A.- No, not at all.
Q.- Was the thought ever put to the Chief Reich Prosecutor or the Special Courts to participate in the extermination of foreigners, political opponents or a socials?
A.- No, certainly not.
Mr. LaFOLLETTE: Your Honor, please, I ask that the answer be stricken because the question calls for a conclusion of the witness, as to the purpose which this Court must furnish. It calls for a conclusion on law. That was the purpose for the establishment of the Court. I assume that was what was asked. I ask the answer be stricken.
DR. KOESSL: May it please the Court, I asked for a statement of facts. The fact whether the court authorized the chief prosecutor, whether that authority, the authority of extermination was ever put to them. I do not believe this calls for an expression of an opinion, it is just a question of stating a fact.
THE PRESIDENT: The motion to strike will be denied, but the question as to whether authority was ever put to a person is not of great aid to the Tribunal.
Q.- Could the agencies of the administration of justice, which had to apply the law, know anything about the transfer of prisoners to the Gestapo?
A.- No, I do not know how they could find out about it.
Q.- Did these agencies, in particular, have anything to do with the transfer of criminal prisoners to the Gestapo?
Mr. LaFOLLETTE: I object, your Honor, for the reason that the agencies are not properly identified. I do not know what agencies or what sub-divisions are meant. The question is so general that an answer can not be made.
THE PRESIDENT: The objection is sustained, and Counsel will limit his examination to matters pertaining to his client, the defendant Rothaug.
Q.- Those offices, those agencies, in which the defendant worked, that is to say, the special courts, and the chief Reich Prosecution, did they have any part in the legislation.
A.- Not from the Reich Ministry of Justice.
Mr. LaFOLLETTE: (Interposing) I am sorry, in the first place, the witness started to answer before the question was completed. I ask the question be restated, and the witness again advised to wait until the whole question is finished.
THE PRESIDENT: The witness will kindly refrain from answering so promptly. That it is impossible for the Prosecution to make its objections heard. This objection, Mr. La Follette is overruled.
Mr. LaFOLLETTE: Well, I would like to make this point, If he is speaking of offices, that is quite general; if he is speaking of whether or not this man knows whether Rothaug, in either his particular capacity, knew, then I think it is proper.
THE PRESIDENT: You may proceed.
DR. KOESSL: I have no further questions.
MR. LAFOLLETTE: May I clarify this a little? May I address a remark through the microphone to the Tribunal and to the witness? If the witness please I think if I will object before I fully hear a question, as I hear it develop, I would like to be permitted just to indicate that by showing my hand; in which case I wish the witness will not answer until I have stated the objection and the court has a chance to rule. That is all, the witness must realize that he hears the question long before I hear it through the interpreter.
THE PRESIDENT: I am sure he will cooperate in that manner.
MR. LAFOLLETTE: I am sure, just so we understand each other.
DR. SCHILF: (For the Defendant Mettgenberg) BY DR. SCHILF:
Q Witness, I should like to put a question to you concerning my client, Dr. Mettgenberg and his career. You were Under-secretary already in 1934 or 1935 when the administration of justice of the various states was put in the hands of the Administration of Justice of the Reich. In that connection, I would like you to answer a question from your experience. My client tells me in general after service for 10 or 12 years as a Ministerialrat, Ministerial Councillor, that is to say if an official were a Ministerialrat in the Ministry of Justice for 10 or 12 years, then he could expect to be promoted to chief of a sub-department, Unterabteilungsleiter with the title Ministerialdirigent? From your experience, Dr. Schegelberger, tell me whether that supposition on the part of my client is correct?
Q You can answer that question.
A Yes. I have. It is correct just as you said.
Q May I ask you to repeat your question?
A That is correct. I will repeat it again. What you have said is correct.
Q It may be known to you that since 1923, Dr. Mettgenberg was a Ministerial Councillor, Ministerialrat, in the Ministry of Justice, Do you know about that fact?
A Yes.
Q The conclusion, therefore, would be that in the years 1935, it would have been possible for him to become a Ministerial dirigent in case he had the qualifications?
