It is obvious that the propagandists exploitation of this trial would have had the opposite effect if doubts as to the political background of the action had arisen.
Now, Goebbels stated that Hitler knew of the possibility that Gruenspan might use that as his defense, and that in spite of that he wanted to have the trial carried out. I was under the impression that Goebbels was not telling the truth here, that he did not believe that Gruenspan would say such a thing, and he was very willing to assume the risk that the attachee von Rath who had been killed would be discredited, so that he would not have to give up his propagandists aims. Therefore, I urged that Goebbels should expressly confirm to me that Hitler knew of the possibility of this statement by Gruenspan and that he desired to have this trial carried out in spite of that. I never received such a statement. I was right: the trial was not carried out.
Q To what extent did you participate in the legislative work and the execution of the Night and Fog Decree, the Nacht undeNebel Erlass?
A First, I must make a temporal limitation here. The Tribunal knows that on 20 August 1942 I left the Ministry of Justice. Thus, in regard to my person, only the previous period can be considered. During that time the procedure, as well as taking prisoners into custody, remained exclusively in the hands of the Ministry of Justice.
If I am supposed to make some statements about the decree, I would like to emphasize that the jurisdiction of the Ministry did not refer to the Western territories, which are under consideration here. This was entirely under the competency of the military commanders. Hitler had issued the order to Keitel that in the future merely in very clear cases, and in such cases where the death sentence could be expected with certainty, the military courts were to pass sentences. The rest of the culprits were, for the purpose of a deterrent, by the police, to be transported to Germany, to remain under the custody of the police, and - and this is the expression he used - to disappear during night and fog.
The Chief of the Legal Division of the Wehrmacht, Dr. Lehmann, realized what the situation was and, after unsuccessful attempts with Keitel and with Hitler, he tried to have it avoided that the prisoners be left in the custody of the police by having them tried before the ordinary courts. He called on Freisler. Freisler did not disagree with Lehmann, and basically asked for my agreement. I gave my approval.
Here, too, I had to make a serious decision. On eht one hand, the fate of the prisoners was concerned. If they were in police custody, their fate could not be controlled. On the other hand, there was the necessity to loosen certain regulations which formed definite components of our legal system.
The Fuehrer order was based on the fundamental idea that the deterring force, through the cutting off of the prisoners from every contact with the outside world, could be achieved in this manner. If we now wanted - and this is the decisive question to have the direction of the prisoners, if we wanted to avoid having the prisoners remain in police custody and thus not carry out Hitler's decree but break its head, no other recourse was left to us but to conduct our court proceedings under the point of view of secrecy, since otherwise Hitler would immediately have forbidden and actually prevented the fact that ordinary courts should handle these matters.
However, in order to avoid any doubt. I want to emphasize expressly in the following that I have to state we are concerned only with regulations governing proceedings. The NN prisoners were supposed, and were, to be tried materially according to the same regulations which would have applied to them by the courts martial in the occupied territories. The rules of procedure had been curtailed to the utmost extent. In German law we also know of the possibility, because of the endangering of the security of the state, that the public is excluded when the opinion on which the sentence is based is pronounced.
We now had to take one more step, to issue an order to make available the possibility that the pronouncing of the sentence itself would not be made in public. One could not avoid the recognition that otherwise the secrecy would not be maintained, and I have to repeat, the cases would have been taken out of our hands immediately.
Everything else was based on this. For example, the limitation in the selection of defense counsel. Germany had a very eminent legal profession, and in my opinion it was a matter of course that every lawyer fulfilled the oath of secrecy given to him by law. However, one had to realize that as with every other profession, the lawyer's profession too, during such times, was permeated with bearers of the resistance idea, and therefore here too a certain caution was needed and it was necessary to limit the selection of defense counsel.
