before the People's Couet held in open sessions or were they secret sessions?
A. In itself, they had to be public sessions, but as a rule, the People's Court was concerned with high treason or treason, the public was excluded at the publication of the Reich Prosecution immediately; after the persons who were present had been identified; that was in consideration of the defense situation. That applied in all cases of high treason and espionage.
THE PRESIDENT: I did not understand your answer there. Will you clarify that. Did you intend to say that in the cases of high treason, although the general rule was that the public should be admitted, nevertheless in high treason cases the public was excluded?
THE WITNESS, GRUENWALD: The public was excluded in all cases, when in the view of the Reich Prosecution, endangered the interest of the Reich, and that was so in high treason cases; in cases concerning the resistance movement, Czechoslovakia for example, Belgium, and so forth, and to all espionage cases, treason.
THE PRESIDENT: You are referring to exclusion from the actual trial?
THE WITNESS, GRUENWALD: Yes.
THE PRESIDENT: Thank you.
Q. Concerning the exclusion of tho public from the high treason cases, treason cases, and so forth, was there a provision governing the procedure?
A. In the code of procedure, there is a possibility when the interest of the State, the interest of the Reich or morale are endangered, the public can be excluded, so that it is based on a provision in the penal code of procedure.
Q. In your affidavit, you state that during tho last time, the period between the indictment and provisions had been made too.....
A (Interposing) Yes, that is correct.
Q. When you say the last time, what period are you referring to?
A. I can only give you an approximate, approximately since the spring of 1944; for what technical reasons that was so, I can only assume; it may have been the particular difficulties of the war situation, the technical difficulties of transport of defendants, and other things may have been decisive, whether that was a particular intention, I cannot say. I would not like to assume that. It seems at any rate, of fact, that during the last few months the indictment took a longer time t o arrive than it used to in the past; of course, that can be due to technical difficulties.
Q. The right to see the files and to have a discussion with the defendant, was that guaranteed sufficiently, if these technical difficulties did not exists?
A. I can confirm that in all cases which I have defended, I had the opportunity to see the files and also I had the opportunity to discuss the matter with the defendant. Particular difficult cases arose when the defendant had to be brought up for the trial from somewhere else; perhaps that was due to the fact that Berlin prisons were overcrowed and. that it was not possible to have the defendants in the Berlin prison from an earlier date after that; therefore, they remained at the place were they had been arrested until the trial was due and only then they were taken to the place of the trial. It also happened frequently that the defendant did not reach Berlin on the date of the trial and the trial had to be postponed --
THE PRESIDENT: I am afraid I must interrupt the witness. The time for a recess has come, and the sound film is expiring. Fifteen minute recess.
(Thereupon a recess was taken)
THE MARSHAL: The Commission is again in session.
BY DR. ASCHENAUER:
Q. You confirmed, witness, explicitly, that the danger of air raids played an important role in regard to the procuring of defendants and the setting of the time of the trial.
A. I should assume so, and that the technical difficulties increased.
Q. Do you happen to know, witness, from what circles or from what groups the lay judges were taken?
A. I do not know any details about the selection of these lay judges. It is a fact, however, that all of them were Party members who were in prominent positions.
Q. What about members of the armed forces who were first lieutenants, who also were lay judges?
A. I remember that first lieutenants too, at times, were also members of the group of judges, but that happened only in isolated cases. At any rate, they were staff officers.
Q. But staff officers only begin with the rank of major, witness.
A. Major, yes.
Q. So they were not all Party members?
A. No, but it seems that it could have been conceivable that even these staff officers were Party members.
Q. Not according to the law, witness.
A. No.
Q. Do you know what that is based upon?
A. No.
MR. WOOLEYHAN: I object to argument with the witness about a matter which he is stating he does not know about, namely, the appointment of lay judges.
THE PRESIDENT: The statement of counsel as to what the law was will be stricken.
BY DR. ASCHENAUER:
Q. Did the lay judges participate very actively in the proceedings?
A. I never noticed that. Apart from rather unessential questions which wore probably based on difficulties in hearing, the lay judges were usually quiet and just listened to the proceedings.
Q. From your affidavit it can be seen that you defended Czechs.
A. Yes.
Q. Can you remember individual cases?
A. These wore a large number. I could not at the moment recall individuals cases unless I would be confronted with them.
Q. Can you remember the case Chalupa?
A. Because of that I called my office yesterday on the phone and determined that in the case against Chalupa, on 21 September 1944, a trial took place whore the representative for the Reich prosecution demanded ten years in the penitentiary. The court decided upon five years, taking into account the imprisonment during investigations prior to trial.