A Yes.
Q Since for years, I would even like to say for decades, you have been his superior, you should be in a position to state whether he had the qualifications.
A I have no doubt.
Q Is it known to you that in spite of his qualifications, Dr. Mettgenberg was not promoted after the customary time to Ministerialdirigent because the Gauleiter of the NSDAP had voiced objections against him and protested against a normal promotion?
MR. LAFOLLETTE: I have no objection, Your Honor, if the question includes the thought that the objects were stated to the witness. If they were stated to some other person, I think it is here say and I think the question is objectional. In other words, if the objection of the Gauleiter were communicated to this, it will be all right. As the question stands, I do object unless it is cleared.
THE PRESIDENT: The witness may state whether he has personal knowledge concerning that matter. Do you have personal knowledge concerning the matter?
THE WITNESS: Yes. I was told about that by the Ministerial director who dealt with personnel matters.
THE PRESIDENT: You may answer.
Q You may answer, Dr. Schlegelberger.
A Will you please repeat the question?
Q Yes. The normal period after which Dr. Mettgenberg, who in your opinion had the qualifications, should have been promoted to Ministerial dirigent would have elapsed in 1935. He was not promoted because the Gauleiter of the NSDAP is said to have protested against it. I ask you what you know about it.
A That was told to me by the Ministerial director who was in charge of personnel matters at the Ministry at that time.
Q Again in your capacity as Under-secretary at that time, did it come to your attention that in April 1939, there was a vacancy for a Ministerial dirigent because Dr. Passowski who had been Ministerialdirigent, had been promoted to the position of Ministerial director, that is chief of the department; and that you had intended that position for Mettgenberg, you together with the Chief of your personnel department? However, that was not approved. A certain Hansen who was an old Party Member was nominated and finally also appointed by Hitler for that position.
A I think it was not quite as you stated it. I cannot say, first of all, whether it was in April 1939. It was certainly in the year 1939. As I remember it, this is the way it happened. There was a vacancy. That position was vacated, as you say, by the promotion of a Ministerial dirigent to Ministerial director. As far as I know, the right to appoint for that position was turned over the Party Chancellery in order to appoint Hansen and therefore it was lost for Mettgenberg. That is the way I remember it, but I may be mistaken.
Q Anyway, Witness, Dr. Mettgenberg lost his chance because an old Party Member got that job?
A Yes.
Q Now I would like to put my last question to you. At the end of 1939, at a time when Dr. Mettgenberg for 16 years had been a Ministerialrat, he was to be finally promoted to the position of Ministerial dirigent. Again, serious difficulties arose. Objections were made by the officers of the Party. Is that known to you?
A Yes.
Q Could you elucidate these difficulties which arose to the Court?
A It was extremely difficult, at that time, to have a man promoted who was not a party member unless an older party member could be suggested to the Party Chancellery as a candidate.
Therefore one had to wait until a candidate was found who was a Party Member and who could be promoted at the same time for a different job as a non-party member. That is what happened at that time if I remember correctly.
Q The decision about the promotion in order to make that quite clear to the Tribunal was with Hitler if it were a question of promotion between Ministerialrat and Ministerial dirigent?
A Yes, Certainly. The Party Chancellery, however, had to approve. I explained that yesterday.
Q But you, yourself, had the right to nominate?
A Yes.
Q You made use of that right to nominate in the case of my client, Dr. Mettgenberg?
A I wouldn't say that I did it personally, but at any rate, the Ministry did.
DR. SCHILF: Thus you. I have no further questions.
THE PRESIDENT: Without implying any criticism, I think that the last questions which have been asked, require that we call to counsel's attention the fact that they are not cross-examining, but are examining the witness as their own witness and leading questions should be avoided so far as may be possible.
DR. GRUBE: (For the Defendant Lautz) BY DR. GRUBE:
Q The first question refers to the exclusion of the Reich Prosecution from the proceedings against the Czech Prime Minister Elias. There are first two documents, NG-081, Exhibit 374 and NG-147, Exhibit 375. Witness, do you happen to remember what statements the Defendant Lautz made to you when his efforts failed to obtain his inclusion in the Elias Trial?