It is well known that in the executive order which I signed and it was the same as the draft submitted in the document book that I limited the use of foreign evidence. However, if one thinks the matter through correctly and thinks of the practical application, one will realize that this limitation worked only in favor of the defendants because numerous acquittals occurred according to the principle, that governs other law as well as ours, in dubio pro reo. In accordance with this basic attitude, it was decisive, under all circumstances, to avoid the subsequent transfer of the NN prisoners to the police.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 30 June 1947)
THE MARSHALL: The Tribunal is again in session.
BY DR. KUBUSCHOK:
Q. We have come to the discussion of the NN regulations. Will you please continue there?
A. I have take the liberty to explain that the purpose in including ourselves in the procedure was to counteract Hitler's plan to have prisoners in the hands of the police. There arose a problem: If one had to consider that in the regular course of procedure a penalty was found which expired before the end of the war. In such cases there would not have been any possibility to keep these people but they had to be taken over by the police and that would have thwarted the purpose of the inclusion of our administration. That one had to consider. The matter was simple, if the prosecutor, after examining the facts, arrived at the result that the penalty had to be so low that the term would expire before the expected end of the war because then he did not demand that a date for the main trial be set; the procedure remained pending and the accused remained in the custody of the administration of Justice. The situation, however, could become more difficult if the prosecutor intended to demand a higher penalty which probably would expire after the end of the war and if the court would arrive at a more lenient sentence. The way out could be found only by quashing the proceedings in time and in order to do that various means could be applied. In could have been put to the court, that is, by Legislation of course, to make a decision for this continuance, and could also put the prosecutor in a position where he would demand discontinuance and then let the court decide for discontinuance. I took the latter approach. Therefore, I provided that if the court wanted to deviate from the demands of the prosecution it should inform the prosecutor so that he had the possibility to demand discontinuance but with all emphasis I want to stress there can be no question that the courts were to be bound in any way by the demands for a penalty on the part of the prosecutor.
That would have been quite irresponsible.
BY THE PRESIDENT:
Q. Dr. Schlegelberger, are you still speaking with reference to the NN case?
A. Yes, So, it is quite out of the question that the courts were to be bound in any way to the penalty as requested by the prosecutor as Freisler has stated in a letter which was written for special service to Thierack and which is quite wrong but I repeat again the intention was only for the court to tell the prosecutor, "we are arriving at a lower sentence than you requested,". so as to put the prosecutor in position to demand discontinuance; then the matter remained in the hands of the Administration of Justice; that is to say that the defendant was in the custody of the Administration of Justice. May I summarize: The provisions concerning secrecy had to be made so that the matter would not be taken out of our hands by Hitler. I was faced with the problem as to whether I should refuse to take over the NN cases altogether and the Tribunal will recognize that would have been very simple for me. I could have held the position that as far as my department was concerned that I had nothing to do with the matter and therefore could reject it or refuse to have anything to do with it. But I could not take the responsibility to assist to contribute that Hitler ordered would be carried out and that the NN prisoners remain in the custody of the police. And, I believe that decision has also found its justification in the findings of the International Military Tribunal concerning the treatment of these prisoners in the hands of the Gestapo.
BY DR. KUBUSCHOK:
Q. To what extent did you deal with the euthanasia measures which have been discussed here?
A. Until Guertner's death, that was until the 29th of January, 1941, I had officially nothing to do with euthanasia. Guertner dealt with these matters in his office and as the documents reveal transferred letters which he received to state secretary Freisler, forwarded them.