Q. In the affidavit you state that the penalty for undermining of military strength was the death penalty, on principle.
A. Yes.
Q. Was it so that only in specially serious cases the death penalty was pronounced, and in less serious cases it was the penitentiary?
A. Since the defection of Italy the cases of undermining of military strength accumulated in a noticeable way and we, the defense counsel, were of the opinion that the basic penalty, that is the death penalty, was always pronounced. Only later there was gradually a certain moderation as, upon the initiative of the Reich Prosecution, less severe cases were transferred to the Penal Chambers of the District Courts of Appeal.
Q. You testified that in cases of high treason the public was excluded. Was that only the case where elements of national security required this and if that was possible on the basis of the regulations governing procedure?
A. In such cases of high treason I assumed, as did the Reich Prosecution, that a danger to the national interest, at any rate, existed by public proceedings, at least to an increased degree. I personally had no objection against the exclusion of the public, but these are matters which an outsider could not see clearly enough.
DR. ASCHENAUER: Thank you, I have no further questions.
DR. GRUBE (Counsel for the defendant Lautz): I ask to be permitted to start my cross-examination concerning the same document.
BY DR. GRUBE:
Q. Witness, you stated before that in some cases the cases were transferred by the Reich Prosecution to subordinate offices.
A. Yes.
Q. May I ask you, did you yourself achieve such decisions?
A. I had at least one case that was transferred to the Kammergericht, since it was a less serious case.
Q. That was before the indictment was filed with the People's Court?
A. The indictment was filed later by the General Prosecution at the Kammergericht.
Q. Witness, if, before the indictment was filed, you were successful in having the case transferred, then that means that first you were well informed about the facts and, secondly, you had the possibility to present evidence for the defense to the Reich Prosecution?
A. In principle that was the case, but in all my experience I only had one such case.
Q. Did you hear of any other such cases?
A. Some of my colleagues told me about them.
Q. If that is the case, witness, then it is only conceivable if the Reich Prosecution did not take the investigations by the police at their face value.
A. Well, at any rate the Reich Prosecution did listen to the motions by the defense, and then the investigations started.
Q. Witness, is it known to you that the People's Court, in preliminary proceedings, installed investigating judges in numerous cases?
A. Yes, I even remember two investigating judges by name: One was a Mr. Wolff, and the other was Reetz. Reetz later became a member of a Senate of the People's Court.
Q. Witness, did you ever hear that these investigating judges, by transgressing the regulations, just automatically accepted the investigations made by the police as being correct?
A. That I could not examine in detail. At any rate, I remember quite a number of files where, in addition to the transcripts of hearings before the Gestapo, there were transcripts of investigations made by the investigating judge, so that the defendant was not only heard by the Gestapo, but also by that investigating official.
Q. Witness -
A. (Interposing) And I should like to add that in the case of these transcripts of the hearings before the investigating judge, there were some differences between the results of the investigations produced by the investigating judge and that of the Gestapo.
Q. Witness, you have already stated in your affidavit -and you also repeated it before -- that in several cases you achieved acquittals.
A. Yes; in high treason, and even in some espionage cases, I was fortunate enough to achieve acquittals.
Q. Then the same applies here as was mentioned before, that is to say, that such acquittals were only possible if, first, you had the possibility to submit evidence in favor of the defendants, and secondly, if the court did not automatically accept the results of the investigations of the police and the investigating judges.
A. That was certainly the case; otherwise it would not have come to an acquittal.
Q. Thank you.
Another question. You have already stated in your affidavit, and have repeated before, that before the People's Court it was possible to file an oral indictment.
A. Yes.
Q. Witness, may I ask you, isn't that a mistake? Don't you confuse that with the speedy proceeding before the local court?
A. No. That I think can be seen from the special rules of procedure for the People's Court. I don't remember that in detail now, but as far as my recollection goes, there was a possibility that the Reich Prosecution could do so.
Q. Can you tell me the regulations on the basis of which this was possible?
A. No, I could not do that now.
Q. Can you tell me a case where this occurred?
A. No, in my experience it did not occur. At any rate, we defense counsel only discussed that possibility.
Q. So you have it only from hearsay?
A. Yes.
Q. Don't you mean the fact that first a written indictment was filed and then the indictment was read in court?
A. Yes, that is what I mean.
Q. In other words, a written indictment was filed first.
A. No, that the fact of the indictment was announced previously, the date of the trial was set and then the indictment was delivered orally by the Reich Prosecution.
Q. Without a written indictment having been filed first?
A. Yes, without a written indictment having been filed first. In my opinion it was possible, but it did not occur to me in my practice.