MR. LAFOLLETTE: I object, Your Honor. It calls for a self-serving declaration by Lautz, under the circumstance where it could only be self-serving.
THE PRESIDENT: The objection is overruled.
THE WITNESS: I remember the Chief Reich Prosecutor Lautz asked me at that time to accept his resignation and I could understand that he was deeply hurt, but I could not grant his wish. If I had to stand the President Thierack I certainly needed a man in the position of the Chief Reich Prosecutor to whom I could tell the truth at all times and who worked for right and justice and not for the Party.
Q Witness, can you still remember whether in September, 1941, you sent the Defendant Lautz to the Protectorate?
A Yes. I remember that Lautz in September 1941 it must have been in the fall of 1941, told me that he had disturbing news. He had received disturbing information from the Protectorate, and wondered whether it were not expedient to go out to find out about it himself. I considered that to be correct, and asked him to travel to the Protectorate to find out what was true in all these rumors. I know that he went there, and I only remember that he came back with quite good news.
Q Witness, could you -
THE PRESIDENT: I am informed that the film is running out. We will take our recess at this time for 15 minutes.
(A short recess was taken)
(A recess was taken)
THE MARSHALL: The Tribunal is again in session.
BY DR. GRUBE:
Q I request permission to continue my questioning of the witness. Witness, do you still remember whether in June 1942, after the murder of Heydrich there was a conference in the Reich Ministry of Justice in which the defendant Lautz and the general public prosecutors of Breslau, Dresden, and Leitmerite participated?
A Yes, I think I remember that.
Q Can you state what was the purpose of that conference?
A Counsel, you stated it was in June. I believe that is correct. Heydrich was murdered in May 1942. Thereupon civilian courtmartials were instituted and the danger existed at the time that they, the Standgerichte also, the civilian courts martial would also deal with matters under the competence of the people's court, according to the experiences which had been made during the previous year; with the civilian courts martial one would have to count upon an excessive amount of death penalties and this conference which you mentioned served the purpose of meeting this danger.
Q Do you know what instructions Freisler issued during this conference?
A Yes, I had the intention to participate in this meeting myself. I remember that. For reasons which I cannot recall, however, I came to this conference only when it was almost concluded. Freisler told me at the time in the presence of those who participated in the conference that he had issued the instructions that serious penalties were to be asked for but that the death penalty was to be pronounced only against active party members who had collected money and arms, distributed leaflets, etc.
Q Thank you. Now, the following question: Witness, what do you know about the instructions which the defendant Lautz received from the Reich Ministry of Justice in regard to the conduct of his affairs?
AAs far as I remember I never issued any instructions to Lautz myself, I believe. However, I know he was often called to see Freisler; that had been noticed in the Ministry generally. Therefore, I assume Freisler had occasion to discuss important matters with Lautz, that is, certain matters with Lautz. I have only been told by colleagues who again had heard it from others that there were great differences of opinion.
Q Thank you, I have no further questions.
BY DR. ASCHENAUER: (Attorney for defendant Petersen)
Q Witness, did you know the defendant Petersen personally before this trial started?
A No, I saw Petersen as far as I know for the first time here altogether.
Q Did you ever directly or indirectly in writing or any other way have contact with the defendant Peterson before the surrender?
A Never.
Q Did the defendant Petersen at any time during your tenure of office as under secretary or when you were put in charge of the affairs of the Ministry of Justice take part in a conference of the Ministry of Justice or a meeting inside or outside of the building of the Ministry of Justice?
A I don't know anything about that.
Q Thank you, I have no further questions.
BY DR. FREDERSDORF: (Attorney for defendant Joel)
Q I request the Tribunal to permit me to ask a few questions of the witness. I would like to refer to document NG 988, Exhibit 510. On page 27 of this document which represents an organization chart of business of the Ministry of Justice it is stated that the defendant Joel among other things was charged with so-called "Sonderauftraegen", or "special tasks". May I ask you Professor to explain what was meant by these special tasks?