According to my recollection I signed one purely formal letter which I shall discuss later. I found out about that period the following: On the part of various supreme authorities in the Administration of Justice the District Court of Appeals in Stuttgart, Dresden and Nurnberg, the Reich Ministry of Justice and Guertner had received information according to which people in insane asylums had been brought into other institutions without notification to the Surrogate courts as to the new location. There were also certain rumors about these deaths. Guertner tried to find out about these matters. He had various conferences with Reich Minister Lammers and probably heard from him that certain measures of this nature were based upon direct orders from Hitler. He, on his part, expressed immediately that illegal killings could not be carried out under any circumstances. Lammers told Hitler about Guertner's point of view and reported to Guertner that Hitler refused to issue a law containing legal guaranties. Thereupon on the 24th of July, 1940 Guertner wrote to Lammers stating that from this attitude of Hitler's only one thing could be concluded, that is, the necessity to stop immediately all secret killings of insane people. Guertner continued to investigate and found out that these emanated from the Chancellory of the Fuehrer. The chief of this office Reichleiter Bouhler on the 27th of August 1940 submitted to Guertner the well known letter by Hitler to Bouhler and Brandt and on that very same day I, upon orders from Guertner, sent a copy of his letter, Lamers to Bouhler, that is, the letter I mentioned before. According to my experience Guertner gave me that order by telephone because he could not get in touch with Freisler. I know how Guertner occupied himself for that matter. He particularly had a visit from Pastor Braune, from Prof. Sauerbruch and they told him further details which shocked him indeed.
As I have heard, there were also certain drafts of laws that had been worked out by the Reich Minister of the Interior, the Reich Chancellery, which had contained various provisions, such as discussing it with relatives, decisions made by groups of doctors, and provisions for appeal. But nothing ever came of these drafts. When I saw Guertner shortly before his death in his apartment, he asked me to take all material that had come to his office in this matter and send it to Lammers, and he added, "May be that will make an impression." That is what I have to say about Guertner's era.
If I come now to the time during which I was acting in the Ministry of Justice, I have to say the following. Immediately after Guertner's death, I went to Bouhler and once more with all emphasis told him about the atrocious extent of that entire matter. I applied the tactics as were dictated by the situation. Therefore, I stressed particularly what the impression of such things would be on the morale of the population. I had the impression as if in the end Bouhler's attitude was shaken. I asked him also to send me certain forms concerning the technical application. I wanted to gain further information. He was willing to do so; partly from himself, partly through Brack. All that material according to the wishes of Guertner, so to say, according to his last will, I sent to Lammers; also various letters which I had received from the clergies.
It has been discussed that I had given orders to various officials to designate letters received that dealt with these matters as matters to be reported upon. The purpose was clear. I wanted to make sure that I would be informed about all these matters. I believe that I was successful in the tactics I applied in passing on complaints from special clerical circles, also to see to it that for political reasons these measures should be stopped -- that I was successful in doing that. In August of 1941, these measures in fact were stopped.
If I should be asked now whether or not I could have done more, then I have to answer that in the negative. I have thought it over very carefully.
The letter from Hitler to Bouhler and Brandt states -if I may be permitted to read its text -- "Bouhler and Brandt are ordered with full responsibility to extend the authority of certain doctors, that incurable persons after thorough examination of their condition, the mercy death should be accorded". Whether that letter from Hitler to Bouhler and Brandt had the nature of a law has frequently been disputed and debated.
I answer that question in the affirmative. Consequently in my opinion, doctors who abided by that letter from Hitler did not commit a punishable act. One has to distinguish that the order from Hitler to Bouhler and Brandt certainly was not a law. It was an administrative measure of the nature of the application which I had received to take care of the affairs of the Ministry. But what was in the nature of a law was the authorization to Bouhler and Brandt to select doctors and to authorize doctors, that is to say, to extend their authority. That this law became only known to those who were immediately connected with it does not contradict it.
I may state here that even in the case of formal laws, their proclamation was not considered absolutely necessary. I refer to the Reich Defense Law which was never proclaimed and yet whose being in force has never been denied. If that letter from Hitler to Bouhler and Brandt were not a law, then there was no legal basis for the killing of the mentally ill. Then there were punishable acts on the part of the physicians. A prosecution of the physicians, however, could have been squashed by Hitler immediately. First of all, however, any proceedings could not have been limited to the prosecution of the doctors but would have had to go against Hitler himself who caused these killings, and proceedings of that kind naturally would have been an impossibility.
The question, therefore, was essentially the following: should I have to embark upon a path which showed no signs of success from the outset and would make it quite impossible to modify these measures, or should I apply other possibilities of influence to see to it that these measures be stopped?
I decided for the latter. I was successful as far as my goal was concerned to have these measures stopped. One can only understand all these matters if one takes into consideration the entire distribution of power during that period.
Q Will you please give your explanation concerning the question of sterilization?
A First of all, I would like to say that the Administration of Justice only within the scope of the law to prevent progeny afflicted with hereditary disease of the 14th of July 1933 had anything to do with sterilization. The idea of sterilization, such as in other countries, has been discussed in Germany for decades. In the same manner as in other countries also, it found its regulation by law. The law for its application contains all possible legal provisions. I do not believe that the prosecution has attacked the law as such, but it has asserted that the law in its practical applications was used on the basis of racial and political consideration - in other words, misused.
I can say with good conscience that during the entire period of my official activity, I was not shown a single case which would have justified the mere suspicion of such an abuse. The legal provisions, the composition of the courts, the legal remedies available - all that makes any abuse seem impossible. The prosecution mentioned from all the provisions just one single provision which it deems open to attack. Article 4 of the third provision for its application provides for the possibility that for important reasons the appearance before the Health Courts and Supreme Health Courts of deputies could be prohibited.
I may say the following for elucidation: the provisions of the Reich Law about matters of voluntary jurisdiction of the 17th of May 1898 are applicable. There a regulation is found for the appearance of deputies and people to represent the person.
If in the course of these procedures a deputy of that kind, a layman is incapable to appear before a court, then the law of 1898 left only one alternative to the court. The court had to demand that the person in question had to appear in person, and thereby he lost the right to be represented by somebody else. From the experiences which we have gained from that field, another method, another procedure was selected for procedure before the hereditary health courts. The courts were authorized to exclude that representative and then, automatically, the right arose to appoint, to select another counsel. That is the content of that provision.
Q I should like to refer to some individual documents which have been submitted by the Prosecution. First, I refer to Exhibit 429, that is the circular decree by the Reich Minister of the Interior, concerning the establishment of border zones of 20 September, 1938. What can you say about this?
A The prosecution on the basis of this measure, as is shown by the table of contents of the document book, has concluded that measure reveals that I knew about the intentions of aggressive foreign war. That conclusion is in error, for the decree concerning the border zones, promulgated by the Ministry of Interior, is a definite administrative measure which is customary in every country, and as such in times of absolute peace prepared for in case of mobilization and in the opinion of the Ministry of Justice, the following is important: That decree from the Ministry of Interior is dated 20 September, 1938; that was the time of the Sudetenland crises. The Ministry of Justice sent out the directive by the Ministry of the Interior on the 12th of October; that was after the main crises. Not at the time of the highest tension; did we think of the danger of war; and, therefore, we passed that directive from the Ministry of the Interior through the normal channels.
THE PRESIDENT: Just a moment, there seems to technical difficulties, which are making you sound like ocean waves in the earphones.
We have great difficulty in understanding at all. Are you having the same difficulty; there is a roar in these earphones. .... It's better now.
A Would you like me to repeat this again?
THE PRESIDENT: We heard you, but with great difficulty. You may proceed.
Q I come now to Exhibit 339, concerning plans for the confiscation of real estate property in Czechoslovakia. What can you say about that?
A I can say the following: We were concerned here with a measure for which the Reich Minister for the Interior was competent. He wanted to have a general directive for the confiscation of real estate property. The foreign office protested against this and called to his attention that the number of confiscations in contradiction with international law necessary will be small, and that, therefore, special measures were really not needed. I agreed to that attitude of the foreign office. Moreover, this was case of reprisals which was not objectionable from the point of view of international law.
Q The prosecution submitted a document, Exhibit 362; that was a public proclamation which mentioned death sentences passed against Czechs. What can you tell us about that?