A I believe that is quite simple. There was a central public prosecution. This I believe in 1937 was dissolved. At that time the Minister reserved the right to himself in regard to give a special task to certain referents and I know such special tasks were given to Joel in considerable number. I already mentioned this today when the subject of transfer was mentioned.
Q Among the special tasks, do they mean individual penal cases which offered special difficulties during the carrying out because of the intervention of high party elements which were foreign to the Administration of Justice?
A These special tasks were up to a certain point supposed to help the old central public prosecution to continue and just as the central public prosecution had the task to deal with individual cases those who had special tasks had the same duty.
Q Thank you. In the organization chart of the business on the same page 27 there has also been said that Joel was occupied with socalled "special treatments", (sonderbehandlung). May I ask you what this organization chart meant by "special treatment"?
A Well, the word special treatment gradually got a bad name but I may say that within the meaning of the distribution of business the word is absolutely harmless; according to my knowledge of affiars it means the following: During the course of my examination I repeatedly reported about the efforts on the part of the police to take over matters which belonged to the Administration of Justice, especially this refers to the treatment of people from the East. Now, the important thing was if some police authority took some such measures under attack, then we took it away from them again, and every case had to be treated especially. One had to negotiate with the police personally and see to it that the police again released the files and then the legal situation could again be restored. As far as I know that is what is meant by "special treatment" in this chart.
Q From your experience, Professor, can you say that you experienced that the defendant Joel in the interest of the Ministry of Justice was especially active in such dealings with the police?
A Yes, I can confirm that.
Q Now, I would like to refer to document NG 699, that is Exhibit 480 and it concerns the correspondence between you and several participants about the Elias case. In this document there is also some notes and a letter by Dr. Joel. Apart from this letter by Joel which is contained in the document of October 3, 1941, did you receive any other letters which did not go through official channels and therefore were not included in the files either?
A I seem to remember that I got about two or three letters?
Q Can you remember the contents of these letters?
MR. LAFOLLETTE: I would like to object to any showing that these letters are not capable of being produced before the witness as to contents. I don't know whether the letters are to the witness or to Dr. Joel or who. I object because it calls for the contents of a letter which has not been shown.
DR. FREDERSDORF: May I state briefly, my question is concerned with the point whether the witness apart from the letters produced here, received two or three other letters, which supplement the contents of this letter.
THE PRESIDENT: Counsel objection is based on the fact that no showing has yet been made as to where those letters are now and he suggests that you inquire as to whether those letters are now in existence before you go into the matter of their contents by verbal testimony. You can inquire of the witness as to where those letters are now, if he knows.
BY DR. FREDERSDORF:
Q May I then change the question accordingly, whether it is known to you where these letters are now which are not contained in the document.
A I could not tell you that.
Q May I ask now if you still remember the contents of these letters?
A.- I recall something to the effect that in these letters, the question was that these cases which the police had taken over in the Protectorate were supposed to be returned again to the Reich Ministry of Justice. These are my vague memories.
Q.- Can you perhaps remember that the defendant Joel in one of those letters criticized the fact that the appointees of the People's Court had not been appointed in accordance with the Constitution since the Gestapo deputized for the Chief Reich Prosecution?
Mr. LaFOLLETTE: I object to it, Your Honor, because it is very definitely leading. I object to it because it's a leading question.
THE PRESIDENT: Frame your question so that you don't give the witness the answer as a part of your question.
BY DR. FREDERSDORF:
Q.- In the letter contained in Document 699, the defendant Dr. Joel writes that in his opinion the transfer of the proceedings before the People's Court to the Chief Reich Public Prosecutor was to be expected. Did Obergruppenfuehrer Heydrich subsequently return the files of the Chief Reich Public Prosecutor to him in all cases with the exception of those against Elias and Klapka?
AAs far as I know, yes.
Q Do you remember that this was through the negotiations of Dr. Joel with Heydrich?
A I assume so.
Q Thank you very much. I have no further question.