A I have already explained that in March, 1942, Heydrich demanded the execution of all death sentences that had been postponed. Since these were all death sentences that had been accummulated since 1939, and that I had to expect that their execution would be carried out very soon, I agreed that no public posting would be made in Berlin. It was hard to understand any way in what manner posters in Berlin would have the nature of a deterrent against the population of Czechoslovakia.
Q The Prosecution has submitted Exhibit No. 259; that is a report from the General Prosecutor at Hamm, who pointed out that Polish shirkers, slackers, were not to be turned over to the courts but taken into police custody. What can you say about that?
AAccording to prevailing regulations, decrees from the 1st September, 1939 and 28 October, 1941, breach of work contract could only be punished if the labor office or the Reich Trustee of Labor first filed a request for punishment. As long as that request is not filed, the Administration of Justice has nothing to do with these matters.
Q About measures of execution by the police, we are informed from the two following reports: The reports by the Reich Governor at Danzig, Exhibit 470 and 471; and the report by the General Prosecutor at Nurnberg of the 11th August, 1942, Exhibit 478. Can you give us any information on these points?
A These reports only illustrate what I said this morning that the police in many cases, outside of the sphere of influence of the Administration of Justice, and without informing it, carried out police measures. If I may also be permitted to say -- that is for the Nurnberg report from the 11th August, I doubt whether I ever saw that report because I left the Ministry of the 20th of August.
Q The Prosecution submitted Exhibit No. 371; that is a directive of the Ministry of Justice of the 23rd June, 1942, concerning the establishment of new real estate registers in Auschwitz. What can you say about that?
A I can only say that that deals with a measure which normally would not come to the attention of the Under Secretary or the Minister. Such matters were dealt with by the department head, and I cannot remember ever having seen it. Actually this is what went behind it: If, when various pieces of property emerged, depending upon the individual case, new sheets have to be made for the registry of real estate. That necessity apparently arose in the area of Auschwitz.
DR. KUBUSCHOCK: With that question I have finished my direct examination.
DR. KOESSL (Attorney for the Defendant Rothaug):
I ask to be permitted to put several questions to the witness.
THE PRESIDENT: May I ask what the plans cf the Defense are as to how many of them are permitted to conduct a direct examination of each of these defendants. I think the Tribunal is somewhat in doubt as to that procedure. I think we would not question the right of a Defense Counsel, who represents some ether defendant, to cross examine this witness on any matter which touched the other defendant's case, but I gather that the attempt is to conduct the direct examination of this witness by several different Defense Counsel. Now, what is the position of the Prosecution on that?
MR. LA FOLLETTE: If your Honors please, I am a little surprised. I did not anticipate that; I am as surprised as the Court is. I would think that this should be limited to cross examination. On the other hand, if this defendant is a witness, I guess he can be a witness for as many other defendants as he wants to be; however, that will extend this trial too long. I guess, however, each of these defendants could call this defendant as a witness for themselves if they chose to. I hadn't anticipated it. Certainly it puts a little more severe burden upon the Prosecution than I had anticipated, although I think all direct examination ought to be before any cross.
DR. KUBUSCHOK (Attorney for Defendant Schlegelberger):
May I make a short statement in that connection. The same problem which arises today had also arisen in the IMT trial, and then the decision was to do the thing that the Defense Counsel want to do now, that is the order that every defendant can enter the witness box only once, because that would save time, he could be a witness for all those Defense Counsel who want to take him into direct examination. Other wise, it would be necessary that, for instance, Schlegelberger, appears as a witness when in the case in chief five other Defense Counsel come up who want to question him as a witness, and that certainly would require even more time.
THE PRESIDENT: What would Defense Counsel have to say -- I repeat: what would Defense Counsel have to say with reference to this suggested rule that when counsel who represent a defendant other than the defendant who is on the witness stand desire to examine the defendant on the witness stand and to examine him as direct examination, not merely cross-examination, that they should be limited to examining him concerning matters which particularly touch and concern the defendant for whom they are examining?