BY DR. DOETZER (for the defendant Nebelung):
Q Mr. Under-Secretary, are you a friend of the defendant Nebelung?
A No.
Q Do you know the defendant Nebelung personally?
A Well, it's difficult to say what you mean by "personally." Quite seldom, on the occasion of larger meetings, I saw the defendant Neblung.
Q Did you meet him officially?
A "Got to know him" is putting it too strongly. During my time in office, he took part in consultations of business, but I may be mistaken too.
Q Did the District of the Oberlandgericht Braunschweig belong to the Districts of the Oberlandesgerichts which was under you?
A No.
Q Was the defendant Nebelung a member of the Party, and did you know anything about it?
A I cannot say anything about that.
Q Did the defendant Nebelung become prominent in a manner which Under-Secretary Freisler or the later Minister of Justice Thierack regarded as an "embodiment of the will of the Party"?
A I can only say that Neblung, and it's perhaps not polite if I say so, but I don't know anything about him at all. I can't tell you what he did.
Q In your capacity as Under-Secretary, did it become known to you whether President of the District Court of Appeals Nebelung in Brunswick objected together with his judges against interference by certain agencies, and in what manner he did so?
MR. WOOLEYHAN: Your Honor, I object to that question as leading and revealing the intended answer.
THE PRESIDENT: The witness said he didn't know anything about the defendant Nebelung. Do you know the answer to the question that was asked you?
THE WITNESS: Yes, Your Honor. My answer that I did not know anything about Nebelung referred to the fact that about his personal attitude and his opinion of the entire Party and State system, I do not know anything. If I may give a preliminary answer to this question, I do remember that in the Brunswick affair, Nebelung was active. I could testify something about that. May I answer the question, Your Honor?
THE PRESIDENT: Yes.
THE WITNESS: I remember that in Brunswick, difficulties had been created -- it must have been about 1935, I believe -- the difficulties consisted of the following:
that within the Administration of Justice there were two groups: On the one side, the President of the District Court of Appeals; on the other side, the Chief Public Prosecutor. If I remember correctly, I believe that the Chief Public Prosecutor thought that he could get the support of the SS. That was the cause for attacks against the activity of the judges in Brunswick. I recall that the then President of the District Court of Appeals --- and that must have been Nebelung -- objected against these interventions very strongly and in a masculine manner.
DR. DOETZER: Thank you very much.
DR. BRIEGER: Dr. Brieger for the defendant Cuhorst. May I have the permission to ask the witness, Dr. Schlegelberger a few questions on behalf of my client, Cuhorst?
BY DR. BRIEGER:
Q Mr. Schlegelberger, I have before me the so-called "Fuehrer Information Bulletin" of 1942, No. 66, which was introduced as Exhibit 197 by the Prosecution on 1 April 1947. Since these are only a few lines, may I read them to you again briefly.
"Reichsminister of Justice. Fuehrer Information 1942, No. 66.
"So far the sexual intercourse of a Pole with a woman could be punished by a court only if it were by force, that is rape, (or if it were perpetrated with a girl under 14.) The special penal regulations for Poles now makes it possible also to punish Poles who have violated the honor of the German woman by having sexual intercourse with a German woman with her agreement. In such a case, the Special Court in Stuttgart has now pronounced a death sentence.
"Berlin, 3 July 1942, By Order and in Charge of the Business."
Dr. Schlegelberger, your defense counsel, Dr. Kubuschok at the time that is on the first of April, already made some statement in regard to this matter. Nevertheless, I would like to ask a few questions of you about this which in my opinion do not constitute a repetition be cause today you are here in the witness stand under oath, and naturally the statements of your defense counsel were not made under oath.
Do you know anything as to whether this information left the Ministry of Justice?
A I consider it absolutely impossible. At the time my defense counsel, naturally, on the basis of the information which I gave him, stated that apparently here this was a draft which was not even signed, so it never left the Ministry. I want to state the following as to the reason for that which was of course not the typing error which you have stressed. The reason was for my present attitude that I do not know anything about such a decision, and that I do not believe at all that such a sentence was pronounced, but that it was simply a mistake made by a referent. And in this draft I signed just as little as many other drafts which were submitted to me.
Q Mr. Schlegelberger, would you assume at all that the draft originated with a referent if I shall tell you some of the stylistical peculiarities? "So far the sexual intercourse of a Pole with a woman could be punished by a court only if by force or on a girl under age was undertaken." Now let us take the case that this was to leave the Ministry. Was that the style in which your referent made the drafts?
MR. LA FOLLETTE: I object because it's a leading question of his own witness, Your Honor. Certainly he's got all the answer in there.
THE PRESIDENT: He may answer.
BY DR. BRIEGER:
Q You may answer, Dr. Schlegelberger. I had pointed out my stylistic misgivings, and please give me your answer, Dr. Schlegelberger.
A I had no occasion to correct the matter as to style. If I was not going to put it out, I was not interested in the style.
Q You would also not assume that this letter went to Hitler?
A I have already stated I assume that it did not leave the Ministry at all.
Q And for what reasons you no longer remember?
A Well, may I again repeat. I consider it impossible that such a sentence was pronounced at all.
Q Thank you very much.
THE PRESIDENT: Do any other of defense counsel desire to continue with direct examination? Apparently not. The direct examination may be deemed to be closed.
MR. LAFOLLETTE: If Your Honors, please, if there is some way of proceeding. I would like the Court to permit me to begin the cross examination in the morning, or at noon if Dr. Kubuschok has anything. I realize that it is a little unusual. On the other hand, I would like to gather together a little of the material so that I could think out what I want to do. So far I have done nothing but take notes. If the Court objects, of course, or if the Defense Counsel object, I will proceed, but if we could have some documents or something of that nature this afternoon -
THE PRESIDENT: Dr. Kubuschok, have you some of the documents to which you referred which might be introduced in evidence now -in order to fill out the afternoon?
DR. KUBUSCHOK: The document books in the English edition, as far as I have been informed, were completed today, but not quite in the German as yet. Of course, I do not want to burden the Tribunal with reading all of the documents. I only want to refer to some of them and read only parts from some of them. Therefore, I need sometime for preparing the document books; I wanted to do that tonight, so that I could start with the document books tomorrow. May I then make the following statement in regard to Mr. LaFollette's suggestion. I understand very well his wish to have a certain time to prepare the cross examination. In accordance with my duty I have to point out the following: My client is seventy-one years old; when I saw him during the last summer he had a severe heart disease, and I know that his health is very unstable. I was much surprised that during the examination he could stand it so well, and I assume that the extraordinary tension in which a defendant is in such a condition has stimulated him to such an extent; and I am afraid if the examination lasts too long his powers would be reduced. Therefore, for personal reasons, I would appreciate it if the cross examination could start tomorrow morning.
THE PRESIDENT: Your argument would seem to suggest that we should not require him to continue with the examination this afternoon? Will you find it necessary to have the defendant Schlegelberger on the witness stand when you are introducing your documents to which you have referred?
DR. KUBUSCHOK: No. He can leave the stand immediately after the re-direct is completed.
THE PRESIDENT: We will recess until tomorrow morning; and the cross examination may commence tomorrow morning; thereafter, the document books may be introduced after the witness has been excused. We will recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 1 July, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alsteeter, et al, defendants, sitting at Nurnberg, Germany, on 1 July 1947, 0930-1630 Justice James T. Brand presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THL PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused. The proper notation will be made.
We should state to the Counsel for the defendant Engert that this morning, a few minutes ago, medical reports were delivered to the Tribunal which we have not yet had the opportunity to examine; they will be examined in the near future.
You may proceed with the cross examination of the defendant Schlegelberger.
CROSS EXAMINATION BY MR. LA FOLLETTE:
Q Dr. Schlegelberger, I would like to ask you first just a couple of further questions about your live span in Germany, and your work in the Ministry. You are from Koenigsberg?
A Yes.
Q And, your father was a merchant at Koenigsberg?
A Yes.