MR. LA FOLLETTE: Certainly I think that must be true.
THE PRESIDENT: I think it should be limited -
MR. LA FOLLETTE: Yes.
THE PRESIDENT: -- to that extent, at least.
MR. LA FOLLETTE: And I would make this other suggestion: I won't object today, hut it strikes me also that when a defendant as in this proceeding, having been a witness for himself, as what we are seeing now, unquestionably I think he could he called as a witness for the defendant, Rothaug, hut I believe the Prosecution should be notified in advance just as they would any other witness then, or at least give some knowledge as to how many defense counsel intend to treat any defendant as their witness so that we can make some advance preparation. I won't insist on it today. I would just like to have a showing as to how many are going to -- because the defendant then steps into position as a witness.
THE PRESIDENT: Will you indicate again, gentlemen, how many of you wish to examine him on direct examination? There appear to be six.
THE INTERPRETER: Seven with Dr. Koessl.
THE PRESIDENT: Yes, there appear to he seven. Without making any rule such as I suggested, you may proceed along the lines indicated, and unless and until some further order is made, you will limit your direct examination of Dr. Schlegelberger to matters which will particularly touch and concern the defendant for whom you speak.
DR. KOESSL: Yes, Your Honor.
THE PRESIDENT: And repetition of general matters -- repetition of general matters concerning which the doctor has already testified should be avoided.
BY DR. KOESSL:
Q Witness, the president of the District Court of Appeals, Doebig, did he ever come to you with complaints about the Special Court, Nurnberg?
A No.
Q If the material for complaint was so serious as existing today, was not it his duty to bring these matters to the attention of the Ministry in writing?
MR. LA FOLLETTE: I object. I object. Your Honor. It calls for a conclusion of the witness as to an opinion of the witness, not as to any facts as to what Doebig should have done. I think the objection should be sustained.
THE PRESIDENT: The objection is sustained.
DR. KOESSL: May it please the Tribunal -
THE PRESIDENT: The objection will be sustained.
DR. KOESSL: May I just make a statement in this connection.
THE PRESIDENT: I think the Tribunal is clear in its ruling. You may pass on to something else.
BY DR. KOESSL:
Q Did there exist a rule, witness, according to which such things had to be reported to the Ministry in the reports on the situation in Lageberichten or in reports to the superior authority?
A That was certainly expected as a matter of course.
Q According to the rules then in force was it admissible that Doebig discuss the matter not in writing but by telephone with the Ministerialrat, Miethsam, for the purpose of obtaining a transfer?
MR. LA FOLLETTE: Just a moment, hold it. I didn't get the question very clearly. I wonder if somebody would read it back.
DR. KOESSL: I shall repeat the question.
BY DR. KOESSL:
Q According to the rules then in force, was it admissible that Doebig report the matter by telephone without making a written report to his superior, Ministerial Councilor Miethsam, for the purpose of a camouflaged transfer meaning a transfer of Rothaug?
A It was against the custom.
Q For a transfer of that kind could the decree of the 1st of September, 1939, be applied?
A You mean the decree according to which judges had to be at the disposal for any kind of a job of a judge?
Q Yes. Was it admissible to apply that decree although that decree should only make transfers possible which were necessary on account of the personnel?
MR. LA FOLLETTE: I object. I wish the doctor would ask Dr. Schlegelberger to give me a chance to object, please, before you answer. I object, Your Honor, because if there is such a decree, the decree will speak for itself, and it can be readily obtained. The Counsel is attempting to ask the witness to interpret a decree without producing the decree about which no one knows anything, and the decree is the best evidence and it can be produced.
DR. KOESSL: May it please the Tribunal, I believe that a decree of that nature according to conditions prevailing at that time has to be interpreted concerning the reasons which led to its promulgation and concerning the purpose of the decree, and since at that time already the witness was Under Secretary in the Ministry of Justice, he can speak about the justification of applying that decree or not to a much further extent since we also have to concern ourselves with the manner in which that decree was actually applied and as to how far its application was considered possible. I believe that, therefore, the witness should be asked about the fact whether that decree could be applied.
THE PRESIDENT: What decree do you refer to? I don't mean that you should read the decree, but will you state the subject concerning which you claim there was a decree?
DR. KOESSL: The decree deals with the need for personnel caused by wartime conditions, and with transfers which were made necessary by wartime conditions. That decree played a part in the matter of the transfer of Rothaug to the East which was requested by Doebig.
THE PRESIDENT: Do you have the official title or date on which this decree that you suggest was enacted?
DR. KOESSL: The decree was issued on 1 September, 1939. It will be contained in my documents.
THE PRESIDENT: And who issued it?
DR. Koessl: That is a decree by the Reich Ministry of Justice.
THE PRESIDENT: And, do I understand you are asking the witness to construe the decree before the decree has been introduced in evidence?
DR. KOESSL: The decree has not been submitted in evidence here, as far as I know; I, myself, intend to submit it in evidence in my case in chief.
THE PRESIDENT: The Tribunal does not consider that it is necessary or proper to ask this witness to interpret or construe the decree, if there is one; it is a matter the Court can go for itself. We will permit you to ask the witness if he knows about the decree and if he knows whether action was taken pursuant to it. And, if the decree is not offered in evidence the testimony will be subject to be stricken. You may proceed.
Q.- Witness, do you know that decree of 1 September 1939, and what was the purpose of that decree?
A.- I remember that decree should remedy the lack of personal caused by the war; that was the purpose of the decree.
Q.- Did that abrogate paragraph 8 of the Judicature Act according to which judges could not be transferred?
MR. LaFOLLETTE: I object unless he -- of course I realize he is highly an expert, but is he making this witness an expert; is he trying to ask him to interpret the question of law which is before the Tribunal.
THE PRESIDENT: That objection is sustained. You may proceed.
Q.- Witness, in the Katzenberger case, witness Engert asserted that Freisler had expressed to him that he considered the sentence not correct. Were conditions, prevailing and customs prevailing, at that time, were such as to impose the duty on Engert to inform the General Prosecutor about the opinion of Under Secretary Freisler?
A.- Yes, of course.
Q.- Therefore, I can assume that Engert had the duty to report to his superior the attitude or the opinion of Freisler?
A.- Yes, he had that.
Q.- Could Engert speak against a pardon if he considered the sentence to be incorrect?
MR. LaFOLLETTE: I will object. I think that calls for an opinion, whether he thinks he may do in speaking against a pardon, but what he noticed, and whether it was correct or incorrect, is a question which states the condition of the man's mind.
THE PRESIDENT: The objection is sustained.
Q.- At that time, was it the duty of the Prosecutor to request retrial or to file nullity plea if they considered a sentence to be incorrect?
A.- I do not know of any directive of that kind, but that is not necessary because that is left to the dutifull discretion of the official.
Q.- Did he have to make the demand for retrial or file nullity plea if the Prosecution was of the opinion that -
A.- (Interposing) I do not understand the question.
Mr. LaFOLLETTE: Please, I have got a set of headphones here I cannot hear through.
Q.- Was it the duty of the Prosecution to demand retrial, reopening of the procedure or to file nullification plea, if the sentence was technically incorrect?
Mr. LaFOLLETTE: If you please, Your Honor, I object to that because it calls for an interpretation of the existing statutes which he interpreted himself.
THE PRESIDENT: I think the objection may properly be sustained on the ground the witness just answered the question previously.
Mr. LaFOLLETTE: I did not hear that.
THE PRESIDENT: He said it was a matter of the exercise the sound discretion of the prosecuting officer to act conscientiously in the matter of nullity pleas, and that was all the answer the Counsel could possibly get on that issue.
Q.- Was it ever put to the special courts or the Reich Prosecution that they should connect purposes outside the scope of criminal law with their office?